Central Administrative Tribunal - Delhi
Mahesh Kumar vs M/O Personnel,Public Grievances And ... on 27 February, 2023
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Item No. 06(C-3) O.A. No. 2188/2021
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O.A. No. 2164/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2188/2021
&
O.A. No. 2164/2021
This the 27th day of February, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
O.A. No. 2188/2021
1. Mahesh Kumar, Working as "ASO" (Group 'B')
Aged About 51 Years, S/o Late Sh. Radha Krishan,
R/o A-15, Aman Apartment, Sector-13, Rohini, Delhi.
2. Dinesh Singh, Working as "ASO" (Group 'B')
Aged About 52 Years, S/o Late Sh. Bhim Singh R/o
26/86-B, Ambedkar Gali No. 10,
Vishwas Nagar, Shahdara, Delhi 110032
3. Jayasree Penghatte, Working as "ASO" (Group 'B')
Aged About 51Years, W/o Sh. Siva Das K.
R/o C-5/15, Vashisht Park, New Delhi-110046
4. Meenu Grover, Working as "ASO" (Group 'B')
Aged About 51 Years, W/o Sh. Manoj Kumar Grover,
R/o 149/25, Shakti Nagar, Near Community Centre,
Gurgaon.
5. Punita Singh, Working as "ASO" (Group 'B')
Aged About 49 Years, W/o Sh. Naveen Singh
R/o Flat No. 1137, Sector-19, Pkt. -III,
Dwarka, Delhi-110075
6. Vijay Shree Sudharshan, Working as "ASO"(Group 'B')
Aged About 53 Years, W/o Sh. S.G. Sudarsan, R/o B-
168, Pocket-I, Kendriya Vihar-II, Sector-82, Noida.
7. Ishwar Dutt Kashyap, Working as "ASO" (Group 'B')
Aged About 53 Years, S/o Sh. Udrej Prasad, R/o
10925, Manak Pura, Karol Bagh, New Delhi-110005
8. Praveen Kumar, Working as "ASO" (Group 'B')
Aged About 54 Years, S/o Sh. Rati Ram
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Item No. 06(C-3) O.A. No. 2188/2021
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O.A. No. 2164/2021
R/o AI/203, Dev Nagar, Govt. Otrs, Karol Bagh, New
Delhi-110005
9. Purna Chandra Mahalik, Working as "ASO" (Group 'B')
Aged About 55 Years, S/o Sh. Birendra Mahalik
R/o Qtr-75/1A, Type-3, Sector-2, DI Area, Kalibari
Marg, New Delhi-110001
10. Kamaljeet Singh, Working as "ASO" (Group 'B')
Aged About 56 Years, S/o Late Sh. Sarwan dass R/o
1912, Type-3, N.H.4,
New Quarters, Faridabad (Haryana)-121001
11. Deva Dutta Dash, Working as "ASO" (Group 'B')
Aged About 53 Years, S/o Sh. Dibakar Dash
R/o 303A, street No. 4, K-Block, Old Rang Puri Road,
Mahipalpur-110037
12. Kulwant Singh, Working as "ASO" (Group 'B')
Aged About 55 Years, S/o Sh. Nirmal Singh R/o
13/V84, Geeta Colony, Delhi-110031
13. Pritam Kumar Bagde, Working as "ASO" (Group 'B')
Aged About 56 Years, S/o Sh. Bhagwan Raoji Bagde
R/o D-8, Tower-12, Type-4, Kidwai Nagar (East), New
Delhi-110023.
...Applicants
(By Advocate: Mr. M. K. Bhardwaj)
Versus
1. Union of India,
Through its Secretary,
DoP&T, (CS-II Division)
North Block, New Delhi.
2. The Additional Secretary,
DoP&T, (CS-II Division),
North Block, New Delhi.
3. Union Public Service Commission,
Through its Secretary,
Dholpur House, Shahjahan Road, New Delhi.
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Item No. 06(C-3) O.A. No. 2188/2021
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O.A. No. 2164/2021
...Respondents
(By Advocates: Mr. Gyanendra Singh, Mr. R. V. Sinha with
Mr. A. S. Singh and Mr. Piyush Gaur)
O.A. No. 2164/2021
1. Shri Bhupendra Kumar
S/o Shri Gajendra Prasad
Aged: Around 47 years
Residential Address:
9/10, Sector I, Pushp Vihar, New Delhi - 110 017
2. Smt. Nalini Ramesh
W/o Shri N. Ramesh Kumar
Age: Around 55 years
Residential Address:
Flat No. 14, Pocket 'A', New MIG Flats, Mavur Vihar,
Phase - 3 Delhi - 110 096
3. Smt. Chitra Ravikumar W/o Shri R. Ravi Kumar Age
around 53 ears
Residential Address:
C-24, Indraprastha Apartments, 114,
1.P. Extension Delhi - 110 092
4. Shri Satish Chander
S/o Late Shri H.R. Joshi Age about 56 yrs
R/o H. No.98, Type - 3, Sector-1, Sadiq Nagar New
Delhi
5. Shri Nuruddin S/o Shri Fariuddin Age about 52 years
Residential Address: H. No.542, Dangri Mohalla, Pana
Udyan, Narela, Delhi - 110 040
6. Shri Ashish Bhattacharya
S/o Late Shri N.G. Bhattacharjee Age around 49 years
Presently at: Ministry of Women & Child Development
Residential Address:1-4/128, 2nd Floor, Sector 16,
Rohini, Delhi - 110 089
7. Shri Neeraj Dogra
S/o Late Shri Tilak Raj Dogra
Age around 49 years
Presently at Ministry of Finance, Dept. of Economic
Affairs Residential Address:
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Item No. 06(C-3) O.A. No. 2188/2021
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O.A. No. 2164/2021
C-398, Yojana Vihar, Delhi - 110 092.
8. Shri Korangshing Maring Medarshang
S/o Shri Korungkhul
Age around 44 years
Residential Address: B-G, Type I,
Tower-20, East Kidwai Nagar, New Delhi - 110 023
9. Shri Stephan Guria
S/o Late Shri Silas Guria
Age 45 vrs R/o 886, Ward No.6, Mehrauli, New Delhi
10. Smt. Olivia Chakraborty W/o Shri Ranait Chakrabort
Aged Around 45 ears
Presently at: Ministry of Finance, Deptt. of Revenue
Residential Address 1-1760, Chittaranjan Park New
Delhi - 110 019
11. Shri Shubranshu Putatunda
S/o Late Shri Shibnath Putatunda
Age around 55 years
Presently at: Ministry of Finance, Dept. of Economic
Affairs Residential Address:
F-3, Plot No. 121, Sector 24, Vaishali, Ghaziabad,
UP - 201019.
12. Shri V.N. Venkataraman
S/o Shri V.K. Nagarajan Age:50 years
Presently at Ministry of Health & Family Welfare
Residential Address: Block-6/ 2A, Sector-2, D.I.Z.
Area, Gole Market, New Delhi - 110 001
13. Shri P. Muralidharan Nair S/o Late Shri K.
Ramakrishnan Age 51 years Presently at: Ministry of
Health & Family Welfare Residential Address: 31-B,
Pocket-5, MIG Flats, Mayur Vihar Phase - 3, Delhi -
110 096.
...Applicants
(By Advocate: Ms. Alisha Shail for Mr. Kripa Shankar
Prasad)
Versus
Union of India Others: through
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Item No. 06(C-3) O.A. No. 2188/2021
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O.A. No. 2164/2021
1. Union of India, through the Secretary, The Ministry of
Personnel Public Grievances and Pensions,
Department of Personnel & Training 2nd Floor, Lok
Nayak Bhavan, Khan Market
New Delhi - 110001
2. The Secretary
Department of Personnel & Training
North Block,
New Delhi - 110001
3. The Chairman
Union Public Service Commission,
Shahjahan Road New Delhi.
...Respondents
(By Advocates: Mr. R. V. Sinha with Mr. A. S. Singh and
Mr. Piyush Gaur)
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) Since the issue involved in both the captioned OAs is similar, we are hereby adopting the facts of the OA No.2188/2021 for the sake of clarity.
O.A. No. 2188/2021In the present OA, the applicants have prayed for the following reliefs:-
"i. To declare the action of respondents in not inserting eligibility retention clause in the impugned Central Secretariat Service Regulations 2013 to the extent i.e. eligibility criteria for promotion to the post of 6 Item No. 06(C-3) O.A. No. 2188/2021 & O.A. No. 2164/2021 Assistant Section Officer (erstwhile Assistant) shall continue to be 5 years for UDCs holding the post on regular basis as on 12.07.2013' as illegal, arbitrary and unjustified and direct the respondents to insert the said clause in the impugned Regulations of 12.07.2013 and consider the applicants for promotion to the post of ASO/Assistant on completion of 5 years of regular service as UDC from 2009/2010 with all consequential benefits including arrears of pay.
ii. To direct the respondents to consider the applicants for regular promotion to the post of ASO/Assistant on completion of 5 years of regular service as UDC from 2009/2010 with all consequential benefits including arrears of pay and grant further promotions as Section Officer alongwith similarly placed persons with all consequential benefits. iii. To quash and set aside the impugned CSS Regulations dated 12.07.2013 to the extent the requisite clause of retaining earlier eligibility criteria of 5 years of regular service for promotion to the post of Assistant Section Officer Assistant has not been inserted as done by Ministry of Defence while notifying the RRs of Assistant vide Notification dated 18.05.2018 as well as by other Ministries/Departments. OR iv. Declare the Rule 24 of Central Secretariat Service Rules and Regulation 1(2) of Central Secretariat Service Regulations dated 12.07.2013 as ultravires to the Constitution of India and direct the respondents to consider the applicants for promotion to the post of Assistant/ASO by applying the CSS Rules, 1962 and grant them promotion to the said post of Assistant Section Officer / Assistant from 2009, 2010 & 2011 with all consequential benefits.
v. To pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
vi. To allow the OA with cost." 7 Item No. 06(C-3) O.A. No. 2188/2021 & O.A. No. 2164/2021
2. Learned counsel for the applicants submits that the applicants, who were appointed as LDC, were promoted to the post of UDC in the year 2004 and 2005 on ad-hoc basis in Central Secretariat Services. They are aggrieved by their non-promotion on the post of Assistant on regular basis by applying the eligibility criteria as contained in Central Secretariat Service Rules, 1962 and by applying the new criteria as made part of new Recruitment Rules dated 12.07.2013 with retrospective effect. They are further aggrieved by the action of the respondents in not allowing them to appear in the Limited Departmental Competitive Examination for the year 2016 & 2017 for promotion to the post of Section Officer. Consequent upon non-grant of the promotion on regular basis, the applicants made several representations before the respondents, which are not considered by them. Hence, they have approached this Tribunal seeking the aforementioned reliefs.
3. The short issue raised before this Tribunal is whether the retrospective application of the rules so amended by the 8 Item No. 06(C-3) O.A. No. 2188/2021 & O.A. No. 2164/2021 respondents can be given effect to the derogation of rights of the existing employees or not ?
4. At the outset, Mr. M. K. Bhardwaj, learned counsel for the applicants submits that this Tribunal has already dealt with the issue involved in the present OA vide its judgments dated 05.01.2023 and 10.01.2023 passed in OA No. 2773/2015 and OA No. 2906/2015 respectively. The relevant portion of the said judgments reads as under:-
"6. During the course of the arguments, learned counsel for the applicant has drawn our attention to a judgment passed by the Hon'ble High Court of Delhi in Rajesh Kumar Giri & Ors. vs. Union of India & Ors. and submits that similar issue has already been decided in the said judgment of the Hon'ble High Court (supra), which reads as under:-
"6. There exists an office memorandum dated December 31, 2010 issued by DOPT, concerning revision or amendments in the existing Recruitment Rules. Inter-alia, vide para 3.1.3 of the said Office Memorandum, under the heading 'Retention of Existing Eligibility Service' it is provided :-
'RETENTION OF EXISTING ELIGIBILITY SERVICE 3.1.3 Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issues by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules.'"
7. The petitioners made representations when the new Recruitment Rules were promulgated on November 11, 9 Item No. 06(C-3) O.A. No. 2188/2021 & O.A. No. 2164/2021 2011, highlighting therein, that while amending the Recruitment Rules their chances of promotion were being adversely affected. They drew the attention of the Director General, BSF to the OM dated December 31, 2010 issued by DOPT and in particular para 3.1.3 thereof.
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12. We are more than a little bit surprised from the response for the reason the response overlooks the fact that Recruitment Rules can always be amended prospectively and if need be even retrospectively. The Ministry of Home Affairs, having conceded to the fact that it was by oversight that the DOPT OM dated December 31, 2010 was overlooked when the Recruitment Rules of the year 2001 were promulgated, and that the eligibility service for promotion prescribed in the existing Rules stood enhanced and the change adversely affected persons holding the feeder grade posts on regular basis, it became necessary to pen a note in the new Recruitment Rules to the effect that the eligibility service shall continue to be the same for persons holding the feeder post on regular basis on the date of notification of the revised Rules, as per para 3.1.3 of the DOPT OM dated December 31, 2010.
13. It hardly matters whether the amendment is made prospective or retrospective for the reason the posts with which we are concerned continue to be available.
14. Since the decision taken by the Cadre Controlling Ministry is on a wrong appreciation of the legal position we dispose of the writ petition issuing a direction to the Ministry of Home Affairs to process the recommendations made by DG, BSF and take corrective action, in that, accept the proposal to amend the BSF Air Wing Officers (Group A Combatized Posts) Recruitment Rules, 2011 by inserting a note therein to give effect to para 3.1.3 of the DOPT OM dated December 31, 2010, and for which direction we note that the Ministry of Home Affairs is the Cadre Controlling Ministry (The Rules of the year 1999 and the ones promulgated in the year 2011 have been notified by the Ministry of Home Affairs). Thereafter, case of the petitioners qua promotion be considered as per the Rules of 2011 with the note inserted therein.
10Item No. 06(C-3) O.A. No. 2188/2021
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O.A. No. 2164/2021
Learned counsel for the applicant has also relied upon a judgment passed by the Hon'ble Apex Court in T.R. Kapur and Others vs. State of Haryana and Others (1986 (Supp) Supreme Court Cases 584). The relevant portion of the said judgment reads as under:-
"Service Law- Seniority and Promotion- Right to be considered for promotion is a condition of service- Benefits acquired under rules made under proviso to Article 309 regarding qualifications for promotion cannot be taken away retrospectively by an amendment to the disadvantage of a Government servant- Amendments effecting such retrospective operation must satisfy Articles 14 and 16- Punjab Service of Engineers, Class I, PWD (Irrigation Branch) Rules, 1964, Rule 6(b) (as amended by State of Haryana by notification dated June 22, 1984)- Constitution of India, Articles 14 and 16 & 309 - Service Law-Retrospectively.
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19. In the result, the petitions must succeed and are allowed with costs. The impugned notification dated June 22, 1984 issued by the State Government of Haryana purporting to amend Rule 6(b) of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964 with retrospective effect from July, 10,1964 is declared to be ultra vires the State Government."
Lastly, the learned counsel for the applicant has drawn our attention to another judgment passed by the Hon'ble Apex Court in Ex-Capt. A.S. Parmar and Others vs. State of Haryana and Others (Civil Appeals Nos. 3095-96 of 1980). The relevant portion of the said judgment reads as under:-
"Statute Law- Retroactivity- Amendment of law taking away vested rights with retrospective effect- Held, invalid if it is violative of the present acquired or accrued fundamental rights of the affected persons- Punjab Government National Emergency (Concessions) Rules, 1965, Rule 4(ii), proviso [as introduced by Haryana Government Notification No. GSR/77/Const. Art. 309/Amend/(2)/76, dated March 22, 1976] and Rule 2 [as amended by Notification No. GSR 182/Const./Art. 309/Amend/(2)/76, dated August 9, 11 Item No. 06(C-3) O.A. No. 2188/2021 & O.A. No. 2164/2021 1976], held, invalid and must be quashed- Seniority list directed to be prepared afresh- Constitution of India, Articles 14 and 16 - Labour and Services- Seniority and promotion."
7. On the contrary, learned counsel for the respondents has drawn our attention to the counter affidavit filed on behalf of the respondents, wherein he has relied upon the judgment of the Hon'ble Apex Court titled High Court of Delhi vs. A. K. Mahajan reported as (2009) 12 SCC 62. The relevant portion of the said judgment reads as under:-
"11. Now, we find no discussion in the whole judgment as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to the Writ Petitioner No. 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer.
12. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. In the present case, it is not as if the concerned Writ Petitioner No. 8 was altogether denied the benefit of consideration for ever. He was undoubtedly considered later on and was promoted also. Therefore, it is incorrect to say that the amendment had the effect of denying him the benefit of consideration, which was available to him. He did continue with that benefit and was actually benefited under the same.
13. This is apart from the fact that the concept of consideration is an uncertain concept. One can understand a pension amount which is already 12 Item No. 06(C-3) O.A. No. 2188/2021 & O.A. No. 2164/2021 decided or the promotion which is already granted or the seniority which is already conferred upon or the substantive appointment which is already made. If the amendment has the effect of denying this crystallized promotion, seniority or substantive appointment, then certainly the amendment could be held as arbitrary. But that has not happened here. Here, no promotion was already granted or seniority already fixed, or any substantive appointment already made were affected by the retrospective amendment. The observations in above quoted para 24 have to be understood in that sense."
8. Taking into consideration the submissions made, we are of the view that if the respondents had conducted a DPC on year to year basis, the applicant would have been considered for the next higher promotion in the year 2009- 10, when they have completed 5 years residency period in the feeder grade. Unfortunately, the DPCs were not conducted every year, for want of amendment in the Recruitment Rules and ultimately the rules were amended in the year 2013 and have given effect to from 12.07.2013 with retrospective effect, in derogation to the rights of the applicant which is not permissible under the eyes of law. Initially the Recruitment Rules were prescribed as 5 years residency period in feeder grade for getting promotion to the next higher level but it has been modified to the extent of 10 years from the retrospective date, by way of amendment in the year 2013, taking away the earlier rights of the applicant for promotion in the vacancy of that year, is not sustainable.
9. Thus, we hereby set aside the regulation 1(2) "deemed to have come into force on the 1st day of July, 2009." of the impugned notification dated 12.07.2013. The respondents are directed to carry out necessary amendments as already directed by the Hon'ble Apex Court, within a period of four months from the date of receipt of a certified copy of this Order. And, if the applicant is found eligible for promotion, she shall be accorded the same."
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O.A. No. 2164/2021
5. Since this Tribunal has already dealt with the issue involved in the present matter, we are of the view that these OAs also stand allowed in terms of the direction passed in the aforesaid judgments dated 05.01.2023 and 10.01.2023 (Supra). The directions so passed in the said OAs (Supra) shall be followed in the present case also, within a period of four months from the date of receipt of a certified copy of this Order.
6. Accordingly, the OAs are disposed of as above.
Associated MAs, if any shall also be disposed of. No costs.
(Dr. Anand S. Khati) (Ashish Kalia) Member (A) Member (J) /yaksh/