Central Administrative Tribunal - Chandigarh
Kamlesh Kumar vs Comptroller And Auditor-General Of ... on 16 May, 2018
Author: P. Gopinath
Bench: P. Gopinath
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(OA No.060/00324/2017)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
...
ORIGINAL APPLICATION N0.060/00324/2017
Reserved on 04.05.2018
Decided on 16.05.2018
...
CORAM: HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MRS. P. GOPINATH, MEMBER (A)
...
1. Kamlesh Kumar, aged about 36 years, (HRCDA 3050733)
2. Monu Trar, aged about 29 years, (HRCDA 3050728)
3. Pritam Singh, aged about 38 years, (HRCDA 3050727)
4. Sunil Yadav, aged about 37 years, (HRCDA 3050732)
5. Dushyant Kumar, aged about 30 years, (HRCDA 3050736)
All are working as Assistant Audit Officer (AAO) [(Group-B)
Gazetted] in the office of Principal Accountant General (Audit)
Haryana, Plot No.4-5, Sector 33-B, Dakhsin Marg,
Chandigarh-160020.
....APPLICANTS
(Present: Mr. Sumit Sangwan, Advocate)
VERSUS
1. Comptroller and Auditor General of India, 9 Deen Dayal
Upadhyay Marg, New Delhi 110124.
2. Principal Accountant General (Audit), Haryana, Plot No.4-5,
Sector 33-B, Dakhsin Marg, Chandigarh 160020.
3. Senior Dy. Accountant General (Admn.), Office of Principal
Accountant General (Audit) Haryana, Plot No.4-5, Sector 33-
B, Dakhsin Marg, Chandigarh 160020.
4. Union of India, through Secretary, Department of Personnel
and Training, Ministry of Personnel, P.G. and Pension Govt. of
India, North Block, New Delhi-110001.
5. Daljit Singh (HRCDA 3050410)
6. Ranbir Singh (HRCDA 3050446)
7. Parveen Kumar Joshi (HRCDA 3050556)
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(OA No.060/00324/2017)
8. Ranjit Singh (HRCDA 3050571)
9. Ramesh Shah (HRCDA 3050578)
10. Tilakraj (HRCDA 3050787)
11. Ramesh Kumar Badhwan (HRCDA 3050788)
12. Sangeeta Kumari (HRCDA 3050786)
13. Brajendra Kumar Sinha (HRCDA 3050785)
14. Anil Sharma (HRCDA 3050439)
15. Vinod Kumar (HRCDA 3050671)
16. Hans Raj (HRCDA 3050473)
All are working as Assistant Audit Officer (AAO) in the office of
Principal Accountant General (Audit) Haryana, Plot No.4-5,
Sector 33-B, Dakhsin Marg, Chandigarh 160020.
....RESPONDENTS
(Present: Mr. Barjesh Mittal, counsel for respondents no.1 to 3
Mr. K.K. Thakur, counsel for respondent no.4.)
ORDER
HON'BLE MRS. P. GOPINATH, MEMBER (A):-
Applicants are appointed as a direct recruit to the post of Assistant Audit Officer (AAO) and joined service in August, 2010, in the respondent department. The respondents placed the applicants in the gradation list below the private respondents by counting their regular service, after completion of probation and subsequent on passing of SAS Exam. Applicants argue that their seniority should be counted from the date of joining, on the basis of their merit assessed by the Staff Selection Commission (SSC).
Applicants made representation in this regard for counting their period of probation for qualifying service. Respondent no.3 rejected the representation of the applicants, on the ground that as per para 5.6 & 5.7 and condition no.3 & 8 of their offer of appointment and revised para 5.6.6 (iii) of CAG's MSO (Admn) Vol-I, the seniority of 3 (OA No.060/00324/2017) direct recruit AAO will be below the last SAS Examination passed person officiating in the AAO cadre on the date when they were treated as a regular AAO.
2. Applicants in the OA challenge the rejection of their representation. Applicant argues that the seniority should be determined on the basis of SSC result. Applicants make a reference to DOPT OM dated 04.11.1992, which states that seniority will be determined by order of merit at the time of initial appointment and not consequent to the date of confirmation. Applicants based their case on the ratio of law laid down in the Deepak Sharma's case, which has not been considered by the respondents.
3. The respondents submit that the relief claimed by the applicants are not maintainable in view of the ratio of law laid down by the Hon'ble Supreme Court in case of M. Srinivasa Prasad & Others versus CAG & Others decided on 29.03.2007, wherein the court had dealt with the similar issue regarding the controversy as to whether the seniority as Section Officer has to be reckoned with effect from the date when they qualified the SOGE / SAS Examination or w.e.f. the date of initial joining in the department. The Hon'ble Apex Court while deciding the matter, had considered the CAG Manual of Standing Orders (Administrative) Vol-I para 5.6.6 as assailed by the applicants viz-a-viz on the IA & AD Recruitment Rules and categorically held that where there are no statutory rules in force for determining seniority in a service or even if there are statutory rules, but they are silent on any particular subject, government is competent by an executive order to make appropriate seniority rules or to fill in the lacuna in the 4 (OA No.060/00324/2017) statutory rules, wherever the statutory rules are silent. Discussing the OA no.063/00125/2015 decided on 07.09.2016 titled as Deepak Sharma & Others versus CAG & Others, the respondents submit that they have filed judicial review before the Hon'ble Court of Himachal Pradesh by filing CWP No.49/2017 titled as CAG & Others versus Deepak Sharma & Others, wherein, order directing the parties to maintain status quo in force.
4. Applicants are persons qualifying the Section Officer (Audit) Examination conducted by the Staff Selection Commission and were appointed as Section Officer / Audit / Assistant Audit Officer in the respondent department. The services of the applicants are governed by statutory Recruitment Rules called IA & AD (Assistant Accounts Officers/Assistant Audit Officers) Recruitment Rules, 1989 subsequently amended in 2001. While issuing the appointment order consequent to qualifying the examination, the applicants were clearly informed of all the terms and condition of their appointment which are reproduced as under:-
(i) The period of probation will be two years.
(ii) During the period of probation appointees would have to undergo a regular course of training for such a period at such place and in such manner as may be prescribed.
During the period of probation selected persons may also be assigned regular duties.
(iii) On conclusion of the training would have to qualify the SAS (Group-1 and II) Examination.
(iv) On satisfactory completion of the above process training selected persons will be eligible for the confirmation in the cadre of AAO.
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(OA No.060/00324/2017)
(v) The seniority of the direct recruits vis-à-vis departmental candidates who passed the SAS Exam will be fixed as per seniority rules as at present, i.e. a DR- AAO will rank below the last SAS Examination passed official in the AAO cadre, whenever as per the above rules, they are declared as a regular AAO.
5. At this stage, it is necessary to have a look at the Annexure A-3 offer of appointment to the post of AAO made to the applicants on 14.07.2010. Applicants were informed in the said letter that the period of probation will be two years. During the period of probation he will undergo a regular course of training and he may also be assigned regular duties on the said period. Para 3 of the appointment letter had clearly informed the applicants that on conclusion of the training, applicants will have to qualify the Subordinate Audit Service Examination (SAS Group-I & Group-II) conducted by the office of the Comptroller and Auditor General of India. In the event, applicants fail to pass the examination, he/she will be liable to be discharged from the service. The most important part of the para 3 to be noted is that only after passing the said examination, he / she would be appointed as a regular Assistant Audit Officer. Hence, it had already been informed to the applicants that appointment as a AAO was dependent on passing the SAS (Group-I & Group-II) Examination and in the event he fails to do so, he/she will be liable to be discharged from the AAO service. Hence, the final seniority of this batch of AAO would be fixed only after passing examination, wherein those who did not qualify the exam would be removed from AAO seniority list and the seniority list drawn thereafter. Applicant having slept over the matter for 7 years 6 (OA No.060/00324/2017) from the date of accepting the offer of appointment in the year 2010, assails the categoric and specific provision of his appointment order which he accepted without a demur then, regarding passing the SAS Examination and appointment as a regular AAO, only thereafter. Having availed the benefit of offer of appointment, the applicants challenges the proviso in the offer of appointment belatedly, however, late it may be.
6. Applicants had appeared in the examination knowing full well the terms and conditions for appointment as AAO. Applicants are liable for appointment to the post only after they pass the SAS (Group-I & Group-II) Examination and not the AAO Examination as argued by the applicants. Applicants have failed to distinguish between passing the AAO Exam, period spent on probation and the passing of the SAS (Group-I & Group-II) qualifying Examination, which would entitled them to hold the post of AAO on a regular basis. A direct recruit AAO is given appointment to the post on regular basis only after satisfactorily completing the period of probation and passing the SAS Examination. Till the above dual process of qualification is satisfied, applicants are not entitled to regularly hold the post and it can be said that the applicants service is akin to an apprentice.
7. The respondents also draw our attention to the provisions of CAG MSO (Admn.) Vol.I wherein, para 5.6.2, 5.6.6 and 5.7 provisions the seniority of a directly recruited AAO. Based on the above rules, the date of completing probation period was reckoned by the respondents as follows:-
Sr. No. Name S/Sh. Date of completion of
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(OA No.060/00324/2017)
probation period
1. Kamlesh Kumar 22.08.2012
2. Monu Trar 08.08.2012
3. Pritam Singh 22.08.2012
4. Sunil Yadav 22.08.2012
5. Dushyant Kumar 10.08.2012
8. The respondents' also draw our attention to several judgments passed by the Apex Court, wherein, this issue of seniority has been finalized.
i) Judgment passed by Hon'ble Supreme Court of India in case titled M.P. Chandoria vs. State of M.P. & others, reported as JT 1996 (5) SC 38, wherein the Hon'ble Court has held as under:-
"........Under Rule 12, the seniority of the members of the service of a district branch or group of posts of that service, shall be determined in accordance with the principles laid down therein. Sub-clause [i] of Clause [a] envisages that the seniority of a directly recruited Government servant appointed on probation shall count during his probation from the date of his appointment; the proviso is not relevant. Sub-clause [A] envisages that the same under of inter se seniority of direct recruits maintained by confirmation of the normal period of probation. If, however, the period of probation of any direct recruit is extended, the appointing authority should determine the date from which the candidate should be assigned seniority. Until the probation is declared and he was confirmed in the post, he does not became a member of the service successful completion of the probation and pass of the prescribed tests or conditions precedent to declare the probation. So, mere passage of time of one year does not entitle a 8 (OA No.060/00324/2017) probationer to be a member of the service. He remains to be on temporarily service. On declaration of probation, the appointing authority should confirm in a pending post available or to grant quasi-permanent status. As soon as the post is available, he should be confirmed. In view of the admitted position that he did not pass the test, the appointing authority considered that his seniority would be counted w.e.f. the date of his passing the test."
ii) Judgment passed by Hon'ble Supreme Court of India in case titled State of M.P. & another vs. Ramkinkar Gupta & Others reported as 2000 (1) SLR 689, wherein the Hon'ble Court has held as under:-
"In the present case, the respondent was granted an extension of one year for completing the probation and within that extended period he passed the requisite test. Therefore, his seniority will be fixed from the date of passing the departmental examination and not from the date of joining of service. Accordingly this appeal is dismissed with no order as to costs."
(iii) Judgment passed by Hon'ble Supreme Court of India in case titled Om Parkash Shrivastva vs. State of MP & another reported as (2005) RD-SC (19th April, 2005) wherein the Hon'ble Court held that "Unless he passes departmental examination, there is no question of completion of probation and for all practical purposes the employee continues to be in temporary service." 9
(OA No.060/00324/2017)
(iv) Judgment passed by Hon'ble High Court of Madhya Pradesh in case titled State of MP & Others vs. Mahesh Pandey & others, decided on 09.09.2014 in CWP No.2986 of 1999 wherein the Hon'ble Court held that requirement of passing of the departmental examination is a mandatory requirement for confirmation of a probationer as is evident from the Rules of 1961 and in view of the law laid down in the case of M.P. Chandoria (supra) and Ramkinkar Gupta (supra), therefore, absence of information to the petitioner is of no consequence.
Accordingly, in the facts and circumstances of the case, and for the reasons indicated herein above, the impugned order dated 8th March, 1999-Annexure P-1 passed by the M.P. State Administrative Tribunal is quashed and it is held that respondent employee shall be entitled to seniority and other consequential benefits from the date of his confirmation after he had passed the departmental examination. On such consideration, in case he is entitled to any other benefit, he may be granted the same."
v) Judgment passed by Hon'ble CAT, Chandigarh Bench in case titled S.K. Bhandari & another vs. UOI & Others reported as 2003 (2) SLJ 134 wherein the Hon'ble Court has held as under:-
"we do not find any force in the contention of the learned counsel for the applicants that the seniority rule is vitiated on account of the introduction of the date of confirmation for determination of seniority. Rule 9 of the Rules of 1943, as it stands, cannot be said to be ultra 10 (OA No.060/00324/2017) vires of the Constitution. Passing of the test/departmental examination is one of the essential ingredients for a person to be the "member of the services" and to secure substantive appointment against an available permanent post. He, who passes the test first, will push down the one who has failed to do so. The inter se seniority of the applicants and the respondent No. 4 has to be determined with reference to the date of substantive appointment on the fulfilment of the twin conditions mentioned above. In view of the positive rule, the seniority has to be regulated with reference to the substantive appointment which comes into being on the successful completion of the probation and passing of the departmental examination. The rule has been in existence for the last more than five decades and has been working well. We do not, therefore, propose to meddle with the service and to disturb the settled position. In our opinion, the existing seniority Rule 9 is not hit by any constitutional mandate."
9. In view of the above judgments, the relief sought by the applicants in this OA is a settled matter, the instant OA is hereby dismissed being devoid of merit and on the ground of delay also. There shall be no order as to costs.
(JUSTICE M.S. SULLAR) (P. GOPINATH)
MEMBER (J) MEMBER (A)
Dated: 16.05.2018
`rishi'