Central Administrative Tribunal - Delhi
Shri Baburao Sukhram Nagose vs Union Of India on 22 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 232/2013
MA No. 543/2013
Order Reserved on: 01.05.2014
Order Pronounced on: 22.07.2014
HONBLE MR. V.N. GAUR, MEMBER (A) HONBLE MR. RAJ VIR SHARMA, MEMBER (J)
1. Shri Baburao Sukhram Nagose,
Age 55 years, working as Junior Works
Manager, Ordnance Factory, Bhandara,
Residing at Quarter No.E/6, Jawahar Nagar,
Of Estate, Bhandara 441906.
2. Mangalds Z. Padwekar,
Age 48 years, working as Junior Works
Manager, Ordnance Factory, Varangaon,
Residing at Quarter No.4/C Type 4, Ordnance Factory
Varangaon Estate, Pin-425308.
3. Dudharam C.Thalal,
Age 54 years, working as Junior Works
Manager, Ordnance Factory, Ambajhari,
residing at Quarter No.1/15/4 Type 4
Ordnance Factor, Ambajhari Estate
Nagpur, Pin.440021.
4. Ashok S.Adol,
Age 51 years, working as Junior Works
Manager, Ordnance Factory, Institute of Learning
Ambajhari, residing at Ordnance Factory,
Ambajhari Estate Nagpur, Pin 440 021
5. Surender Kumar,
Age 51 years, working as Junior Works
Manager, Ordnance Factory, Bhandara,
residing at Ordnance Factory, Bhandra Estate,
Jawahar Nagar,
Pin-441 906.
6. Hemant H. Ghate
Age 57 years, working as Junior Works
Manager, Ordnance Factory, Chanda,
residing at Quarter No.33/A, Type 4, Sector 5
Ordnance Factory, Chanda, Pin 442 501. Applicants.
(By Advocate: Shri M.S. Saini)
Versus
1. Union of India
Through the Secretary of Defence
Department of Defense of Production
And Supplies, South Block
New Delhi-1 10 001
2. The Chairman,
Ordnance Factory Board
10-A, S.K.B. Road, Kolkata -7000 001.
3. The Chairman
Union Public Service Commission
Dholpur House, Shahajahan Road,
New Delhi.-1100 69.
4. Shri Visw Manohar
Assistant Works Manager Ordnance
Factory, Varangaon, 425 308.
5. Shri M.K. Gangadhar Assistant
Works Manager Ammunition
Factor Khadki, Pune-411 003.
6. Smt. Usha Kiran Assistant
Works Manager
B-273, Vaishali Nagar, Jaipur,
Rajasthan-302021. -Respondents
(By Advocate: Shri V.S.R. Krishna)
O R D E R
MR. V.N. GAUR, MEMBER (A):-
MA No.771/2011 moved by the applicant for joining together is allowed to avoid multiplicity of litigation.
2. The applicants, six in number, are working as Junior Works Engineer in the Ordnance Factory under Ordnance Factory Board, Ministry of Defence. The present application has been filed with the following prayers:-
a. This Honble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same, quash and set aside the impugned promotion orders dated 30.06.2009 and 31.07.2009 to the extent of non-promotion of the Applicants to the post of Assistant Works Manager (JTS).
b. This Honble Tribunal may further be pleased to direct the Respondents to conduct review DPC for effecting promotions to the post of Assistant Works Manager (JTS) for the year 2008-09 by considering the candidates from combined seniority list of Junior Works Manager and on being found fit , the Applicants be promoted to the post of AWM/JTS w.e.f. 30.6.2009 with all consequential benefits.
c. Cost of the application be provided for.
d. Any other and further order as this Honble Tribunal deems fit in the nature and circumstances of the case be passed.
3. The applicants had earlier filed OA 748/2011 in the Mumbai Bench of this Tribunal challenging the action of the respondents of promoting their juniors to the post of Assistant Works Manager on the basis of discipline wise/ trade wise seniority list of Junior Works Managers (JWM) working in different streams in violation of the Recruitment Rules as the rules do not provide for separate quota for promotion to the post of AWM. Separately, another OA 2288/2010 was filed by one Sankar Chander Paul and another in the Calcutta Bench of this Tribunal challenging the decision of the OFB that from 2009 -10, promotion to junior time scale (JTS)/ AWM will be made from combined seniority list of JWM of all technical trades / discipline and non-technical trades/disciplines taken together. The applicants prayed in that OA for continuation of the old system of trade/discipline-wise promotion. While these OAs were under adjudication the respondent No.1 filed PT No.106/2012 in the Principal Bench with a request to transfer OA No. 748/2011 pending before Mumbai Bench to the Principal Bench of this Tribunal. The same was allowed by Honble Chairman vide order dated 2.1.2013 and the OA was listed as OA No.232/2013 in the Principal Bench.
4. The Department of Defence Production and Supplies, Ministry of Defence had notified on 1.10.2002 Indian Ordnance Factories Service /(IOFS)(Group A) Recruitment Rules, 2002 which provided for 50% of the total posts for the junior time scale to be filled by promotions from Junior Works Manager (Technical/ Non-Technical/ Stores). The Juniors Works Manager on the other hand come from various disciplines Mechanical /Electrical /Civil/ Design / Metallurgical/ Chemical/ Clothing / Leather, besides Non-Technical /Stores. It is the case of the applicants that the Recruitment Rules do not envisage discipline wise promotion to JTS from JWS but the respondents illegally have been maintaining discipline wise seniority list of JWMs and promoting according to the Trades/Disciplines of the retiring officer whose vacancy was to be filled up. This was contrary to the Recruitment Rules of 2002. The applicants have challenged the orders dated 30.6.2009 and 31.7.2009 promoting 97 & 23 JWMs respectively to the post of AWMs (JTS) to the extent that the applicants who claimed to be senior to some of the promoted officers were left out.
5. Learned counsel for the applicants submitted that the main ground for challenging the impugned orders was the fact that the Recruitment Rules of 2002 did not envisage trade/disciplines-wise to JTS. This position has been acknowledged by the respondents and the respondent No.2 prepares a combine seniority list of JWMs by merging JWS in various disciplines /trade/categories and issued the same on 18.10.2010. A proposal was also sent to the UPSC for promotions on basis of the combined seniority list in respect of the Recruitment years 2009-10, 2010-11 and 2011-12. The UPSC did not agree with the proposal and directed the respondent No.1 to revise all promotions to the post of AWM by conducting review DPCs starting from the year 2002-03 onwards, when the new Recruitment Rules came into force. The respondents, however, did not pursue the matter further. Subsequently the respondents moved the proposal for promotion on the basis of the old system of Trade/Disciplines-wise quota in violation of the Recruitment Rules. The applicants had therefore move an MA No.543/2013 in the present OA to pass interim order restraining the respondents from giving effect to the DPC proposal for the year 2009-10 to 2011-12 based on discipline wise /trade wise seniority list till the final disposal of the OA. However, no such stay was granted by this Tribunal. The respondents have in the meantime made further promotions following the old system.
6. The learned counsel further submitted that prior to 2001 the post of AWM/JTS were divided discipline/trade-wise. However, the Ministry of Defence vide order dated 9.4.2001 declared the cadre of AWM/JTS as mono cadre. On the basis of that decision the Recruitment Rules of 2001 were notified wherein in no trade /disciplines-wise distinction was made among the JWMs for the purpose of promotion to JTS of IOFS. According to the existing practice the JWM belonging to one discipline /trade carry transfer liability to another discipline or trade, for example, in various sections such as Yard and Estate, Material Management, Stores, Motor Transport etc. The learned counsel further submitted that by quashing and setting aside impugned promotion dated 30.06.2009 and 31.7.2009, the names of some of junior candidates would be deleted from the said orders. However, there were more than 100 vacancies of AWM/JTs against which these candidates would get adjusted. Pointing out the contradiction in the stand taken by the respondents in the affidavit filed in OA 2288/2010 and that in the present case the learned counsel stated that at one place the respondents have justified the notification of a combined seniority list as the same was in accordance with the requirement of Recruitment Rules of 2002 and at another place, i.e. this case, they have taken a stand that reversion to the old system of discipline/trade-wise seniority list and recruitment was in accordance with the practice followed for a long time. The learned counsel relied on the following judgments:- Dr. N.D. Mitra and another Vs Union of India (1994) 4 SCC 474, D.P. Das Vs. Union of India and anothers (2011) 8 SCC 115, B. Premanand and others Vs. Mohan Koilal and others (2011) 4 SCC 226.
7. Shri V.S.R. Krishna, learned counsel appearing on behalf of the respondents at the outset raised the issue of non-joinder of parties as all those officers who would be affected in case the relief sought for was allowed have not been made parties in this OA. He also vehemently denied that the action of the respondents in following discipline based promotion was contrary to SRO 227 (the Recruitment Rules of 2002) and therefore illegal. He argued that the practice of publication of separate seniority list of JWMs disciplines-wise has been followed since long. The SRO 227 does not prohibit such a practice and therefore the promotion orders 30.06.2009 and 31.07.2009 cannot be treated as illegal. In their written reply filed on 11.12.2012 it was stated that the respondents had considered the proposal of preparing a combined seniority list of all the JWMs and published it also on 12.10.2010 but immediately after that principle was challenged by Sanker Chander Paul in OA 2288/2010 and by Netai Bhatacharya in the OA 2287/2010. In the absence of any interim order passed by the Calcutta Bench of this Tribunal, the department was proceeding with the preparation of combined seniority list of JWM from 2002-03 onwards to enable the exercise of DPC once the task has been completed. In reply to the MA No.543/2013 in the present OA filed by the applicant seeking stay on further promotion on the basis of disciplines-wise, the respondents in their reply filed on 16.4.2013 have reversed their stand stating that in their draft combined seniority list a very large number of JWM were appearing together in a bunch in the seniority list as a result while drawing select panel for promotion to JTS a rather high number of incumbent from a single disciplines only would figure against wastage vacancies arising due to retirement from different disciplines . Such a situation would result in imbalance amongst various disciplines within the JTS grade and directly affect functional requirement of the organization. It has also been stated that from the point of view of cadre management, a sudden shift to common seniority may not be a sound proposition. Going by combined seniority may call for review DPC since 2002-03, which would have wide spread unsettling effect in the cadres as well as in the organization. Since promotions to JTS has been held up for the last four years it was having deleterious effect of moral of the cadre and functioning of the organization at the critical supervisory level, the respondents had considered it to be appropriate to effect promotion based on the time tested principle of stream-wise promotions pending final outcome of the court cases in the matter. In the interest of functional needs of the organization, it was desirable to continue to follow the existing procedure of disciplines wise promotion to JTS. The respondents had submitted a proposal on these lines to the UPSC.
8. We have considered the submissions made by both the sides and perused the pleadings on record. It is important to note at the outset that according to the documents filed by the learned counsel for the applicant on 22.4.2014 the OA 2287 and 2288/2010 have been dismissed as infructuous by the Calcutta Bench of this Tribunal vide order dated 5.3.2014. It has been noted in that order that the respondents have granted promotion on the basis of old scheme which has benefited one of the applicants while the others have retired, making the OA infructuous.
9. The first question that needs to be addressed is the objection raised by the respondents regarding non-joinder of parties. It is observed that through the impugned orders dated 30.06.2009 and 31.07.2009, 120 officers have been promoted from the grade of JWMs to JTS. The applicants have submitted a list of officers who have allegedly superseded the applicant as Annexure A-9 to the OA. According to the list applicants Nos. 1,3 & 4 have been superseded by 44 officers, applicant no. 2 has been superseded by 49 officers and applicant No 5 & 6 by 11 officers. The applicants have impleaded only three officers promoted vide impugned orders as private respondents. If the impugned orders are quashed and set-aside and a review DPC ordered, all these officers who have superseded the applicants will be affected. It is not only the requirement of order 1 Rule 9 of the Civil Procedure Code but also of law of natural justice and the law as evolved through various judgments of the Courts. In this context Honble High Court of Allahabad in UOI & Ors. vs. CAT, Allahabad in Appeal No. 20210 of 1997 held as follows:-
In view of the above, we are of the considered opinion that the Tribunal should not have entertained the petition unless the necessary parties i.e. respondent nos. 2 to 15 had been impleaded by the respondent no.1-applicant himself. More so, rejecting their application for impleadment by the Tribunal could not be justified as those persons were going to be adversely affected after the application filed by the respondent no.1 was going to be allowed finally. The impleadment of a party is permissible at any stage in view of the judgment of the Hon'ble Supreme Court in Bal Niketan Nursery School Vs. Kesari Prasad, AIR 1987 SC 1970, wherein it has been held by the Hon'ble Apex Court that a party can impleaded at any stage.
10. In this case even the representative private respondents impleaded by the applicants have not filed any reply. In the interest of justice, it is considered necessary to hear all the persons who are going to be affected by the relief prayed by the applicant. In view of this position, this Tribunal restrains itself from giving any finding on the issues raised in the OA and dismisses the OA on account of non-joinder of parties.
(Raj Vir Shrama) (V.N.Gaur) Member(J) Member (A) /mk/