Central Administrative Tribunal - Bangalore
M. Suresh vs Union Of India (Uoi) And Ors. on 30 August, 2004
Equivalent citations: 2005(3)SLJ306(CAT)
JUDGMENT Mukesh Kumar Gupta, Member (J)
1. Shri M. Suresh, Superintendent of Central Excise, in the present application seeks the following reliefs :
"(a) Issue an order or direction to the respondents to re-review the proceedings of all the Departmental Promotion Committees conducted for the period from 1989 to 1995 by carrying forward the unfilled reserved vacancies and to give notional promotion to the applicant from the eligible date determined by the re-review DPC to be so conducted and grant the consequential benefits including fixing his inter se seniority;
(b) Grant such other relief/s as this Hon'ble Tribunal deems fit in the facts and circumstances of the ease, including the costs of this application."
2. In order to appreciate the controversy, the relevant facts as stated by the applicant are that: The applicant, belonging to ST community, joined Department of Central Excise and Customs as an Inspector on 15.1.1982. Despite the fact that in terms of policy of the Government of India, he was entitled to reservation in promotional post of Superintendent, being eligible in the year 1992-93, for which DPC was held on 6.1.1993, he was not considered. Instead of carrying forward the vacant post meant for SC/ST, Chief Commissioner of Central Excise, Bangalore, arbitrarily dereserved the said vacancies. Therefore, he submitted representation dated 9th April, 1993 seeking notional promotion. The said post was required to be filled only by promotion. Being aggrieved by the inaction on the part of the respondents, he along with one Shri S.B. Shingenavar filed O.A. No. 2/1994, which was dismissed vide order dated 12th June, 1995 (Annexure-R1). On 13th July, 1995, SC/ST Welfare Association submitted representation to National Commission for SC/ST against irregular dereservation of unfilled vacancies reserved for SC/ST officers, which by its letter dated 2.6.1997 directed respondent No. 2 (Chairman, Central Board of Excise and Customs) to conduct DPCs from 1987 onwards giving benefits of unfilled vacancies reserved for SC/ ST candidates. In compliance thereto, third respondent conducted review DPC meeting on 25.6.1997 and 2.12.1997, and based on its recommendations promoted 43 officials belonging to SC/ST communities, including the applicant, who was given notional promotion with effect from 15th March, 1993 vide order dated 16.12.1997. The said promotion order dated 16.12.1997 was challenged by general merit candidates in O.A. Nos. 56, 57, and 121/1998 before this Bench of the Tribunal, and the impugned order dated 16.12.1997 in so far as it pertained to private respondents, which included the applicant herein, was quashed vide order dated 30.10.1998 (Annexre-A5). However, observation was made that:
"...though the O.A. No. 2/94 was dismissed recording certain findings, if the Department/Ministry finds that the stand taken by it with regard to the reasons for conducting supplementary DPCs was not correct and that any DPCs held previously require review for valid reasons, it is open to them to pass appropriate orders in accordance with law".
3. SC/ST Welfare Association once again represented on 15th/16th February, 1999 before respondent No. 2 and sought direction to respondent No. 3 to conduct review DPC from the year 1987 onwards. Vide communication dated 23.10.2001 (Annexure-A6), respondent No. 3 was directed to conduct review DPCs in the grade of Superintendent, during the years 1986 to 1992-93. Accordingly, a review DPC was held on 27.12.2001 from the year 1986 to 31st January, 1995 and based on its recommendations, order dated 13th February, 2002 (Annexure-A7) was issued, which did not include the applicant's name. In other words, the applicant lost notional promotion accorded to him with effect from 15.3.1993, granted vide order dated 16.12.1997.
4. Aggrieved by the said promotion order dated 13th February, 2002, SC/ST Welfare Association once again represented on 13th March, 2002 and prayed to respondent No. 3 to re-review the review DPC held on 27.12.2001 as the intended benefit was not extended to SC/ST officers. The said association was informed that the re-review DPC would be held on 17th/18th July, 2002. The applicant also submitted a representation dated 11th July, 2002 to consider his case for notional promotion, stating therein that had the 4 vacancies meant for ST officers available during the year 1990-91 been utilised, he would have got his notional promotion to the grade in question. Unfortunately, the respondents conducted re-review of the review DPC dated 27.12.2001 but restricted it to the period from 1985 to 1988 only and accordingly issued Establishment Order dated 16th August, 2002 (Annexure-A9). Thereafter, the applicant received communication dated 15.11.2002 stating that "in the instant case since the annual DPC for the year was not held subsequent to creation of the new posts, the same were considered separately by the second DPC for the year" (Annexure-A10). It is contended that the said reply was not just and correct and he, therefore, submitted further representation dated 25.11.2002 followed by reminder dated 5.2.2003 and requested to consider his case for notional promotion and also to provide him personal hearing, which personal hearing was allowed. The aforesaid representations were rejected vide communication dated 3.6.2003 (Annexure-A14). Being aggrieved, the applicant instituted the present application.
5. The basic grievance of the applicant seems to be that the respondents had withdrawn the notional promotion granted to him. It is contended that the respondents unauthorisedly and arbitrarily had dereserved the unfilled vacancies meant for SC/ST. Moreover, the ex post facto approval granted to dereserve the said vacancies was not just and tenable in the eyes of law. Despite the fact that the re-review of DPC dated 27.12.2001, was held on 22nd July, 2002, but it restricted the period from 1985 to 1988 and therefore the intended benefit was not extended to SC/ST officers.
6. The respondents strenuously contested the applicant's claim and stated that in terms of DOP & T O.M. dated 20th July, 1974, the principle of carry forward was not applicable for promotion from Group 'C' to Group 'B' posts; ex post facto proposal for dereservation of reserved vacancies between 1987 to 1992-93, which was accorded by the Ministry on 21st November, 1996 was withdrawn on SC/ST officers submitting their representations vide order dated 17th March, 1997. Consequent to the above, the DPCs for the said grade for the period from 1987 and 1992-93 were reviewed in terms of guidelines of the National Commission for SC/ST and vide order dated 16.12.1997 notional seniority was conferred upon the applicant with effect from 15th March, 1993. But the said order dated 16.12.1997 was quashed and set aside by this Tribunal vide order dated 30.10.1998 in O.A. Nos. 56, 57 and 121/1998. Accordingly, the ex-post facto dereservation order withdrawn by the Ministry vide letter dated 17th March, 1997 had to be restored. In the meanwhile, respondent No. 2 directed the department to take a fresh look at the records and find out if there were any omissions that had occurred in computation of vacancies/consideration of zones in the contested period. Ultimately, the Ministry vide letter dated 23.10.2001 conveyed their approval for holding review DPCs if the facts and records relating to the DPCs held previously so warranted.
6A. Pursuant to aforesaid, a review DPC was held on 27.12.2001 and panels drawn for promotion to the said grade of Superintendent from 1986 to 31st January, 1995 were reviewed. Necessary orders conferring notional/revised dates of promotion were issued on 13.2.2002. The applicant did not get empanelled during the aforesaid period. In compliance with the other judgment of this Tribunal dated 28th April, 2000 passed in O.A. No. 604/99, Shri V.S. Bikkanavar and Ors. v. Union of India, dated 28.4.2002, the date of promotion of the applicant was revised to 1st February, 1997. After issuing order dated 13th February, 2002, as the SC/ST association submitted representation dated 19th February, 2002, the matter was once again re-examined, and found that vacancies taken in the year 1985 was also in excess and hence another review DPC was held on 22nd July, 2002 to re-review the panels drawn from 1985 onwards. After covering the re-review upto the year 1988, it was found that the vacancy position and the roster points considered in the DPC, in the next DPC held on 21st April, 1989 which was reviewed en 27th December, 2001 would remain the same and hence it was decided that no further review of panel drawn by the review DPC dated 27.12.2001 was required.
6B. Although the Government approval existed for creation of 6981 posts as on 28th January, 1991, the said posts were meant for all India basis to be released/distributed amongst the Commissionerates in 3 phases. The post in the IIIrd phase was released Commissionerate-wise vide letter dated 16th February, 1993. Since the DPC for the year 1992-93 held prior to the said date, the 24 posts released vide the aforesaid letter dated 16.2.1993 were not taken into account by DPC, which in fact had been held on 22nd June, 1992. Accordingly, second DPC was held on 15th March, 1993 for the cadre review post, which was in accordance with the guidelines issued by the DOP&T O.M. dated 10th April, 1989. As per 6.4.2 of the said O.M. where a DPC has been held in a year and further vacancies arise during the same year due to death, resignation, voluntary retirement, new creations etc., such vacancies clearly belong to the category which could not be foreseen at the time of placing facts and material before the DPC and in such cases another meeting should be held for drawing up the panel for these vacancies as the said vacancies cannot be anticipated at the time of holding DPC.
6C. With regard to the point raised by the applicant that the annual DPC for the vacancies of 1990-91 was held on 18th June, 1990 which considered 19 vacancies and the supplementary DPC was held on 16.11.1990 without exhausting the panel drawn on 18.6.1990, it was clarified that 11 vacancies considered by the DPC were purely unanticipated vacancies. Consequently promotion vacancies were those which had arisen due to promotion of Superintendent to the Grade 'A' post based on All India Seniority and the Commissionerate could not anticipate such vacancies. As per the DOP&T O.M. dated 8th February, 1991, if there is no candidate against the reserved vacancies, it is open to the authority to get the post vacant dereserved. The reserved points were dereserved by the Competent Authority in accordance with the provisions of rules and instructions issued from time to time.
6D. We heard learned Counsel for both sides and perused the original records relating to DPCs and the manner in which the orders were issued for carry forward of vacancies meant for SC/ST as well as de-reservation.
7. Before proceeding on merits, we would like to notice M.A. No. 165/2004 filed by the applicant seeking direction to respondents to summon the records and permit him to peruse the same. The details of the records, which the applicant wanted to peruse were as follows:
(i) Proceedings of the review DPC dated 27.12.2001; (ii) Proceedings of DPCs held for promotion to the grade of Superintendents for the period from 1987 to 1992-1993 held on 25.6.1997 and 2.12.1997; and (iii) The records contained in file No. C. 18012/11/96-Ad.II.B dated 7.3.1997 at Annexure-A4.
The said M.A. was opposed by the respondents on the ground that by filing the said M.A. the applicant wants' to embark upon a roving enquiry, which is impermissible.
In support of the above M.A., strong reliance was placed by the applicant on (1987) 3 ATC 971 = 1988(4) SLJ 684 (PB-ND) (Full Bench), B.N. Rangwani v. Union of India and Ors., particularly to Paras 24, 37 and 38 of the said judgment to contend that without giving the party affected an opportunity to peruse the documents and make its submissions, if the Tribunal were to come to a conclusion that the impugned order is valid, the order of the Tribunal would offend principle of natural justice and fair play. Further, that the principle of natural justice enjoin that the aggrieved party must have an opportunity to make his submissions with reference to the material upon which the Tribunal is called upon to record its satisfaction regarding the validity of the impugned order. Drawing our attention to Paras 37 & 38 of the said judgment, it was stressed that when production of document by one party to a litigation is ordered by the Court/Tribunal, these documents had to be shown to the other party. Similarly, reliance was placed on R.K. Jain v. Union of India, AIR 1993 SC 1769, particularly Para 16 and 55. In Para 55, the Hon'ble Supreme Court held as follows:
"The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the frame work of the rules of evidence. To ensure that justice is done, it is imperative to the function of Courts that compulsory process be available for the production of needed evidence."
Reference was also made to the provisions of Freedom of Information Act, 2002, particularly Section 2(c) and (d), to contend that the applicant has right to seek information from the Department.
Mr. V.N. Holla, learned Counsel for respondents strongly refuted the aforesaid contentions and contended that no roving enquiry can be done by this Tribunal and judgments cited are not applicable in as much as the judgment in B.N. Rangwani, which relates to compulsory retirement and the judgment of R.K. Jain relates to the claim of privilege, which is not the issue in hand.
8. We have carefully considered the aforementioned submissions. As far as the question of applicability of the provisions of Freedom of Information Act, 2002 is concerned, it has not been pointed out as to on what date Central Government issued notification appointing the date from which-the said Act came into operation as required under Section 1(3). Section 2(c) and (d) defines "Freedom of Information" and "Information" respectively, as follows:
"2(c) "freedom of information" means the right to obtain information from any public authority by means of :
(i) inspection, taking of extracts and notes; (ii) certified copies of any records of such public authority; (iii) diskettes, floppies or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; (d) "information" means any material in any form relating to the administration, operations or decisions of a public authority;"
Under Section 6, a person desirous of obtaining information is required to submit an application in writing to the concerned/Information Officer, which is required to be dealt with under Section 7 of the said Act. It is not the case of the applicant that he had made such an application under the provisions of Section 6 of the Act. In the absence of specific notification issued by the Central Government under Section 1(3) we are of the considered opinion that the provisions of the said Act have yet to be enforced. As far as the question regarding applicability of the judgments cited is concerned, on bestowing our careful consideration, we are of the considered view that the said judgments are inapplicable in the facts and circumstances of the present case. The judgment of B.N. Rangwani relates to compulsory retirement and as it is well known that order of compulsory retirement under FR 56(j) is based on material, which is generally not known to the concerned official. The observations made in the said judgment cannot be read in isolation and has to be read in the context in which it appear therein. The facts of the present case are not similar to the B.N. Rangwani, the observation made therein would not be of general application. Similarly, the New Bombay Bench judgment in Narayanarao Balvantrao Samarane v. Union of India, noticed under Para 38 of the said judgment and which was relied upon was over-ruled in Para 39 by the Full Bench. Similarly, the judgment rendered by the Hon'ble Supreme Court in R.K. Jain's case is distinguishable and inapplicable in the facts of the present case.
9. We may also note that the applicant filed M.A. No. 165/2004 to extract information as to whether any proposal was sent for de-reservation of vacancies meant for SCs/STs and whether the National Commission for SC/ST was consulted before restoring the de-reservation. In our considered view this Tribunal cannot be used as a facilitator to provide information/material enabling the applicant to draft pleadings/raising contentions. We cannot make such a roving enquiry into the matter. We are supported in our conclusion on the above aspect, by the observations made in N.K. Singh v. Union of India and Ors., (1994) 6 SCC 98=1994(3) SLJ 37 (SC), wherein it was observed as follows:
"No roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinised with reference to the private rights of an individual. There is thus no basis to accept the appellant's contention that his transfer was occasioned by mala fides of the then Prime Minister on account of his annoyance with the appellant for the reasons stated or that it was in any manner contrary to the requirements of the Tenure Rules."
(Emphasis supplied)
10. It is not the law that the documents produced before the Tribunal/Court must necessarily be made available for inspection or otherwise to the applicant. When a record is produced before the Court/Tribunal, Tribunal has to see whether there is any material at all and whether that is relevant to reach conclusion by the concerned authority or not.
In view of the findings recorded herein above, we do not find any justification in the M.A. No. 165/2004 and accordingly the same is rejected.
11. On merits, the only question which needs consideration in the present case is whether there is any justification in accepting the applicant's plea that the order dated 13th February, 2002 requires further review or not?
12. As noticed herein above, the applicant is seeking direction to respondents to re-review the proceedings of all DPCs conducted for the period from 1989 to 1995 by carry forwarding the unfilled reserved vacancies and to give him notional promotion from the eligible date. Though the applicant has raised a contention that the respondents were not justified in withdrawing the ex post facto approval for de-reservation as it was against the Constitutional provisions on reservation of vacancies for SC/ST but no such relief was prayed for in specific. We may note that vide communication dated 7th March, 1997 (Annexure-A4), ex post facto approval for de-reservation of 3 ST and 1 SC points for promotion in the grade of Superintendent Gr.B vide order dated 21.11.1996 was withdrawn and thereafter a review DPC was held which resulted in passing of order dated 16.12.1997, whereby the applicant was granted the benefit of notional seniority with effect from 15th March, 1993, which order was ultimately quashed and set aside by this Tribunal vide order dated 30th October, 1998 in O.A. Nos. 56, 57 & 121/1998. It is not the case of the applicant that the said order and judgment passed in the aforementioned O.As. was taken either in appeal or quashed/modified, set aside by any higher Court. On the other hand, it is the specific case of the respondents that after the judgment dated 30.10.1998, withdrawal of de-reservation dated 7th March, 1997 became ineffective and the de-reservation was to be restored. This aspect has not been challenged by the applicant.
We may also note that as per Department of Personnel and Administration Reforms O.M. No. 10/41/73-Estt.(SCT), dated 20th July, 1974 dealing on the subject of Reservations for Scheduled Castes and Scheduled Tribes in post filled by promotion. Promotions by selection to Class II, within Class II and upto the lowest rung of Class I, it was provided that there will be no carry forward of reservation from year to year in the event of adequate number of SC and ST candidates not being available in any particular year. In view of this mandate of the O.Ms, we see no justification in the applicant's contention that the respondents in the absence of sufficient number of candidates being not available from SC/ ST, were required to carry forward the unfilled vacancies to next year. Similarly, there is no justification in the applicant's contention that had the 4 vacancies meant for SC/ST in the year 1990-91 were filled, he would have been considered.
13. Various circumstances under which review DPCs could be held has been dealt with vide DOP & T O.M. dated 10th April, 1989, as amended from time to time under Para VI, Para-18.1 of the said O.M. as reproduced by the Swamy's Complete Manual on Establishment and Administration, 2003 Edition, at pages 859 & 860 reads as under:
When Review DPCs may be held :
18.1 The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes, e.g. :
(a) where eligible persons were omitted to be considered; or (b) where ineligible persons were considered by mistake; or (c) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or (d) where some procedural irregularity was committed by a DPC; or (e) where adverse remarks in the CRs were turned down or expunged after the DPC had considered the case of the officer.
14. We have carefully perused the minutes of the review DPC held on 27.12.2001 and find that the said DPC considered in detail various facets like, number of vacancies for which DPCs were held earlier, change in the number of total vacancies as well as vacancies meant for SC/ST, roster point, the reasons for such change and such other informations as required. Based on the said review DPC, an order dated 13th February, 2002 (Annexure-A7) was issued which in specific show that review of promotion to the grade of Superintendent from 1986 upto 31.1.1995 had been undertaken by the said review DPC. The minutes in original produced before us, which were carefully perused by us, also indicate in specific that the review indeed was undertaken from the year 1986 panel till 31st January, 1995. The said minutes are detailed, comprehensive and analytical in nature. From a perusal of the note for the said DPC, it is apparent that the judgments rendered by this Tribunal on various occasions including the O.A. No. 2/1994 as well as O.A. Nos. 56 & 57 and 121/1998 were indeed considered. The respondents have very fairly stated that after the issue of the order dated 13.2.2002 since they noticed that number of vacancies noted against the year 1985 were not correct, another review DPC was held on 22nd July, 2002 to review the panel from 1985 onwards. After covering the review upto the year 1988, it was found that the vacancy position and roster point considered thereafter remained in tact. Hence, no further review of the panels drawn by review DPC dated 27.12.2001 was required. On perusal of the records, we find that the said averments are supported by records. We may note that as many as 60 SC/ST officers were promoted vide order dated 13.2.2003.
15. As we have already noticed, that the grounds for holding review DPCs are where eligible persons were omitted or ineligible persons were considered by mistake, or there was some irregularity committed by the DPC etc. Non/Over reporting of vacancies is one of the mistake which has to be rectified by holding review DPC. We find no justification in the applicant's contention that the review DPC dated 27.12.2001 restricted the period of review from 1985 to 1988 only. The order dated 16th August, 2002 (Annexure-A9) was the result of re-review DPC dated 22nd July, 2002. As we have already noticed herein above that since there was some mistake in the number of vacancies for the year 1985, the said exercise had been undertaken only till the year 1988, when the effect of said mistake was set off. From 1988 onwards, since there was no change in the vacancy position, further exercise of re-review was not required.
16. On consideration of the entire matter, we are of the considered view that there is no merit in the contentions raised by the applicant. Merely because the applicant was granted benefit of notional promotion with effect from 15th March, 1993 vide order dated 16.12.1997, which order was ultimately quashed by this Tribunal vide judgment dated 30.10.1998 and the further review was undertaken on 27.12.2001 and 22.7.2002, it does not necessarily mean that the applicant's position as of 15.3.1993 must remain unaffected.
17. In the light of the discussion made herein above, we find no merits in the present application. Accordingly the O.A. is dismissed. No costs.