Central Administrative Tribunal - Gauhati
Brijmohan Agarwal vs M/O Defence on 14 October, 2020
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CENTRAL ADMINISTRATIVE TRIBU NAL
GUWAHATI BENCH
--~ Original Application No. 040/00026/2020
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THE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER
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THE HON'BLE MR.N.NEIHSIAL, ADMINISTRATIVE MEMBER
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Brij Mohan Agrawal
MES No. 462243
Joint Director General (Chief Engineer}
O/o Additional Director General (North East Infrastructure} :
Narangi Military Station i
P.O. Satgaon, Guwahati - 781 027 | :
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By advocate(s}: Sri M.Chanda, Smt. U. Dufta
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1. The Union of India
Represented by the Secretary to ihe
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Government of India, Ministry of
Defence, South Block, New Delhi -
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. Engineer-in-Chief
Integrated HQ of MOD {Army}
Kashmir House, RajajiMarg
New Delhi --- 110011.
. Director General (Pers)
Military Engineer Services
Engineer-in-Chief's Branch
Integrated HQ of MOD (Army)
Kashmir House, Rajajimarg
New Delhi -- 110011.
OA.040/00026/2020
2
ease Respondents
By advocate: Sri S.K. Ghosh, Addl. CGSC
Date of hearing: 24.06.2020 Date of order: 1} 4-19: 2070
ORDER
MANJULA DAS, JUDICIAL MEMBER:
This O.A. has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 with the following reliefs:
"8,1 That the Hon'ble Tribunal be pleased to set aside and quash fhe impugned RTI Reply dated 13.11.2019 {Annexure-Al) with its enclosure as well as impugned OM dated 09.10.2015 (Annexure-A2) 8.2. That the Hon'ble Tribunal be pleased to direct the respondents for immediate posting/appointment of the applicant in any one of fhe existing vacant post of Chief Engineer (Zone} with immediate effect without further delay.
83 That the Hon'ble Tribunal be pleased to declare that the residuary period of 12months for the purpose of executive posting of Chief Engineer (Zone be counted from the date of submission of initial proposal of posting to ihe post of Chief Engineer i.e. August 2019 to enable the applicant to become eligible for posting in the post of Chief Engineer (Zone)."
2. Brief facis narrated by the applicant are that the applicant was initially appointed as Assistant Executive Engineer at Meerut in the Department of Military Engineers QA.040/00026/2020 anh ia a rs ete, Ba ot a ete le es wee we CD lege
- es senor naneanapean tec ie! yeu nove a ed " es ou Sench eN Services (MES) under the Government of India, Ministry of Defence in the year 1985, after being successful in the Engineering Services Examination conducted by the Union Public Service Commission of the year 1983. While serving as Assistant Gdrrison Engineer, the applicant was further promoted to the post of Executive Engineer in the year 2005, The applicant had discharged his duties as Commander Works Engineer (in short CWE) at Trivandram fill 22.06.2009. Thereafter, the applicant was empanelled for consideration of promotion to the post of Chief Engineer following recommendation of the DPC and being found svitable having required bench mark for such promotion to the post of Chief Engineer under the statuiory recruiiment rules namely Indian Defence Service of Engineers (Recruiimeni and Conditions of Service) Rules, 2016 which was framed in exercise of the powers conferred by the proviso to Art 309 of the Constitution of India.
3. lt was stated by the applicant that the Direcior General (Personnel) vide leiter dated 29.08.2019 informed that the penal dated 26.08.2019 which was prepared for OA.040/00026/2020 Ro So oo Ae RR FEAL, ETT AE eat a Sr any, oH promotion to the grade of Chief Engineer in MES of the Ministry of Defence against the vacancies for the year 2019 shall be subject to final oufcome of certain court cases pending before the CAT and Hon'ble High Court. The applicant's name was figured in the promotion panel dated 26.08.2019 and he was transferred and posted from DG MAP to the post of Joint Director General in the Office of the Additional Director General (NEI), Guwahati. According to the applicant, the post of Joint Director General is of the equal rank, status and pay of Chief Engineer. Accordingly, pursuant to the order dated 30.08.2019, ihe applicant had joined at Guwahati on 09.09.2019 and presently serving as Joint Director General at Narengi, Guwahati. MRE EA, The applicant's grievance arises as and when his
--, case for posting fo the vacant posi of Chief Engineer Zone was not considered and was declared ineligible for consideration of his appointment as Chief Engineer (Zone}jon the alleged ground that the ACR/APAR earned by ithe applicant during the year 2007 and 2009 while serving as CWE do no? fullfill the minimum criteria of "Very Good" and OA.040/00026/2020 yeunds > t io) = 1K 5 also against the executive instructions whereby condition of bench mark jo be "Very Good" in the cadre of CWE have been introduced, According to the applicant, this condition has been applied with retrospective effect in total violation of the Statutory Recruitment Rules namely Indian Defence Service of Engineers (Recruitment and Conditions of Service} Rules, 2016.
5. lt was stated by the applicant fhat despite the applicant empanelled and recommended by the DPC held in the year 2019 for promotion to the post of Chief Engineer, a senior Administrative Grade (SAG) on approval by appointment Committee of cabinet and posted as Joint Director General in the Office of the Additional Director General equivalent to the post of Chief Engineer and posted .at Narangi, Guwahaii, the applicant was arbitrarily declared ee! 'ineligible for consideration of appointment of Chief Engineer wh"
(Zone). Hence, this O.A. filed before this Tribunal with the prayer mentioned above.
OA.040/00026/2020
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6. Heard Sri M. Chanda, learned counsel for the applicant and Sri S.K. Ghosh, learned Addl. CGSC for the respondents.
7. Sri M. Chanda, learned counsel for the applicant submitted that when the juniors of the applicant have been considered and posted as Chief Engineer Zone but the claim of the present applicant has been rejected for posting as Chief Engineer Zone on the alleged ground that the applicant did not fulfil minimum criteria of "Very Good" in his ACR/APAR while working as CWE, a say ah
8. Sri M. Chanda, learned counsel vehemenily argued ee cs that the requirement of "Very Good" grading for consideration of posting as Chief Engineer Zone was issued ea Lena ree 1 aan by an executive order i.e. O.M. dated 09.10.2015.
9. Learned counsel further submitted that since the requirement of "Very Good" bench mark has been iniroduced for the purpose of posting as Chief Engineer Zone vide OM dated 09.10.2015 when the applicant has rendered his service as CWE during the year 2007-2009, as such, said bench mark grading of "Very Good" cannot be applied OA.040/00026/2020 retrospeciively for the year 2007-2009 on the short ground that the office memorandum are always prospective in nature, therefore said impugned O.M dated 09.10.2015 cannot be applied retrospectively and fhe respondents are also not legally entitled to take shelter under the O.M dated 09.10.2015 in order to declare the applicant ineligible for consideration of his posting as Chief Engineer Zone.
10. According to the learned counsel, ait the relevant time when the applicant was working in ihe post of CWE ' during ihe year 2007-09, the rule of ACR was prevailing and holding the field, however the concept of APAR was introduced by Government of India, subsequently during the calendar year 2010. On careful perusal of the impugned O.M. dated 09.10.2015, it would be evident from sub para (i), (b}, para 5, wherein it referred "All APAR of CWE/STE should be very good or above", since ihe concept of APAR =| introduced during the calendar year 2010 as such the said impugned office memorandum dated 09.10.2015 specifically made a mention of APAR but no ACR, as such the restriction imposed through OM dated 09.10.2015, cannot be applied in OA.040/00026/2020 sand TA ae,
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the instant case of the present applicant as because at the relevani time, rule of ACR was holding the field, moreover the evaluation criteria of ACR and APAR are quite different and on that score alone the impugned RTI reply dated 13.11.2019 declaring the applicant, ineligible is liable to be set aside and quashed.
11. Learned counsel has drawn our attention to the Indian Defence Service of Engineers (Recruitment and Condition of Service) Rules 2016 containing schedule 3 that the promotion.to the post of Chief Engineer is done by way of selection and provided in the field of selection, minimum qualifying service and educational qualification for promotion.
12. To subsiantiate his argument Sri M. Chanda, learned counsel relied on the following decisions:
(a) Sonia Vs Oriental Insurance Co. LID and others reported in (2007) 10 SCC 627.
{b) Chandra Prakash Madhavrao Dadwavs Union of India and others reported in (1998) 8 SCC
154. (c} Ajay Kumar Das Vs State of Orissa and others reported in (2011) 11 SCC 136, OA.040/00026/2020 = 9
13. Sri S.K. Ghosh, learned Addl. CGSC for the respondents submitted that for posting to the Chief Engineer (Zone), seniority is not the criteria and there are other requirements as per guideline issued by the Ministry of Defence on 09.10.2015. For assignment to the Chief Engineer FH (Zone), officer should have minimum four years outstanding APAR out of six and all the APARS of CWE/STE assessment i should be minimum 'very good' and above for eligible as I Chief Engineer (Zone). Though the promotion was given effect in the year 2019 but those vacancies arose way back in the year 2015 but on this or that pretext the promotion was delayed. As per Recruitment Rules 2016 the promotion of the applicant along with others were considered by order dated 28.08.2019 and 20 eligible persons were promoted to the grade of Chief Engineer in the Pay Scale of PB-4 of Rs.37400- 67000+ Grade Pay of Rs.10000 in the MES uncer the Ministry of Defence against the vacancy for the year 2019. In the said panel of promotion, name of the applicant appeared af Sl. a Fa) la eg PTS EM PG ee SSNS PCO EET REALE = ie iH IFA ie een byte ETE TC ia BLES MER SN Nr rr 7 rg eRe WEGRR ERE ANE Sy, Wed RSENS EM eer SR en Leagan re OL AAR ete a Sede No. 20. As per Schedule-ill of Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rule, 2016, OA.040/00026/2020
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-) 4 10 cadre of Chief Engineer has been mentioned at SI. No.3 and 28 é the said promoiion is to be made as per selection and the procedure of selection of Chief Engineer has been made in | the said recruitment rule. In the said recruitment Rule, there is no different cadre/post of Chief Engineer (Zone) or Joint Hi Director General (Chief Engineer). All the posts of Joint Director General, Chief Engineer as well as Chief Engineer | (Zone) are similar status and rank and their pay structures are also same. After selection io ihe post of Chief Engineer (Sr. Administrative Grade}, the Government is to decide who will be posted at which place and it is the prerogative of administrative function and question of judicial interference in the nature of this original application may not be necessary as because the authority while considering the posting of the applicant, the respondents will be the best person to decide whether he is to be posted at Chief Engineer (Zone}or other similar categories of post. 14, Learned Addl. CGSC submitted that as per the > guideline issued by the Government of India dated 09.10.2015 in accordance with the DoPT's guideline for OA.040/00026/2020 11 assignment to the Chief Engineer (Zone), a cadre pra frt gutta management policy framed certain guideline. As per the guideline for posting of an officer to the CE (Zone) is fo be made on the basis of his profile including APARS, experience, | attitude, past experience and at the same time keeping the ie organizational interest as an object. Criteria of minimum benchmark accorded in CWE assessment of 'very good! is rationale and objective for comprehensive assessment 'of performance in similar executive appointment at SE level. The minimum benchmark promotion to the rank of Chief Engineer as per recruitment rule is 'very good'. The criteria laid down in the cadre of management policy based on the principles of benchmark performance for eligibility of promotion. After being promoted to the Chief Engineer, the authority is to be decided as per posting guideline. As per the said guideline ti EET | is also provided that benchmark for CWE assessment should er %. | | S not be below 'very good'. Similarly in case an officer was considered for promotion in Chief Engineer 'cadre on completion of 17 years of service in ihe Group- A and with one year service in SE, he may not been approved for the OA.040/00026/2020 12 rank of Chief Engineer. Having received below benchmark grading 'good' as CWE in SE rank, an officer has got the advantage of delayed promotion as a result ACRs earned in CWE period were not counted for the promotion of CE. A below benchmark grading which rendered ineligible for promotion has not been considered adequate for short listing for important assignment of Chief Engineer {Zone}.In the case of the applicant his performance as CWE was assessed 'good' in the year 2007-2008 and 2008-2009 for which his posting as Chief Engineer (Zone) was not short listed though he was promoted to the post of Chief Engineer and accordingly he has been given posting in the same rank and aS * . . ; .
[s ES %\status as Joint Director (Chief Engineer). pe Eee 8 \ fs YO 2 ard EE] Ne an er E/15. According to learned Addl. CGSC, the applicant
- oy never challenged the APAR 2007 to 2009 at any point of time and the said APAR attained finality and as such the question of up-gradation of the said APAR or jo challenge ihe said APAR after elapse of 13 years is also not maintainable.
16. li was submitied by the learned counsel that seniority will not be the only criteria for being considered for OA.040/00026/2020 neal jeune?
13° chief Engineer {Zone}, the officer should have minimum 4 years outstanding APARs out of six and all the APARs of CWE/STE appointment should be minimum 'very good' and above for eligibility as Zonal CE. In terms of the said guideline which is annexed in the written statement as well as in ihe original application the applicant is not eligible to hold appointment of Chief Engineer (Zone) since his performance as CWE was assessed as 'good' in the year 2007-2009 for which he was not shortlisted for appointment as Chief Engineer (Zone), which is an executive appointment with responsibility for executive of work and projects essential for defence preparedness of Arm Forces, As per the said guideline posting to a particular post is neither discrimination nor criteria for separate class of officer. The applicant is holding a post of Chief Engineer in the same rank and status a as Chief Engineer (Zone} and the applicant has not lost any *fank/status or getting lower scale. 17, lf was submitied by the learned counsel that it is well settled principle of administrative law that when relevant consideration have been taken note of an irrelevant aspect OA.040/00026/2020 SEE each ye Hit feeeabe eet eos 4 4 aE 4 14 have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decision has nexus to the facts on record the same cannot be attacked on merit. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed incorrectly and not the decision as such. 18, To substantiate his arguments, Sri $.K. Ghosh, learned Addl. CGSC relied on the following decisions:
(a) 'Union of India and other vs. Lievienant General Rajendra Singh Kadyan and another (2006) SCC 698 (D) Union of India vs $.B. Bohra reported in (2004) 2 $CC 150 19, Learned Addl. CGSC submitted that in this case the decision was taken by the highest authority while posting was given to the applicant as well as oiher promotiee officers and the said postings were given with the approval of Cabinet decision headed by Hon'ble Prime Minister of India in the year 2019 and as such the said decision cannot be interfered with by way of judicial review.
OA.040/00026/2020 15 20, Learned counsel! submitted that the proposition of law is that seniority and APARS is not the sole factor to be considered for posting by the authority fo the post of Chief Engineer (Zone) but one of the matters to be taken note of by such authority. In deciding whether the applicant is to be assigned a particular post, one of the criteria to be considered is if it involves a comprehensive assessment of the officers.
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2). Learned counsel submitted thai in the present case wahye Sab Palate"
considering the nature and sensitivity of the post involved and that each of the officer feel that he did not get the best of the deal at the hands of the Government or that the members of the force being aware who is the best is not creat Rieck eet ota | heading ihem will certainly weaken the esteem and moral of the force. Therefore the standard to be adopted and applied should be the highest order as to avoid such an impression in the force. For giving a particular assignment to an employee is the function of the executive and scope of judicial review of administrative decision in this regard is very limited, However, it is also equally well setiled that a court OA.040/00026/2020 ee saat a nade 16 should interfere with administrative decision if it pertain to unreasonableness, unjust and pre-judicial to a section of employee and iaken in ignorance of material and relevant factors.
22. In view of ihe above, learned Addl. C.GS.C. contended that the authority after due consideration of relevant aspeci of the matters deemed fit that the applicant be posted as Joint Director General, Chief Engineer and apart from that he has no residuary period of service of 2 {iwo) years which is also one of the essential factor to be considered for posting to the Chief Engineer (Zone) and accordingly the administrative authority has rightly decided and there was no illegality has been committed in giving posting to the applicant in the present place of posting.
23. Learned Addl. C.G.8.C. accordingly submitted that judgements which were relied by the applicant in the present case neither factually applicable nor legally tenable and as such original application filed by the applicant is liable to be dismissed with cost, OA.040/00026/2020 "Spetpant 17
24. We have heard the learned counsel for the parties, if perused the pleadings and material placed before us as well as decisions relied upon. We have also thoughifully considered the matter and gone through all documents on record including the policy instructions of Government of India.
25, For coming to a logical conclusion we need to decide as to (a) whether introducing the new criteria vide jeunde OM dated 09.10.2015 by holding that the applicant is not eligible for Chief Engineer (Zone) for not earning the criteria of 'Very good' as CWE in ihe year 2007-08 and 2008-09 after empanelled againsi serial No. 20 in the penal dated 26.08.2019 for promotion to the grade of Chief Engineer in Military Engineering Service Under Minisiry of Defence against the vacancy for the year 2019 by following the method of recruitment under the recruitment rule of Indian Defence Service of Engineers (Recruitment and conditions of service) Rule 2016 is justified or not?
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J tay a 1 crn ad ® Grpyahiic (6) Whether the O.M. dated 09.10.2015 by which criteria incorporaied resulting in denial of posting of the applicant as OA.040/00026/2020 18 Chief Engineer (zone} is permissible in case of the applicant after being selected for promotion to the grade of Chief Engineer under the recruitment Rule 2016
26. There is no dispute to the fact that ihe applicant was promoted to the grade of Chief Engineer in pay scale PB-IV of Rs 37400-67000 + GP of Rs. 10000 in MES under the Ministry of Defence against the vacancy year 2019 and posted as Joint Director General (Chief Engineer). It is also not disputed that all the post of Joint Director General, Chief Engineer as well as Chief Engineer (Zone) are similar status and rank and their pay structure are also same.
27. The basic grievance of the applicant is that ihough promotion was given io the applicant along with his junior rs batch match but they were assigned to the Chief Engineer (Zone) and he was assigned to the post of Joint Director General, Chief Engineer. The respondents assigned reason through written statement/written argument for not posting of the applicant to the post of Chief Engineer (Zone} on the ground that the applicant's performance as CWE was assessed as 'good!' in ihe year 2007-08 and 2008-09 for which OA.040/00026/2020 19 his posting as Chief Engineer (zone) was not shorilisted though he was promoted to the post Chief Engineer and accordingly he has given same rank and status as Joint Director General (Chief Engineer)
28. Now we come to the method of recruitment and requisite experience and qualification for the promotion to the post of Chief Engineer under the recruitment rule of Indian Defence Service of Engineers (Recruitment and conditions of service) Rule 2016 which provide in schedule 3 is read as hereunder:
(a) Combined three years regular service in fhe grade pay of Rs 8900 plus Rs 8700 OR 17 years of regular service in Group 'A' of the Service , out of which at least one year of the regular service should be in the Grade Pay of Rs 8700.
(6) possessing qualification as specified in Schedule I
(c) Successfully completed course on Higher Management or Chief Engineer or Chief Engineer (CE) orientation course of around two weeks duration."
lt was further provided as hereunder:
"Minimum educational qualification and age limits for direct recruits to ihe post of Assistant Executive Engineer Group 'A' fo be filled on the results of examination to be conducted by the Union Public Service Commission. A candidate must have:
{i) A degree in Civil, Mechanical or Electrical Engineering from a University incorporated by an Aci of OA.040/00026/2020 Wty fey sneer Shae cen RP ETE eo enn aa 4 20 the Central or State legislature in [India or other educational Institutions established by an Act of Parliament or declared io be deemed as a University under section 3 of University Grants Commission Act, 1956 (3 of 1956) or a degree or diploma in Engineering from such foreign Universities, colleges or Institutions and under such conditions as may be recognized by the Government from time to time or possessing, quclifications which have been recognized by the Government as equivalent to above qualifications ; and {ii} attained the age of twenty one year but must not have attained the age of thirty years on the first day of January of the year in which the examination is ' held."
The relevant portion of the revised O.M. dated 09.10.2015 reads as hereunder:
"3. CHIEF ENGINEER (CE/CCE} a. This is a senior administrative grade level post which conirols all executive and management of services and policy making of the department as a whole. The posi if CE Zones/CCE is a key assignment in the MES is controlled by this office. b. the officers for manning this zones/CCEs will be carefully selected and the following guidelines Will be followed for selecting officers for these posts:-
{i} Seniority will not be the only criteria for CE Zones/CCEs. The officers should have minimum 4 ovistanding APARs out of last 6 and all APAR of the CWE/STE should be very good or above. Officers who have shown unwillingness to shoulder responsibility as CWE in fhe past will not be considered for nomination of zonal CE/CCE, _{ii) The technical background and specialization will also be considered for selecting CEs/CCE for various specified zones.
OA.040/00026/2020 2] (iti) care will be taken to sent officers at CE level to various zones/CCEs, depending upon their experience.
{iv} the normal tenure of CE/CCE wil be two years, depending upon the organizational requirement. (v} Residual service to be two years on date of planning of posing based on availability of zonal Chief Engineer/CCE posts."
29, The applicant herein was promoted from Assistant Garrison Engineer to Executive Engineer in the year 1994 and promoted to the post of Superintendent Engineer in the year 2005 and rendered his service as CWE Ajr force Trivandram from 24.09.2007 till 22.06.2009.The applicant was promoted to ihe post of Joint Director General in the rank of Chief Engineer Zone but was not posted for the Chief Engineer Zone as Criteria Clouse 5b(l} contained in O.M. dated 09.10.2015 issued by the Ministry of Defence, Government of India stands as barrier to reach the Chief Engineer Zone. The RTI reply dated 13.11.2019 in reference to the RTI application . dated 25.10.2019 made by the applicant the Director of Personnel (M) has sent his reply dated 13.11.2019 jo the applicant and intimated as hereunder:
"16, MES-462243 Sh BM Agrawal, SE. Officer stands promoted to the rank of CE grade vide letier No OA.040/00026/2020 rears Se, eka d AATe a , oer oe 3s oa a " pres > bs etek heey roa eee nat reas ER RAED LAE EEE APTS A ome ela ue aes fa Taeqeeramoee = are a ei ee 22 B/41021/DPC/CE/2019E1 (DPC) dt 26 Aug 2019. His residual service is 22 months, as he is retiring on 30 June 2021. Officer is not eligible for tenating CE {Zone} appointment as the ACR/APAR earned as CWE do not fulfil tne minimum criteria of Very Good. Officer is presently posted as Director at DG MAP, Delhi wef 17 Jan 2017. He is recommended for posiing as Jt DG at ADG (NEI) Guwahati against clear vacancy existing as on date.
30, The respondents in their written statement as well as written argument took the stand in view of the guideline thai the applicant's performance as CWE was assessed 'good' in the year 2007-08 and 2008-09 for which his posting as Chief Engineer Zone was not shorilisted though he was promoted to Chief Engineer Zone and accordingly, he was posted as Joint Director General in the rank and _ status of Chief mS Engineer.
: 31. It is noted that the respondent have not denied or disputed that the junior of the applicant namely Mr.Prabin Kumar, Mr.Amresh Chandra,-Mr. V. Karunakar Reddy and Mr. Sanjay Sharma have been appointed in the cadre of Chief Engineer Zone vide order dated 30.09.2019 as well as vide letter dated 28.11.2019 and on the ground of non-aftiaining the grading of 'very good' by the applicant as CWE he has been denied for posting in the cadre of Chief Engineer Zone. OA.040/00026/2020 SMR ee te hn.
23 Thus it is evident that while giving posting in Chief Engineer Zone the respondents by ignoring the seniority aspect of the applicant denied the posting as he earned 'good' for the year 2007-08 and 2008-09 instead of 'very good' while working as CWE.
32, The respondents in their written argument took an issue that the applicant has no residuary period of service of 2 years which is also one of the essential factor jo be considered for posting to the Chief Engineer (Zone). However, no such averment has been made in ihe written statement. The applicant in his written argument submitted that the Ministry of Defence vide letter dated 28.06.2019 reduced the residuary period of 2 years to 12 months (as on Mi E # Y A tt the date of vacancy). We are in hand of the said letter dated 28.06.2019 regarding proposed revised posting policy in respect of MES Civilian Officer on the subject of relaxation in the cadre management policy for executive appointment ne. ee of Chief Engineers stipulates as hereunder:
"2. The proposed revisions on various aspects of the posting policy submitted by E-in-C's Branch vide note dated 28 May 2019 are being examined in the Ministry in the meantime, it has been decided, with the OA.040/00026/2020 24 approval of Hon'ble RM, to implement the following with immediate effeci:
(1) Reduction of residual service of civilian MES officers in the rank of Chief Engineer (SAG Pay level) for posting as CE/CCE from 2 years fo 12 months (as on the date of vacancy) subjeci to the condition that this relaxation will be resorted to only in sufficient number of eligible officers are noi there to tenant the appointment of CE/CCE, and in no case, it shall be reduced to less fhan 12 months. It will also to subject to review after 2 years based on the age profile of the officer promoted/being promoted to CE level."
In the written argument filed by the learned Addl. CGSC Sri S.K. Ghosh received by the Registry on 20.07.2020 in the first page it is stated as hereunder:
"Though the promotion was given effect in the year 2019 but those vacancies were arose way back in the year 2015 but on this or that pretext the promeoiion was delayed as per Rule 2016 Promotion of the applicant along with others considered by the order dated 28.08.2019 and 20 eligible persons were promoted to the grade of Chief Engineer in the pay scale of PB-IV of Rs.3/400-67000 + Grade pay of Rs.10000 in the MES under ihe Ministry of Defence against the vacancy for the year 2019 in the said penal of promotion, name of the applicant at serial 20."
33. Here we noted the contradictory statement in regards to the vacancy year for the promotion of Chief Engineer. Since undisputedly the juniors to the applicant have already been promoted to the Chief Engineer Zone OA.040/00026/2020 25 there is no question to deal with the issue of vacancy year. Notwithstanding the respondents has not taken a ground of denial for posting of the applicant as CE (Zone) else then the bench mark 'very good' not earned by the applicant in 2007-08 and 2008-09 while rendering service as CWE. 34, In case of Sonia Vs Oriental Insurance Co. Lid and others (supra) the Hon'ble Apex court observed as hereunder:
"Ties In view of the matter, law is well settled that an office memorandum cannot have retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication in the office memorandum. On the other hand from the office memorandum, as noted hereinabove, we find that the candidates who had already been selected, the case of such candidates would not be reopened."
In case of Chandra Prakash Madhavrao Dadwa(supra} the Hon'ble Apex Court observed as hereunder:
a seetinees To put in a nutshell, the change in the esseniial qualification made in 1990 or 1998 or ithe additional function s now required to be performed by the appellanis could not retrospectively affeci the initial recruitment of the appellants as data Processing Assistants nor their right to the posis to which they were recruited nor could it affect their confirmations." OA.040/00026/2020 % 26 In case of Ajay Kumar Das (supra) the Hon'ble Apex Court held as hereunder:
"14, Neither the circular dated 18.06.1982 nor the subsequent Circular dated 19.03.1983 modifying the earlier Circular dated 18.06.1982 can override the statutory provision contained in Rule 74(b) of the Code if it resulis in reduction of pay of the employee on promotion. That ihe Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that the statutory rules framed under Article 309 of the Constitution can be amended only by a rule or nolification duly made under Article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or. instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The rules made under Article 309 of the Constitution cannot be finkered by the administrative instruction or circulars."
35. In case of Union of India vs S.B. Bohra (supra) para 13 as relied by Sri SK. Ghosh, learned Addl. CGSC is not applicable in the present case as much as facts and circumstances along with the legal aspect involved in S. B. Bohra (supra) are totaily different from the present case. Para 13 of the said case referred by learned Addl. CGSC reads as hereunder:
"a 13.A writ of mandamus is issued in favour of a person who establishes a legal right in himself, A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do OA.040/00026/2020 a ee a fl ;
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oe rf i 27 so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is a most extensive remedial nature, The object of mandamus is of to preveni disorder from a failure of justice and is required to be granted in alll cases where faw has established no specific remedy and whether justice despite demanded has not been granted."
36. In case of Union of India and other Vs Lieutenant General Rajendra Singh Kadyan and another Isupra)cited by learned Addl. CGSC is not applicable in the present case inasmuch as the said case is relaied to the promotion for posting of Army Commander for lievtenani General whether the post is selection post or to be filled up by way of seniority and in the present case the issue involved for posting as Chief Engineer Zone on being promoted in the grade of Chief Engineer in the MES under the Minisiry of Defence against the vacancy year 2019.
37. The respondents have argued that the Chief Engineer Zone should be carefully selected following the uideline mentioned herein above. We however notice that these guidelines are with respect fo the post of Chief Engineer (CE/CCE) and not only for Chief Engineer Zone. Therefore, the contention that different criteria had to be OA.040/00026/2020 28 applied for the posting of Chief Engineer Zone, is not clearly evident from this guideline. After thorough hearing and ig ay By cay al bones i analysis of the case, we cannot close our eyes and mind whether in case of only posting of Chief Engineer which is not re a clearly specified in the guideline dated 09.10.2015 in case of Chief Engineer Zone following the criteria of earning 'very Ee aS Gari good' in all APARs of CWE by calculating the grading ei contained in all APARs of CWE in retrospective way for only posting as Chief Engineer Zone and not for promotion to the Chief Engineer only on the ground that the post of Chief Engineer Zones/CE is a key assignment in the MES as well as construction and management of MES is controlled by this office by way of introducing policy guideline without the conformity of fhe promotion to the post of CE, senior Seung ke" administrative grade where the CE Zone lies under the senior administrative grade.
38. Noticeably, the respondents chose to promote the applicant to the post of Chief Engineer which js the substantial promotion and not only giving an important charge as the applicant did not earn 'very good' in the year OA.040/00026/2020 wee tye 29 9007-08 and 2008-09 while he was serving as CWE and denied for consideration as Chief Engineer Zone.
39. in our opinion, the act of creating the artificial distinction amongst the similarly situated persons by posting the applicant to the Joint Director General only though in the rank of Chief Engineer while posting his juniors as Chief Engineer Zone does not appear logical or even legal in view of the above office instruction. Herein we noted that the atari te respondents while issued O.M. dated 09.10.2015 apropos guidelines for posting as Chief Engineer Zone in MES, Ministry of Defence reckoned the ACR grading in retrospective way Bs REE Bing aba ON where the applicant earned 'good! instead of benchmark 'very good! in the year 2007-08 & 2008-09. AQ. We are of the view that once fhe applicant was promoted to the Chief Engineer as per Recruitment Rules 2014 in existence the creation of artificial distinction amongst the officers serving in the cadre Chief Engineer in MES, Ministry of Defence on the basis of past ACR for posting in ihe equivalent rank of Chief Engineer Zone is discriminatory and arbitrary and accordingly we fail to appreciate fhe OA.040/00026/2020 30 arguments advanced by learned Addi. CGSC for the respondenis.
Al, After taking into entire conspecius of the case we are of the considered view that introducing the new criteria Tore rinypaiere vide OM dated 09.10.2015 by holding that the applicant is not eligible for Chief Engineer (Zone) for not earning the criteria of 'Very good' as CWE in the year 2007-08 and 2008- 0? afier empanelled against serial No. 20 in the penal dated 26.08.2019 for promotion to the grade of Chief Engineer in Military Engineering Service under Ministry of Defence against 'the vacancy for the year 2019 by following the method of recruitment under the Indian Defence Service of Engineers ia; aN mf ". ay (Recruitment and conditions of service) Rules 2016 is not justified and the O.M. dated 09.10.2015 by which criteria incorporated resulting in denial of posting of the applicant as Chief Engineer (zone) in case of the applicant after being selected for promotion to the grade of Chief Engineer under the Recruitment Rules 2016 is not permissible under the law. The respondents have not been able to satisfy this court as to how the applicant is found to be not suitable to hold the post OA.040/00026/2020
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".
"2 "42, ihe applicant as Chief Engineer Zone from the date of his 3t against the vacancy of 2019.
1 Of Chief Engineer (Zone) on the basis of below bench mark gradings for the years 2007-08 & 2008-09 especially after empanelling him against serial No. 20 for such promotion Accordingly, the respondents are directed to post of Defence. The'OA is disposed of as above. There shall be no order as to costs. junior has been posted as Chief Engineer Zone in MES, Ministry Oma ped as SETI SSNS ao ears ADR ioe Soper i Sees pas REE "certified that this is a tre copy of the document/order ae in the case file (OAIRASTAICFIEP AP iP? NO #8) and that aii the matter apoeannd their have been vigibly and fait aly
- copied with no modifications."
py. Registrar / SG (J) CAT, Guwahati Bench Sd/-
Maniula Das Hon'ble Member {J) Sd/- : wee ee .
. Mr. N. Naihsial Hon'ble Member (A) OA.040/00026/2020 Scanned by CamScanner a SER IOUENE YS