Central Administrative Tribunal - Delhi
Shri P.S.Rathore vs Union Of India Through on 22 May, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.2673/2008 New Delhi, this the 22nd day of May, 2009 HONBLE SHRI JUSTICE V.K.BALI, CHAIRMAN HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A) Shri P.S.Rathore Joint Director Office of Joint Secretary (Training & Chief Administrative Office) Ministry of Defence, D.H.Q.PO New Delhi 11. Applicant (By Advocate: Sh. Padma Kumar S) Versus Union of India through Secretary Ministry of Defence South Block, D.H.Q.PO New Delhi 110 011. Joint Secretary (Trg) & CAO Ministry of Defence E Block, D.H.Q.P.O. New Delhi 110 011. Secretary DOP & T North Block New Delhi 110 001. Respondents (By Advocate: Sh. Krishan Kumar) ORDER By Shailendra Pandey, Member (A):
In this OA, the applicant has challenged the order dated 21.11.2008 whereby his request for grant of in-situ upgradation to the Joint Director grade of Rs.12000-375-16500 (Pre-revised) with effect from 03.07.2000, the date similarly situated officers have been given such upgradation, has been rejected.
2. The brief facts of the case are that the applicant was initially recruited as an Assistant in the Armed Forces Headquarters Civil Service (AFHQCS), Ministry of Defence, rose in due course of time to the level of Assistant Civilian Staff Officer and was promoted to the post of Civilian Staff Officer/Deputy Director in the pay scale of Rs.10000-325-15200 (Pre-revised) in May, 1993. While he was holding the post of Deputy Director, he was sent on deputation as Senior Civilian Staff Officer (SCSO) in Coast Guard Headquarters (CGHQ), where he joined on 15.05.2000. On 03.07.2000, 163 Deputy Directors, who had completed seven and half years of approved service in the grade of Deputy Director, were granted financial upgradation by way of in situ promotion to the grade of Joint Director, i.e., Rs.12000-375-16500 (Pre-revised) vide notification dated 27.06.2000. However, the applicant and 42 other similarly situated persons were left out from the ambit of the upgradation. Aggrieved by this, one of them, Shri K.Vijayan, filed OA No.484/2005 before this Tribunal, followed by RA No.41/2006 and obtained a favourable order dated 23.05.2006, which was as follows:
2. . the respondents shall consider the applicants case as regards in-situ promotion from the date of issue of the notification i.e. 27.6.2000. In the event it is found that he was eligible, the respondents shall grant the benefit to him. . The respondents extended the benefit of financial upgradation by way of in situ promotion to all the officers, who had been left out, vide its order dated 30.10.2006. However, the applicant was granted the benefit only from 19.06.2006 the date on which he rejoined duties in his parent cadre.
3. It is contended by the counsel for the applicant that when the other employees in the respondents office including his juniors have been granted the upgradation to the grade of Rs.12000-16500, w.e.f. 03.07.2000, denial of the same to him when he also fulfilled the eligibility condition of completion of 7 = years of approved service on the date of notification is discriminatory and arbitrary and, therefore, violative of Articles 14 and 16 of the Constitution. He also submits that the applicant had never been informed of the requirement of getting reverted from the borrowing office to get the upgradation from 03.07.2000 and the civil consequences thus inflicted on him are unfair. It is also his contention that the requirement of repatriation to obtain the financial upgradation is itself irrational in the light of the fact that in situ promotion does not involve assumption of any higher responsibility in the parent department, and that the condition of repatriation is an impossible condition as he was `disabled from getting repatriated to the parent department as the benefit has been granted retrospectively. He has also pointed out that in the case of officers of the Central Secretariat Service Cadre, notional grant of financial upgradation retrospectively has been resorted to.
4. Per contra, the respondents in their reply have stated that the grant of in-situ upgradation to Dy. Directors in AFHQCS was on the conditions stipulated by the DoPT in its order dated 4.8.1999 while giving in-situ promotions to Under Secretaries of the Central Secretariat Services (CSS) Cadre, and according to them, candidates/officers who were on deputation were required to be repatriated back to the cadre to get the benefit of in-situ appointment. It is further stated by the respondents that at the time of issue of orders dated 3rd July, 2000, there were some officers on deputation and those who had opted to continue on ex-cadre assignments were allowed the benefit of in-situ promotion from the date of their repatriation from deputation only, and grant of in-situ benefit from 3rd July, 2000 to the applicant would result in differential treatment to these deputationists. Accordingly, as the applicant who had proceeded on deputation on his own volition was not available in the cadre on 3.7.2000, he was given in situ promotion from the date of his re-joining on repatriation, i.e., on 19.06.2006.
5. In the rejoinder, the applicant has reiterated the pleas taken in the OA.
6. We have heard the learned counsel for both the sides and have been through the pleadings on record.
7. The facts of the case are not in dispute. It appears that in 1998-99, the Department of Personnel and Training, with the object of mitigating stagnation, had granted in-situ upgradation to Under Secretaries of the CSS Cadre to the grade of Deputy Secretaries in that cadre. A similar proposal was mooted in respect of the Deputy Directors of the AFHQCS for grant of in-situ upgradation to the grade of Joint Director and was approved in the year 2000 by the Ministry of Finance and, after sanction of the competent authority, 166 posts of Deputy Directors in AFHQCS were upgraded to the grade of Joint Director and necessary orders for in-situ upgradation of 163 posts of Deputy Directors (Rs.10000-15200) to the grade of Joint Director (Rs.12000-16500) were issued on 03.07.2000. The grant of this in-situ promotion was on the same conditions as stipulated by the DoPT in its order dated 04.08.1999 while giving in-situ promotions to the Under Secretaries of the CSS Cadre. Three very relevant conditions in this regard are mentioned below:
(i) The `in-situ appointment to the higher grade of SCSO (since re-designated as Jt Director) will be personal to the incumbents holding the posts of CSO (since re-designated as Dy Director) and will be effective from the date of issue of the order (03.07.2000).
(ii) The officers who are on deptuation shall be required to be repatriated back to the cadre to get the benefit of in-situ appointment as SCSO. Such officers may exercise an option for premature repatriation from deputation or otherwise within one month of issue of this order. In case an officer opts for premature repatriation, he shall be allowed to come back to the cadre in order of seniority on availability of suitable vacancy. The officer shall await prior clearance of Cadre Controlling Authority before actually reverting to the cadre. Under no circumstances will these officers be prematurely repatriated without obtaining prior cadre clearance.
(iii) The officers appointed against the upgraded posts will be given the designation and the scale of pay of the post but will continue to perform the same duties/functions as they are doing at present, till they get adjusted against regular vacancies in the higher grade.
8. In so far as the applicant is concerned, the orders were issued vide letter dated 30.10.2006 (Annexure A2) which was issued in implementation of this Tribunals orders dated 17.01.2006 and 23.05.2006 in OA No.484/2005 and RA 41/2006 respectively in the matter of Shri K. Vijayan vs. Union of India & Ors. In terms of this order, he was granted in-situ upgradation from 19.06.2006, i.e., the date of his repatration from deputation.
9. It would be seen from clause (ii) above that an officer who is on deputation shall be required to be repatriated back to the cadre to get the benefit of in-situ appointment to the Joint Directors grade and that such an officer was required to exercise an option for premature repatriation from deputation or otherwise within one month of issue of the order. No where in the counter affidavit filed by the respondents is it stated that an option was given to the applicant after issue of the first order dated 03.07.2000 to revert back to his cadre, so as to avail the benefit of the upgradation. It has only been stated that the applicant had gone on deputation on his own volition and was not available in the cadre on 3.7.2000 (Para 5 of the Counter).
10. It is customary, as well as necessary, before promoting the junior of an officer on deputation to inform him that he is due for promotion and to ask him in writing and give him an option to return, before issuing orders in respect of his junior. As already mentioned, we do not find that such an option was given to the applicant (the applicant in his rejoinder has specifically stated that he has not been either given the opportunity to exercise the option nor it is possible for him to opt for repatriation in retrospect). During arguments, when we asked the respondents counsel, whether such an option was asked for from the applicant, he was also not able to state that in fact such an option was given to the applicant. Thus, it appears that this was a major omission on the part of the respondents while according the approval to the upgradation to the juniors of the applicant.
11. We have noted, as pointed out by the respondents, that in terms of the Scheme of upgradation, deputationists were to be given the benefit of in-situ promotion from the date of repatriation only and that there are no Government instructions for grant of in-situ promotion before the date of repatriation. We have, however, not been given any explanation as to why the respondents did not give an option to the applicant or why they did not take up with the Government the issue that this condition would result in some juniors drawing higher pay than the applicant after in-situ upgradation.
12. It is also pertinent to observe, in this context, that condition No.(ii) also prescribed that In case an officer opts for premature repatriation, he shall be allowed to come back to the cadre in order of seniority on availability of suitable vacancy. The officer shall await prior clearance of Cadre Controlling Authority before actually reverting to the cadre. Under no circumstances will these officers be prematurely repatriated without obtaining prior cadre clearance. This is on the face of it is a restrictive provision, and if there are adverse civil consequences that could flow from insisting on this condition in a particular case(s), it would be only in the fitness of things for the respondents to have taken up this issue and have it sorted out with the appropriate authorities.
13. Normally, an officer, on promotion, assumes higher responsibilities on assumption of the post to which he is promoted, but, as stipulated in condition (iii) above, the in-situ promotions in the present case, did not involve assumption of any higher responsibility and in fact, the upgraded post in terms of the orders issued was to automatically revert to the original level as and when the incumbent(s) vacated the post on his (their) regular promotion(s) in the higher grade/on retirement/resignation, etc. The condition of in-situ upgradation only from the date of actual repatriation appears to be unreasonable, when seen in this context.
14. The submission of the counsel for the applicant that the condition of repatriation was an impossible condition as the applicant had been disable for getting repatriated to his parent department in view of the benefit having been granted retrospectively is also not without merit.
15. Finally, we also find that in a parallel case of an officer of the CSS cadre on deputation to the Ministry of Information and Broadcasting, financial upgradation has been given on notional basis and on actual basis from the date of repatriation as would be seen from the following notification issued by the Ministry of Information and Broadcasting dated 09.09.2003 (Annexure A8):
. the President is pleased to appoint Shri T.S.Arasu, Under Secretary of CSS Cadre of this Ministry as Deputy Secretary in the Ministry of Information and Broadcasting against upgraded post of Under Secretary as personal to him with effect from 09.08.1999. The actual benefits of pay and allowances will, however, accrue to him from 14.07.2003, the date on which he joined this Ministry after his repatriation from deputation. There appears to be no satisfactory explanation as to why such a course cannot be adopted in the case of the applicant too.
16. In this view of the matter, we are of the view that the applicants is a fit case for reconsideration of accord of in situ upgradation notionally with effect from 03.07.2000, with the actual benefit being made payable only from the actual date of his repatriation.
17. The contention of the respondents that accord of such benefit retrospectively to the applicant would result in differential treatment in respect of those deputationists who have not been given such notional upgradation should not be a major obstacle as the respondents can always, if they so decide, accord the notional upgradation to other similarly placed officers too.
18. In view of the above discusions, we dispose of the Original Application, after quashing the impugned order, with a direction to the respondents to re-consider the claim of the applicant for grant of in-situ promotion retrospectively from the date the other similarly situated persons were given the in-situ promotion, i.e., 03.07.2000, on notional basis and on actual basis from the date of his repatriation, i.e., 19.06.2006. There shall be no order as to costs.
(Shailendra Pandey) (V.K. Bali)
Member (A) Chairman
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