Rakesh Kumar vs M/O Defence on 21 August, 2018

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Central Administrative Tribunal - Chandigarh

Rakesh Kumar vs M/O Defence on 21 August, 2018

1. The applicants have filed this Original Application under section 19 of the Administrative Tribunals Act, 1985, seeking quashing of impugned letter dated 16.12.2014 (Annexure A-9), vide which validity of merit list of candidates, who have passed Limited Departmental Competitive Examination (LDCE), has been kept for one year and letter dated 22.6.2016 (Annexure A-11), vide which the applicants have been held not eligible for promotion to the post of UDC for the vacancy year 2015-16, having passed exam on 31.3.2010, along with other orders and seek their promotion as UDC having successfully qualified the selection process in that relevant connection.

2. The facts of the case, which led to filing of the instant Original Application, are that all the applicants were promoted as Lower Division Clerk (LDC), in the pay band Rs.5200-20200, with Grade Pay of Rs.1900/- on 1.4.2009, from lower posts of Peon, Chowkidar and Peon respectively. The next promotion is to the post of UDC, which is governed by Military Engineering Services Group „C‟ (Assistants, Upper Division Clerks and Lower Division Clerks) Recruitment Rules, 2004 (for Short "2004 Rules"). These rules provide that 75% of vacancies of UDC are to be filled by promotion and remaining 25% are to be filled up by LDCE from amongst the LDCs, who have rendered 5 years of regular service in the grade. The applicants appeared in LDCE for promotion to the post of UDC, which was held on 16.11.2009 and 17.11.2009 and cleared the same (Annexure A-2) and formal orders to this effect were issued on 9.4.2010 (Annexure A-3) and 26.4.2010 (Annexure A-4).

(OA.No. 060/00647/2017- Rakesh Kumar Vs. UOI etc.) 3

3. The applicants claim that since they had cleared the examination in 2010, they became eligible for promotion to the post of UDC, for the vacancies arising w.e.f. 1.1.2015 onwards, having completed 5 years of service. The seniority list of LDCs is maintained at Command Level whereas that of UDC is maintained on All India level. As per Command Seniority List as on 1.4.2014, name of applicant No.3 is at Sr. No.87, name of applicant no.1 at Sr. No. 94 and name of applicant no.2 is at Sr. No. 96. As per clause 4 (i) of letter dated 11.2.2011 (Annexure A-6), a candidate must have completed 5 years of service in the cadre of LDC on July 1 each year and further clause 5 (j) provides that the validity of common merit list issued by CME after the exam, will be valid for one year and if the candidates are not placed due to lack of vacancies in that year, they will have to appear in subsequent exam. He claims, that these instructions are against 2004 Rules where in there are no such conditions detrimental to the right of the employees. This letter challenged in O.A. No. 972-HR-2011 - SURINDER DEV SHARMA & OTHERS VS. UNION OF INDIA & OTHERS, and the letter was quashed vide order dated 13.8.2013. Then letter dated 12.9.2014 (Annexure A-8) was issued that CME Pune will conduct LDCE for LDC against 25% quota, on regular basis.

4. It is further submitted that a clarification was also issued on 16.12.2014 (Annexure A-9), that merit list will be valid for one year only and shall not be carried forward. Respondent No.3 issued a Command Seniority List of LDC as on 1.4.2016 (Annexure A-10), in which name of applicant No.3 is at Sr. No. 41, applicant No.1 at Sr. No. 48 and applicant No.2 at Sr. No. 50.

(OA.No. 060/00647/2017- Rakesh Kumar Vs. UOI etc.) 4 The applicant pleads that since the applicants became eligible for promotion to the post of UDC w.e.f. 1.1.2015 against the vacancies for the year 2015-16 against 25% quota meant for LDC having passed the LDCE in the year 2010 and ultimately, a clarification dated 22.6.2016 (Annexure A-11) has been given that candidates to be considered for promotion against the vacancy of 2015-16 should be eligible for promotion on 1.5.2015 and that candidates who have passed the examination on 31.3.2010 cannot be considered for promotion for the vacancy year 2015-16. They submitted representations but vide letter date3d 22.9.2016 (Annexure A-13), it was informed that since applicants No.1 and 2 passed examination on 16&17 November, 2009, so they are not eligible for promotion to the post of UDC. Now order dated 12.5.2017 (Annexure A-14) has been passed fresh panel for promotion of LDC to UDC for the vacancy year 206-17 and then order dated 29.5.2017 (Annexure A-15) was passed order of promotion of LDCs to UDCs under 25% quota for the year 2016-

17. Hence the O.A.

5. The respondents have filed a reply. They plead that the applicants are not entitled to any relief, as new Recruitment Rules No. 27 of 2013 (UDC and LDC) have been issued in place of old 2004 Rules. Accordingly, 25% of UDC quota is to be filled by way of LDCE, who have rendered 5 years of regular service in the grade. Till 1.1.2014, the applicants were not eligible for promotion as they had not completed 5 years of service as on 1.1.2014, to be considered for promotion to the post of UDC as per Rues of 2013. They have clarified that since the vacancies are meant for a particular year and examination being competitive (OA.No. 060/00647/2017- Rakesh Kumar Vs. UOI etc.) 5 in nature, only those appearing in merit during the year are given promotion with the provision of appearing in the examination again for the next year‟s vacancies in case of candidates who did not make it in the merit. The select list is exhausted in the same year against 25% of total vacancies in the grade of UDC and the individual who could not be promoted due to any reason, whatsoever, will have no claim of being considered in the next year. At present, LDC in MES Department is recruited through competitive exam by SSC. Hence, to carry forward the name of candidates who qualified the exam under 25% quota to next will demoralize the candidates who are in queue for their promotion, after 8 years of service, as per new rules. The applicants have filed a rejoinder wherein they have challenged inclusion of names of certain persons who were absent in examination for were included in select list for the year 2016, on the basis of examination having passed in 2015.

6. We have heard the learned counsel for the parties at length and with their able assistance, also examined the pleadings minutely.

7. It is not in dispute that the post of UDC under 25% LDCE is to be filled under the new Recruitment Rules of 2013, brought to our notice by the respondents in their written statement, as per which LDCs who have rendered five years regular service in the grade are eligible. The applicants have laid their claim for promotion to the post of UDC for the year 2015. It can also not be disputed that the eligibility of a candidate is to be seen as on 1st of January, as per Note 2 of Column (11) of New Rule of 2013, which provides that "for the purpose of computing (OA.No. 060/00647/2017- Rakesh Kumar Vs. UOI etc.) 6 minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1st January, 2006 being the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding pay scale extended based on the recommendations of the said Pay Commission". In this case, the minimum eligible service was to be seen as on 1.1.2014. The applicants admittedly were promoted as LDC on 1.4.2009 and completed 5 years of minimum service only on 31.3.2014 and, as such, apparently, were not eligible for the vacancy year 2015-2016. Thus, one cannot find any fault with action of respondents in declaring applicants ineligible for that vacancy year.

8. In so far as their second claim qua carry forward of their names for 2016 vacancies is concerned, apparently, the rules and instructions are clear that appointment is to be made only out of panel prepared for a particular year and if, for any reason, the panel is not operated or one is not appointed, then such panel cannot be carried forward for consumption of vacancies of next year and one has to participate in the selection once again for that particular year. Their claim has rightly been rejected vide letter dated 22.6.2016 (Annexure A-11), that as per rules and policy in vogue, the candidates were to be considered for promotion in the vacancy year 2015-16, should be eligible for promotion as on 1.4.2015 whereas applicants who passed the examination on 31.3.2010, cannot be considered for the promotion against vacancy year 2015-16. Thus, there is no merit in the claim of the applicant on this count also.

(OA.No. 060/00647/2017- Rakesh Kumar Vs. UOI etc.) 7

9. The claim that certain absentees candidates have been included in the panel for the year 2016 raised in the rejoinder cannot be gone into in these proceedings, as none of named candidates is a party before this Tribunal, and in any, case the applicants have not been able to make out a case in their favour, for quashing of the impugned orders.

10. In view of the aforesaid discussion, we are of the firm view that this O.A. lacks any merit and is dismissed accordingly. The parties are left to bear their own costs.

(SANJEEV KAUSHIK) MEMBER (J) (P. GOPINATH) MEMBER (A) Place: Chandigarh.

Dated: 21.08.2018 HC* (OA.No. 060/00647/2017- Rakesh Kumar Vs. UOI etc.)

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Central Administrative Tribunal - Chandigarh