Central Administrative Tribunal - Ernakulam
Sankara Naik vs Comptroller And Auditor General Of ... on 15 June, 2023
1 O.A No. 180/137/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00137/2023
Thursday, this the 15th day of June, 2023.
CORAM:
HON'BLE Mr. JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr. K.V. EAPEN, ADMINISTRATIVE MEMBER
Sankara Naik, aged 59 years,
S/o. Aithappa Naik,
Assistant Accounts Officer,
O/o. The Principal Accountant General (A&E),
Thiruvananthapuram - 695 001.
Residing at : T.C. No. 7/613(20), M.K.P. Nagar,
Maruthankuzhi, Kanjiranpara P.O,
Thiruvananthapuram - 695 030. - Applicant
(By Advocates: Mr. T.C. Govindaswamy, Mrs. Kala T. Gopi,
Mr. Kailesh T. Gopi, Ms. Nishitha Balachandran)
Versus
1. The Comptroller & Auditor General of India,
No. 10, Bahadur Shah Safar Marg,
New Delhi - 110 124.
2. The Principal Accountant General (A&E),
Kerala, Thiruvananthapuram - 695 001.
3. The Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi - 110 001 through its Secretary. - Respondents
[By Advocates : Mr. K.I. Mayankutty Mather for R-1 to 2 &
Mr. Thomas Mathew Nellimoottil, SPC for R-3]
The application having been heard on 13.06.2023, the Tribunal on
15.06.2023 delivered the following:
2 O.A No. 180/137/2023
ORDER
Per: K.V. Eapen, Administrative Member The applicant is an Assistant Accounts Officer in the Level-9 Pay Matrix working under the 2 nd respondent, Principal Accountant General (A&E) Kerala. He is due to superannuate from service on 30.06.2023. He belongs to the Scheduled Tribe community and is aggrieved by the delay in consideration for his promotion to the post of Senior Accounts Officer in Level-10 of the Pay Matrix, which he submits is due with effect from 01.01.2023. He submits that going by the applicable DoP&T orders, the respondents were bound to convene the Departmental Promotion Committee (DPC) and promote all the eligible candidates against the existing vacancies as on 01.01.2023. In this regard he submits that a similar matter had come up before this Tribunal in O.A Nos. 389/2021, 595/2021 and 596/2021. This Tribunal in a common order dated 11.05.2022, produced at Annexure A-11, had directed the respondents in paragraph 11 of the order to complete all the proceedings for promotion of the applicants therein for the vacancy years 2020 & 2021 within three months of its order. Though the said order was challenged in OP(CAT) 47/2022, 49/2022 and 64/2022, the Hon'ble High Court of Kerala was pleased not to interfere with the order and had directed the respondents to finalise the process of selection by 24.01.2023 in its interim order produced at Annexure A-12.
3 O.A No. 180/137/2023
2. It is agreed by the learned Standing Counsel for the contesting respondents that after the common order of this Tribunal in O.A Nos. 389/2021, 595/2021 and 596/2021 at Annexure A-11 was challenged before the Hon'ble High Court of Kerala by filing OP(CAT) Nos. 47/2022, 49/2022 and 64/2022, the Hon'ble High Court as per its interim order at Annexure A-12, had only extended the compliance of the directions issued by this Tribunal in the above O.A's in paragraph 11 by another three months. Further, it was also clarified by the respondents in their reply statement that all the applicants in the said O.As at Annexure A-11, except those who had since retired by the time of convening of the DPC, had already been given the promotion on 20.01.2023. It is submitted by the learned Standing Counsel for the respondents that the eligibility of the retired employees for promotion is, therefore, still under consideration in the OP(CAT) Nos. 47/2022, 49/2022 and 64/2022.
3. We have taken note of the above position in our following determination. Given the factual scenario and also considering the fact that the applicant is going to superannuate on 30.06.2023, it is felt that it would be appropriate to dispose of this O.A at this stage itself in the light of the issues involved. We accordingly direct the respondents to immediately convene the DPC and consider the case for promotion of the applicant as per the rules keeping in spirit the 4 O.A No. 180/137/2023 earlier order of this Tribunal at Annexure A-11. In this connection, we have been apprised by the learned Standing Counsel for the main respondents that they have already completed the process for conducting the DPC for the previous years prior to 2023. Further, an application for convening the DPC for the year 2023 has already been submitted just a few days ago to the USPC through the Single Window System. Having, therefore, taken note of these facts, we feel it would be ideal in the interest of all parties involved if a clear direction is given to the respondents to convene the DPC as expeditiously as possible, considering the impending retirement of the applicant on 30.06.2023. We do so accordingly.
4. We record that the learned counsel for the applicant strenuously contended that, if for any reason the DPC could not be convened before 30.06.2023, there would be a real possibility of the case of the applicant not being considered for promotion when it is convened finally since he would have retired by that time. The learned counsel, therefore, sought for a specific direction by this Tribunal that in the above eventuality, the applicant would be considered retrospectively for promotion from his due date of eligibility, if he is found to be otherwise suitable. Learned counsel for the applicant placed reliance on the judgment of the Hon'ble Supreme Court in Union of India v. Mohan Singh Rathore [AIR 1997 SC 2328) and the order of the 5 O.A No. 180/137/2023 Central Administrative Tribunal, Principal Bench in K.C. Chauhan v. Sujeet S. Priyadarshi in MA No. 1656/2011 in O.A No. 280/2008 and connected case to supplement his contention.
5. Strenuously opposing this request, however, learned Standing Counsel for the main respondents equally placed reliance on the judgments of the Hon'ble Supreme Court in Union of India v. B.S. Agarwal and another [AIR 1998 SC 1537], Union of India and another v. Manpreet Singh Poonam [2022 KHC 6264], the decision of the learned Single Judge of the High Court of Meghalaya in Andrew Shabong & Others. v. State of Meghalaya & Ors., 2023 Live Law (Meg)1 and a Division Bench decision of the CAT, Chennai Bench in P. Murugaiyan v. Union of India and Others in O.A No. 705/2014 in order to contend that retrospective operation in promotion for retired employees is not to be normally allowed. He pointed out that the concerned circulars of the DoP&T are also not in favour of such backdated promotion for retirees in such cases. However, he accepts that when there is an inordinate delay in convening the DPC and where there are materials to establish that delay had been actuated by malice or malafide, Courts can consider granting of retrospective promotion. The learned Standing Counsel contended that in the facts of the case in hand there is absolutely nothing to show that DPC is being convened very highly belatedly or 6 O.A No. 180/137/2023 there was any malice or malafide. He submits that the delay in convening the DPC for 2023, by a few months, has been due to reasons beyond control of respondents.
6. We have carefully considered the above contentions. On balance, we feel that we should refrain from passing any order on this issue at this stage on the above contention having regard to two specific facts. First, we have already given a specific direction in paragraph 3 earlier to all respondents to take necessary steps to convene the DPC as expeditiously as possible having regard to the fact that the applicant has approached this Tribunal well in advance and that he is due to retire on 30.06.2023. Hence, any order directing to consider whether the applicant should be promoted retrospectively in case of his retirement if the DPC is held later, will be premature in light of this order at this point of time. Further, we take note of the fact that the question of eligibility of promotion to persons who have already retired still appears to be within the subject matter of consideration of the Hon'ble High Court in OP (CAT) No. 47/2022 and connected cases arising from the orders in O.A No. 389/2021 and connected cases (Annexure A-11) passed by this Tribunal. In view of these considerations we are refraining from passing any order on this aspect. However, the issue is left open to be considered at the appropriate stage, if and when the need arises. 7 O.A No. 180/137/2023
7. Accordingly, the O.A is disposed of with a direction to the respondents to take every possible steps to convene the DPC on or before 30.06.2023 as directed at paragraph 3 in light of the considerations explained at paragraph 6 above. We make no order as to costs.
(Dated, 15th June, 2023.)
K.V. EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax
8 O.A No. 180/137/2023
List of Annexures
Annexure A-1 - A true copy of the communication under No. Sr.
DAG(Admn)/C.Cell/RTI-243/2022-23 dated
09.02.2023, issued by the Central Public Information Officer.
Annexure A-2 - A true copy of the Notification of India Audit and Accounts Department, Senior Accounts Officer and Senior Audit Officer, Group 'A' posts Recruitment Rules, 2019 published in the Government of India Gazette, dated 18.11.2019.
Annexure A-3 - A true copy of the Sectional Order No. 389 dated 10.10.2022, issued by the Senior Accounts Officer (Administration).
Annexure A-4 - A true copy of the representation dated 23.01.2023 addressed to the second respondent.
Annexure A-5 - A true copy of the Memorandum bearing No. Admn.V/6-33/SAO-Vol.1 dated 09.02.2023, issued by the Senior Accounts Officer in the Office of the second respondent.
Annexure A-6 - A true copy of the O.M No. 22011/9/98-Estt(D) dated 08.09.1998, issued by the DoP&T. Annexure A-7 - A true copy of the OM bearing No. 22011/9/98- Estt(D) dated 16.06.2000 issued by the DoP&T. Annexure A-8 - A true copy of OM No. 22011/4/2013-Estt(D) dated 28.01.2015 issued by the DoP&T. Annexure A-9 - A true copy of the Office Memorandum No. 22011/ 04/2013-Estt(D) dated 08.05.2017 issued by the DoP&T. Annexure A-10 - A true copy of the OM No. 22011/1/2021/Estt.(D) dated 27.08.2021 issued by the DoP&T. Annexure A-11 - A true copy of the common order in O.A No. 180/ 389/2021 and connected cases rendered by this Tribunal dated 11.05.2022.
Annexure A-12 - A true copy of the interim order in O.P(CAT) Nos.
47,49 and 64 of 2022 rendered by the Hon'ble High Court dated 19.10.2022.
Annexure A-13 - A true copy of the Office Order No.404 dated 20.01.2023 issued by the 2nd respondent.
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