Central Administrative Tribunal - Delhi
Gautam Ray vs Union Of India on 3 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.2925/2012 WITH OA NO.2820/2012 OA NO.2822/2012 Reserved on 15.04.2014 Pronounced on 03.07.2014 HONBLE MR. ASHOK KUMAR, MEMBER (A) HONBLE MR. RAJ VIR SHARMA, MEMBER (J) OA No.2925/2012 Gautam Ray Flat No.312 Dwarkadheesh Apartments Pkt-2, Sector 12, Dwarka New Delhi -110 078. Applicant (By Advocate: Mr. Padma Kumar S.) VERSUS 1. Union of India Through Secretary, Ministry of Defence South Block, New Delhi -110 011. 2. Joint Secretary (Training) & Chief Administrative Officer Ministry of Defence E Block Hutments DHQ PO, New Delhi-110 011. 3. Secretary Union Public Service Commission Shahjahan Road Dholpur House New Delhi-110 069. 4. Secretary, DOP&T, North Block, New Delhi-110 001. Respondents (By Advocate: Mr. Rajinder Nischal) OA No.2820/2012 Dr. G.S. Tiwari Flat No.10, Defence Apts Inder Enclave Paschim Vihar, New Delhi-110 087. Applicant (By Advocate: Mr. Padma Kumar S.) VERSUS 1. Union of India Through Secretary, Ministry of Defence South Block, New Delhi -110 011. 2. Joint Secretary (Training) & Chief Administrative Officer Ministry of Defence E Block Hutments DHQ PO, New Delhi-110 011. 3. Secretary Union Public Service Commission Shahjahan Road Dholpur House New Delhi-110 069. 4. Secretary, DOP&T, North Block, New Delhi-110 001. Respondents (By Advocate: Mr. Rajinder Nischal) OA NO.2822/2012 J.S. Joshi S/o Late Lt. Col S.D. Joshi Aged 63 years Resident of B-607, Daffodils Apartments, Plot No.36, Sector-6, Dwarka New Delhi-110075. Applicant (By Advocate: Mr. M.S. Ramalingam) VERSUS 1. Union of India through The Secretary, Ministry of Defence South Block, New Delhi-110011. 2. Union of India through The Secretary, Department of Personnel and Training, North Block, New Delhi-110001. 3. Joint Secretary (T) and the Chief Administrative Officer, E Block Dalhousie Road, New Delhi 110011. Respondents (By Advocate: Mr. Satish Kumar) :ORDER: MR. ASHOK KUMAR, MEMBER (A):
These three OAs have been taken up together on the request of the counsel for parties on the ground that the issue involved and the releifs sought by the applicants are identical in all these matters. With the consent of both parties, OA No.2925/2012 (in the matter of Gautam Ray Versus UOI & Ors.) has been taken as a lead case for purpose of pleadings and documents on record. We are, therefore, disposing of these OAs by this common order.
2. The issue relates to the re-fixation of seniority relating to the Armed Forces Headquarters Civil Service (AFHQ Cadre). Admittedly, the cadre underwent a spate of seniority disputes between direct recruits and promotees and after more than 3 decades of litigation, the Honble Supreme Court directed on 19.2.2008 to strictly comply with the order dated 20.11.1992 passed by the Tribunal in TA No.356/1985. The operative part of the said judgment of the Tribunal is reproduced as under:-
..a direction is issued to revise the impugned seniority list in the light of the observations made in the above sub-paras which shall be made final after hearing the objections on the same, and the petitioners who have since retired, shall be entitled to any consequential benefits occasioned on account of the revision of the seniority As per the direction of the Honble Supreme Court, the directions in the said judgment were to be implemented within three months from the date of this judgment.
3. The applicants are aggrieved by the impugned order dated 26.08.2011 issued by the respondents on the subject Representation for Grant of Promotion/Financial Benefits as per direction of the Honble Supreme Court dated 19.02.2008 Regarding. Para 3 and 4 this communication relate to the representations filed by the applicants before the respondents. Paras 2 to 4 of the said communication at Annexure-A/1 of the impugned communication dated 18.04.2012 are reproduced below:-
2. Upon revision of seniority in compliance of the Honble Supreme Court Order dated 19.02.2008 in SLPs 4545 & 5853 of 2007, there was no change in your original status in the grade of CSO and SCSO as you have again figured in the Select List for the year 1978-79 and 1983-84 respectively.
3. However, in wake of delayed notification of Select Lists, proposals were sent to the DOP&T for giving the benefit of notional pay fixation in respect of all the grades right from SO to PD with effect from the year of their empanelment with actual financial benefits payable from the date of charge assumption in the promotional post. The DOP&T agreed to grant the said benefit in the grade of SCSO only. Accordingly, order for granting the said benefits in SCSO grade were issued. Based on that order, your pay has since been re-fixed in the SCSO grade w.e.f. 01.10.1983 on notional basis with actual benefits w.e.f. 04.06.1984 i.e. the date of assumption of charge as SCSO. A copy of the D.O. Part III to this effect is enclosed for your kind reference.
4. Granting the benefit of promotion in the PD grade, even on notional basis, will not be feasible in your case as such benefits become due only in the event of assumption of higher post.
4. It is stated that the applicants were denied notional benefits of revision of seniority, which resulted in their having been placed in the Select List of Principal Director for the Select Panel for the year 2008-2009. Applicants having retired on 28.02.2009 and hence could not assume charge before his retirement. Accordingly, as per the impugned letter disposing of his representation, he was not treated as being entitled to the benefit of promotion to the post of Principal Director. Applicant states that this is contrary to the decision of the Tribunal dated 20.11.1992, which was directed to be complied with strictly by the Honble Supreme Court vide its judgment dated 18.2.2008. Moreover, it is also submitted that these cases are not one which fall under the category of the principle of No work, no pay. Reference has been invited to the following litigation commencing from 1978, which is being reproduced from the synopsis of OA No.2925/2012 (lead case):-
1978 - Promotee ACSOs, MG Bansal & Ors filed CW 3/78 (before the AT Act 1985 came into force) challenging the seniority.
1985 - Central Administrative Tribunal came into being and the Writ Petition was transferred to CAT and numbered as T.A. No.356/1985.
2.6.1989 - Honble Tribunal by its order dated 2.6.1989 disposed of the said petition directing that the seniority between the direct recruits and promotes regularly appointed/promoted within their respective quota should be determined by the length of continuous officiation in the grade of ACSO.
20.7.1991 - Union of India and some DR Officers filed two Special Leave Petitions before Honble Supreme Court in 1991 against the order of the Tribunal dated 2nd June 1989. Honble Supreme Court by its order dated 20th July 1991 held that the CAT had decided the controversy without adverting to the Rules applicable to the service.
20.11.1992 - Honble CAT again decided M.G. Bansals case (supra) by an order dated 20th November 1992. The principle laid by the Honble Tribunal attained finality when the challenge to the order in the Honble Supreme Court resulted in the dismissals of the SLPs filed against the Order dated 20.11.1992. This Honble Tribunal in the operative part of the Order inter alia directed as under:
..a direction is issued to revise the impugned seniority list in the light of the observations made in the above sub-paras which shall be made final after hearing the objections on the same, and the petitioners who have since retired, shall be entitled to any consequential benefits occasioned on account of the revision of the seniority 1.4.2002 - Implementation of the Order dated 20.11.1992 was again challenged by the promotes before this Honble Tribunal in OA No.1356/1997 and this Honble Tribunal set aside the revised select lists purported to have been published in compliance of the order dated 20.11.1992.
14.11.2006 - Honble High Court decided the CWPs no.4058/02, 4458/02, 5396/02 & 63/03 filed against the Order of the Honble Tribunal dated 1.4.2002 in OA No.1356/1997 and set aside this Honble Tribunals order dated 1.4.2002 in OA No.1356/97 Smt. Ammini Rajan Vs UOI.
2007 - Association of Promotee officers filed an SLP in the Supreme Court against the order dated 14 Nov 2006 of the Honble High Court of Delhi.
19.2.2008 - Honble Supreme Court vide order dated 19.2.2008, set aside the order dated 14 Nov 2006 of the Honble High Court and directed as under:
Honble Supreme Court while passing the Order dated 19.2.2008 directed as under:
As the dispute and controversy relating to inter se seniority between DPs and DRs has remained unsettled and is lingering over the past many years, the respondent-authority is directed to determine and settle the seniority list in strict compliance and spirit of the judgment of the CAT dated 20.11.1992 in TA No.356/1985 (CW 3/1978) rendered in Shri M.G. Bansal & Ors v. Union of India & Ors. The directions so contained in the said judgment shall be carried out within three months from the date of this judgment.
5. The following reliefs have been sought in these 3 OAs:-OA No.2925/2012
(a) Quash and set aside the impugned orders to the extent that it did not allow the applicant the notional fixation of pay when his promotion was to be ante-dated due to the implementation of the Order dated 19.2.2008.
(b) Direct the respondents to grant the benefit of notional fixation of pay to the applicant in the post of CSO/Deputy Director, Director and Principal Director from the relevant date in terms of his turn in the Select Panel i.e. wef 1.10.1978 and 1.1.2008 respectively.
(c) Direct the Respondents to re-fix the pension of the Applicant and grant the applicant all the consequential benefits thereof i.e. arrears of pension, difference in gratuity, commutation of pension, leave encashment etc.
(d) Any other relief which this Honble Tribunal may be pleased to grant. OA No.2820/2012 Quash and set aside the impugned order dated 26.08.2011 to the extent that it did not allow the applicant even notional benefits when the Applicants name was in the Select List and the Rules and the judgments mandate that the affected employee is deemed to be having the approved service from even prior to the retirement of the Applicant.
Direct the respondents to grant the benefit of notional fixation of pay to the applicant in the post of Principal Director from the relevant date i.e. 01.01.2007/01.09.2007 in terms of rules and judgments.
(c ) Direct the Respondents to re-fix the pension of the Applicant and grant the applicant all the consequential benefits thereof i.e. arrears of pension, difference in gratuity, commutation of pension, leave encashment etc. Any other relief which this Honble Tribunal may be pleased to grant. OA No.2822/2012 Set aside Respondent No.3 letters No.A/47947/REP/PD/CAO/P-1 dated 26 Aug 2011 to the extent that it denies the financial benefits in the form of arrears of pay and revised pension consequent to empanelment of the applicant as Principal Director in the Review Panel for the year 2008-09.
(ii) Hold and declare that the denial of financial benefit in the form of arrears of enhanced pay as applicable to the Principal Director and corresponding pension to the applicant is illegal and set aside the same.
(iii) Direct the respondents to revise the pay of the applicant in the grade of Principal Director with effect from the date when the promotion was due to him and award consequential benefits by way of arrears of pay, revision of retirement benefits such as pension, gratuity, leave encashment, etc. and disbursement of arrears thereon.
(iv) Direct the respondents to disburse the difference in pay and allowances, pension, gratuity, leave encashment, etc. admissible to the applicant as a result of the above, with 18% interest.
(v) Considering the fact that the applicant has been forced to seek the indulgence of this Honble Tribunal for availing his lawful entitlement, award the cost of the litigation.
6. Counter reply has been filed on behalf of respondents. As per the counter reply, the reason stated in the impugned communication has been reiterated. Referring to schedule III of the AFHQ Civil Service Rules, 1968, respondents have stated that 75% of the substantive vacancies in the grade of ACSO (now SO) are to be filled in the order of seniority of temporary officers of the grade who had completed their period of probation satisfactorily subject to rejection of unfit, and the remaining 25% are to be filled by direct recruits. Relative seniority of the aforenoted two categories of officers is to be determined according to the rotation of vacancies between them based on the quotas reserved for both the categories i.e. 3:1. Temporary vacancies in the grade are to be filled by temporary promotion of eligible Assistants on the basis of selection. The aforenoted two modes of appointment in the grade viz. departmental promotion (DP) and direct recruits (DR) resulted in a series of court cases since 1978 relating to the issue of inter se seniority between the DPs and DRs in the grade of ACSO, which was finally decided by the Honble Supreme Court on 19.02.2008 in CA Nos.1384 and 1385 of 2008. It was mandated in the judgment that any service performed outside the quota of 75% shall not qualify for any seniority. It would be relevant to quote here part of the judgment incorporated in the counter reply, as below:-
Thus, promotes who have been promoted within their quota of 75% under the rules as prescribed under Third Schedule read with Rule 16(7) of the Rules would get the benefit of continuous officiation from the date of their substantive appointment to the grade of availability of a substantive post and after having worked on temporary basis in the grade. Those who have been appointed temporarily under Note (2) from the cadre of Assistants to the grade of Assistant Civilian Staff Officer temporarily, would not get the benefit of their continuous officiation and shall be deemed reversion when the nominees from the UPSC would join on the recommendations of the UPSC. Such temporary officers may not actually face reversion because by the time the vacancies of the next year may become available in their quota of 75% and they can very well, by virtue of their seniority, earn the benefit of substantive appointment under the Third Schedule.
7. Consequent to the direction of the Apex Court, the respondents had re-drawn the inter se seniority between the DPs and DRs in the prescribed ratio under the 1968 Rules and the revised seniority list was issued on 13.08.2008. The grievance of the applicants is their non promotion in the grade of Principal Director. A chronological account of facts and circumstances has been incorporated in the counter reply and the same is not being repeated to avoid further burdening of the record. DPCs for promotion to the grade of Principal Director for the Panel years 2007-08 and 2008-09 could not be held because of the status quo granted by the Honble Supreme Court in February 2007, which continued till 19.02.2008 when the aforenoted final order was passed in the CA Nos.1384 and 1385. The DPCs were ultimately held on 18.09.2008 on the basis of pre-revised Seniority List of Directors because the revised Seniority List in sequential exercise to revision of seniority in the grades of ACSO and above, in terms of Honble Apex Court order, could not be drawn by that time. The DPC recommended certain selection for promotion as Principal Director in the Select List for the year 2008-09 but because of the advice of the DOP&T (ACC), which impressed upon the need to complete the full sequential exercise from drawing up of seniority in the ACSO grade from the year 1968 onwards. In terms of the aforenoted directions of the Honble Supreme Court for drawing up of revised Seniority List of Directors, the same could not be given effect to. Ultimately, the revised seniority list of ACSOs was drawn on 13.08.2008 and the seniority lists in the grades of CSO, Jt. Director and Director for the corresponding years underwent change. On 18.08.2010, the revised Seniority List of Directors was drawn and on the basis of the same, DPC was held at the UPSC for drawing up the Select Lists for promotion to the grade of Principal Director for the years 1993-94 (revised), 2002-03 (revised), 2007-08 (revised), 2008-09 (revised), 2009-10 and 2010-11 which were notified on 27th May 2011. Ultimately, the DOP&T (ACC) accorded their approval on 22.05.2011 for promotion of officers in the grade of Principal Director w.e.f. the date of assumption of charge of the post till superannuation or until further orders. It was because of this reason that such empanelled officers, including the applicants, who had retired before the notification of the select lists, could not be promoted to the grade of Principal Director. This was because the benefit of promotion could take effect only on assumption of charge of the higher post. The applicants, therefore, could not be promoted as Principal Director and juniors got the benefit of promotion in that grade from a date prior to retirement of the Applicant. Reference has been invited to the DOP&T instructions and the approval of the ACC for grant of promotion to the grade of Principal Director w.e.f. the date of assumption of charge of the post by the empanelled officers till their superannuation or till further orders, whichever is earlier. Reference has also been made to Rule 17(1), which is as follows:-
FR 17(1) Subject to any exception specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.
(2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special order of the authority by whom he is appointed.
8. Respondents have stated that the grievance of the applicants with respect to non-promotion to the grade of Principal Director took place because of the aforenoted sequence of events, which was beyond the control of the office of the respondent no.2. It is felt pertinent to mention herein that the office of respondent no.2 even explored the feasibility to promote the applicant as Principal Director on ad- hoc basis, based on the pre-revised seniority list, which was not approved by the ACC. Since the benefit of promotion could be given only on assumption of the charge as Principal Director, the applicants were not entitled to get the benefit of promotion as Principal Director even on notional basis, since they could not assume charge as Principal Director. It is submitted that no specific order or rule exists to assign deemed date to an officer unless the officer assumed charge of the higher post on ad hoc or temporary basis, when regular promotions could not be made due to any reason, and they were, therefore, promoted on regular basis on a later date, after reasonable delay. Since notional pay fixation is not a right, this cannot be claimed as a matter of right at all grades.
9. The ratio of the judgment dated 22.04.2010 in OA No.1409/2009 does not apply in the case of the applicants in the instant OAs because the Tribunal had allowed grant of notional benefits on the date from which his juniors were granted the benefit of promotion. In the instant case, none of the juniors of the applicants had been granted the benefit of promotion in the grade of Principal Director from a date prior to the date of retirement of the applicant, or the year of his empanelment in the select list for that post. The judgment of the Honble Supreme Court in Union of India Vs. K.K. Vadera & Ors., 1989 Supp (2) SCC 625 has been quoted in the counter reply, which is as follows:-
We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal. (emphasis supplied)
10. Similarly, the observation of the Honble Supreme Court in the matter of Baij Nath Sharma Vs. Honble Rajasthan High Court (Jodhpur Bench), 1988 SCC (L&S) 1754 reads as under:-
16. The Honble Supreme Court held that the appellant would certainly have a grievance if any of his juniors had been given promotion from a date prior to his superannuation which was not the case before the Court. The Court also noticed that there was no rule under which promotion could be granted from the date of occurrence of the vacancy. The Court relied upon its earlier decision in K.K. Vadera (supra) and the dismissed the appeal of Brijnath Sharma. This decision in our view, seals the fate of the respondent. No doubt, the Honble Supreme Court regretted the inaction on the part of the High Court to make timely promotions since delays and inaction, resulted in deprivation of promotion to the deserving candidates without any fault of theirs. The Supreme Court also expressed the desire that such occurrences should not recur. But that by itself cannot give a right to the respondent to go against the jurisprudence evolved in the main part of the judgment. (emphasis supplied)
11. Rejoinder to the counter reply has been filed on behalf of applicant. It has been reiterated in the rejoinder that the respondents had not been conducting the regular DPC for years together and the applicants had been working from 03.04.1995 with technical breaks. Moreover, the directions of the Tribunal in order dated 20.11.1992 in TA No.356/1985, which is the basic judicial order in which the Honble Supreme Court in the afore-noted CAs had directed the respondents to act within a stipulated time. The applicants were already getting the Directors pay due to officiating promotion even prior to the regular promotion. The respondents have, however, denied the applicants the fixation of pay despite the direction of the Tribunal to grant consequential relief on account of revision of seniority in the afore-noted TA which was later upheld by the Honble Supreme Court. It is stated in the rejoinder that the issue does not relate to promotion of juniors but relates to grant of consequential benefits as ordered by the Tribunal and as upheld by the Honble Supreme Court.
12. Mr. Padma Kumar S. and Mr. M.S. Ramalingam appeared on behalf of applicants and Mr. Rajinder Nischal and Mr. Satish Kumar appeared on behalf of respondents.
13. Written notes of arguments have been filed on behalf of counsel for both parties.
14. Learned counsel for applicants have referred to the directions of the Tribunal in order dated 20.11.1992, specifically on the aspect that the Tribunal had directed that petitioners who have since retired, shall be entitled to any consequential benefits on account of the revision of seniority. The Honble Supreme Court had also directed that the seniority be determined and settled in strict compliance of the judgment of the Tribunal dated 20.11.1992 in TA No.356/1985 in the matter of M.G. Bansal and Others Versus Union of India and Others. The Honble Supreme Court had also fixed a time frame of three months from the date of the judgment. It was further argued by the learned counsel that the general principle that notional promotion retrospectively can be given only if a junior was promoted before the retirement of an employee is not applicable in the case of the present applicants because regular promotion has not been made for decades together due to court cases and other administrative reasons. Similarly the general principle would also not be applicable in matters such as when a statutory mandate for counting the eligibility/approved service to the promotional post from a particular date is not satisfied.
15. On the other hand, counsel for respondents, have highlighted the aspects during the arguments as stated in the counter affidavit.
16. We have perused the pleadings and documents on record and have also considered the arguments for both parties.
17. The arguments put forth by the respondents counsel mainly relate to non-promotion of the applicants to the grade of Principal Director because of the aforenoted sequence of events, which was beyond the control of the respondents. Moreover, in the absence of any enabling rule and further because of the constraints placed under the provisions of FR-17 wherein an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post. The respondents have further drawn attention to the judgment in OA No.1409/2009 dated 22.04.2010 wherein the Tribunal had allowed grant of notional benefits on the date from which the applicants juniors in that OA were granted the benefit of promotion. We also observe that the sequence of events explained by the respondents were such that the approval of the competent level was accorded only on 22.05.2011 for promotion to the grade of Principal Director with the specific stipulation that it would be effective from the date of assumption of charge of the post. The applicants had by then retired and could not therefore assume charge of the post and were thus denied the benefit of promotion to the post of Principal Director as afore-noted in the light of the provisions of FR-17 (1).
18. The aspect relating to entitlement to consequential benefit on account of revision of seniority as directed by the Tribunal in order dated 20.11.1992 has also been considered. In para-25 of the said order the Tribunal had observed as under:-
25. Though the present writ petition is only of academic interest because all the three petitioners have since retired after having been promoted to the grade of CSO soon after the filing of the Writ Petition, but since there have been intervener promotes as well as direct recruits, so the Writ Petition/T.A. is disposed of in the following manner.. (emphasis provided) It would appear from the aforenoted extract that the Tribunal had taken note that the petitioners had retired and, therefore, it was only of academic interest. In para-25 (g) the Tribunal had directed ..the petitioners, who have since retired, shall be entitled to any consequential benefits occasioned on account of the revision of the seniority list.. It is true that the Tribunal had directed consequential benefits to be given to the petitioners who retired, on account of revision of seniority. Such consequential benefits would in any case have to be granted within the purview of rules and instructions as existed, unless that very rule was to be specifically relaxed in favour of the petitioners by specific directions of the Tribunal. In the instant matter, it has been noted above that FR-17(1) would not permit any such grant of benefits as claimed by the applicants in these OAs. As long as the provisions of FR-17(1) are operative, consequential benefits have to be regulated within the purview of the rules. It is also noticed that no relaxation of any rule including FR-17 was directed by the Tribunal in the related order. The Honble Supreme Court in the matter of K.K. Vadera and others (supra) had held that promotion to the post should be from the date of grant of promotion to juniors. Similar was the view taken in the matter of Baij Nath Sharma (supra) wherein in similar circumstances, the Honble Court had regretted the delay and inaction resulting in deprivation of promotion to the deserving candidates without any fault on their part. The Honble Supreme Court had also further expressed the desire that such occurrences should not recur. In the instant matter also, although delay has taken place but in terms of the judgment in Baij Nath Sharma (supra), that itself would not justify the benefit of promotion to the applicants and to that extent, we are unable to take a different view in the present case of the applicants. In the present OAs, the argument advanced by the learned counsel for applicants is that these cases need to be decided differently on the ground that regular promotion has not been made for decades together due to court cases and other administrative reasons. We, however, do not subscribe to their view in the light of the settled legal position as aforenoted.
19. In view of the above rules cited by the respondents and the aforenoted judgment of the Honble Supreme Court in K.K. Vadera and others (supra) and in Baij Nath Sharma (supra), we are unable to grant the relief sought in these OAs. In consequence, all the three OAs are dismissed.
20. There shall be no order as to costs.
Let a copy of this order be placed in each of the files of the related OAs.
(Raj Vir Sharma) (Ashok Kumar)
Member (J) Member (A)
/jk/