Central Administrative Tribunal - Delhi
Harvinder Pal Singh S/O Shri Surjit ... vs Union Of India & Others on 26 May, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4111/2010 This the 26th day of May 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shailendra Pandey, Member (A) 1. Harvinder Pal Singh s/o Shri Surjit Singh r/o 127-128, Phase I A Block, Street No.2 Chatarpur Enclave Maidangirhi Road New Delhi-74 2. Pawan Kumar s/o Shri Tulsi Ram r/o Vill. Paintawash Khurd PO Kitlana, Bhiwani, Haryana 3. Shri Ram Kishan Singh s/o Shri Prem Chand c/o House No.123/13, Onkar Nagar D Block, Tri Nagar, New Delhi 4. Shri Vikas Sood s/o Dr. G K Sood c/o Major Dr. Vikas Dhir P 1 D, Shankar Vihar, Delhi Cantt, Delhi ..Applicants (By Advocate: Shri M K Bhardwaj) Versus Union of India & others 1. The Secretary Ministry of Finance Department of Revenue North Block, New Delhi 2. The Chairman CBDT, Ministry of Finance Department of Revenue North Block, New Delhi 3. The Chief Commissioner Income Tax NWR, 17 E, CR Building Chandigarh 4. The Secretary Staff Selection Commission CGO Complex, Lodhi road, New Delhi ..Respondents (By Advocate: Shri K K Thakur) O R D E R
Shri M.L. Chauhan:
This is a second round of litigation. Earlier the applicants have filed OA-2044/2010 before this Tribunal against the arbitrary and discriminatory action of the respondents in not extending them the benefit of the order dated 6.5.2009 in OA 101/2009 filed by similarly placed persons. It was contended before the Tribunal that consequent upon the order of this Tribunal the respondents had fixed the seniority of the applicants in OA 101/2009 but omitted to do so in the cases of the applicants in OA-2044/2010. The applicants in OA-2044/2010 have also submitted representation dated 17.4.2006 followed by the reminder dated 18.6.2010 but the decision on the same is still pending. Based on the aforesaid averments, this Tribunal disposed of the said OA at the admission stage with a direction to respondents 2 & 3 to look into the representation submitted by the applicants therein and take decision on the same through a reasoned and speaking order on the subject, within a period of three months.
2. Pursuant to the directions given by the Tribunal, the respondents have passed the impugned order dated 13/14.9.2010 (Annexure A-1) whereby the representations of the applicants have been rejected. It is this order along with the order dated 22.8.2008 whereby the representation of the applicants was rejected and seniority was confirmed, which are under challenge before this Tribunal in this OA. The applicants have prayed that these orders may be quashed and they be extended the similar benefits, as has been extended to the applicants in OA-101/2009.
3. Notice of this application was given to the respondents and they have filed their reply. Facts, as stated above, have not been disputed. The respondents while defending the case on the basis of the reasoning given in the impugned orders have also taken the objection of limitation. It has been stated that the applicants had joined the Income Tax Department in the years 2002 and 2003 whereas the present OA has been filed after a lapse of more than seven years. The respondents have also placed reliance on the various decisions of the Apex Court where the leave was refused on the ground of latches in moving the Court for redressal of the grievance regarding seniority after a lapse of considerable years when the cause of action has arisen. The respondents have further stated that issue regarding inter-se-seniority of direct recruits and promotee officials has to be strictly fixed in terms of DOPT OM dated 3.7.1986 as per clarification issued by OM dated 3.3.2008. Thus, according to the respondents the applicants have got no case on merits.
4. We have heard the learned counsel for the parties at length and perused the material placed on record.
5. We are of the view that the applicants are not entitled to any relief in terms of the reasoning given by the respondents vide the impugned order dated 13/14.9.2010 based upon the clarification issued by the DOPT to its circular dated 3.7.1986 vide the OM dated 3.3.2008. At this stage, it will be useful to quote DOPT OM dated 3.3.2008, which thus reads:-
2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 contains the following provisions:-
2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits does not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees.
3. Some references have been received seeking clarifications regarding the term available used in the preceding para of the O.M. dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular bath of promotees joins the post/service.
6. Thus, as can be seen from the portion as quoted above, it is clear that the seniority has to be fixed on the basis of actual year of appointment and when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process is initiated). Admittedly, in this case, the seniority has been fixed on the basis of actual year of appointment in terms of the aforesaid instructions. Thus, according to us, the applicants are not entitled to any relief, more particularly when they have not challenged the validity of the DOPT OM dated 3.3.2008 (Annexure R-2), which OM is of clarificatory in nature to the earlier OM dated 3.7.1986, which stipulates criteria regarding inter-se-seniority between direct recruits and promotee officials. According to us, the applicants cannot take any assistance from the judgment rendered by this Tribunal in the earlier OA-101/2009, inasmuch as the written examination was conducted on 28.4.1996 but the same was cancelled due to administrative reasons and subsequently re-examination was held in January 1999 in response to the old advertisement of 1995. It was under these circumstances that direction was given by the Tribunal in OA-101/2009 to assign the seniority to the applicants therein, as was assigned to Shri Shekhar Singh and Shamim Ahmed, who were also selected along with applicants. The present case is not of the nature where earlier advertisement was cancelled and re-examination was held subsequently. In fact, the applicants appeared in the examination held in 1999, result of which was declared in January 2002 and the applicants have been assigned seniority from the year 2002. Thus, they cannot take any assistance from the judgment rendered by this Tribunal in OA-101/2009.
7. The view, which we have taken, is in consonance with the law laid down by the Apex Court in the case of Nani Sha & others v. State of Arunachal Pradesh & others, (2010) 1 SCC (L&S) 719. At this stage, it will be useful to quote paragraphs 15 and 16 of the aforesaid decision, which thus read:-
15. This Court in a reported judgment in State of Uttranchal & Anr. Vs. Dinesh Kumar Sharma [(2007) 1 SCC 683] has clearly held that the seniority is to be reckoned not from the day when the vacancy arose but from the date on which the appointment is made to the post. There this Court was interpreting Rules 17 and 21 of the U.P. Agriculture Group B Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991. This Court disapproved the stance taken by the High Court that the directions should have been given not from the date of appointment but with retrospective effect when the vacancy arose. The following observations in para 34 are speaking and would close the issue:
"Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995096 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik vs. State of Orissa [(1998) 4 SCC 456]". (Emphasis Supplied)
16. Lastly, the High Court has specifically rejected the claim of the appellants on another ground, namely, that the appellants were not borne in the cadre of the ACF on the date from which they have been given the seniority. We are in complete agreement with the High Court, particularly in view of the decision of this Court reported in State of Bihar & Others vs. Akhouri Sachindra Nath [(1991) Supp. 1 SCC 334] which decision was reiterated in the case of State of Bihar & Ors. Vs. Bateshwar Sharma [(1997) SCC 424]. We do not want to burden this judgment with further reported decisions. However, the same view has been taken in another reported decision of this Court in Uttranchal Forest Rangers' Asson. (Direct Recruit) & Ors. Vs. State of U.P. & Ors [JT 2006 (12) SCC 513] where in paragraph 18 this Court has taken a view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely affecting those who were appointed validly in the meantime.
8. For the foregoing reasons, the OA is bereft of any merit and is accordingly dismissed with no order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/