Central Administrative Tribunal - Jabalpur
Anil Kumar vs All India Radio on 1 February, 2024
1 O.A.No. 200/00133/2021
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
Jabalpur
Original Application No.200/00133/2021
Jabalpur, this Thursday, the 01st day of February, 2024
HON'BLE JUSTICE SHRI AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Anil Kumar, S/o Late Shri Ram Babu Sah, Age 47 years,
Presently working as UDC at Doordarshan Kendra, Bhopal,
R/o B-2/3, Doordarshan Colony, Shamla Hills, Bhopal -
462002
- Applicant
(By Advocate- Shri Manoj Sharma, Sr, Advocate assisted by
Ms. Anuja Sharma)
Versus
1. Union of India, Through its Secretary, Ministry of
Information & Broadcasting, Shastri Bhawan, New Delhi -
110001
2. The Chief Executive Officer, Prasar Bharti, Prasar Bharti
Secretariat, 7th Floor, Prasar Bharti House, Copernicus Marg,
New Delhi - 110001
3. The Director General, All India Radio, Akashvani Bhawan,
New Delhi - 110001
4. The Additional Director General, Nation Academy of
Broadcasting & Multimedia, Kingsway, Near Rosary School,
Radio Colony, Delhi - 110009
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2 O.A.No. 200/00133/2021
5. The Deputy Director General (Engg), All India Radio,
Shamla Hills, Bhopal (M.P.) - 462002
6. Ku. Manjusha Jugade, DDK, Bhopal
7. Shri Rajendra Kumar Sharma, CBS, AIR, Bhopal
8. Shri Umesh Krishna, AIR Bhopal
9. Annama Peter, DDK, Bhopal
10. Smt. Eshwari Sharma, DDK, Bhopal
11. Shri Prabhakar Thite, AIR, Raipur
12. Shri Ramji Dhurw, DDMC, Raipur
13. Shri D K Dwivedi, AIR, Bilaspur
14. Shri Net Ram Mahor, AIR, Shivpuri
15. Sanjay Moundkar, AIR, Khandwa
16. Lalit Kuamr Gupta, AIR, Guna,
Respondent No. 6 to 16, through respondent no. 5, Deputy
Director (Engg.), All India Radio, Shamla Hills, Bhopal (M.P.) -
462002
- Respondents
(By Advocate - Shri D S Baghel, for official respondents, Shri
Harsh Gupta, for private respondents)
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3 O.A.No. 200/00133/2021
ORDER
By Akhil Kumar Srivastava, JM:-
This Original Application has been filed by the applicant being aggrieved with his non promotion to the post of Assistant despite passing the Limited Departmental Competitive Examination due to change of the policy by the respondents..
2. The applicant has sought for the following relief:
(i) To summon the entire relevant record pertaining to the instant controversy;
(ii) The quash and set aside the impugned rejection order dated 02.12.2020 (Annexure A/1) & Order dated 12.03.2015 (Annexure A/2);
(iii) To command & direct the respondents to restore the vacancy based method instead of post based method of recruitment in the cadre of Assistant in Madhya Pradesh (including Chhattisgarh) Zone;
(iv) To command & direct the respondent authorities to re- assess vacancies of Assistant under Departmental Promotion, Limited Departmental Competitive Examination and Direct Recruitment Quota by adopting Vacancy based method from the Recruitment years starting from 1994-1995 onwards;
(v) To command & direct the respondents to promote applicant to the post of Assistant under 20% LDCE quota against the vacancy year in which his actual promotion fell due, after reassessment of vacancies, with effect from the date on which 2 UDCs, who have passed the departmental examination held on 18.11.2018, were promoted as Assistant, with all consequential benefits (including seniority):
(vi) Any other order/orders, which this Hon'ble Court deems, fit proper; and
(vii) Cost of the OA may also kindly be awarded.Page 3 of 18 4 O.A.No. 200/00133/2021
3. Briefly stated facts of the case of the applicant as projected in this Original Application are that the applicant is currently working as UDC in the Doordarshan Kendra, Bhopal. The applicant submits that despite having passed LDCE under 20% quota for vacancy years 2011-2018 in Madhya Pradesh (including Chhattisgarh) zone held on 18.11.2018, by adopting post based method of recruitment instead of vacancy based method from the recruitment year 2015-16 onwards. The recruitment rules for the post of Head Clerk/Accountant/Senior Storekeeper (now redesignated as Assistant) were notified by respondent no. 1 on 14.11.1994 which provide for different methods of recruitment i.e. 60% by departmental promotion, 20% by promotion on the basis of LDCE and remaining 20% by Direct Recruitment through Staff Selection Commission. The respondent no. 5 vide circular dated 08.08.2018 (Annexure A/4) notified two vacancies of Assistant, one for year 2014-15 and other for 2016-17 for filling up by LDCE under 20% quota. After completion of examination process, selection list was issued by respondent no. 4, in which applicant and 8 other UDCs have passed the examination. The applicant secured 4th rank in the selection list and since there were only two vacancies, 2 UDCs were promoted by respondent no. 5, who were higher in the merit list. As per instructions regarding determination Page 4 of 18 5 O.A.No. 200/00133/2021 of seniority given in DOP&T OM dated 03.07.1986, for determining the number of vacancies to be filled during a year under each method of recruitment prescribed, a vacancy register giving a running account of the vacancies arising and being filled from year to year is to be maintained in the prescribed proforma enclosed with the OM. Note No. 2 appended below the prescribed format of vacancy register specifies that in the cadre in which yearly vacancies are sufficient in number to be amendable for division as per the prescribed quota, it is considered that maintenance of Register alone will be adequate. Thus, vacancy based Register ensure assessment of vacancies based on the cyclical rotation of vacancies between methods of recruitment which in turn is based on the quota prescribed by the recruitment rules between three different methods of recruitment. The respondent no. 5 followed the said procedure till the recruitment year 2014-15. Apart from maintaining vacancy register, the respondent no. 5 also maintained "Post Based Rosters" for reservation of posts for SCs/STs/OBCs separately for promotion and direct recruitment, in the cadre of Assistant with effect from 02.07.1997, which were in compliance with Hon'ble Supreme Court judgment in the case of R K Sabharwal vs State of Punjab. Since all other Zonal offices of AIR were following the procedure Page 5 of 18 6 O.A.No. 200/00133/2021 of post based rosters, the respondent no. 3 issued order dated 12.03.2015 (Annexure A/2), directed the respondent no. 5 to ensure that all the vacancies in respect of administrative cadre should be maintained in terms of post based on. The said order does not specify any such instructions of DOP&T. Thus, respondent no. 5 prepared the revised vacancy register in which the total number of sanctioned posts of HC/Acctt/Sr. SK (Assistant) in the zone were apportioned int eh ration of 60:20:20. So, as per the old vacancy register (Annexure A/7), there were only two vacancies under Departmental promotion quota pertaining to year 2015-16 and no vacancy was available till 2014-15. But by virtue of wrong action, 5 vacancies of LDCE quota and 6 vacancies of DR quota got automatically diverted to Departmental promotion quota. The vacancies of assistant are being filled by the respondent no. 5 on post based method as per Revised Vacancy Register according to which, the vacancy released by retirement, promotion etc. of a departmental promotion quota is filled by only departmental promotion and so on. The applicant has also relied upon the judgment of the Hon'ble Apex Court passed in the matter of State of Punjab and Ors vs. Dr. R N Bhatnagar and another, 1999 (2) SCC 330. Consequent upon revision of vacancy register by adopting post based method by the respondents, the number of Page 6 of 18 7 O.A.No. 200/00133/2021 vacancies under 20% LDCE quota was reduced to 2 (Two) during the years 2011-18 and as a result the applicant is deprived of his chance for promotion as Assistant. The applicant also made a representation dated 09.03.2020 (Annexure A/17) to the respondent no. 3, which contained a detailed narrative of facts. He could file the representation after adoption of revised post based vacancy register because he came to know about the irregularity only after the results of Departmental Examination. The respondents through Annexure A/1, mentioned that since the matter is sub judice in the court of law, no representation can be disposed of without any reference to the court order and the applicant's representation can only be decided after the outcome of the court case.
4. The respondents have filed their short as well as detailed reply wherein they have submitted that the applicant appeared in the LDCE and acquired the required qualifying marks making him eligible to appear in the merit list, but the 1st and 2nd candidate in the merit list were offered promotion. Since the LDCE was notified only for two vacancies, the candidates at 1st and 2nd in merit were granted promotion. Since it is competitive examination not a qualifying exam, hence the other candidates in the merit list, were eligible for promotion only if the incumbents who were offered promotion refuses to accept promotion. The respondents in their Page 7 of 18 8 O.A.No. 200/00133/2021 reply further submitted that change in the pattern of allocation of vacancies from vacancy based to post based has been made as a result of representation made by the Zonal Secretary, Akashwani & Doordarshan Administrative Staff association recognized association under RSA Rules of which the applicant himself is also a member. The applicant being the member of aforementioned association was well aware of the demand of his association and should have opposed the decision of his association or represented against the demand in writing to the respondent department at that time itself. Had the applicant or any of the employees or any member of the Association represented against the switch over at that time, it would have been genuine. The applicant's integrity is neither with his Association nor with the organization in which he is working. Since all other 14 zones across the country under Prasar Bharti were maintaining the post based roaster except MP, so respondent no. 5 switched over to the post based allocation pattern with due permission of respondent no. 3. The respondents further submitted that this method is more appropriate since Prasar Bharti has enforced restriction on filling up of DR posts through SSC, the recruiting agency as SSC normally sponsors candidates for appointment to the Central Government Offices, and Prasar Bharti is an autonomous body. Due to one or the other reasons, there is Page 8 of 18 9 O.A.No. 200/00133/2021 delay in conducting LDCE by fourth respondent and also non- qualifying of departmental candidates in the departmental exams led to a large number of posts of DR & DE quota remain unfilled in the cadre. This situation created the necessity to implement post based roster to fill the posts reserved for reserved categories comprising SC, ST and OBC has arisen in the department of respondents for filling up the posts of Assistants from three different modes. The organization is in the transitional phase from Central Government to Central Government Autonomous body and the applicant and others are central government employees on deemed deputation to it. The present system adopted by the respondents is in larger interest of the organization and the cadre in question and also in public interest. The respondents further submitted that this O.A. is barred by limitation as the applicant is challenging the legality and validity of order dated 12.03.2015 (Annexure A/2) without filing any application for condonation of delay and also not explained delay in filing this O.A.. It is submitted that merely filing of representation against the specific order, limitation cannot be extended hence the O.A. is filed by the applicant is liable to be dismissed in the ground of delay itself.
5. The applicant has filed rejoinder, wherein he submitted that the adoption of post based method of recruitment by the Page 9 of 18 10 O.A.No. 200/00133/2021 respondents is contrary to the law laid down by the Hon'ble Supreme Court in R N Bhatnagar (supra) and DOP&T instructions vide OM dated 03.07.1986 (Annexure A/6) and OM dated 19.01.2007 (Annexure A/13) and statutory provisions given in the Recruitment Rules (Annexure A/3). He submitted that had it been the old vacancy register (vacancy based), there would have been in all 09 vacancies of Assistant to be notified for conducting Departmental Examination for vacancy years 2011-18, but as a result of adoption of post based method of recruitment, number of vacancies reduced to 02 only and he had to suffer. He further submitted that on his transfer from AIR, Ambikapur, he joined DDK Bhopal only on 11.10.2017 and he was an ordinary member of the Association Unit of AIR, Ambikapur till then. The Zonal Secretary of the Association was posted at Bhopal and he made the representation to the respondent no. 4 on 14.11.2014. Hence, the applicant was not aware of the said representation. The Zonal Secretary misused his position by raising this demand because he also got benefit of promotion as Assistant as a result of adoption of post based recruitment method, which is apparent from promotion order dated 25.06.2015 (Annexure A/11). It was incumbent upon the respondents to examine the representation of the Zonal Secretary of the Association in the light of DOP&T instructions Page 10 of 18 11 O.A.No. 200/00133/2021 and statutory provision, but his representation was blindly accepted in an illegal and arbitrary manner. No opportunity of representing was given to the affected parties on the representation of Zonal Secretary of the Association. The applicant in his rejoinder further submitted that the respondent no. 3 was not empowered to take such a policy decision which is contrary to law laid down by the Hon'ble Supreme Court, DOP&T instructions and statutory provisions in the Recruitment Rules.
6. The respondents have also filed their additional reply, wherein they have taken their earlier stand and also submitted that applicant is an opportunist. He represented against the system of allocation only when he remained fourth in the merit list of LDCE conducted for 2 posts. The 14 zones of the organization except MP Zone shifted to the post based allocation roster as per DOP&Ts OM No. AB-14017/2/97-Estt. (RR) dated 25.05.1998. As per para 2 of the said OM "The Supreme Court in its judgment in RK Sabharwal's case has ruled in his favour of a changeover from the existing "vacancy" based reservation roster to "post"-based roster. Under the existing policy the determination of different quotas for recruitment is vacancy based. In order to comply with the aforesaid Supreme Court judgment, which has been implemented vide the DOP&T OM No. 36012/2/96-Estt (Res) dated 2nd July, 1997, it Page 11 of 18 12 O.A.No. 200/00133/2021 will be necessary to amend the existing Service Rules/Recruitment Rules under Column 11 of Annexure-1 in the DOP&T guidelines dated 18th March, 1988 to replace the words "Percentage of the 'Vacancies' to be filled by various Methods" by "Percentage of the 'posts' to be filled by various methods". They are still continuing the same. The fifth respondent switched over to it in the year 2015.
7. Counter Reply has also been filed on behalf of the respondent nos. 6 to 16, wherein they have submitted that change in pattern of allocation of vacancies from vacancy based to post based was made as a result of the representation made by the Zonal Secretary, Akashwani & Doordarshan, Administrative Staff Association recognized Association under RSA rules to which the respondent no. 6 to 16 and the applicant himself is also a member. The applicant being a member of association if not have consensus with the decision should have opposed the demand of association or represented against the demand in writing to the respondent's department at that time itself. But at that point of time, the applicant's interest was with the demand of the association. The applicant is an opportunist and wants to avail benefits by either way, hence represented against the method of allocation of posts of Assistant which is a well known fact to him. Even though the applicant is still a member of the association and holding the post Page 12 of 18 13 O.A.No. 200/00133/2021 of Unit Secretary of the Association of DDK, Bhopal Unit which is also the Capital Kendra of MP and Chhattisgarh.
8. We have heard the learned counsel for the parties and perused the pleadings and documents annexed herewith. The judgments relied upon by the counsels for both the parties are also taken into consideration.
9. The counsel for the applicant at the time of hearing relied upon the judgment of the Hon'ble Apex Court in R N Bhatnagar (supra) and also on the DOP&T OM dated 19.01.2007 (Annexure A/13). He submitted that since the applicant is being affected he can always challenge the vires of even older laws and there cannot be any ground for limitation. The applicant is not bound to agree with everything which Association has done for their interest without taking consensus of the every member of Association or keeping their interest aside, as the applicant is being subjected to loss in his career progression.
10. It is clear that the applicant is challenging the order of 2015 (Annexure A/2) in the year 2021 and there is a delay of around six years. The applicant is seeking the quashment of policy decision and this Tribunal need not to interfere with the policy decision already taken until and unless it is explicitly vitiated. Moreover the Page 13 of 18 14 O.A.No. 200/00133/2021 decision of changing the vacancy roster from vacancy based to post based is taken after due consideration of the circumstances, i.e. the demand of the association was conceded only when the respondent no. 3 saw that out of fourteen zones of the organization except MP Zone shifted to post based allocation.
11. This Tribunal in O.A. No./200/785/2015 decided on 20.01.2023 has already dealt with the matter. The relevant paragraph of the order reads as under:
"12. It is also not in dispute that the applicant was eligible for consideration for the vacancies earmarked for 2010-11 and she was allowed to take participate in the departmental examination, which was scheduled to be held on 21.01.2014. The applicant participated and secured 303 marks, whereas Shri Dilip Kumar Gupta had secured 336 marks and hence he was selected and promoted against the vacancy of 2010-11. It is only after becoming unsuccessful in the examination, the applicant has raised the grievance regarding not carrying forward the vacancy of 2003-04, which could not be filled up for want of eligible candidate irrespective of the fact that she was not having the mandate service of three years in the grade of UDC/Storekeeper. The relief sought for by the applicant as per Para 8.2 of the Original Application also reveals that the applicant is seeking promotion against the vacancy of 2003-04 for which she is not even otherwise eligible. Moreover, the respondents have categorically stated in their reply that the scheme of examination does not provide for carrying forward Page 14 of 18 15 O.A.No. 200/00133/2021 of the vacancies to the next recruitment year. Thus, in the absence of any such provision under the Recruitment Rules, the respondents cannot be compelled to carry forward the past vacancies to the subsequent year.
13. We have also gone through the order passed by the Ernakulam Bench of this Tribunal in the case of Santhosh Kumar (supra), which has been relied upon by learned counsel for the applicant and find that the applicant therein had submitted his candidature for appearing in the LDCE for the vacancy year 2001-02, 2003-04 and 2005-06 for one vacancy each, while in the instant Original Application, the applicant has submitted her candidature for appearing in the LDCE for the vacancy year 2010-11 only. Having not even applied for the departmental examination for the vacancy year 2003-04 and not participated on it, the applicant cannot said to be eligible to be considered for promotion only on the basis of result of examination for the vacancy year 2010-11. Therefore, the ratio laid down in the case of Santhosh Kumar (supra) will not be applicable to the facts and circumstances of the present case.
14. Having considered the entire documents and the material placed before us, this Tribunal is of the view that the instant Original Application lacks merit and, accordingly, the Original Application is dismissed. No order as to costs".
12. Section 21 of the Administrative Tribunals Act, 1985 (for short `the Act' ) deals with limitation for filing O.A. before this Tribunal, which reads as under:-
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"21. Limitation:- (1) A Tribunal shall not admit an application-
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where-
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court.
the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Page 16 of 18 17 O.A.No. 200/00133/2021 Tribunal that he had sufficient cause for not making the application within such period."
13. Section 21 of the Act has been considered by the Hon'ble Supreme Court in the case of Union of India & Ors. vs. M.K. Sarkar, reported in 2010 (2) SCC 58, wherein it has been said that limitation has to be counted from the date of original cause of action and stale matters should not be entertained. It has further been held that "a court or tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `stale' issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect.
14. It is clear that the applicant has approached this Tribunal after the limitation period with no convincing explanation for the delay.
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15. Even on merits, the applicant, who is member of the recognised Association was well aware about the demand of the Association for adopting post based method of recruitment instead of vacancy based method. He also appeared in the LDCE knowing the fact and there were only two vacancies occurred during the vacancy year 2014-15 and 2016-17. The applicant, after having found his name at the fourth position, started raising his grievance that the post based method adopted by the respondents is illegal. In any case, since the issue pertains to a policy decision taken by the respondents, we are not inclined to interfere in this matter.
16. Accordingly, this Original Application is dismissed as devoid of any merit as also on the ground of limitation. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
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