Central Administrative Tribunal - Delhi
Suresh Kumar Kathpalia vs M/O Personnel,Public Grievances And ... on 28 February, 2023
1
OA No. 3182/2016
Item No. 31
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3182/2016
Reserved on: 16.02.2023
Pronounced on: 28.02.2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Suresh Kumar Kathpalia
Aged about 61 years (Senior Citizen)
Retired Principal Private Secretary
From Ministry of Finance
S/o Late Shri P.C. Kathpalia
Resident of H.No. 2251/6-D/1-A
Guru Nanak Nagar
Shadi Kham Pur
New Ranjit Nagar
New Delhi - 110008
... Applicant
(By ADVOCATE : Mr. Suresh Sharma)
Versus
1. Ministry of Personnel, Public Grievances and Pensions
Through Secretary
Department of Personnel and Training
North Block, New Delhi-110001
2. Secretary
Union Public Service Commission
Dholpur House, Shahjahan Road
New Delhi-110069.
... Respondents
(By ADVOCATE: Mr. G.S. Virk)
2
OA No. 3182/2016
Item No. 31
O R D E R (ORAL)
Mr. Ashish Kalia, Member (J):
By way of filing this OA, the applicant is seeking the following main reliefs:
"(i) To declare the action of the respondents in not promoting the applicant to Senior Principal Private Secretary (Sr. PPS) in the Pay Band 3 (PB-3 Rs. 15600-39100 + Grade Pay Rs.
7600), before his superannuation on 31.10.2015, even after inclusion of his name in the Panel of Senior Principal Private Secretary (Sr. PPS) at S. No. 85 for the Select List Year 2015 for 89 vacancies approved by the UPSC as illegal, arbitrary and discriminatory.
(ii) To declare the action of promoting similarly placed empanelled officers in the Select List for 2015 as Senior Principal Private Secretary (Sr. PPS) in the Pay Band (PB-3 Rs.
15600-39100 + Grade Pay Rs. 7600) ignoring their inter se seniority and ignoring the similar treatment to the applicant as an act of hostile discrimination, violative of Article 14 and 16 of the Constitution of India.
(iii) To direct the respondents to promote the applicant as Senior Principal Private Secretary (Sr. PPS) in the Pay Band 3 (PB-3 Rs. 15600- 39100 + Grade Pay Rs. 7600), before his superannuation on 31.10.2015, with all consequential benefits including arrears of pay and seniority for next promotion."
2. The brief facts of the case as stated by the applicant in the OA are that he was initially appointed as Stenographer Grade D in the Ministry of Defence on 29.10.1977 and earned 3 OA No. 3182/2016 Item No. 31 subsequent promotions to the post of Personal Assistant and Private Secretary in the year 1984 and 1994. It is his submission that he became eligible for promotion to the post of Senior Principal Private Secretary (Sr. PPS) for the Select List of 2015 as per the provisions of Central Secretariat Stenographers' Service (Senior Principal Private Secretary) Rules, 2000 read with the relevant instructions of the Department of Personnel and Training (DoP&T) on the subject. The respondent No. 1 - DoP&T submitted proposal to Union Public Service Commission (UPSC) for preparation of panel of Sr. PPS on 30.06.2015. Subsequently on 09.07.2015, DoP&T sent recalculated 89 vacancies to UPSC for Select List-2015. The DPC recommended a panel of 89 officials for promotion to the grade of Sr. PPS for the Select List 2015 and the name of applicant appeared at Serial No. 85 out of 89 officials recommended. 13 other candidates were also recommended in the Extended Panel, to be operated in case officers in the panel were not available for promotion during the vacancy year due to Retirement/VRS/Deputation etc.
3. DPC was held on 27th and 28th of July, 2015 and on 29th July, 2015 minutes received from UPSC were examined by 4 OA No. 3182/2016 Item No. 31 DoP&T and approval was obtained for promoting three empanelled officials who were due to retire on 31.07.2015. The officials at Serial No. 43, 61 and 70 were promoted on 30.07.2015 followed by another 5 officials in September, 2015. The applicant submitted his representation on 21.09.2015 to DoP&T for promoting him in similar manner. A reminder was also submitted on 07.10.2015. However, the applicant retired on superannuation on 31.10.2015 and his representations were still pending. Ultimately, in June, 2016 his representation was decided as "without any merit".
4. Notices were issued to the respondents who put their appearance through Sh. G.S. Virk, learned counsel. Reply has been filed. Rejoinder thereto is also on record.
5. In their counter reply, the respondents have averred as under:
"The applicant was a regular PPS of CSSS cadre of the Department of Expenditure. UPSC had conducted the Departmental Promotion Committee meeting held on 27th & 28th July, 2015 for preparation of panel of Sr. PPS of CSSS for SLY-2015. After finalizing the panel, UPSC had returned the panel of 89 PPSs to DOP&T on 28th July, 2015 for promoting them as Sr. PPS for the SLY- 2015 against the 89 vacancies as forwarded by DOP&T. As per the rules, the vacancies are calculated on yearly basis with effect from 02th July, 2015 to 30th June, 2016. The applicant appeared at S.No. 85 for the 5 OA No. 3182/2016 Item No. 31 Select List Year 2015 for 89 vacancies approved by UPSC on 28th July, 2015. At the time of issuance of promotion order, there were 70 vacancies as on 01.07.2015 in the Sr. PPS grade for Select List Year 2015. Since collection of information like obtaining information from the officers concerned etc. takes time in connection with finalizing of promotion of eligible officers against these 70 vacancies, these Department had issued the promotion order of 3 officers namely Shri J.S. Ahluwalia, Shri Dharam Vir Singh and Shri Mahender K. Gaur, PPSs on 30th July, 2015 who were within the zone of aforesaid 70 vacancies and retiring on 31st July, 2015. After re-calculating the vacancies as on 02.08.2015, 72 officers were promoted as Sr. PPS for SLY-2015 vide this Department's O.M. No. 2/2/2015-CS.II(A) dated 7 August, 2015 in the aforesaid promotion order 75 officers upto Shri H.S. Vohra were considered in the panel of 89 officers. Thereafter, order in the grade of Sr. PPS had been issued on monthly basis, depending on the vacancies arising during each month during the Select List Year. Before issuing the promotion order against the vacancies during the month of August, 2015, NITI Aayog had surrendered 2 posts of Sr. PPS. As such, the total sanctioned strength in the grade of Sr. PPS/PSO was reduced and came down from 140 to 138. Since 139 Sr. PPSS/PSOs were working in CSSS uptill the month of August, 2015, 4 officers were promoted against the 5 vacancies arisen during the month of August, 2015. Accordingly, 4 officers namely Ms. Shaira A. Khan, Ms. Leela Raghvan, Ms. Geeta Dhawan and Ms. Manju Bala Saxena from Sl.No. 76 to 79 were promoted vide this Department's O.Ms. No. 2/2/2015-CS.II(A) dated 15th September, 2015. Due to retirement of 1 officer on 30th September, 2015, Shri Anuj Kumar Tripathi (S.No. 80) has been promoted vide this Department's O.Ms. No 2/2/2015-CS.II(A) dated 30th September, 2015. Keeping in view the 2 vacancies arisen due to retirement of 2 officer on 31st October, 2015, 2 officers namely Shri P.S. Bhandari and Ms. Lalitha Ramachandran from Sl.No. 81 to 82 6 OA No. 3182/2016 Item No. 31 were promoted vide this Department's O.M. No. 2/2/2015-CS.II(A) dated 2nd November, 2015. Only 82 officers from the panel of 89 officers were promoted upto 2nd November 2015. The applicant Shri S.K. Kathpalia was placed at Sl. No. 85, hence, he could not be promoted to the post of Sr. PPS as he had retired on 31st October, 2015."
6. The respondents submit that they have taken action in accordance with rules and instructions on the subject and there has been no discrimination as none of the officers whose name figured below the applicant's name in the panel was promoted prior to his retirement. Inclusion in the panel or panel (part) shall not confer any right to appointment to the grade, which is made only upon availability of regular vacancy. The applicant was not promoted for want of vacancy.
7. Heard the learned counsel for the parties, perused the record and appreciated the legal position.
8. The short question raised in the present OA is whether the applicant is eligible to be considered for the post of Senior PPS or not ?
9. It is submitted by the respondents that under the Rules, vacancies are calculated on yearly basis w.e.f. 02.07.2015 7 OA No. 3182/2016 Item No. 31 onwards. The name of the applicant appeared at Serial No. 85 for the Select List Year 2015 for 89 vacancies approved by UPSC on 28.07.2015. Promotion order of three officers were issued, who were within the zone of 70 vacancies and retiring on 31.07.2015. After recalculating the vacancies, 72 officers were promoted and up to Serial No. 75 were considered in the panel of 89 officers. Thereafter, order in the grade of Sr. PPS was being issued on monthly basis, depending on the vacancies arising during each month during the Select List Year. Before issuance of promotion order, two vacancies of Sr. PPS in the month of August, 2015 were surrendered by NITI Aayog. Thus, the total strength reduced from 140 to 138. Since 139 Sr. PPSs/PSOs were working in CSSS uptil the month of August, 2015, 4 officers were promoted against the 5 vacancies that arose during the month of August, 2015. Accordingly, 4 officers namely Ms. Shaira A. Khan, Ms. Leela Raghvan, Ms. Geeta Dhawan and Ms. Manju Bala Saxena from Sl. No. 76 to 79 were promoted on 15.09.2015. Due to retirement of one officer on 30.09.2015, one Sh. Anuj Kumar Tripathi was promoted on 30.09.2015. Similarly, due to retirement of two officers on 31.10.2015, two officers namely Sh. P.S. Bhandari 8 OA No. 3182/2016 Item No. 31 and Ms. Lalitha Ramachandran at Sl. No. 81 and 82 were promoted. Only 82 officers from the panel of 89 officers were promoted upto 02.11.2015. Since the applicant was placed at Sl. No. 85, he could not be promoted to the post of Sr. PPS as he had retired on 31.10.2015.
10. Rejoinder thereto has also been filed by the applicant. The applicant relying upon an Office Memorandum of the DoP&T stated that the applicant could be considered even after retirement when he was under the zone of consideration. To this, learned counsel for the respondents submits that the DoP&T OM states that if juniors were considered for the promotion to the next higher level, then only retired officials could be considered whereas in the present case, no single person junior to the applicant has been promoted. All who were promoted, were senior to the applicant. Thus, there is no cause of action in favour of the applicant to approach this Tribunal.
11. Reliance has also been placed by the applicant on a judgment of the Hon'ble Apex Court in the case of Mano Manu & Anr. Vs. Union of India & Ors., Civil Appeal No. 9 OA No. 3182/2016 Item No. 31 6707/2013 (arising out of Special Leave Petition (Civil) No. 26967/2011) where it is stated that names can be recommended for available vacancies. Paras 17 and 19 of the said judgment read as under:
"17. This Court in Sandeep Singh vs. State of Haryana & Anr. (2002) 10 SCC 549 commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S. Hooda & Ors. Vs. State of Haryana & Anr. AIR 1999 SC 1701, 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates for reasons of the non-appointment of some of the candidates and they ought to have been appointed if they come within the range of selection.
XXX XXX XXX
19. We are, therefore, of the opinion in the facts of the present case, the decision of UPSC in forwarding three names against requisition of DoP&T for six vacancies was inappropriate. We, accordingly, allow the present appeal; set aside the order of the High Court as well as Tribunal and issue Mandamus to the UPSC to forward the names of next three candidates to the DoP&T for appointment to the post of Section Officer's Grade.
They shall get the seniority from the date when Rajesh Kumar Yadav was appointed to the said post. Their pay shall notionally be fixed, without any arrears of the pay and other allowances."
12. Learned counsel for the applicant adraws our attention to the rejoinder to submit that two posts were surrendered by the NITI Aayog which would be effective from the dates of retirement of two Sr. PPSs i.e. 29.02.2016 and 31.05.2016. The relevant portion of the same is reproduced below: 10 OA No. 3182/2016 Item No. 31
Date Event Result
20.1.2016 Niti Ayog replied all the 4 Sr. PPSs were in Accordingly two
Reply of Niti position and 2 posts surrendered would be vacancies still
Ayog to DOPT effective from the dates of retirement of 2 available as on
SrPPSs viz. 29.2.2016 and 31.5.2016 - hence 31.10.2015.
then only 2 posts will result in surrender of 2 posts.
19.4.2016 No. of SrPPS working on co-teminus basis to 2 vacancies (RTI reply by other Departments/Ministries. DOPT) DOPT OM dt. 15.5.2007 long term deputation should be taken into account 19.4.2016 No. of vacancies of SrPPS encadered into CSSS 2 vacancies as on (RTI reply by on the strength of CIC on 1.1.2015 but could not 31.10.2015. DOPT) be considered since annulment of their RRs could not be done for six months till 26.6.2015.
13. However, learned counsel for the respondents categorically stated that they have filled up vacancies as and when they were available due to retirement. They took action in accordance with rules and instructions on the subject and there was no discrimination against the applicant. The representation made by him was also without any merit.
14. In view of the narration above, this Tribunal is of the view that the applicant has not been able to make out a case that he should have been considered even after retirement. We do not find any merit in the OA and the same is liable to be dismissed. Hence, dismissed. No costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
/NS/