Central Administrative Tribunal - Delhi
Rajeev Srivastava vs National Technical Research ... on 8 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2807/2014 New Delhi this the 8th day of May, 2015 Honble Mr. G. George Paracken, Member (J) Honble Mr. P.K. Basu, Member (A) 1. Rajeev Srivastava, (age 33 years) S/o Shri R.P.Srivastava R/o Flat No.8, Plot 886, Mansarovar Apartment Ward No.8, Mehrauli, Delhi 2. K.Vijay Kumar, (age 36 years) S/o Shri K.Durga Prasada Rao R/o Qtr. No.306, NTRO Campus, Kodki Road Bhuj, Gujarat 370 001 3. Ram Swaroop, (Age 51 years) S/o Shri Vijya Pal Sing Aged about 51 years R/o Qtr. No.242, Sector-3, R.K.Puram New Delhi 4. Joshy Paulose, (age 35 years) S/o Shri V.K.Paulose R/o 692 Pocket I, Radhika Apartment Sec-14, Dwarka Delhi 5. Nitin, (age 36 years) S/o Shri Sushil Kumar R/o FU-31, Ground Floor, Pitampura Delhi 34 6. Swati Ohri, (age 33 years) W/o Shri Saurabh Chawla R/o 6/2D, DIZ Area, Sec-II, New Delhi 7. Mukesh Kumar Gautam, (age 32 years) S/o Shri N.P.Gautam R/o 182/3, Mehrauli, New Delhi 8. Vaibhav Agarwal, (age 36 years) S/o Shri Veer Shivaji R/o II C55, Nehru Nagar Ghaziabad, U.P. 9. Nadeem Alam, (age 33 years) S/o Shri Afzal Alam R/o H.No.667/D, Rehmat Nagar Muzaffar Nagar, UP 10. Rohit Koul, (age 32 years) S/o Shri C.L.Koul R/o H.No.401, Ravi Tower, Vaishali Ghaziabad, U.P. 11. Rahul Bhatnagar, (age 31 years) S/o Shri N.K.Bhatnagar R/o H.No.70, Sultanpur Colony New Delhi 30 12. Ramesh Kumar, (age 33 years) S/o Shri Hari Ram R/o 423, Sec-11D Faridabad, Haryana 13. Madhu Bala Sharma, (age-33 years) D/o Late Shri K.D.Sharma R/o C-628, Sarojini Nagar, New Delhi 14. Akshay, (age 31 years) S/o Shri O.C.Bhardwaj R/o A/603, Plot No.15, Sec.5, Himachal Dauladar Housing Society, Dwarka New Delhi. 15. Jitendra Singh Rana, (age 34 years) S/o Shri Anand Singh Rana R/o O.F.Estate, IDS/19/292 Murad Nagar, Ghaziabad, UP 16. Shivani Gupta, (age 35 years) W/o Shri Amit Gupta F-1, Scientist Hostel, NTRO Campus Aya Nagar, New Delhi 17. Vibha Saxena, (age 32 years) W/o Shri Rajat Saxena R/o 95 Bank Vihar, Pitampura, New Delhi 18. Sandeep Yagnik, (age 46 years) S/o Shri C.S.Yagnik R/o Qtr. No.71, Sec-1, Type III, Sadiq Nagar New Delhi 19. Sarvjeet, (age 32 years) S/o Shri Ram Phal R/o 484/407, G.No.15G, Shiv Puri West Sagarpur, New Delhi 20. Sudha Verma, (age 32 years) W/o Shri Jatin Verma R/o X/1384, Street No.4, Rajghad Colony Gandhinagar, Delhi 21. Rekha Saraswat, (age 26 years) W/o Shri Manish Saraswat R/o 25-R, Sector-4, Pushpvihar, New Delhi 22. Sanjay Mukhopadhyay, (age 49 years) S/o late Shri K.B.Mukhopadhyay R/o Plot No.237/F, UG-2, Shalimar Garden Ext-1, Sahibabad, Ghaziabad, U.P. 23. Ranjana Rawat, (age 27 years) D/o Shri Anand Singh Rawat R/o H.No.52, Sec-1, Sadiq Nagar, New Delhi 24. Ashdeep, (age 28 years) S/o Shri Ramkala R/o Flat No.302, Building No.672 Ghitorni, New Delhi 25. Vipin Kumar Singh, (age 33 years) S/o Shri Rama Nand Singh R/o Room No.407, Birkha Ram Complex D 96, Munirka, Opp Community Centre New Delhi 110 067 . Applicants (By Advocate: Shri M.K.Bhardwaj) VERSUS National Technical Research Organization (NTRO) through: 1. The Chairman, NTRO Government of India Block -3, Old JNU Campus New Delhi 110 067 2. Controller of Administration, NTRO Government of India Block-3, Old JNU Campus New Delhi 110 067 3. Director (Estt. & Pers.) NTRO Government of India Block 3, Old JNU Campus New Delhi 110 067 . Respondents (By Advocate: Shri Rajesh Katyal) ORDER
Mr. P.K. Basu, Member (A) National Technical Research Organization (NTRO) was created in the year 2004 as a Technical Intelligence Organization. The applicants in this OA were appointed to the post of Technical Assistant in the year 2005, 2006 and 2008. According to the Recruitment Rules (RRs) notified vide notification dated 14.11.2011 for NTRO, the posts of Technical Officer Grade `A (PB-2, Grade Pay Rs.4600/-) should be filled up to 80% by promotion failing which by deputation and 20% by deputation or re-employment/ absorption. Technical Assistant with five years of regular service in the grade is eligible for promotion. According to the applicants, they were thus eligible for promotion as Technical Officer Grade `A in the years 2010, 2011 and 2013. Though the organization was created in 2004, the respondents could finalize the seniority list of Technical Assistants only after a delay of eight years and circulated it vide order dated 26.12.2013. Further, even after circulation of seniority list, the DPC was not convened for seven months. The grievance of the applicants is that instead of convening DPC for their promotion, the respondents advertised the vacant posts of Technical Officer along with other posts of scientific cadre in NTRO in the Employment News dated 14-20 July, 2012 for selection on deputation/ absorption/ re-employment. The applicants, being aggrieved, made representations dated 24.07.2012 and 3.12.2013 to the respondents to consider them for promotion to the post of Technical Officer on completion of five years of regular service as Technical Assistant. Instead of redressing their grievance, the applicants allege that NTRO issued letter dated 3.09.2012 informing that as per approved RRs, residency period for promotion from Technical Assistant to the next higher grade is five years of regular service. Further, promotion of eligible Technical Assistants will be processed shortly on finalization of their seniority list. Another letter dated 13.08.2013 was also issued stating as follows:
2. The work regarding probation clearance/ confirmation, finalization and issue of seniority lists and promotions has been taken up and would be finalized in due course. Due to various reasons in the past, the work in these fields could not be progressed at the desired pace. However, necessary action to clear the backlog has now been initiated.
3. In view of the above, Center Directors/ Corporate Directors are requested to inform all the personnel working under them.
2. The first argument advanced on behalf of the applicants is that OMs dated 8.09.1998, 14.12.2000, 11.03.2011 and 25.03.2011 stipulate the guidelines to be followed by the DPC while considering promotion. There was clear violation of these guidelines as the time frame laid down for holding DPCs was not followed and, therefore, it was the departments fault that they did not finalize the draft seniority and did not hold DPCs and that for this negligence and mistake on the part of the respondents, the applicants cannot be made to suffer. In this regard, the learned counsel relied on the judgment of the Honble High Court of Delhi in W.P. (C) No.7423/2013, Govt. of NCT of Delhi and ors. Vs. Shri Rakesh Beniwal and ors., in particular to the following portion of the order:
24. ..The Supreme Court in Kusheshwar Prasad Singh v. State of Bihar & Ors. (2007) 11 SCC 447 held, 13. it is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, a wrong doer ought not to be permitted to make a profit out of his own wrong.
25. The maxim has been interpreted by the Apex Court in Mrutunjay Pani & Anr. v. Narmada Bala Sasmal & Anr. [1962] 1 SCR 290 wherein it was held that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. Further in Union of India & Ors. v. Major General Madan Lal Yadav (Retd.) [1996] 3 SCR 785 it was observed, In Broom's Legal Maxims(10th Edn.) p. 191 wherein it was stated;
...it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.
26. .The Supreme Court has observed in this regard in the matter of Baij Nath Sharma v. Honble Rajasthan High Court at Jodhpur,1988 SCC (L&S) 1754, But here the appellant has been deprived of his promotion without any fault of his. High Court said that it might be sad state of affairs that the name of the appellant was not considered for promotion till he retired. High Court may feel anguish but it gives no comfort to the appellant. At least for future such an unfortunate thing should not happen to any other officer similarly situated. This malaise which abysmally afflicts any service when there is recruitment from different sources when there is recruitment from different sources crops up in the one form or the other with great disadvantage of one or the other. But then service is not constituted merely for the benefit of the officers in the service but with a certain purpose in view and in the present case for dispensing justice to the public at large.
3. The applicants have also relied upon the judgment of the Honble High Court of Delhi in W.P. (C) 5549/2007, Dr. Sahadeva Singh Vs. UOI and ors., where the Honble High Court allowed promotion to the applicant from an earlier date viz. 1.01.2005 whereas he was actually promoted from 26.06.2006, to emphasize the issue that promotion from the date of vacancy has been upheld in this judgment and, therefore, the applicants in the instant case should be given promotion from the date it was due. It is in this background that the applicants have sought the following reliefs:
(i) Declare the action of the respondents in not holding timely DPCs for the post of Technical Officer for the year 2009, 2010 and 2012 as illegal and direct the respondents to hold DPCs for the aforesaid years to consider the case of the applicants for promotion, without any delay.
(ii) Direct the respondents to consider and grant promotion to the post of Technical Officer as per their respective due dates with all consequential benefits including arrears of pay and allowances and interest @ 12%.
4. The respondents state that NTRO is a new organization. The national security concerns having been accorded immediate and overriding priority in the aftermath of creation of the organization, actions on certain issues such as those pertaining to timely formulation of the Recruitment Rules for various cadres, finalization of seniority lists of officials who joined from diverse streams of organization, sorting out amalgamation issues taking into consideration the grievances and representations of the employees and installing proper cadre structures etc. could not be taken up earlier and finalized. However, efforts were made by the organization to correct the position and Recruitment Rules (RRs) were framed and circulated and the DPC was constituted by the competent authority on 14.10.2014 to consider the cases of eligible staff of Technical Cadre and make appropriate recommendations. In fact, vide order dated 30.12.2014, twenty of the applicants have been promoted to the post/ grade of Technical Officer and the respondents assure that remaining five applicants will be considered for promotion to the post of Technical Officer, in due course, subject to their eligibility and availability of vacancies. The respondents further submit that Ministry of Finance, Department of Expenditure has as part of Economic Measures and Rationalization of Expenditure vide OM No.7(2)/E.Coord/2013 dated 18.09.2013 decided that the posts that have remained vacant for more than a year are not to be revived except under very rare and unavoidable circumstances and after seeking clearance of Department of Expenditure. These instructions are also being followed in respect of posts to be filled up by promotion and accordingly clearance of Department of Expenditure is being sought on a case to case basis having scrupulous regard to the needs of the organization as well as the urgency involved in filling up these posts.
5. The respondents also relied on the order of this Tribunal in OA 833/2013, Sh. Nirmal Chandra Bhuyan Vs. Union of India and others. The applicant in the cited case was Administrative Officer in PB-3 with Grade Pay of Rs.5400/- and his grievance was that without considering him for promotion to the post of Assistant Director (Admn) in PB-3 with Grade Pay of Rs.6600/-, the respondents had advertized for filling up three posts of Assistant Director on deputation basis. The OA had been filed, inter alia, with the prayer to give him promotion to the post of Assistant Director (Admn) with effect from 18.10.2011 i.e. the date he completed five years of regular service. The OA was partly allowed directing the respondents to count his deputation period as Administrative Officer as eligible service for promotion. However, his claim for retrospective promotion was rejected. In its decision, the Tribunal relied upon DoP&T OM dated 10.04.1989 and the judgment of the Honble Supreme Court in Nirmal Chandra Sinha Vs. UOI, 2008 (14) SCC 29, where it has been categorically held that promotions take effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post.
6. The respondents further point out that in DoP&T OM dated 9.04.1996, in para 6.4.4., the following is provided:
6.4.4 Promotions only prospective While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s). Reliance was further placed on the judgment of the Honble High Court of Delhi in W.P. (C) 1188-90/2005, Union of India & ors. Vs. Vijender Singh and others with connected cases where the Honble High Court held as follows:
42. It is pertinent to note that in a recent judgment reported as Nirmal Chandra Sinha Vs. Union of India (UOI) & Ors. 2008 (14) SCC 29, with reference to the decision in K.K. Vaderas case (supra) the Supreme Court re-emphasized that in the absence of a rule permitting to the contrary, no person can claim promotion or appointment from the date when vacancy arose. It was held that benefits of promotion/appointment are the ones which flow after the person is born on the cadre. We may note that certain observations of the Supreme Court in the decision reported as UOI vs. B.S.Aggarwal 1997 (8) SCC 89 which tend to show to the contrary were explained, in para 9 of the decision in Nirmal Chandra Sinhas case (supra) as being given on the special circumstances of that case and on humanitarian considerations. The Supreme Court categorically held that the said decision cannot be said to be a precedent laying down any special law.
43. It is thus apparent that service jurisprudence does not recognize the jurisprudential concept of deemed retrospective promotion and unless there exists a rule or there exists a residual power and in exercise of the implementation of the rule or in exercise of power conferred by the residual rule a decision is taken or can be taken to grant retrospective promotion, no person can claim a right to be promoted from the date when the vacancy accrued and he must take the promotion with its benefits from the date of actual promotion.
7. The learned counsel for the applicants, in his written statement, has stated that judgment in OA No.833/2013 in the case of Nirmal Chandra Bhuyan (supra) is distinguishable as in the said case, the Tribunal found that the promotion was not denied for wrongful reasons and the delay in promotion has not caused any loss to the employee being the only person in the cadre. It is argued that in fact, the said judgment helps the applicant as in para 13 it has been held:
Retrospective promotion can, however, be given under certain situations in which the claim of a person get wrongly disregarded or if it becomes necessary to grant retrospective promotion to prevent injustice to that person in the matter of seniority with respect to others coming from a different stream. It is argued that in case of applicants, the denial of promotion from due date i.e. 2010 to 2012 would affect their seniority in respect of other persons who have joined under direct recruitment quota (20%) in 2013.
8. Further, it is argued that so far as judgment in Vijender Singh (supra) is concerned, the said judgment is not even remotely concerned with the issue raised by the applicants as in the said judgment, the Honble High Court was dealing with an issue of promotion under Limited Departmental Competitive Examination and it was specifically said in para 40 that promotee can claim promotion from retrospective effect, but not direct recruitment. The LDCE is also virtually a form of direct recruitment as the promotions are made after passing departmental examination.
9. The applicants also brought up the issue that by denying promotion to them and filling up direct recruitment quota, the respondents have violated Articles 14 and 16 of the Constitution of India and in this regard, they relied upon the judgment of the Honble Supreme Court in Union of India Vs. N.R. Parmar, 2012 (11) SCALE 437 where it has been held that the promotion should be made strictly as per the quota and the employee should not be made to suffer for delay in making appointment. The appointments to the post of Technical Officers are made by way of promotion as well as direct recruitment. The respondents made direct recruitment, but did not hold DPC which takes not more than 5 to 10 days.
10. We have heard learned counsel for the parties, gone through the pleadings on record and perused the judgments cited by either side.
11. The basic question to be decided is whether the applicants are entitled to promotion from the date they had completed five years service or from the actual date of promotion, which the respondents have done.
12. The applicants main apprehension is that in case direct recruits are inducted before they are promoted, they would lose seniority and since the condition for deputation/ re-employment/ absorption is also five years, those with lesser number of years of service would become senior to the applicants.
13. Before we take up that issue, we would like to make it clear that there is quota fixed for promotion and lateral entry. The allegation is not that lateral entry people would take up the promotion quota. Therefore, in our view, this is not an issue and to that extent, we feel that the judgment in Rakesh Beniwal (supra) is not relevant as there has been no deliberate wrong committed by the respondents. NTRO was a new organization and it took time for the respondents to finalize the seniority lists, RRs etc. as employees had been taken from various streams and as soon as they were able to complete the task, they have taken steps and, in fact, 20 out of 25 applicants have already been promoted.
14. As regards promotion from the date of eligibility, it is clear that the Honble Supreme Court in Nirmal Chandra Sinha (supra) has laid down the ratio and the Honble High Courts judgment in Dr. Sahadeva Singh (supra) would not alter that position. We are also of the opinion that in Vijender Singh (supra), while the facts may be different, the principle of law has been laid down in para 42 and 43, which is basically what has been laid down by the Honble Supreme Court in Nirmal Chandra Sinha (supra). Similarly, in Nirmal Chandra Bhuyan (supra), again the benefit of retrospective promotion was not given to the applicant relying on same Nirmal Chandra Sinhas case (supra). There is no doubt that the judgment of the Honble Supreme Court will prevail over the judgments of the lower Courts and, therefore, the principle laid down that no person can claim promotion from the date the vacancy arose would prevail.
15. The prayer of the applicants being against the settled legal principles, the OA cannot be allowed. It is, therefore, dismissed. No costs.
( P.K. Basu ) ( G. George Paracken ) Member (A) Member (J) /dkm/