Central Administrative Tribunal - Chandigarh
Unknown vs Indian Council Of Agricultural ... on 29 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH. O.A.NO.903-HR-2010 Decided on : 29.10.2010 CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (J) AND HONBLE MRS. PROMILLA ISSAR, MEMBER (A). Mrs. Neerja Kaul wife of Shri Vinod Kaul, aged 36 years, working as LDC in the office of Director, National Bureau of Animal Genetic Resources, Karnal. . Applicant By: Mr. Jagdeep Jaswal, Advocate for Mr. D.R.Sharma, Advocate. Versus 1. Indian Council of Agricultural Research, Krishi Bhawan, New Delhi through its Secretary 2. The Director General, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi. 3. The Director, National Bureau of Animal Genetic Resources, Karnal. Respondents By : Mr. R.K.Sharma, Advocate. ORDER (ORAL)
HONBLE MRS.SHYAMA DOGRA, MEMBER (J) The facts as projected by the applicant are that she was initially appointed as a Supporting Staff Attendant Grade-I vide order dated 23.10.2000 (Annexure A-4). The next promotion from the post of SSA Attendant Grade-I is to the post of Lower Division Clerk (LDC) which is governed by Recruitment Rules issued vide letter dated 29.9.2005 (Annexure A-5), according to which 50% posts are to be filled up by way for direct recruitment; 30% by way for Limited Departmental Competitive Examination and remaining 20% are to be filled-up by way of seniority from amongst Group D employees. The criteria for promotion under the seniority basis is that the post is to be filled up on the basis of fitness of eligible persons from amongst Group D employees who are matriculates and have rendered minimum 5 years of continuous service. The persons so promoted are required to qualify in a typing-test with a minimum peed of 30 WPM in English and 25 WPM in Hindi within a period of one year from the date of their appointment. The applicant was considered by the DPC for promotion to the post of LDC on 28.7.2006 and she was promoted vide order dated 4.8.2006 (Annexure A-7) in pursuance of the recommendations of the DPC dated 28.7.2006 (Annexure A-6).
2. One Shri Shiv Chander, who was senior to the applicant as Group D employee but was not having experience of five years on that post, after acquiring qualification of Matriculation, made a representation against the promotion of the applicant. It was considered by Respondent No. 1 and vide order dated 23.7.2007, Annexure A-9, respondent no. 1 decided that executive instructions cannot over-ride the provisions of the Rules and a direction was issued to Respondent No. 3 to review the matter.
3. It is claimed by the applicant that the executive Instructions considered by the DPC were in accordance with the recruitment rules. Respondent no. 1 directed Respondent No. 3 on 27.9.2007 (Annexure A-9) to issue a show cause notice to the applicant as to why she may not be reverted from the post of LDC. The Review DPC was constituted and it held its meeting on 5.10.2007 and then again on 23.6.2008 but declined to review the earlier recommendations made by it. The intimation about this decision was sent to Respondent no. 1 vide letter dated 5.7.2008 (Annexure A-11). Respondent No. 1 again directed respondent no. 3 to review the matter vide order dated 28.7.2008 (Annexure A-12). Respondent No. 1 also issued a letter dated 1.8.2008 (Annexure A-13) that seniority list of SSAs and their eligibility for further promotion was to be considered as per Circular dated 14.7.1997 (Annexure A-14) and the requisite experience has to be counted only from the date one acquires the necessary minimum educational qualification as per the rules. It was, however, further clarified that the cases already decided may not be re-opened. It is stated by the applicant that the promotion granted to the applicant was also as per circular dated 14.7.1997 inasmuch as by virtue of this, the candidature of the person senior to the applicant was not considered, paving the way for promotion of the applicant. Therefore, as per the letter dated 11.8.2008, the case of the applicant could not be re-opened or reviewed. This fact was intimated by Respondent no. 3 to respondent no.1 vide letter dated 8/9.9.2008 (Annexure A-15). Respondent No. 1, vide letter dated 10.10.2008 (Annexure A-16), informed respondent no. 3 that letter dated 14.7.1997 was applicable to the Technical Staff only and it was not to be applied for promotion to the post of LDC and as such the promotion of the applicant was erroneous. Thereafter, a notice dated 29.8.2009 was issued to the applicant to show cause as to why she may not be reverted to the post of Supporting Staff. The applicant submitted a representation dated 11.9.2009 (Annexure A-2) against the show cause notice. However, Respondent no. 1 reiterated his earlier stand vide letter dated 20.5.2010 (Annexure A-3) that promotion of the applicant was erroneous.
4. The applicant then filed O.A.No. 647-HR-2010 before this Tribunal which was disposed of with a direction to the respondents to take a final decision on the representation of the applicant by giving her an opportunity of personal hearing also. After communicating to her the final decision, she was not to be reverted for 10 days so that she could avail of any remedy available to her. Copy of the order dated 5.8.2010 is as at Annexure A-17. The applicant was given a personal hearing on 3.9.2010 and thereafter the order dated 9.10.2010 (Annexure A-1) was passed by the respondents reverting the applicant to the post of Supporting Staff.
5. The claim of the applicant is that various pleas taken by her in reply to the show cause notice have not been considered by the authorities and as such the impugned order is illegal. She also claims that she has also not been granted increments due to her w.e.f. July, 2007.
6. On the basis of various grounds taken in para 5 of the Original Application, the applicant has prayed for quashing the impugned order dated 9.10.2010 (Annexure A-1) and order dated 20.5.2010 (Annexure A-3) with a direction to allow the applicant to work against the post of LDC and release to her the annual increments w.e.f. July, 2007. She has also claimed benefit of instructions dated 14.7.1997.
7. We have heard the learned counsel for the applicant at length and also learned counsel for the respondents and O.A. is being disposed of at admission stage itself.
8. The issue in this case is a very short one. Admittedly, the applicant was appointed as SS Attendant on 23.10.2000 whereas Shri Shiv Chander SS Gr. I had joined as such on 11.3.1987. Definitely he was senior to the applicant. However, he qualified the Matriculation qualification in 2002. Under the rules, 20% of the posts of LDC are to be filled up from amongst Group D employees with qualification of Matriculation and five years experience. Annexure A-14 is a Circular dated 14.7.1997 which provides that the experience in the relevant field for promotion to grade T-1 of Technical Services in Category-I shall mean the experience in the relevant field gained after acquiring the qualification of Matriculation or other academic/professional qualification for the relevant functional group. The DPC held its meeting on 28.7.2006. However, the case of Shri Shiv Chander was not considered on the ground that he had acquired the Matriculation qualification in 2002 and as such his experience is to be counted only from 2002 onwards and as such he was ignored for promotion and resultantly the case of the applicant was approved for promotion as LDC. Immediately thereafter, Shi Shiv Chander submitted a representation for review of the matter on the ground that there is no provision in the rules for counting of the experience of 5 years only after one acquires the qualification of Matriculation.
9. The instructions dated 14.7.1997 came to be considered by C.A.T. Jodhpur Bench, which held that the executive instructions cannot over ride the provisions of the recruitment rules. Therefore, since there is no provision in the recruitment rules to count experience from the date of acquiring matriculation qualification, the administrative instructions issued by the Council on 14.7.21997 have ceased to operate and are not valid. Secondly, the said provision has been withdrawn vide letter dated 11.8.2008 with the stipulation that cases already settled are not to be reopened. In fact the instructions dated 14.07.1997 related to the technical category only and not to the clerical category and as such could not be applied to the category of the applicant. The grouse of the applicant is that respondents are supporting the instructions dated 14.7.1997 in some other cases whereas the same have been withdrawn in her case. She claims that it was applicable to the category of the applicant also and as such she was rightly promoted ignoring the person who was not having the requisite experience after acquiring the qualification of matriculation.
10. Learned counsel for the respondents has placed reliance on a decision in the case of A. K. Raghumani Singh & Others Vs. Gopal Chander Nath & others, JT 2000 (4) SC 333 in which it was held that the Court would not be justified in reading a qualification into the conjunctive word and imply the word subsequent after the word with. Even on a point of principle it would be unreasonable to distinguish between the nature of regular service required, as if the service in the grade subsequent to the obtaining of the necessary educational qualifications were qualitatively different from the service in the grade prior thereto. It has been further held that the language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be considered for promotion, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose of giving an incentive to the employee to acquire higher educational qualification. This judgment clearly supports the stand of the respondents that the experience, in terms of the recruitment rules in this case, could not be counted only after acquiring qualification of matriculation.
11. We have considered the matter carefully. From the material available on record in which various notings / letters issued by the respondents have also been placed on record, it can easily be said that it was due to over-sight that the claim of a senior person was not considered by the DPC or one can say it was due to application of instructions dated 14.7.1997 which were not applicable in the case of the applicant, thereby resulting in an error. Obviously, it was a mistake committed by the DPC and it was corrected by the authorities after issuing show cause notice to the applicant. It is a well settled proposition of law that an administrative error can be corrected by the authorities at any point of time. The respondents have corrected an error by reverting the applicant with a view to promote a person who had a prior right of consideration and promotion. Thus, the claim of the applicant cannot be allowed. It is well settled law that a Writ or order cannot be issued if the effect of issuing a writ would be to sustain or restore an illegal order as held in AIR 1966 SC 828 (Venkateswara v. Government of Andhra Pradesh). It was held that no rights or status can accrue from an order made by an authority not legally competent to make as held in the case reported as AIR 1964 SC 521 (State of Punjab v. Jagdip Singh), wherein the Honble Supreme Court observed that where an appointment/promotion is made in contravention of the statutory rules or by an authority not competent to make it or the irregularity in making it goes to the very root, there is no legal foundation of the order and no rights are created. Moreover, an administrative error can always be corrected in view of the law laid down in Ram Awadh Prasad v. Union of India, SCJ 1987 (3) CAT 48, where it was observed that "it is well accepted maxim of law that an administrative error can always be corrected; this can be done without giving opportunity to show cause etc., if the order has not been carried out or it has not resulted in accruing any legal right". Thus, keeping in view the legal position above, we are of the view that impugned order, Annexure A-1 needs no interference as the same is found to be fully supported with reasons and is, therefore, upheld.
12. In view of the above discussion, we do not find any case made out by the applicant and as such the original Application is dismissed in limine. No costs.
(PROMILLA ISSAR) (MRS.SHYAMA DOGRA) MEMBER (A) MEMBER (J) Place: Chandigarh. Dated: 29.10.2010 HC* - 8 - (O.A.NO.903-HR-2010) Neerja Koul V. UOI etc.