Central Administrative Tribunal - Delhi
Assistant In The Aviation Research ... vs Director General (Security) on 11 March, 2011
Central Administrative Tribunal Principal Bench O.A.No.3246/2010 New Delhi, this the 11th day of March, 2011 Honble Shri Justice Shiv Charan Sharma, Member (J) Honble Shri Shailendra Pandey, Member (A) Sukesh Kumar Nayak s/o Sh. Raja Kishore Nayak aged about 40 years r/o E-309, M.S.Apartment, K.G.Marg New Delhi. And employed as Assistant in the Aviation Research Center D.G. (Security) Cabinet Secretariat East Block V R.K.Puram New Delhi 110 066. Applicant (By Advocate: Shri Ms. Aarti Mahajan Sheha) Versus Director General (Security) Cabinet Secretariat Bikaner House Annexe New Delhi. Special Secretary Aviation Research Center East Block V, R.K.Puram New Delhi 110 066. Secretary Department of Personnel and Training North Block New Delhi. Mr. Neeraj Section Officer Pers-III, Aviation Research Center Directorate General of Security Cabinet Secretariat East Block V, R.K.Puram New Delhi. Respondents (By Advocate: Sh. Rajinder Nischal with Sm Ashish Nischal for Respondents No.1 to 3 and none for Respondent No.4) O R D E R By Shailendra Pandey, Member (A):
In this OA, the applicant has challenged the order dated 23.06.2010 whereby his representations dated 27.01.2010, 3.2.2010, 25.05.2010 and 4.6.2010, made for grant of promotion to the post of Section Officer with effect from an appropriate date, have been rejected. He also challenged the order dated 1.07.2010 whereby the Respondent No.4 has been promoted to the post of Section Officer on the basis of Limited Departmental Competitive Examination (LDCE).
2. The brief facts of the case, as set out in the OA, are that the applicant joined the Aviation Research Center (ARC) as an Assistant on 11.03.1996 and is continuing in the same post for nearly 15 years and his name in the seniority list of Assistants in the ARC as on 15.8.2009 (Annexure A3) appears at Sl. No.3. The next higher post in the cadre is that of Section Officer. The mode of filling up the posts of Section Officers as prescribed in the existing Recruitment Rules is (i) 50% by promotion and (ii) 50% by limited departmental competitive examination. It is stated that as per the dicta laid down by the Honble Supreme Court in State Government of Punjab and Ors. v. Dr. R.N.Bhatnagar and Anr., AIR 1999 SC 647, when posts in a cadre are to be filled up from two different sources, i.e., promotion and LDCE, the vacancy based roster has to be applied i.e. the ratio specified in the Recruitment Rules, is to be applied to the vacancies and not to the posts. The DoPTs OM dated 19.01.2007 also clarifies that when Recruitment Rules prescribe recruitment from two different sources (promotion and deputation or promotion and direct recruitment or promotion and LDCE) the vacancies have to be filled up following the vacancy based roster. In the present case, therefore, the vacancy based roster would have to be applied. It is stated that as per the OM of 19.01.2007, the respondents are bound to follow the vacancy based roster for filling up all vacancies of Section Officer w.e.f. the date of issuance of the said OM, i.e., 19.01.2007 (as past cases were not to be reopened).
3. It is stated that the incumbency roster of Section Officer in ARC reveals that after issue of DoPT OM dated 19.01.2007, four vacancies of SO have been filled up as follows:
1st vacancy (filled on 14.02.2007) - by promotion
2nd vacancy (filled on 16.04.2007) - by LDCE
3rd vacancy (SHOULD HAVE BEEN BY PROMOTION) - by LDCE
4th vacancy - by promotion
(thus compensating for the error in the
3rd vacancy being filled by LDCE)
Thus, in accordance with the vacancy based roster, the 5th, 6th and 7th vacancies which would constitute the three vacancies for the vacancy year 2010-2011 should have been filled as under:
1st vacancy (that arose on 1.7.2010) - by Promotion 2nd vacancy (that arose on 1.2.2011) - by LDCE 3rd vacancy (that arose on 31.1.2011)- by Promotion However, according to the applicant, the respondents have filled up the 1st vacancy of the year 2010-2011 which arose on 1.7.2010 by LDCE (instead of promotion).
4. It is the case of the applicant that filling up of the first vacancy of the year 2010-2011 by Respondent No.4 through LDCE is in clear violation of the DoPTs OM dated 19.1.2007 that prescribes applying of the vacancy based roster, and is also in violation of the DoPTs OM dated 24.03.2009 regarding the minimum qualifying service for eligibility for promotion through LDCE from Assistant to Section Officer.
5. It is stated, in this connection, that although as per the Recruitment Rules, the requisite years of qualifying service for promotion (either normal or through LDCE) from Assistant to Section Officer are 3 years, however, consequent upon the implementation of the Sixth Pay Commissions recommendations [issued vide DOPTs OM dated 24.03.2009] the minimum prescribed qualifying service for promotion from one grade pay to the other was made as 6 years. It is further stated that in the said OM although it was specifically stated that appropriate action to update the service/recruitment rules of organized Group `A, `B services, etc. shall also be taken up with DoPT and UPSC within a period of six months, the respondents have not finalized the same till date. Hence, it is contended that the minimum service required for promotion from the post of Assistant to the post of Section Officer requires 6 years in the feeder cadre, but that on 10.12.2009 the respondents issued a circular to hold a LDCE for filling up of two anticipated vacancies of SO, in which it was mentioned that Assistants having 3 years regular service as on 1.1.2010 would be eligible to appear. Aggrieved by this wrong action, the applicant had made a representation on 18.12.2009 to the respondents to follow the instructions of the DoPTs OM dated 24.3.2009 and also requested the respondents through several subsequent representations to fill the posts by way of promotion but to no avail, and instead the respondents have given reply vide their Memorandum dated 23.06.2010 (Annexure A1), which is the order impugned in the present OA. The applicant has also challenged the order dated 1.7.2010 promoting Respondent No.4 as the vacancy that occurred on 1.7.2010 should have been filled through promotion and not by way of LDCE, and also as Respondent No.4 did not meet the eligibility requirement of 6 years that was necessary consequent to implementation of the Sixth Pay Commissions recommendations. He has sought, in the present OA, the following reliefs:
quash the reply dated 23.06.2010 issued to the applicant by the respondent department rejecting the contentions raised in his representations dated 27.1.2010, 3.2.2010, 25.5.2010 and 4.6.2010. quash the order dated 1.7.2010 promoting respondent No.4 as SO against the vacancy arising on 1.7.2010 through LDCE. Direct the respondents to fill up the resultant vacancy of SO as well as the subsequent vacancies of SO arising in the ARC (Secretarial) Service by following the vacancy based roster in accordance with the law as laid down by the Honble Supreme Court of India and also in accordance with the DoPT OM dated 19.01.2007. Direct the respondents to fill up the LDCE quota vacancies in the post of SO in ARC (Secretarial) Service arising in the Vacancy year 2010-2011 and also in subsequent vacancy years in accordance with the DoPT OM dated 24.3.2009 regarding the requisite qualifying years of service in the feeder post of Assistant. Direct the respondents to consider and promote through LDCE the applicant against the first vacancy in the LDCE quota in the vacancy year 2010-2011 (arising on 01.02.2010) being the only eligible LDCE candidate with the requisite qualifying years of service as per the DoPT OM dated 24.03.2009. OR IN THE ALTERNATIVE Direct the respondents to consider for promotion and promote the applicant against the second vacancy of the promotion quota (to arise on 24.03.2009), in the post of SO in the ARC Secretarial Service.
6. The respondents have controverted the pleas taken in the OA and have stated and admitted that there were five vacancies in the rank of Section Officer and as per the vacancy based roster, the vacancies were to be filled up in the following manner:
1st vacancy Promotion 2nd vacancy LDCE 3rd vacancy Promotion 4th vacancy LDCE 5th vacancy Promotion but it is admitted that the vacancies were filled as under:
1st vacancy Shri P.K.Mohanty LDCE 2nd vacancy Sh. B.Parida Promotion 3rd vacancy Sh. Neeraj LDCE 4th vacancy Promotion 5th vacancy Promotion However, it is stated that all the vacancies which occurred after 1.4.2007 are being adjusted as per the vacancy based roster and the last two vacancies are to be filled through promotion only.
7. As regards the contention of the applicant that Respondent No.4 did not satisfy the eligibility requirements for the LDCE, it is stated that as per the existing Recruitment Rules for the post of Section Officer, the minimum qualifying service for Assistants to appear in the LDCE examination for promotion to the post of Section Officer is 3 years, in terms of the current Recruitment Rules for the post of Section Officer being followed in ARC. It is further stated that the vacancy based roster is now being followed as per DoPTs OM dated 19.01.2007. Therefore, they state that the OA be dismissed.
8. We have heard the learned counsel for both the parties and have been through the pleadings on record.
9. During arguments, the learned counsel for the applicant has brought to our notice that there have been certain significant developments after the filing of the OA, viz., I. More posts of section offices has been created causing immediate vacancies.
II. Assistants of another cadre called SFF (Sectt.) service have been brought under one umbrella and mixed with the assistants of ARC.
III. Seven Assistants (Three from ARC and Four from SFF) have been promoted to the post of Section Officer including the applicant.
10. The alternative relief prayed in the Prayer clause 8(e) has, therefore, been granted by the respondents vide order dated 15.12.2010, but the learned counsel for the applicant argued that in spite of this the OA should not be treated as having become infructuous as proper seniority has not been accorded to the applicant. Therefore, the learned counsel submits that the OA be adjudicated for accord of proper seniority to the applicant as Respondent No.4 would not have been promoted before the applicant on 1.7.2010 if the respondents had correctly followed the vacancy based roster (as per DoPTs OM dated 19.1.2007) and also the instructions contained in DoPTs OM dated 24.03.2009 regarding amendment of service rules/recruitment rules consequent to acceptance of the Sixth Central Pay Commissions recommendations.
11. On the other hand, the learned counsel for the respondents submitted in this regard that, with the promotion of the applicant, the OA had become infructuous, and that for accord of seniority/promotion from an earlier date it would be necessary for the applicant to make a separate representation and challenge the order of promotion, which has not been done by him.
12. It is noticed that the respondents have admitted that they had not followed in respect of the five vacancies before 01.04.2007 the vacancy based roster, but have stated that the vacancies after 1.4.2007 are being adjusted as per the vacancy based roster. The contention of the applicant that had the vacancy based roster been applied correctly, then the vacancy that was filled by promotion of Respondent No.4 through LDCE would have been filled by promotion through DPC, therefore, has considerable force.
However, it is noticed that in his various representations dated 18.12.2009, 27.1.2010, 13.2.2010, 25.05.2010, 4.6.2010 etc. that the applicants main request was for promotion as Section Officer during 2010-2011, which request has been substantially met with his promotion vide order dated 15.12.2010.
13. Further, there have been significant developments in the cadre since filing of this OA, particularly that of Assistants of another cadre SFF (Sectt.) Service having been mixed with Assistants of ARC.
14. Keeping the above factors in mind, we feel that the ends of justice would be met if the present OA is disposed of with liberty to the applicant to make a fresh separate representation to the respondents for accord of proper seniority and the respondents are directed to decide the same through issue of a reasoned and speaking order within six weeks of receipt of such representation from the applicant. Thereafter, if any grievance survives, the applicant can challenge the order in appropriate proceedings in accordance with law. Ordered accordingly. No costs.
15. OA with stand disposed of in terms of the above directions.
(Shailendra Pandey) (Shiv Charan Sharma) Member (A) Member (J) /nsnrsp/