Central Administrative Tribunal - Delhi
V.K. Thakur vs Union Public Service Commission on 28 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 424/2010 New Delhi this the 28th day of October, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) V.K. Thakur, Joint Director (Retd), Armed Forces Head Quarters Civil Service (AFHQCS), 394, Vasant Enclave, New Delhi-110057 .. Applicant (By Advocate Shri Ashok Kumar Thakur) VERSUS 1. Union Public Service Commission, Through its Secretary, Dholpur House, Shahjahan Road, New Delhi-110011 2. Union of India, Through its Joint Secretary (Trg) & CAO, Ministry of Defence, E-Block, DHQ PO, Dalhousie Road, New Delhi-110011. 3. Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi-110011 .. Respondents (By Advocate Shri A.K.Bhardwaj) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
The Applicant is aggrieved by the order dated 27.11.2009 passed by the second Respondent, Joint Secretary (Training) and Chief Administrative Officer, Ministry of Defence, rejecting the representation of the Applicant against the eligibility list of the Civilian Staff Officer for promotion to the grade of Joint Director issued on 30.09.2009. The applicant is seeking the following reliefs:
(i) the Office Order No.F.1/33(76) 2008-AP-3 dated 04th August 2009 consequent to the implementation of Honble Supreme Court Judgment dated 19.02.2008 be implemented and the Office Order vide No.A/7964/SC/SCSO/CAO/ Impl.Cell with Annexure(s) dated 27th November, 2009 issued by the Office of the Joint Secretary (Trg.) & CAO, Ministry of Defence (ANNEXURE-A-1 Collectively) be struck:
(ii) Accord with all the consequential benefits to which the applicant is entitled to;
(iii) Any other relief(s) as deemed fit and proper in the facts and circumstances of the case as in the interest of justice.
2. The facts of the case briefly are that the Applicant belongs to the 1972 batch of the Armed Forces Headquarters Civil Service (AFHQCS). He joined the aforesaid service as Assistant Civilian Staff Officer on 01.05.1974. The recruitment rules governing the promotion et cetera of the officers of the AFHQCS were governed by Armed Forces Headquarters Civil Service Rules, 1968, which were later amended in the year 2001. The Applicant was considered for promotion to the post of Civilian Staff Officer (CSO) for the panel of 1978-79 and 1979-80, but was not selected. The Applicant was eventually found fit for promotion by the Departmental Promotion Committee (DPC) in the year 1980-81. Following the judgement of the Honourable Supreme Court in AFHQ/ISOs/SOs (DP) Association and Ors. Vs. Union of India and Ors., Civil Appeal number 1384 of 2008 decided on 19.02.2008 a review of the recommendations of the DPCs for the years from 1976-77 to 1995-96 was taken up and the lists were redrawn and issued by order dated 21.08.2009. In the panels so redrawn, the Applicant figured at serial number 97 in the select list of 1978-79. However, several representations were received against these lists pointing out breaches of the instructions and rules in the holding of the review DPC. The Applicant also made a representation challenging the representations against the lists published by the order dated 21.08.2009. After considering all these representations and counter-representation, there was a limited review of the review DPC as a result of which the name of the Applicant was removed from the select list of 1978-79 and retained in the select list of 1980-81, in which he had originally been placed. The representation of the Applicant against the reviewed list was rejected by the impugned order.
3. The learned counsel for the Applicant would contend that the decision of the Respondents is contrary to the judgement of the Honourable Supreme Court in AFHQ/ISOs/SOs (DP) Association case (supra). It was contended that the Applicant's placement in the select list of 1978-79 by the review DPC was wrongly challenged on the ground that promotions up to that year had been made on the basis of interviews by the UPSC and the Applicant had not faced the interview at that time. It was also submitted in those representations opposing the placement of the Applicant in the select list of 1978-79 on the ground that the review DPC should not change the grading of those persons who had already been considered and whose names were not recommended. The learned counsel would contend that the Applicant had been discriminated against in view of the fact that nine direct recruit Assistant Civilian Staff Officer were selected for promotion for the 1978-79 panel only on the basis of their ACRs without facing interviews, whereas the same procedure had been wrongly questioned in case of the Applicant. Yet another argument has been advanced that the review DPCs for individual cases stand on a different footing from the review DPCs when major changes in the seniority of direct recruits and departmentally promoted officers are being contemplated. The argument is that the cases of all the Assistant Civilian Staff Officers should have been reviewed afresh to ensure that there was no discrimination as had happened in the case of the Applicant in this instance. It was further contended that nine direct recruits of the years 1969, 1970, 1971 and 1972 were selected for promotion in August 1977 for 1976-77 panel, although the rules prescribed 10 years eligibility for promotion. It was also submitted that while 230 Assistant Civilian Staff Officers were considered for promotion for 86 posts of Civilian Staff Officers, only 134 Assistant Civilian Staff Officers were considered for 111 vacancies in the review DPC. It was further contended that the composition of the review DPC was not in accordance with the Armed Forces Headquarters Civil Service Rules, 1968 as amended in 2001. In view of this the proceedings of the DPC would be illegal, contended the learned counsel. The learned counsel for the Applicant had also given written submissions in which it was further contended that the below benchmark grading recorded in the ACR of 1975-76 were never communicated to the Applicant. It was argued that the Applicant would have been able to make representation against the adverse grading if it had been communicated to him. It was also submitted that the Applicant had approached this Tribunal for setting aside the ACR of 1975-76, which was rejected by the Tribunal and subsequently by the Honourable Supreme Court.
4. The Respondents have, on the other hand, opposed the pleas of the Applicant. The first Respondent, the Union Public Service Commission (UPSC), in its counter affidavit has submitted that it became necessary to convene a meeting of the review DPC because of the revised seniority following the directions of the Honourable Supreme Court in the AFHQ/ISOs/ SOs Association (supra). It is stated that the review DPC adopted the following principles for review:
(i) No fresh assessment will be made in cases where the officers were not called for interview after assessment of the ACRs by the Original Selection Board.
In respect of officers called for interview, the original Selection Board had not indicated separately marks allotted for ACRs and interview. In such cases, the overall assessment given by the original Board will be retained.
In respect of some junior officers who were called for interview by the original Selection Board had limited their assessment to Not found Outstanding. In such cases fresh assessment will be made if their CR dossiers are available to give specific gradings i.e. Good or Very Good.
In cases where both specific assessments of the original Board and CR dossiers are not available, then the assessment made by the subsequent three Assessment Boards or preceding three Assessment Boards will be adopted.
In the absence of CR dossiers and non-availability of specific assessment of the original Selection Board or preceding/ subsequent Selection Boards, then the grading given by the original Selection Board as Not found Outstanding will be adopted.
Though the original Selection Board had made their assessment on the basis of ACRs and interview, it is not possible to hold interviews at this stage. In cases where fresh assessment is being made, it will be done on the basis of ACRs only.
As far as the vacancy years 1980-81 and onwards are concerned, the assessment made by the earlier Review Boards where necessary, was made on the basis of ACRs only, as was also done by the original Boards. Initially the review DPC had assessed the Applicant and placed him at serial number 97 of the select list. However, later it was found that three officers, including the Applicant, had been assessed inadvertently by the review DPC. When it was pointed out to the UPSC, a limited review DPC was again convened. It has been further pointed out as follows:
a) Shri V.K. Thakur was considered by the original Selection Board held on 18th to 21st June, 1979, 5th to 7th July, 16th and 20th July, 1979 against the vacancies for the year 1978-79. However, after assessing his Character Rolls, Shri Thakur was not called for interview.
Shri V.K. Thakur was again considered by the original Selection Board held on 19th to 23rd February, 1980, 10th to 15th March, 17th to 19th March, 1980 against the vacancies for the year 1979-80. However, after assessing his Character Rolls, Shri Thakur was not called for interview.
Shri Thakur was again considered by the original Selection Board held on 15th to 17th December, 1980 against vacancies for the year 1980-81. Shri Thakur was assessed as Very Good and included in the Panel at S.No.17. Since the Applicant had not been found fit to be called for interview on the basis of his ACR in the year 1979-80, the review DPC did not assess him for that year. The assessment in regard to him for the year 1980-81 was accepted by the review DPC.
5. The second Respondent, that is, Joint Secretary (Training) and Chief Administrative Officer, Ministry of Defence has adverted to the instructions regarding review DPC issued by the Department of Personnel and Training (DOP&T) on 10.03.1989 which, inter alia stipulates that:
"A review DPC is required to consider the case again only with reference to the technical or factual mistakes that took place earlier and it should neither change the grading of an officer without any valid reason (which should be recorded) nor change the zone of consideration nor take into account any increase in the number of vacancies which might have occurred subsequently."
It is also stated in the counter affidavit that the eligibility of 10 years has been provided in the Armed Forces Headquarters Civil Service Rules, 1968 for promotion from Assistant Civilian Staff Officer to Civilian Staff Officer. For the DPCs of the years 1978-79 and 1979-80 the eligibility criterion was relaxed to five years. Up to the year 1978-79 and 1979-80 the system of interview was in vogue. The Applicant was not called for the interview on the basis of initial screening of his ACRs. The system of interview was discontinued from 1980-81 onwards. It is denied that nine Assistant Civilian Staff Officers were promoted in contravention of this principle. The numbers of Assistant Civilian Staff Officers and the Civilian Staff Officers changed following the directions of the Honourable Supreme Court in the case referred to above. All eligible Assistant Civilian Staff Officers, three times the number of vacancies, who had completed five years of approved service in the grade, were considered for promotion to the grade of Civilian Staff Officers. With the review in the seniority in the grade of Assistant Civilian Staff Officers because of the implementation of the directions of the Honourable Supreme Court, the eligibility list for promotion to the next higher grade also underwent change. Hence, only 134 Assistant Civilian Staff Officers were found to be eligible for promotion. It was contended by the learned counsel for the Respondents that there were no instructions that in case of change in the number of vacancies in the review DPC, the instructions contained in the Office Memorandum of the DOP&T dated 10.03.1989 should not be considered as had been contended on behalf of the Applicant.
6. The relevant rules governing the seniority, as gleaned from the judgement of the Honourable Supreme Court in AFHQ/ISOs/SOs (DP) Association (supra), are as follows:
Rule 13 deals with probation, which states that (1) Every direct recruit shall initially be appointed on probation for two years from the date of appointment and (2) Every person other than a direct recruit shall, when appointed to the grade of CSO, ACSO and Assistant, be on probation for a period of two years from the date of such appointment. Rule 14 deals with confirmation of probationers. The quota between the direct recruits and the promotees is governed by Rule 16, which reads as under:-
16. Seniority:- (1) All permanent offices included in the initial constitution of a Grade under Rule 9 shall rank senior to all persons substantively appointed to that Grade with effect from any date after the appointed day, and all temporary officers included in the initial constitution of a grade under that rule shall rank senior to all temporary officers appointed to that Grade with effect from any date after the appointed day.
(2) The seniority inter se of permanent officers included in the initial constitution officers included in the initial constitution of a Grade shall be regulated in the order in which they are so appointed.
(3) The seniority inter se of temporary officers included in the initial constitution of a Grade shall be regulated in the order in which they are so appointed.
(4) The seniority inter se of officers regularly appointed to the grade of Joint Director and Senior Civilian Staff Officer before the coming into force of the Armed Forces Headquarters Civil Service (Second Amendment) Rules, 1975, shall be regulated in the Selection Grade of the Service in the following order:-
(a) Officers holding the posts of Joint Directors in an officiating capacity, arranged in the order of their seniority in that Grade;
Officers holding the posts of Senior Civilian Staff Officers in a substantive capacity, arranged in the order of their seniority in that Grade;
) Officers holding the posts of Senior Civilian Staff Officers in an officiating capacity, arranged in the order of their seniority in that Grade:
(5) Except as provided, in sub-rule (7), the seniority of persons appointed to any grade after the appointed day shall be determined in the following manner, namely:-
(i) Permanent Officers:- The seniority inter se of officers substantively appointed to the Grade after the appointed day shall be regulated in the order in which they are so appointed;
(ii) Temporary Officers:- The seniority inter se of temporary officers appointed to the Grade after the appointed day shall be regulated in the order of their selection for such promotion.
(6) Direct recruits shall be ranked inter se in the order of merit in which they are placed at a competitive examination on the results of which they are recruited, the recruits of an earlier examination being ranked senior to those of a later examination. On confirmation, their inter se seniority shall be regulated in the order in which they are so confirmed:
Provided that the seniority of persons recruited through the competitive examinations held by the Commission
(i) in whose case offers of appointment are revived after being cancelled, or
(ii) who are not initially appointed for valid reasons but are appointed after the appointment of candidates recruited on the basis of the results of the subsequent examination or examinations, shall be such as may be determined by the Government in consultation with the Commission.
(7) The relative seniority of the direct recruits to a Grade and persons appointed to the Grade by departmental promotion shall be regulated in accordance with the provisions made in this behalf in the Third Schedule.
(8) All officers substantively appointed to any Grade shall rank senior to those holding temporary or officiating appointments in that Grade.
20. Rule 2 (p) defines temporary officer to mean a person holding a temporary or officiating appointment in that Grade on the basis of his being regularly approved for such appointment. Rule 2(1) defines permanent officer to mean a person who has been substantively appointed to a substantive vacancy in that grade. Rule 10 provides for future maintenance of the service which states that the service shall be maintained in future as indicated in the Third Schedule. Third Schedule of the Rules in relation to ACSO (Group B Gazetted) reads as under:-
Substantive vacancies Substantive appointments to 75% of substantive vacancies in the Grade shall be made in the order of seniority of temporary officers of the Grade, who have completed the period of probation satisfactorily, subject to the rejection of the unfit.
25% of the substantive vacancies shall be filled by direct recruitment on the basis of combined competitive examination held by the Commission for recruitment to the Central Services, Group A/Group B, Assistant Civilian Staff Officers so recruited shall be confirmed in the manner as indicated in Rule 14.
The relative seniority of the above categories of officers shall be determined according to the rotation of vacancies between departmental promotees and direct recruits which shall be based on the quotas of vacancies reserved for promotion and direct recruitment.
Note (1) Reservation of vacancies against the quota reserved for direct recruitment, for Scheduled Castes and Scheduled Tribes and released Emergency Commissioned Officers and Short Service Regular Commissioned Officers shall be in accordance with the rules and orders issued by the Government from time to time.
Substantive vacancies at (b) may be filled temporarily by promotion from amongst Assistants on the basis of selection. Such promotions shall be terminated when the nominees of the Commission become available to fill the substantive vacancies. Temporary Vacancies Temporary vacancies in the Grade of Assistant Civilian Staff Officer shall be filled by temporary promotion from amongst Assistants on the basis of selection.
Provided that if any person in the Grade of Assistants is considered for promotion to the Grade of Assistant Civilian Staff Officer, all persons belonging to Scheduled Castes or Scheduled Tribes who are senior to him in that Grade, shall also be considered notwithstanding that they may not have rendered five years continuous approved service in that grade. The issue of seniority in the grade of Civilian Staff Officers arose in TA number 356/1985, M G Bansal & Ors. Vs. Union of India & Ors. The issue related to the application of quota-rota system between the direct recruit and departmental promotees in the grade of the Assistant Civilian Staff Officers. The Department had followed the system of carrying forward the slot and vacancies of the direct recruits for future years and ante-dating their seniority vis-`-vis the departmental promotees of earlier years. This created a situation in which the direct recruits were given the seniority of an year in which they were not even borne in service. The Tribunal held that ante-dated seniority could not be given to the direct recruits even though the slots reserved for them in a particular year were not filled up. The Tribunal, inter alia, held as follows:
(a) It is held that Rule 1(7) and Schedule Third so far as it relates to appointment of the promotees and Direct Recruits in their respective quota and determination of seniority on the basis of quota and rota is held valid and these are not ultra vires of Articles 14 and 16 of the Constitution of India.
(b) Seniority between Direct Recruits and Promotees regularly appointed/promoted within their respective quota should be determined by the length of the continuous officiation in the grade of ACSO from their respective appointment to the substantive vacancies under Schedule II within their quota, i.e., in the case of promotee ACSOs the length of continuous officiation in the grade will be reckoned from the date when they are promoted in substantive vacancies.
) To elucidate further, in the case of temporarily appointed promotee ACSOs under Note (2) of Schedule III of the rules in the direct recruit quota w.e.f. 1969 onwards til 1977 and also thereafter their seniority will be reckoned from the date when they get a berth in the substantive vacancies of their 75% quota as envisaged under Schedule III of the Rules.
(d) The incumbents belonging to one source in excess of their own quota and utilizing the quota of the incumbents belonging to another source will only officiate in the promoted post. It is made clear that the direct recruits on the basis of Note (2) of the Rules of Schedule III will either be reverted or will be absorbed in the vacancies within their quota of subsequent year. The period of officiation outside their quota of either of their incumbents from other source will not count for their seniority. If an officer has been promoted within his quota, then it would be date of confirmation which would be relevant for the officers seniority.
. . .
(f) It is further directed that each quota, as referred to in Schedule 3 of the Rules as to be worked out independently on its own force. Direct recruit quota of ACSO which is confined to substantive vacancies in the grade can be filed by temporarily appointed Assistants by promotion in the grade of ACSO, but without giving them any right of seniority on the basis of continuous officiation on the vacancies earmarked for Direct Recruits and indent for which has been sent to the UPSC for nomination from the civil services examination of a particular year. The hopes and aspirations of the promotees aforesaid cannot be related to availability of Direct Recruits filling their quota in that particular year and only it can be when there is total collapse and break down of the quota for a number of years. The judgement in M G Bansal (supra) was upheld by the Honourable Supreme Court. The Union Government, however, did not implement the decision correctly and started splitting up the vacancies from the year 1992 by preparing two separate lists for each year retrospectively for the grade of Assistant Civilian Staff Officers. One list was prepared in respect of Assistant Civilian Staff Officer (DPs) who allegedly were temporarily appointed against the unfilled vacancies of Assistant Civilian Staff Officer (DRs) as per Note (2) in the Third Schedule on the basis of calendar year as against originally fixed period from first October to 30th September each year as provided in the Rules. Some of the ACSO (DPs), namely, Smt. Ammini Rajan and others filed 0A number 1356/1997 before the Tribunal challenging the redrawn select lists of the year 1988-89 and 1989-90. The Tribunal gave the following directions:
(i) Impugned orders Annexure A-1 and A-2 are quashed. The respondents are directed to determine the seniority between the direct recruits and promotees regularly appointed/ promoted within their respective quota by counting the length of continuous officiation in the grade of ACSO from their respective appointment to the substantive vacancies within their quota in accordance with the Rule 16 (7) of the AFHQ Rules and Schedule III of the Rules. In the case of promotees ACSO, the length of continuous officiation in the grade will be determined from the date when they are promoted in substantive vacancies in their lawful quota. In case of direct recruits ACSO, their seniority shall be determined from the year in which they joined the service. While determining seniority, respondents are directed to adhere to the DPC year in case of promotee officer and to retain as 1st October to 30th of September of the following year as provided in the rules/ regulations.
(ii) Respondents are further directed to prepare single Select List in a year for the ACSO grade and they cannot report to two separate lists for the purpose of merely identifying the Note (2) Schedule III vacancies as the rules do not envisage the same.
(iii) Respondents are further directed that the vacancies of DR quota may be carried forward but while determining the seniority the slots of the vacancies left unfilled by the DR quota shall not be carried forward for the purpose of determining seniority.
(iv) It is further directed that after finalizing the seniority list, the department shall prepare eligibility lists for the purpose of promotion to the next higher grade. Writ Petitions were filed before the Honourable Delhi High Court by both the Applicants in the aforementioned OA and by the Union of India. The High Court allowed the Writ Petitions and set aside the order of the Tribunal. Appeals came to be filed before the Honourable Supreme Court against the aforementioned judgement of the High Court. The Apex Court held thus:
32. In the light of the above factual situation, service rules governing the conditions of service of employees and the settled proposition of law, we are of the opinion that the judgment and order dated 14.11.2006 in C.W.P. No. 4058/2002, CWP No.5396/2002 and subsequent judgment dated 15.01.2007 in CWP No. 18073/2005 of the High Court of Delhi passed in AFHQ Civil Service Officers Association v. Union of India & Ors. are not sustainable and deserve to be set aside to the extent of setting aside the order of the Tribunal in Smt. Ammini Rajans case holding that the said order is contrary to the earlier judgment of the CAT dated 20.11.1992 recorded in M.G. Bansals case. This view of the High Court apparently appears to be contrary and contradictory to the judgment and order of the CAT dated 20.11.1992 passed in T.A. No.356/1985 (CW 3/1978) titled Shri M.G. Bansal & Ors. v. Union of India & Ors. in which the impugned seniority list of 1977 stood quashed and the respondent(s) authority were directed to implement the said judgment in terms of the observations/ directions contained in paragraph 25 of the said judgment. The judgment of the CAT in M.G. Bansals case has attained finality when two SLPs filed by the DRs against the said judgment came to be dismissed by this Court on 20.01.1995. Consequently, the Writ Petition CWP No.4058/2002 of the AFHQ Civil Service (Direct Recruits-Gazetted) Officers Association and CWP No.5396/2002 preferred by Union of India against the order of the CAT in OA No. 1356/1997 titled Smt. Ammini Rajan & Ors. v. Union of India & Ors. are dismissed. CWP No.62/2003 and CWP No.4458/2002 filed by the DPs shall stand allowed accordingly. CWP No. 18073/2005 shall also stand disposed of in terms of this judgment. As the dispute and controversy relating to inter se seniority between the DPs and DRs has remained unsettled and is lingering over the past many years the respondent-authority is directed to determine and settle the seniority list in strict compliance and spirit of the judgment of the CAT dated 20.11.1992 in TA No. 356/1985 (CW 3/1978) rendered in Shri M.G. Bansal & Ors. v. Union of India & Ors. The directions so contained in the said judgment shall be carried out within three months from the date of this judgment.
7. It was in the above background that the review DPCs, as mentioned above, were held in the year 2009, the result of which was challenged by the Applicant by making representation, which was rejected by the impugned order.
8. We do not find any force in the arguments of the Applicant. It cannot be said that the procedure followed by the review DPC is contrary to the direction given by the Honourable Supreme Court in AFHQ/ISOs/SOs (DPs) case (supra). The review DPC has rightly followed the directions given in the OM dated 10.03.1989 of the DOP&T. There is no irregularity in that. The Applicant has not been able to produce any instruction/rules, which would provide that the directions contained in the aforementioned OM should not be followed in cases where large scale changes in the seniority have been made. We cannot find fault with the decision of the review DPC in not considering the Applicant for the year 1979-80 for promotion because the original DPC had not found him fit for interview. The review DPC could not have changed the decision of the original DPC with regard to that. The Applicant cannot now raise the plea that the below benchmark grading should be communicated to him, as this claim is stale and barred by limitation. The plea of the Applicant that nine direct recruit ACSOs have been considered for promotion for the year 1979-80 by the review DPC only on the basis of their ACRs has been denied by the Respondents. The Applicant has not given the names of these ACSOs (DRs) and has not in any way substantiated his pleadings.
9. On the basis of the above consideration the OA is dismissed as being without any merit. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali) Vice Chairman (A) Chairman /dkm/