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B. VENKATESAN & OTHERS V/S UNION OF INDIA & ANOTHER, decided on Thursday, February 23, 2012.
[ In the Central Administrative Tribunal (Principal Bench at New Delhi), OA No.3091 of 2010. ] 23/02/2012
Judge(s) : V.K. BALI, CHAIRMAN & DR. RAMESH CHANDRA PANDA, MEMBER (A)
Advocate(s) : Applicants P.B.A. Srinivasan with Kunal Soni. Ms. Pooja Wahal.
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judgment - Dr. Ramesh Chandra Panda Member (A):1. This is the second round of litigations for the applicants. Earlier they approached the Tribunal in OA No.1675/2006. The first applicant joined on deputation the National Crime Records Bureau (NCRB) the second Respondent and then absorbed there as Sub-Inspector. Other applicants joined the Respondent on direct recruitment as Sub-Inspectors. These four applicants were engaged in EDP work since their appointments in NCRB. Following the OM issued by the Ministry of Finance the first respondent conveyed the sanction of the Government by Order Number 42/4/89-Ad.II/NCRB/FP.II dated 6.05.1991 for re-designation and revision of pay scales of various EDP posts under the second Respondent. The Sub-Inspector was redesignated as DPA-Grade ‘A’ in the scale of pay of Rs.1600-2660 (pre-revised). The post of Inspector the next post on promotion was redesignated as DPA Grade ‘B’ in the scale of pay of Rs.2000-3200. The number of posts in DPA Grade ‘A’ and Grade ‘B’ were fixed at 57 and 40 respectively. An Office Order Number 42/4/89-AD.II/NCRB dated 02.08.1991 from the second Respondent followed which inter alia stated that:-“(i) DPA Grade ‘B’ post was the post for promotion from DPA Grade ‘A’ with four years of regular service in the latter;(ii) the employees opting for the EDP cadre would be given the benefit of EDP scales with effect from 11.09.1989 or subsequent dates as the case may be; and(iii) the employees would have to relinquish all their claims if any of being Police personnel e.g. rent free accommodation uniform allowance ration money etc.The applicants exercised their option for the new EDP cadre. They completed their four years of service in 1995. The DOP&T framed Model Recruitment Rules (MRR). MRR for DPA Grade ‘A’ was notified on 16.02.1990. These were revised in 1998. However the Respondents did not frame any Recruitment Rules for DPA Grade-B on the basis of the MRR. The applicants made representation to the Respondents on 31.12.2003 and 9.01.2006 for their regular promotion to DPA Grade ‘B’ from the day they completed the stipulated period of four years of regular service in feeder grade.2. In a different case (OA No.3128/2002) similarly placed officials including the 1st applicant in the present OA approached this Tribunal seeking the quashing of the order dated 24.05.2002 informing them that their promotion to DPA Grade ‘B’ would be considered as and when vacancies arise in future. The Tribunal partly allowed the OA No.3128/2002 vide order dated 03.09.2003 in following terms:-“7. We have heard the learned counsel of the parties and have perused of the parties and have perused the materials available on record carefully. It is undisputed that the applicants have all along been working in the DPA unit of the respondents initially. Subsequently on being absorbed as a model employer the respondents should have taken care of the future prospects of the applicants. It is stated that the applicants opted for the posts of DPA for better prospects of promotion ignoring other perquisites in their parent cadre. We are not satisfied with the reply filed by the respondents that as there was ban of the Government on the recruitment promotions were not made even though the vacancies of DPA grade ‘B’ were available during the years 1996 1997 1998 & 2000 and thereafter. The respondents cannot be allowed to stated that they had not followed the old recruitment rules of 1988 for ad hoc promotion. The applicants have rightly made a grievance that the said recruitment rules could have been followed by the respondents for regular promotions also. The learned counsel of the applicants rightly stated that there was no need to wait for revised recruitment rules for grade ‘A’ & ‘B’ posts in the DPA as notified by the DOP&T’s OM dated 14.10.1998 (Annexure A-11) already existed. In view of these facts we direct the respondents to take steps to revive the abolished posts of DPA grade ‘B’ if those posts are still to be created keeping in view the recruitments of the Department. As soon as those posts are revived the applicants be considered for promotion if they are otherwise eligible and are within the zone of consideration in accordance with the model recruitment rules of the DOP&T’s dated 14.10.1998 and if their own recruitment rules are not yet notified. This exercise must be completed within 4 months from the date of receipt of a copy of this order.8. In the result the OA is partly allowed without any order as to costs.”3. All the applicants in the present OA having not been promoted to the DPA Grade-B filed the OA No.1675/2006 which was decided on 14.10.2008. The pertinent part of the said order is reproduced below:-“10. The Respondents have further claimed that they had been trying to frame the Recruitment Rules as per MRR but did not succeed as the DOP&T had been revising these Rules. The learned counsel for the Respondents placed before us copies of note sheets of file Number 35/5/2001-Ad II of the first Respondent which were taken on record and which have notings dated 9.12.2002 and 25.07.2003 of the concerned officer of DOP&T that review of the MRR of EDP posts may be awaited. Be that as it may the upshot is that the Recruitment Rules of 1988 have not been amended as per the MRR.11. The Honourable Supreme Court had considered a similar issue in V. Ramakrishnan (cited supra) in which R. Sundar Raju the appellant before the Supreme Court had been promoted ad hoc on the strength of draft Recruitment Rules. The Honourable Supreme Court held thus:“28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules therefore could not form the basis of grant of promotion when Rules to the contrary is holding the field.”11. As to the Applicant’s contention that 29 DPA Grade ‘A’ were recruited by direct recruitment method in accordance with the MRR it has not been substantiated. The Respondents have repelled the argument by stating that there is a provision for direct recruitment to the extent of 66.66 per cent in the Recruitment Rules of 1988. It cannot therefore be said that these recruitments have been made under MRR especially considering that designations and pay scales of the EDP posts had been adopted by order dated 6.05.1991 which has been referred to in the preceding paragraphs.12. While we consider it most unfortunate that the Respondents-both the Ministry of Home Affairs and NCRB- have been most lethargic in pursuing amendment to the Recruitment Rules of 1988 and their behaviour towards their own employees has been most unsympathetic and callous yet the fact remains that the Recruitment Rules have not been amended in tune with the Model Recruitment Rules and till such time as these rules are amended the extant rules will hold the field. The direction given in OA Number 3128/2002 that the applicants (not the same as in the instant OA) should be considered for promotion in accordance with the MRR will not be a binding precedent in view of the law laid down by the Honourable Supreme Court in V. Ramakrishnan’s case (cited supra). We however direct the Respondents now at least to take pro-active steps to amend the Recruitment Rules of 1988 suitably within six months from the date of receipt of a certified copy of this order and relieve the Applicants from their misery. With these observations the OA is disposed off. No costs.”4. Feeling aggrieved by the above order challenging the same the applicants filed WP (C) No.7576/2009 before Hon’ble High Court of Delhi which was decided on 18.03.2009 in the following manner:-“Petitioners want promoted to Data Processing Assistant Grade-B post on regular basis as per Model Recruitment Rules (MMR). These MMRs were framed by the Department of Personnel and Training in the year 1990 and were revised in the year 1998. These were sent to various departments with instructions to amend their own Rules on the aforesaid lines. It is not in dispute that in National Crime Records Bureau (NCRB) Recruitment Rules for DPA Grade-A & B have not been amended so far on these lines. No doubt because of this delay in framing the revised Recruitment Rules the petitioners and other similarly situated are affected at the same time we find that in the meantime they have been granted ad hoc promotion as DPC Grade-B against the vacancies in the direct recruitment quota. These promotions on ad hoc basis were given to the petitioners in the years 2005 2000 2000 & 1998 respectively. The Tribunal has rightly held in view of the judgment of the Supreme Court in the case of Union of India through Govt. of Pondicherry & Anr. Vs. V. Ramakrishnan & Ors. JT 2005 (9) SC 422 that directions cannot be given.”5. Review Petition No.116/2009 filed by the applicants on the above order was decided after hearing the parties on 17.04.2009 and modified the order to the extent that Recruitment Rules of 1988 ‘shall be amended within three months from today. We expect that earnest efforts shall be made by the respondents in that behalf. We may note that Mr. Bhardwaj has pointed out that the process has already been initiated and however if there is still any difficulty and justifiable grounds for further extension the respondents may move an application in this behalf.’ As the respondents did not comply with the above direction CCP No.926/2009 was moved before the High Court which was disposed of vide order dated 20.01.2010 after taking note of the information furnished by the respondents to the effect that the RR had been framed and notified. The applicants being aggrieved by the fact that they were not promoted from the date of their eligibility and claiming their retrospective promotion they are revisiting the Tribunal in the instant OA with following prayers:-“(i) Direct the respondents to promote and regularize the services of incumbents from the date (i.e. w.e.f. 14/03/95 for K. K. Bhardwaj 01/07/95 for S. V. Nawani 30/12/95 for A. K. Shrivastav and 21/07/97 for B. Venkatesan) they became eligible as the vacancies were available on these dates.(ii) Classify the post of DPA-B strictly according to the provision of model RRs i.e. GCS Group B Gazetted.(iii) Pass any other or further orders which this Hon’ble Court may deem fit and proper.”6. Shri P. B. A. Srinivasan along with Shri Kunal Soni learned Counsel representing the applicants would submit the following main contentions. (i) The Model RR dated 14.10.1998 issued by the DOP&T classified the DPA Group-B post as GCS Group-B Gazetted whereas the respondents in the Notification dated 15.01.2010 downgraded the same post as Non-Gazetted. He submitted that reasons for such downgradation are not known. (ii) It is further contended that the applicants expecting better prospects in the EDP Cadre opted for induction and despite they were eligible in the year 1995 their services were regularized w.e.f. 13.06.2005. He therefore submits that the applicants should have been regularized much earlier. (iii) By downgrading their status from Gazetted to Non-Gazetted it is contended that the applicants feel demoralized and humiliated as their counter parts in other Ministries have been classified as Gazetted. For the above grounds Shri Srinivasan urges to allow the OA.7. Opposing the grounds taken by the applicants the respondents have submitted the reply affidavit on 16.05.2011 through Ms. Pooja Wahal learned counsel. It is submitted that the applicants have been regularized in DPA Grade-B posts after the deemed abolished posts have been revived after proper concurrence. The RR dated 15.01.2010 was notified after approval accorded by DOPT and UPSC. The background of it it is contended does not support the case of the applicants in the sense that in 1991 40 posts of DPA-Grade B were sanctioned in conversion of equal number of Inspector/Statistical Investigators posts. Eight persons were fitted to the DPA Grade-B and 32 posts remained vacant and three more vacancies accrued taking the total vacant posts to 35. As per the then RRs though 6 DPA Grade-A completed four years of qualifying service were available but as they did not have essential qualification they could not be promoted to DPA Grade-B. Even to fill up those posts on transfer on deputation could not succeed. It is submitted that those posts as per the Government guidelines deemed to have been abolished. However the applicants were granted ad hoc promotion. It is further stated that the DPA Grade-B was non Gazetted posts and when the new RR was notified same status was maintained after concurrence of DOPT UPSC and Ministry of Law and Justice. She therefore urges that the OA should be dismissed.8. Taking into account the above contentions of the rival parties with the assistance of their counsel we perused the pleadings.9. The principal claim of the applicants relates to the retrospective regularization of their promotion to the DPA Grade-B w.e.f. the date they became eligible as the vacancies existed. We may capture the facts of these four applicants and their claims in the following table.“TABLE”10. Admitted facts are that vide 1st respondent’s order dated 6.05.1991 the EDP posts in the NCRB were rationalized as per which 42 posts of Inspectors/Statistical Investigator posts were revised along with pay scales to 40 DPA Grade-B posts and one DEO Grade-E posts and the same was reiterated by the 2nd respondent vide Office Order dated 02.08.1991 as per which the Educational Qualification and Professional competence prescribed for the DPA Grade B were ‘Promotional grade for DPA Grade A with 4 years regular service.’ In the meantime DOPT issued OM No.AB-14017/75/89-Estt. (RR) dated 14.10.1998 outlining the Model Recruitment Rule (MRR) for all EDP posts including DPA Grade-B posts. The said MMR classified DPA Grade-B posts as ‘GCS Group ‘B’ Gazetted’ and prescribed educational qualification for the direct recruits. It is noticed that out of 40 posts sanctioned by conversion for DPA Grade-A in August 1991 large number of posts (36) got abolished as the educationally qualified DPA Grade A Officers as per the extant RRs were not available. In the meantime 1st respondent sought the advice of UPSC vide their letter dated 8.1.1993 as the subject of mode of recruitment in the absence of RR for DPA Grade B posts. It is further found that a proposal was sent by the 2nd respondent to the 1st respondent on 17.05.1995 to revive 36 posts of DPA Grade-B. The UPSC advised in the letter dated 24.03.1995. We also notice from the 1st respondent’s letter dated 07.04.1998 (pages 147-148 of the paper book) enclosed by the respondents to the counter affidavit that the UPSC was informed about the availability of 15 DPA ‘Grade B vacant posts and 24 officers in DPA Grade-A having completed 4 years of regular service are eligible to the said promotion post and UPSC advice was sought on the fresh mode of recruitment for filling up those posts. Thus to say that vacant posts were not available up to the date of holding regular DPC for promotion to DPA Grade-B could not convince us. Copy of the DOPT note dated 23.11.2004 available at Page 155 reveals that the 1st respondent has obtained the revival of 10 posts of DPA Grade-B against 20 posts which were abolished. DOPT also advised in the following manner:-“We have earlier examined this case vide p.35 ante and as advised by us MHA have taken approval of the Department of Expenditure for revival of 10 posts of DPA B. The present reference is for advice of 10 posts of DPA B. The present reference is for advice on the procedure to be followed for regularization of 16 ad hoc incumbents presently in position in DPA B and the manner in which the 10 revived posts is to be filled.2. Views of Estt. (D) in this regard may be seen on pre-page. In the context of the clear judgment of the Tribunal and keeping in view the availability of posts now as a special case we may agree to the posts of DPA B being filled as per the provisions contained in the Model RRs for the post. As pointed out by Estt. (D) Section the applicants involved in the court case shall be considered for promotion only if they are eligible and within the zone of consideration as per Model RRs of 13.10.98. Since appointments based on the Model RRs will be regular ones there is no objection to the ad hoc incumbents also being considered for regular promotion again subject to their being eligible for such promotion under the model RRs and their coming in the zone of consideration.”11. Pursuant to the above the 2nd respondent undertook further processing and pending notification of RR convened the DPC on 10.06.2005 and granted regular promotion to the applicants in the DPA Grade B with effect from 13.06.2005. Our careful scrutiny of the pleadings manifest that the respondents are responsible for not granting regular promotion. Non-availability of vacancy was problem initially but once some posts were revived and Model RR of 1998 was available with the respondents even if the DPC met in the year 2005 and RR was notified in the year 2010 the respondents were duty bound to draw up annual promotion panel for regular promotion to the post of DPA Grade-B. However the applicants may have fulfilled 4 years of regular service on the dates from which they are claiming regular promotion to DPA Grade B but there are many other factors which are to be examined by the respondents even to consider their claim. Those factors are vacancy position year wise seniority list of DPA Grade-A Officers and eligibility of the applicants in all aspects including educational qualification. It is trite law that the DPC must meet for every vacancy year to prepare a Panel for promotion. In the present case the above position would be fully applicable. For the above reasons we direct the 2nd respondent to examine the case of the applicants along with other eligible officers of DPA Grade-A for each vacancy year for the post of DPA Grade-B w.e.f. 1995 and if the applicants are found fit for any earlier year prior to 2005 (the year of their regular promotion) they shall be granted promotion to DPA Grade-B on notional basis. As three of the applicants have been promoted on ad hoc basis on 6.03.2000 and 19.06.1998 they shall be granted actual pay benefits from their respective date of ad hoc promotion.12. We may now advert to the next issue of classification of DPA Grade-B in the RR. The applicants have cited that DPA Grade-B in many Ministries as per the respective RRs are GCS-B Gazetted posts but in the NCRB RR they have been classified as Non-gazetted. Their claim is to direct the respondents to rectify the same and to restore their status. We have very carefully gone through the RRs of other Ministries available in the pleadings. In case of DPA Grade-B in the (1) Ministry of Tourism the relevant Recruitment Rules dated 25.08.2005 (at page 70) (2) Ministry of Industrial Policy and Promotion RR dated 8th February 1996 (Page 74) (3) Ministry of Finance Notification dated 04.04.2003 (Page 76) and (4) Ministry of Defence Notification dated 31.01.2001 Column 3 of the respective Schedule envisages ‘General Central Service Group ‘B’ Gazetted.’ We wonder why the respondents in case of the applicants in DPA Grade-B should be discriminated and classified as ‘Non-Gazetted’. Such classification which grants status to the applicants as ‘Non-Gazetted’ compared to their counter parts in other Ministries as ‘Gazetted’ in our considered view amounts to invidious discrimination. Thus we direct the respondents considering to carry out appropriate amendments to the RR dated 15.01.2010 to classify the DPA-Grade B as ‘Gazetted’.13. Considering the totality of facts and circumstances of the case we are of the considered opinion that there are enough justification in support of the applicant’s two main claims as discussed above. In the result the OA having merits is allowed in terms of our orders and directions within leaving the respective parties to meet their own costs.