Rajendra Prasad vs Union Of India And Anr.

Nita Chowdhury, Member (A)

Through the medium of this OA, the applicant has prayed for the following reliefs:-

"(a) Quash and set aside the order conveyed vide communication No. A-32015/01/2009-Admn-I(B) dt. 08.01.2016 issued by Respondent No.1;

(b) Order and direct the Respondent No.1 & 2 to include the name of the Applicant in the Assistants Select List 2003 (viz., extended select List 2003) with all consequential benefits, by holding a review DPC if necessary;

(c) Pass such other and/or further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case".

The brief facts of the case are that the applicant had retired from service on attaining the age of superannuation on 30.06.2008 as Assistant (Ad-hoc) from the office of Respondent No.1. He belonged to the Select List of the year 1989 (CSL No.1083/89) in the lower post of Upper Division Clerk (UDC, in short) and functioned as Assistant (Ad-hoc) from the year 2003 continuously till his retirement. He was eligible for regularization/placement in the Select List of Assistants for the year 2003 of Central Secretariat Service (CSS, in short). As he stood retired before the DPC considered eligible UDCs for inclusion in Assistants Select List 2003, he was not placed in the said Select List brought out in the year 2009.

The applicant had submitted Annexure A-2 representation dated 19.05.2011 to the Respondent No.1, inter alia, praying for regularization as Assistant from 2003. Since he did not receive any response from the respondents, a legal notice dated 07.01.2014 (Annexure A-3) was served upon Respondent No.1 for inclusion of his name in the Select List for the year 2003 of Assistants of CSS.

The Respondent No.1, however, in response to the said legal notice, informed the applicant vide their letter dated 19.03.2014 (Annexure A-4) that the matter was under consideration by the appropriate authority in consultation with the DoP&T and that the decision would be intimated to him on finalization of the same. However, the Respondent No.1 vide Annexure A-6 Office Order dated 23.06.2014, has conveyed approval of the competent authority for inclusion of the name of the applicant in the extended Select List 2003 for Assistants of CSS against seniority quota.

Thereafter, the applicant made another representation dated 24.06.2014 (Annexure A-5) to Respondent No.1 for upgradation of his basic pay to the level of his juniors and revise his pension accordingly.

However, vide the Annexure A-1 order, impugned herein, dated 08.01.2016, the respondents informed the applicant that it has been clarified by the DoP&T vide OM dated 04.11.2015 that since promotion order of the retired officials need not be issued, they would not get any financial benefit and hence it had been decided not to include the names of retired officials in the Select List year 2003 of Assistants Grade.

In support of his claim, the applicant has raised the following important grounds:-

i) Right to be considered for promotion is a fundamental right guaranteed under Articles 14 and 16 of the Constitution of India;

ii) In terms of DoP&T OM No. 22011/3/98-Estt.(D) dated 14.08.2013 (Annexure A-7), eligible officers who are/were in service on the date of commencement of the vacancy year for which the panel is to be prepared, are required to be considered for promotion. The applicant, being in service till 30.06.2008, was eligible for inclusion of his name in Assistants Select List 2003;

iii) The DoP&T OM No. 22011/1/2014-Estt. (D) dated 14.11.2014 (Annexure A-8 (colly), provides for consideration of retired employees for inclusion in panel for promotion, who were within the zone of consideration in the relevant year(s) but were actually not in service when the DPC met. The said instructions are based on earlier DoP&T instructions contained in OM No. 22011/4/98-Estt. (D) dated 12.10.1998. Thus, the applicant was also eligible to be considered for promotion/inclusion in Assistants Select List 2003; and

iv) In support of his claim, the applicant has placed reliance on the judgments rendered by this Tribunal in the cases of P.G. George vs. Union of India [OA No. 1409/2009 decided on 22.04.2010], K.S. Bhardwaj vs. Union of India & Ors. [OA No.1877/2012, decided on 20.02.2014], and the judgment of the Hon'ble High Court of Delhi in Union of India & Another vs. P.G. George [W.P. (C) No.4864/2010], wherein it has been held that retired officers are entitled to be considered for promotion on notional basis with effect from the date of promotion of their junior(s) if the latter is promoted with effect from the date when the former was in service.

On the other hand, the respondents in their reply have taken a preliminary objection as to maintainability of the OA on the ground that the applicant has not approached this Tribunal with clean hands as he has suppressed the material information from this Tribunal. Hence the OA is wholly misconceived, not tenable under the law and facts and the same deserves to be dismissed. It is denied that any fundamental right of the applicant has been violated/infringed. It is further submitted that the OA suffers from the defect of misjoinder of proper and necessary parties.

The respondents further submit that the DoP&T vide its OM dated 14.07.2009 (Annexure R-1) had extended the range of seniority of UDCs (now SSA) to Assistant (now ASO) grade of CSS for the Select List year 2003 against seniority quota. It is further submitted that in pursuance of the aforesaid OM of DoP&T, at the time of consideration of the cases of eligible UDCs for their inclusion in the Select List year 2003 of Assistant Grade, the following UDCs of CSCS cadre were not considered by DPC for their inclusion in the said Select List of Assistant Grade against seniority quota due to the reason that they were not on the roll of this Ministry either due to retirement or death:

S. No

Name (S/Shri)

Remarks

1.

Rajendra Prasad-I

Expired on 30.11.2008

2.

Rajendra Prasad-II

Retired on 30.06.2008

3.

S.S. Rawat

Expired on 22.10.2008

It is submitted that the applicant (Shri Rajendra Prasad-II), who retired on 30.06.2008, had submitted a representation on 19.05.2011 (Annexure R-2) stating that he was a regular UDC of the Select List year 1989 and was holding the post of Assistant on ad hoc basis since 2003 continuously without any break till his retirement. He had requested that at the time of regularization of UDCs of Select List year 1989 for their inclusion in the Select List of Assistant Grade, he being the UDC of the Select List year 1989, should have also been included in the Select List year 2003 of Assistant Grade.

It is further submitted that DoP&T was requested vide OM dated 10.07.2012 (Annexure R-3) to clarify as to whether UDCs whose names have been mentioned therein of Select List year of 1999, may be considered for their inclusion in the Select List year 2003 of Assistant Grade even after their retirement/death. The DoP&T, however, vide its OM dated 14.02.2014 advised that "Name of retired officers who were in service in the year for which DPC is being held, are to be considered for determining correct zone of consideration. However, no promotion orders are to be issued in cases of such employee who has retired before the date of issue of the orders. Similar treatment is to be allowed for those Government employees who have expired." It has further been advised that OM dated 12.10.1998 categorically provides that the retired person would have no right for actual promotion and all promotions would be effective prospectively.

Accordingly, the department vide its Office Order dated 23.06.2014 (Annexure R-7) had approved the inclusion of the name of the applicant with two other retired/expired officers in the extended Select List 2003 for Assistant Grade of CSS against seniority quota in terms of the provisions contained in the OM dated 14.07.2009 with clear information that above officials have no right to actual promotion as per DoP&T OM dated 14.02.2014. However, DoP&T vide OM dated 4.11.2015 (Annexure R-12) had clarified that since promotion order of the retired officials need not be issued, they would not get any financial benefit. Therefore, it was decided not to include the names of retired officials in Select List 2003 of Assistant Grade, which has been communicated to the applicant vide impugned Annexure A-1 order.

Regarding the averments of the applicant in para 5.3, the respondents have vehemently denied that the DoP&T vide its OM dated 14.11.2014 invited reference to their OM dated 12.10.1998 regarding consideration of retired employees who were within the zone of consideration in the relevant year(s) but are not actually in service when the DPC is being held, which clarifies that "Name of retired officers who were in service in the year for which DPC is being held are to be considered for determining correct zone consideration. Such retired officials would however have no right for actual promotion".

The respondents have also filed a short affidavit dated 07.03.2018 in pursuance of the order of the Tribunal dated 30.01.2018 whereby they were directed to clarify whether any of the juniors to the applicant were promoted with effect from the date prior to the date of superannuation of the applicant. In the short affidavit the respondents have admitted that vide Office Order dated 24.08.2009 they have appointed 25 regular UDCs of the CSCS cadre as Assistants with immediate effect in the pay band of Rs.9300-34800 with Grade Pay of Rs.4200/- in the CSS cadre on regular basis. Ms. Sushma Malhotra, who was immediate junior to the applicant, was also promoted by the said Office Order but no junior to the applicant was, however, promoted prior to the date of his superannuation.

The applicant has also filed rejoinder to the short affidavit filed by the respondents in which he has placed reliance on the judgment of the Hon'ble High Court of Delhi in C.B. Singh v. The Secretary, Ministry of Agriculture and Others, [W.P. (C) No.7937/2011, decided on 24.09.2011], wherein it has been held as follows:

"4. The learned counsel for the petitioner also drew our attention to the orders dated 20.11.2009 whereby 93 persons were appointed as regular Assistants of the CSS against the select list for the year 2003. The learned counsel for the petitioner drew our attention specifically to persons shown at Serial No.20 (Smt. Yashwanti Devi) who had retired voluntarily; Serial No.81 (Sh. Kamla Ram) who had also retired; and Serial No.90 (Smt. Sunita Rohella) who had also retired voluntarily. The learned counsel for the petitioner then drew our attention to the answer received by him on a query under the Right to Information Act, 2005 wherein the respective dates of retirement of the said Smt. Yashwanti Devi, Sh. Kamla Ram and Smt. Sunita Rohella have been set out. As per the said information, Smt. Yashwanti Devi took voluntary retirement on 04.06.2008; Sh. Kamla Ram retired on 31.07.2009 and Smt. Sunita Rohella took voluntary retirement on 03.08.2009. The said response dated 05.09.2011 to the RTI query also indicates the dates when the DPC was held. It is revealed that the DPC was held on 10th and 11th of September, 2009 and then on 22nd, 23rd and 26th of October, 2009.

From the above, the learned counsel for the petitioner has been successful in demonstrating that when the DPC was convened in September-October, 2009, the said Smt. Yashwanti Devi, Sh. Kamla Ram and Smt. Sunita Rohella had all retired. Yet, their cases were considered by the DPC and they were granted notional regularization w.e.f. 01.07.2003.

The learned counsel for the petitioner also indicated that in the list of 93 persons, who were appointed on regular basis as Assistants w.e.f. 01.07.2003, the petitioner, as per his seniority, would be above Serial No.33 (Sh. Ajeet Singh) and below Serial No.32 (Smt. Manjula Verma).

The learned counsel for the respondent supported the decision of the Tribunal and submitted that there was no case for any interference. However, considering the circumstances, we feel that since the appointments of Assistants on regular basis against the select list for the year 2003 was made w.e.f. 01.07.2003, the petitioner ought not to have been ignored in the DPC held in September-October 2009. There are two reasons for this. The first reason is that on 01.07.2003 the petitioner had not retired and persons junior to him have been given appointments as Assistants on regular basis from that date. The second reason being that even persons who had retired prior to the convening of the DPC in September-October, 2009, have been considered by the DPC and have been given appointment as Assistants of the CSS on a regular basis against the select list for the year 2003. Such persons being Smt. Yashwanti Devi, Sh. Kamla Ram and Smt. Sunita Rohella, about whom we have already mentioned above.

In view of the foregoing, as well as the decision of a Division Bench in the case of P.G. George (supra), we are clear that the petitioner ought not to have been ignored from the DPC convened in September and October, 2009 for the select list of 2003. Consequently, we direct the respondent to convene a review DPC for the year 2003 and consider the case of the petitioner for appointment as an Assistant of the CSS on a regular basis against the select list of the year 2003. If he is found fit then he shall be granted notional appointment as an Assistant of the CSS w.e.f. 01.07.2003 and shall be given consequential retiral benefits. However, since the petitioner is no more, the benefit would be given to the widow namely Smt. Resham Devi. The review DPC be convened within six weeks .

The writ petition is allowed as above. There shall be no order as to costs."

We have heard the learned counsel for both the parties and perused the material placed on record and also the judgments relied upon by the parties.

In short, the issue involved in this OA is whether applicant is entitled to the relief claimed by him. This similar issue has been dealt with in detail by the Hon'ble High Court of Delhi in C.B. Singh's case (supra) which is quoted above. From the said order, it is amply clear that the applicant is entitled to the relief claimed in the OA.

Hence, the OA is allowed and the impugned order dated 08.01.2016 at Annexure-A/1 is quashed and set aside. The respondents are directed to include the name of the applicant in the Assistants Select List of 2003 and hold a review DPC to consider his case for promotion vis-a-vis Assistants who have already been promoted. If found fit for promotion, the applicant shall be entitled to all consequential benefits. However, he is entitled for payment of arrears, if any, w.e.f. 15.02.2016, i.e. the date of filing of this OA. This exercise be completed within three months from the date of receipt of a certified copy of this order. No costs.