Omana K.C. vs Union Of India & Ors.

Justice K.Haripal

Applicant is an Assistant Engineer in Military Engineer Service, presently working in Thiruvananthapuram. She is a B.Tech holder. She was recruited as Superintendent B/R on 09.11.1987, which post was subsequently re-designated as Junior Engineer (Civil). She was promoted as Assistant Engineer on 23.11.2003 and is continuing as such. The applicant is deeply aggrieved by non-consideration of her claim for promotion as Executive Engineer. According to the applicant, an Assistant Engineer, after the residency period of 8 years, is entitled to be considered to the post of Executive Engineer. She had qualified to become Executive Engineer on 23.11.2011. She should have been considered against the vacancies from 2012-2013 to 2015-2016. But on account of the non-feasance and mis-feasance on the part of the respondents, her legitimate promotion as Executive Engineer is inordinately delayed. Aggrieved by the same, she had made numerous representations, which were not considered. Then she approached this Tribunal with O.A.794/2019, which was considered and disposed of at the stage of admission itself, directing the 2^nd respondent to consider the representation filed by the applicant and to take a decision in accordance with the rules within a period of 45 days from the date of receipt of a copy of the order. In purported compliance of that direction, Annexure-A8 order was passed, without properly addressing the question and without application of mind. Aggrieved by the same, the applicant has approached this Tribunal for quashing Annexure-A8 and to direct the respondents to consider her promotion as Executive Engineer against the vacancies of the period from 2012-2013 to 2015-2016 and to promote her against one of the vacancies with all consequential benefits including seniority, notional date of appointment, arrears of pay with interest etc.

According to the applicant, when her promotion was inordinately delayed, she made application under the Right to Information Act and obtained details. Annexure-A2 information supplied under the Right to Information Act shows that upto 2015-2016 there were 124 vacancies of Executive Engineer available for promotion from the feeder post of Assistant Engineer. The split up figures are, 35 vacancies during 2012-2013, 34 vacancies during 2013-2014, 30 vacancies in 2014-2015 and 25 vacancies in 2015-2016. Annexure-A3 is the all India seniority list of Assistant Engineers (Civil and E/M) as on 01.04.2016. Going by the seniority list, the name of the applicant appears in sl.No.121. In other words, when there were 124 vacancies till 2015-2016 the name of the applicant appears in sl.No.121, in all probability, she had legitimate expectation of getting promotion within a short time. But the respondents did not take action for filling the vacancies. Annexure-A5 issued on 27.05.2019 is the promotion list of Executive Engineers from Assistant Engineers which contains list of only 79 promotions. That means, the applicant was not considered and that made her to move Annexure-A6 representation. When that was not considered, she filed O.A.794/2019 before this Tribunal and then Annexure-A7 order was passed. Annexure-A8 order was passed as directed by this Tribunal. According to her, Annexure-A8 has been issued without application of mind and without considering the available vacancies as shown in Annexure-A2. The respondents have not taken steps for filling up the vacancies from 2016-2017 onwards and are not stating any reason as to why there is so much delay on their part and that made her to move this Tribunal again, for quashing Annexure-A8.

The respondents have filed reply statement disputing the contentions of the applicant. They have not disputed the service history of the applicant and her qualifications. But the claim that there were 124 vacancies during 2012-2016 is disputed. According to them, there were only 115 vacancies and the seniority position of the applicant as claimed is incorrect. Her position is 165 and not 121 as claimed by her. According to them, Annexure-A3 seniority list stands withdrawn by the communication of the Engineer-in-Chief, so that Annexure-A3 is not holding the field. Out of the 115 vacancies, as shown in the split up figures in the reply, 38 had to be filled up by promoting Scheduled Caste and 19 were reserving for Scheduled Tribes. All the vacancies have been filled up by conducting DPC held on 03/04 September 2015. The name of the applicant has been considered for promotion against vacancies of the year 2017-2018 to 2020, for which DPC proposal was submitted to the UPSC, but due to stay/status quo granted by the Hon'ble Courts, the DPC for promotions could not be conducted.

According to the respondents, the representation given by the applicant was considered and Annexure-A8 has been passed taking into account all aspects correctly and there is absolutely nothing to interfere with the view taken by them. So, the O.A. is sought to be dismissed.

We heard Sri.R.Sreeraj, the learned counsel for the applicant and Sri.Thomas Mathew Nellimoottil, the learned Senior Panel Counsel, in great detail. Learned counsel for the applicant filed an argument note also.

The learned counsel for the applicant submitted that from 2011 onwards the applicant had become eligible to be promoted. She is a Scheduled Caste candidate. But it is unfortunate that the matter is being delayed indefinitely. The applicant is retiring in April 2024; even though she had been fighting it out either by filing representations or approaching this Tribunal, has been denied the privilege of promotion and to retire from post of Executive Engineer despite the fact that she had become eligible to be considered for that post from 2011 onwards. According to the learned counsel, Annexure-A2 clearly indicates that there were 124 vacancies. At that time, the applicant was sl.No.121 in Annexure-A3 seniority list. According to the learned counsel, out of the 120 persons placed above her in the seniority list, 22 persons had already retired. Thus her actual position is sl.No.99. Out of them, only 80 were promoted and 45 vacancies remained to be filled up from 2012-2013 onwards. The negligence on the part of the respondents is beyond explanation and therefore, the respondents should be directed to conduct the DPC forthwith and to promote her.

On the other hand, according to the learned Senior Panel Counsel, the actual vacancy was only 115 and what is shown in Annexure-A2 as 124 includes extended list of 9 for compensating the retirements taking place during the period. According to him, there is no negligence or lethargy on the part of the respondents, the delay has occurred due to the orders of Courts and the respondents are always enthusiastic in filling up the vacancies.

It has become clear that the applicant is retiring on 30.04.2024. It is unfortunate that a Graduate with B.Tech who had joined service way back in 1987 is running from pillar to post for getting her legitimate promotion to the post of Executive Engineer. Even after putting in more than two decades as Assistant Engineer, it appears, the respondents are not taking seriously her prayer for promotion to the post of Executive Engineer. The residency period for an Assistant Engineer to become Executive Engineer is 8 years. She became qualified in 2011. Vacancies from 2012 were remaining unfilled which were filled up only in 2015. Even though it was claimed that her position in the Annexure-A3 seniority list is 121, according to the respondents, Annexure-A3 stands replaced by Annexure-R1 in force, where her position is 165. It is also pointed out that none of her juniors have been promoted. Moreover, after 2015, the DPC has not met and proposals for promotion to the post of Executive Engineer have not been considered. Even though it is stated that the matter is entangled in various litigations, stay orders and orders of status quo passed by the Courts, the respondents have not taken care to give the details.

Moreover, it is submitted that the applicant is retiring in April 2024. The learned counsel has aired her apprehension that once she retires on superannuation, her legitimate aspiration to get promoted as Executive Engineer, will remain a dream. It has also become clear from the version of the respondents that she is entitled to be considered for the vacancies from 2017 onwards.

At this belated stage we are not delving into the controversies like the seniority position of the applicant or whether the vacancies were considered in panel year or in vacancy year etc. It has become clear that the applicant had come in the zone of consideration from 2017 onwards. The promotion is delayed because of the administrative delay since the DPC has not been met. Even though it was submitted that such delay has occurred beyond the control of the respondents, owing to the orders passed by the Courts, the respondents have not furnished details of any such litigation. Whatever it may be, it is clear that after 2015 the DPC has not met and proposal for her promotion has not been considered. That would, no doubt, cause considerable prejudice and hardships and resultant loss to the applicant. Therefore, we direct the respondents to convene the DPC within a period of 90 days from the date of receipt of a copy of this order and consider the entitlement of the applicant to be promoted as Executive Engineer from the period in which she had fallen in the zone of consideration. It goes without saying that even after retirement, her claim for promotion does not vanish and effect of promotion shall be considered even notionally; once she is found fit, all the benefits including arrears of pay, seniority and such other benefits flowing from retrospective effect of promotion, shall be granted to her.

With these directions, the Original Application is disposed of. We make no order as to costs.

Annexure A-8: True copy of the Order B/41025/ Legal Engineers/OKC/ E1DPC dated 24.2.2020 issued on behalf of the 2^nd respondent

Annexure A-1: True copy of the relevant portions of the SRO-95 of 2004

Annexure A-2: True copy of the Letter No. B/4 1006/RTI/ORC/E1 (DPC) dated 10.7.2019 issued by the 2nd respondent

Annexure A-3: True copy of the All India Seniority List of AE (C) & ΑΕ (E/M) circulated as per Letter No. B/41023/AISL/AE(Civ) and AE (E/M)/2016-17/E1(DPC) dated 19.7.2016

Annexure A-4: True copy of the representation dated 18.6.2018 submitted by the applicant

Annexure A-5: True copy of the Letter No. MES/36/2019/EIB dated 27.5.2019

Annexure A-6: True copy of the representation dated 21.08.2019 submitted by the applicant

Annexure A-7: True copy of the final order dated 5.11.2019 in OA 794/2019 on the file of this Hon'ble Tribunal

Annexure R1: A true copy of the promotion panel finalised as per the revised All India Seniority List of AE (B/R) and AE (E/M) as on 01.07.2013 issued on 14.02.2014

Annexure R4: A true copy of the year wise vacancy calculation sheets