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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)That the action of the respondents in not convening the DPCs timely as per DOPT instructions be declared as illegal and arbitrary.
b)That the impugned notification dated 12.11.2021 (Annexure A-1), to the extent, issuing impugned seniority list and impugned promotion orders dated 27.01.2021 (Annexure A-8), to the extent, not promoting the applicants from due dates, be declared wholly illegal, arbitrary in the eyes of law, having been passed in gross violation of DOPT instructions, principles of natural justice, being ignoring the Recruitment Rules for promotion and overlooking the fact that applicant cannot be made to suffer for the lapse of respondents.
c)That accordingly applicants be held entitled for promotion to the post of FGM (SK) and Electrician (SK) from due date i.e. w.e.f. 18.04.2016 and 02.04.2016 with all consequential benefits, when they have completed requisite 3 years of service in accordance with DOPT OM dated 08.09.1998 (Annexure A-5) and dated 27.10.2016 (Annexure A-6) as per law laid down in the judgments of Hon'ble Supreme Court in Hem Raj Singh Chauhan's case, Delhi Jal Board's case, judgment of Hon'ble Punjab and Haryana High Court in the case of R.N. Aggarwal's case and the judgment of Hon'ble Delhi High Court in the case of S.C. Kohli (supra).
d)That it be declared that since trade tests for the post of Skilled and Highly Skilled have been taken belatedly, which have been cleared by the applicants in their first attempt the same will not affect the promotions of the applicants from due date i.e. w.e.f. 18.04.2016 and 02.04.2016 respectively. Furthermore, applicants be also given promotions to the post of Highly Skilled-II from due dates as per Recruitments Rules, when they have completed the eligibility service with all consequential benefits.
e)That this Hon'ble Tribunal may also pass any other order for the grant of relief to the applicants, which it may deem fit in the peculiar facts and circumstances of the case.
f)That cost of the application may also be awarded in favour of the applicants.
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The applicants are working under the Military Engineer Services (MES), Applicant No.1 as FGM (Skilled) and Applicant No.2 as Electrician (Skilled), under Respondent Nos.4 and 5 respectively. They were initially appointed as Mate (Semi-Skilled) on 18.04.2013 and 02.04.2013 respectively and were categorized as Mate FGM and Mate Electrician from the dates of their joining.
The case of the applicants is that, under the applicable Recruitment Rules, promotion from the Semi-Skilled grade to the Skilled grade required completion of three years of regular service and qualifying the prescribed trade test. According to them, upon completion of three years of service, Applicant No.1 became eligible for promotion as FGM (Skilled) with effect from 18.04.2016, whereas Applicant No.2 became eligible for promotion as Electrician (Skilled) with effect from 02.04.2016. They contend, however, that the respondents failed to convene the DPCs for the relevant recruitment years in time and also delayed the conduct of the requisite trade tests. The applicants subsequently qualified the trade test in their first attempt.
The applicants rely upon the DoPT instructions governing timely convening of DPCs and contend that the departmental authorities were required to anticipate vacancies and hold DPCs at regular intervals so that eligible employees did not suffer on account of administrative delay. They maintain that the failure of the respondents to convene the DPCs and conduct the trade tests within the prescribed time could not legitimately prejudice their promotional prospects.
It is further pleaded that the applicants had earlier approached the Chandigarh Bench of this Tribunal in O.A. No.061/271/2019, Subhash Chander and others v. Union of India and others, which was decided on 05.03.2019 with a direction to the respondents to consider and decide their representations/legal notice regarding promotion from the due dates. Pursuant thereto, Respondent No.3 passed an order dated 30.04.2019 wherein, according to the applicants, delay in holding the DPCs for MCM for the years 2010-11 to 2015-16, resulting in consequential delay in other DPCs, was acknowledged.
The applicants were ultimately promoted to their respective Skilled grades vide order dated 27.01.2021, but only prospectively. Their grievance is that the delay of several years was attributable entirely to the department and has adversely affected their pay, increments, seniority and further promotional prospects to the post of Highly Skilled-II. They contend that the qualifying service for further promotion is being reckoned only from the date of their actual promotion instead of the date from which they claim entitlement to promotion.
Aggrieved, the applicants submitted representations dated 27.10.2021. During their pendency, the respondents issued notification dated 12.11.2021 circulating the seniority list of the Skilled grade and initiating the process for promotion from Skilled to Highly Skilled-II. Since the applicants’ seniority in the Skilled grade was reckoned only from their actual promotion in 2021, they approached this Tribunal seeking, inter alia, retrospective/notional promotion to FGM (Skilled) and Electrician (Skilled) from 18.04.2016 and 02.04.2016 respectively, with consequential benefits and corresponding consideration for further promotion.
The respondents have filed their written statement wherein they have averred as follows: -
The respondents have opposed the O.A. and, by way of preliminary objections, pleaded that the applicants have suppressed material facts and that the O.A. has not been filed in accordance with the prescribed procedure. On merits, the respondents do not dispute the initial appointments of the applicants but specifically dispute their assertion that they were eligible for consideration in the DPC for the recruitment year 2016-17.
According to the respondents, promotion from Mate (FGM)/Mate (Electrician) to FGM (Skilled)/Electrician (Skilled) is subject to fulfillment of two mandatory conditions. First, an employee must have completed three years of continuous service in the feeder grade as on 1st April of the relevant DPC year, which is treated as the crucial date for determining eligibility. Secondly, the employee must have passed the prescribed trade test as on that date. Reliance has been placed upon SRO No.204 dated 12.09.1991 and the relevant DoPT Office Memoranda.
The respondents state that Applicant No.1, appointed on 18.04.2013, completed three years of service only on 17.04.2016, whereas Applicant No.2, appointed on 02.04.2013, completed the requisite period on 02.04.2016. Both applicants passed the trade test only on 28.09.2016. Thus, as on the crucial date of 01.04.2016, neither applicant satisfied all the prescribed conditions. On this basis, the respondents maintain that the applicants were not eligible for promotion in the DPC for the year 2016-17 and became eligible only for consideration in the DPC for 2017-18.
With regard to the delay in convening DPCs, the respondents explain that DPCs for the MCM category for the years 2010-11 to 2015-16 could not be held in time due to administrative constraints. Since promotions in the tradesmen hierarchy constitute a chain process, vacancies in the lower grades could be determined only after promotions in the higher grades had been finalized. They assert that, after 2015-16, DPCs have been conducted according to the prescribed time schedule.
The respondents have further relied upon paragraphs 6.4.1 and 6.4.4 of the DoPT O.M. dated 10.04.1989 governing cases where DPCs could not be held for several years. According to them, the procedure requires preparation of year-wise panels with reference to the vacancies and eligible officers for each relevant year. However, promotions made pursuant to such delayed DPCs are to operate prospectively even where the vacancies relate to earlier years.
It is accordingly asserted that the applicants were considered for promotion in the DPC for 2017-18, being the year in which they fulfilled the eligibility requirements. The respondents further contend that their seniority has been fixed in accordance with the applicable DoPT instructions and that there is no adverse impact upon their future promotional rights except as flowing from the applicable rules.
The respondents also state that the representations submitted by the applicants were replied to vide communication dated 07.12.2021. The applicants were called to appear before the competent authority for personal interaction so that their grievances could be addressed. According to the respondents, instead of availing that opportunity, the applicants approached this Tribunal and, therefore, no ground for interference is made out.
The applicants have filed their rejoinder to the written statement filed by the respondents wherein they have averred as follows:-
In rejoinder, the applicants have denied the preliminary objections and reiterated that there has been no concealment or suppression of any material fact. While they do not dispute the existence of the eligibility conditions referred to by the respondents, they strongly dispute the respondents' conclusion that the delay in the trade test and DPC can operate to their prejudice.
The applicants contend that the responsibility for conducting the trade test rested exclusively with the respondents. Relying upon departmental instructions dated 23.10.2000, 31.01.2007 and 04.03.2013, they assert that eligible employees could be permitted to undertake the trade test even before completion of three years of service in the Semi-Skilled grade. Therefore, had the respondents conducted the trade tests at the appropriate time, the applicants could have qualified them before the relevant eligibility date. They submit that the respondents cannot take advantage of their own delay and then deny the applicants promotion on the ground that the trade test was passed subsequently.
The applicants further emphasize that the respondents themselves have admitted delay in convening the DPCs on account of "administrative constraints", without specifying what those constraints were. According to the applicants, paragraph 6.4.4 of the DoPT O.M., relied upon by the respondents to justify prospective promotion, applies where DPCs could not be held for reasons beyond the control of the authorities. They contend that ordinary administrative delay or laxity cannot be treated as such a circumstance. They further submit that the provision does not prohibit grant of notional promotion from the relevant vacancy year, particularly where an employee was deprived of timely consideration for reasons attributable to the administration.
The applicants maintain that the delayed promotion to the Skilled grade has had a cascading effect upon their eligibility for promotion to Highly Skilled-II because the requisite qualifying service for the higher post is being reckoned only from their actual promotion. They rely upon decisions of the Chandigarh Bench of this Tribunal in DSP Ram Gopal v. Union of India, O.A. No.060/1359/2017 decided on 24.11.2020, and Rajesh Bansal v. Union of India, O.A. No.060/372/2019 decided on 30.09.2020, in support of their plea for notional promotion from the relevant vacancy year.
Lastly, the applicants dispute the respondents’ contention regarding the opportunity of personal hearing. Applicant No.1 asserts that he was never informed by his unit to appear before the competent authority, whereas Applicant No.2 states that he did appear but was allegedly asked to withdraw his representation. They further plead that, since the respondents had already initiated the process for further promotion to Highly Skilled-II while treating their Skilled-grade seniority only from 2021, an immediate approach to the Tribunal became necessary to protect their promotional prospects.
Heard learned counsel for the parties and perused the pleadings made by them.
During the pendency of the O.A., the applicants filed M.A. Central Administrative TribunalNo.123/2026 under Rule 8(3) of the Central Administrative Tribunal (Procedure) Rules, 1987 for bringing on record a document dated 18.06.2019 as Annexure A-13. The document is a year-wise select panel pertaining to promotion from Mate FGM to FGM (Skilled) for the period from 26.10.2011 to 31.03.2018, issued by Headquarters 135 Works Engineer.
The applicants rely upon Annexure A-13 to contend that, in an earlier belated selection exercise, the respondents themselves assigned seniority with reference to the respective panel years. The panel for 2014-15 reflects seniority from 01.04.2015, whereas the panel for 2015-16 reflects seniority from 01.04.2016. According to the applicants, since they were considered for promotion against the panel year 2017-18, their seniority ought not to have been reckoned only from their actual promotion in 2021.
We have heard learned counsel appearing for the parties and carefully perused the pleadings and material placed on record. The controversy essentially involves two distinct questions. First, whether the applicants can claim promotion to the Skilled grade from 18.04.2016 and 02.04.2016 respectively; and secondly, even if such claim is not sustainable, whether their seniority after being considered against the 2017-18 panel requires reconsideration, particularly in light of Annexure A-13.
So far as the first issue is concerned, the material on record does not persuade us to accept the applicants’ claim for promotion from the dates in April 2016. The eligibility requirements pleaded by the respondents require completion of three years of continuous service and passing of the requisite trade test as on the crucial date of 1st April of the relevant DPC year. The factual position regarding the dates is not seriously in dispute. Applicant No.1 completed three years only after 01.04.2016; Applicant No.2 also completed the stipulated period after 01.04.2016; and both applicants passed the trade test on 28.09.2016.
Therefore, whatever may have been the reasons for delay in conducting the trade test, this Tribunal cannot, merely on that basis, treat the applicants as having actually fulfilled a mandatory eligibility condition on a date when the same had not been fulfilled. Eligibility for promotion has to be tested with reference to the governing rules and the prescribed crucial date. Accordingly, the applicants’ claim that they ought to have been promoted in the 2016-17 DPC cannot be accepted.
The matter, however, does not end there. The respondents themselves categorically state that the applicants became eligible for promotion for the DPC year 2017-18 and were considered accordingly. Thus, their eligibility for consideration against the 2017-18 panel is not in controversy.
It is at this stage that Annexure A-13 assumes relevance. The applicants have produced the year-wise select panel dated 18.06.2019 to demonstrate that, in an earlier exercise undertaken by the respondents after considerable delay, the persons selected against particular panel years were assigned dates of seniority corresponding to those panel years. The document, therefore, cannot simply be ignored while examining whether the applicants, admittedly considered against the panel year 2017-18, have been treated consistently with other employees governed by the same regime.
At the same time, Annexure A-13 by itself does not furnish sufficient material for this Tribunal to conclusively hold that every employee appearing therein was identically situated to the present applicants in all material respects. The record before us does not comprehensively disclose the Recruitment Rules applicable to each such employee, the dates on which each fulfilled all eligibility conditions, the precise administrative decision pursuant to which the dates of seniority mentioned in Annexure A-13 were assigned, or whether any distinguishing circumstance existed.
Thus, it would not be appropriate to mechanically direct fixation of the applicants’ seniority from a particular date solely on the basis of Annexure A-13. Equally, however, the respondents cannot disregard their own earlier treatment of employees under year-wise panels if the applicants are otherwise similarly situated and governed by the same statutory and administrative framework.
Administrative authorities are required to maintain consistency in Central Administrative Tribunalmatters affecting service rights. Where a particular treatment has been extended to employees under the same rules and materially identical circumstances, departure therefrom in the case of another employee must rest upon an intelligible and legally sustainable distinction. The applicants are, therefore, entitled at least to a proper consideration of their claim for seniority with reference to the 2017-18 panel, taking into account the precedent reflected in Annexure A-13.
We also find substance in the applicants’ contention that seniority in the Skilled grade has a direct bearing upon their further promotional prospects. Their rejoinder specifically states that reckoning their Skilled-grade service only from the actual date of promotion affects the qualifying service required for promotion to Highly Skilled-II. Therefore, the issue is not merely academic and requires a reasoned determination by the competent authority.
We are conscious of the respondents’ reliance upon para 6.4.4 of the DoPT O.M. dated 10.04.1989, which provides that promotions made pursuant to delayed year-wise DPCs would ordinarily have prospective effect. However, the applicants’ present contention based upon Annexure A-13 concerns not merely the date of actual promotion but the treatment of seniority accorded by the respondents themselves in earlier year-wise panels. Whether that treatment was based upon a particular rule, instruction, judicial direction or factual circumstance is a matter that ought first to be examined by the competent authority on the relevant service record.
In these circumstances, we are of the considered view that the ends of justice would be adequately met by declining the applicants’ claim for promotion from April 2016 while directing the respondents to reconsider the limited question of their seniority arising out of their consideration against the panel year 2017-18. Such consideration shall specifically address Annexure A-13 and determine whether the persons covered thereunder and the present applicants are similarly situated for the purpose of fixation of seniority.
We clarify that this direction shall not be construed as a declaration that the applicants are automatically entitled to seniority from 01.04.2018 or from any other particular date. The competent authority shall determine the same strictly in accordance with the applicable Recruitment Rules, DoPT instructions and the principle of consistent treatment, after examining the basis upon which seniority was assigned to the employees reflected in Annexure A-13.
In view of the foregoing discussion, the Original Application is partly allowed in the following terms:
The prayer of the applicants for promotion to FGM (Skilled)/Electrician (Skilled) with effect from 18.04.2016 and 02.04.2016 respectively is declined.
The respondents/competent authority are directed to reconsider the fixation of seniority of the applicants in the Skilled grade with reference to their admitted consideration against the panel year 2017-18.
While undertaking the aforesaid exercise, the competent authority shall specifically examine the year-wise select panel Central Administrative Tribunaldated 18.06.2019 brought on record as Annexure A-13, the basis on which seniority was assigned with reference to the respective panel years therein, and whether the applicants are similarly situated to the employees covered by the said document under the same Recruitment Rules and governing instructions.
In the event the applicants are found similarly situated and no legally sustainable distinguishing circumstance exists, they shall be extended the same treatment in the matter of fixation of seniority, with consequential consideration for further promotion to the next higher grade, subject to fulfillment of the applicable eligibility conditions.
Needless to state, if any consequential monetary benefit arises as a result of such exercise, the same shall be regulated strictly in accordance with the applicable rules and instructions.
The entire exercise shall be completed by the competent authority by passing a reasoned and speaking order within a Central Administrative Tribunalperiod of three months from the date of receipt of a certified copy of this order.
The O.A. stands partly allowed and disposed of in the aforesaid terms. No order as to costs.