1. In this OA, validity of Order dated 20th April, 2004 passed by co-ordinate Bench at Ernakulam of this Tribunal in OA No 134/2002, allowing Respondent No -3 OA No 134/2002, directing respondents NO 1-2 to place him in seniority list of Section Officer w.e.f. 31.5.1990, has been challenged.
A That the official respondents be directed to produce the relevant records pertaining to the absorption of Respondents No 3 for the perusal of this Hon'ble Tribunal.
B That the judgment and Order dated 20.4.2004 passed by the Ernakulam Bench of this Hon'ble Tribunal in OA. NO 134/2002 be referred to a larger Bench/Full Bench and reconsidered/reopened and declared as unsustainable in law; and the consequent revision of seniority as envisaged vide O.M. dated 6.1.2005 be quashed and set aside.
C That the initial appointment on deputation and subsequent absorption of Respondent No 3 be held as having been made not in accordance with the provisions of the relevant recruitment rules and therefore, bad in law and thus does not count for the purpose of seniority etc. That in the alternative, this Hon'ble Tribunal may be pleased to further hold that the absorption of the Respondent No 3 was not strictly in public interest and he is therefore, entitled to seniority with effect from the date of his absorption only.
D Pass any such other or further order or direction as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of this case.
a) On constitution of Central Administrative Tribunal under the Administrative Tribunals Act, 1985, w.e.f. 1.11.1985, various officials in different categories were taken on deputation.
Applicants were also one set of officials. Applicants as well as others were absorbed in different capacities/grade and seniority lists were prepared. As per the RRs so framed & notified on 20.9.1989 known as Central Administrative Tribunal (Group 'B' & 'C' Miscellaneous posts) Recruitment Rules, 1989, Court Officers/ Section Officers, Group B Gazette post, is joint/combined cadre, to be filled 50% by direct recruitment failing which by Transfer/Transfer on deputation, and 50% by promotion failing which by Transfer on deputation. Assistant with 8 years regular service in the pay scale of Rs. 1400-2600 or equivalent is eligible for promotion. Later, Respondent No 3 was also taken on deputation in the same scale & post and absorbed. The grievance arose when their seniority had been determined.
Following chart would show their background details, in their parent department, besides absorption & comparison at glance: Applicant No 1 Steno Gr 'D'- Rs. 330-560- Min. of Finance w.e.f.
29.6.1979 Came on deputation to CAT as Court Master, higher grade in scale of Rs. 425-800 w.e.f. 28.2.1986 & absorbed w.e.f. 1.11.1989 Promoted as Sr. P.A. in scale of Rs. 2000-3200 w.e.f. 8.5.1991 Private Secretary w.e.f. 25.10.93, in scale of Rs. 2000-3500 Deputy Registar- ad-hoc w.e.f. 19.11.2003 in scale of Rs 10,000-15,200.
Applicant No 2 UDC-Delhi HC- on 15.5.1984 on officiating basis in pay-scale of Rs 330-560 (initially appointed as LDC in the year 1975) Came on deputation to C.A.T. as Asstt, in one higher post w.e.f 8.1.1986 in scale of Rs.425-800 & absorbed w.e.f 1.11.89 Promoted as Court Officer/Section Officer w.e.f. 3.5.1994 in scale of Rs. 2000-3500 ( in relaxation of RRs, as Asstt. Is required to have 8 years regular service in the grade, vide Order dt. 9.4.1994 in F. No 1/5/94/SO- Estt.) Promoted as Deputy Registrar- adhoc w.e.f. 24.12.2004 Respondent No 3 Assistant- in Central Sectt. In scale of Rs. 425-800. w.e.f 22.5.1980. Promoted as Section Officer- 31.5.1990 in Central Sectt. Pay-scale Rs. 2000-3500 Deputation to C.A.T as Section Officer in scale of Rs. 2000-3500 w.e.f.
28.12.1992. Absorbed as S.O. w.e.f 19.6.1997 Refused to join ad-hoc Deputy Registrar, offered to him vide Memo dt 19.4.2005 b) A draft Seniority list of Section Officers/Court Officers was circulated on 28.7.2000, wherein R-3 was placed at Sl. No 67. Being aggrieved, he filed representation dt 2.8.2000, & on consideration made, another seniority list dt. 12.2.2001 was issued, wherein he was placed at Sl. No 58. Being dissatisfied with said placement, he preferred OA No 134/2002, contending that based on dicta laid by Hon'ble Supreme Court in SI, Rooplal v. Lt.
Governor as also DoP&T OM dt. 27.3.2001, he should have been assigned seniority reckoning his regular service as Section Officer in his parent department i.e 31.5.1990 and respondents action in assigning him seniority only w.e.f. 19.6.1997 i.e. the date of his absorption in CAT, was irrational, unjust & unsustainable. Despite respondents resistance & raising objection, including non-joinder of parties, said OA was allowed vide Order dt.
20th April, 2004. It was held therein that the contention that grant of higher seniority to the applicant would affect as many as 28 persons whose name are in the seniority list is not a justifiable reason to suppress the seniority of the applicant to which he is otherwise entitled. Vide para 6 of the Order, the Tribunal further recorded the findings in the following manner: 6. Having found that the applicant is entitled to have a declaration that he is entitled to be fixed in the seniority list of Section Officers with effect from 31-5-1990, we have to decide what other reliefs the applicant would be entitled to. It goes without saying that revision of the seniority list of Section Officers/Court Officers would consequently confer on the applicant a right to be considered for promotion to the next higher grade with effect from the date on which the person immediately below him in the corrected seniority has been considered for such promotion. If he is promoted to a higher post on this basis, he will have the right to have his pay fixed notionally and for arrears of pay and allowances.
7. In the light of what is stated above, the Original Application is allowed. The impugned seniority list Annexure A1 to the extent it placed the applicant at Sl. 58 only is set aside, declaring that the applicant is entitled to have his seniority as Section Officers fixed with effect from 31-5-1990. We direct the respondents to give the applicant appropriate placement in the seniority of Section Officers/ Court Officers reckoning his seniority in the grade with effect from 31-5-1990, to consider the applicant for promotion to the next higher grade of Deputy Registrar with effect from the date on which any person junior to him in such seniority has been considered and promoted and if he is so promoted, to have his pay fixed notionally in the promoted post.
4 Aforesaid Order was accepted by Respondents No 1-2 & as such attained finality. Applicants grievance is that afore-said Order of Ernakulam Bench is un-sustainable in law and liable to be reviewed/recalled and modified. Sh. L.R.Khatana, Ld. Counsel raised the following contentions: a) In final Seniority List of Section Officer/Court Officers/Private Secretary dt. 12.2.2001(A-2), Applicants No 1, 2 as well as R-3 figure at Sl No 39, 44 & 58 respectively. Earnakulam Bench did not consider germane question but simply follow judgment of SI Rooplal (supra) without either analyzing or appreciating peculiar facts of said case.
b) Respondent No 3 was absorbed on 19.6.1997 in response to his willingness Purported exercise of power of relaxation under Rule 7 of aforesaid Rules, 1989, was illegal. Said absorption was not in public interest' There had been no pressing administrative exigencies either. Rather R-3 entry into the cadre was a back door entry. Power to relax cannot be exercised for mere 'ipse-dixit'.
Such power can be exercised by recording reasons in writing and that too when it is 'necessary or expedient'. Reasons have to be germane, plausible and cogent and further relatable to expediency/necessity.
c) R-3 joined Bangalore Bench on deputation as Section Officer on his own volition. Submission of option for absorption in the year 1996 did not mitigate the fact that he was keen to get absorbed on his own volition, which is so reflected vide para 2 of the Order dt.
20th April, 2004. Though his absorption was initially not challenged, but the same has been challenged now as applicants interest is adversely affected now.
d) Who is not appointed legally cannot be allowed seniority over those who were appointed legally like the applicants.
e) Pursuant to aforesaid Judgment & Order revised Seniority list was issued on 6th Jan, 2005 Applicants though made identical but separate representation on 20.1.2005, which remained unconsidered till date.
f) Under Col. 11 of the Schedule annexed to afore-said Rules, 1989, dealing with the cadre in question is crucial. Term 'failing which' has special significance. It connotes contingency, which had never arisen. There exist no provisions in the RRs for 'absorption' in the said cadre. Whether any efforts were made by respondents to fill up the said post by the mode of direct recruitment, as prescribed therein?. According to Ld. Counsel, no efforts were ever made during the year 1985-1997, when R-3 was absorbed. A power has to be exercised in consonance with rules. Absorption of R-3 was the result/outcome of colourable exercise of power, which cannot be sustained in law.
g) Explaining alleged illegalities in Judgment/Order dt 20th April, 2004, it was contended that i) points raised by respondents in reply regarding RRs were not noticed; ii) Bench did not advert to 'own volition' absorption aspect, which had been very crucial; iii) judgment of SI Rooplal (supra) as well as OM issued thereafter by DoP&T were prospective and not retrospective; and iv) contentions not dealt with is a good ground to recall / reconsider the judgment.
Even Ministry of Home Affairs OM 22nd December, 1959 providing general principles for determination of seniority in the Central Services, as amended from time to time, para 7 (iv) provides that fixation of seniority of a transferee in accordance with the principles detailed in earlier para, will not however, affect any regular promotions to the next higher grade made prior to the date of such absorption. Contention raised was that even the said provisions of OM have been breached.
5. Ld. Counsel relied upon following judgments in support of above-noted contentions: Mohd Ibrahim v. State of AP,----Order of reversion challenged on the ground of malafide, not considered by High Court, decision was set-aside & remanded to consider matter afresh according to law.SI Rooplal and Ors v. Lt. Governor, paras 3 & 4 to suggest that said judgment has no universal application and has limited scope. Neither there was any 'dire need' nor law & order problem existed in the present case, which were the basic features to take the official on deputation in SI Rooplal.
Suraj Prakash Gupta v. State of J&K---had somewhat similar rule 5, as of present case Rule 7. The court held that the provisions of RRs can be relaxed for adequacy of reasons- which are open to judicial review.State of Maharashtra v. Jagannath Achyut Karandikar;----No one can be made to suffer for fault of Govt.& its officials in not taking timely action.
not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Judgments of the courts are not be construed as statutes. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
A.K. Bhatnagar v. UOI, para 13- -Action in respect of matters covered by rules should be regulated by the rules. Rules framed are solemn & have binding effect.Workmen of Hindustan Steel Ltd v. Hindustan Stell Ltd and Ors. (para 5)---Reasons to dispense with inquiry must be germane to the issue and not merely a cloak, device or pretence.MMRDA Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority and Anr.----Reasons substitute subjectivity by objectivity. Right to reason is an indispensable part of a sound judicial system.
decision of Administrative Tribunal but adversely affected can file an application under Section 19 of the A.T. Act, 1985.
6. Respondents No 1-2, per contra, strongly contested the claim laid stating Order dt. 20th April, 2004 in OA NO 134/2002, having not been appealed attained finality & further more there is neither any justification nor necessity to recall/modify or amend the said Order and judgment. At the time of initial appointment while Applicants were holding the post of Stenographer Gr-D & UDC respectively, R-3 was holding the post of Section Officer in Central Secretariat Services since the year 1990 and prior to it had been Assistant in the said service & therefore, they were not comparable at all. It was not possible to resort to direct recruitment process due to 'functional reasons', and therefore Hon'ble Chairman vide Order dt. 19.11.1996 relaxed the method of recruitment as detailed under Col. 11 of the RRs. and accordingly decided to fill up the posts by transfer/transfer on deputation basis in the exercise of powers conferred by Rule 7 of 1989 Rules. The said relaxation was 'done as a class or category. The said relaxation was not in an individual case or in respect of Respondent No 3 specific. Both the applicants were promotees whereas R-3 is appointed on transfer/transfer on deputation basis in accordance with the relevant RRs. Contentions raised about back door entry as well as no public interest in R-3 absorption, were specifically denied. Applicants cannot be allowed to invoke power & jurisdiction of this Tribunal as this Bench can't sit in appeal over the judgment/order of Co-ordinate Bench, was the plea raised in the reply.
7. Sh. Vijay Mehta, Ld. Counsel appearing for R1-2 empathetically denied allegations made and pleaded for dismissal of OA, contending that assuming, though not admitting that Earnakulam Bench did not consider points raised, but emphasized that what has to be seen & examined is conclusion drawn therein. If the reasons assigned are correct, justified and a view possible, then in exercise of power of judicial review, there is no justification for this Bench to take a different view. The Bench had culled the issues as noticed in para 1, while reasoning & conclusions are found in paras 5 & 6 of Order dt.
20th April, 2004. Under Rule 7, the competent authority has power, jurisdiction and authority to relax any of the provisions of these rules. The competent authority took onscious decision to relax the rules, based on justifiable reasons and in public interest. There cannot be any comparison between the applicants on one hand and R-3 on the other. Ld. Counsel further contended that official respondents had clearly projected & placed all relevant facts & rules position before the Co-ordinate Bench. Moreover, they have already decided to implement the said Order/judgment. Further more the judgment of SI Rooplal (supra) is not prospective in operation, as suggested by applicant.
Rather the law laid down by the Apex Court is binding on all authorities under Article 141 of the Constitution of India. Strong reliance was placed on SI Rooplal as well as P.V.George v. State of Kerala. Ld. Counsel further contended that examining the facts from either angle, one would find that applicants and respondent No 3 are un-comparable. While both the applicants came on deputation to post, one level higher than the one occupied by them in their parent department, though R-3 came on deputation to the same & equivalent post of Section Officer. In the year 1990, R-3 was regular Section Officer in the Central Secretariat. Neither applicant No 1 nor 2, at that point of time and year, were in the said grade and post.
8. We heard learned Counsel for parties and perused the pleadings besides the original records produced before us.
9. Legal questions, which require adjudication, are as follows: Whether is there any justification to challenge absorption of respondent no.3 at this stage?; Whether order & judgment dated 20.4.2004 in OA No.134/2002 of Ernakulam Bench requires re-consideration or reference to Larger Bench?; What consequential relief, if any, can be granted to applicants?.
10. As far as question of respondent no.3 absorption is concerned, admitted facts are that said respondent no.3 had been absorbed on relaxation of rules by Hon'ble Chairman order dated 19.11.1996 passed in exercise of powers conferred under Rule 7 of Central Administrative Tribunal (Group B & C Misc. Posts) Recruitment Rules, 1989. Said absorption had been resorted to under failing which clause. Respondent no.3 is not the only official, who had been absorbed on such relaxation of RRs. As many as 12 officials were approved for permanent absorption in relaxation of RRs. We do not find justification in the contention raised that said exercise of power was either colourable in nature or based on mere ipse dixit, as projected. On perusal of original records, rather we find that relaxation in rules had been allowed by Hon'ble Chairman for plausible, germane & cogent reasons recorded therein.
Moreover, neither the Order of absorption has been challenged in present proceedings or some other proceedings. In view of facts noticed hereinabove, we are of the considered opinion that initial appointment on deputation and subsequent absorption of respondent no.3 had been in accordance with provisions of relevant recruitment rules besides public interest and at this belated stage the same cannot be allowed to be challenged either directly or indirectly. It is well settled that settled service position should not unsettled after a reasonable period. As said absorption had been made in 1996, it cannot be undone after a decade i.e. in 2007.
11. Coming to basic & principal grievance as to whether order & judgment dated 20.4.2004 in OA No.134/2002 passed by Coordinate Bench at Ernakulam Bench requires re-consideration / recalling and consequential reference to Larger / Full Bench, we may note that reference to Larger / Full Bench can be made only when a Coordinate Bench is not in agreement with findings recorded by earlier Bench.
Perusal of said order dated 20.4.2004, relevant excerpts of which have been noticed hereinabove, would show that objection raised by respondent no.2 regarding non-impleadment of necessary persons as well as the effect of granting higher seniority to applicants would effect as many as 28 persons, had been duly noticed under para-5. But said Bench did not find any merit in the said contention holding that applicant therin was entitled to have seniority as Section Officer reckoned with effect from 31.5.1990. Consequently, OA was allowed to the extent placing him at serial no.58 was set aside and directions were issued to place him in said list at an appropriate place. We have given thoughtful consideration to the contentions raised by applicants and find no justification in said contentions raised, respondent no.3 s appointment was not legal, judgment of S.I. Rooplal was not applicable etc. We may note that in K. Ajit Babu (supra) vide paragraph-6 it was emphasized that: Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the Doctrine of Precedent.The precedent sets a pattern upon which a future conduct may be based. One of the basic principles of administration of justice is, that the cases should be decided alike. Thus the doctrine of precedent is applicable to the Central Administrative Tribunal also. Whenever an application under S. 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in earlier case, as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it dissents, then the matter can be referred to a larger Bench/Full Bench and place the matter before the Chairman for constituting a larger Bench so that there may be no conflict upon the two Benches.
12. We may note at this stage that it is the specific stand of official respondents that aforesaid Coordinate Bench in M.N. Vijayan has been accepted and as such attained finality. Public policy demands that there should be end to law suits and if the view & plea of applicant is accepted proceedings in a case will never come to an end.
13. As far as the reliance on various judgments by the applicants is concerned we may observe that Md. Ibrahim (supra) was a case where plea of malafide was not considered by High Court. Serious allegations made by appellant in his petition to the extent that order of reversion was made out of malice and practically no reply was submitted to that by the State. In these circumstances, judgment of High Court was challenged on the ground that the plea of malafide was not considered and as such there has been no fair trial of petition.
In S.I. Rooplal (supra), basic issue, as noticed from para-2 of said judgment was: whether a Sub Inspector who was appointed as such in Border Security Force, transferred to Delhi Police in the cadre of Sub Inspector (Executive) on being permanently absorbed in transferred post is entitled to count his substantive service as Sub Inspector in BSF for the post of his seniority in the cadre of Sub Inspector (Executive) in Delhi Police or not? Noticing earlier judgment in K. Madhavan and Anr. v. Union of India particularly para-21, wherein it has been observed that full credit must be given to official for substantive service in equivalent post in transferred department while counting his seniority in transferred department, as well as another judgment on equivalency of two posts in Union of India v. P.K. Roy was held that the view taken by Tribunal that posts of Sub Inspector of BSF and Sub Inspector (Executive) in Delhi Police were not equivalent merely on the ground that said post did not carry same pay scale was not justified. Equivalency of two posts was not judged on sole fact of equal pay. Shri L.R. Khatana, learned Counsel, during the course of arguments, drew our attention to paras-3 & 4 vide which background in which officials were taken on transfer was noticed and it was contended that such are not the facts of present case and, therefore, ratio laid down in S.I. Rooplal (supra) was inapplicable to M.N. Vijayan.
In Hindustan Steel Ltd. (supra), the issue raised had been that termination order was passed dispensing disciplinary enquiry. No reasons for dispensing enquiry were recorded. The issue arose whether disciplinary enquiry can be dispensed with on specious plea that it is not reasonably practical to hold the same. In that context, it was observed that recitals of the order did not spell out any objective reasons and the reasons were not germane to the question of dispensing with the inquiry. Thus there was no jurisdiction for dispensing with the inquiry. Therefore, imposition of penalty of dismissal without disciplinary inquiry as contemplated by concerned order was held to be illegal & void.
In MMRDA Officers Association (supra) the question considered had been that whether High Court was justified in dismissing the Writ by non-speaking & non-reasoned order. In that context vide para-4, it was observed that disposal of writ did not show that the basic requirement of indicating reasons was kept in view. Approving Lord Denning, M.R. in Breen v. Amalgamated Engg. Union 1971 1 All ER 1148, which in turn noticed earlier judgment in Alexander Machinery (Dudley) Ltd. v.Crabtree, it was observed that: Failure to give reasons amounts to denial of justice. Reasons are live links between the minds of the decision-taker to the controversy in question and the decision or conclusion arrived at. Right to reason is an indispensable part of a sound judicial system.
In Major Bahadur Singh (supra) dealing with Article 141, it was observed that Court should not place reliance on decision without discussing as to how the factual situation fits in with the fact situation on which reliance is placed. Basic issue which had arisen for consideration was whether High Court was justified in holding that though the Court cannot moderate appraisal and grading given to an officer while exercising power of judicial review yet a particular ACR had an element of adverse reflection leading to denial of promotion and, therefore, the same ought to have been communicated, which had not been done. In Krishan Lal Arneja (supra) vide Para-31 court noticed earlier judgment in Deepak Pahwa v. Lt. Governor of Delhi , wherein one of the grounds raised for invoking provisions of Land Acquisition Act, 1894 was that a long period of eight years was spent in inter-departmental correspondence and, therefore, there was no urgency to invoke Section 17(4) of said Act. In P.N. Premchandran (supra) vide Para-7, Court took a view that due to administrative lapse DPC did not hold a sitting from 1964 to 1980 and, therefore, respondents cannot suffer owing to such administrative lapse on the part of State for not fault of theirs. In any case, State took a conscious decision to the effect that those who have been acting in a higher post for a long time, although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the DPC at a later date, should be promoted with retrospective effect. Appellant therein was appointed in the year 1984 and was not even qualified to hold the post in 1964, thus, cannot be permitted to question the promotion of the private respondents. Vide Suraj Prakash Gupta (supra) it was contended that provisions with regard to power to relax rules cannot include power to relax recruitment rules and be by-passed on the ground of producing hardship.
It was also held therein that power to relax rules does not include power to relax recruitment rules. In said case, basic issue had been how to fix seniority as well as power of Government to appoint officers on promotion temporarily for a period more than six months without consulting Public Service Commission. A.K. Bhatnagar (supra) was relied upon to contend that rules framed are solemn and have binding effect.
Jagannath Achyut Karandikar (supra) was pressed to contend that rule should be construed harmoniously to remove hardship and employees cannot be made to suffer for the default or lapse on the part of Government.
14. On the other hand, Sh. Vijay Mehta, strongly relied upon SI Rooplal as well as P.V. George (supra). Bare perusal of para-14 of said judgment in P.V. George (supra) would show that the legal position as regards the applicability of doctrine of prospective overruling was clearly curled out and it was observed that: this Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be correct in opining that having regard to the decision of this Court in Golak Nath v. State of Punjab the power of overruling is vested only in this Court and that too in constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.
The doctrine of prospective overruling must be stated expressly. The power must be exercised in the clearest possible term. Vide para-25 of said judgment, the Hon'ble Court observed that whenever a law is declared, it will have a prospective effect only because it has taken a different view from the earlier one. In those cases it is categorically stated that it would have prospective operation.
15. As far as the SI Rooplal is concerned, we may note that the principal grievance there had been the equation of posts of Sub Inspector in BSF viz-a-viz Delhi Police. In the present case, we may note that bare perusal of tabulation noticed hereinabove would show that the applicants were not in the cadre of Section Officer in the year 1990 though they had come on deputation to this Tribunal to a post one step higher than the one enjoyed by them in the parent office and even after absorption w.e.f. 01.11.1989 were promoted to the said grade of Section Officer or equivalent post much thereafter, while respondent no.3 was a regular Section Officer in the year 1990. Looking from either angle, respondent no.3 was better placed than the applicants herein. In our considered view, the findings of the Coordinate Bench of this Tribunal at Ernakulum in OA No.134/2002 cannot be said to be either in derogation / contrary to law or requires any re-consideration. The view taken therein was legal, justified & tenable.
16. As noticed hereinabove the facts of the present case are nowhere similar to the facts & circumstance as well as the issue raised in the afore-mentioned judgments and, therefore, in our considered view judgments relied upon by the applicants are quite distinguishable and consequently inapplicable in the peculiar facts & circumstances of present case.
17. In view of the discussion made hereinabove and finding no merits, OA is dismissed. No costs.