Judgment:
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.)
1. The present OA has been filed against the non promotion of the applicant on par with the other officers on the administration side of the organisation. The prayer made in the OA is as under:-
“a) call for the records relating to and connected with Order No. Office Order No.HQ:ADMN:A.20(5)-3, dated 26.9.2005 of the 2nd respondent and quash or set aside the same holding it as arbitrary, illegal and also violative of Articles 14 and 16 of the Constitution of India;
b) direct the respondents to treat the applicant to have been promoted on and from 21.4.2005, the date on which the panel has been prepared or at least from 1.5.2005, the date on which the same has been acted upon;
c) consequent upon such a quashing and direction, direct the respondents to compute and release all the benefits including seniority; monetary benefits and consequential revision of the terminal benefits and pension and release the same together with interest at the rate of 12% per annum with quarterly rests from the date when the amounts become due and payable till the date of actual realisation;
(d) also declare that the applicant is entitled for exemplary costs for having thrust this unwarranted litigation on him and direct that the same be paid to him from out of the personal funds of the officer(s) who was responsible for the same; and pass such other and further order or orders as are deemed fit and proper by this Tribunal in the circumstances of the case.”
2. After serving the Indian Air Force as a Sergeant for over 18 years, the applicant had worked as a Senior Translator in the Air Force Academy, Hyderabad. He joined as Hindi Officer on 7.3.1990 in the National Remote Sensing Agency (NRSA), Hyderabad which is under the administrative control of the 1st respondent. He was subsequently promoted as Hindi Officer II and continued to discharge his duties in the said organisation.
3. The applicant has submitted that the Hindi Officers form a common pool and their seniority, postings, transfers and promotions is confined to the offices and laboratories under the administrative control of the Department of Space (DOS).
4. The applicant has further submitted that Government of India, Department of Official Language had proposed to upgrade the scales of Hindi Officer-I from Rs.6500-200-10500 to Rs.7500-250-12000. Though the Department of Space has also decided to implement the said decision, the respondents have given him the said scale for the period he discharged his duties as Hindi Officer-I. The post of Hindi Officer-II in the scale of Rs.8000-13500 was subsequently abolished and in its place the post of Senior Hindi Officer was created in the pay scale of Rs.10000-15200. The applicant has submitted that a recommendation to bring him also in the said scale on par with his counterparts working in the Department of Space with necessary justification did not yield the desired result since the proposal has been turned down on the ground that there is no adequate work. The applicant has, therefore, submitted that he has been hostilely treated by the Department and thus it can be called as arbitrary exercise of discretion.
5. The applicant has further submitted that the respondents have adopted another policy decision to do away with the cadre of Hindi Officer II and creating the post of Senior Hindi Officer and have been treating the applicant to be Hindi Officer II, a non existent cadre. It is submitted that for the purpose of seniority etc. of the Hindi Officers, the entire Department of Space would be the unit and the applicant is senior to one Mr. B.R.Rajput. By the time the decision to abandon the post of Hindi Officer II and replace it with that of Senior Hindi Officer was taken, the applicant has submitted that he was fully eligible to be promoted as such.
6. A panel was prepared on 21.4.2005 for promotion to the post of Senior Hindi Officer showing the name of Shri B.R.Rajput, who is junior to the applicant, at Serial No.1 while the name of the applicant was shown at Serial Number 2, based on which Shri Rajput has been promoted with effect from 1.5.2005 thereby superseding the applicant who admittedly is senior, which itself is contrary to the Department of Personnel and Training's Office Memorandum dated 16.2.2005.
7. Aggrieved by the said action, the applicant has submitted a detailed representation on 15.7.2005 seeking promotion from the date his junior has been promoted. Thereupon, the applicant was issued orders promoting him as Senior Hindi Officer and posting him to ISRO Office, New Delhi temporarily downgrading the post of Joint Director as Senior Hindi Officer. The order stated that the same would be effective from the date of assumption of charge on relief from his present assignments. The applicant made representation dated 22.7.2005 pointing out that the order was contrary to the consistent practice of promoting officers and retaining them in the same place and there is no explainable logic as to why a different stand of posting him out of the place held by him. He had also highlighted in the said representation that he is left with only 22 months of service and his transfer on promotion contrary to the general principle would be adversely affecting his plans of settling down in Hyderabad besides effecting the career of his child's education and requested that justice be done to him and consider to post him in situ on promotion as his counterparts have been posted. Vide impugned order dated 26.9.2005, the promotion granted to the applicant has been cancelled. The applicant had submitted a detailed representation on 12.6.2006 seeking redressal of his grievances and requested that he be promoted and follow the same pattern of posting him in the same place as has been done in the case of his counterparts. Since there was no response, the applicant was constrained to address a memorial to the President of India to which also there was no response. Hence the present OA.
8. The applicant has argued that the action of the respondents in not promoting him on par with the other officers on the administration side of the organisation itself is bad and untenable as he was very much eligible for being promoted as he had fulfilled the required residency period. It is submitted that if only the applicant has been promoted along with those officers, the question of the junior being promoted in preference to the applicant would not have arisen at all and there is no explanation forthcoming for this discriminatory stand adopted by the respondents and for this reason alone, none of the representations have been answered by them, which is arbitrary, violative of Articles 14 and 16 of the Constitution of India.
9. The applicant has further argued that the fact that the respondents have not promoted him has caused him enormous prejudice inasmuch as a person who has hardly = the length of service was allowed to supersede him ignoring his claim. The respondents have not carried out the exercise as enumerated in the Office Memorandum dated 8.2.2002 and 16.2.2005 which are to the effect that there shall not be supersession of the seniors. Though the applicant has brought all these factors to the notice of the respondents, the respondents have preferred to be ignorant of the rules governing the field to protect the interest of the person who had superseded the applicant and promoted the applicant posting the applicant to a different place which was against the usual practice adopted by them in the past and in respect of his counterparts. Even after drawing the pointed attention of the respondents to the various ways of his discrimination from the others, the respondents have issued the impugned order cancelling the promotion.
10. It is argued by the applicant that though the representations submitted by him are pending before the authorities and they having failed to respond to the same within the period contemplated in the Administrative Tribunals' Act, 1985, they have forfeited their right to do so and this Tribunal may have to decide the issue of merits directing the respondents to promote the applicant on par with his junior i.e., on and from 1.5.2005 and release all the benefits that he would be entitled by virtue of such promotion.
11. The applicant has submitted that he reserves the right to implead Shri B.R.Rajput, who is junior to him, in the event the respondents come up with a plea that there would be no vacancy as Shri B.R.Rajput has already been promoted. The applicant had retired on 31.5.2007 on attaining the age of superannuation. The applicant has submitted that though he cannot physically discharge his duties as Senior Hindi Officer in view of his retirement, the relief sought for in the OA would have a snowballing effect as it would result in an upward revision of his pension, terminal benefits and also on the family pension.
12. On the basis of the above submissions and the arguments, the applicant has urged that the OA deserved to be allowed.
13. In the reply statement, the respondents have stated that the applicant was appointed as Hindi Officer with effect from 7.3.1990 in the scale of pay of Rs.2000-3500 which was subsequently revised to Rs.6500-200-10500 based on the recommendations of the V Central Pay Commission. The following is the career ladder for his growth as per Indian Space Research Organisation (ISRO) Hqrs. O.M.No.HQ/ADMN/A.20(2) dated 5.2.1997:-
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Name of theNext promotion Residency period andMethod of
post and Scale ofElements of Review promotion
Pay
----------------------------------------------------------------------------------------
Hindi Officer-I Hindi Officer-II 3 years as Hindi Merit
Rs.6500-10500 Rs.8000-13500 Officer
ACR+Interview
----------------------------------------------------------------------------------------
Hindi Officer-II Sr.Hindi Officer 3 years as Hindi Merit
Rs.8000-13500 Rs.10000-15200 Officer-II
ACR+Interview
----------------------------------------------------------------------------------------
14. The respondents have submitted that the approval of the Chairman, National Remote Sensing Agency (NRSA) Governing Body for upgradation of the existing post of Hindi Officer in scale Rs.6500-10500 to Hindi Officer-II in scale Rs.8000-13500 was conveyed vide Communication dated 14.5.1999 of Department of Space (DOS). The above approval was subject to the condition that NRSA will follow ISRO norms for promotion of Hindi staff as per ISRO Hqrs. OM dated 5.2.1997. The applicant was reviewed for the post of Hindi Officer-II thus upgraded and promoted to the said post in scale Rs.8000-13500 with effect from 1.7.1999 against the upgraded post in NRSA vide Office Order dated 28.6.1999 in terms of ISRO Hqrs. OM dated 5.2.1997. Subsequently, the scale of pay of Hindi Officer-I was revised from Rs.6500-10500 to Rs.7500-12000 with revised designation of Hindi Officer with effect from 1.1.1996 with monetary benefits from 11.2.2003 vide DOS O.M. Dated 7.11.2003 and 6.7.2004. Accordingly, the scale of pay of the applicant was revised to Rs.7500-12000 from 1.1.1996 to 30.6.1999 (he was promoted to the post of Hindi Officer-II [Rs.8000-13500] w.e.f. 1.7.1999 vide Office Order dated 15.10.2004.
15. The respondents have further submitted that the career prospects of Hindi staff/Officers were further modified vide DOS O.M. Dated 7.11.2003 as under:-
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Name of theNext promotion Residency period andMethod of
post and Scale ofElements of Review promotion
Pay
----------------------------------------------------------------------------------------
Hindi OfficerSr.Hindi Officer 3 years as Hindi Merit
Rs.7500-12000 Rs.10000-15200 Officer-II
(Rs.8000-13500) or
8 years combined
service as Hindi
Officer-II (Rs.8000-
13500) and Hindi
Officer (Rs.7500-
12000-revised)
ACR+Interview
----------------------------------------------------------------------------------------
Sr.Hindi Officer Joint Director 5 years as Sr.Hindi Merit
Rs.10000-15200 (Official Language) Officer (Rs.10000- Rs.12000-16500) 12000)
ACR+Interview
----------------------------------------------------------------------------------------
16. It is submitted by the respondents that the applicant had submitted a representation dated 6.7.2004 requesting to consider his case for promotion to the post of Senior Hindi Officer followed by another representation dated 23.8.2004 for upgradation of the post held by him to facilitate his promotion. A proposal to upgrade the post of Hindi Officer was sent to the Department of Space by the Controller, NRSA and Director, NRSA vide their letters dated 2.12.2003 and 24.8.2004. The Department of Space vide communication dated 14.10.2004 intimated that the applicant had to be considered for promotion to the post of Senior Hindi Officer along with other eligible Hindi Officers of ISRO on account of encadrement of officers of NRSA with the officers of ISRO and that there was no functional need to upgrade the post of Hindi Officer-II to Senior Hindi Officer in NRSA. Accordingly, the DPC review of the applicant, along with the other eligible officers of ISRO, was conducted on 20.4.2005 and the following select list was drawn which was communicated vide letter dated 21.4.2005:-
Sl.No.Name (S/Shri)Centre/Unit
1. Rajput B.R. VSSC, Trivandrum
2. Rajendra SinghNRSA, Hyderabad
17. The respondents have submitted that since Mr.Rajput B.R., being No.1 in the select list and on account of availability of a vacancy at his existing place of working, he was promoted to the post of Senior Hindi Officer in the existing place of posting itself. The applicant was also promoted to the post of Senior Hindi Officer and posted to ISRO Office, New Delhi on promotion, vice Shri Shyam Singh who had retired on superannuation, vide Office Order dated 21.7.2005 as there was no post of Sr. Hindi Officer (Rs.10000-15200) in NRSA at Hyderabad. Thus, the respondents have submitted that the representations of the applicant dated 6.7.2004 and 23.8.2004 got disposed off with the conduct of review of the applicant for promotion to the post of Senior Hindi Officer on 20.4.2005 and his selection and promotion to the post of Senior Hindi Officer. Since the applicant failed to assume charge of the promoted post of Senior Hindi Officer (Rs.10000-15200) inspite of giving sufficient time from 21.7.2005 to 19.9.2005 vide communication dated 8.9.2005, the promotion ordered vide O.M. dated 21.7.2005 was cancelled in terms of the O.M. Dated 26.11.1981 of the Joint Secretary, Department of Space, vide Office Order dated 26.9.2005. Consequent on his refusal for promotion and cancellation of the order of promotion, the validity of the panel in which the applicant was the lone candidate in the select list was extended upto 20.10.2006 in order to facilitate his promotion on account of possible occurrence of any vacancy and the same was communicated to the applicant vide communication dated 5.4.2006. Since no vacancy of Senior Hindi Officer had arisen subsequently during the period of validity of the panel, the applicant could not be promoted to the post of Senior Hindi Officer till his retirement on superannuation on 31.5.2007. Thus, the respondents have submitted that the case of the applicant was considered dispassionately keeping public interest in view in a just and equitable manner as per the orders of the Department of Space/ISRO in vogue from time to time.
18. The respondents have further submitted that even after redressal of the main grievance of the applicant i.e., promotion ventilated through his representation dated 6.7.2004, the applicant had continued to represent persistently on the issue of upgradation of his post in NRSA itself and accord promotion at NRSA, Hyderabad, through his representations dated 15.7.2005 and 12.6.2006. As there was no new substance in his representations to be considered afresh since it is a Fait accompli, no reply was sent to his repeated representations on the same issue.
19. The respondents have argued that the Department of Space and its constituent units come under Government of India and Central Government employees are bound to be transferred to other offices located in other parts of the country on account of the fact that “All India Transfer Liability” is a basic feature of Central Service particularly in the case of Group-A Officers. The vacancies available in other offices of the Department of Space spread over throughtout the country are filled by promotion of the existing officers. While filling such vacancies, the selected persons are bound to be transferred to a place where vacancies exist on their turn in the select list. It is submitted that on account of fortuitous circumstances, it may so happen that a vacancy may arise to some one in the select list in the existing place of posting itself. Such solitary cases cannot be quoted to state that the action of the respondents in transferring the applicant outside his present place of posting is arbitrary.
20. The respondents have further argued that it is not possible for any Department to upgrade any post from time to time in order to accommodate an officer in higher grades. The post of Hindi Officer-I was upgraded once to Hindi Officer-II and promotion and posting of the applicant in NRSA itself was made once. Since the Department of Space did not accord approval for upgradation of Hindi Officer-II to the post of Senior Hindi Officer in NRSA as there was no functional need to upgrade the post for the second time within a period of six years, and it is not possible to accord such upgradation as and when the applicant becomes eligible for promotion only with a view to retain the applicant in the existing place of posting in the absence of any functional requirement/full justification for upgrading a post, the contention of the applicant in this regard is not tenable. In fact, the applicant was promoted to the post of Senior Hindi Officer and posted to ISRO Office, New Delhi. On refusal of promotion by the applicant, the order of promotion was cancelled vide Office Order dated 26.9.2005. Hence, the contention of the applicant that he was hostilely treated by the Department and calling the action of the Department as an arbitrary exercise of discretion in matter of upgradation by the applicant, is also not tenable. The contention of the applicant that a policy decision to do away with the cadre of Hindi Officer-II was taken and the applicant was treated as a non-existent in the cadre, also is far from truth in view of the fact that as per the Department of Space's O.M. Dated 7.11.2003, the promotion of the existing officers holding the post of Hindi Officer-II to the post of Senior Hindi Officer is not automatic placement but after assessing their merit by the duly constituted Departmental Promotion Committee after getting their eligibility on completion of THE prescribed number of years of service.
21. The respondents have submitted that the post of Hindi Officer-II was not abandoned and in fact the applicant himself retired in the post of Hindi Officer-II on 31.5.2007. The posts of officers in the establishments of the Department of Space/ISRO are filled only based on the merit to be assessed by a duly constituted DPC and not based on seniority. Hence, the question of seniority in comparison with Shri Rajput B.R., who is No.1 in the select list, does not arise in the context of merit oriented promotions in that cadre.
22. As regards the contention of the applicant that the process of encadrement of Hindi Officers had not been taken up by the Department of Space, is far from truth and misleading. The respondents have submitted that in fact, the process of encadrement only facilitated the applicant to appear before the DPC for review for promotion to the post of Senior Hindi Officer against the vacancies of other ISRO Centres. The statement of the applicant that the Department did not conduct DPC review till his junior completes the required residency period so that he can be promoted in precedence to the applicant is also not borne out of facts since there is an established procedure and the norms laid down including the rationalised dates for conducting the DPC review and the vacant posts are filled by conducting DPC reviews based on the rationalised dates prescribed for the purpose of review and not with reference to any other consideration to help/harm any of the officers.
23. As regards the statement of the applicant that the rank of Shri Rajput B.R. in the select list was No.1 and he was promoted to the post of Senior Hindi Officer superseding the applicant whose position in the select list was No.2, the respondents have submitted that Shri Rajput B.R. Got his promotion earlier to the applicant in view of his panel position No.1 and not on any other consideration. In fact, Shri Rajput B.R. joined ISRO much earlier to the applicant i.e., on 24.4.1987 [the applicant joined in NRSA, Hyderabad on 7.3.1990] and has been working in a biggest center of ISRO under the Department of Space having a staff strength of around 4,500, contributing to the huge requirements commensurate with the magnitude of the workload in the Vikram Sarabhai Space Centre, the biggest Centre of ISRO. In the process of merit oriented promotions, it is natural that a junior may get a better placement in the select list as the seniority has no weightage in the matter of selection. Hence, the ill-motives attributed to the Department by the applicant are far from truth and without any base.
24. As regards the contention of the applicant that in order to silence the applicant from raking up the issue of junior being promoted contrary to the DPandT instructions dated 16.2.2005 the applicant was promoted as Senior Hindi Officer, the respondents have submitted that the said DPandT instructions are inapplicable to the personnel of DOS/ISRO unless they are specifically adopted for implementation in DOS/ISRO in view of the fact that DOS is given full powers to frame its own policies and procedures to be adopted in all matters related to the personnel under the control of the DOS under Govt. of India (Allocation of Business) Rules, 1961, primarily to achieve the talks assigned to it. Hence, it is submitted by the respondents that the said contention of the applicant is far from truth and misleading. It is urged that the OA deserved to be dismissed.
25. The applicant has filed rejoinder reiterating the contention made in the OA. It is submitted that a cursory look at the DoPandT orders would indicate the purpose for which it was issued and address entry would make amply evident that all the Ministries/Department of Government of India are to take steps as stated therein and as long as the Respondents do not contend that they are not coming under the said description, they are bound to follow that order. It is further submitted that the action taken by the respondents is in violation of recommendation No.11.10.14 mentioned in the Presidential Orders made under Section 4(4) of the Official Language Act, 1963, on the recommendations made by the Parliamentary Committee on Official Language issued vide Ministry of Home Affairs, Dept. of Official Language Resolution dated 17.9.2004 and O.M. Dated 6.4.2005. As per the said Memos, promotions in the Subordinate/Attached/ Undertakings/Institutes/Offices of the Government of India must be in accordance with the Official Language Cadre and on the basis of the seniority in their Department. With the encadrement, the entire Department of Space is to be treated as one unit and the posts are to be filled up strictly in accordance with the seniority.
26. The applicant has further submitted that the statement of the respondents that Shri Rajput B.R. is senior to the applicant is not correct and such a manner of deposing to the reply statement is liable to be viewed very seriously by this Tribunal as it would amount to interfering with the administration of justice and such an attitude would least be appreciated when exhibited by the respondents answering the description of State under Article 12 of the Constitution.
27. The applicant has submitted that the reference made to the letter dated 5.2.1997 in the reply at page 3, does not support the statement made therein. The method of promotion which is shown as Merit in the table is not found in the document sought to be relied upon. ACRs and interview can also be necessary inputs for deciding the suitability or otherwise of the officers and this does not indicate that the promotion would be by comparison of merit alone. The table at page 4 of the reply does not contain certain details not found in the document drawn support from i.e., O. M. dated 7.11.2003 as the document does not match the details given in the said table. The applicant has alleged that the respondents have not shown any reason much less a legally valid and just ground either on fact or on law warranting rejection of the reliefs prayed for in the OA. It is urged that the OA deserved to be allowed.
28. The learned counsel for the applicant as well as the learned counsel for the respondents reiterated their arguments made in the OA and the rejoinder as well as in the reply statement respectively.
29. We have carefully considered the arguments on both sides and have perused the materials on record. In the first place, we note that the impugned order bearing No.HQ:ADMN:A.20(5)-3, dated 26.9.2005 cancelling the promotion order of the applicant dated 21.7.2005 through which the applicant was promoted as Senior Hindi Officer, is not at all justified. The respondents have relied upon the O.M. dated 26.11.1981 for cancellation of the said order, but this O.M. hardly supports the case of the respondents. Though the applicant was communicated vide letter dated 8.9.2005 that if he did not join the promoted post on or before 19.9.2005, the promotion order will be treated as cancelled, this communication, however, does not make it clear as to how the applicant could join the post when nothing was mentioned in this communication also regarding the applicant's being relieved from his earlier post. We put it to the learned counsel for the respondents as to how the applicant could join his new place of posting in the absence of his properly being relieved. The learned counsel for the respondents could not throw any light on the same. We also find that the O.M. dated 26.11.1981 itself stipulates as under:-
“2. In cases where the reasons adduced by the person for his refusal of promotion are not acceptable to the Appointing Authority, then the Appointing Authority should enforce the promotion on the officer and in case the officer still refuses to be promoted, then even disciplinary action can be taken against him for refusing to obey orders.”
30. In the present case, the applicant had only made a representation dated 22.7.2005 to change his place of posting and he had not refused the promotion at all. Therefore, there is no question of application of the said O.M. dated 26.11.1981 being applicable in the present case. The authorities could have forced the applicant to join the promoted post of posting by properly relieving him. No such action was taken by the authorities concerned who cancelled the promotion of the applicant without any justification. Therefore, in the first place, we set aside the impugned order dated 26.9.2005 cancelling the promotion of the applicant. The result will be that the promotion order of the applicant dated 21.7.2005 shall be treated as valid. The applicant shall be deemed to have been promoted on 21.7.2005.
31. However, we are unable to accept the contention of the applicant that he should be treated as having been promoted with effect from either 21.4.2005 or 1.5.2005. The reason for this is that the applicant has not been able to show us any good ground for questioning the action of the DPC. The actions of the DPC cannot be questioned without any solid ground and proof. The applicant's reliance on the DoPT's instructions dated 16.2.2005 and also his reliance on the recommendation No.11.10.14 mentioned in the Presidential Orders made under Section 4(4) of the Official Languages Act, 1963, are misplaced. The DoPT's instruction is a general instruction regarding revision of guidelines for DPC and similarly the recommendation in the Presidential Order is regarding necessity to remove stagnation in the cadre of employees devoted to the development of the official language 'Hindi'. These documents are not sufficient to question the conclusion of the DPC and hence we are not in a position to grant the relief as prayed for in clause (b) of the reliefs mentioned in the OA.
32. Since we have held that the promotion order of the applicant dated 21.7.2005 shall hold the field, it is obvious that the applicant will be entitled for consequential revision of pension and other retirement benefits. However, it is explained that, in the circumstances of the case, we are unable to grant any interest on the amounts due to the applicant. However, the respondents are directed to implement this order by revising the pension of the applicant and also by paying him other terminal benefits in accordance with this order within a period of four months from the receipt of this order. Needless to say, the applicant shall not be entitled for any additional wages for the pre-retirement period because he had not shouldered the higher responsibilities. We are also unable to grant any costs to the applicant.
33. In short, the OA is partly allowed holding that the impugned order dated 26.9.2005 cancelling the promotion of the applicant is liable to be set aside. Accordingly, the order dated 26.9.2005 is hereby quashed and set aside. The applicant shall be entitled to revision of his pension and other consequential terminal benefits. The respondents shall grant the benefits to the applicant arising out of this order within a period of four months from the receipt of this order. There shall be no order as to costs.