| SooperKanoon Citation | sooperkanoon.com/54105 |
| Court | Central Administrative Tribunal CAT Kolkata |
| Decided On | Apr-27-2001 |
| Judge | R R Vice, S A B.P. |
| Appellant | Kshiti Krishna Bhowmik |
| Respondent | Union of India (Uoi) and anr. |
2. The facts giving rise to this application may be stated very briefly at the outset. At the relevant time the applicant was working as Assistant Superintendent of Post Offices under the Deptt. of Post. He joined the Guwahati Bench of the CAT on 31.10.85 as Section Officer on deputation and was absorbed as such with effect from 1.11.1989 along with others as per order dated 8.5.90 (Annexure 'A'). On 5.8.96 the applicant was transferred in the same capacity to Cuttack Bench of the CAT. Thereafter, by an order dated nil October, 1996 (Annexure 'B') the applicant was promoted as Deputy Registrar on ad hoc basis and posted at the Calcutta Bench. It is mentioned in the order that the said promotion on ad hoc basis will continue till the post was filled up on the basis of the rules. The applicant joined the Calcutta Bench on 16.10.96. As per the then Recruitment Rules, which are called 1988 Recruitment Rules (Annexure 'C'), the posts of Deputy Registrar were to be filled 50% by promotion and 50% by deputation. A seniority list of Section Officers/Court Officers/P.Ss. as on 1.11.1989 was published on 30.8.96, (Annexure 'D') in which the position of the applicant was at Sl. No. 20. This seniority list, as it appears, was finalised in terms of the decision of the Principal Bench of the Tribunal in OA 1067/95 dated 10.7.96 (Govind Balabh v. Union of India and Ors.). The case of the applicant is that he was within the zone of promotion as per the then Recruitment Rules and he was accordingly given ad-hoc promotion to the post of Dy. Registrar. However, the respondents did not take action for regularising his service as Deputy Registrar for reasons best known to them.
3. Subsequently, the aforesaid decision of the Principal Bench was challenged before the Hon'ble Supreme Court in Civil Appeal No. 2704/97 M. Ramchandran v. Govind Ballabh, which was decided on 21.9.99 and (1999) 8 SCC 592. In that decision the Hon'ble Supreme Court inter alia directed the respondent authorities to prepare a fresh list of SO/ CO/PS as on 1.11.1989 on the basis of the principle enunciated therein within three months. In obedience to this decision of the Hon'ble Supreme Court the seniority list dated 4.4.2000 was finalised, a copy of which is available at Annexure 'E' to the OA. In this seniority list the position of the applicant was refixed at Sl. No. 40 though in the draft seniority list dt. 29.12.99 it was at Sl. No. 37. Based on this revised seniority position of the applicant, the aforesaid impugned letter dated 17.4.2000 was issued. Be it noted that in the meanwhile the Recruitment Rules for the post of Deputy Registrar have also undergone amendment and the amended Recruitment Rules came into force with effect from 23.2.2000 (Annexure 'F'). As per the revised Recruitment Rules the post of Deputy Registrar has been made cent per cent promotional post failing which deputation can be resorted to, 4. On the date of admission of this application on 3.5.2000 an interim order was passed directing the respondents not to give effect to the impugned order dated 17.4.2000 and not to interfere with the petitioner's working in the post of Deputy Registrar. This interim order was subsequently extended by an order dated 17.5.2000 until further orders.
5. The respondents have filed a Miscellaneous Application bearing MA No. 735/2000 seeking vacation of the aforesaid interim order on the grounds and facts stated therein.
6. The original application has been contested by the respondents by filing a reply and the Misc. Application for vacating the interim order has similarly been contested by the applicant by filing a reply.
7. We have heard the learned Counsel for both the parties and have gone through the documents and various averments made by both the parties.
8. Mr. Samir Ghosh, the learned Counsel for the applicant has assailed the impugned letter dated 17.4.2000 mainly on three grounds. It is contended by him that the applicant was promoted to the post of Deputy Registrar as per the provision of 1988 Recruitment Rules as he was eligible and also was within the zone of consideration according to his the then seniority position. The respondents have not held the DPC to regularise the service of the applicant as Deputy Registrar in time.
Had this been done the applicant could have been regularised earlier.
His second ground is that the impugned letter was issued on 17.4.2000 by which time the revised Recruitment Rules had already come into force from 23.2.2000 and as per the revised Recruitment Rules the post of Deputy Registrar would be filled by cent per cent through promotion.
According to the applicant, considering the retirement and refusal to accept the promotion by senior persons, he was within the zone of consideration for promotion even as per the revised seniority list as his effective position was 18 (instead of 40), provided however, the deputationists were repatriated since as per the revised Recruitment Rules there was no provision for deputation when in-service eligible candidates were available. His third ground is that the revised seniority list was not prepared according to the decision of the Hon'ble Supreme Court in Ramchandran's case (supra) inasmuch as in the said decision the Hon'ble Supreme Court inter alia held that those deputationists who came from the same or equivalent post should carry their parent seniority after absorption in the Tribunal. It is contended by the applicant that it will appear from the revised seniority list dated 4.4.2000 that persons upto Sl. No. 21 were holding the same or equivalent posts in the parent department and therefore, in respect of these persons there cannot be any dispute. But persons from Sl. No. 22 onwards were not holding the same or equivalent post in the parent departments and they came on deputation on higher post like the applicant. It is submitted that the Hon'ble Supreme Court did not enunciate any principle in Ramchandran's case as to how the inter se seniority of these persons who came on higher post should be fixed. The applicant contends that in respect of these persons, the DOPT O.M.dated 3.7.86 which was directed to be followed by the Principal Bench in OA 1067/95, should have been adhered to in the absence of any specific direction of the Hon'ble apex Court. It is also contended that while fixing interse seniority of persons from Sl. No. 22 onwards the respondent authorities have not relied on any well founded principle.
Apparently it appears from the remarks column of the impugned seniority list that holding of higher supervisory post in the parent department has been made the principle. But as to how the degree of supervision is to be determined has not been spelt out and hence the said principle is arbitrary.
9. The respondents in their reply have stated that the cadre strength of the post of Deputy Registrar is 27, out of which 10 were regularly promoted as Deputy Registrars and there were 5 deputationists and besides three more deputationists were inducted on 1.5.2000, 26.6.2000 and 29.6.2000. It is contended that these deputationists were inducted after the revised Recruitment Rules were notified because their cases were under process as per the old Recruitment Rules against vacancies occurring at that time. It is also contended that the applicant's case could not be considered for regularisation previously because of the stay order passed by the Andhra Pradesh High Court. Therefore, there was no fault on the part of the respondents. It is further contended that the revised seniority list has been prepared strictly in terms of the Hon'ble Supreme Court's direction in Ramchandran's case and when the draft seniority list was circulated the applicant did not raise any objection. It is also stated that the applicant was given ad hoc promotion on the basis of his earlier seniority position, but when the said seniority position was revised in terms of the Hon'ble Apex Court's decision, his position came down to SI. No. 40 and therefore, he was required to be reverted to accommodate his seniors. However, before such reversion order could be issued he was given an opportunity to exercise his option for a posting according to his choice in order to minimise the hardship.
10. Learned Counsel for the applicant has relied on the decision of the Hon'ble Supreme Court Jai Singh Dalai and Ors. v. State of Haryana and Anr., 1993 Suppl. (2) SCC 600 to contend that it is settled position of law that even candidates selected for appointment or empanelled have no right to appointment and it is open to the Government at a subsequent date not to fill up the post or to resort to fresh selection according to revised criteria. According to him, when the revised recruitment rules came into force the respondents should not have inducted fresh deputationists on the plea that selection process started before amendment of recruitment rules. He has also relied on DOPT's O.M. at Appendix 5, page 138 of Swamy's Compilation on the subject of deputation within India wherein it has been provided that a deputationist can be prematurely reverted to his parent department when the situation so demands. It is his case that since the Recruitment Rules have been amended and since the departmental eligible candidates are available the deputationists should have been sent back to their parent departments. He has also contended that some of the deputationists, who had joined earlier as per the old Recruitment Rules, had completed their tenure, yet they have been retained to deprive the applicant and other eligible candidates.
11. Mr. C. Samadder, the learned Counsel for the respondents by relying on DOPT's O.M. has contended that the applicant having been promoted on ad hoc basis has no right to continue or to be regularised. He has also relied on another decision of the Hon'ble Supreme Court Union of India v. Madras Telephone S.C. & S. T. Social Welfare Association etc., 2000 (2) SCSLJ 1.
12. We need not, however, adjudicate on all these issues in view of the latest development as brought out on record through MA 278/2001 filed by the applicant. Annexure 'X' to this MA is a letter dated 08.03.2001 issued by the respondent No. 2 wherein it is categorically stated as follows: "I am directed to refer to this office letter of even numbered dated 17.4.2000 on the above subject and to say that letter under reference, intending to revert Shri K.K. Bhowmik from the post of Deputy Registrar (ad-hoc) to his substantive post of Section Officer/Court Officer would not be given effect to since all his seniors Section Officer/Court Officer/Private Secretaries willing to be promoted have been promoted to the post of Deputy Registrar in the C.A.T. on ad hoc basis. (italic matter ours) 13. By a subsequent letter dated 9.3.2001 (at page 6 of the MA) the said respondent No. 2 issued another order by which the applicant was sought to be given promotion to the post of Deputy Registrar on ad hoc basis with effect from 1.3.2001 for a period of six months or till the post is filled up on a regular basis whichever is earlier. In para 2 of the said letter it is stated as follows: "However, continuation of his appointment as Deputy Registrar (ad-hoc) beyond 17.4.2000, as per pre-revised seniority list of S.O/C.O/P.S in CAT is subject to out come of OA No. 490/2000 filed by him before Calcutta Bench of the Tribunal." 14. Learned Counsel for the applicant has contended that the applicant was never reverted to the post of Section Officer. In fact, the impugned letter dated 17.4.2000 was issued by the respondent authorities to intimate the applicant that he was "required to be reverted to his original cadre of SO/CO." According to him, this is not a reversion order. It is only an intimation to the applicant that he may be required to be reverted. Learned Counsel for the applicant has further submitted that this submission is supported by the latest letter dated 8.3.2001 issued by the respondent No. 2 which has been quoted above. It is clearly mentioned therein that the letter dated 17.4.2000 "intending to revert Shri K.K. Bhowmik from the post of Deputy Registrar (ad-hoc) to his substantive post of Section Officer would not be given effect to....". Thus it is clear that by the aforesaid impugned letter dated 17.4.2000 the applicant was not at all reverted and in view of the interim order granted by this Tribunal on 3.5.2000 as extended by the order dated 17.5.2000 the applicant could not also be reverted subsequently. In fact, no order of reversion has been placed before us by the side of the respondents. In reply of the respondents to the OA at para 20, it is also stated that the memo dated 17.4.2000 was issued to the applicant with a view to ascertain his option for posting to convenient place of his choice. Thus there was no actual reversion of the applicant from the post of ad hoc Deputy Registrar. It is contended by the learned Counsel for the applicant that while the position is such, the respondents could not re-appoint the applicant to the post of Deputy Registrar again with effect from 13.2001. On the other hand, he has to be treated to be continuing as Deputy Registrar on ad hoc basis uninterruptedly. He has also submitted that the applicant has worked after the issue of impugned letter dated 17.4.2000 as Deputy Registrar and he has also been paid salary for the post. In any event the impugned letter dated 17.4.2000 has since been withdrawn by the respondents themselves by the letter dated 8.3.2001 and therefore, there is no question of reversion of the applicant. If the applicant has not been reverted at all, then the question of his reappointment as Deputy Registrar on ad hoc basis again w.e.f. 1.3.2001 does not arise.
15. Learned Counsel for the respondents has, however, insisted that the applicant has to be reverted because of his revised seniority position, as he has no right to hold the post of Deputy Registrar being an ad hoc appointee.
16. We have given our anxious consideration to the facts and circumstances of the case and we are inclined to agree with the contention of the learned Counsel for the applicant that by the impugned letter dated 17.4.2000, which has since been made inoperative by the respondents themselves by the letter dated 8.3.2001, the applicant was never actually reverted from the post of Deputy Registrar (ad hoc) and therefore, there is no question of his re-appointment as such again with effect from 1.3.2001. It is also admitted that even on the basis of the amended seniority list dated 4.4.2001 all the senior persons above the applicant have already been promoted to the post of Deputy Registrar. It is also submitted before us that even some of the juniors of the applicant have been promoted as Deputy Registrar in the meantime. In such circumstances there is no legitimate ground or reason for reversion of the applicant at all and he should be treated to have been continuing on ad-hoc basis as Deputy Registrar with effect from his initial date of such promotion on 16.10.96 in the Calcutta Bench of CAT. Since his juniors have also been promoted as Deputy Registrar, though on ad hoc basis, there is also no possibility of his reversion on the basis of his revised seniority in the near future.
17. In view of the foregoing, we dispose of the OA along with the connected two M As only with a direction on the respondent authorities that the applicant shall be treated to have been continuing as Deputy Registrar in the Calcutta Bench on ad hoc basis with effect from 16.10.1996 without any break. It is hoped that the respondents shall take necessary steps for regularisation of the applicant and other eligible officers as Dy. Registrar as per extant rules as expeditiously as possible. Be it noted that all other points raised in this OA have not been gone into by us. There shall be no order as to costs.