Dismissed

Dr P Manickam v. Union of India Rep by Its Secretary Ministry of Agriculture

CAT1 Jul 2014O.A./165/2012

Case brief

AI extract

What is this about?

The CAT Bangalore Bench dismissed an interim application by a Deputy Director challenging a new seniority list and a colleague's promotion. The court held that seeking benefits from superseded 1987 Rules was time-barred and quashing the promotion without evidence of malafides was not warranted, though it directed the department to finalize new Rules addressing staff concerns.

What did the court decide?

The OA is dismissed. No costs. Released direction to respondents to finalize new Recruitment Rules addressing staff concerns.

Dr P Manickam vs Union of India Rep by Its Secretary… — Service and Employment | CAT (2014)

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CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH, BANGALORE

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i> f Date: 2014

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Pre-delivery ORDER in J^/O.A./GrP7R:3flC/IVt:A. No ((jA... of 2012. is sent herewith for consideration/concurrence.

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.(RUDHRA GANGADHARAN)
MEMBER(A)

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HON'BLE DR.K.B.SURESH MEMBERfJI

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OA No.165/2012

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CENTRAL ADMINISTRATIVE TRIBUNAL

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BANGALORE BENCH, BANGALORE

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ORIGINAL APPLICATION NO.165/2012

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MONDAY, DATED THIS THE r" JULY, 2014

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HON'BLE DR.K.B.SURESH

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HON'BLE SHRI RUDHRA GANGADHARAN

....MEMBER(J)

....MEMBER(A)

Dr.P.Manlckam,

S/o Late M.Perumal, Aged about 53 years.

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Working as Deputy Director (Plant Pathology), Plant Quarantine Station,MSiL Building 2"'^ floor, HAL Old Airport,Bangaiore - 560 017.

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Residdential address:

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No.14,11''' 'A' Cross, Parsi Layout, Swimming Pooi Extension, Maleswaram,Bangaiore - 560 003.

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...Applicant

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(By Advocate Shri K.Hanifa)

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Vs.

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The Union of India, Rep by its Secre1:ary, Ministry of Agriculture, Krishi Bhavan,Rafi Marg,

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New Delhi -110 Oil.

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The Joint Secretary (PP), Plant Protection,DAC, Krishi Bhavan,

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New Delhi-110 Oil.

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The Plant Protection Adviser, Directorate of Plant Protection, Quarantine and Storage, N.H.IV, Faridabad, Haryana -121001.

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Shri Gautam Chaterjee, Joint Director (PP),

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Directorate of Plant Protection,

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Quarantine & Storage (Dte.Of PPQ&S), NH iV, Faridabad -121 001

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...Respondents

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( By Advocate Shri V.N.Holla,ACGSC)

OA No.165/2012

ORDER

HON BLE SHRI RUDHRA GAM6ADHARAN ...MEMBERfA)

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The applicant Is a Deputy Director (Plant Pathology) in the Union Ministry of Agriculture. He has filed this OA because the respondents have published a seniority list (Annexure All) despite his objections and promoted the fourth respondent (Annexure A17), overlooking his claim to seniority in the process. 2. The applicant was appointed on 10.9.1991 as Plant Protection Officer (PPO) m the Directorate of Plant Protection, Quarantine and Storage (PPQS), a position that offered prospects of promotion as Deputy Director of Plant Protection (DDPP). In 1987 the recruitment rules (RRs) were changed to enable a PPO with eight years service to be considered for promotion to DD (Annexure Al). RRs for new posts of Assistant Director (AD), virology and bacteriology, were published in 1992 enabling direct recruitment to these posts (Annexure A3). This was challenged in the Principal Bench (PB) of this Tribunal in OA No.562/1999 by one KC Gupta and others who prayed for making the post of AD a feeder category to the post of DD. The PB ordered the respondents to take a final decision in the matter of revising RRs, preferably within 8 months. The order of the PB also shows that the respondents gave an undertaking;

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"The Recruitment Rules are being revised to consider AD(P//PB) for promotion to the post of DD(pp), it is further stated that while revising the recruitment rules, the interest of all concerned including PPO(PP) who are stated to be stagnating since long, will also be kept in view."

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Since these new RRs did not provide for promotion from PPO to AD the applicant did not apply for appointment to the new posts even though he says he was eligible. Subsequent to the recommendations of the Vth Pay Commission (CPC) the Anomaly Committee of the Union Ministry of Agriculture recommended that provision be made in the RRs for 75% promotion for PPOs and 25% for ADs in the PP division.

= OA No.165/2012

The applicant submits that on 23.2.2002 the respondents pubiished the Directorate of PPQS, DD (Piant Pathology) Rules in supersession of the RRs of 1986, 1987 and 1996. On 25.11.2004 the applicant and other senior PPOs who had completed 12 years of service were granted the scale of Rs 8000-13,500, equivalent to DD (PP) with effect from 9.8.1999 under the Assured Career Progression (AGP) Scheme (Annexure A9). In 2002 one Chandra Mauli Srivastava filed OA No. 430/2002 in the CAT, Allahabad, challenging the RRs of 2002 and making the common prayer to:

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a) Declare the impugned Recruitment Rules 2002 as illegal, irrational and discriminatory.

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b) Quash the communication/order dated 1.2.2002 rejecting representation of applicant.

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c) Direct the respondent to promote the applicant and other PPO (PP) on the post of Deputy Director (PP) treating the PPO (PP) as feeder cadre as per Recruitment Rule 1987.

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d) Direct the respondents to grant seniority to the applicant over and above Assistant Director (PP) while making promotion on the post of Deputy Director (PP).

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5. The Allahabad Bench directed that:

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"20. The OA is thus allowed to the extent that the impugned order dated 01.02.2002 is hereby quashed and set aside. Respondents are directed to provide for promotional avenue to the PPO for the post of Dy.Director by working out a rational ratio between the Assistant Directors on the one hand and PPOs on the other.

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"21. This OA was filed in 2002 when the Applicant was about 49 years and now he would be 58 years, only a few years remaining to superannuate, if immediate action to revise the Recruitment Rules is taken, perhaps, it would facilitate the applicant in seeing at least one promotion in his entire career before he reaches superannuation. A period of six months for revision of Recruitment Rules, would, in our view, be a reasonable period and after the revision of the Rules, the Applicant and other similarly situated persons could be considered for promotion to the post of Dy.Director in accordance with law."

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The applicant submits that instead of implementing the said order the respondents first circulated and then finalized and issued the seniority list as on

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4 OA No.165/2012

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31.3.2011 in an order dated 2.12.2011 (Annexure All). He requested the respondents on 2.12.2011 (Annexure A12) and again on 18.1.2012 (Annexure A13) to keep the seniority list in abeyance until the order of the Tribunal in Annexure AlO had been implemented. Since he received no reply he approached this Tribunal. The applicant submits that representations from one VK Srivastava, DD (PQ) in Annexures A14 to A16 when the promotion to the vacant post were mooted have also received no response from the respondents.

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The applicant claims that he fulfills the prescribed qualifications for the post of JD (PR) and has more experience as well; hence he should be considered for promotion to the post of DD with retrospective effect as though he had completed qualifying service as per the RRs of 1987. If the vacant post of JD were to be filled as per the RRs of 2002 he and similarly situated persons will once again lose the chance to be promoted to JD (PP). The respondent however went ahead and promoted the fourth respondent to the said post on 18.9.2012 (Annexure A17). He states that the RRs of 2002 are unfair and deprive PPOs of the chance for promotion to the DD post since in the RRs of 1987 PRO was the feeder category for recruitment to DD. The legitimate expectations of the applicant and others like him have been defeated. Clause 11 of the impugned RRs is vague and ambiguous as there is no indication of the ratio of promotion from amongst the PPOs and ADs. The Respondents ignored the recommendation of the screening committee for promoting 75% promotion from PRO and only 25% from AD to the post of DD. It was also not right for the respondents to finalize the seniority list and to promote the fourth respondent despite the order of the Allahabad Bench of the Tribunal (Annexure 10). It is against the order of the Hon'ble Apex Court in Bhim Singh and others vs. State of Haryana and others [1981 SCC (L & S) 437]. it violates the order of the Tribunal in OA 564/1999 (Annexure A6) which states that:

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"3. Shri Giri has invited our attention to para 1 of Respondents reply wherein it has been stated that Recruitment rules are being revised to consider Assistant Directors (Plant Virology and Plant Bacteriology) for promotion to the post of Dy Director (Plant

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5 OA No.165/2012

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Pathology). It is further stated that while revising the Recruitment Rules, the interest of all concerned including plant protection Officer (Plant Pathology), who are stated to be stagnating since long will also be kept in view.

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"4. We dispose of this O.A with a direction to Respondents to take a final decision in the matter of revision of the aforesaid Recruitment Rules as expeditiously as possible and preferably within 6 months from the date of receipt of a copy of this order. No costs."

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In their reply statement the respondents claim that the RRs of 2002 were amended with the approval of DOPT, which also advised that PPO should be the feeder category for DD, so that the career prospects of PPOs could be protected, and that provision was indeed made in the RRs. The CAT's order in OA 430/2002 had desired that RRs be amended so that the applicant may get at least one promotion before his retirement and other similarly placed persons may be considered for promotion to the post of DD in accordance with the law. As per the RRs of 2002, the method of recruitment for the post of Deputy Director (Plant Pathology) was 33.33% by promotion and 66.66% by deputation. The then incumbents of Plant Protection Officers (PPO) posts on the date of notification of RRs in 2002 were protected by adding a note in column 11 of RRs "the above method of recruitment being kept in abeyance and following method of recruitment is being prescribed for promotion until the incumbents holding the post of PPO (PP) and AD (PP) on DR basis are promoted"'100% promotion". Further there is a provision in Column 12 in RRs that "promotion: Assistant Director (Plant Pathology) with five years regular service in the grade failing which eight years combined service as Assistant Director (Plant Pathology) and Plant Protection Officer (Plant Pathology)". Consequently, according to the respondents, all those officers up to the 2001 Batch who were PPOs on 8.2.2002, the date of notification of the RRs in 2002, were given two promotions, one as AD and the other as DD. The applicant has also benefited in this process, and got two promotions. The respondents go so far as to claim that "PP stream officials have the best promotional opportunity due to special dispensation in Column 11 and

OA No.165/2012

Column 12 of RRs of 2002". They also claim that it was "only after the RRs were revised in 2002, that PPOs of PP stream started getting promotion". The respondents therefore submit that they honoured the orders of the Tribunal to the extent possible.

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The respondents submit that the judgement inter alia provides that Respondents are directed to provide for promotional avenue to the PPOs for the post of Dy.Director by working out a rational ratio between the Assistant Directors on the one hand and the PPOs on the other. However they plead as follows:

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"That this part of judgment cannot be practically implemented as all the then PPOs have already got promotion to AD/DD. Further, RRs cannot be amended from retrospective effect i.e., w.e.f. 2002 as this will create anomalous situation by placing higher placed officials at that time (Assistant Directors) below lower placed officials (PPO)s).

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"As the grievance of the C.M.Srivastava has already been addressed substantively, affidavit was filed for information before the Hon'ble CAT, Allahabad in September, 2011."

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The respondents submit that the number of posts in each steam has increased; 128 posts were created vide order dated September 2009 and 286 and 106 posts have been created vide orders dated February 2011 and August 2011 respectively. Hence in future they will have even better prospects of getting promotion the moment they become eligible for AD and DD. They submit that "The spirit of the judgment is the RRs be amended so that the applicant mav get at least one promotion before his retirement and the other similarlv placed persons may be considered for promotion to the post of DD in accordance with the law." They go on to add "C.M.Srivastava retired after getting two promotions whereas Court directed that the applicant should get at least one promotion in his entire career before he reaches his superannuation." They conclude that : "The judgement is not based on the actual facts of 2010 or 2011 and is based on old data of 2002 when the OA was filed. Had the court taken into account even the data on promotions of 2007 which would have included 2 promotions to Shri C.M.Srivastava, the court would not have given this judgment. In fact all the

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^ ' OA No.165/2012

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Similarly placed PPOs at the time of filing of the OA have got promotions as per 2002 RRs of Plant Pathology and they have benefitted from the provision in RR of the combined service of 8 years of PPO and AD which made them eligible for promotion to DD (PP) within one year of first promotion. It may be seen that Dr.C.M.Srivastava got his first promotion on 7.3.2007 as AD and 2"" promotion on 17.10.2007 i.e., within 7 months two promotions as he was able to fulfill the combined service of 8 years of PPO and AD. It was because of these RRs that he got two promotions in one year.

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The respondents also state that the provisional seniority list containing the names of all DDs as on 31.3.2011 was circulated on 5.4.2011 seeking objections if any. It was finalized with the approval of the competent authority and issued vide annexure All. The respondents did not feel that the applicant's plea for staying the operation of the list was reasonable.

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The respondents point out that although the RRs were published in 2002 itself the applicant made no attempt to challenge this order. Moreover he is seeking benefits of seniority and promotion based on the RRs of 1987 which lapsed long ago. They submit that new RRs have been notified on 19.9.2012 that "provide for better opportunity." In fact new RRs have been proposed for all streams, not Just Plant Pathology. They were based on model RRs circulated by the DOPT, revised pay rules of 2008 and guidelines of DOPT.

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With reference to Annexure A17 in which the fourth respondent was promoted the respondents submit that; "as per the extant instructions of the Department of Personnel and Training, holding the DPC meetings need not be delayed or postponed on the ground that RRs for a post are being reviewed/amended. A vacancy shall be filled In accordance with the RRs in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since amendments to RRs normally have only prospective applications, the existing vacancies should be filled as per the RRs in

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8 OA No.165/2012

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force". Interfering with the promotion of the fourth respondent would not benefit the applicant in any way, and would only lead to further litigation, they say.

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In his rejoinder as well as the written argument and other pleadings the applicant has contested the respondents' reply statement. Among other things he says that the respondents should have implemented the recommendations of the Anomaly Committee, that it is wrong to claim that PPOs got up to two promotions, that numerous representations went unanswered, that the orders of the Tribunal referred to in his OA were not followed, and that the fourth respondent was promoted in haste instead of awaiting the verdict of the Tribunal, or even making this promotion conditional on the decision of the Tribunal. He submits that by coming into the feeder category for ADs, PPOs are actually losing because they will get just two financial upgradations after 30 years of service. He seeks promotion from PPO to DD, not from PPO to AD and thereafter from AD to DD. He alleges that the aim of the respondents is to favour the fourth respondent and certain others. He points out that the very fact that the respondents have notified fresh RRs in 2012 in order to provide better opportunities shows that the RRs of 2002 "caused injustice to the applicant". It would have been better instead to defer the promotion of the fourth respondent until introduction of the new RRs.

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The respondents say that quashing of RRS of 2002 is no more relevant in view of VI Pay Commission report and 2008 revised pay rules which have necessitated revision of RRs. New RRs for all the streams and for all the posts in Directorate of Plant Protection Quarantine and Storage are in advanced stage of formulation as per new guidelines of RRs of DOP&T and Revised Pay Rules 2008. They have been approved by DOP&T and UPSC and have been set to MOL for vetting. 2002 RRs will be superseded by new RRs of 2012 wherein, as the posts of ADs are also there, officials will become eligible for consideration for promotion from PPO to AD in 3 years and then from AD to DD in 5 years depending on availability of vacancies, incidentally the RRs of 1987 required 8 years service to move from PPO to AD. Therefore, the respondents submit, the CAT order in the

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9 OA No.165/2012

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case of CM Srivastava vs UOI for revision of RRs has been complied with and the applicant should wait for some time for notification of new RRs.

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In their written arguments the respondents state that the applicant himself was promoted as AD (PP) on 5.5 2008 and as DD (PP) on 1.4.2010, apart from getting one financial upgradation under the ACP scheme on 10.9.2003. They defend the proposal to amend the RRs once again: RRs are to be reviewed regularly as the UPSC will not otherwise accept proposals for promotion. It was not practicable to implement the recommendations of the Anomaly Committee.

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We have gone through the pleadings and arguments of both parties very carefully. It is a little late in the day for the applicant to seek quashing of Annexure 8 in which the RRs of 2002 were notified. The applicant cannot claim promotion today on the basis of the RRs of 1987 which themselves were superseded long ago. He also seems to have merely watched from the sidelines while his more active colleagues approached the first the Principal Bench of this Tribunal in OA No. 562/1999 and then the Allahabad Bench in OA No. 430/2002. He was not among the array of applicants in either OA. Nothing prevented him from approaching this Tribunal on his own and seeking appropriate reliefs instead of lying dormant. We also see that the applicant himself has got the benefit of two promotions under the very same RRs which he has so belatedly challenged. The respondents have also narrated the pains taken by them to ensure that they followed the principle of hierarchy and took care to protect the interests of all concerned while finalizing the seniority list. The respondents have stated that they implemented the PB's order in OA No 562/1999 and finalized the RRs, albeit not within the prescribed time-limit, taking care to guard the interests of all sections. Their action does not appear to have been challenged thereafter in the PB. They also filed an affidavit before the Allahabad Bench of this Tribunal in September, 2011, concerning fulfillment of the Tribunal's order in OA No. 430/2002. We have not been made aware of any fresh application challenging the action of the respondents after that Bench issued its order in OA No.430/2002.

OA No.165/2012

We see that the seniority list (Annexure All) was finalized after due procedure was followed, and the applicant has not been able to come up with any convincing reason why this should be quashed. No seniority list can be expected to satisfy everybody. Nor can the applicant seek seniority over certain ADs whom he alleges were wrongly promoted, not least because he has failed to implead such persons in the present OA. As to promotion of the fourth respondent, once the seniority list had been finalized and there was a vacancy of JD (PP), the respondents were bound to take steps to fill it. Their submission on this issue is reflected in paragraph 13 of our order. Here again the applicant has given no acceptable justification for quashing Annexure A17. He has alleged mala fides on the part of the respondents, but failed to specifically name the persons whom he suspects or to produce evidence to substantiate his charge. This Tribunal is not willing to be swayed by mere innuendo.

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In sum therefore we cannot grant the reliefs sought in the OA.

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We have taken note of the respondents' submission that they have since drafted fresh RRs in 2012 to replace those of 2002. We believe that RRs must change in order to keep pace with changing needs. The respondents should take into consideration the career prospects of staff at all levels and ensure that no one gets left behind. The applicant has repeatedly stated that his numerous representations to the respondents have borne no response. This does no credit to the respondents. Government must act the model employer, and must take pains to consider and respond to the concerns voiced by its staff. We therefore direct the respondents to complete the process of finalizing the new RRs with due regard to the misgivings expressed by the applicant (summarized in paragraph 7 of our order, but figuring in detail in his various pleadings), as well as of other officials in the course of their representations and other interactions with the respondents. No official can be expected to display the enthusiasm and integrity required to discharge her or his responsibilities if their legitimate aspirations are ignored. The applicant has in detail described how the RRs of 2002 deprived PPOs of their dues. We direct the respondents to examine these issues seriously. Any

OA No.165/2012

ambiguities in the extant RRs must be directly tackled and removed. The aim of the respondents should be to address the apprehensions of all concerned, while adopting an approach that inspires the confidence of officials in all cadres.

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The OA is dismissed. No costs.

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(RUDHRA GANGADHARAN) MEMBER(A)

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(K.B.SURESH) MEMBER(J)

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sd.

Dr P Manickam v. Union of India Rep by Its Secretary Ministry of Agriculture

Case brief

What is this about?

What did the court decide?

Dr P Manickam v. Union of India Rep by Its Secretary Ministry of Agriculture

Case brief

What is this about?

What did the court decide?

What the court decided

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