OA No. 434/2013, M.A. No. 216/2014 and M.A. No. 303/2014. Case: Mr. Hari Singh and Dr. (Mr.) R.S. Bhati Vs The Union of India represented by The Secretary and Ors.. Central Administrative Tribunal
| Case Number | OA No. 434/2013, M.A. No. 216/2014 and M.A. No. 303/2014 |
| Counsel | For Appellant: Shri S.K. Gupta, Advocate and For Respondents: Shri Sanjeev Singh for Respondents 2 to 5, Advocate and Shri Subhash Gosain for Respondent No. 6 |
| Judges | G. George Paracken, Member (J) and Shekhar Agarwal, Member (A) |
| Issue | Service Law |
| Judgement Date | May 15, 2014 |
| Court | Central Administrative Tribunal |
Order:
G. George Paracken, Member (J), (Principal Bench, New Delhi)
1. The Applicants are aggrieved by the Annexure A-I Office Order dated 16/18.11.2013. According to the said order, due to exigency of the work in the Co-ordination Division, the officiating charge against the post of Deputy Director (which has been lying vacant due to deputation of Shri N.C. Mistry, Deputy Director as Additional Managing Director up to 31.07.2014) in the pay scale of Rs. 15600-39100 + GP Rs. 6600 was given to Shri Bani Singh, Sr. Assistant Director (Respondent No. 6) on temporary basis till such time the post is filled up on regular basis. The said order further states that the officiating pay shall be fixed in terms of Order No. F.1/4/2009-Estt.(Pay.1) dated 08.03.2010 of the DOP&T and the said officiating arrangement will not confer any right upon Shri Bani Singh for regular promotion to the post of Deputy Director.
2. The brief facts of the case: The first Applicant initially joined second Respondent-National Horticulture Board ('NHB' for short) on 23.06.1988 as a Market Information Officer, re-designated as Assistant Director and on completion of 12 years service in that post, as Senior Assistant Director. Similarly the second Applicant joined NHB on 19.12.1988 as Market Information Officer and later re-designated as Assistant Director. The turn for promotion to the post of Dy. Director twice came to the Applicant No. 1, first in the year 2001 and then in the year 2005 but on both the occasions he was superceded by his juniors Shri Brajendra Singh and Shri Dheer Pal Singh. In the current Seniority List of Assistant Directors released in 2012, the Applicant No. 1 has been shown at Sl.No. 1, the Applicant No. 2 at Sl.No. 5 and Shri Bani Singh at Sl.No. 16. Applicant No. 1 has, in fact, made the Annexure A-2 representation on 14.11.2013 to consider him for regular promotion as Deputy Director against the existing post which has been lying vacant since December, 2011. But both the Applicants have again been sidelined by the Respondent No. 2 vide the impugned Office Order dated 16/18.11.2013 by giving the officiating charge to the post of Deputy Director to Shri Bani Singh.
3. According to the Applicants, they have already been suffering the ignominy of working under their far junior officers like Mr. Brajendra Singh and Mr. Dheer Pal Singh since 2001 and 2005 respectively. Now another far more junior, Shri Bani Singh has been placed above them by the impugned order. They have also stated that the third respondent should not have issued the impugned order during the pendency of the aforesaid representation dated 14.11.2013. Further according to them, 15 Assistant Directors from Sl.No. 1 to 15 in the seniority list including them have been ignored by picking up the 6th Respondent. According to them, he has been selected because he was the personal choice of the third respondent, i.e., MD, NHB who arbitrarily widened the zone of consideration up to 16 officers and promoted the 6th Respondent who was at the 16th position.
4. The Applicants have challenged the impugned Annexure A-1 order as the same was got issued by the third Respondent without recourse to the relevant Recruitment Rules. The post of Deputy Director being a promotional post for the post of Assistant Directors it has to be filled up after following the prescribed procedure of selection. However, no such proceedings have been followed before issuing Annexure A-1 Office Order. Further, according to Applicant No. 1, he had the legitimate expectation to get the promotion to the aforesaid post of Deputy Director in view of his Annexure A-2 representation and his position in the Annexure A-4 seniority list. Second Applicant had also the legitimate expectation for his promotion in view of his position at Sl.No. 5 in the Annexure A-4 seniority list. On the other hand, Shri Bani Singh was not at all entitled for the promotion overlooking the claims of the Applicants and other 13 persons who are senior to him. Shri Bani Singh was also having the grade pay of only Rs. 6600/- at the time of issuing of the Annexure A-1 order while that of the candidates at Sl.No. 1 to 14 including the Applicants in the Annexure A-4 seniority list was Rs. 7600/-.
5. The Respondents No. 2 to 5 have filed their reply. They have stated that the Respondent No. 6 was given the officiating charge purely on temporary basis as per the work requirement and in view of the exigency. They have further stated that in accordance with the guidelines framed under FR 49, the Central Government is empowered to appoint a Government servant already holding a post in a substantive or officiating capacity to officiate as a temporary measure in one or more of independent posts at one time in the Government and the Respondent No. 6 was found the most suitable candidate among all to hold the post of Dy. Director.
6. The Private Respondent No. 6 Shri Bani Singh has filed the reply stating that this Tribunal has no jurisdiction to entertain the present OA in view of clause (i) of sub-rule (1) of Rule 6 and clause (ii) of sub-rule (1) of Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 as neither the impugned order has been passed within the jurisdiction of this Tribunal nor any cause of action, wholly or in part has arisen within jurisdiction of this Tribunal. He has also stated that the principle of seniority is applicable only where two persons are of equal merit. The Applicants need not feel any ignominy as the promotions have been made on the basis of merit with due regard to seniority. They lack merit compared to their counterparts. He has further stated that it is well settled law that period of service rendered under officiating capacity will not be reckoned for the purpose of determining the seniority and the Applicants have no loss towards their seniority if he continues to perform the duty of Dy. Director in officiating capacity as his appointment is not a substantive appointment. Moreover, he was given charge of Dy. Director purely on temporary and officiating basis up to 31.07.2014 in place of the regular incumbent Shri N.C. Mistry who is on deputation as Additional MD up to that period. Thereafter, he may be reverted to the post of Dy. Director which is his original post. He has also stated that Shri D.P. Singh in the department was earlier given promotion as Dy. Director in 2005 through duly constituted DPC on temporary basis against the vacancy occurred on account of deputation of an officer and when regular vacancy fell...
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