नियमितीकरण और पदोन्नति मुद्दे पर कैट में सुनवाई 6 अप्रैल को

साथियो,
संवर्ग पुनर्सरचना के क्रियान्वयन के फलस्वरूप वरिष्ठ अनुवादक से सहायक निदेशकों के पद पर दी गई तदर्थ पदोन्नतियों को नियमित करने (वरीयता सूची में पहले स्थान पर श्री राजेश तनेजा से लेकर 160 वे स्थान पर श्री झारखण्डे सिंह तक) और तत्पश्चात सहायक निदेशक के पद पर दिनांक 30.04.2015 तक की सभी रिक्तियों को प्रमोशन द्वारा भरने के लिए माननीय केंद्रीय प्रशासनिक अधिकरण (CAT) द्वारा O.A संख्या 206 /2016 पर दिनांक 15.01.2016 को दिए गए निर्णय के अनुसार राजभाषा विभाग को इस O.A के अनुलग्नक A-5 पर विचार हेतु दो माह का समय दिया गया था, लेकिन इसी बीच UPSC द्वारा 50 पदों पर सीधी भर्ती की प्रक्रिया पर तेजी से कार्रवाई करने के मद्देनजर उक्त O.A संख्या 206 /2016 की समान विषय वस्तु (with cosmetic changes) के आधार पर 42 नए आवेदकों (तदर्थ सहायक निदेशक) के साथ एक नया वाद O.A संख्या 843/2016 दिनांक 26.02.2016 फाईल कराया गया था, जिस पर एडमिशन हेतु दिनांक 01.03.2016 को सुनवाई हुई थी। 

मूल याचिका O.A संख्या 843/2016 के महत्वपूर्ण बिंदु निम्नवत हैं :- 

 (i) Impugned Advertisement No. 12/2015 issued by UPSC vide which the recruitment of Assistant Directors to fill up 50 vacancies has been issued. 

4.7 That since the restructuring order has been issued to remove the stagnation in the Central Secretariat Official Language Service (CSOLS) under Department of Official Language, such posts were to be filled up without holding positive act of selection which involved only scrutiny of service records of the senior most staff, subject to rejection of unfit. That, the matter was considered at length in the Ministry of Home Affairs and it was decided at the Apex level that all these resultant vacancies have to be filed up by promotion in order of seniority. 

4.9 That it is also relevant to notice that vide aforesaid order dated 10-2- 2012, the respondents promoted 60 more Senior Translators to the post of ad hoc Assistant Director making the total strength of ad hoc Assistant Directors to 160, where Shri Jharkhandey Singh is the junior most. (circulated Seniority list of 160 ad hoc Assistant Directors attached). 48 out of 160 ad hoc Assistant Directors are said to be covered in DPC held in April 2015 for their regularization for pre -cadre review period (i.e. vacancy year 2008-09, 2009-10 and 2010-11) as per reply given under Right to Information Act. (Attached) and remaining net 112 ad hoc Assistant Directors considered/counted against resultant vacancies. It is not understood as to why the promotions made against resultants vacancies and by following the due procedure have been treated as Adhoc. 

4.10 That being aggrieved by the said action of respondents, the applicants requested to treat the adhoc promotions as regular promotions as per their own decisions and the settled legal position 

4.11 That the applicants had also submitted relevant documents to prove that Ministry of Home Affairs had also approved the proposal of filling up the resultant vacancies of restructuring by promotion only. The said decision of the Ministry of Home Affairs had the approval of the Ministry of Finance as well. 

4.12 That after getting aforesaid information, the respondents had no reasons to treat the promotions as Adhoc. However, the respondents remained adamant and did not take necessary steps to treat the promotion of applicants as regular. Considering the aforesaid conduct of the respondents, the applicants submitted representations in 2014 and the last representation was given on 22.05.2014. After receipt of said representation/letter, the respondents sent a response dated 12.06.2014 wherein it was stated that 50 post of Assistant Director shall be filled up by direct recruitment through Union Public Service Commission. The said information was conveyed to the Association and the decision was sought to be substantiated by stating that stagnation was said to be set off by orders of the government giving the provision of ACP and MACP. 

4.13 That in fact, both the aforesaid decisions conveyed vide letter dt. 12.6.2014 are erroneous because provision of ACP/MACP can not be equated with the provision of promotion, particularly those promotions which are by way of restructuring to remove the stagnation. Secondly, the decision of the respondents to fill up 50 of resultant vacancies by direct recruitment is also erroneous because the resultant posts have arisen as a result of restructuring order which was passed by the government in order to remove the stagnation and in this view of the matter, the action of the respondents by deciding to fill up 50 of the vacancies by direct recruitment is like giving by one hand and taking it by the other. The question of filling up the resultant vacancies was not only arbitrary but was also illegal inasmuch as, when the Ministry of Home Affairs with the approval of Ministry of Finance had decided to fill up the resultant vacancies by way of promotion only, how could the subordinate authority decide to fill up 50 resultant vacancies by way of direct recruitment. 

4.14 That the respondents appeared to be oblivious of the fact that in case 50 out of resultant vacancies as a result of restructuring are filled up by direct recruitment, then the very purpose for which the restructuring order was passed would be defeated. 

4.15 That it is also relevant to notice that the respondent’s vide their letter dt. 12.6.2014 reveals that they had initiated the DPC proceedings asking APAR of 98 Senior Translators vide their O.M. No. 15/15/2013-O.L (Service) dated 29.01.2014 to fill up 65 posts of Assistant Director lying vacant at that point of time on ad hoc arrangement in the same manner as that of resultant vacancies for want of recruitment rules being the post upgraded from group ”B” to group “A” by the 6th CPC. Respondent/DPC cleared only 15 promotions out of 65 and took illogical decision very late in year 2014 to fill up 50 posts by direct recruitment. Had these vacancies been filled up, complete revised strength would have been once filled up by ad hoc arrangement in the same manner as that of resultant vacancies. 

4.17 That before the issue of aforesaid advertisement the applicant made several representation dated 24.06.2015 and 10.07.2015 through Association to ensure that before resorting to direct recruitment as per the new RRs notified in 2015 the vacancies became available under the old RRs are filled up by way of promotion. In fact, vide notification dated 01.05.2015 the respondents amended the RRs for the post of Assistant Director and categorized the same as group “A” post in the scale of Rs. 15600-39100 with grade pay of Rs. 5400. Since before making aforesaid amendment, the post was categorised as group “B” and in the advertisement the same was shown as group “A”, the respondents were required to ensure that only new vacancies occurred after notification of RRs are filled up. However, the respondents acted arbitrarily and decided to give 50 vacancies from the newly created vacancies to the direct recruits and that too by violating the settled legal position that the vacancies occurred under old RRs can not be filled up by new RRs. 

4.20 That being aggrieved by the said arbitrary action of the respondents the applicants submitted representation on 25.01.2016 through Dinesh Kumar Singh, President of central Secretariat Official Language Service Translators Association for rectifying the said illegality and to pass necessary orders regarding regularization of Adhoc service as well as filling of 112 resultant vacancies by considering the Adhoc A.D appearing up to the name of Sh. Jharkhande Singh (Seniority No. 160). 

 5. GROUNDS: 

A. Because the respondents have acted in most arbitrary and unjustified manner inasmuch as, on one hand they have not regularized the promotion of applicants as Assistant Director and on other hand issued advertisement No. 12/2015. 

B. Because when the applicants were promoted as Adhoc Assistant Director by following the same procedure as followed while making regular promotion, after examining their eligibility and suitability asper rules and against clear vacancies, the respondents were required to treat the promotion of applicants as regular. The Hon’ble Apex Court has also ruled so in the following cases:- 

(a) Direct Recruit Class-II Engineering Officers Association & Ors. Vs State 

(b) State of W.B & Ors. V. Aghore Nath Dey & Ors., (1993) 3 SCC 371 

(c) N.K Chauhan & Ors. V. State of Gujarat, AIR 1977 SCC 251[Paras 30 to 

(d) S.B. Patwardhan V. State of Maharashtra, (1977) 3 SCC 399 [Paras 39 

(e) Baleshwar Das V. State of U.P., (1980) 4 SCC 226 [Paras 30 to 36]. 

(f) A. Janardhan V. Union of India, (1983) 3 SCC 601 [Paras 38 & 34]. 

(g) B.S Mathur & Anr. V. Union of India, (2008) 10 SCC 271 [Paras 12, 39, 

(h) Sunil Kumar Mehra V. M.C.D. & Anr., WP 

(C) Because when the sufficient vacancies of Assistant Director were available and the applicants were fully qualified and eligible in terms of RRs for promotion and there was no dispute about their seniority in the feeder category, respondents were not justified in not granting regular promotion to the applicants as Assistant Director and promoting them on Adhoc basis. The applicants were required to be promoted as Assistant Director on regular basis. 

F. Because while not filling the resultant vacancies in accordance with the mandate of para 2 of OM dated 12.09.2011, the respondents have erred in law as well as facts. It is strange that the respondents are not following their own decisions in the matter of filling up vacancies of Assistant Director. 

H. Because the respondents have failed to consider that in respect of similar cadre restructuring in the cadre of Central Secretariat Stenographer Service, in terms of order dated 27.01.2011, similar provision was made for filling up the resultant vacancies through seniority quota as a one time measure but no objection was raised by any official because the order dated 27.01.2011 was issued by DOP&T itself. 

I. Because the respondents have acted in most arbitrary and unjustified manner as when the issue regarding filling up all the vacancies of Assistant Director till the notification of new RRs as well as the vacancies became available due to cadre restructuring were required to be fill up by way of promotion was under consideration, how could all of the sudden, the advertisement be issued to fill up the vacancies meant for promotion by way of direct recruitment. 

K. Because it is clear from the respondents own documents that out of 65 normal vacancies, only 15 vacancies were consumed for Adhoc promotion and remaining 50 vacancies reserved for direct recruitment without any justification. Even the process of regularization of 56 and then 17 Adhoc Assistant Directors was initiated against the normal vacancy year 2012-13 and not the resultant vacancy year 2011-12 as evident from office memorandum dated 13.05.2015 & 31.08.2015. 

 8. RELIEFS SOUGHT : 

For the facts and circumstances stated in above, it is most respectfully prayed that their lordship of this Tribunal would be pleased:- 

(a) To declare the action of the respondents in not regularizing the promotion of applicants as Assistant Director from the date of grant of Adhoc promotion as illegal and arbitrary and direct the respondents to regularize the Adhoc promotion and fix the seniority of applicants as Assistant Director from the date of Adhoc promotion with all consequential benefits.. 

(b) To declare the action of the respondents in filling up 50 vacancies of Assistant Director created due to cadre restructuring by way of Direct recruitment as illegal and set aside the impunged advertisement No. 12/2015 and issue further directions to fill up all the vacancies of Assistant Director created on account of cadre restructuring and regular vacancies till the notification of new RRs dated 01.05.2015 by promotion.. 

(c) To allow the O.A with costs. 

(d) Pass such other direction or directions order or orders as this Hon’ble Tribunal may deem fit and proper to meet the ends of justice. 

9. INTERIM RELIEF : 

Pending final adjudication of the OA, it is humbly prayed that this Hon’ble Tribunal may be pleased to restrain the respondents from finalising the selection to the post of Assistant Director as per Advertisement No. 12/2015. In case, the interim stay is not granted, the applicants would suffer irreparable loss as the UPSC has already fixed the date of exam as 20.03.2016.

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Order of hearing conducted on 01.03.2016 is as under: 

Central Administrative Tribunal 

Principal Bench 

New Delhi 

O.A.No.843/2016 

M.A.No.828/2016

M.A.No.829/2016 

Order Reserved on: 01.03.2016 

Order pronounced on 03.03.2016 

Hon’ble Shri V. Ajay Kumar, Member (J) Hon’ble Shri Shekhar Agarwal, Member (A) Sh. Pratap Singh & Others ... 

Applicants (By Advocate: Shri M.K.Bhardwaj) 

Versus

Union of India & Others ... Respondents 

O R D E R (on admission)

By V. Ajay Kumar, Member (J): 

Heard the learned counsel for the applicants. 

2. M.A.No.828/2016, filed for joining together under Rule 4(5) of the Central Administrative Tribunals (Procedure) Rules, 1987, is allowed. 

3. MA No.829/2016, filed for exemption from filing legible copies of dim annexures, is disposed of with a direction to the applicants to file the same within two weeks from today. 

4. Issue notice to the respondents, returnable on 06.04.2016. 

5. Issue DASTI. 

(Shekhar Agarwal)                                                                              (V. Ajay Kumar)

 Member (A)                                                                                           Member (J)

*****

उपरोक्त दोनों वादों की अद्यतन स्थिति के लिए निम्नलिखित सदस्यों से संपर्क किया जा सकता है:-
1. श्री दिनेश कुमार सिंह, अध्यक्ष, अनुवादक एसोसिएशन, Mob-9211709196
2. श्री डी पी मिश्रा, तदर्थ सहायक निदेशक , Mob-9312134004
3. श्री के के मिश्रा, तदर्थ सहायक निदेशक, Mob-9910391451
4. श्री राजकुमार रावत, वरिष्ठ अनुवादक , Mob-9711700535
5. श्री तरुण कुमार, वरिष्ठ अनुवादक, Mob-9871698694
6. श्री अजय कुमार झा, वरिष्ठ अनुवादक, Mob-9868268751