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2017 DIGILAW 514 (UTT)

Rama Negi v. Union of India

2017-09-22

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. 1. As all the above-mentioned Special Appeals have arisen out of the common judgment rendered by the learned Single Judge of this Court, hence, all four appeals are being taken up together with the consent of the counsel for hearing and are being decided by this common verdict. 2. This is a bunch of Special Appeals, which have been preferred by the appellants of the respective special appeals, whereby they have challenged the common judgment of the learned Single Judge dated 25.02.2014, as a result of which the writ petitions filed by Gopal Ram Arya being Writ Petition No.1645 of 2012 (S/S) Gopal Ram vs. Union of India & others and Writ Petition no.352 of 2013 (S/S) Gopal Ram vs. Union of India & others have been decided with the following directions : “Respondent authorities are directed to permit the petitioner meanwhile to discharge duties of Office Superintendent in officiating capacity. Respondent No.2 shall conclude the departmental proceedings against the petitioner in any case within three months from today. If departmental proceedings pursuant to charge-sheet dated 28.11.2011 is not concluded against the petitioner within three months for no fault on the part of petitioner, charge-sheet shall be deemed to have been revoked and non est. Thereafter denovo exercise in accordance with law shall be undertaken to fill up the post of Office Superintendent by way of promotion. Petitioner, if otherwise is eligible, shall be considered for the promotion. Both the writ petitions are disposed of accordingly.” 3. Smt. Rama Negi is the appellant in Special Appeal No.87 & 88 of 2014 and Gopal Ram Arya is the respondent no.3 in the aforesaid two appeals. On the other hand, Rama Negi is the respondent no.3 in Special Appeal Nos. 96 & 97 of 2014 and Gopal Ram Arya is respondent no.1 in these two appeals filed by Cantonment Board, Ranikhet. In order to avoid confusion, it would be advisable to term the aggrieved parties as Rama Negi and Gopal Ram Arya. On the other hand, Rama Negi is the respondent no.3 in Special Appeal Nos. 96 & 97 of 2014 and Gopal Ram Arya is respondent no.1 in these two appeals filed by Cantonment Board, Ranikhet. In order to avoid confusion, it would be advisable to term the aggrieved parties as Rama Negi and Gopal Ram Arya. In Writ Petition No. 1645 of 2012 (S/S), Gopal Ram has sought the relief to determine seniority from amongst the feeding cadre i.e. Revenue Superintendent, Accountant and Tax Superintendent, the posts which act as a common feeding cadre for the purposes of promotion to the post of Office Superintendent and after determination of seniority to consider and grant promotion to him (Gopal Ram Arya) on the said post which according to him, he is eligible. In Writ Petition No.352 of 2013 (S/S), Gopal Ram Arya has challenged the Resolution No.8 dated 25.03.2013 by virtue of which Smt. Rama Negi (appellant in Special Appeal no.88 of 2014) has been granted promotion on the post of Office Superintendent. By way of same writ petition, Gopal Ram Arya, simultaneously challenged the Resolution No.14 dated 11.01.2010 whereby promotion has been granted to Smt. Rama Negi to the post of Tax Superintendent. 4. Brief facts leading to the controversy are precisely confined to, as to what would be the mode of determination of interse seniority for the purposes of promotion on the post of Office Superintendent which is exclusively a promotional post with the Cantonment Board, Ranikhet. As per the service rules applicable to the Cantonment Board, and admittedly as per all the parties to the dispute, the post of Office Superintendent is an exclusively promotional post, which is to be filled up by selection from amongst the feeding cadres, i.e. Revenue Superintendent, Accountant & Tax Superintendent. The moot question for our consideration as it appears to us is “as to whether the interse seniority of the employees of Cantonment Board is to be determined on the basis of the higher pay scales in the feeding cadre? And, whether the preference is to be given to a member/employee who was drawing a higher pay scale in the feeding cadre? 5. And, whether the preference is to be given to a member/employee who was drawing a higher pay scale in the feeding cadre? 5. What has happened in the instant case is that Gopal Ram Arya (petitioner to the writ petitions) while challenging the promotion of Rama Negi (respondent no.3 in writ petition) has submitted that he was appointed on contractual basis as a Computer Operator on 16.07.1990 and admittedly according to the Cantonment Board itself and as per the statement made during the course of arguments of the instant appeals, Mr. Dobhal, Sr. Advocate for the Cantonment Board has submitted that Gopal Ram Arya was regularized on the post of Computer Operator, which is a clerical cadre in 1991. Thereafter, he was promoted to the post of Senior Clerk in 1997 and on 01.07.2005 he was promoted to the post of Revenue Superintendent. Meaning thereby, Gopal Ram Arya has placed himself in feeding cadre, to be eligible for being considered for promotion on the post of Office Superintendent as soon as he was promoted in the feeding cadre on 01.07.2015. In the Cantonment Board, the post of Office Superintendent fell vacant, for which the process of appointment by way of promotion was resorted to by the Cantonment Board. While considering promotion, the Cantonment Board had granted promotion to Rama Negi (respondent no.3 in writ petitions) vide its resolution dated 25.03.2013. 6. It was this promotion which was an eyesore for the writ petitioner (Gopal Ram Arya) on the ground that the promotion of Rama Negi (appellant in SPA Nos.87 & 88 of 2014) on the post of Accountant, which constitutes to be one of the feeding cadre and which was made on 01.10.2009, hence her eligibility for consideration of promotion on the post of Office Superintendent has to be on the basis of her eligibility to the feeding cadre. Hence, he contended that being the senior most in the feeding cadre, he ought to have been granted promotion and the promotion granted to her (i.e. Rama Negi) is contrary to law as applicable and governing the service conditions of the employees of Cantonment Board. Hence, he contended that being the senior most in the feeding cadre, he ought to have been granted promotion and the promotion granted to her (i.e. Rama Negi) is contrary to law as applicable and governing the service conditions of the employees of Cantonment Board. Proviso to sub-rule (8) of Rule 5-B of the Cantonment Fund Servants Rules, 1937 is quoted herein below for convenience: “5-B (8) Appointments to promotion posts shall be made by each Board on the basis of seniority lists maintained for this purpose by the appointing authority subject to rejection of those considered unfit: Provided that promotion to selection posts shall be made on the basis of seniority-cum-merit.” 7. A bare perusal of aforesaid rule reveals that the promotion to a post has to be made on the basis of “seniority-cum-merit”. On a simple analysis of the rule, nowhere it provides that for the purposes of promotion, the pay-scale which a person is drawing in the feeding cadre post could be taken as to be the basis for promotion. In other words, it nowhere provides that the interse seniority is to be determined on the basis of higher pay-scale in the feeding cadre. It was the stand of the Cantonment Board though admitted by them that Gopal Ram Arya was appointed in the feeding cadre on 01.07.2005 and Rama Negi was appointed in one of the feeding cadre on 01.10.2009, but the justification of the Cantonment Board for granting promotion to Rama Negi, who was promoted at a later stage in the feeding cadre was that since she was promoted at a later stage on the post of Accountant, which was carrying a higher pay-scale hence she would be treated to be senior to Gopal Ram Arya and thus the promotion was rightly granted to her. The other justification given by the Cantonment Board while challenging the relief’s claimed by Gopal Ram Arya (writ petitioner) was that at the time when the promotional exercise was being taken, Gopal Ram Arya was facing a disciplinary proceeding, due to which he was charge-sheeted and the same was pending adjudication and no final decision was taken in the disciplinary proceedings. The argument of learned senior counsel for the Cantonment Board is that the pendency of the disciplinary proceedings will itself create a hurdle against Gopal Ram Arya from being considered for promotion. 8. The argument of learned senior counsel for the Cantonment Board is that the pendency of the disciplinary proceedings will itself create a hurdle against Gopal Ram Arya from being considered for promotion. 8. The writ petitions were heard finally and the learned Single Judge has decided the matter by the impugned judgment dated 25.02.2014. 9. As far as Rama Negi is concerned, she was appointed as Steno-Typist for the first time in the Cantonment Board in 1995. It was her contention that at the time when she was appointed as Steno Typist she was carrying pay-scale of Rs.4000-6000, which was equivalent to Senior Clerk as compared to the pay-scale of Steno-Typist. Thereafter, she claims that she was promoted on the post of Accountant on 01.10.2009 and, according to her, she was carrying pay-scale of Rs.5500-175-9000 on the post of Accountant. This has been taken as to be the foundation for determination of seniority for the purposes of promotion on the post of Office Superintendent. Her case was that after implementation of recommendation of the Sixth Pay Commission, her pay-scale was revised along with other employees and she was placed in pay-band of Rs.9300-34800 (Grade Pay Rs.4200) w.e.f. 01.10.2009. The contention of Rama Negi was that when Gopal Ram Arya was promoted in the feeding cadre, he was carrying a lesser pay-scale, this fact has been wrongly interpreted by the Cantonment Board because the pay-scale of an employee has not been statutory laid down to be the basis for determination of seniority and even so much so the counsel appearing for the Cantonment Board too could not provide proper assistance to the Court as to how the seniority is being reckoned for the purpose of promotion in the Cantonment Board. The Cantonment Board has failed to understand that the criteria of promotion and criteria of determining seniority are two different and independent aspects, in service jurisprudence. The criteria of seniority entitles a person to be considered for promotion. Whereas in promotion, the seniority fixed earlier takes lead basis for promotion. Both cannot be considered as to be identical. Hence, the claim of Ram Negi is untenable. 10. The criteria of seniority entitles a person to be considered for promotion. Whereas in promotion, the seniority fixed earlier takes lead basis for promotion. Both cannot be considered as to be identical. Hence, the claim of Ram Negi is untenable. 10. After careful consideration of arguments advanced by learned counsel for the parties and the documents brought on record, we feel that there is no justified reason available to us to disagree with the impugned judgment rendered by learned Single Judge for the following reasons: (i) No doubt, the Cantonment Fund Servants Rules, 1937, only contemplate the criteria of promotion as to be the seniority-cum-merit. It goes without saying that when for a promotional post there are various feeding cadres and out of the several rival candidates whosoever has been promoted prior in time in the feeding cadre would bound to be treated to be meritorious as compared to the other for the purposes of promotion to be eligible to be considered for promotion, since he or she constitutes to be in the feeing cadre prior in time is to be treated as senior. (ii) The applicability of the Cantonment Fund Servants Rules, 1937 is admitted by the parties. On consistent question being posed to the parties to give their justification as to from where they derived the proposition that for the purpose of determining seniority, the pay-scale of the candidates in the feeding cadre would be treated as to be the basis of fixing seniority, no reply could be extended either by the appellant’s counsel or by the Cantonment Board as to from where they have adopted the principle that the pay-scales in the feeding cadre post could be taken as to be the fixation of seniority. (iii) The rationale as assigned by the learned counsel for the parties that if several candidates are drawing higher pay-scales in various posts which act as a feeding cadre for a promotional post is accepted, it would lead to an absolute chaos, because there may be a situation where a person who otherwise has fallen in the feeding cadre would be deprived of his promotion irrespective of his length of service in the cadre or the length of service in the feeding cadre. This would be arbitrary and violative of Articles 14 and 16 of the Constitution of India. This would be arbitrary and violative of Articles 14 and 16 of the Constitution of India. The foundation canvassed by Cantonment Board by accepting the pay-scales as to be the basis for determining the seniority from a common feeding cadre, is utterly bad in law. It is unheard of under service jurisprudence. It also holds no water for the reason that the Cantonment Fund Servants Rules, 1937 do not anywhere provide the criteria which is to be adopted by the authority for determining seniority of the employees of Cantonment Board. (iv) On several dates of arguments, it was a consistent query raised by the Court from learned counsel for the parties to place on record the premise on which the Cantonment Board adopts the criteria for fixing seniority. But, none of the learned counsel has been able to place on record any government orders, circulars or directives or even the rules to show as to what would be the criteria for determining seniority. The rules do not provide that the criteria for determining seniority is based on the pay-scales drawn by a person working in the feeding cadre. Thus, in the absence of there being any sanctity of law, the principle adopted by the Cantonment Board for determining seniority on the basis of higher pay scales in the feeding cadre is held to be arbitrary and illegal and it could be said that it was for the purposes to bestow undue advantage to a particular candidate to whom the Cantonment Board wanted to extend undue favour. (v) The logic of denial of promotion or preparation of seniority list so far as it related to Gopal Ram Arya was that there was a disciplinary proceeding pending against him. Learned Single Judge, while considering the propriety of charge, which has been taken as a defence to create impediment on a promotion of Gopal Ram Arya, had come to the conclusion that he was charged for negligence of duties and absence from duty. On reading of charge, it reveals that the alleged absence from duty is not in relation to Gopal Ram Arya (writ petitioner), but, in fact, it relates to the absence of his subordinate employees, who were working under his supervision. On reading of charge, it reveals that the alleged absence from duty is not in relation to Gopal Ram Arya (writ petitioner), but, in fact, it relates to the absence of his subordinate employees, who were working under his supervision. If the subordinate employees working under the writ petitioner remain absent for a certain time, at least, it cannot be attributed to be the misconduct on the part of Gopal Ram Arya and it is only a lack of managerial skill, which will not amount to be misconduct for the purposes of declining him to be considered for promotion. (vi) Even otherwise also, under the service jurisprudence, there are few occasions where a candidate after having rendered a long service tenure seldom gets an opportunity to be considered for promotion and, unfortunately, at that point of time, if the said employee is facing a disciplinary proceeding, he will not be disentitled for promotion because the same would deprive him of his promotional opportunity. This view is fortified by a decision of Hon’ble Apex Court in Union of India vs. K.V. Jankiraman, 1991 AIR 2010 wherein it was held that when the promotion exercise is being taken and the employee is under the disciplinary/criminal proceedings at the relevant time, the findings of his entitlement to such benefit (i.e. promotion) must be kept in a sealed envelope to be opened after the proceedings in question are over. In the instant case, there is no reason as to why the Cantonment Board has not adopted the said process of ‘sealed envelope’ as provided under the law, if Cantonment Board takes the plea of pending disciplinary proceedings. (vii) Besides this, on a logical analysis and scrutiny to the charges, they are not of such a grievous nature where any charge could logically conclude, that a delinquent person deserves a major punishment. Looking to the charges levelled against him (Gopal Ram Arya), this Court is of the view that they are of not such a grievous nature, which could be said to be having a gravity of moral turpitude or financial irregularity. Hence, he could not be deprived of promotion on the basis of charges levelled against him. Looking to the charges levelled against him (Gopal Ram Arya), this Court is of the view that they are of not such a grievous nature, which could be said to be having a gravity of moral turpitude or financial irregularity. Hence, he could not be deprived of promotion on the basis of charges levelled against him. (viii) Another ground which has been taken by the Cantonment Board for not granting promotion to the petitioner was that the controversy pertaining to the parity of pay-scales between the feeding cadre to the promotional post of Office Superintendent was pending consideration before the superior authority and its decision is still awaited. Yet again, it was absolutely an inappropriate decision to deny promotion merely because the superior authorities are delaying the decision. If Ram Gopal Arya is to be denied promotion on that ground alone, the person who is carrying higher pay-scale too cannot be classified as to be the person having a parity of pay-scales and hence appellant-Rama Negi too ought not to have been considered for promotion. Thus, granting of the promotion by the resolution dated 25.03.2013 was faulted of. 11. Mr. Arvind Vashistha, learned senior counsel for the petitioner (Gopal Ram Arya) had submitted that so far as reckoning of seniority in the Cantonment Board is concerned, the same is done on the basis of the circular issued by the Government of India by way of an office memorandum dated 10.09.1995, whereby he submitted that the seniority list is prepared as per the terms of the said memorandum, which does not provide any rider that the seniority has to be determined on the basis of pay-scales which the person is receiving. 12. Hence, we hold that the pay-scale has got no role in fixation of seniority of the employees of Cantonment Board and the date of appointment of an incumbent in the respective feeding cadre shall be given effect to for considering interse seniority for the purposes of promotion on the post of Office Superintendent. We also find that if we scrutinize the time at which the chare-sheet was issued to him, it cannot be ruled out that the disciplinary proceeding was deliberately initiated against Gopal Ram Arya, to oust him from the purview of promotional field. Apart from it, at least, under no logic he could be held responsible in the disciplinary proceeding for a fault committed by his subordinates. Apart from it, at least, under no logic he could be held responsible in the disciplinary proceeding for a fault committed by his subordinates. 13. In view of above, the Special Appeal Nos.88 and 87 of 2014 filed by Smt. Rama Negi fail and are hereby dismissed. The judgment dated 25.02.2014 rendered by learned Single Judge passed in writ petition nos.1645 of 2012 and 352 of 2013 is affirmed. This judgment would be applicable to all connected special appeals. 14. Accordingly, all four appeals are hereby dismissed. No order as to costs.