K.A. Mohammed Manikfan v Union of India, Administrator, Union Territory of Lakshadweep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **O.P(CAT).No.2730 OF 2012(Z)** **[AGAINST THE ORDER DATED 11.07.2011 IN O.A.NO.39/2011 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH]** ## **PETITIONER/ APPLICANT:** **K.A.MOHAMMED MANIKFAN, AGED 50 YEARS, JUNIOR SCIENTIFIC OFFICER, DEPARTMENT OF SCIENCE AND TECHNOLOGY, U.T OF LAKSHADWEEP, KAVARATTI.** **BY ADVS. SRI.M.P.KRISHNAN NAIR SRI.V.B.NARAYANAN SRI.R.SUDHIR** ## **RESPONDENTS/ RESPONDENTS:** **1 UNION OF INDIA, REP. BY THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555. 2 THE DIRECTOR, DEPT. OF SCIENCE & TECHNOLOGY, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555. 3 SRI P. POOKOYA, TECHNICAL OFFICER, DEPT. OF SCIENCE & TECHNOLOGY, U.T. OF LAKSHADWEEP, KAVARATTI-682555. R1-R2 BY SRI.S.PRASHANTH, SC. R1-R2 BY ADV. SRI.MANU.S, CGC, ADMN. OF UTL. R3 BY ADV. SRI.C.KHALID R3 BY ADV. SRI.PHIJO PRADEESH PHILIP** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(CAT).2730 of 2012** **- 2 -** ## **"C.R."** **K.Vinod Chandran & V.G.Arun, JJ. -------------------------------O.P (CAT) No.2730 of 2012 -------------------------------Dated, this the 29[th] day of October, 2019** ## **JUDGMENT** ## **Vinod Chandran, J.** **The petitioner, applicant before the Tribunal, impugn the order rejecting his claim for consideration of seniority above the 3[rd] respondent in the cadre of Junior Scientific Officer for the purpose of further promotion to the post of Assistant Director in the Department of Science and Technology, Union Territory of Lakshadweep at Kavaratti.** **2. The claim of the applicant is for seniority with respect to a selection initiated in the year 1999 in which the applicant was appointed in 2001. However, there can be no delay alleged against the applicant, since the seniority list was published only on 17.04.2010 as per Annexure A4, just prior to the consideration for promotion to the post of Assistant Director. The seniority list, produced as Annexure A4** **- 3 -** **OP(CAT).2730 of 2012** **and the Office Memorandum dated 01.01.2011, wherein his claim for seniority above that of the 3[rd] respondent was rejected, produced as Annexure A7, were impugned before the Tribunal by an Original Application of 2011 itself.** **3. On background facts, it has to be noticed that the applicant joined service as a Technical Assistant in the Department of Science & Technology under the Administration of Union Territory of Lakshadweep on 26.02.1990. Two posts of Junior Scientific Officer were created on 01.10.1998; the Recruitment Rules of which was produced as Annexure A3 in the O.A. The Recruitment Rules provided for a quota of 50% for the Promotees and 50% to Direct Recruits. The feeder category for promotions was the post of Technical Assistant and in their absence, Environmental Warden; the former having six years experience and the latter having ten years experience.** **4. The 3[rd] respondent was appointed by direct recruitment on 03.02.1999. Though simultaneously selection for promotions were also initiated, it got delayed allegedly due to Annual Confidential Reports** **OP(CAT).2730 of 2012 - 4 -** **[for brevity “ACRs”] of many candidates having not been filled up in the proper form. It is the case of the Administration that ACRs were called for from the candidates in the feeder category and, hence, there was a delay in promotion. The applicant was promoted and appointed as Junior Scientific Officer on 11.06.2001. No seniority list was published as against the** _**inter se**_ **seniority of the applicant and the 3[rd] respondent, who were both in the cadre of Junior Scientific Officer/Technical Officer.** **5. When a promotion post became vacant in the post of Assistant Director, the Administration brought out Annexure A4 seniority list, where the applicant was placed second and the 3[rd] respondent assigned seniority above him. By virtue of the seniority, the 3[rd] respondent got promoted to the post of Assistant Director, also on the strength of the order of the Tribunal which directed the provisional promotion of the 3[rd] respondent to be considered. He has been continuing in the said post when the O.A. was dismissed by the Tribunal. The applicant immediately moved the** **- 5 -** **OP(CAT).2730 of 2012** **present Original Petition before this Court and when the same was pending here, the applicant retired.** **6. The Tribunal, by the impugned order, found that as per Annexure R1(e) guidelines for preparing a panel dated 09.04.1996, promotions would have only prospective effect even in cases where the vacancies relate to earlier years. The applicant having been promoted in 2001, there is no question of his promotion being ante-dated. It was also found that the claim of the applicant for promotion earlier cannot be countenanced, since the applicant submitted his ACR only on 30.01.1999 with a covering letter, produced as Annexure R1(a). Then a ban of appointments/promotion to vacant posts brought in by the Central Government was noticed, which was removed only on 23.10.2000. Looking at the Recruitment Rules, it was also found that there is nothing which mandates that the promotion should precede direct recruitment. Hence, even if the direct recruitment and promotion had been carried out parallel, if the applicant had been promoted subsequent to the appointment of the direct recruit, he could** **- 6 -** **OP(CAT).2730 of 2012** **have raised no claim for seniority above the direct recruit. The Tribunal rejected the O.A.** **7. Sri.R.Sudhir, learned Counsel appearing for the applicant, at the outset submitted that the Tribunal misdirected itself in having relied on the O.M. dated 09.04.1996, since even if the promotion has only prospective effect in determination of seniority, the General Orders issued by the Government of India (GoI hereafter) has to be looked at. It is confessed that the Consolidated Orders on Seniority dated 03.07.1986 was not placed before the Tribunal. The same has been produced before us and the learned Counsel specifically refers to the provisions in that Order, by which relative seniority of Direct Recruits and Promotees is determined according to rotation of vacancies. The Explanatory Memorandum following the Orders on this respect also speaks of maintenance of a roster based on the reservation for direct recruitment and promotion with the first post going to the promotee and the second post to the direct recruit and so on and so forth.** **- 7 -** **OP(CAT).2730 of 2012** **8. It is asserted that the allegation of the Administration that the ACRS were delayed cannot be countenanced, since the ACRs were already submitted by the applicant and at the time of promotion for reason of the same not being available with the Administration, the persons in the feeder category who were within the zone of consideration were asked to submit fresh ACRs. It is also submitted that the Consolidated Orders on Seniority dated 03.07.1986 issued by the GoI also speaks of responsibility for the maintenance of CRs, which is on the Head of every Department/Office. There is a specific period of reporting provided and a schedule mandated for preparation of CRs specifically to avoid delays in promotion, thus visiting the members in the feeder category with unnecessary heart burn. Sri.Sudhir also relies on the decision in** _**Union of India v**_ **.** _**N.R.Parmar**_ **[** _**(2012) 13 SCC 340**_ **] to assert that the specific clarificatory order relied on by the Administration in Annexure A7 impugned before the Tribunal was found to be bad and unenforceable. Urging the responsibility of** **- 8 -** **OP(CAT).2730 of 2012** **the Reporting/Reviewing Officers to ensure proper submission and maintenance of ACRs, the judgment of the Hon'ble Supreme Court in** _**Sivanandi P. v**_ **.** _**Rajeev Kumar**_ **[** _**(2017) 4 SCC 579**_ **] is relied on.** **9. Sri.Prasanth.S., learned Standing Counsel appearing for the Administration has produced before us the original files of the Administration to indicate the manner in which the selections were conducted by the Administration within time; but the delay having occasioned for reason of the improper submission of ACRs. It is submitted that there was no dispute raised in all the years when the applicant was continuing as a Junior Scientific Officer. Sri.Prasanth refers specifically to the counter affidavit filed before this Court in the O.P(CAT). In paragraph 14 it is specifically stated that the ACRs of the applicant for the periods 1992-93 to 1996-97 was not submitted. The submission of the CRs by the applicant was only on 30.01.1999, as can be further evidenced by Exhibit R1(d) letter dated 20.08.1999. The applicant has not raised any objection on the submission of ACRs; nor has** **- 9 -** **OP(CAT).2730 of 2012** **he stated that they were submitted earlier.** **10. We shall first look into the 'Consolidated Orders on Seniority' issued by the GoI, Department of Personnel and Training as per O.M.No.22011/7/86/Estt. (D) dated 03.07.1986. The O.M. dated 03.07.1986 adopted the 'General Principles for determination of Seniority in the Central Services', as brought out by GOI, Ministry of Home Affairs by O.M.No.9-11/55, RPS, dated 22.12.1959. This O.M of 1959, by Clause 6, provided for relative seniority of Direct Recruits and Promotees; which has to be determined according to the rotation of vacancies based on the quota for each mode of appointment. The Explanatory Memorandum, by General Principle 6, provided for maintenance of a roster in the case of reservation for direct recruitment and promotion. It also stipulated that when the reservation for each method is 50%, the roster will run with the first vacancy conceded to the promotee, the next to the direct recruit, then again to the promotee and so on and so forth. Hence, when two vacancies arise in an year and one is filled by direct recruitment and the** **- 10 -** **OP(CAT).2730 of 2012** **other by promotion, the promotee would get seniority over the direct recruit. This is the specific claim raised by the applicant before the Tribunal.** **11.** _**N.R.Parmar**_ **was a case in which the vacancies in a recruitment year was filled up in accordance with the General Principles of seniority between direct recruits and promotees. The requisition as also the notification for direct recruitment was issued by the Staff Selection Commission in the recruitment year in which the vacancies arose. However, the examination and selection process of direct recruits could not be completed within the recruitment year and their appointments were in the subsequent year. The direct recruits claimed their seniority to be interspaced with the promotees of the same recruitment year. The promotees, before the Hon'ble Supreme Court, had specifically relied on the clarification by O.M. dated 03.03.2008, which interpreted the term “available” used in the O.M. dated 03.07.2008 as follows:** **“... It is further clarified that when appointments against unfilled vacancies are** **- 11 -** **OP(CAT).2730 of 2012** **made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service.** **4. Cases of seniority already decided with reference to any other interpretation of the term 'available' as contained in O.M., dated 3- 7-1986 need not be reopened”.** **[G.I., Dept. of Per.& Trg.,O.M No.20011/1/2006Estt.(D) dated the 3[rd] March 2008]** **The Hon'ble Supreme Court found the said interpretation in O.M dated 03.03.2008 to have breached the parameters and ingredients of clarification by propounding a manner of determining inter se seniority between direct recruits and promotees repugnant to the earlier O.Ms dated 07.02.1986 and 03.07.1986. The O.M. which was relied on by the Administration impugned in the O.A.,** **- 12 -** **OP(CAT).2730 of 2012** **hence, has been interfered with by the Hon'ble Supreme Court.** **12. As we earlier found, there is no question of delay since the seniority list was first published in the year 2010, just prior to the promotion being considered to the post of Assistant Director. The applicant filed objections and also claimed seniority over the direct recruit. The Administration rejected the claim based on a Clarificatory Office Memorandum, which was found to be in violation and repugnant to the earlier Office Memorandums issued by the Central Government, in** _**N.R.Parmar**_ **. Hence, the applicant has to be conceded seniority over the direct recruit, the 3[rd] respondent.** **13. One other contention raised by the Administration is the absence of ACRs as projected in the counter affidavit. Here, we have to notice the O.M. of 03.07.1986 and its adoption of the General Principles as per the O.M. dated 22.12.1959. Chapter 2 of the 1959 O.M, deals with 'Confidential Reports Records for Consideration of Promotion'. As per** **OP(CAT).2730 of 2012 - 13 -** **O.M.No.51/5/72-Ests.(A) dated 20.05.1972, Para.3.1, it is the personal responsibility of the Head of every Department/Office to ensure that ACRs are properly maintained in respect of all persons working under his direct or ultimate control, as per paragraph 2. The very same O.M., by Clause 4, provided that in every Department, CRs should be recorded annually preferably for the period covered by the financial year. The financial year comes to a close on 31[st] of March and the ACR of the previous financial year has to be recorded annually, meaning before 31[st] of December of that calendar year.** **14. The GoI, Department of Personnel and** **Training, by O.M.No.35014/4/83-Estt.(A) dated 23.09.1985 provided a time schedule for preparation of CRs. The Central Government expressed its anxiety insofar as the CR dossiers were not available when employees are considered for confirmation or promotion or deputation to** _**ex cadre**_ **posts. The hardship caused to the employees whose cases come up for consideration for** **reason of ACRs not being written in time was** **OP(CAT).2730 of 2012** ## **- 14 -** **specifically noticed. To prevent such hardship, it was decided that strict time schedule be prescribed for various stages in the matter of writing of CRs and this time-schedule be adhered to by all the authorities concerned. The time schedule was also given in the enclosed statement, which also speaks of distribution of blank CR forms to all officers to make a self-appraisal by 31[st] March, the submission of self-appraisal to the Reporting Officer before 15h April and the submission of report by the Reporting Officer to the Reviewing Officer in the case of officers who have to make a self-appraisal by 7[th] May. The Reviewing Officer is also required to complete the process by 23[rd] May. The instructions issued by the Central Government would make it mandatory on the Controlling Officers, to ensure proper assessments by way of ACRs and maintenance of the same.** **15. We also notice the decision in** _**Sivanandi**_ _**P.**_ **and extract paragraph 19 hereunder:** **“19. That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay** **- 15 -** **OP(CAT).2730 of 2012** **obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities”.** **16. We cannot, hence, countenance the contention of the Administration that it was due to the failure on the part of the officer concerned to make a self-appraisal within time that the delay in promotion occurred. In fact, the learned Standing Counsel has produced before us the original file and specifically pointed out the notations made on 23.12.1998:** **“On verification of ACR folders of the staff of ST&E, it is seen that, almost all the staffs are not submitted CRs properly. The Details of shortage periods are as below:”.** **The applicant's name and the short fall years are seen from Serial No.2, below the notation. Evidently the CR dossiers were not properly maintained in accordance with GoI instructions. This cannot run to the disadvantage of the officer in the feeder category who** **- 16 -** **OP(CAT).2730 of 2012** **is due for promotion. In fact, if the promotion had been given in time and the proceedings were taken expeditiously after its initiation, then the applicant would have been appointed to the post in the year in which it was created.** **17. We, hence, are of the opinion that the applicant has to be given seniority over the 3[rd] respondent in the cadre of Junior Scientific Officer. The applicant having retired, he shall be entitled to the entire backwages in the higher post of Assistant Director from the date on which the 3[rd] respondent was promoted and he shall be granted increments in the higher post till his retirement. On retirement, his pension shall be fixed reckoning the pay he would have drawn as Assistant Director. We specifically direct the disbursal of backwages and the arrears of pension as per the revised fixation of pay, on severance; for reason of the 3[rd] respondent having been promoted provisionally when the O.A. was pending before the Tribunal, by virtue of an interim order for consideration of such provisional promotion. The O.P.** **OP(CAT).2730 of 2012** **- 17 -** **being a continuation of the proceedings before the Tribunal, there is no ground for limiting the promotion of the applicant as notional. We also make it clear that there shall be no refund of the amounts drawn by the 3[rd] respondent in the post of Assistant Director, since he had actually worked in the post for the entire period.** **The O.P(CAT) is allowed, setting aside the order of the Tribunal and allowing the O.A. filed by the applicant. The parties are directed to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **vku/-** **OP(CAT).2730 of 2012** ## **- 18 -** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE ORDER DATED 6.6.01 ISSUED**| |---|---| ||**BY THE 2ND RESPONDENT.**| |**ANNEXURE A2**|**TRUE COPY OF THE JOINING REPORT DATED**| ||**11.6.01 OF THE APPLICANT.**| |**ANNEXURE A3**|**TRUE COPY OF THE RECRUITMENT RULES OF**| ||**DEPARTMENT OF SCIENCE, TECHNOLOGY &**| ||**ENVIRONMENT OF LAKSHADWEEP ADMINISTRATION**| ||**(GROUP C TECHNICAL POSTS) RECRUITMENT**| ||**RULES, 1998.**| |**ANNEXURE A4**|**TRUE COPY OF THE OFFICE MEMO**| ||**F.NO.3/2/2010-S&T DATED 17.4.10**| ||**ALONG WITH PROVISIONAL SENIORITY LIST.**| |**ANNEXURE A5**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**29.4.10 SUBMITTED BY THE APPLICANT TO THE**| ||**2ND RESPONDENT.**| |**ANNEXURE A6**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**16.7.10 SUBMITTED BY THE APPLICANT TO THE**| ||**1ST RESPONDENT.**| |**ANNEXURE A7**|**TRUE COPY OF THE O.M.F.NO.3/2/2010-S&T**| ||**DATED 1.1.2011 ISSUED BY 1ST RESPONDENT.**| |**ANNEXURE R1A**|**TRUE COPY OF THE LETTER SUBMITTED BY THE**| ||**PETITIONER FORWARDING THE ANNUAL**| ||**CONFIDENTIAL REPORTS.**| |**ANNEXURE R1B**|**TRUE COPY OF THE OM.F.NO.7(3)/E COORD/99**| ||**DATED 23.10.2000.**| |**ANNEXURE R1C**|**TRUE COPY OF THE APPOINTMENT ORDER**| ||**F.NO.2/14/98-ST&E DATED 2.2.99.**| |**ANNEXURE R1D**|**TRUE COPY OF THE JOINING REPORT DATED**| ||**3.2.99.**| |**ANNEXURE R1E**|**TRUE COPY OF THE OFFICE MEMO DATED**| ||**9.4.1996.**| |**ANNEXURE R1F**|**TRUE COPY OF THE OFFICE MEMO DATED**| ||**21.6.2010.**| **OP(CAT).2730 of 2012 - 19 -** **ANNEXURE R1G TRUE COPY OF THE FINAL SENIORITY LIST DATED 5.7.2010. ANNEXURE R1H TRUE COPY OF THE OFFICE MEMO DATED 3.3.2008. ANNEXURE R1I TRUE COPY OF THE OFFICE MEMO DATED 1.1.2011. EXHIBIT P1 TRUE COPY OF THE OA NO.39/11. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 AND 2. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT DATED 3.7.2011. EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 11.7.2011 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL IN OA.NO.39/11/ EXHIBIT P6 TRUE COPY OF THE NOTIFICATION F.NO.1/2/2010-S&T(1) DATED 23.4.2010.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A A TRUE COPY OF THE PROCEEDING OF DPC DATED 1.6.2001. EXHIBIT R1 B A TRUE COPY OF THE LETTER F.NO.7/2/97/ST & E (1) DATED 23.12.98. EXHIBIT R1 C A TRUE COPY OF THE LETTER F.NO.7/2/97/ST&E DATED 18.8.99. EXHIBIT R1 D A TRUE COPY OF THE LETTER DATED 20.8.99. EXHIBIT R1 E A TRUE COPY OF OM DATED 5.8.99. EXHIBIT R1 F A TRUE COPY OF THE OM DATED 23.10.2000.** **[TRUE COPY]**