Union Of India vs C.S. Prem
2021 Latest Caselaw 7721 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                  &

                  THE HONOURABLE MR.JUSTICE K. BABU

    FRIDAY, THE 5TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       OP (CAT).NO.237 OF 2018

  AGAINST THE ORDER IN OA.NO.154/2017 DATED 31-01-2018 OF THE
       CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

PETITIONERS:

      1        UNION OF INDIA,
               REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
               INDIA, MINISTRY OF FINANCE, NEW DELHI-110 001.

      2        CONTROLLER GENERAL OF ACCOUNTS,
               MINISTRY OF EXPENDITURE, 7TH FLOOR,
               LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110 003.

      3        THE PRINCIPAL CHIEF CONTROLLER OF ACCOUNTS,
               CENTRAL BOARD OF EXCISE AND CUSTOMS,
               1ST FLOOR, AGCR BUILDING, NEW DELHI-110 002.

      4        THE DEPUTY CONTROLLER OF ACCOUNTS,
               CENTRAL BOARD OF EXCISE AND CUSTOMS,
               121, MAHATMA GANDHI ROAD, CHENNAI-34.

      5        THE SENIOR ACCOUNTS OFFICER,
               PAY AND ACCOUNTS, CUSTOMS, COCHIN-682 009.

               SRI.P.VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL OF
               INDIA
               SMT.N.S.DAYA SINDHU SHREE HARI, CENTRAL GOVERNMENT
               COUNSEL

RESPONDENT:
               C.S. PREM, S/O. C.G. STEPHEN, ACCOUNTANT,
               PAY AND ACCOUNTS, CUSTOMS, KOCHI-682 009,
               RESIDING AT CHIRAMEL HOUSE, KOOTUNGAL LANE,
               KOCHUPALLY ROAD, THOPPUMPADY, KOCHI-682 005

               BY ADV. SRI.T.C.GOVINDA SWAMY
               ADV. SRI.B.NAMADEVA PRABHU

     THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 02-03-2021, THE
COURT ON 05-03-2021 DELIVERED THE FOLLOWING:
                  ALEXANDER THOMAS & K.BABU, JJ.
    --------------------------------------------------------------------------
                         O.P.(CAT) No. 237 of 2018
          (arising out of the impugned final order dated 31.1.2018 in
         O.A. No. 154 of 2017 on the file of the CAT, Ernakulam Bench)
    --------------------------------------------------------------------------
                   Dated this the 5th day of March, 2021

                                 JUDGMENT

The prayers in the afore captioned Original Petition (CAT)

filed under Articles 226 & 227 of the Constitution of India are as

follows: {See page 7 of the paper book of this OP(CAT)}

"

i. Call for the records leading upto Ext-P3 and set aside the same. ii. To pass any other orders including appropriate interim orders that would be just, proper and necessary in the interest of justice."

2. Heard Smt.N.S.Daya Sindhu Shree Hari, learned Central

Government Counsel appearing for the petitioners in the O.P.

(respondents in the O.A. before the Tribunal) and Sri.T.C.Govinda

Swamy, learned counsel appearing for the sole respondent in the O.P.

(sole applicant in the O.A. before the Tribunal).

3. The prayers in Ext.P-1 Original Application O.A. No.

154/2017 filed by the respondent herein, before the Central

Administrative Tribunal, Ernakulam Bench, are as follows: {See page 19

of the paper book of this OP(CAT)} O.P.(CAT) No. 237 of 2018

..3..

"

i. Declare that the applicant is eligible to be considered for promotion as Senior Accountant for the vacancy years 2016- 2017 and 2017-2018 and direct the respondents accordingly; ii. Direct the respondents to consider and promote the applicant as Senior Accountant, if necessary by convening a review DPC, with all consequential benefits at par with those who have been promoted pursuant to Annexure A8 OM, with all consequential benefits, arising there from;

iii. Award costs of and incidental to this application; iv. Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."

4. The Tribunal after hearing both sides has rendered the

impugned Ext.P-3 final order dated 31.1.2018 in O.A. No. 154/2017

whereby it has been held that since the respondents in the O.A.

have issued Anx.A-6 notification, whereby similar deputation

period of service could be treated as part of regular service for the

purpose of appointment to the post of Junior Accounts Officer

(JAO), the same benefit could also enure for the purpose of

reckoning regular service in the feeder category of Accountant for

appointment by promotion to the post of Senior Accountant, and

accordingly held that the said deputation period of service of the

original applicant as Accountant should be treated as regular

service in the feeder category of Accountant for the purpose of

appointment to the post of Senior Accountant, etc. Being aggrieved

by the impugned Ext.P-3 final order, the respondents in the O.P.(CAT) No. 237 of 2018

..4..

O.A. have preferred a review application as R.A. No. 51/2018,

which also after hearing both sides have been dismissed by the

Tribunal as per impugned Ext.P-4 order dated 27.9.2018. It is

these orders at Exts.P-3 & P-4 that are under challenge in this

Original Petition.

5. The facts in this case are almost undisputed. The

applicant was originally appointed in the Kendriya Vidyalaya

Sangathan on 5.8.1991 as LD Clerk. Later, he was selected for

appointment as Accountant on deputation basis under the

respondents and had joined the said post on 3.6.2011. Later, the

original applicant came to be absorbed in the regular cadre of

Accountant under the 3rd respondent in the O.A. as per Anx.A-4

order 22.1.2015, with effect from 19.1.2015.

6. It is common ground that the next promotion post to

an incumbent like the applicant who is holding the post of

Accountant is to the next higher category of Senior Accountant,

wherein 100% of the vacancies are filled up by promotion from

abovesaid feeder category of Accountant. The recruitment rules for

filling up the post of Senior Accountant by promotion is given om

internal pages 13 & 14 of Anx.A5 {See pages 37 & 38 of the paper O.P.(CAT) No. 237 of 2018

..5..

book of this OP(CAT)} wherein it is stipulated that promotion shall

be from amongst accountants with 3 years of regular service and

who have qualified the Departmental Confirmatory

Examination as per the terms and conditions specified and

conducted by the Controller General of Accounts, and such

promotion shall be made from the common seniority list

for all Ministries on the basis of seniority-cum-fitness as per

procedure laid down under Sub Rule 2 of Rule 5, etc. It is

common ground that in the instant case, the applicant has

duly passed the Departmental Confirmatory Examination.

The cut-off date for consideration for promotion to the post

of Senior Accountant in the instant case is stated to be 1.4.2016.

The case of the respondents in the O.A. is that, the original

applicant has been regularly absorbed in the cadre of

Accountant only as per Anx.A-4 order dated 22.1.2015 with effect

from 19.1.2015 and therefore he does not have minimum 3 years

regular service in the cadre of Senior Accountant as on the

cut-off date of 1.4.2016. Per contra, the submission of the original

applicant is to the effect that the applicant was regularly

selected for deputation appointment in the post of Accountant O.P.(CAT) No. 237 of 2018

..6..

and he was thus appointed as Accountant by the method of

deputation on 3.6.2011 and later absorbed in the regular

cadre of Accountant as per Anx.A-4 order dated 22.1.2015 with

effect from 19.1.2015, and that the said deputation period

service of the applicant from 3.6.2011 in the post of Accountant

is to be counted and reckoned for the purpose of

determining whether he has the minimum 3 years regular

service as on 1.4.2016 for promotion to the post of Senior

Accountant. The sheet anchor of the case of the applicant is

on the basis of Anx. A-6 notification dated 4.8.2008 issued

by R-2 in the O.A.

7. The Tribunal after hearing both sides found that

the said deputation period of service is counted for the

purpose of appointment to the post of Junior Accounts Officer as

per Anx.A-6 notification. The Tribunal has considered the

provision in para 4.1 of the Regulation for the Junior

Accounts Officer (Civil) Examination, as given in Anx.A-6

notification dated 4.8.2008 and the note to para 4.1 of said

Regulation reads as follows: {See page 41 of the paper book of this

OP(CAT)} O.P.(CAT) No. 237 of 2018

..7..

"Note:- In the case of persons who have joined the Central Civil Accounts Service (CCAS) as Accountants initially on deputation basis and who have been absorbed subsequently in the said Service in accordance with the provisions contained in the Central Civil Accounts Service (Group C) Recruitment Rules relating to the post of Accountants, the period of three years mentioned in Para 4.1 will be counted from the date of their joining the CCAS as Accountant on deputation basis. However they will be eligible to appear in the Examination only if they have passed the Departmental Confirmatory Examination for Accountants on the date their names are sponsored by the concerned PrCCA/CCA/CA."

8. On the basis of provisions contained in Anx.A-6

notification, more particularly the note appended thereto, the

Tribunal has found that the understanding of the respondents in

the O.A. regarding the applicability of Anx.A-6 notification is

clearly legally erroneous.

9. The contention of the respondents in the

O.A./petitioners herein is to the effect that reckoning of said

deputation period of service referred to in Anx.A-6 is only for the

limited purpose of considering eligibility to appear in the selection

process for JAO and the same cannot be pressed into service as far

as promotion to the post of Senior Accountant is concerned,

wherein 3 years regular service after regular absorption in the

cadre of Senior Accountant is mandatory, and that the petitioner

has been regularly absorbed to the category of Senior Accountant O.P.(CAT) No. 237 of 2018

..8..

only with effect from 19.1.2015 and so he does not have the 3 years

regular service as on the cut-off date of 1.4.2016. The Tribunal

found that the said objection of the respondents in the O.A. cannot

be countenanced in law and that Anx.A-6 notification conveys an

entirely different picture and that since similar deputation period

of service is reckoned for the purpose of selection and

appointment to the post of JAO, the same should also be reckoned

for the purpose of promotion to the post of Senior Accountant.

It is this finding of the Tribunal at Ext.P-3 as confirmed in Ext.P-4,

that is under challenge in this Original Petition.

10. We have heard both sides and perused the pleadings

and materials on record. We are now apprised by Sri.T.C.Govinda

Swamy, learned counsel appearing for the sole respondent in the

O.P. (sole applicant in the O.A. before the Tribunal) that the post of

JAO referred to in Anx.A-6 is a Group B post and that, later the

said post of JAO has been amalgamated with the post of

Assistant Accounts Officer, and now after the merger the same is

re-nomenclatured as Assistant Accounts Officer (AAO). Though at

the time of issuance of Anx.A-6, the post in question was JAO. But

it is pertinently pointed out that the post of JAO belong to Group B O.P.(CAT) No. 237 of 2018

..9..

category at the time of issuance of Anx.A-6 notification, whereas,

the post of Senior Accountant to which the applicant aspires

promotion is in the lower Group C category. On this basis, it is

argued by Sri.T.C.Govinda Swamy, learned counsel appearing for

the sole respondent in the O.P. (sole applicant in the O.A. before

the Tribunal) that the reckoning of deputation period of service for

appointment to the higher post of JAO in Group B, should apply

with equal force and vigour or with greater vigour in the present

case where what is involved is appointment to the post of Senior

Accountant, which is a Group C post and hence, it is lower and

inferior to the Group B post of JAO.

11. After hearing both sides, the petitioners herein have

not placed any materials to controvert the well considered findings

of the Tribunal as per Anxs.A-3 & A-4. Moreover, the abovesaid

plea made by the original applicant that the benefit in terms of

Anx.A-6 given for appointment to Group B post of JAO could apply

with equal force or vigour or with greater vigour in the present case

which relates to appointment to the post of Senior Accountant,

which is a lower Group C post, has to be countenanced. We are not

persuaded by the petitioners to take a contrary view so as O.P.(CAT) No. 237 of 2018

..10..

to overrule the well considered findings made by the Tribunal. At

any rate, we are of the firm view that the abovesaid findings made

by the Tribunal at Anxs.A-3 & A-4 cannot be treated as illegal or

perverse. For these reasons, the Original Petition fails.

12. Sri.T.C.Govinda Swamy, learned counsel appearing for

the sole respondent in the O.P. (sole applicant in the O.A. before

the Tribunal) would point out that the Tribunal has rendered the

impugned Ext.P-3 final order as early as on 31.1.2018, whereby the

respondents in the O.A. have been directed to consider the

applicant for promotion as Senior Accountant for the vacancy for

the year 2016-2017 and promote him as Senior Accountant with

all consequential benefits at par with those who have been

promoted pursuant to Anx.A-8 O.M. and that the said directions

have not been complied with by the respondents/petitioners herein

even now citing the pendency of this O.P.

13. Accordingly we order that the petitioners in the O.P.

(respondents in the O.A. before the Tribunal) will comply with the

directions issued by the Tribunal at Ext.P-3 final order without any

further delay, at any rate within an outer time limit of 6 weeks

from the date of production of a certified copy of this judgment. O.P.(CAT) No. 237 of 2018

..11..

With these observations and directions, the above

Original Petition (CAT) will stand dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

K.BABU, JUDGE

MMG O.P.(CAT) No. 237 of 2018

..12..

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION OA 154/2017 (WITH ANNEXURES A1 TO A13)

ANNEXURE A1 TRUE COPY OF A NOTIFICATION BEARING NO.ADMN/1(10)36/ADVT./2009-10/698 PUBLISHED IN THE EMPLOYMENT NEWS DATED 6-12 NOVEMBER, 2010, BY THE OFFICE OF THE PRINCIPAL CHIEF CONTROLLER OF ACCOUNTS, CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI.

ANNEXURE A2 TRUE COPY OF OFFICE ORDER NO.9 DT 08.04.2011 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.

ANNEXURE A3 TRUE COPY OF THE OFFICE ORDER NO.11 DT 7TH SPE.2011 ISSUED BY THE SR. ACCOUNTS OFFICER, I THE OFFICE OF THE PAY AND ACCOUNTS OFFICE, CUSTOMS, CHENNAI

ANNEXURE A4 TRUE COPY OF THE OFFICE ORDER NO.262 DT 22.01.2015 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.

ANNEXURE A5 TRUE COPY OF THE CENTRAL CIVIL ACCOUNTS SERVICE (ACCOUNTANT AND SENIOR ACCOUNTANT GR. 'C' POSTS) RECRUITMENT RULES 2010, WITH ITS SCHEDULE DEALING WITH THE POSTS OF ACCOUNTANTS AND SENIOR ACCOUNTANTS.

ANNEXURE A6 TRUE COPY OF THE LETTER BEARING NO.A34012/142/2006/SYLLABUS REVIEW/MF.CGA(3)/68 DT 04.08.2008 ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A7 TRUE EXTRACT OF THE RESULT OF THE DEPARTMENTAL CONFIRMATORY EXAMINATION FOR ACCOUNTANTS HELD ON 20.12.2015 PUBLISHED FROM THE OFFICE OF THE 2ND RESPONDENT UNDER NO.34012/3852/2015/MF.CGA(E/733 DT 03.02.2016, ALONG WITH THE EXTRACT OF THE RELEVANT PAGE.

O.P.(CAT) No. 237 of 2018

..13..

ANNEXURE A8 TRUE COPY OF THE OM NO.A.11019/46/15/MF.CGA/NG/PRO-ACCTTS/412 DT 8.12.2015 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.

ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 05.02.2016 ADDRESSED TO THE 3RD RESPONDENT.

ANNEXURE A10 TRUE COPY OF THE REMINDER DATED 25.4.2016 SUBMITTED BY THE APPLICANT.

ANNEXURE A11 TRUE COPY OF THE O M BEARING NO.A.11019/46/2017-18/MF.CGA/NG/PRO- ACCTTS/431 DATED 13/12/2016.

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE PETITIONERS/RESPONDENTS IN OA.

EXHIBIT P3           TRUE COPY OF THE ORDER DATED 31/1/2018 IN
                     OA    154/2017     OF    HON'BLE    CENTRAL

ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P4           TRUE COPY OF THE ORDER DATED 27/9/2018 IN
                     RA     51/2018    OF     HON'BLE    CENTRAL

ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

EXHIBIT P5           TRUE COPY OF THE ORDER DATED 13/12/2018 IN
                     MA    1351/2018    OF    HON'BLE    CENTRLA

ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.