IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2011
CORAM
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO
and
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
Writ Petition Nos.13374 and 25437 of 2010
and
M.P.Nos.1 of 2010 and 1 of 2011
S.Mohamed Mohideen ..Petitioner in W.P.No.13374/2010
The Director General,
ESI Corporation,
Head Quarter's Office,
C.I.G. Road, New Delhi-110 002. ..Petitioner in W.P.No.25437/2010
Vs
1. The Registrar,
Central Administrative Tribunal,
Madras Bench, Chennai. ..R-1 in both W.Ps.
2. R.Natarajan,
Joint Director (Revenue),
Regional Office,
Employees' State Insurance Corporation,
Tamil Nadu Region, Panchdeep Bhawan,
Chennai. ..R-2 in both W.Ps.
3. Union of India
rep. by the Director General,
Employees' State Insurance Corporation,
Head Quarters Office, CIG Road,
New Delhi-110 002. ..R-3 in W.P.No.13374/2010
4. Shri A.K.Shrivastva,
Director (E.I.),
Employees State Insurance Corporation,
Head Quarters Office,
CIG Road, New Delhi-110 002. ..R-4 in W.P.No.13374/2010
and
R-3 in W.P.No.25437/2010
5. The Secretary,
Union Public Service Commission,
Shahjahan Road, New Delhi-110 011 ..R-5 in W.P.No.13374/2010
and
R-4 in W.P.No.25437/2010
6. Ms.Manju Chakrabarti
Director, Sub Regional-Office,
E.S.I. Corporation, Marol,
Mumbai. ..R-6 in W.P.No.13374/2010
and
R-5 in W.P.No.25437/2010
Prayer:- Writ petitions filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari, calling for the records of the impugned order dated 30.04.2010 made in O.A.No.688 of 2008 on the file of the 1st respondent herein and quash the same.
For Petitioner in : Mr.P.Srinivas
W.P.No.13374 of 2010
For Petitioner in : Mr.C.V.Ramachandramurthy
W.P.No.25437 of 2010
For Respondents : R1- Tribunal.
Mr.Jayaraman, S.C. for
M/s.P.Gurusamy for R2.
Mr.C.V.Ramachandramurthy
for R-3 in W.P.No.25437/2010 &
R-4 in W.P.No.13374/2010.
Mr.K.Sridhar for R-5 in W.P.No.13374/2010 and R-4 in W.P.No.25437/2010 Mr.R.Sampath Kumar for R-6 in W.P.No.13374/2010 and R-5 in W.P.No.25437/2010 C O M M O N O R D E R (Order of the Court was made by D.HARIPARANTHAMAN,J.)
The Director General, Employees State Insurance Corporation, New Delhi, has filed W.P.No.25437 of 2010 to quash the order of the first respondent, viz., Central Administrative Tribunal, Madras Bench, in O.A.No.688 of 2008 dated 30.04.2010. The same relief is sought for by the petitioner, who was a Deputy Director selected under Direct Recruitment, in W.P.No.13374 of 2010. Hence, a common order is passed in both the writ petitions.
2. The Employees State Insurance Corporation(hereinafter will be referred to as ” ESI Corporation”), who is the petitioner in W.P.No.25437 of 2010, issued a draft seniority list of officers in the grade of Deputy Directors, as on 01.01.1995, by following the guidelines for fixation of seniority in respect of promotees and direct recruits, vide Memo No.A-24/15/1/94-E.1(A) dated 21.07.1995 and the same was finalised vide Memo No.A-24/15/1/95-E.I(A) dated 31.07.1997. Some direct recruits challenged the said seniority list, which was finalised on 31.07.1997, by filing O.A.No.549 of 1999 before the Central Administrative Tribunal, Principal Bench, New Delhi. The Tribunal, as per order dated 24.05.2001, disposed of the original application by directing the ESI Corporation to examine the claims and pass a detailed speaking and reasoned order in accordance with the rules and instructions, particularly, the contents of the Official Memorandum dated 29.02.2000.
3. The ESI Corporation sought clarification, in respect of the Official Memorandum dated 29.02.2000, from the Department of Personnel and Training (hereinafter will be referred to as “DOPT”), which in turn, as per memo dated 05.07.2002, clarified that there was no variation between the two official memorandums of the DOPT dated 07.02.1986 and 29.02.2000, while the first memorandum laid down the procedure to be followed, the second memorandum clarified as to what is the recruitment year for the purpose of the earlier official memorandum.
4. After getting clarification from the DOPT, in compliance of the order of the Central Administrative Tribunal, New Delhi, a speaking order was passed on 12.07.2002 by the ESI Corporation, which states that the seniority list dated 31.07.1997 was drawn correctly and there was no question of re-opening the seniority.
5. Some officers of the ESI Corporation filed an original application before the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A.No.2637 of 2004, challenging the aforesaid speaking order dated 12.07.2002. The second respondent in W.P.No.25437 of 2010 is the sixth respondent in the said original application.
6. The Central Administrative Tribunal, Principal Bench, New Delhi, as per order dated 14.07.2005, disposed of the original application and directed the ESI Corporation to recast the seniority list within a period of three months, in accordance with the clarification given by the DOPT vide its official memorandum dated 29.02.2000, on receipt of which, the ESI Corporation finalised the seniority list as per order dated 15.11.2005. Thereafter, the second respondent in W.P.No.25437 of 2010, who was dealing with the establishment matter at that relevant point of time, put up the constraints in revising the the seniority list and accordingly, the matter was again referred to the DOPT as per letters dated 04.05.2006, 07.07.2006 and 25.08.2006 through the Ministry of Labour and Employment, which in turn, as per reply dated 13.10.2006, informed that there is no necessity to give further clarification.
7. In the meantime, one Ghosh, a promotee Deputy Director, challenging the order passed by the Tribunal in O.A.No.2637 of 2004, filed W.P.(C)No.5433 of 2006 before the Delhi High Court and he also filed C.M.No.4462 of 2006 seeking stay of the operation of the order passed by the Tribunal and the Delhi High Court rejected the plea of stay.
8. Thereafter, the second respondent in W.P.No.25437 of 2010, who was looking after the administrative matters, as per letters dated 08.11.2006 and 17.11.2006 sought clarification from the DOPT so as to file reply in W.P.(C) No.5433 of 2006, which was filed before the Delhi High Court. On the basis of the reply filed by the ESI Corporation, the petitioner in W.P.(C)No.5433 of 2006 filed another application in CM No.12027 of 2006 seeking stay of the order passed by the Tribunal in O.A.No.2637 of 2004 and the same was also rejected. When the Department faced a contempt petition before the Central Administrative Tribunal, Principal Bench, the then officers in-charge of administration, circulated the draft seniority list of the Deputy Director dated 17.10.2006 calling for objections from the aggrieved persons within a period of thirty days. It is also stated in the said list that the revised seniority list would be provisional, pending clarification from the DOPT in the matter.
9. Ultimately, the seniority list was finalised by the competent authority, after following the due procedure, as per letter dated 24.01.2008 and pursuant to the same, after conducting a review DPC, six Deputy Directors have been promoted to the post of Regional Director/Joint Director, as per the recommendation made by the review DPC, vide order dated 10.03.2008.
10. Aggrieved by the said final seniority list dated 24.01.2008 and also the consequential promotion to the cadre of Regional Director/Joint Director, the second respondent in W.P.No.25437 of 2010 filed an original application before the Central Administrative Tribunal, Madras Bench, in O.A.No.688 of 2008, on the ground that the final seniority list was contrary to the draft seniority list dated 17.10.2006 issued by him in his official capacity as a Joint Director the ESI Corporation.
11. The Central Administrative Tribunal, Madras Bench, allowed O.A.No.688 of 2008, as per order dated 30.04.2010, on the ground that the final seniority list dated 24.01.2008 was contrary to its earlier order dated 17.10.2006, wherein it was stated that the final seniority would be decided after getting clarification from the DOPT. Assailing the correctness of the said order, W.P.No.25437 of 2010 is filed by the ESI Corporation and W.P.No.13374 of 2010 is filed by a direct recruit.
12. Heard the learned counsel for the petitioners and the learned counsel for the respondents.
13. We have perused the entire materials placed on record. It is seen that challenging the order passed by the ESI Corporation with regard to the issuance of seniority list dated 31.07.1997, O.A.No.2637 of 2004 was filed by some of the officers of the Corporation and the same was admittedly disposed of by the Central Administrative Tribunal, Principal Bench, New Delhi, as per order dated 14.07.2005, directing the ESI Corporation to recast the seniority list within a period of three months, in accordance with the clarification contained in the Official Memorandum dated 29.02.2000 of the DOPT. Accordingly, the second respondent in W.P.No.25437 of 2010 issued a draft seniority list as per memorandum dated 17.10.2006, wherein it is stated that the final seniority would be based on further clarification that could be obtained from the DOPT. While the Central Administrative Tribunal, Principal Bench, New Delhi, has categorically directed the ESI Corporation to recast the seniority based on the Official Memorandum dated 29.02.2000, the petitioner in W.P.No.25437 of 2010 has issued the draft seniority list of the Deputy Directors as per Memorandum dated 17.10.2006, stating that final seniority could be based on the further clarification from the DOPT.
14. As rightly contended by the learned Standing Counsel for the ESI Corporation that the Official Memorandum dated 29.02.2000 is the basis for finalising the final seniority list and the DOPT also clarified, as per letter dated 05.07.2002, that there was no variation between the two official memorandums of the DOPT dated 07.02.1986 and 29.02.2000 and therefore, the seniority has to be finalised based on the Official Memorandum dated 29.02.2000 and accordingly, as per order dated 24.01.2008, final seniority list was issued by the ESI Corporation. But the second respondent in W.P.No.25437 of 2010, who himself issued the proceedings dated 17.10.2006, approached the Central Administrative Tribunal, Madras Bench, stating that the final seniority list was issued without getting further clarification from the DOPT. The Tribunal quashed the final seniority list solely based on the memorandum dated 17.10.2006.
15. It is stated in the Official Memorandum dated 17.10.2006, issued by the second respondent in W.P.No.25437 of 2010, as follows:-
“The Seniority list of officers, who were working as Deputy Directors as on 01.01.1995, was circulated on 21.07.1995 and finalised on 31.07.1997 in this office Memo.No. A-24/15/1/95-E.I(A) dated 31.07.1997. The said seniority list was contested in the Central Administrative Tribunal, New Delhi, in O.A.No.549/1999. Consequently, as per the directions of the Hon’ble Central Administrative Tribunal, the issue was examined and a speaking order was issued on 12.07.2002.
The issue was again contested in the Central Administrative Tribunal, New Delhi, in O.A.No.2637/2004 and the Hon’ble Central Administrative Tribunal, in its judgment, on 14.07.2005 directed the ESI Corporation to recast the seniority list in accordance with the clarification given in DOPT’s O.M. dated 29.02.2000.
Accordingly, seniority list finalised on 31.07.1997 has been revised and is circulated to all the officers whose names figure in the list and who are still working as Joint Directors or Deputy Directors as on date.
The revised gradation/seniority list is provisional pending clarification from the DOPT in this matter. Representations regarding the errors in the provisional Seniority list or objections, if any, with reference to the seniority position of officers may please be made to Hqrs. within 30 days from the date of issue of this Memorandum. Representations received 30 days after the date of this Memo. will not be considered and the list will be finalised subject to the above.”
16. The second respondent in W.P.No.25437 of 2010, who filed O.A.No.688 of 2008, was a promotee. The dispute is between the direct recruits and the promotees. In the above circumstances, when there was an order dated 14.07.2005, issued by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A.No.2637 of 2004, directing to recast the seniority list based on the Official Memorandum dated 29.02.2000, the second respondent deliberately issued the proceedings dated 17.10.2006, stating that final seniority could be decided after getting further clarification from the DOPT. The ESI Corporation has made it clear that the second respondent in W.P.No.25437 of 2010, who was an interested person and who was dealing with administration, has done this mischief for his personal gain.
17. As the order of the Central Administrative Tribunal, Madras Bench, dated 30.04.2010, in O.A.No.688 of 2008, was passed solely based on the memorandum dated 17.10.2006, we are inclined to set aside the same. We do not find any infirmity in the final seniority list dated 24.01.2008 issued by the ESI Corporation, since it was issued as per the directions of the Central Administrative Tribunal, Principal Bench, New Delhi, dated 14.07.2005.
18. In the result, the writ petitions are allowed. The order dated 30.04.2010, passed by the Central Administrative Tribunal, in O.A.No.688 of 2008, is set aside. Connected M.Ps. are closed. No costs.
bs/
To
1. The Registrar, Central Administrative Tribunal,
Madras Bench, Chennai.
2. R.Natarajan, Joint Director (Revenue),
Regional Office, Employees' State Insurance Corporation,
Tamil Nadu Region, Panchdeep Bhawan, Chennai.
3. The Director General, Union of India
Employees' State Insurance Corporation,
Head Quarters Office, CIG Road,
New Delhi-110 002.
4. Shri A.K.Shrivastva, Director (E.I.),
Employees State Insurance Corporation,
Head Quarters Office,
CIG Road, New Delhi-110 002.
5. The Secretary,
Union Public Service Commission,
Shahjahan Road, New Delhi-110 011.
6. Ms.Manju Chakrabarti
Director, Sub Regional-Office,
E.S.I. Corporation, Marol,
Mumbai