DPC, Stay and collection of money by persons not belonging to the cadre/Association

Dear friends and comrades,

          The instances of our members approaching judicial forums for promotion and seniority issues has been on the increase.  Suddenly there are stay orders obtained against proposed DPCs.  It is an unfortunate state of affairs.  The first thing it evidences is that the administration is not working as it is expected to.  Had the administration done its work diligently, there would have been no room for doubts, and consequently, the individuals would not have been compelled to approach the judicial forums for relief. The judicial forums also will not admit any case without a prima facie ground and particularly they will not so easily grant a stay against a Promotion process.

          As a result of the inept handling of the promotion process, there are two fall outs for our members. 

On the one hand, those members who are expecting a promotion after a very long duration feel frustrated that just when it is about to happen, someone puts spokes in the process.  On the other hand, those members who have approached the judiciary feel that they are more eligible for the promotion and therefore they should be considered first for the promotion.  In most of these cases, the stay itself is granted on the basis of these members convincing the judicial forums that they are deprived legally when their juniors are to be considered. Talking to these litigants has not been fruitful because, they ask us whether we are competent to sit in judgment regarding their grievance; whether we can guarantee them that they will be able to get justice if they do not go to the judicial forums; whether they are also not our members and whether we will be able to get their grievance settled before promotion of their juniors, etc.  To our argument whether the process of DPC is to be thwarted and whether larger interest should not be considered, their response usually is whether we will be able to give them any guarantee that even if the ad hoc promotion is allowed as per the existing systems/seniorities, that they will be set right within a short time or within their life time.  We cannot give such guarantees given the temperament of our administration where even regularization of ad hoc promotions to the posts of ACs has not yet been done from 1997, in spite of orders of the Supreme Court.  Once something is done on an adhoc basis, they allow it to remain so and never regularize it.  Hence, we have not been able to convince the litigants in such situations.

On the other hand, there is a suggestion that the Association should also intervene and seek permission of the judicial forum to conduct DPC on ad hoc basis. 

          Our Association has been consistently maintaining neutrality when there is a dispute between two section of our own members, for two reasons.  One is that both sections are our own members and it is not proper for an Association to take a position against its own members.  If it is done once, it has to be repeated again and again, which goes against the very grain of an Association. The second reason is that as pointed out by some, the Association is not competent to adjudicate claims and counter claims and therefore cannot take a stand, unless a particular issue has attained finality.  When a matter has attained finality, such issues will not attract a stay by a judicial forum also.  Unless, the Association has something substantial to submit on the point of law or merit of a case, no judiciary entertains such pleas.  That is because the judiciary is concerned only about judicial discipline and is not bound by majority opinion or the good of the majority.  The concern for the majority has to be implanted only in the minds of the administration and it is the duty of the administration to act with alacrity whenever claims and counter claims arise so that any question in the mind of the judiciary regarding the fairness of a particular process is nipped in the very bud.  The administration cannot prefer to look the other way until some difficulties have grown thick and then expect the Association to do the fire fighting, without any equipment in hand or without any authority to give any commitments before the judicial forums.

          We have seen in the instance of Bharathan case in CAT Chennai, Intervention petitions were filed at the behest of the previous SG of our Association.  The CAT did not take cognizance of it.  Though he forced the then President to get an order from the High Court ‘suspending the stay granted by the CAT’, the CAT reacted immediately by passing a final order wherein the All India Seniority List of Superintendents, not corrected as per the Parmar Judgment was QUASHED.  When the department subsequently approached the High Court twice, first on appeal and then on review, on both occasions, the Order of the CAT was only upheld.  In this situation, we had approached the Board with a request not to precipitate the judicial process.  We cited the instance in CBDT before the Ahmedabad High Court on the same issue regarding implementation of Parmar judgment, where the CBDT gave a commitment before the High Court of Gujarat to implement the said judgment within a time frame and after submission of compliance affidavit, the contempt proceedings were dropped.  Though our then Member (Admn) assured us to act similarly, the Board decided to file an SLP before the Hon’ble Supreme Court.  We all know what has happened subsequently.  We repeatedly requested for implementation of the Parmar judgment within a time frame and conducting of DPC subject to condition that it will be corrected within that time. But the Board refuses to give any time frame.  There lies the vested interest.  After 16 hearings, the SLP is yet to be disposed off.  In the meanwhile, the previous SG filed an IA claiming to represent the Association and collected money from individuals stating that he was going to demand conduction of DPC.  The IA was not even allowed.  Thereafter, the Board filed an IA wherein they sought permission to promote 600 persons as per the existing AISL on ad hoc basis and gave a commitment that they will regulate the ad hoc promotions and that as per the outcome of the decision in the SLP these ad hoc promotions will be regularized.  The Hon’ble Supreme Court had at the time of filing of the SLP, granted a stay on the Contempt Proceedings alone and not on the order of the CAT (upheld by the HC) quashing the AISL.  Hence the above IA by the department became necessary.  Because, our Association had been made party in the dispute by intervening in the CAT proceedings at Chennai, a notice was issued to us and we had also to file our affidavit, in which process, due to the numerous hearings, we have had to spend more than 12 lakhs.  This has been a bitter lesson for us even in the matter of a settled law.  Even then, since the matter was primarily linked to DRs (though every promotee also gets his benefit at the recruitment stage by this judgment) we have consciously taken the expenses only out of the donations received towards pursuing this case. 

          On the other hand we still come across promises by the erstwhile SG still claiming to represent the AIACEGEO and Superintendents, even after the Board clearly stated in its letter dated 12.02.2019 that Assistant Commissioners cannot be members of this Association.  He has claimed to have filed an IA before Jabalpur CAT in the matter of Alok Dixit.  His IA was not admitted / his plea had no bearing on the case.  The CAT vacated the stay only on the basis of the department committing before the CAT that the petitioner will be covered in the DPC.  This is classic instance where it will come out clearly that Judiciary is mindful only about justice to its applicants and is not bound by jingoism.  At this juncture, it has also to be mentioned that one of the Hon’ble Judges of the Supreme Court had even subsequently expressed his irritation over the ‘hype that was created in the issue’ in the Court room (in the Bharathan Case, when the former SG had come up with his IA).  Thus, any demands on the basis of public pressure are not entertained by the judicial forums with kindness.  They prefer to go only into judicial merits of each case.

          In our cases, the merit could be established only by the department stating before the judicial forums either that on merits the petitions should be dismissed for such and such reasons or that the department is taking earnest steps to correct the issue and seeking a reasonable time frame from the judicial forum to correct it and giving an undertaking that they may be permitted to conduct an ad hop DPC considering the administrative exigencies or the larger welfare of the staff and that they will regularize the said promotions within the set time frame.  ONLY THE ADMINISTRATION IS COMPETENT TO SAY THIS AND ASSOCIATION IS NOT COMPETENT TO SAY THIS.

          Hence, it is felt that it is our duty to warn our members against any promises made by individuals held to be not members of this Association - by the Board itself, to intervene in the name of the Association and get relief and towards that contributions are demanded.

          On our side, we have been putting pressure on the Board to have a uniform approach on all cadre issues throughout India and not to allow things to be done in different manners in different zones, thereby affecting the All India Seniority of the cadre and also not to allow things to be left in a limbo eternally.

          We are putting all our efforts in this regard so that as a cadre we can live free of such litigations and leg pulling, considering that the entire cadre is a stagnating cadre and it is only a mad rush between the stagnating, more stagnating and most stagnating.

          We feel depressed that we have been, as a cadre and as a class, degraded to such an extent. 

          Yet we will request our members on both sides of any issue to kindly use your discretion and act, in the wider interests of the cadre.

          As a responsible body, we assure everyone that as our fight is against stagnation, the association will not impede the process by impleading or intervening for stay.

Fraternally yours,

R. Manimohan,

SG, AIACEGEO