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
