PER URMITA DATTA (SEN), MEMBER (J):

1. In this instant application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have challenged the impugned action of the respondents in promoting the 2nd batch of Assistant Supervisors to the post of Supervisor by superseding the Assistant Supervisors, - applicants herein.

2. First of all, as the applicants are espousing the same cause of action against the same respondents, their prayer for joining together in this OA is allowed in terms of Rule 4(5)(a) of the CAT (Procedure) Rules, 1987.

3. As per the applicants, the office of Comptroller & Auditor General of India (C&AG in short) vide its Circular dated 15.10.2020 (Annexure A/2) intimated all the Head of the Departments in the IA & AD and other authorities with regard to creation of cadre restructuring of Group B & C Main Cadres – creation of posts of Assistant Supervisor etc. whereby the procedure for filling up the newly created post of Assistant Supervisors (Accounts) and Assistant Supervisors (Audit) were stipulated till framing of Recruitment Rules. In pursuance to the wide circulation of the Circular dated 02.11.2020 (Annexure A/3) issued by the Sr. Accounts Officer/Admn, office of Respondent no.2 only 23 Sr. Accountants, who, on having found eligible as per the said Circular, conveyed their willingness for attending mandatory training for appearing centralised examination for promotion to the post of Assistant Supervisor. After successful completion of such training, 22 Sr. Accountants appeared in the subsequent evaluation examination held on 19.12.2020, and all of them were declared successful vide result declared on 29.12.2020 (Annexure-A/4). Accordingly, as per the availability of sanctioned posts, out of qualified 22 Sr. Accountants, 16 Sr. Accountants from the panel list as per seniority of 1st batch examination were promoted to the post of Assistant Supervisors (Accounts) vide Order dated 31.12.2020 (Annexure-A/5). Further, 4 Assistant Supervisors i.e. top 4 Assistant Supervisors on the basis of 1st batch examination passed panel list, were promoted to the post of Supervisor as per availability of sanctioned post vide Order dated 18.01.2021 (Annexure A/6) on the condition that such promotion will take place w.e.f. 01.01.2021 notionally and actually from the date of their taking over the charges of the post in pay level-8 of Pay Matrix of the 7th CPC.

4. Subsequently, again 4 Sr. Accountants from the remaining panel list of 22 Sr. Accountants as per seniority of 1st batch examination were promoted to the post of Assistant Supervisors (Accounts) vide Order dated 20.01.2021 (Annexure-A/6). Subsequently, another 1 Assistant Supervisor was promoted to the post of Supervisor on 01.02.2021, and thereafter also, 2 (1+1) Sr. Accountants were promoted to the post of Assistant Supervisor. It has been submitted that all the promotions were given according to the panel list of 1st batch examination. According to the applicants, 14 Assistant Supervisors were eligible for promotion to the post of Supervisor as per norms/criteria of minimum 7 years as Sr Accountant + Assistant Supervisor, but were not promoted due to non-availability of vacancy, which is evident from the following table:-

5. It has been submitted that subsequently vide Circular dated 15.02.2021, the office of the C&AG, New Delhi decided to relax the norms prescribed for promotion as Assistant Supervisor on successful completion of training for being eligible to the considered for promotion as Assistant Supervisor for the panel year 2021 as one time relaxation. The concerned Sr. Accounts Officer/Admn. by the letter dated 22.03.2021 (Annexure A/7), 66 Sr. Accountants were offered promotion to officiate as Assistant Supervisors (Accounts) in relaxation of prescribed norms but all such officials have to mandatorily complete the training successfully along with Evaluation Test during the panel year 2021 itself. However, the authority did not cancel the panel list, which was prepared as per examination dated 19.12.2020, from which top 5 Assistant Supervisors were promoted to the post of Supervisors. The said 66 Sr. Accountants, who were promoted to Assistant Supervisors did not give willingness for the training evaluation examination held on 19.12.2020. They were promoted on the condition that they have to pass the training evaluation examination by maximum two chance vide letter dated 22.03.3021.

6. Thereafter, vide order dated 08.07.2021, 59 Sr. Accountants were declared passed in the training evaluation examination which was held on 07.07.2021. Subsequently, 20 Assistant Supervisors (Accounts) were provisionally promoted to the post of Supervisor (Accounts) w.e.f. 01.01.2021 notionally vide order dated 03.08.2021 (Annexure A/8). However, as per the applicants, by that Order dated 03.08.2021, 20 Supervisors had superseded the applicants (who had already passed the 1st batch examination held on 19.12.2020). Subsequently, 22 Sr. Accountants were also promoted to the post of Assistant Supervisors vide Circular dated 15.10.2020 and out of that top 5 Assistant Supervisors (1st batch qualifiers) were promoted to the post of Supervisors and rest of the Assistant Supervisors have to wait for their provisional promotion to the post of Supervisor, however, in terms of the relaxation given vide Circular dated 15.02.2021, another 64 Sr. Accountants were provisionally promoted to the post of Assistant Supervisor (Accounts) on 23.03.2021, out of the above 64 provisionally promoted Assistant Supervisors, 62 candidates appeared in the examination and 60 candidates passed the evaluation examination. Thereafter, on 02.08.2021, out of provisionally promoted Assistant Supervisors, 20 Assistant Supervisors (2nd batch examination) were promoted to the post of Supervisor. But the fact remains that the Assistant Supervisors, who were promoted as such on the basis of successful completion of training and on passing out 1st batch evaluation examination, have not been considered for promotion to the post of Supervisor, thereby 1st batch of Supervisors, and instead, the respondents had promoted the Assistant Supervisors from the 2nd batch examination superseding the 1st batch of Assistant Supervisors in violation of evaluation examination test seniority.

7. Being aggrieved with, the applicants, who had passed in the 1st batch examination had submitted representations on 12.03.2021 (Annexure-A/9), however, vide Order dated 25.05.2021, the office of the C &AG, New Delhi made it clear that seniority will be same as per seniority in the feeder cadre i.e., Sr. Accountants. Thus, the applicants have filed this OA.

8. It has been strenuously argued by the learned counsel for the applicants that though the applicants were promoted to the post of Assistant Supervisor (Accounts) after successful completion of training as well as evaluation examination held on 19.12.2020 following the procedure prescribed as per Rules vide Establishment Order dated 31.12.2020 (Annexure-A/5) w.e.f. 01.01.2021, however, they are being deprived in seniority as well as in promotion though they were borne in the cadre of Assistant Supervisor (Accounts) on and from 01.01.2021. On the contrary, some of the persons, who were not willing to take part in the earlier (1st batch) examination, and as one time relaxation of completion of training and passing evaluation examination prior to promotion, were granted provisional promotion vide Order dated 22.03.2021, and on 03.08.2021, they were granted seniority as well as promotion, who were even not borne in the cadre of Assistant Supervisor (Accounts) on and from 01.01.2021 as their promotions were provisional one, how they can get seniority over the applicants. As per the applicants, since they are regularly promoted earlier to those persons of 2nd batch examination, therefore applicants should be given seniority over and above the 2nd batch examination qualifiers, who were provisionally promoted.

9. The respondents have filed their written statement and have submitted that all the Sr. Accountants, who were eligible for getting promotion to the post of Assistant Supervisor and Supervisor were senior in service from the applicants in feeder cadre but did not take part in the mandatory training programme and thus also not appeared in the evaluation examination, that is why they were retained in the post of Sr. Accountant. However, out of 16 Assistant Supervisors, except Sri Amar Ch. Dey and Sri Chandan Debnath, other 14 persons filed this OA on the ground that they have been deprived from promotion which cannot be said to be violation of principles of natural justice. However, vide letter dated 15.02.2021, the office of the Respondent No.1 instructed to accommodate the senior Sr. Accountants in the post of Assistant Supervisor and Supervisor against the supernumerary post, who did not take part in the earlier training and examination but senior in service in the feeder cadre, however, they were promoted provisionally. The office of respondent no.1 instructed to organize further training and examination after giving the said promotion firstly. Accordingly, 64 Sr. Accountants were promoted as Assistant Supervisors on 23.03.2021 notionally from 01.01.2021 subject to rider that they have to appear the two weeks mandatory training & pass the examination failing which they will be reverted to the parent post i.e. Sr. Accountant as one time measure. Out of 64 eligible Sr. Accountants, all were imparted training but 62 Assistant Supervisors appeared in the examination and 60 passed in the examination. Out of those 60 Assistant Supervisors, 21 Assistant Supervisors were promoted as Supervisors on 02.08.2021 notionally from 01.01.2021 as they are senior to the last person as Supervisor i.e. Dhiman Gupta who got such promotion on 01.02.2021. Out of remaining 4(64-60) nos of Assistant Supervisors, one had already retired on superannuation on 30.06.2021, and the other has not appeared in the training and examination, and the remaining two failed in the examination. Those 3 (4-1) candidates who were provisionally promoted as Assistant Supervisors on 23.03.2021 (notionally from 01.01.2021) but failed in the examination or did not appear in the examination will be reverted to their parent post of Sr. Accountant after exhausting their 2nd chance of appearing in the examination which would be conducted by the office of the respondent no.2 shortly. The office of the respondent no.2 sought for approval from the respondent no.1 for 21 posts of Supervisor and 39 posts of Assistant Supervisor on the basis of supernumerary posts vide letter dated 09.07.2021, reply of which is still awaited.

10. It has been submitted by the learned counsel for the respondents that all the 26 Supervisors (previous 5 + present 21) are evidently senior to all the present applicants in the feeder cadre and thus, none of the promotes (Supervisor) is junior to the applicants in the feeder cadre of Sr. Accountants. Therefore, according to the learned counsel for the respondents, the OA is liable to be dismissed.

11. The applicants have filed their rejoinder wherein they have submitted that it is an admitted fact by the respondents that they have accommodated the Sr. Accountants in the feeder cadre by way of creating supernumerary post who did not take part in the earlier training and examination when there are no vacancy in the post of Supervisor at the time of 1st examination, thus, there is clear case of discrimination. Since the applicants were promoted on regular basis having been successfully completed the training and 1st batch of evaluation test, they are senior in their promoted post.

12. We have heard both the sides and perused the records. It is an undisputed and admitted fact that the applicants were promoted after successful completion of their training and on being found successful in the evaluation examination held on 19.1.2020. Accordingly, as per availability of sanctioned posts, all the successful Sr. Accountants (applicants) were promoted to the post of Assistant Supervisors (Accounts) on regular basis. Even 5 senior most Assistant Supervisors from the 1st batch examination, were further promoted to the post of Supervisor (Accounts) on regular basis as per availability of sanctioned post. However, the respondent no.1 took a decision to promote those unwilling and untrained Sr. Accountants to the post of Assistant Supervisors (Accounts) and Supervisors (Accounts) as one time relaxation. However, they were promoted on provisional basis by creating supernumerary posts.

13. From the above it is clear that applicants were promoted on regular basis after going through proper procedure prescribed against sanctioned posts vide Order dated 31.12.2020 whereas so-called seniors in the feeder cadre Sr. Accountants were promoted provisionally firstly to the post of Assistant Supervisors (Accounts) and then to the post of Supervisor (Accounts) that too by creating supernumerary posts. Whereas on the contrary, the applicants did not get the promotion to the post of Supervisor (Accounts) due to want of vacancy though they were earlier promoted to the post of Assistant Supervisors than those 66 persons, who according to the respondents, are senior in the feeder cadre. Vide Circular dated 15.02.2021 one time relaxation has only been provided since that was 1st year of restructuring, however, there was no stipulation to fix the seniority of the 2nd batch qualifiers over the 1st batch qualifiers as per their seniority in the feeder cadre. Admittedly, applicants were declared successful vide order dated 31.12.2020, which is much prior to the Circular dated 15.02.2021 on the basis of which subsequent 2nd batch candidates were promoted provisionally to the post of Assistant Supervisor (Accounts) and, few of them further to the post of Supervisor (Accounts) by creating supernumerary posts. It is well settled principle of law that seniority would be counted from the date of promotion in the promoted post not as per the seniority of the feeder cadre.

14. In view of the forgoing reasons, we are of the considered opinion that such promotion to the post of Supervisor to the 2nd batch candidates ignoring the 1st batch candidates is totally bad in law. Therefore, we quash and set aside the impugned Order dated 25.05.2021. Respondents are hereby directed to take proper steps with regard to promotion of the applicants to the post of Supervisor (Accounts) vis-à-vis the 2nd batch candidates who had admittedly been promoted to the post of Supervisor on regular basis on earlier dates than the 2nd batch of candidates and also to fix their seniority from the date of their regular promotion in the post of Assistant Supervisor, as observed above with consequential benefit. The entire exercise shall be completed as expeditiously as possible but not later than six months from the date of receipt of this order.

15. The OA is disposed of with the above observations and directions. There shall be no order as to costs.