COURT CASE ON CONFERMENT OF Gr. A STATUS TO Sr. AOs
The latest position of the case : -
Against the Govt. reply to the OA our Advocate has filed the following rejoiner. The hearing of the OA has been over. Now we are waiting for the final judgment of the case.
The latest position of the case : -
Against the Govt. reply to the OA our Advocate has filed the following rejoiner. The hearing of the OA has been over. Now we are waiting for the final judgment of the case.
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH NEW DELHI
OA NO. ____ /2012
IN THE MATTER OF:
ALL INDIA AUDIT & ACCOUNTS OFFICERS ASSN. &
Ors
Versus
UNION OF INDIA & Ors.,
BRIEF
REJOINDER ON BEHALF OF THE PETITIONERS
MOST
RESPECTFULLY SHEWETH:
The Petitioners crave leave to
file the present brief rejoinder to the Common Counter Affidavit on behalf of
all the Respondents herein. The Petitioners reserve its right to file a more
detailed para wise reply, should the need arise or if this Hon’ble Tribunal so
directs. The Petitioners are also not repeating the averments and contentions
already made in the Original Application
in the interest of brevity.
1. At the very outset the Petitioner submits that the
present counter affidavit filed on behalf of all the respondents is per se
liable to be rejected for the reason that the Respondents 2 and 3 have taken a
stand in favour of the Petitioners herein as shown from the documents on record
and have recommended Group A status, whereas it is only the Respondent No.1 who
has rejected the request for Group A status. It is submitted that this being
the case, the Respondents 2 and 3 cannot be permitted to change/alter their
stand in the garb of filing a joint counter affidavit on behalf of all the
respondents. The Respondents 2 and 3
being Government authorities, have a duty to act in a fair and reasonable
manner. It is a matter of utmost concern that the Respondents 2 and 3 should
today take a stand totally contrary to their own view and Notifications by way
of the present counter affidavit.
2. The Petitioners further submit that the Respondent No.2
being a constitutional functionary is expected to act in a fair and reasonable
manner, and cannot, after agreeing in principle to the grant of Group A status
to the Petitioners, and recommending the same to the Respondent No.1, now do a volte face and state that the
Petitioners have no right to claim Group A status. It is further submitted that
the Respondent No.2 as shown in Annexures A-11 and A-12, in the Petition filed clearly establishes
that the Respondent No.2 had agreed to the grant of Group A status and at no
point raised any issues regarding the implementation of the same.
3. Further, at para 2 of the Counter affidavit under Brief
Facts of the Case, the Respondent No.2 purports to rely upon a communication
dated 30-3-2009 to the Respondent No.3, whereunder the Respondent No.2 states
that it has informed the Department that implementation of Group A of the
Petitioners would result in some practical difficulties and time would be
required to sort out the same. It is submitted that this paragraph under reply
is entirely misleading. The Respondent No.2 has not filed a copy of this
letter. The Copy of this letter dated 30-3-2009 is being annexed as Annexure A to the present
Rejoinder. A perusal of this letter
would amply indicate that the first paragraph extracted by the Respondent No.2
in the counter affidavit is of a letter dated 13-6-2002 (and not in response to
the draft order prior to the 2009 DoPT notification). Even after a lapse of ten
years since (2002) the practical difficulties have been neither identified nor
spelt out notwithstanding the fact that the administration of Respondent 2
fully supported inclusion of the posts of Sr.AOs in Group A. In the 30-3-2009
letter, the Respondent while extracting an earlier letter, has then in the last
paragraph specifically stated that “no
specific exceptions should be built into the body of the Government Order or
otherwise to deny, per se, Group A status to Sr AOs of this department
unilaterally.” It is submitted that this makes it amply clear that the true
and correct stand of the Respondent No.2 is that, despite the 2002 letter, they
had decided to include the Senior Audit and Accounts Officers as Group A and
that is the reason they make a conscious statement, not to exclude the said
persons from Group A status in the 2009 Notification.
4. It is further submitted that this letter further makes it
clear, that the Respondent No.2 in 2002 itself had agreed that the Senior Audit
and Accounts Officers should be included in Group A. However, due to practical
difficulties in 2002 they stated that some time was required to streamline
procedures for implementation of new classification for Senior AOs. It is
submitted that now even after 10 years, the Respondents cannot be permitted to
contend that they still have not had sufficient time to streamline procedures.
5. In any event, whatever may have been the internal
communications between the Respondent No.2 and 3, what is relevant for deciding
the rights of the Senior Audit and Accounts Officers is the entitlement under
the Notifications dated 9-4-2009 and 17-4-2009. Once the final notification specifies that
the Senior Audit and Accounts Officers are entitled to Group A status, no
further justification or reasons can be given for non grant of this status to
the Senior Audit and Accounts Officers.
In fact the Notification dated 9th April 2009 specifically
states that the notification applies to persons serving in the Indian Audit and
Accounts Department. If there was any
reservation about implementation of the said Notification to the IA &AD,
this could have been specifically stated in the Notification. This not having
been done, there can be no question of denying the right of the Senior Audit
and Accounts Officers, their Group A status.
6. In fact the subsequent Notification of the DoPT dated
17-4-2009 specifically states that all posts should be strictly classified in
accordance with the 9-4-2009 Notification and if any department or ministry for
any specific reason seeks to classify the posts differently, it would be
necessary for that Department to send a specific proposal to the Department of
Personnel and Training giving full justification within 3 months so that the
exception to the norms can be notified. It is submitted that if it was the case
of the Respondent No.2 that further time was required for implementation of the
Group A status, they ought to have written to the Respondent No.3 within 3
months. This also has not been done. For
the first time in para 4 of the counter affidavit under reply, a statement has
been made that on 17-7-2009 a letter was written to the DoPT for further 3
months time. However the Respondent No.2
has not filed this letter before this Hon’ble Tribunal. It is submitted that even this letter is
beyond the 3 months period which would have expired on 16-7-2009. In any event, today more than 3 years have
passed. The Respondent No.2 has not
stated if the Respondent No.3 has permitted this extension and if so if after
the extended 3 months any decision was taken contrary to the notification. In
any event, as per the Notification dated 17-4-2009, once the representation is
made by an Department for exceptions, the Respondent No.3 has to consider it
and pass a notification specifying exceptions to the notification, This has
also not been done. This being the case, it is not open to the Respondent No.2
to now seek to state that the Group A status cannot be implemented.
7. In fact the Respondent No.2’s submission to the 6th
CPC also clearly shows that the Respondent No.2 was of the opinion that the
Senior Audit and Accounts Officers are entitled to be placed on par with the
Under Secretaries in the Central Secretariat who are Group A. Annexed hereto as
Annexure B is a copy of the
submissions.
8. In the above background it is submitted that it is not
open to the Respondent No.2 to alter its stance and oppose the
grant/implementation of the Notification
of Group A status to the Senior Audit and Accounts Officers.
9. As far as the Respondent No.3 is concerned, it is
submitted that the present counter affidavit, could not have been filed on its
behalf, for the reason that being a Government Department, it cannot seek to
deviate from its own notifications. Under the Notifications dated 17-4-2009 and
9-4-2009 it has granted Group A status to the Senior Audit and Accounts
Officers and has made it clear that the same will be implemented. This being
the case, it cannot now seek to agree with the stand of the Respondent No.1 for
non implementation of the Group A status.
The Respondent No.3 cannot be permitted to take a stand before this
Tribunal which is not in consonance with its own notifications.
10. It is submitted that in regard to the reasoning given in
the Office Memorandum of the Respondent No.1 dated 11-4-2011 sought to be
relied upon by the Respondents, for non grant of Group A status, the Original
Application deals with the Petitioners response to those reasons in detail and
the same are not being repeated herein in the interest of brevity. However, the Respondents have not dealt with
the contentions of the Petitioners stated in the Original Application to submit
that the reasons given in the said OM are
wholly fallacious, incorrect, unreasonable and arbitrary.
11. It is submitted that the Junior Time Scale Officers are not
supervising the Senior Audit and Accounts Officers. The Deputy Accountant
General/Dy.Director is the one who supervises the functioning of the Senior
AOs. The Junior Time Scale Officers are designated as Assistant Accountant
General or Assistant Director do not supervise the Senior Audit and Accounts
Officers as wrongly stated in the OM and
reiterated by the Respondents in the counter affidavit under reply. The
Performance Report for the year 2009-2010 of the CAG, clearly reflects this
position. Annexed hereto as Annexure C
is a copy of the relevant extract of the Performance Report. The Respondent No.2 is well aware of this
fact and despite this, has sought to merely repeat the Respondent No.1’s
reasoning instead of stating the true position, that in fact the Junior Time
Scale Officers are not supervising the Senior Audit and Accounts Officers. The
Senior Audit and Accounts Officers are being supervised by Deputy Accountant
General/Deputy Director who are Senior Time Scale Officers.
12. The Petitioners further submit that the judgments relied
upon by the Respondent No.2 have no relevance to the present case. This is for
the following reasons inter-alia:
a. firstly, it is not the case of the Petitioner that the
Respondents do not have discretion in the matter of classification of posts.
However this discretion is circumscribed by a duty to act in a reasonable and
fair manner and in consonance with Article 14 of the Constitution. The reasons
for the refusal to implement Group A status has been set out in the Respondent
No.1’s office Memoranda. It is open to this Hon’ble Tribunal to examine if the
said reasons form intelligible criteria for differential treatment. Also it is
submitted that the action of the Respondents 1 and 2 in not implementing
the Notification of the Respondent No.3
granting Group A status is wholly unreasonable and arbitrary and the
Respondents 1 and 2 are bound by the said Notifications;
b. The case of Steel Authority of India is wholly
inapplicable as that is a Public Sector Undertaking governed by its own rules
of recruitment and in that case, the rules provided for separate selection
under Central Cadre and unit cadre and therefore the Supreme Court held that
the posts cannot be treated as equal;
c. In regard to the second case of Indian Railways SAS Staff
Association, (1998) 2 SCC 651, the only point in issue was whether pay scale is
the sole criterion for classification.
It is submitted that the Indian Railways is a separate organization
which is regulated by its own Rules of Recruitment and it is not under the Central
Civil Service Rules which includes recruitment/promotion/classification rules
etc. In the case of the IA&AD, the Central Civil Service Rules notified by
the Respondent No.3, has been made applicable by the President of India in
consultation with the Comptroller and Auditor General of India
d. In the present case, the discretion vested in the
Respondent No.2 and 3 have been exercised in favour of the Petitioners,
inasmuch as the Respondent No.2 is in agreement that the Senior Audit and
Accounts Officers are entitled to Group A status and the Respondent No.3 has
issued notifications in this regard.
This being the case, there is no question of not implementing the
Notifications of April 2009 granting Group A status.
13. It is submitted that the Respondent No.1 and 2 are bound by
the Notifications of the Respondent No.3 of 9-4-2009 and 17-4-2009 and cannot
refuse to implement the same. Secondly the Respondent No.1 in its Office
Memorandum setting out reasons for non grant of Group A status, has totally
failed to refer to and deal with the Respondent No.3’s Notification granting
Group A status. It is submitted that
the Office Memoranda dated 11-4-2011, 17-6-2011, 7-7-2011 of the Respondent
No.1 are liable to be quashed as they are contrary to the Respondent No.3’s
notifications and even otherwise contrary to Article 14 of the Constitution of
India. It is further submitted that in any event, none of the reasons stated
therein are correct or fair and cannot be a ground for differential treatment.
14. In light of the above facts and circumstances, it is most
humbly prayed that the Original Application be allowed.
Haripriya Padmanabhan
Adocate for the Petitioners
B-1/1148, Vasant Kunj, New Delhi 110048
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