Central Administrative Tribunal - Ernakulam
Biju Prabhakar vs Union Of India on 29 August, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A.No.114/2008 Friday, this the 29th day of August,, 2008. CORAM: HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER HON'BLE Dr.K.S.SUGATHAN, ADMINISTRATIVE MEMBER Biju Prabhakar, Assistant Secretary ( on probation), Directorate of Survey & Land Records, Vazhuthakkad, Trivandrum. ...Applicant (By Advocate Shri S.Radhakrishnan) Vs. 1. Union of India, represented by the Secretary to Government of India, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pension, New Delhi. 2. Union Public Service Commission, represented by the Secretary, UPSC., Shajahan Road, New Delhi. 3. The State of Kerala represented by the Chief Secretary to the Government, Government of Kerala, Trivandrum. 4. The Principal Secretary, General Administration (Special A) Department, Trivandrum. 5. The Principal Secretary (Revenue), Department of Revenue, Govt.Secretariat, T rivandrum. ... Respondents (By Advocate Shri TPM Ibrahim Khan, SCGSC (R1) (By Advocate Shri Thomas Mathew Nellimoottil(R-2) (By Advocate Shri R.Prem Sanker, G.P.(R.3-5). The application having been heard on 18.8.2008, the Tribunal on 29-08-2008 delivered the following: O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER This case poses certain important and interesting questions of law. These are as under:
a) When Section 4(iii) of the I.A.S. (Appointment by selection) Regulations 1997 provides that for appointment to IAS by selection from Non State Civil Service, the State Government shall consider the case of a person not belonging to the State Civil service but serving in connection with the affairs of the State, who has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service and propose the person for consideration of the Committee, whether term continuous service appearing in the above provision would mean continuous regular service.
b) Whether the applicant who was initially borne on the strength of a Government of India Undertaking (Hindustan Latex Limited) was taken on deputation in State Government Department (Factories and Boilers Department) and after sometime, his services were regularized in the same department, whether services from the date of deputation could be counted to work out the period of 8 years service specified in the above Regulation. (Admittedly, the post the applicant held is declared equivalent to the post of Deputy Collector).
c) When the applicant has now been working as a Deputy Collector (under probation), whether his case for appointment to IAS by selection should be only when he fulfils the conditions fastened with for such appointment in respect of Deputy Collector? In other words, by virtue of his having joined State Civil Service as Deputy Collector, whether the applicant loses his right for being considered for appointment in IAS from Non State Civil Service (if he fulfils conditions attached thereto for such appointment)
2. Brief Facts of the case with terse sufficiency are as under:
a) The applicant was initially functioning in Hindustan Latex Limited and by Annexure A-5 order dated 06-05-1996, he was appointed as Technical Officer (Chemical) in the Department of Factories and Boilers on deputation.
Later on, when the respondents considered filling up of the post of Technical Officer (Chemical) on regular basis, they having failed to secure any candidate through various methods of recruitment as per the Recruitment Rules, had proposed absorption of the applicant on the basis of his performance and accordingly approached the Kerala Public Services Commission, which did not give its concurrence for the same and advised the respondents to correct the error in the special rules and thereafter resort to recruitment as per the Recruitment Rules. However, as the same was thought to be time consuming, overruling the advice of the KPSC, the respondents had issued Annexure A-6 order dated 27-11-2000, which states, "In view of the exceptionally efficient services rendered by Shri Biju Prabhakar Government hereby order to regularize permanently Shri Biju Prabhakar, Senior Assistant Plant Manager, Hindustan Latex Limited (a Central Public Sector Undertaking) who is now working on deputation in the Factories and Boilers Department as Technical Officer (Chemical) in the scale of pay of Rs 8250 13650.".
b) The General Education Department, vide Annexure A-7 order dated 22-03-2004, recording that the applicant has 5 years of experience in Central Government and 8 years service in State Government, appointed the applicant as Execution Director in the grade of Deputy Director of Education under Director of Public Instruction in the scale of Rs. 8250 13650, a newly created post, on deputation.
c) Vide Revenue (C ) department order dated 31-07-2006 at Annexure A9, the applicant was, on the recommendations of the Kerala Public Service Commission, appointed as Deputy Collector in the Land Revenue Department as envisaged in Rule 2 of the Special Rules for Kerala Civil Service (Executive) issued in GO (MS) No. 377/63/PD dated 21-08-1963. By this order, they were also to undergo training during which period they would be paid monthly a sum of Rs 7,800 (pre-revised) the minimum in the pay scale of pay of Deputy Collector plus usual allowance. Regular scale of pay of Deputy Collector will be admissible to them only on successful completion of the prescribed period of training.
d) The applicant was relieved of his duties by the Education Department, vide Annexure A-10 order dated 21-08-2006.
e) On completion of training period of 14 months, the applicant was posted as Assistant Secretary, Survey and Land Records, Thiruvananthapuram vide order dated 22-10-2007 at Annexure A-11.
f) The applicant was nominated by the Principal Secretary for appointment to IAS from non State Services and the matter was pending consideration before the Chief Secretary and the applicant had also submitted a representation to the Chief Secretary requesting that expeditious action be taken to consider the nomination of the applicant. As there was no further progress, the applicant moved the Honble High Court in CWP35127 of 2007 and the High Court by judgment dated 28th November, 2007 disposed of the same directing the Chief Secretary to consider and take a decision as regards the request of the applicant for inclusion in the zone of consideration for selection to IAS from among the nominations received from the Secretaries/Principal Secretaries, stipulating a time schedule. Annexure A 13 refers. It was in obedience to the abovementioned judgment of the Honble High Court that the respondents have issued the impugned Annexure A-1 order dated 12th December, 2007 stating as under:
"Government have examined the matter in detail.
You, Sri. Biju Prabhakar, formerly Senior Assistant, Plant Manager, Hindustan Latex Limited (A Government of India undertaking) worked in Factories and Boilers Department as Technical Officer (Chemical) on deputation basis from 6.5.1996 to 26.11.2000. On 27.11.2000 you were regularised permanently in the post of Technical Officer (Chemical) by over ruling the advice of Kerala Public Service Commission.
Your appointment prior to 27.11.2000 was on deputation and you could be treated as appointed on regular basis to the post of Technical Officer (Chemical) in Factories and Boilers Department with effect from 27.11.2000 only.
As per rule 4 of t the IAS (Appointment by Selection) regulations 1997, a person not belonging to the State Civil Service but serving in connection with the affairs of the State who has completed not less than 8 years of service, on the first day of January, the year in which the case is being considered, in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service for nomination.
You have not completed 8 years of continuous regular service in the Factories and Boilers Department since your service prior to 27.11.2000 was on deputation.
Hence, Government have decided not to consider your nomination for inclusion in the zone of consideration for selection to IAS.
In the above circumstances, Government reject your request to call for the ACR in connection with the nomination of non State Civil Service officers for selection to IAS and the Ext. P9 petition in WP(C ) No.35127 of 2007 (F) is rejected accordingly."
3. It is against the abovementioned Annexure A-1 order that the applicant has moved this O.A and prayed for the following relief(s):
"b) declare that Annexure A1 order passed by the 3rd respondent is patently illegal.
c) quash Annexure A1 order passed by the 3rd respondent.
d) declare that the applicant will not be holding a substantive post in the State Civil Service till he is appointed substantively to the post of Deputy Collector after the declaration of probation.
e) Declare that the applicant is serving in connection with the affairs of the State under the State Govt. in a gazetted post in a substantive capacity involving duties comparable in importance and responsibilities to that of the Stat Civil Service in a non civil service department, till he is substantively appointed in the State Civil service.;
f) declare that the applicant is eligible to be included in the zone of consideration for appointment by selection the the Kerala of IAS in the light of the nomination by the Principal Secretary -Revenue under whom he is working at that time.
g) Direct the respondents to include the applicant in the zone of consideration for selection and appointment to the Kerala Cadre of IAS under the IAS (Appointment by Selection) Regulation 1997;"
4. Respondents have contested the O.A. According to them the applicant did not fulfill the requisite condition of eight years of regular service in the Factories and Boilers Department since his service prior to 27-11-2000 was under a Government of India undertaking Company, though he worked in State Government Service on deputation. It has also been contended that inclusion in the zone of consideration and selection to IAS cannot be said to be a right of an officer. It was further stated that Selection Committee Meeting for selection to IAS from the Non-State Civil Service Officers of the State for the year 2007 was held on 31st December, 2007 and in view of Annexure A1 issued by the 3rd respondent, the name of the applicant was not included in the zone of consideration. UPSC, the second respondent has only stated that the subject matter falls exclusively under the purview of the State Government and that it was not a party before the Honble High Court in the CWP No. 35127/07. As such, it has no comments to offer regarding the contention of the applicant in respect of his eligibility to be considered for appointment to IAS cadre from the non-SCS. Ministry of Personnel in their reply stated that its functions are only to ascertain the vacancies and participation in the selection and in respect of ascertaining the eligibility of officers for consideration for appointment to IAS under the non-State Civil Services, the same comes under the purview of the State Government and conducting of interview under the UPSC. As such, according to the DOPT, it has been unnecessarily impleaded as a party.
5. Counsel for the applicant submitted that the applicant had served as a non- State Service Officer in a grade equivalent to Deputy Collector at least for eight years till he was selected for appointment as Deputy Collector. This is the admitted fact as could be evidenced from Annexure A-7 order passed by not less than Secretary to the Government. And, the requirement as per clause No. 4(iii) of the IAS (Appointment by Selection) Regulations, 1997 all that is required is 8 years continuous service under the State Government in any post which has been declared equivalent to the post of Deputy Collector on the first day of January of the year in which the case is being considered. This is thoroughly fulfilled. Respondents have rejected the claim of the applicant on the ground that the applicant does not possess eight years continuous regular service. In other words, a new condition not prescribed in the regulations has been added by the respondents, and the same is not permissible. Again, the respondents have assumed that the period of continuous service is reckoned only from the date of absorption without considering the period of deputation in the very same post in which the applicant has been absorbed. For, according to the respondent, during the period of deputation the grass root of the applicants lien was in a Government of India Undertaking and not with the State Government. This takes one to the question as to whether the period of deputation shall be considered as service under State Government so as to qualify for inclusion with the subsequent period after absorption. Counsel for the applicant relied upon the decision in the case of K. Madhavan vs Union of India (1987) 4 SCC 566, at page 575 :
10. The 1975 Rules which are relevant for the purpose do notexplain what is meant by the expression "on a regular basis". The expression has created some ambiguity in the eligibility clause giving rise to this controversy.
There can be no doubt that when aperson is appointed to a post against a permanent vacancy onprobation, his appointment is on a regular basis, but when a personis appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not on a regular basis. The expression "on a regular basis in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to thecontrary, the length of service from the date of appointment to apost should be taken into consideration for the purpose of eitherseniority in that post or eligibility for the higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the purpose of seniority or eligibility for the higher post from the dateof appointment. In our view, therefore, the expression on a regularbasis would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis. Respondent 5, in our opinion, satisfied the eligibility test of the 1975 Rules for consideration for the post ofDIG. But, it is not disputed the parties that the petitioners andRespondent 5 have, by the lapse of time during the pendency of this litigation, become eligible for appointment to the posts of DIG. Indeed, they are holding the posts of DIG, may be on ad hoc basis, under the interim orders of this Court and there is no chance of their being reverted to the next lower post of SP. The question, therefore, boils down to the seniority of the petitioners, vis-`-vis Respondent 5 in the post of DIG. That again will depend upon the decision on the question as to the seniority of the petitioners and Respondent 5 in the post of SP.
6. Counsel for the applicant also relied upon a decision, based on the above, in the case of S.R. Gautam, in OA No. 2516/2000 of the Principal Bench, decided on 19th April, 2001, wherein the earlier decision of the Principal Bench in the case of Shridar Prakash (OA 871/95) was also referred to and relevant portion extracted. Yet another case relied upon by the applicant is the case of Somesubhra Guptha vs Union of India OA No. 867/2003 of the Kolkata Bench wherein it was held that period of deputation followed by absorption would count for the purpose of eligibility for promotion to the next grade. Certain other cases have also been cited by the applicants counsel to substantiate his contention that period of deputation shall count for working out the extent of continuous service for the purpose of appointment to IAS from non-State Service cadre. To a pointed question as to whether the present status of the applicant as Deputy Collector, would wipe out the right of the applicant for consideration for appointment to IAS under the Non State Service, as Deputy Collectors are also, subject to fulfillment of certain conditions entitled to be considered for appointment to IAS cadre, the counsel answered that the applicant is still under probation and rules provide for his reversion to his parent cadre in case he was not confirmed in the grade of Dy. Collector and as such, till such time he has a lien in the post of Dy. Collector, his lien in the Non-State Service cannot be obliterated. In that event, the applicant is certainly entitled to be considered for appointment to IAS from the Non-State Service.
7. Counsel for the respondents argued that the applicant was on deputation and from the date of his absorption alone, his regular service in the Non State Service could be counted in which event, he has not put in 8 years of service and hence he has been rightly omitted to be considered for appointment to IAS in 2007.
8. Arguments were heard and documents perused. First, the aspect of continuous regular service which was insisted by the respondents. Rules do not stipulate regular service, though it emphasizes continuous service. The question that arises for consideration is whether the authorities have any power to add the word, regular in between the words, continuous service. And, even if such an interpolation is permissible, whether the services of the applicant fulfill the term 8 years continuous regular service.
9. The apex Court in the case of Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600, has held as under:
324. At page 92 of the Cross Statutory Interpretation, the authorhas stated that: "The power to add to, alter or ignore statutorywords is an extremely limited one. Generally speaking it can onlybe exercised where there has been a demonstrable mistake on the part of the draftsman or where the consequence of applying thewords in their ordinary, or discernible secondary, meaning wouldbe utterly unreasonable. Even then the mistake may be thought tobe beyond correction by the court, or the tenor of the statute may besuch as to preclude the addition of words to avoid an unreasonableresult. Therefore, the Doctrine of Reading Down is an internal aid to construe the words or phrase in statute to give reasonable meaning, but not to detract, distort or emasculate the language soas to give the supposed purpose to avoid unconstitutionality
10. Again, in the case of Polestar Electronic (P) Ltd. v. Addl. CST, (1978) 1 SCC 636, the Apex Court has held as under:
7. Now, if there is one principle of interpretation more well-settledthan any other, it is that a statutory enactment must ordinarily beconstrued according to the plain natural meaning of its languageand that no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision frombeing unintelligible, absurd, unreasonable, unworkable or totallyirreconcilable with the rest of the statute. This rule of literal construction is firmly established and it has received judicial recognition in numerous cases. Crawford in his book on "Construction of Statutes" (1940 Edn.) at p. 269 explains the rulein the following terms:
"Where the statutes meaning is clear and explicit, words cannot be interpolated.
In the first place, in such acase they are not needed. If they should be interpolated, thestatute would more than likely fail to express the legislativeintent, as the thought intended to be conveyed might bealtered by the addition of new words. They should not beinterpolated even though the remedy of the statute would thereby be advanced, or a more desirable or just result wouldoccur. Even where the meaning of the statute is clear andsensible, either with or without the omitted word, interpolation is improper, since the primary source of thelegislative intent is in the language of the statute."
11. Even if it is assumed that the term regular could be included, then again, the said term would mean only that the services should not be ad hoc or a stop gap arrangement. In other words, if the services are ad hoc the same cannot be taken into account while counting the period of 8 years regular service. The Apex Court in the case of State of Haryana v. Haryana Veterinary & Ahts Assn., (2000) 8 SCC 4, has held that the services rendered either on an ad hoc basis or as a stopgap arrangement, cannot be held to be regular service. Deputation can under no circumstances be held to be ad hoc. Hence, period of deputation has to be treated as regular as well.
12. In Arun Kumar v. Union of India,(2007) 5 SCC 580 one Ms Amrit Brar, Respondent 4, stood appointed on 9-6-1989 as Assistant Commandant in CRPF on probation for two years. Her appointment was to be governed by CRPF Rules. She completed her probation on completion of two years. On 16-8-1993/ 17-8-1993, Ms Amrit Brar was appointed on deputation to the post of Superintendent of Police (SP) in Punjab Police. She retained her lien as Assistant Commandant in CRPF till 11-9-1998 when she was absorbed as DSP in Punjab Police. She was allowed all benefits including pay and seniority from 9-6-1989. In between, Ms Amrit Brar was promoted to the post of Deputy Commandant in CRPF in March 1995. Arun Kumar the appellant and others were officers of Punjab Police Service. They challenged the orders of the State Government in the Punjab and Haryana High Court granting absorption to Ms Amrit Brar, from 1989, as the same would unduly affect their seniority and consequently their promotion prospects. The Apex Court has, after considering the entire case held that the said Ms. Amrit Brar, who has put in 5 years of service as a deputationist in Punjab Police Service between 16-08-1993/17-08-1993 to 11-09-1998 and she is certainly entitled to the weightage for the services rendered by her during these five years. However, she is not entitled to weightage of service between 1989 to 16/17-08-1993.
13. The case of the applicant herein is to some extent similar. The applicant had come on deputation, as Ms. Amrit Brar and he was absorbed after a few years of deputation, again, as in the case of Ms. Amrit Brar. As the period of deputation in the case of Ms. Amrit Brar was counted as services rendered in the organization where she was absorbed, likewise, the applicant should be held to be entitled to count his period of deputation as a part of his service in the State Government.
14. In view of the above decisions of the Apex Court, even if the requirement is eight years continuous regular service, the applicant fulfills the requisite condition. Thus, answers to question 1(a) and 1(b) above are in affirmative..
15. Coming to the next question, the applicant fulfills the condition to be considered for appointment to IAS from Non-State-Service cadre. But as on date he has been holding the post of Dy. Collector, which is also a feeder grade for appointment to IAS. The question is whether by virtue of his holding the post of Dy. Collector, whether he stands to lose his eligibility to be considered under the Non-State Service cadre. In fact, clause 4 of the Regulation mandates that apart from eight years of continuous service under the State Government in a grade equivalent to the post of Dy. Collector, the person should be holding a Gazetted post. This part is fulfilled by the applicants holding the post of Dy. Collector. For, the applicant has his lien as a Non-State Service Officer since he has not completed his probation as Dy. Collector. The Apex Court has held in the case of Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, with reference to F.R. 14 A
(d) as under:
"a government servants lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne. A conjoint reading, thus, would establish that a government servant shall always have a lien on the post and, simultaneously, he shall not have right to hold any lien on more than one post. In other words, the articulated major premise is that an employee cannot simultaneously be a member of two posts/service/grade/cadre nor is he eligible to hold lien on two posts.
16. Thus, as long as the applicant has not been confirmed in the post of Dy. Collector, his lien being in the non -State Service, he is entitled to be considered for appointment to the post of IAS from that source.
17. In view of the above, the OA is allowed. Annexure A-1 order is quashed. It is declared that the applicant is entitled to be considered for appointment to the IAS cadre under the Non-State Civil Service source, he having fulfilled the requisite conditions as contained in clause 4 of the Indian Administrative Service (Appointment by Selection) Regulation 1997. The applicant shall be included in the zone of consideration for selection and appointment to the Kerala Cadre of IAS under the IAS (Appointment by Selection) Regulation 1997, if he is otherwise eligible. Under the circumstances there shall be no orders as to costs.
Dated the 29th August, 2008.
Dr.K.S.SUGATHAN Dr.K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER