Central Administrative Tribunal - Delhi
Pankaj Kr. Mishra vs Union Of India & Ors. Through on 27 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA No.248/2012 Order reserved on 27.03. 2012 Order pronounced on 27.09.2012 HONBLE MR. G.GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) 1. Pankaj Kr. Mishra, S/o Sh. Surendra Mishra, R/o Qtr. No.1575, Sector-VII, MB Road, Pushp Vihar, New Delhi-110017. 2. Hasibur Rahman S/o Sh. Sagir Ahmed R/o NR-808, Sector III, Pushp Vihar, New Delhi-110017. 3. Amitabh Prasad S/o Sh. Matab D. Yadav, R/o 420/6, Laxmi Vihar, Burari, Delhi-110084. 4. Harendra Kumar, S/o Late Sh. Ram Jatan Rai R/o Qtr. No.359, Sector-VII, Pushp Vihar, New Delhi-110017. 5. Nilesh Kumar, S/o Sh. M.N. Kumar R/o 86-M, Sector-4, Pushp Vihar, New Delhi-110017. 6. Sanjeev Kumar S/o Sh. R.N. Choudhary R/o 4/138, Vaishali, Ghaziabad. 7. Kaveri Sivarama Krishnan S/o Sh. N. Mahalingam R/o 304, H.M.M., C.G.H.S., Plot No.6, Sector-10, Dwarka New Delhi-110075. 8. Kaushal Kishor Thakur S/o Sh. Ramesh Thakur R/o Qtr. No.903/II, NH-4, Faridabad. 9. Rajeev Kumar Jha S/o Sh. Birendra Kumar Jha R/o G-34, Mirdard Road, Delhi-110002. 10. Arvind Kumar Singh S/o Late Sh. B.P. Singh R/o 416/21, Laxmi Vihar Burari, Delhi-110084. 11. C.K. Naithani S/o Sh. C.M. Naithani R/o H.No.79-N, Sector-4, Pushp Vihar, New Delhi-17. 12. Navin Kumar Sinha S/o Sh. Rajender Singh R/o 12-G, Sector-4, Pushp Vihar, New Delhi-110017. 13. Dinesh Kumar S/o Sh. Ram Bahadur R/o D-723-C, Ganesh Nagar-II, Shakarpur, Delhi-110092. 14. Prabhat Kumar S/o Sh. Devendra Choubey R/o 40L, DIZ Area, Sector-4, New Delhi. 15. Abhishek Kumar S/o Sh. S.K. Singh O/o Room No.623-A Wing, Ministry of Social Justice & Empowerment, Shastri Bhavan, New Delhi. 16. Anil Kumar S/o Sh. Jagdish Prasad R/o 915, Sector-3, R.K. Puram, New Delhi-110022. 17. Prabhaker Mishra S/o Late Hare Krishna Mishra R/o 95-H, Sector-IV, B.K.S. Marg, New Delhi. 18. Anil Kumar Prasad S/o Late Sh. Saty Narayan Prasad R/o Q.NO.45, Kamla Nehru Nagar, Ghaziabad, UP. 19. Sujan Kumar Mondal S/o Late Sh. Bimal Kumar Mondal, R/o Block-B1/G3, Dilshad Colony, Shahdara, Delhi-110095. 20. Kundan Kumar S/o Sh. Bindeshwar Prasad O/o Room No.38, M/o Agriculture, Krishi Bhavan, New Delhi. 21. Narender Singh Kaintura S/o Sh. Man Singh Kaintura R/o 231-B, Pocket-I Mayur Vihar, Phase-I, Delhi-110091. 22. Bambam Jha S/o Sh. Baikunth Jha R/o H.No.66G, Sector-4 DIZ Area, Gole Market, New Delhi-110001. 23. Sushil Kumar S/o Sh. Sahab Ram R/o H.No.504, Pocket-6II, Sector-2, Rohini, Delhi-110085. 24. Nitesh Kumar Sinha S/o Sh. D.P. Karan R/o 416/6, Laxmi Vihar, Delhi-110084. 25. Ajay Kumar S/o Shri Ramdhan R/o 62, Tagore Gali, Babarpur, Shahdara, Delhi-110032. 26. Radha Raman S/o Sh. Dhirendra Narayan Das R/o 6-D, Sector-4, Pushp Vihar, New Delhi-110017. 27. Sunil Kumar Verma S/o Sh. Hari Vallabh Lal Das O/o Room No.38, M/o Agriculture, Krishi Bhavan, New Delhi. 28. Manoj Kumar Tiwari S/o Sh. Dinesh Kumar Tiwari R/o 119-C, Jasola Pocket-II, DDA Flats, New Delhi. 29. Sanjay Kumar S/o Sh. Kauleshwar Yadav R/o SF-3, 4/138, Vaishali, Ghazibad, U.P. 30. Sunil Dutta Thakur S/o Sh. P.D. Thakur R/o I-Block, West Sagarpur, New Delhi-110046. 31. Ravindra Kumar S/o Sh. Jaipal Singh R/o Vill. Fakharpur, Distt. Baghpat, U.P. 32. Mukesh Kumar S/o Sh. Satyapal Singh R/o RZT-58, South Extn. Part-3, Uttam Nagar, New Delhi-110059. 33. Sanjay Kumar Tiwari S/o Late Sh. Madhusudan Tiwari R/o H.No.399, Pkt-1, Sector-14, Dwarka, Delhi. 34. Mukesh Kumar Tinna S/o Late Sh. Amar Chand Tinna R/o A-13/203, Air India Colony, Vasant Vihar, New Delhi-110057. 35. Prakash Mishra S/o Sh. Parasmani Nath Mishra R/o Q.No.871, Type 2, NH-IV Faridabad, Haryana. Applicants (By Advocate: Shri M.K. Bhardwaj) VERSUS Union of India & Ors. Through 1. The Secretary Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Govt. of India, North Block, New Delhi. 2. The Joint Secretary (AT&T), Ministry of Personnel & Public Grievances, Department of Personnel & Training, Govt. of India, North Block, New Delhi. Respondents 3. Shri Ravindra Kumar Jha R/o Flat No. 194 C&D Block, Pocket-II, Shalimar Bagh, Delhi. 4. Shri Anil Kumar Sharma, R/o 519/11, NH-IV, NIT, Faridabad-121 001. 5. Shri Anand Bihari, R/o Qr. No.893, Kamla Nagar, Ghaziabad, UP 6. Shri Suresh Kumar, R/o C-3/214, Lodhi Colony, New Delhi 7. Shri Anil Kumar Singh R/o C-3/76, Lodhi Colony, New Delhi. 8. Shri Prabhat Mohan Thakur, R/o 411/2/2, Laxmi Vihar, Burari, Delhi-110 084. 9. Shri Lalan Kumar R/o 28A, Shyam Enclave, Gopal Nagar, Nazafgarh, New Delhi. 10. Shri Shailendra Kumar R/o 416/19, Laxmi Vihar, Burari Delhi. 11. Shri Mohit Kumar Jha, R/o 40/2017, Vasundhra, Ghaziabad, UP 12. Md. Sarwar Alam, R/o 14/136, Pushp Vihar, New Delhi. 13. Md. Aftab Alam R/o 314, Sector-VII, Pushp Vihar, New Delhi. 14. Shri Saket Roshan R/o 982/G-2, Shalimar Garden, Extn.-1, Sahibabad, Ghaziabad. 15. Shri Damodar Prasad Mahto R/o 511, Kamala Nehru Nagar, Ghaziabad, UP. 16. Shri Madan Mohan Negi R/o E-1559, Netaji Nagar, New Delhi-110 023. 17. Shri Sanjay Malhotra, R/o WP-140C, Pitampura, Delhi-110 034. 18. Shri Suman Kumar R/o 142-A, Vipin Gaden Ext. Gali No. 25, Uttam Nagar, New Delhi. 19. Shri Bibhuti Nath Jha R/o 385, Kamla Nehru Nagar, Ghaziabad, UP. 20. Shri Perdeep Kumar R/o RZ-98, Nanda Enclave, Nazafgarh, New Delhi. -Applicants in MA/ Intervenor in O.A. (By Advocate: Shri Rajesh Katyal,for official respondents with Shri Kameshwar Mishra, Under Secretary on behalf of DoP&T, and Shri R.N. Singh, for Intervenor Private Respondents) O R D E R Mr. Sudhir Kumar, Member (A):
This OA was filed on 23.01.2012 by 35 applicants, with a prayer for joining together. That prayer was allowed. Initially, they named only the official respondents as opposite parties. The applicants had stated that they are aggrieved by the arbitrary decision of the respondents in excluding the already finalized seniority list in the grade of Upper Divisional Clerks (UDCs, in short) of the Central Secretariat Clerical Services (CSCS, in short) up to the select list year 2005 from the Common Seniority List (CSL, in short) that was circulated vide OM dated 16.12.2011 impugned as Annexure A-1. The Bench which admitted the case for listing and issued notice to the respondents on 24.01.2012, also granted interim relief, and directed that the respondents will not give retrospective promotion against the so-called available vacancies arising out of Select List Year 2003 till the outcome of the present OA. The prayers made in the OA are as follows :-
(i) To declare the action of respondents in altering the select list of UDCs 2003 by giving retrospective promotion and seniority to juniors of applicants as illegal and arbitrary.
To quash and set aside the impugned order/OM dated 16.12.2011 vide which the seniority list in the Grade of UDCs of CSCS upto 2004-2005 has been made provisional.
To declare the action of respondents in giving retrospective promotion and seniority w.e.f. 2003 onwards to juniors of applicants by holding DPC and examination in 2011 as illegal and arbitrary.
To allow the OA with exemplary costs.
To pass any such other order as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Thereafter, MA No.349/2012 was filed by another set of 18 applicants on 17.02.2012, praying for their impleadment as private party respondents in the OA. On 12.03.2012, the applicants of the OA questioned the MA, and also filed a detailed reply to the same, but the official respondents did not file any reply to that MA, though they had in the meantime already filed their reply to the main OA. Therefore, on 12.03.2012, the applicants of the O.A. were permitted to file a rejoinder to the reply filed by the official respondents, and the applicants in the impleadment Application were permitted to file a rejoinder to the reply filed by the applicants of the OA to their Miscellaneous Application. Thereafter, another MA No.746/2012 was filed by the applicants of the O.A. also on 15.03.2012, praying for modification of the preliminary order dated 12.03.2012 issuing directions to the respondents not to create third party interests by giving seniority with retrospective effect.
3. However, on 16.03.2012, the impleadment application MA No.349/2012 was allowed with the consent of all the parties, and the applicants of the O.A. were directed to file the revised Memo of Parties in the Registry, as well as furnish a copy of the OA to the learned counsel for the newly impleaded private respondents R-3 to R-20. Finally, the OA itself came to be heard in great detail on 23.03.2012 and on 27.03.2012, allowing the parties concerned to file their written submissions also thereafter. The written submissions had, however, in the meanwhile, been filed on behalf of the private respondents on 24.03.2012, along with a copy of the orders of the Honble Apex Court in Union of India & Ors. vs. N.R. Banerjee & Ors : (1997) 9 SCC 287, and of the Delhi High Court dated 03.07.2009 in Civil Writ Petition No.3269/2003 in R.K. Ojha and others vs. Union of India and others, and the written submissions were also filed by the learned counsel for the applicants of the O.A. on 27.03.2012, along with copies of the cited case law, and also copies of certain note-sheets and other documents from the concerned file of the Department of Personnel & Training (DOP&T, in short). A copy of the Report of the Committee on Cadre Restructuring of the Central Secretariat Service (CSS, in short) which had been constituted by the DOP&T submitted in February 2002, was also filed as Annexure A-18.
4. The applicants belong to CSCS, and are governed by the CSCS Rules, 1962. This service consists of two grades that of Lower Division Clerks (LDCs), and UDCs, and a separate cadre Unit in respect of the aforesaid two grades of the CSCS has been constituted for each Ministry of the Union of India. The Select List for the UDCs in each such cadre unit is determined by the DoP&T, and all the LDCs, who have completed 8 years of approved service and have the Benchmark Annual Confidential Reports/Annual Performance Appraisal Reports (ACRs/APARs, in short) as Good, are considered to be eligible for promotion as UDCs on seniority-cum-Merit basis (Annexure A-2). However, as per the CSCS Recruitment Rules (RRs, in short), there is a provision for accelerated promotion also for the UDCs level, and only 75% vacancies of UDCs are filled up by way of Seniority-cum-Merit (SQ, in short) based promotions, and 25% UDC vacancies are filled up by way of a Limited Departmental Competitive Examination (LDCE, in short), the eligibility criteria for which is five years of qualifying service, with no Merit Benchmark having been prescribed, the conduct of which examination is governed by the CSCS (Upper Division Grade LDCE) Regulations, 1966 (Annexure A-3). As a result, those promoted to the posts of UDCs, through the LDCE route under the relevant CSCS (UDG LDCE) Regulations, in 1966 (Annexure A-3), do not have to wait for three more years for their turn for promotion by virtue of seniority-cum-merit quota (SQ), and jump the queue, and occupy 25% of the vacant posts of UDCs. Those, who do not appear at such a LDCE, or, after appearing, do not qualify at the LDCE, have to either wait out their turn to become UDCs by virtue of seniority against the 75% seniority-cum-merit (SQ) quota for the recruitment to the UDCs grade of CSCS, or take the next two LDCE examinations conducted in between, after completion of their sixth and seventh years of service. Therefore, Rule 11 of the CSCS Rules 1962, states as follows:
11. Recruitment to the Upper Division Grade of the Service-
(1) Vacancies in Upper Division Grade of the service in any cadre shall be filled by regular appointment of persons included in the Select List for the grade in that cadre, such appointment being made in the order of seniority in the Select List except when for reasons to be recorded in writing, a person is not considered fit for such appointment in his turn;
Provided that any persons appointed to the Lower Division Grade shall be eligible for recruitment to Upper Division Grade only if he has successfully completed the probation and has either passed the typing test, or has been exempted, in accordance with the prescribed procedure, from passing it;
Provided further that, if any person appointed to the Lower Division Grade is considered for promotion in the Upper Division Grade in any cadre in accordance with the provisions of this sub-rule, all persons senior to him in the Lower Division Grade in that cadre shall, if they have successfully completed the probation, also be so considered notwithstanding that they may not have rendered eight years approved service in that Grade;
Provided also that if officers within the range of seniority are not available in a cadre for promotion, the appointments shall be made from a panel, furnished by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions of officers serving in the other cadres;
Provided also that while considering the cases of officers belonging to the Scheduled Castes, Schedules Tribes, and other special categories of persons, reservations shall be made in accordance with such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions from time to time.
(2) Ad hoc appointments to the Upper Division Grade may be made from the persons included in the Lower Division Grade of a cadre in the order of seniority, if they have completed the length of approved service required for regular promotion to that Grade;
Provided that no such person appointed to the Lower Division Grade would be eligible for ad hoc appointment to Upper Division Grade unless he has successfully completed the probation and has either passed the typewriting test, or has been exempted, in accordance with the procedure prescribed by the Central Government, from passing it;
Provided further that such ad hoc appointments shall not be resorted to or will be terminated when persons included in the select List for Upper Division Grade are available or has become available to fill the vacancies;
Provided also that any adhoc appointments, notwithstanding anything contained in these rules, shall not be deemed to confer on the person so appointed, any right or claim to the Upper Division Grade of service, or to seniority in that Grade;
Provided also that all such ad hoc appointments shall be made and regulated in accordance with such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances from time to time.
(3) For the purpose of this rule, a Select List shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Third Schedule.
(4) Omitted vide Department of Personnel and Training Notification No.12/3/93-CS II dated the 22nd November, 1995.
5. For the purpose of regulation of seniority under Rule 11 (3), the Third Schedule of the said Rules (page 81 and 82 of the OA), a separate Regulation called CSCS (Preparation of Common Seniority Lists) Regulation, 1971, has also been notified on 14.4.1971 (page 84). The plea of the applicants of the OA before us is that it has been clearly provided in the said Third Schedule that those who are included in the Select List constituted for promotion to the UDCs grade shall be senior to those included therein after such constitution of the Select List, and an official, if included in the Select List, if he refuses to be appointed to the UDC grade, for any reasons acceptable to the Appointing Authority, shall lose his entitlement on the basis of that Select List, and shall, on his subsequent appointment to the same UDC grade, at any time thereafter, be placed immediately below/after the official who was last appointed to that UDC grade from the Select List just prior to his own appointment.
6. The case of the applicants of the OA is that the issue raised in their OA regarding the proposal of the official respondents for the grant of retrospective seniority from the year in which the vacancies accrued is no more res integra, in view of authoritative pronouncements of the Honble Supreme Court in the cases of State of Bihar vs. Akhouri Sachindra Nath : 1191 SCC (L&S) 1070, State of Bihar vs. Bateshwar Sharma: 1997 4 SCC 424 and State of Uttaranchal vs. Dinesh Kumar Sharma: 2007 1 SCC 683, in which judgments the Honble Apex Court has already held that seniority cannot be given with retrospective effect. Therefore, the contention of the applicants of the O.A. is that the date of occurrence of vacancies cannot at all be relevant for the purpose of determining the seniority.
7. The applicants further cited the case of Uttaranchal Forest Rangers Association (Direct Recruit) and Ors. vs. State of U.P. and Ors: (2006) 10 SCC 346 in which the Honble Apex Court has again reiterated that no retrospective promotion or seniority can be granted. The applicants are aggrieved that in spite of the settled law, the official respondents have, by a mis-application of their OMs dated 3.7.86, 4.11.92 and 3.3.2008, now taken a decision to try not only to give such ante-dated promotions and seniority to 2151 people with retrospective effect, i.e. from 2003, but that they have also decided to give such ante-dated promotions with retrospective effect to such juniors of the applicants, who had actually appeared at and failed in the LDCE examinations held from 2004 onwards. They have further assailed that the official respondents have also not respected the already finalized seniority of the applicants, which was finalized way back in 2005, and an order in respect of that was also issued in that regard in 2011, by now declaring that it was only a provisional seniority list, and not final, and that they have not considered the representations of the applicants in this regard.
8. The applicants have further assailed the action of the respondents in raising a presumption of ante-dated availability of vacancies in the year 2003, and failing to consider that when all the yearly identified vacancies in the UDCs grade of CSCS had been consumed every year, on a year to year basis, presumption of retrospective or ante-dated availability of vacancies for the year 2003 now cannot form the basis for giving retrospective promotion and seniority to certain persons, in a manner that is detrimental to the accrued rights of the applicants of the O.A., who are holding the posts of UDCs on substantive basis, on the basis of having qualified the LDCE held in various years since 2004 onwards, and are now likely to be promoted to the posts of Assistants (which is the entry grade in CSS).
9. The case of the applicants is that since they were fulfilling the eligibility conditions for appearing at the LDCE, they had appeared at the LDCE examinations held in the years 2004 to 2009, and the Staff Selection Commission (SSC, for short), which had conducted those examinations, had in the year-wise select lists from the years 2004 to 2009, recommended 678 candidates for appointment as UDCs against 25% LDCE quota, including the applicants. They have pointed out that these administrative instructions and regulations are so strictly adhered to that when nominations of qualified candidates for appointments to UDCs Grade in Select List for the Year 2004 were to be decided, and a request was sent by DOP&T to the SSC, as is apparent from Para-7 of their OM at Annexure A-4 dated 21.11.2005, requesting SSC to make available 16 more qualified candidates from LDCE held in 2004, the SSC did not recommend any more candidates from the said 2004 LDCE examination, as the UDC vacancies were reported very late by some of the Unit cadres. As a result, through para-8 of that OM dated 21.11.2005 (Annexure A-4), the Unit cadres were requested to carry forward the unfilled vacancies of the LDCE quota of the Select List Year 2004, to be added to the anticipated vacancies of the next Select List of 2005, for appointing the nominated LDCE quota candidates, in the prescribed ratio of 3:1, along with the reservation in accordance with relevant rules/instructions in favour of the Scheduled Castes/Scheduled Tribes/Physically Handicapped (SC/ST/PH, in short) categories.
10. The applicants have further pointed out the OM dated 14.11.2004 (Annexure A-6), through which the Departmental Unit cadres were issued guidelines (through para-3 of the said OM) about reporting of vacancies in various grades of CSS/CSSS (the Central Secretariat Statistical Service) and CSCS, as follows:-
3. The matter relating to reporting of vacancies in the various grades of CSS/CSSS/CSCS has been reviewed in this Department and the following guidelines are issued for strict observance and compliance by all the Ministries/Departments participating in the CSS/CSSS/CSCS:-
(i) The number of vacancies required to be filled up in a particular recruitment year through various modes of recruitment, as prescribed under the relevant Rules, should be assessed as accurately as possible with due regard to all relevant considerations. For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade due to retirement, resignation, death, long term promotion and creation of posts on long-term basis. Vacancies arising out of deputation for a period exceeding one year should also be taken into account, due note, however, being kept also of the number of candidates likely to revert from deputation to the cadre during the relevant recruitment year.
(ii) The number of vacancies so assessed to be filled up in a grade during the relevant recruitment (Select List) Year should be reported to the CS Division, first on tentative basis by 30th April and later on concrete basis, by 31st August of the particular recruitment year. For instance, the vacancies meant for the Select List Year 2007 should be furnished in the prescribed proforma to this Division on tentative basis by 30.4.2007 and on concrete basis by 31.8.2007. All the columns in the proforma may be filled up carefully without giving any scope for seeking further clarifications from the cadre concerned. The vacancies that are not furnished in the prescribed proforma or are received after the last date will not be taken into account and no candidate will be nominated to the cadre concerned even if a candidate of that cadre figures in the list of qualified candidates. This may please be noted.
(iii) Under no circumstances, the revision of vacancies either upward or downward initially notified to this Department by the cadres will be entertained after the declaration of result of the written part of the examination by the UPSC/SSC. If there are compelling circumstances to do so, then full justification for the same should be furnished with the approval of the Joint Secretary (Admn.) concerned.
11. The contention of the applicants, therefore, is that in the years 2005, 2006, 2007, 2008 and 2009, in which the relevant LDCE examinations were held, all the available UDCs vacancies in the quota of 25% for recruitment through LDCE were consumed on the basis of those examinations. The yearly 75% seniority-cum-merit (SQ) quota vacancies were also consumed simultaneously upto the year 2007, by holding year-wise DPCs. They have pointed out that a draft CSL in the grade of UDCs of CSCS upto 2005 was also issued by the official respondents, and, thereafter, the seniority in the grade of UDCs for the Select List Years 1995 to 2005 was made final, through the issuance of CSL at Annexure A-7, the OM dated 24.06.2011. However, the applicants have alleged that even after the common seniority of years 1995 to 2005 was made final through the finalized CSL, the official respondents are now trying to initiate the process for extension of Select List for the Year 2003, by including 2151 additional posts of UDCs with ante-dated/retrospective effect from 2003.
12. The applicants belonging to the Select List of 2004, who were likely to be the first set to be affected by such a decision of the official respondents, gave a representation dated 09.02.2011 against that decision (Annexure A-8). 25 of such representations against the extension of Select List 2003 in the UDC Grade, for 75% seniority-cum-merit list (SQ) quota only, were forwarded for consideration by the OM dated 21.02.2011 (page 135 of the OA). Thereafter, the applicant no.1 also gave a representation in this regard on 16.08.2011 (pages 136 and 137 of the OA), and applicant no.4 also gave a representation dated 02.08.2011 (pages 138-140 of the OA). The official respondents, however, went ahead with the issuance of seniority list of UDCs for the Select List Year 2006, through the OM dated 05.10.2011 (Annexure A-9), inviting objections to the draft CSL of UDCs for the Select List Year 2006 as published. The official respondents also invited objections to the Draft Final CSL of UDCs for the select list years 1993 to 2005 through OM dated 20.10.2011 (Annexure A-10), with the stipulation that the objections/representations, if any, should be submitted by 12.11.2011.
13. Thereafter, some of the CSCS cadre controlling units forwarded some representations relating to the corrections regarding dates of regular appointment, and corrections in the names, or in the dates of birth, which were carried out. However, some other officials had represented based upon their earlier positions held in LDC grade, that their juniors have become seniors in the draft CSL of UDCs, but it was decided by the official respondents that the erstwhile seniority in the grade of LDCs has no relevance whatsoever while preparing the CSL of UDCs, as seniority in the UDCs grade is fixed by the cadre units, in the ratio of 3:1, only on the basis of the date of joining in the grade of UDCs, and hence all the representations received in this regard were disposed of vide impugned Annexure A-1 dated 16.12.2011.
14. While this process was being undertaken by the official respondents, applicant no.23 had sought information under the Right to Information Act, 2005 (RTI Act, for short) from the respondents in regard to the vacancy positions, & the ongoing administrative process, reply to which was received by him through Annexure A-12 dated 04.03.2011, which document was heavily relied upon during the arguments by the learned counsel for the applicants. Certain other persons, not from among the applicants, had in the meanwhile sought further information under RTI Act from the relevant files of the DOP&T, which also the applicants have produced (pages 158-160 of the OA). In parallel, another person, also not from among the applicants of this OA, had sought information under the RTI Act regarding the unfilled vacancies of UDCs of Select List Year 2003 of UDCs, which had been carried forward to the select list 2004 in the grade of UDCs, and was issued a reply dated 13.12.2010 (page 162 of the O.A.), stating that 28 such unfilled vacancies had got carried forward.
15. The applicants are, therefore, aggrieved that by adding 2151 ante-dated vacancies, with retrospective effect from the year 2003, with 75% of them being sought to be categorized in the promotional seniority-cum-merit (SQ) quota, and 25% being selected for the LDCE Quota through a special examination to be held now, would permit the persons who get so promoted with ante-dated/retrospective promotions effective in the year 2003, with 8 years un-earned benefit of seniority, without their having rendered actual service in such higher cadre of UDCs. The applicants have therefore assailed the action of the official respondents inasmuch as the 2151 UDCs, who have since been appointed in 2009 to the Assistants grade (of CSS) against the Select List Year 2004, actually belonged to the Select List of LDCs of years 1987 to 1992, and most of these 2151 vacancies of UDCs have since been duly consumed on a yearly basis, by promoting the eligible candidates against the Select List Years 2004 to 2009, both through LDCE for 25% quota, as well as through seniority-cum-merit for 75% quota.
16. The applicants have also filed a copy of the DOP&T OM dated 03.03.2008, containing consolidated instructions regarding seniority, and clarifying the earlier DOP&T OM dated 03.07.1986 in this regard, through Annexure A-12. They have taken the ground that it has been clearly provided in this OM that when appointments against unfilled vacancies are made in subsequent year or years, either by direct recruitment or by promotion, the persons so appointed subsequently shall not get seniority of any earlier year, but should get seniority of the year in which they are so appointed on substantive basis.
17. The applicants have taken the further ground that since the CSL of UDCs for the Select List Year 2003 onward has already been finalized, the same cannot be altered now to the detriment of the applicants, who had got their promotions after qualifying in the LDCE examinations held in the years 2004 onwards. The applicants have further taken the ground that through their impugned action, the respondents have tried to put more than thousands of juniors of the applicants above them, by proposing to give them ante-dated/retrospective promotions, which is contrary to the law as laid down by the Apex Court in H.S.Vankani Vs. State of Gujrat : AIR 2010 SC 1714. It was submitted that in that case it has been held by the Apex Court that seniority is a civil right, which has an important and vital role to play in ones service career, and seniority once settled provides an upward march in ones chosen job or calling, and gives certainty and assurance, and boosts the morale to do quality work. If the settled seniority is unsettled at the instance of ones junior in service, it may generate bitterness, resentment, and hostility amongst the Govt. servants, and the enthusiasm to do quality work might be lost.
18. The applicants have further submitted that the respondents have also violated the law as laid down by the decision of the Honble Apex Court in the case of State of Bihar and Others vs. Mithilesh Kumar : JT 2010 (9) SC 11, in which it has been held that even when there is a change in the norms of recruitment, it can only be applied prospectively. The applicants have taken the further ground that even while the available vacancies of the UDCs were consumed year after year, by holding LDCE for 25% direct recruitment quota, and DPC for 75% seniority-cum-merit promotion quota, but even if some of the identified UDC vacancies had remained unfilled, and could become available only at a later point of time, they cannot now be filled up by giving the benefit of ante-dated/retrospective promotion and seniority effective from 2003, by holding the LDCE and DPC in the year 2012, to fill up the supposed vacancies against an extended Select List of 2003. It was submitted that in trying to do so, the official respondents are only rewarding the LDCE failed candidates, over and above the meritorious candidates, who had qualified in the LDCE examinations held in the meanwhile from 2004 onwards.
19. The applicants submitted that the Apex Court has held in Direct Recruit Class II Engineering Officers Association Vs. State of Maharastra : 1990 (2) SCC 715, that once an incumbent is appointed to a post, according to rule, his seniority has to be counted from the date of his appointment. Since the candidates who are now being proposed to be allowed to appear in the LDCE proposed to be conducted now, and for being considered by the DPC to be held now, and they would join their posts as UDCs only in 2012, they cannot be given seniority retrospectively from the year 2003 onwards.
20. The applicants further cited the cases of State of Bihar Vs. Akhouri Sachindra Nath (supra) and State of Bihar Vs. Bateshwar Sharma (supra) to submit that the occurrence of vacancy cannot be relevant for the purpose of determining the seniority, and seniority cannot be given with retrospective effect, which aspect has been reiterated by the Apex Court in the case of Uttaranchal Forest Rangers Association (supra). In the result, the applicants had sought the reliefs as already enumerated in para 1/above.
21. Though the Intervenor Private Respondents had filed their MA No. 349/2012 for their impleadment as parties, which came to be allowed by mutual consent, as mentioned earlier also, however, the contentions of the private respondents raised in that MA need a mention at this stage, for a better appreciation of the issues raised by both the sides. They have pointed out that they had entered CSCS through 85% quota of direct recruit LDCs, through All India Competitive Examinations conducted by the SSC in the various years from 1989 to 1996. They have pointed out that on the other hand, the applicants of the present OA had come into CSCS in the grade of LDC through the same 85% quota of direct recruitment only later, in the years 1996-97. It was, therefore, submitted that the Intervenor Private Respondents had never been junior to the applicants of the OA in the cadre of LDCs.
22. They had pointed out that the applicants of the OA, who had entered/come into the feeder grade of LDCs only in the year 1996-97, were not even eligible for being considered on seniority-cum-merit (SQ) basis for being inducted into the Select List of UDCs for the year 2003, inasmuch as in that year, they were not having the requisite 8 years of service in the feeder grade as LDCs, and none of them had qualified the LDCE examination for the year 2003. It was, therefore, submitted by the Intervenor Private Respondents that the applicants of the O.A. cannot have any justifiable grievance against them, who have been senior to the applicants as LDCs by many years, if they are considered by the official respondents against the seniority-cum-merit (SQ) quota for promotion as UDCs for the Select List Year 2003.
23. The Intervenor Private Respondents had further pointed out that in order to study the stagnation in the grades of Director/Deputy Secretary/Under Secretary/Section Officer and Assistants of CSS, and resultantly the stagnation in the feeder CSCS Cadres of UDCs and LDCs, the DoP&T had constituted a Committee in the year 2000, to suggest restructuring of the cadres of CSS, in order to remove stagnation both in CSS and CSCS, and its report was submitted in February 2002, (already referred to in para-3/above), and the Union Cabinet approved the Committees recommendations in the year 2003, effective from July of 2003, as the Select List Year is from July, to the June of next year. It was pointed out by the Intervenor Private Respondents that as a result of this decision, many additional posts of Section Officers and Under Secretaries were created and filled up against the CSS Select List Year 2003. The resultant vacancies in the CSS entry grade of Assistants, which had percolated down from the Section Officers grade, had also been filled up then itself, against the CSS Select List of Assistants in the Year 2003, by promoting people from among the stagnating UDCs of CSCS. They had, therefore, defended the actions of the official respondents in trying to fill up the CSCS resultant vacancies in the posts of UDCs from among the eligible stagnating LDCs, in the Select List Year 2003 itself. They also submitted that the administrative delay in processing promotional orders in respect of various CSS and CSCS cadres has taken a very long time only due to shifting from decentralized to centralized cadre management in DoP&T, and that implementing the recommendations of the Committee concerned had taken a long time, but the applicants of the OA have never challenged the conscious policy decision of the Government, i.e. Cabinet decision, dated 03.10.2003, nor the applicants have any right to challenge that conscious policy decision so belatedly now.
24. The Intervenor Private Respondents had further submitted that with the present decision, the LDCs recruited up to Select List 1995 shall become eligible for seniority-cum-merit based SQ quota promotions to UDCs grade against the Select List Year 2003, by virtue of their having completed 8 years of service as on that date, but it is only that such promotions have been delayed, only due to various administrative delays. Had such promotions been ordered in the year 2003 itself, before issuance of the Select List for the Year 2004 in the grade of UDCs, there would not have been any problem now. It was submitted that their promotions due to the ante-dated restructuring of CSS Cadres had actually become due in the year 2003 only, but administrative delay has caused delay in the promotions being actually accorded, and therefore it cannot be termed as a case of retrospective promotion.
25. The Intervenor Private Respondents had further submitted that all the vacancies of UDCs intimated against the Select List year 2004 onwards were ad-hoc vacancies, and that the LDCE for UDCs was conducted by the SSC against for the Select List Year 2004 onwards only for filling up of the ad-hoc vacancies, and since there is no explicit provision under the CSCS Rules, 1962, for according promotions against the ad-hoc vacancies, the argument of the applicants of the OA that the resultant CSCS vacancies, which have arisen out of the process of filling up of the vacancies created in the CSS due to re-structuring of that Cadre, have already been fully or partially consumed against the Select Lists for the years from 2004 onwards, is untenable in law.
26. To buttress their arguments, the Intervenor Private Respondents had submitted that the extended CSS Select List of Assistants grade for 2003, for promotion of 2151 UDCs against the restructured CSS Assistants vacancies, was issued only on 14.07.2009, along with the Select List of Assistants grade for 2004 to 2006 also being issued on the same date. They had therefore limited their claim only against the 2151 vacancies of UDCs arising out of the restructuring of the CSS cadre, that had arisen due to the creation of more number of CSS posts in the hierarchy of CSS promotions in the year 2003, and not against any 75% seniority-cum-merit (SQ) Quota vacancies, or against the 25% LDCE quota vacancies, available in the Select List year 2004 onwards.
27. It was submitted that all the Intervenor Private Respondents, who were already having 8 years of approved service in the LDC grade in the year 2003, and were, therefore, eligible for promotions against the Select List Year 2003 under 75% seniority-cum-merit SQ quota, have actually been waiting for their promotions for more than 21 years, and, therefore, they pressed for inclusion of their names in the Select List of 2003. It was submitted by them that the applicants of the O.A. have tried to confuse the issue at stake by wrongly quoting resultant vacancies as unfilled vacancies. They, in turn, assailed that the applicants of the O.A. have occupied their positions as if they were regular UDCs, and have even got their associated financial benefits, which had accrued to them under the recommendations of the 6th CPC, ahead of the stagnating LDCs, only due to the erroneous and arbitrary decisions of the official respondents in the matter.
28. It was further submitted that the applicants of the OA have wrongly cited OM dated 03.03.2008, which is not at all relevant in the present context, as it pertains to the relative seniority of the direct recruits versus the promotees, whereas the posts filled up by 25% LDCE quota and the 75% seniority quota have both to be treated in the same class of the employees, i.e. promotees, as promotion through LDCE is not direct recruitment. They pointed out the OM dated 10.04.1989 regarding consolidated instructions on Departmental Promotion Committees, and submitted that the guidelines issued by the said OM for promotion to the next higher grade were not followed by the DOP&T to affect promotions in UDCs grade for the Select List year 2004 onwards.
29. The Intervenor Private Respondents also pointed out the judgment dated 15.09.2004 of this Tribunal in OA 1061/2004 in Central Secretariat Non-Gazetted Union Registered and others vs. Union of India and others to state that this Tribunal had in that judgment observed that till the rules are amended, the quota for promotion in so far as LDCE and promoted Assistants is concerned cannot be altered, and their chances of promotion cannot be reduced. It was further submitted that the applicants of that case had again come before this Tribunal in a Contempt Petition, which was disposed of by this Tribunal, accepting the contention of the Government for the extension of time about the then pending proposal for promotion of 2151 UDCs to Assistants grade, and more time was granted.
30. The official respondents had filed their counter reply on 12.03.2012, denying the applicability of the OM dated 03.03.2008 to the instant case, since there is no component of direct recruitment in the UDC grade of the CSCS.
31. It was further submitted by the official respondents that according promotions for 2151 vacancies in the grade of UDCs against the Select List year 2003 had become necessary now, only because of the vacancies of UDCs which were caused due to promotion of that number of UDCs in the grade of Assistants against the Select List for 2003, due to cadre restructuring of CSS given effect to in 2009. It was pointed out that out of such resultant 2151 UDC vacancies, as per the rules prescribed in this behalf under CSCS Rules, 1962, UDCs Select List for the year 2003 has been proposed to be extended, and 25% of the extra UDCs vacancies, i.e. 538, have been now proposed to be filled up through conducting a LDCE, and remaining 75% vacancies of UDCs, i.e., 1623 vacancies, have been proposed to be filled up through seniority-cum-merit SQ quota. The official respondents had further justified the Notification of the draft CSL of UDCs for Select List Years 2003 to 2005 through OM dated 20.10.2011, and thereafter finalization of the CSL through the impugned OM dated 16.12.2011.
32. Justifying their actions to have been the result of the cadre restructuring in the CSS, and consequently in the CSCS, the official respondents had denied any wrongdoing, and had submitted that when on cadre restructuring of the CSS in the year 2009, effective from 2003, 2151 vacancies were caused in the grade of Assistants, UDCs belonging to the Select List Years 1971 to 1992-93 were promoted in 2009 to the grade of Assistants, against the Select List Year 2003, and, thereby, it has now become imperative to take follow up action to fill up the resultant 2151 vacancies in the grade of UDCs, in the ratio of 538 to 1623, effective in the Year 2003 itself, i.e. with retrospective effect, now. Any wrongdoing on the part of the official respondents was denied, and it was prayed that the OA may be dismissed.
33. The applicants thereafter filed MA No. 746/2012 on 15.03.2012, seeking modification of the order passed by the Bench on 12.03.2012, praying for clearly stating that the sum and substance of the interim order of the Tribunal dated 24.01.2012 was that any promotion made in the case shall be subject to the outcome of this O.A., and therefore through the MA they sought a direction upon the respondents not to give any retrospective promotions, and not to grant anybody eligibility against the Select List of UDCs for the year 2003, till the disposal of the OA. However, no orders were passed on MA No. 746/2012 on 16.03.2012, and thereafter the case came to be heard finally. Therefore, the said MA No. 746/2012 has become infructuous, and is being disposed of as such with this final order.
34. The applicants had on 09.03.2012 filed a very detailed reply to the impleadment application of the private respondents. Since the MA for impleadment of the private respondents was ultimately allowed with the consent of all the parties, the contentions raised in that detailed reply to the impleadment application never got considered and answered, but there is need for answering the legal issues raised therein, which were not answered while allowing the M.A for impleadment on the basis of consent of the parties. It is seen that the following legal issues were raised by the applicants in their reply to the MA for impleadment:-
1) It was submitted by the applicants that the Honble Apex Court has held in V.P. Srivastava & Others vs. State of MP & Others 1996 (2) SC SLJ 484 that where the States action is challenged, the Government is the only necessary party. However, the intervening application having been allowed by mutual consent, this contention no longer requires any comments.
2) It was further submitted that the persons selected/appointed in the UDCs grade in the earlier years have to be held to be senior to those selected/appointed during any later year, and this legal aspect has to be dwelt upon by us in all its ramifications.
3) It was further argued that actions of the official respondents cannot be such that they promote incompetent and inefficient officials, and cannot result in promotions being given to those who could not even qualify for meritorious promotion through the SSC by qualifying the LDCE of UDCs, and, as an example, it was quoted that in the LDCE 2009, only 86 candidates had qualified against 252 LDCE quota vacancies, leaving 166 LDCE quota vacancies unfilled.
4) It was further submitted that no recommendations of any Committee can override the statutory Service Rules. This issue does not need any comments from us, as this is a general principle of administrative law that statutory Service Rules would prevail over any administrative/executive instructions.
5) It was further submitted that the creation of additional posts in the CSS Cadres in the grades of Assistants, S.O. and above, cannot be allowed to have an automatic cascading effect in the form of automatic creation of additional posts in CSCS, which is a separate Service Cadre.
6) It was further submitted that as per the provisions of regulation clause-3 of the Third Schedule under Rule-11(3) of the CSCS Rules, as already reproduced in Para-4/above, the officials included in the Select List have to rank for the purpose of seniority in the very same order in which they are included in the Select List.
7) It was further submitted that Regulation 4 of the Third Schedule further states that subject to the exceptions made under clause 3 of that regulation, an official included in the Select List for the particular grade shall continue to be included in such Select List, till he is substantively appointed to that grade.
8) It was pointed out that as a result, all the officials included in a particular years Select List of UDCs, after their appointment on substantive basis in the UDCs grade, automatically become senior to all those officials who may be so selected, and appointed, at any later date.
9) It was submitted that appointment to UDC grade on the basis of mere seniority in the LDC grade, without inclusion in the Select List of UDCs on the basis of statutory provisions contained in Third Schedule of the CSCS Rules, was not possible.
10) It was further submitted that the existence of the Select Lists of Year 2004 and onwards, and the CSL notified thereafter, cannot now be denied, in violation of the Third Schedule of the CSCS Rules, since the UDC vacancies, which are now proposed to be filled up by the official respondents with retrospective effect from 2003, did not actually exist then, and were not available for being filled up when the Select List of UDCs for the year 2003 was prepared.
11) The applicants also contended that the official respondents-DoP&T had clarified to all the cadre units of CSCS that the UDCs promoted to the grade of Assistants on an ad-hoc basis during the years 2004 to 2007, on account of cadre restructuring of CSS ordered in 2003, would not be reverted back, and, accordingly, those vacancies of UDCs were already taken into consideration while notifying the Select List vacancies of UDCs grade for the respective years from 2004 onwards. Therefore, it was contended that the so-called resultant vacancies, which have been said to have arisen in the grade of UDCs on account of cadre restructuring of CSCS in 2003, have actually already been consumed, in the Select Lists of Year 2004 onwards, and in support of this submission they had reproduced the information as provided by the official respondents under the RTI Act through Annexure A-11 dated 04.02.2011.
12) To support their contention that the drastic increase in the number of vacancies of UDCs from the Select List Year 2004 onwards clearly indicates that the resultant vacancies in CSCS, which had arisen on account of cadre restructuring in CSS, effective retrospectively in the year 2003, have already been reported by the CSCS Cadre Units, and consumed & filled up from the Select List Year 2004 onwards, it was further submitted by the applicants that all the vacancies of UDCs which could have been anticipated in any year before declaration of the result of the LDCE of that year, and may have become available to be filled up in that year alone have to be treated as regular vacancies or resultant vacancies, and any vacancies of UDCs which have now become available, by virtue of preparation of extended Select List for the Year 2003 for the entry grade of Assistants of CSS, on the basis of CSS Rules, 2009, are not legally sustainable to be treated as vacancies of 2003, as the said CSS Rules, 2009, were not operative in the year 2003, and, therefore, such vacancies of UDCs cannot be stated to pertain to the Select List Year 2003.
13) The contention of the Intervenor Private Respondents that they have been waiting for their promotions for more than 21 years was also denied, and it was stated that they have actually been promoted only after 10 to 13 years.
14) It was submitted that the vacancies cannot be said to arise with retrospective effect, as vacancies in the lower grade can be said to have occurred only when the persons in the relevant lower grade not only get included in the Select List for the higher grade, but they also vacate their lien in the lower grade after their substantive promotions, and, therefore, any vacancies can only occur with prospective effect.
15) It was, therefore, submitted that the vacancies, which have actually become available in the UDCs grade only during the period of Select List Year 2009, should be filled up only through appointment of UDCs in the Select List Year 2009, as per the provisions of CSCS Rules, 1962, and not against the Select List of the year 2003, by violating the law of the land, as has been proposed to be done now.
16) The applicants had further contended that since the LDCE for UDCs for the Select List Years 2003 to 2009 had already been conduced by the SSC every year, and the results of such LDCE Examinations had already been declared, now, at this stage, another LDCE cannot be conducted for the so-called extended Select List Year 2003, for filling up now the vacancies which did not even exist in that year 2003.
17) It was further contended that since the seniority of UDCs is determined among all the UDCs selected through LDCE, and those promoted on the basis of seniority-cum-merit, in the ratio of 1:3, the date of completion of the process of the selection through LDCE has always played a crucial role in determining the seniority of all those UDCs, who come through LDCE route. In this context, they had cited the instructions of the official respondents themselves in their favour.
18) They had further contended that conducting the LDCE now, and calling it to be LDCE for the so-called extended Select List for the Year 2003, and declaring its results in 2012, is not at all legally tenable under the CSCS (Upper Division Grade Limited Departmental Competitive Examination) Regulations, 1966, which govern the LDCE examinations, particularly when the results of the LDCE of even the subsequent years from 2004 to 2009 had already been declared by the SSC.
19) It was further submitted that under these CSCS (UDG,LDCE) Regulations, 1966, the LDCE for the UDCs has to be conducted for the prospective Select List of UDCs, and, therefore, an LDCE cannot be conducted now for preparing a retrospective Select List of UDCs for the year 2003.
20) It was submitted that the official respondents cannot now make new rules for the conduct of LDCE for UDCs with retrospective effect, nor can they modify the existing Statutory Rules with retrospective effect, and the statement made on their part in this regard is, therefore, illegal and arbitrary.
35. It was further submitted by the applicants that if the official respondents now hold LDCE for the preparation of a retrospective extended Select List 2003, as has been sought to be done by the official respondents, and as has been prayed for by the Intervenor Private Respondents also, it would amount to a complete departure from the provisions contained in the Statutory Service Rules of CSCS. It was submitted that the official respondents cannot be allowed to now put more than 1500 UDCs arbitrarily in the Select List of 2003 of UDCs, at the cost of the LDCE route selected UDCs of the year 2004 onwards, which the applicants represent.
36. In regard to the concept of creation of regular vacancies in the lower grade on account of promotion of officers from the lower grade to higher grade, the guidelines of the DoP&T OM dated 08.09.1998 were cited, to state that even if the existence of vacancies in the Assistants grade for the year 2003 can be allowed to be taken into consideration by the official respondents, by virtue of the CSS Rules, 2009, the resultant chain of vacancies in UDCs grade cannot be stated to have occurred in the year 2003, unless the actual appointment of the incumbents on promotion from UDCs grade to Assistants grade had been made in the same period of Select List Year/vacancy year. It was, therefore, submitted that the vacancies of UDCs which have now been proposed by the official respondents to be included in the Select List of UDCs, cannot at all be held to be available for inclusion in the Select List Year/vacancy year of 2003, and that the 2151 resultant vacancies which had arisen in the grade of UDCs on account of cadre restructuring of the various Cadres in CSS, effective from 2003, have actually been consumed and filled up in the CSCS Select Lists from the year 2004 onwards, and those vacancies cannot be allowed to be stated to have occurred or existed in the year 2003.
37. It was submitted by the applicants that this Tribunal had in its order dated 15.09.2004 in OA 1061/2004 and MA 881/2004 in the matter of Central Secretariat Non Gazetted Union (Regd.) and others Vs. Union of India (supra) upheld the paramount importance of Statutory Recruitment Rules/Service Rules, and further held that the promotions must be made only on the basis of the existing Recruitment Rules of the concerned grade. They had, therefore, even in the absence of a challenge to the CSS Rules, 2009, in their O.A., which concerns only CSCS Rules, contended that since CSS Rules, 2009, have been notified in 2009, even though 2151 Assistants have been given extended Select List promotions with effect from 2003 on the basis of the CSS Rules, 2009, with retrospective effect, the same is legally not sustainable, as even the new service rules of CSS could not have been made operational with retrospective effect. However, we do not have to deal with this issue in this order, since the CSS Rules, 2009, are not under challenge before us in this O.A. It was further contended that any amendment to the CSS Rules, by promulgation of the new CSS Rules, in 2009, cannot be made applicable to CSCS at all, for whom the promotions to the grade of UDCs is made on the basis of the Third Schedule of CSCS Rules, 1962. This legal issue has already been noted for being answered, in sub-paras-(5), (6) & (7) of para 34/above.
38. It was submitted that the Intervenor Private Respondents cannot get promotion in the year 2003, as they could not succeed in the LDCEs conducted from 2003 onwards. It was submitted that the extension of the Select List 2003 of UDCs in any form now, in the garb of words such as corollary, notional, percolation, etc., was not permissible, and the law is settled in this regard that no retrospective promotion can be given, disregarding the seniority already earned by the others in the grade.
39. After the impleadment application was allowed on 16.03.2012, the applicants on 21.03.2012 filed a rejoinder to the reply filed by the official respondents. It was submitted that the DoP&T OM dated 07.02.1986, laying down the general principles for determining the seniority of various categories of persons employed in Central Services, stipulated that this principle holds good in determining seniority even in the case of carry forward, if any, of the direct recruitment or promotion quota vacancies, as the case may be, in the subsequent years, and that since the OM dated 03.03.2008 is only a clarification of the original DoP&T OM dated 07.02.1986, therefore, the submission of the official respondents that this OM dated 03.03.2008 is not relevant in the instant case is totally wrong, specially so when the official respondents have applied the same principle for the purpose of determining the inter-se seniority in the grade of Stenographers Grade A & B (merged) of Central Secretariat Stenographers Service, vide OM dated 13.08.2010, where vacancies are filled up 50% by seniority quota and 50% by LDCE quota.
40. It was further submitted that when the official respondents have already finalized the CSL in the grade of UDCs of CSCS for the Select Lists of the years 1995-2005 vide their Memo dated 24.06.2011, that final CSL cannot be now reopened by the official respondents in the manner it is being sought to be done in respect of Select List Year 2003. It was submitted that the official respondents have themselves clarified time and again that the LDCE is not different than direct recruitment for the purposes of fixation of inter-se seniority between promotees of Seniority Quota (SQ), and the direct recruits of LDCE quota, which principle has been followed by the official respondents in the Stenographers case also.
41. It was submitted that the respondents had themselves directed all the Cadre Units of CSCS that the vacancies, which had remained unfilled in the Select List of 2004, should be carried forward and added to the vacancies of the subsequent year. Accordingly, all the cadre units of CSCS had in a similar manner carried forward the unfilled vacancies of Select List of 2003, and had added them to the vacancies in respect of the year 2004, and it was further clarified that those vacancies of UDCs, which had arisen as a result of promotion of regular UDCs of the Select List years 1987 to 1992 to the grade of Assistants on ad-hoc basis, should be included in the extended Select List of UDCs, and such vacancies have, therefore, already been consumed. A table was also included in the rejoinder, giving the year-wise notified vacancies of UDCs, to prove their point. It was submitted that the official respondents have purposefully concealed from this Tribunal the fact that the resultant vacancies of UDCs in CSCS, arising out of the cadre restructuring of CSS, have actually already been consumed in the subsequent years in the interregnum.
42. It was further stated that not only have the official respondents published the CSL of UDCs from the Select List Years 1997 to 2005 through their OM dated 26.02.2011, but that further, on the basis of this final CSL, the official respondents have also already granted Non-Functional Selection Grade (NFSG, in short) of Rs.4200/- to the 741 UDCs of the Select List Year 2004-2005, which the applicants had tried to prove through production of note-sheets from DoP&T File No.12/2/2011-CS-II (B) notes from 5/7/2011 to 12/07/2011 (Annexure A-1 to A-VIII of their rejoinder). It was further submitted that on the basis of the same final CSL upto 2005, the UDCs up to Sl. No.89 of the seniority list year 2004 have already been nominated for attending the Level A Training Programme at the Institute of Secretariat Training and Management (ISTM, in short), (attending and passing which training is a pre-requisite for promotions to the entry level Assistants Grade of CSS), vide OM dated 07.02.2012, and that the official respondents have also given ad-hoc promotions to ST category candidates up to Select List Year 2005, through OM dated 05.08.2010, by taking the same CSL into consideration, which was finalized as the CSL of UDCs upto 2005, through OM dated 20.05.2011, and hence the reply of the official respondents that the CSL of UDCs has not yet been finalized is totally false and malafide.
43. After their impleadment application had been allowed by the Bench with mutual consent on 16.03.2012, the newly impleaded private respondents no.3 to 20 had also filed their counter reply on 23.03.2012, and an amended Memo of Parties was also filed by the applicants on the same date.
44. In their counter, the Intervenor Private Respondents had once again reiterated their contentions already taken by them earlier in the MA for their impleadment as parties, which have already been enumerated in detail in para 21 to 29 above.
45. In the written submissions on behalf of the Intervenor Private Respondents filed on 24.03.2012, it was pointed out that the applicants of the OA were appointed as LDCs during the year 1996/1997, while the private respondents were their seniors, and were appointed as LDCs prior to them, during the years 1989 to 1994. They have taken the stand that the posts of LDCs being the only feeder cadre for the posts of UDCs, the posts of UDCs are filled up 100% by way of promotions, though such promotions are accorded by two modes, i.e., 75% of the UDCs posts are filled up on the basis of seniority-cum-fitness after 8 years of approved service, and ACR/APAR benchmark is Good, and 25% of the posts are filled up by conducting through the SSC an LDCE, for which the eligibility criteria is 5 years of approved service, both the modes being promotions only.
46. It was pointed out by the Intervenor Private Respondents that as per the definitions given in Rule-2 (i) of the CSCS Rules, 1962, direct recruitment means a person recruited to the grade of LDC on the basis of competitive examination held by the SSC. It was submitted that there is no concept of direct recruitment of UDCs, and in fact the applicants are also promotee UDCs, under the 25% LDCE quota, through their having competed successfully in the LDCE. It was further submitted that the applicants of this OA have wrongly placed reliance upon the DoP&T OM dated 3.7.1986, clarified vide their OM dated 3.3.2008 (Annexure A-12 of the OA), which are merely executive instructions, and are applicable when the relevant statutory rules do not provide the method for regulating the seniority of the service or grade, while in the instant case, Rule-17 of the CSCS Rules, 1962, clearly provides the mode of determining the relative seniority and the Third Schedule (Para-2) to the said Rules lays down the law in this regard.
47. It was submitted that when the process of promotions in the higher posts of CSS, from Assistants level up to the Director level, had been delayed due to various administrative reasons, resultant delay has also occurred in filling up the resultant vacancies in the CSCS grade of UDCs against the Select List year 2003. It was submitted that, as a result, the LDCs recruited up to the Select List year 1995 shall become eligible for promotion to UDC grade against the Select List year 2003, in spite of the fact that in the meantime promotions from LDCs grade to UDCs grade against the normal vacancies had been completed for the Select List years 2004 to 2009.
48. Admitting that this complication has arisen only due to an administrative delay, and had such a situation occurred before the issuance of the Select List for the year 2004 in the UDCs grade, there would have been no problem now, it was, however, submitted by the Intervenor Private Respondents that it is not a case of retrospective promotions being sought to be granted, as the promotion of the Intervenor Private Respondents was already due in the year 2003, and only the delay in the administrative action has delayed the process. It was submitted by them that the official respondents have acted bonafide in the matter, since they have taken care of both the LDCE and SQ categories, and have proposed for 75% of such resultant vacancies to be filled up on seniority basis, and 25% to be filled up through an LDCE to be conducted now through the SSC. It was submitted that merely for the reason that the applicants of the OA were not eligible for promotions against the Select List year 2003, or had not participated in the relevant LDCE for the year 2003, or that they are not intending to now participate against the proposed LDCE for such extended LDCE 25% quota now allocated, at this stage, they cannot be allowed to state that the persons who were meeting the eligibility criteria and conditions in the year 2003 as per the rules, should not be considered and promoted now by the official respondents.
49. In reply to the contention of the applicants that they were properly promoted as UDCs on the basis of their position in LDCE conducted by the SSC against Select List years 2004 onwards, the Intervenor Private Respondents submitted that in fact the applicants were only promoted in advance against the ad-hoc vacancies of UDCs, to which had percolated down from the Assistants grade of the CSS, in view of a number of UDCs being appointed as Assistants on ad hoc basis, and that actually there is no provision under the CSCS Rules for regular promotion against ad-hoc vacancies, which the applicants are claiming to have been accorded between 2004 to 2009. The contention of the applicants of the OA that the vacancies, which had arisen out of the restructuring of the cadre of CSS, have already been consumed against the Select List vacancies reported from the years 2004 onwards, was denied, as untenable in law, and it was further submitted that since the extended Select List of Assistants grade for the year 2003 was issued only on 14.07.2009, for promotion of 2151 UDCs against such vacancies, and the consequential order for the Select List of Assistants grade for the years 2004 to 2006 was also issued the same date, any of these 2151 vacancies of UDCs could not be said by the applicants to have been filled up through regular promotions prior to that date.
50. The Intervenor Private Respondents had, therefore, assailed the promotion of LDCs issued against 25% LDCE quota in the interrugnum, without availability of regular vacancies, and without any statutory provision to that effect under CSCS Rules, 1962, for the Select List Year 2004 on 21.11.2005, for the Select List Year 2005 on 21.11.2006, for the Select List Year 2006 on 29.8.2007, and for the Select List Year 2007 on 15.07.2008. It was submitted that actually the official respondent DoP&T should have waited for initiating regular promotions to the UDCs grade of CSCS till the availability of regular and firm vacancies, by way of regular promotions of UDCs to the Assistants grade of CSS, as has been done in the CSS cadre, for filling up of vacancies under the LDCE quota of Section Officers grade from 2004 to 2008. It was further submitted that the guidelines regarding determination of regular vacancies, which have been prescribed for the cases involving promotions through Departmental Promotion Committees, had not been followed by the official respondent DoP&T, while giving effect to LDCE 25% and 75% SQ quota promotions in the UDCs Grade for the Select List Years 2004 onwards.
51. It was, therefore, prayed by the Intervenor Private Respondents that since 2151 vacancies have arisen in the CSCS grade of UDCs effective in the year 2003, as a result of percolation of the first cadre restructuring of CSS, and all the higher posts in CSS, i.e., Assistants, Section Officers, Under Secretaries etc. have also been filled up by inducting the eligible persons in the Select List Year 2003 only in respect of all such higher posts , the natural corollary would be to fill up such 2151 posts of UDCs in the CSCS cadre also by inducting the eligible LDCs to the Select List of UDCs for the year 2003 only, as has been rightly proposed to be done by the official respondents through their letter dated 11.01.2012 (Annexure PR-I). In saying so, the Intervenor Private Respondents had relied upon the order/judgment dated 14.08.1996 passed by Jabalpur Bench of this Tribunal in OA No.219/95 N.R. Banerjee vs. Union of India, which was upheld by the Honble Apex Court in Union of India Vs. N.R. Banerjee 1997 (9) SCC 287.
52. The Intervenor Private Respondents had thereafter also taken cudgels on behalf of the official respondents, and submitted that the applicants of this O.A. have made vague and baseless allegations of malafide, without impleading anybody as a party, or placing on record any reason or evidence to substantiate such allegations. It was further submitted that unless the applicants are able to show the violation of any statutory rule or instructions, or infringement of an enforceable right in favour of the applicants of this OA, this Tribunal may not like to exercise its extra ordinary power of judicial review, and in saying so they had placed reliance upon the Apex Courts findings in Ekta Shakti Foundation vs. Govt. of NCT of Delhi and Others AIR 2006 SCC 2609.
53. The Intervenor Private Respondents had further submitted that in order to file an application under Sections 19 & 20 of the Administrative Tribunals Act, 1985, there must be some illegal action against the applicants, or inaction on their representation or demand, while in the case of the present OA, from a perusal of the first paragraph of the OA, and the Prayer Clause Para-8, it is evident that the applicants have not challenged any order passed against them by the official respondents, and from a perusal of the representations annexed at Annexure A-8 of the OA, it is evident that none of the applicants of the OA have even made a representation to the official respondents Respondent Nos. 1 & 2, and the applicant No. 1, who had made such a representation, has filed this OA even before the expiry of the prescribed period of six months, and, therefore, the OA is pre-mature, and not maintainable under Section-20 of the Administrative Tribunals Act, 1985.
54. It was further submitted by the Intervenor Private Respondents that in order to file a litigation, a litigant must have a locus standi for him to file a case, and, for being considered under 75% quota of the posts of UDCs to be filled up on the basis of seniority-cum-merit, one is required to have 8 years of approved service, and admittedly none of the applicants in this OA were having the requisite number of 8 years of service in the relevant year, i.e., 2003. It was again reiterated that even in order to be promoted through the other mode, i.e., 25% quota for LDCE for such the relevant year 2003, the applicants of this OA were either not having the requisite 5 years of approved service in the year 2003, or if they had the requisite service, they had not participated in that years LDCE, so now when the official respondents No.1&2 are considering such eligibility for the Intervenor Private Respondents, and other similarly placed persons in the year 2003, as is evident from their letter dated 11.01.2012 (Anneuxre PR-I), the applicants of the present OA could not be held to be eligible to be considered, or they may not be interested to avail of the opportunity being accorded by the official respondents No.1 & 2, and hence this O.A.
55. It was submitted by the Intervenor Private Respondents that it is settled law that a person who is not meeting the requirement of the rules to be considered in the process initiated for according promotions, he does not have any locus standi to file a petition regarding that process of promotions to be accorded, and to maintain the same, and in saying so they had relied upon the orders of the Honble High Court of Delhi dated 03.07.2009 in Writ Petition (C) No.3269/2003 R.K. Ojha & Ors. Vs. Union of India & Others with Writ Petition (C ) No. 3912/2003 Preeti Srivastava vs. Union of India & Others. It was further submitted by them that the official respondents have issued their official Memoranda dated 24.06.2011, 20.10.2011 and 16.12.2011 regarding Common Seniority List in the grade of UDCs in the CSCS up to the year 2003, after due deliberation and following the principles of natural justice, and the applicants of this OA are neither eligible to be inducted in that list, nor they have challenged these OMs, which still hold the field, and, therefore, the reliefs sought for by the applicants in this OA are not maintainable.
56. It was further submitted by the Intervenor Private Respondents that the applicants have sought with-holding of the induction of the eligible LDCs in the Select List of UDCs for the year 2003, and since it is settled law that promotion and seniority is ones individual right, for the purpose of with-holding of such right, which has accrued in favour of 2151 persons, the applicants were duty bound to implead all of them in this OA, and this Tribunal may accord the opportunity of hearing to everyone of them, in consonance with the principles of natural justice. It was further submitted that though this Tribunal had allowed the MA No.349/2012 on 16.03.2012 to make the Intervenors as Private Respondents No. 3 to 20, these are not the representatives or attorneys of the remaining 2133 persons, who were eligible to be inducted in the grade of UDCs in the Select List of the year 2003, according to the decision taken by the official respondents. In this background, it was submitted that this OA is not maintainable for non-joinder of necessary parties. In saying so, the private respondents had relied upon the order/judgment dated 30.05.2011 delivered by the Honble Delhi High Court in Writ Petition (C ) No.1353/2011 Union of India & Another Vs. IRCE Officers Association etc. in which the Honble High Court has held that unless the very principle of determination of seniority or promotion is called in question, the necessary parties have to be impleaded. It was submitted that since in the case in hand, the official respondents have only applied the Rules, and no part of the Rules is in question, therefore, all 2151 persons likely to be affected are necessary parties in this OA.
57. In the result, the Intervenor Private Respondents had prayed that this OA is nothing but a misuse of the process of law, and that the applicants have, without any cause, not only attempted to stall the administrative process, but have also attempted to stall the legitimate expectations of the private respondents and other similarly placed persons for their consideration for promotion on becoming eligible, in the year 2003, and, therefore, the OA deserves to be dismissed with exemplary costs. A copy each of the judgments cited had been annexed with the written submissions.
58. Written submissions were also filed on 27.03.2012 on behalf of the applicants, on the date the arguments in this O.A. were concluded, and orders were reserved. The applicants submitted in their written submissions that in the light of the Apex Court finding in Pawan Pratap Singh and others vs. Reevan Singh & others 2011 (2) SCALE 327, 2011 (1) AISLJ SC 454, as followed recently by this Tribunal in its orders in OA 4111/2010 and TA 84/HR/2009, the seniority has to be given from the date of substantive appointment, and if may not be given on hypothetical basis, i.e. on notional basis of year of vacancy. It was also submitted that Clause-3 of Schedule III under Rule-2 (3) of the CSCS Rules clearly provides that once the Select List is prepared and finalized, any person, who is included subsequently in the list, he would have to be junior, and he cannot be termed as senior, whether the inclusion was within the same year, or in the next years list. On the basis of the cases of Naini Shah and Ors. vs.State of Arunachal Pradesh & Ors.2010 (1) SCC (L&S) 719 and Uttaranchal Forest Rangers Association & Ors vs. State of U.P. (supra) they submitted that no retrospective promotion or seniority can be granted to an employee on the date on which he was assigned in the cadre, in such a manner that it may adversely affect those who were appointed validly ahead of him in point of time.
59. It was said that in the case of M.C.Singhania vs. Union of India and Others in OA 1663/2006, decided on 20.02.2008, it has been held by this Tribunal that even if there has been a delay in holding DPC, and, therefore, promotions are given belatedly, seniority cannot be given with retrospective effect, and even though delay might have been there in respect of their promotion, which was unavoidable, but that itself does not give any cause of action for claiming a relief of ante-dating of the year of allotment. It was submitted that in the case of Diwan Chand & Ors. vs. Union of India & Ors. in TA No.84/HR/2009 decided on 25.08.2009 by the Chandigarh Bench of the Tribunal, it has been held in para-23 of that order that when a person, who has become a member of the service in the year 2004 is sought to be placed below persons who qualified an examination on the basis of a syllabus prescribed in 2006, against the vacancy of 1996 or so, this kind of approach is totally unreasonable, unwarranted and illegal.
60. It was further submitted that it cannot be the case of the official respondents that the applicants, who have already been placed in the UDCs Select Lists from 2004 onwards, would not be affected if the official respondents now give promotions with retrospective effect, i.e. from 2003, to their juniors. It was further submitted that no rights have as yet crystallized in favour of the private respondents till date, as they have not yet been given the benefits of retrospective promotion and seniority, and, therefore, they have no locus standi to contest the present O.A. It was further submitted that in this welfare state, the official respondents cannot be allowed to give unearned seniority from 2003 to the Intervenor Private Respondents and many others, at the cost of persons who had already been legally and validly promoted as UDCs in the interregnum period.
61. It was further reiterated by the applicants that the cadre restructuring has been done only in the CSS cadre, and not in the second Service cadre of CSCS, to which both the applicants as well as the Intervenor Private Respondents belong, and even if and when such cadre restructuring is done in the CSCS cadre, the resultant vacancies would have to be filled up only from the date the vacancies actually become available for being filled up, and not with retrospective effect, from 2003 onwards.
62. It was further submitted that there is no parallel Rule akin to the newly framed CSS Rules, 2009, framed in respect of the CSCS through which retrospective promotions could have been given in the CSCS cadre, and in the absence of any such parallel enabling provisions in the CSCS Rules, retrospective promotions and ante-dated seniority cannot be granted to the Intervenor Private Respondents, and any others, in violation of the Statutory Rules. The contention of the official respondents about the applicability of the OMs dated 03.03.2008, February 1996 and 03.07.1986, was further denied, by submitting that these instructions can be applied with retrospective effect only for fixing the seniority in between the persons promoted on the basis of LDCE, i.e. LDCE quota, and those promoted on the basis of seniority, i.e. S.Q quota, and had no other application to the instant case.
63. It was further submitted that in the above DoP&T OMs dated 03.07.1986, February, 1986 and 03.03.2008, it is further clear that seniority cannot be given with retrospective effect, and when appointments are made against unfilled vacancies in a particular year, either by direct recruitment or by promotion, the persons who are so appointed cannot get seniority of any earlier year, even in a year in which the recruitment process may have been initiated.
64. It was further submitted that no specific Cabinet decision was taken for a restructuring of CSCS Cadre, and even if the cadre restructuring is now done in the CSCS Cadre also, the resultant vacancies can only be treated to have been filled up from the date they are actually so filled up. It was submitted that the vacancies of UDCs, made available only in 2009 by promotion of UDCs as Assistants, cannot be filled up with retrospective effect, i.e. from 2003 onwards, and further that after the year-wise DPCs and LDCE had been conducted in the meanwhile, the vacancies matrix cannot now be allowed to be retrospectively changed.
65. Along with their written submissions the applicants had also filed a copy of RTI reply dated 15.03.2012 obtained by them, containing photocopies from the note-sheets of the relevant DoP&T Files No.12/1/2011-CS.II (B) and 7/3/2003-CS.II (Part). It is seen from these notings that consequent upon restructuring of the CSS in 2003, the 2151 vacancies, which were caused in the CSS entry grade of Assistants, were decided to be filled up only through seniority-cum-merit quota in the grade of Assistants, from among the eligible UDCs, many of whom were already working as such on an ad-hoc basis.
66. Heard the case in great detail. Arguments of all the three learned counsels were very forcefully and persuasively presented, along the lines of the discussion above. The implications and ramifications of this case are so wide, and concern so many individuals, in the present, and perhaps in future also, that we have taken great pains to go through all the pleadings, arguments and the case law cited very minutely, and in great detail. Let us now discuss as to how we have tried to appreciate the issues which are involved in this case, in order to arrive at our conclusions.
67. When the applicants had filed their reply to the impleadment application on 09.03.2012, along with that they had filed a copy of the CSCS Rules, 1962, a copy of the CCS Rules, 1962, and a copy of the Hindi and English Versions of the Gazette Notification of the new CCS Rules, 2009. Along with that, at pages 174 & 175 of that Compilation (running pages 436 & 437 of the OA file), they had annexed the Notification regarding the declaration of final result on 27.05.2011 of the Upper Division Grade LDCE, 2009, examination held on 29.11.2009, for making additions to the Upper Division (UDC) Grade of the CSS, Railway Board Secretariat Clerical Services (RBSCS), Department of Tourism (Headquarters Estt), Armed Forces Headquarters Clerical Services (AFHQCS), Central Vigilance Commission Clerical Services (C.V.C.C.S) and Election Commission of India Clerical Service (ECICS). It is seen that in this result, 86 candidates were recommended for inclusion in the Select List of Upper Division Grade of 2009 in respect of CSCS, against the 252 vacancies which had been notified, one person was recommended against the 03 vacancies of RBSCS, and none against the only vacancy of CVCCS, and none for ECICS and DoT (Hqrs. Estt.), and against 38 vacancies in AFHQCS, 5 candidates had been recommended by the SSC.
68. The applicants had also filed as Annexure-5 a copy of the Office Memorandum dated 08.09.1998 on the subject of the procedure to be observed by the DPCs, as Annexure-6 the Office Memorandum dated 17.08.2010 on the subject of Nominations of LDCs of CSCS for inclusion in the Select List of UDCs Grade of CSCS for the year 2007 under the Zoning Scheme, as Annexure-7 an Internal noting of the respondent DoP&T regarding Select List 2004 vacancy positions, as Annexure-8 the OM dated 24.06.1978 on the subject of Starting point in the recruitment roster for the purpose of seniority, and as Annexure-9 the OM dated 10.04.1989 regarding Consolidated Instructions for holding of DPCs.
69. It is seen from Rule-5 of the CSCS Rules, 1962, which prescribes the Authorized Permanent Strength and temporary strength of the Service, that the authorized permanent strength of the two grades of UDCs and LDCs of the CSCS in each cadre shall be the strength as notified on the appointed day, as specified in the Second Schedule to the said Rules. The Second Schedule to the said Rules, as downloaded from the DoP&T site on 01.03.2012, which was filed, shows that the authorized permanent strength of CSCS on the appointed day was divided into a total of 2300 posts of UDCs and 7600 posts of LDCs. Sub-Rule-2 of Rule-5 says that after the appointed day, the authorized permanent strength of the two Grades in each cadre shall be such as may from time to time be determined by the Central Government, and Sub-Rule-3 prescribes that the cadre controlling authority may make temporary additions to a cadre, as it may deem necessary, from time to time.
70. Therefore, prima facie, the submission of the official respondents that as against the total authorized permanent strength of UDCs of 2300, 2151 vacancies had occurred antedated in 2003, appears incongruent, without any basis for knowing as to how many such UDC vacancies out of them were actually filled up, and had their liens occupied on 01.07.2003, the beginning date of the Select List year 2003. It is seen from the information as furnished by the official respondents that in the Select List prepared in the year 2003 itself, 41 vacancies of UDCs were filled up through LDCE and 120 vacancies of UDCs were filled up through seniority quota (SQ), and thus 161 vacancies of UDCs in respect of the year 2003 were already filled up through the LDCE and seniority quota (SQ) promotions undertaken in that year. 161+2151 adds upto 2312, which number is more than the 2300 authorized permanent strength of UDCs of CSCS, as per the Second Schedule produced before us. Therefore, even if there was not even one substantively appointed and serving UDC in the Cadre at the beginning of the Select List year 2003, other than the 161 UDCs actually promoted during that year through the LDCE (41) and seniority quota (SQ) (120) UDCs, the present proposal of adding 2151 vacancies of UDCs to the Select List for the year 2003, would take the number of UDC vacancies in 2003 year itself to more than 2300, the authorized permanent strength of the UDC cadre in CSCS, which is illogical, illegal, de-hors the rules, and unacceptable. If the UDCs actually holding substantive appointments and lien against their post as on 01.07.2003 is taken into account, the present proposal of the official respondents would take the total number much beyond the 2300 present sanctioned strength of the UDCs Cadre, which was 5148 earlier.
71. It is not the case of the official respondents that any of the UDCs in the year 2003 had been excluded from the cadre, on account of their having been declared to be holding any duty post under Rule-6 of the CSCS Rules, 1962. In any case, under Rule-10 of the CSCS Rules, 1962, all fresh appointments shall have to be made to the appropriate grade of the service, and not against any specified duty post (under Rule 6) in that Grade, and, therefore, the official respondents cannot, without a specific order of relaxation, or enhancement of the sanctioned strength of the UDCs Cadre issued in this regard, surreptitiously increase the total number of Select List vacancies itself to be 2312, more than the authorized permanent strength of UDCs Cadre, which, when added to the actual number of UDCs holding substantive appointments and occupying their liens as on 01.07.2003, would take the total number to more than even 5148, the earlier authorized permanent strength of the UDCs Cadre. Therefore, the present proposal of the official respondents appears, prima-facie, to be against the Service Rules prescribed in this behalf.
72. Rule-11 (3) of the CSCS Rules, 1962, prescribes that for the purpose of recruitment to UDCs in the Upper Division Grade of the service, a Select List shall be prepared and may be revised from time to time, and the procedure for preparing and revising the Select List shall be set out in the Third Schedule. The Regulation regarding Maintenance of such Select List has been prescribed by Regulation-2 of the said Third Schedule as follows:-
2. Maintenance:-
(1) subject to the provisions of clause (2) of this regulation, additions to the Select List in any cadre after its constitution under regulation I shall be made in such numbers as the cadre authority may determine from time to time, keeping in view the existing and anticipated vacancies, and in the proportion of 3:1 from-
(a) Officers of the Lower Division Grade in that cadre who have successfully completed the probation and have passed the typewriting test or have been exempted, in accordance with the procedure prescribed by the Central Government from passing it and who have rendered not less than eight years of approved service in that Grade and are within the range of seniority subject to rejection of the unfit:
Provided that where an officer of the Lower Division Grade is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the concerned officer.
(b) Members of the Lower Division Grade selected on the results of the limited departmental competitive examinations held by the Staff Selection Commission for this purpose from time to time, in the order of their merit.
Persons of the two categories referred to above being included in the Select List by taking alternatively three persons from category (a) and one person from category (b) above, and so on, in that order.
Note:- If officers within the range of seniority are not available in a cadre for making additions to the Select List from officers of category (a) above, such additions shall be made from a panel, furnished by the central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances & Pensions of officers serving in the other cadres.
2. Until the results of the limited departmental competitive examination referred to in the preceding clauses are announced, additions to the select list for the Upper Division Grade may, to the extent existing vacancies in any cadre necessitate this, be made by the cadre authority from amongst permanent officers of the Lower Division Grade in that cadre who have rendered not less than eight years approved service in the Grade, and are within the range of seniority in the order of their seniority, subject to the rejection of the unfit.
Note I:- While considering the cases of officers belonging to the Scheduled Castes and Scheduled Tribes for making additions to the Select List from officers of category (a) above, reservations shall be made in accordance with such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances & Pensions from time to time.
Note II:- If the officers within the range of seniority are not available in a cadre for making additions to the Select List under sub-regualtion (2), such additions shall be made from the panel, furnished by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances & Pensions of officers serving in the other cadres.
(3) The rules for limited departmental competitive examination referred to in clause (1) shall be as determined by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances & Pensions and the allotment of candidates from the results of this examination to the various cadres shall be made by the said Department.
(Emphasis supplied).
73. It is clear from the said Regulation regarding Maintenance of the Select List for UDCs that it can only relate to the existing and anticipated vacancies during a year, and in no case can the Select List for any year, or for the Select List year 2003, exceed the total authorized permanent strength of the cadre, as has now been proposed to be done by the official respondents, by including 2151 antedated vacancies in the Select List Year 2003, after already having filled up 161 Select List vacancies in that year from the LDCE and seniority quota (SQ), as discussed above. This strengthens our perception that the present proposal of the official respondents is dehors the Rules.
74. Regulation-4 of the Third Schedule of the CSCS Rules prescribes that an officer included in the Select List of a year for the Grade, who cannot be appointed to that grade in that year itself, for want of vacancies, will continue to be included in such list, and retain the seniority assigned to them in that years Select List. Hypothetically, therefore, even if it is taken that there was a zero number of UDCs at the beginning of the year 2003, and the size of the Select List is allowed to be increased from the 161 results of the Select List for the year 2003 already declared that year, the extended Select List in the year 2003 can at the most be allowed to be increased to 2300, and even then 12 persons (161+2151=2312 minus 2300=12) would still remain excess over and above the authorized sanctioned strength of 2300, and those 12 persons would retain their seniority in the year 2003 Select List, and would then have to be adjusted in the Select List year 2004, while we see that in the year 2004 also, a total of 513 persons have already been promoted from LDCs cadre to UDCs cadre (under LDCE quota 131 and Seniority Quota(SQ) 382). These 12 persons hypothetically carried from the Select List Year 2003 for the Select List year 2004 now, shall still have a dispute of seniority in the year 2004, against the 131 LDCE and 382 Seniority Quota, i.e. 513 UDC promotees of the Select List year 2004.
75. The sum and substance of the above discussion is that it is clear that there is merit in the submission of the applicants that at least some of these 2151 UDCs vacancies now identified had actually been consumed in the Select Lists for the years 2004 to 2009, in which 513 LDCs were promoted in 2004 Select List, 411 in 2005 Select List, 463 in 2006 Select List, 498 in 2007 Select List, 604 in 2008 Select List, and 977 in 2009 Select List, by which process, after having already filled up 161 UDC vacancies in the Select List year 2003, a total of 3466 UDC vacancies had been filled up over the Select List Years 2004 to 2009, taking the total of promotions from 2003 to 2009 to the UDC level to 3627. Out of these 3627 promotions, 912 promotions were given on the basis of LDCE, and 2715 promotions had been given on the basis of seniority quota (SQ), in which process this now identified number of 2151 appears to have been more than adequately covered. This still has to be compared with the reply against Question No.6 provided by the official respondents in the RTI reply dated 04.03.2011, in which it has been stated as follows:-
As per the information received from the Cadre Units, the reassessed vacancy position is as under:
2003 : 1707 2004 : 306 2005 : 306 2006 : 282 2007 : 212 2008 : 202 2008 : 189
76. Therefore, when the total of the re-assessed year-wise UDC vacancy positions as intimated yearly by the Cadre Controlling Authorities to DoP&T totals up to 3204, while the persons already actually promoted from the year 2003 to 2009 were 3627, it appears to us that it cannot be anybodys case that at least some portion of the 2151 vacancies of UDCs, which have arisen in 2009 as a result of the promotions of UDCs to Assistants Grade, have not actually been consumed and subsumed in the promotions from LDCs grade to UDCs grade already actually given over the years 2004 to 2009.
77. When the re-assessed vacancy position of UDCs of 3204 over the years is less than the actually filled up 3466 UDC vacancies over the years 2004 to 2009, it is quite clear that the 33 Cadre Controlling Authorities of the as many CSCS cadres had not seen eye to eye with the DoP&T about the interpretation of what is a post, and what is a vacancy. It appears that most of these 33 Cadre Controlling Authorities have, after having given ad-hoc promotions to UDCs as Assistants, and much before their substantive promotions granted in 2009, already wrongly counted those UDC vacancies as vacant liens also, and had reported them as vacancies for the purpose of inclusion in the subsequent years Select Lists, even though the lien of the incumbents on those UDC posts had not yet been vacated and extinguished, just because of their ad hoc promotion as Assistants, and such UDCs gave up their lien against their substantive posts of UDCs, and acquired a lien against the Assistants entry Grade cadre of CSS much later, only in the year 2009.
78. However, since 2151 UDCs were so substantively promoted to the grade of Assistants in the year 2009, against the Select List year 2003 of Assistants Cadre, and by then the Select Lists of UDCs had been finalized upto the year 2006, and the Select List under the LDCE conducted in 2007 for the posts under 25% selection quota for the year 2007 had also been finalized, the relevant Staff Associations demanded for passing on the benefit of the 2151 resultant vacancies in the grade of UDCs also against the Select List Year 2003 itself. The DoP&T then requested all the cadre units to revise the vacancy position in the grade of UDCs from the Select List Year 2003 onwards, which has led to the present O.A. being filed.
79. However, the DoP&T file notings reveal that out of the 2151 UDCs, who were so promoted in 2009 as Assistants, against the Assistants Select List of 2003, since most of the UDCs were already working as ad-hoc Assistants, and many of the cadre units had already intimated these UDCs vacancies, created due to such ad-hoc promotions in the subsequent Select List Years, as it was anticipated and expected that these UDCs promoted as ad-hoc Assistants will not be reverted back to their substantive posts of UDCs, as a result, not only the vacancies of the Select List Year 2003 itself had undergone a change, but all the later/subsequent Select List Year vacancies intimated upto the year 2009 had also undergone a resultant change. However, the issues flagged in the file notings in the relevant DoP&T file were as follows (pages 12 & 13 dated 01.03.2011):
4. Since most of the UDCs who were promoted as Assistant against the extended Select List of 2003 were working as ad-hoc Assistants, many of the cadre units had intimated these ad-hoc vacancies in the subsequent Select List Years as it was expected that these ad-hoc Assistants would not be reverted back to their substantive post i.e. UDC. As such, it may be seen from the statement that not only the Select List Year vacancy of the year 2003 has undergone change but all the Select List Year vacancies intimated up to the year 2009 has undergone change. Though it appears that the benefit of Select List should also be given in the Grade of UDC, however, since the Select List of UDCs up to 2007 has already been finalized, there are some issues which need consideration before a decision in this regard is taken.
(i) The Select List of SO of UDC for the years 2004, 2005 and 2006 had already been finalized by the time the order for promotion of 2151 UDCs to the grade of Assistant for the SLY 2003 (extended) were issued. Subsequently, the Select List of 2007 has also been finalized.
(ii) More than 600 officials have also since been appointed as UDC though LDCE for the Select List years 2004, 2005, 2006, 2007 and 2008.
(iii) If the Select List of 2004, 2005 and 2006 are reviewed it may lead to litigation by the UDCs who have qualified the UD grade LDCE for the years 2004 to 2008 as their seniority would be adversely affected. We have already received number of representations in this regard.
(iv) As per the existing RR the vacancies in the grade of UDC are to be filled up by 75% through seniority and 25% by LDCE quota. Relaxation of RR will be required for deviating from the percentage of filling up of Limited Departmental Examination and Seniority quota for the select list year 2003 onwards. It would be difficult to justify the relaxation of Rules with retrospective effect at this late stage.
(v) Since the UDC grade is decentralized the reservation roster is also being maintained by the respective cadre units and hence the cadre units would find it difficult to maintain the roster as the percentage between LDCE and SO would change due to shifting of some of the vacancies of the Select List year 2004 to 2009 to Select Lit year 2003.
(vi) As per the revised vacancy position, the LDCE Quota in respect of Select List Year 2004 to 2008 would be more than 25% as the nomination against the LDCE vacancy up to the year 2008 is already complete.
(vii) Select List vacancies of a particular year arise on account of physical vacation of the posts by the incumbents due to retirement/VRS/resignation/promotion etc. during the period of the Select List Year i.e., 1st July to 30th June of that year. The UDCs included in the Select List of Assistants for year 2003 (extended) had physically vacated their posts only after 14.07.2009 (date of issue of the extended Select List). 5. It may be mentioned here that this Department has already completed the process of promotion for the Select List year upto 2007. Further the UDCs of LDCE for the Select List year 2008 have also been nominated by this Department.
6. In order to promote the LDCs to the grade of UDCs following options are suggested:
(i) As per the CSCS Rules, LDCs who have completed eight years of approved service are eligible for promotion to be grade of UDC. For the Select List year 2003, the LDCs upto Select List year 1995 are eligible for promotion as UDCs.
(ii) As per the CSCS Rules, LDCs with five years of approved service are eligible for appearing in the LDCE. Had the process been completed timely, the LDCs who had qualified the LDCE would have become eligible for promotion to the grade of UDC. Hence we may consider those LDCs who had qualified the LDCE upto Select List year 1995.
(iii) Since the promotion orders of 2151 UDCs as Assistants were issued in July, 2009, we may consider the promotion of LDCs as UDCs for the Select List year 2009 since the actual vacancies became available only in the year 2009.
7. In case, the suggestion given at para 6 (1) above is approved, the LDCs who have qualified the LDCE will approach the court taking the plea that had the examination been held at that time, they would have qualified the examination and would have been covered in the Select List year 2003 itself.
8. In case suggestion at para 6(ii) is considered then the LDCs of seniority quota will approach the court since the promotion of 2151 UDCs as Assistants have been made in the seniority quota and the candidates of LDCE who have not completed 8 years of approved service are also getting promotion as UDCs.
9. In case option at para 6 (iii) is considered, the Association may press hard for extending the Select List of 2003 as it was done in the case of Assistant. However, if the third option is considered, there would be less complication as the vacancies are taken from the date an official physically vacates it.
10. A decision has, therefore, to be arrived keeping in view all the above aspects as it will have wider repercussion and relaxation of Rules would be required which may result in litigation in longer run.
(Emphasis supplied).
80. The view of the official, who suggested these options, however, did not get appreciated and accepted, as is apparent from the subsequent file notings. A subsequent suggestion was made on 17.03.2011 that 417 vacancies may be notified for filling up for the Select List year 2008 in the seniority quota (SQ), which will cover the LDCs of Select List Year 1993-1994 (part). Thereafter, the zone of consideration of Select List Year 2009 would be issued, which would cover all the eligible LDCs upto the select list year 2001, totaling to around 1200. However, the subsequent noting dated 18.05.2011 discloses the total disconnect between the 2151 promotions accorded on 14.07.2009 to the UDCs as Assistants, most of whom were already working as ad-hoc Assistants, and the resultant UDCs vacancies. It is apparent from the file notings that the substantive promotions of 2151 UDCs to the grade of Assistants in 2009 had resulted in only 1707 vacancies of UDCs being created for being filled up (and not 2151). This had happened because the total strength of UDCs cadre had been 5148 earlier, and after upgradation of 1467 posts of UDCs to the posts of Assistants, the sanctioned strength of UDCs had initially come down to 3681, which, according to the Website, appears to have been reduced to 2300 now. Also, the total number of incumbents in the grade of LDCs, who could have been considered eligible for promotion to the grade of UDCs itself was only 1642, which is less than even the 1707 identified vacancies, as had been reported earlier, after re-assessment, and both these numbers 1642 and 1707 are much less than the 2151 LDCs now sought to be promoted as UDCs. Thus, it is clear that number of 2151 LDCs are not at all available for being promoted (since most of them have been already promoted as UDCs in the interregnum).
81. The issue of extending the benefit of promotion as UDCs ante-dated from the Select List Year 2003, vis-`-vis for the Select List Year 2009, was further examined in that noting, and pros and cons of both the options and processes, by which it could be done, were examined as follows:
Option Process Pros Cons Filling up 1707 resultant vacancies in the grade of UDC against Select List year 2003 LDCs who have completed 8 years of approved service (for SSO candidates) and 5 years of approved service (for LDCE) as on 1.7.2003 be considered for promotion against the reassessed vacancies of 2003, this would require shifting of Select List Year 2004 onwards by relaxing the CSCS Rules All the UDCs who have completed 8 year service (SO) and 5 years service (LDCE) will be promoted as UDC against Select List Year 2003. A UDC of LDCE quota who has qualified the 2004 LDCE examination and ranks junior to another UDC who has also qualified the LDCE of the same year may become senior of that UDC because of the length of service. This will create anomaly and invite litigation. Further more than 600 officials who have also since been appointed as UDC through LDCE for the Select List years 2004,2005,2006,2007 & 2008 would get affected and in case the Select List of 2004 onwards are reviewed it may lead to litigation by the UDCs who have qualified the UDC Grade LDCE for the year 2004 to 2008 as their seniority would be adversely affected. We have already received number of representations in this regard.
Filling up resultant vacancies in the grade of UDC against Select List year 2009 Since the promotion orders of 2151 UDCs as Assistants were issued in July, 2009 all the vacancies be filled up against the Select List year 2009 All eligible LDCs upto the Select List year 2001 will be covered for promotion as UDCs for the Select List year 2009 since the physical vacancies have become available in the year 2009. Many of the Seniority Quota UDCs may approach the court for giving promotion against Select List year 2003 as has been done in the case of UDC to Assistant on the basis of the cadre re-structuring.
82. However, it is seen that in his noting dated 13.06.2011, the Deputy Secretary (CS-II) recommended for adopting the first option of filling up the post of UDCs against the Selection Year 2003 in respect of candidates from both LDCE and seniority-cum-merit modes. It was pointed out by him that the Courts have already ruled that an official could be placed in the LDCE Select List of a year even though he has undergone and was qualified in the LDCE for a subsequent year, on the ground that he could not undergo the previous years LDCE due to fault of his own department. Thereafter, Deputy Secretary (CS-II) put up another revised noting dated 21.06.2011 describing the case contested before the Cuttack Bench of this Tribunal. He further relied upon the judgment of Honble High Court of Delhi in WP(c) No.6556/2000 in the case of Purnendu Kant vs. Union of India & Ors.
83. Thereafter, the matter was discussed and once again a noting was put up by Deputy Secretary (CS-II) on 01.09.2011, on which on 06.09.2011 the Joint Secretary had noted that there was a need to establish a case that all these vacancies should be treated as vacancies of seniority lsit 2003, as strictly speaking actual vacancies occurred in 2008 or 2009 when UDCs were actually promoted as Assistants and he directed for this matter to be examined further.
84. While the matter was under examination further, the Central Secretariat Non-Gazetted Employees Union sought a hearing from Honble Minister of State (Personnel) to consider their demand regarding extension of the benefit to the Select List of 2003, on which request the Honble MoS (PP) directed the Additional Secretary (S&V) to meet the delegation and the delegation met him on 09.09.2011. After this the Additional Secretary (S&V) had also opined that it is critical to understand the timing of the availability of 2151 vacancies of UDCs for working out a methodology for filling them up. He noted that these vacancies are supposed to be the resultant vacancies due to cadre restructuring of CSS 2003, but the issue remains as to whether the vacancies actually occurred in 2003, or in subsequent years, and further that even if they are notionally taken as 2003 vacancies, the issue as to whether these vacancies should be only seniority quota (SQ) vacancies, or both SQ/LDCE vacancies, had to be resolved.
85. The practical difficulty in extending the benefit to the Select List of 2003 was recorded, and it was noted that the UDCs who had been promoted against the extended 2003 Select List of Assistants, consequent upon restructuring of CSS, have actually vacated their lien against the posts of UDCs only in 2009. This opinion of 20.03.2011 was, however, considered by another Division within the DoP&T. It is apparent from the noting dated 01.11.2011 that the Establishment-D Division of DoP&T had opined that the proposal to treat all the vacancies that had occurred in the UDC grade as vacancies for the year 2009 would not be as per the provisions of Statutory Recruitment Rules, the wisdom of which advice appears to be questionable.
86. The Under Secretary (CS-II) thereafter very rightly flagged his reservation, and introduced a rider in his noting dated 02.12.2011 that even if the resultant vacancies have to be taken to have occurred in the grade of UDCs against the Select List for the year 2003, 75% of them, i.e. 1613 slots, should be filled up by seniority quota (SQ), and the remaining 538 vacancies should be filled up by LDCE qualified candidates, in the prescribed ratio of 3:1, and those who were eligible for seniority quota promotions with 8 years approved service as on 01.07.2003 should be considered for promotion against the SQ Select List 2003, which should be extended, and then he also suggested the modalities for adjusting those candidates accordingly. The Secretary, DoP&T, approved the proposal on 03.12.2011, but still wanted to discuss this matter. After those discussions, a further modified proposal was put up on 21.12.2011, and approved by the Honble MOS (PP) on 30.12.2011, which is under challenge. The proposal as approved has been summarized in the DoP&T file on 09.01.2012 as follows:
2. The following proposal has since been approved by MOS (PP):
i) The vacancies caused in the grade of UDC as a result of promotion of 2151 UDCs to the grade of Assistance consequent upon cadre restructuring of CSS will be filled up against the Select List year 2003.
(ii) As per the extant RR in 2003, the vacancies will be filled up by 75% through Seniority Quota and 25% through LDCE quota. As such out of 2151 vacancies in the grade of UDC in the extended Select List of 2003, a total number of 1613 slots will be filled up by SQ candidates and 538 by LDCE qualified candidates in the proportion of 3:1.
(iii) The seniority quota vacancies will be filled up by eligible LDCs who have complete 8 years of approved service as on 1.7.2003.
(iv) AS for LDCE slots, candidates who had qualified the LDCE 2003 and their ACR dossiers were called for by SCC but could not be recommended for appointment due to non-availability of vacancies in the SL year 2003 under LDCE mode, will be first accommodated against the available vacancies and for remaining slots, SCC will be requested to conduct Special LDCE for the Select List year 2003 (extended) and all the LDCs who had rendered 5 years of Service as on 1.7.2003 would be eligible to appear in the examination.
3. As per the 2(iv) above candidates who had qualified the LDCE 2003 and their ACR dossiers were called for by SSC but could not be recommended for appointment due to non-availability of vacancies have to be considered first, before requesting SSC to conduct the examination for the year 2003. In this connection SSC was requested vide O.M.dated 12th September, 2011 to intimate the details of the candidates who had qualified the 2003 examination and who could not consider due to non-availability of vacancies. However, no reply has been received from SSC. Further we may also request SSC to conduct a special examination for filling up the LDCE slot as mentioned 2 (ii). In view of the above a draft D.O. letter from JS (E) to Chairman SSC is placed opposite for approval please.
87. It is seen that in taking this decision, the official respondents failed to appreciate that the whole issue concerns two different services altogether, the Central Secretariat Clerical Service (CSCS, in short) consisting of the cadres of LDCs and UDCs, and the Central Secretariat Service (CSS, in short), consisting of the cadres of Assistants/Section Officers/Under Secretaries/Deputy Secretaries/Directors and above. In none of notings on DoP&T files, the pleadings in this case, or in the case-law cited by the learned counsels of the official respondents as well as the Intervenor Private Respondents, it has been held by any Court or Tribunal that the juniority and seniority in a given lower Service would be carried over to another higher service, even when the movement is from one organized Service (CSCS) to another entirely different organized service (CSS).
88. CSS is a different organized service altogether. The appointment from UDCs, the highest pay scale of CSCS, to the posts of Assistants, the entry level lowest cadre in the CSS, is not automatic, and also the UDCs of CSCS do not constitute the only feeder Cadre or source of recruitment for the CSS Assistants cadre. On incumbents moving from the CSCS Service to CSS Service, their seniority of CSCS in the grade of UDCs has no relevance for the purpose of determining seniority in the grade of Assistants of CSS, since there are more than one modes of entry into the Assistants grade of CSS, and a number of factors get involved even in the process of induction of UDCs of CSCS into Assistants cadre of CSS.
89. Therefore, an appointment of a person even on an ad-hoc basis in the entry level Assistants grade of CSS, does not give rise to any vested right in favour of another person, who is still in the CSCS, who has till that date not yet entered the CSS Assistants cadre, and still holds an appointment in substantive capacity in another service, CSCS. Therefore, whether the appointment of a person in the cadre of CSS Assistants cadre is on ad-hoc basis or regular basis, it can have no effect whatsoever on the promotional channels of any other persons who are still in the LDCs or UDCs grades of the CSCS cadre. The Articles 14 and 16 of the Constitution of India do not provide for equality in the negative terms. Equality can only be among equals, and pay parity can also only be sought against a person who is equal.
90. In none of the cases cited by all the three sides, a case of parity being provided when a person had left one organized service, and moved to another service, has been considered by either any Bench of this Tribunal, or by the Honble High Court of Delhi, or any other High Court, or by the Honble Apex Court. But the view being relied upon here has been expressed by a concurrent Bench of this Principal Bench of this Tribunal, in its judgment dated 10.05.2012 in OA No.3984/2011, Rajender Mohan Saxena & Ors. Versus Union of India & Ors., in which one of us was a Member of that Bench.
91. Thus, while the restructuring of the CSS cadres in various grades, by increasing or decreasing the number of sanctioned posts in various grades of CSS, can have a fall out legal effect and implication on the other lower cadres within the CSS, it cannot have any legal effect on another Organized Service, CSCS, even though it may have led to an administrative eventuality of sudden vacation of a large number of posts in the UDCs grade of CSCS cadre. The two services being separate Organized Services altogether, while the creation of X number of extra posts of Deputy Secretaries can lead to X number of vacancies in the cadre of Under Secretaries, creation of Y number of new posts of Under Secretaries can lead to the creation of Y number of vacancies of Section Officers, and creation of Z number of posts of Section Officers can lead to Z number of posts being vacated in the Assistants cadre of CSS, it is held that no legal implication or effect can flow from a re-organization of the CSS cadres, to another Organized Service, i.e., CSCS.
92. Therefore, it is held that only an administrative effect or eventuality of the sudden vacation of a number of UDCs posts would follow, but no consequential legal implication can be said to flow from/result from the reorganization or restructuring of one Organized Service to another Organized Service. Therefore, it is further held that the re-organization of CSS cadre, which was given effect to in the year 2009, even though it may have been deemed to have been given effect to (for the purposes of the decision of the Cabinet regarding restructuring of the CSS) in the year 2003, cannot result in any follow up legal implication upon the structure and constitution in that year 2003 of the other Organized Service of CSCS, in which the vacancies of LDCs and UDCs have been in the meanwhile continued to be notified all along, from year to year, to the SSC, and the concerned identified UDCs posts have been continued to be filled up 25% through the LDCE, and 75% through seniority cum-merit (SQ) based promotions, year after year from 2004 to 2009. This answers all the contentions raised in this connection by all the three sides in the instant case.
93. We have to now deal with the legal contentions raised by the applicants, which have been summarized in para 34 above. As was noted therein, the first issue raised was settled with mutual consent, when the Impleadment application of the Private Respondents was allowed.
94. The second issue raised by the applicants in their reply to MA for impleadment was that the persons selected/appointed in the UDC grade in the earlier years have to be held to be senior to those selected/appointed during any later year. This aspect does not require much detailed scrutiny by us at this stage, as the general principles in regard to seniority in such cases have been very well laid down and settled in law. A person, who is appointed in an earlier year than a person appointed in a later year will obviously be senior than the later appointee. But, in the case of a person, who is placed in the Select List in an earlier year, but who was some how not able to join, or refused to join in the promotional post, for any reasons acceptable to the Appointing Authority, forgoes his right to be included as a person selected in that year, and later, if during a subsequent year, he is again selected and placed in the Select List, for being so appointed on promotion, he would obviously take the seniority from the date of his joining, and would be below the junior most person in the new cadre which he has joined.
95. The third issue raised by the applicants was that the actions of the official respondents cannot be such that they promote incompetent and inefficient officials. This contention is not acceptable, when the Rules provide for the automatic eligibility for promotion on the basis of seniority of 8 years, and an ACR/APAR Benchmark of Good, for the purpose of promotions from LDCs grade to UDCs grade against the 75% promotion by seniority-cum-merit (SQ) quota. Just because such candidates may not have appeared at the LDCE Examination conducted after their having completed 5 years, or 6 years or 7 years of their regular service, or may have appeared at such Examination (s), but had not been able to compete and get selected at the LDCE, for speeded/accelerated promotion under the LDCE 25% quota, does not mean that they can now be called or categorized as incompetent, and, therefore, they cannot be denied promotion against the 75% SQ quota as long as they fulfill the two norms prescribed, as the essential criteria, of 8 years of seniority, and at least Good Benchmark rating in respect of all those 8 years of their service. This also answers the issue raised by the Intervenor Private Respondents as described in para 22/above.
96. The next contention of the applicants that no recommendations of any Committee can override the statutory Service Rules, has already been accepted in sub-para (4) of para 34/above, as no administrative/executive instructions or decisions, including decisions of a Committee, though accepted by the Cabinet, can over-rule any statutory Service Rules.
97. The 5th contention of the applicants is that the creation of additional posts in the CSS Cadres in the grades of S.O. and above cannot be allowed to have an automatic cascading effect, in the form of automatic creation of additional posts in CSCS, which is a separate Service Cadre. We find merit in this submission, as already held in para 92/above. This issue is the crux of the problem here. In the instant case, since as has been pointed out even in the DoP&T notings produced as Annexures by the applicants, consequent upon the promotion of 2151 UDCs as Assistants antedated from 2003, when the DoP&T had thereafter searched for resultant vacancies of UDCs, they could find only 1707 vacancies of UDCs available at their hand for being fulfilled, as per the file noting at Page-16 dated 18.05.2011. This appears to have happened only because many of these 2151 UDCs were already promoted tentatively, and were holding ad-hoc appointments as Assistants, and some of them were even occupying the vacant lien slots of Assistants, and were as a result, no longer being counted against their own substantive lien slots in the cadre of UDCs. It is amply clear that while on the one hand a person cannot hold a lien in two places against two different posts, in such a situation it has so happened that while retaining their own lien in their substantive cadre of UDCs, many of those UDCs were holding posts in the Assistants Grade on an ad-hoc basis, in the CSS, without having any lien to hold those posts.
98. CSS and CSCS are two different services altogether. The CSCS has two grades, the LDCs and the UDCs, and on the other hand, CSS has the entry grade of Assistants, followed by Section Officer, Desk Officer, Under Secretary, Dy. Secretary and Director etc. The two different services cannot have a link in the nature of an umbilical cord, and changes in the structuring, and vacancies against the sanctioned posts in the CSS cannot have any effect whatsoever on an automatic basis in another service, namely CSCS, which has its own cadres of LDCs and UDCs. While it is true that after having held the post of UDC in the CSCS cadre, the only promotional avenue available to the UDCs of CSCS is to the level of Assistants in the CSS, but at the same time, as already noted above, it is also true that such promotions were not the only methods of recruitment to the cadre of Assistants, which had two sources of recruitment till the submission of the Report of the Committee on Cadre Restructuring of the CSS submitted in February, 2002, which was 50% by Direct Recruitment through an All India Competitive Examination conducted by the Staff Selection Commission, and 50% by promotion of UDCs of CSCS. The Committee had in its report submitted in February, 2002, recommended for this percentage to be changed and in Para 3.4.11 of its recommendations, the Committee had recommended that as a one time exception, vacancies in all the additional posts of Assistants arising as a result of cadre restructuring of CSS may be filled up only by promotion of eligible UDCs, but that in future, the vacancies in Assistants grade arising due to normal wastage/attrition should be filled up to the extent of 75% through direct recruitment of graduates possessing computer proficiency; 15% by promotion of UDCs, through seniority-cum-merit basis, and 10% through LDCE conducted for UDCs of CSS. It is seen that while taking a decision on this issue, the Union Cabinet had decided as follows:-
Sub: Cadre Restructure of Central Secretariat Service (CSS).
The Government had set up a Committee on Cadre Restructuring of Central Secretariat Service (CSS) in February, 2001. The Committee submitted its report in February, 2002. The Report of the Committee has been considered by the Government and inter alia following decisions, have been taken:
(i) A new Senior Selection Grade (Rs. 14300-400-18300) to be designated as Director is introduced in CSS, with the cadre strength of 110.
(ii) The cadre strength of CSS in respect of other grades would be as under:
(a)Selection Grade(Deputy Secretary) 330 (b) Grade I (Under Secretary) 1400 (c) Section Officer 3000 (d) Assistant 4904
(iii) There will be no further in situ upgradations in any of the grades of CSS and all promotions will be vacancy based.
(iv) Further Cadre Review of CSS would be undertaken after three years to remove distortions, if any, due to downsizing of the Government.
2. The restructured strength of CSS in various grades, as above will be effective from 03.10.2003.
3. Necessary notification relating to amendments to the CSS Rules will be issued separately.
99. But it is further seen that while taking the decision relating to the declaration of 2151 vacancies of UDCs to be filled up antedated in the year 2003, which is the issue in the present case, the official respondents appear to have lost sight of, or forgotten, both the recommendations of the 2002 Report of the Committee on Cadre Restructuring of the CSS, as well as the Cabinet decision on that, and have taken a decision different than both of them. In continuation of the Govt. Order dated 28.10.203 cited above delineating the decision of the Cabinet, the change in the mode of appointment/recruitment in the Assistants Grade of CSS had also been separately notified by the Govt. through its order dated 06.01.2004, which had been impugned in the OA No.1061/2004 Central Secretariat Non-Gazetted Employees Union & Ors. vs. Union of India, which was decided on 15.09.2004, and has been mentioned in the pleadings in the present O.A. also. It is seen that that order dated 06.01.2004 had stated as follows:-
Sub: Change in the mode of appointment/recruitment in the Assistant Grade of Central Secretariat Service (CSS).
The report of the Committee on Cadre Restructuring of Central Secretariat Service (CSS) has been considered by the Government and it has, inter alia, been decided to change the mode of recruitment for the post of Assistant by way of 75% through direct recruitment of graduates possessing Computer proficiency, 15% by promotion of UDCs and 10% through LDCE for UDCs. As a one time exception, resultant vacancies of Assistants arising from the cadre restructuring of CSS will be filled up from UDCs by way of 50% through LDCE and 50% by seniority. Pending/current and future Select Lists will be prepared as under:-
(A) For the Select List of 2004 onwards
(a) Through direct recruitment of graduates Possessing computer proficiency on the Basis of All India Graduate level examination to be conducted by the Staff Selection Commission (SSC) 75%
(b) By promotion of UDCs of CSCS (on the basis of seniority) 15% (c ) Through Limited Departmental Competitive Examination (LDCE) For UDCs of CSCS to be conducted by The SSC 10% (B) For the Select List of 2003
(i) Normal vacancies
(a) By promotion of UDCs of CSCS (on the basis of seniority) 50%
(b) Through direct recruitment of All India Graduate level Exam to be conducted by the SSC 50%
(ii) Other than normal vacancies (as a result of Restructuring of CSS)
(a) By promotion of UDCs of CSCS (on the basis of seniority) 50% (b ) Through LDCE for UDCs of CSCS to be conducted by the SSC 50% (C ) For the Select List of 2001 and 2002
(i) By promotion of UDCs of CSCS (on the basis of Seniority) 50%
(ii) Through DR on the basis of All India Graduate level Examination of SSC 50% For the Select List 2001, zone has already been fixed and a Central Panel will be prepared on the basis of information to be furnished by the cadres. The successful candidates on the basis of All India Graduate level examination, 2001 have since been nominated.
3. It has also been declared that since a specific of 4904 has been fixed in the grade of Assistant as a result of restructuring of CSS, vacancies falling in the category of direct recruitment for the SLs 2002 onwards will be exempted from the scrutiny by the Screening Committee as laid down in this Departments O.M. No.2/8/2001 PIC dated 16.5.2001.
4. Necessary notifications relating to amendments to the CSS rules will be issued separately.
100. It may also be added here that while the said Committee had been appointed for the cadre restructuring of the CSS, no separate Committee has ever been appointed by the Government to study and to make any recommendations regarding the cadre restructuring of the CSCS, which only has two cadres of LDCs and UDCs. In fact, from a reading of the February, 2002, Report of the Committee for the of Restructuring of the CSS, it appears that it had considered the restructuring of both the CSS, and also of the CSCS in passing, at the same time, though without devoting sufficient attention to all the issues facing the CSCS. In spite of that, the Para 3.4.11 of that Committees Report had commented as follows:-
The Committee recommends that Direct Recruitment of LDCs may be stopped with immediate effect and all posts of LDCs, presently filled by Direct Recruitment, are abolished as and when these fall vacant. Further, 90% of the posts in the grade of UDC would also wither away in future as and when these fall vacant, retaining the remaining 10% for promotion of the residual LDC cadre.
101. But even though the Committee constituted by the Union of India for looking into the restructuring of CSS had commented upon the future service conditions of CSCS also, it is not sure as to whether the view points of all the stakeholders in the CSCS were obtained and considered by the Committee before giving its report. In any case, its recommendation at Para 3.4.11, as cited above, was never implemented. The Committee had also not considered the legal aspect that a restructuring of the CSS can have no automatic resultant effect on the structuring of the CSCS, and the position of posts and vacancies therein, and that there cannot be a cascading effect, as if, through an umbilical cord, whatever happens in the restructuring of CSS cadre, will automatically have the same effect in the CSCS cadre.
102. Therefore, it is held that the presumption wrongly raised, that promotion of 2151 UDCs, many of whom had long since been working on ad-hoc basis as Assistants, and whose names had in-effect been stopped being counted against the strength of UDCs by many Cadre Controlling Authorities of the CSCS, will necessarily have an effect of creating the exactly equal number of 2151 UDCs vacancies, is not acceptable, and as has been rightly brought out in the DoP&T file notings itself, only 1707 resultant vacancies of UDCs have resulted for being filled up, and these vacancies too have occurred only in 2009, which now require to be filled up. Therefore, the contention of the applicants that at least some (444, i.e., 2151-1707=444) vacancies of UDCs had already been consumed while declaring the yearly Select Lists between the years 2004 to 2009 merits consideration and weightage. This discussion also answers the issue raised by the Intervenor Private Respondents, which was discussed at para 23 and 49/above, and by the applicants, discussed at para 35 and 36/above.
103. The 6th contention of the applicants in their reply to the MA for impleadment was that as per the provisions of Regulation Clause-3 of the Third Schedule under Rule-11(3) of the CSCS Rules, the officials included in the Select List have to rank for the purpose of seniority in the very same order in which they are included in the Select List. This contention of the applicants has to be upheld by us, in view of the judgment in a parallel case in Dr. Satyabrata Dutta Choudhry v. State of Assam : AIR 1976 SC 487, in which, in the case of appointments on regularization in one batch, it was held by the Honble Apex Court that the inter se seniority has to be determined according to the merit list of the State Public Service Commission.
104. The 7th point raised by the applicants was that under Regulation 4 of the Third Schedule of the CSCS Rules, an official included in the Select List for a particular grade shall continue to be included in such Select List, till he is substantively appointed to that grade. However, this has to be understood with the rider that if the official himself delays his joining, on account of any fault or request of his own, and, in between through either of the two processes of LDCE Select List of the next year for 25% posts, or 75% SQ quota promotions on the basis of seniority-cum-merit, if a junior person happens to join the promotional grade of UDCs, that official, included in the Select List for a particular previous year, will lose his advantage, and would get the seniority only below the last person, who has already joined in the cadre of UDCs. In a parallel case, in the case of Registrar of High Court of Madhya Pradesh and another v. B.A. Nigam: AIR 1973 SC 1271, the Honble Apex Court had held to the effect that a person cannot claim seniority over persons, who have already been promoted earlier, prior to him. This also answers the 8th issue raised by the applicants that all the officials included in a particular years Select List of UDCs, after their appointment on substantive basis in the UDC grade, automatically become senior to all those officials who may be so selected and appointed at any later date, through a later Select List.
105. The 9th submission of the applicants was that the appointment to UDCs grade on the basis of mere seniority in the LDC grade, without inclusion in the Select List of UDCs on the basis of statutory provisions contained in the Third Schedule of the CSCS Rules, was not possible. It may be stated here that this is a case of a single source of recruitment of UDCs, though two methods have been provided for such promotions, one is a non-selection method, based only upon 8 years of seniority-cum-merit, with merit as reflected by ACR/APAR Benchmark of Good, and another by way of an accelerated promotion through a selection through LDCE, and in such a scenario, any LDC who does not appear at, and succeed in the LDCE, after completing 5, 6 or 7 years of his service, would automatically become eligible for promotion through non-selection basis, against the 75% SQ quota, on the basis of 8 years seniority-cum-merit, and the ACR/APAR Benchmark of Good. The issue raised by the applicants is, therefore, answered with these observations. This also answers the issue raised by the Intervenor Private Respondents as discussed in para 24/above.
106. The 10th issue raised by the applicants was that the existence of the LDCE Select Lists of the Year 2004 and onwards, and the Combined Seniority List notified thereafter, cannot now be denied by the Official Respondents, or the Intervenor, Private Respondents, and any such denial would be a violation of the Third Schedule of the CSCS Rules, since the UDC vacancies, which are now proposed to be filled up by the official respondents with retrospective effect from 2003, did not actually exist then, and were not actually available for being filled up when the Select List of UDCs for the year 2003 was prepared. This aspect has to be seen in the light of the observations of the Honble Apex Court in Ashok Gulati v. B.S. Jain : AIR 1987 SC 424: 1987 (1) JT 92, in which it has been held by the Honble Apex Court that the seniority of a person appointed must be reckoned from the date he becomes a member of the service, and the date of continuous officiation in a higher post, from which the seniority is to be reckoned, may be determined as laid down by the rules or instructions (a) on the basis of the date of appointment; (b) on the basis of confirmation; (c) on the basis of regulations of service; (d) on the basis of length of service; or (e) on any other reasonable basis.
107. Here, in the instant case, those persons who had joined as UDCs on the basis of their selection and passing of the LDCE conducted by the SSC, and were found to be qualified for being placed in the Select Lists for the years 2004, or 2005, or 2006, or 2007, or 2008, would necessarily be entitled to claim seniority as a LDCE selectee from the date they joined as a UDC, and anybody, who comes into that UDCs grade in the CSCS cadre, after the actual date of their substantive appointment as UDCs, would have to necessarily rank junior to them as UDCs. The promotions of 2151 UDCs as Assistants may have been antedated by the Official Respondents for the year 2003 through the Rules notified in 2009, but even these 2151 Assistants cannot claim seniority over those persons, who were recruited directly as Assistants prior to the date of 27.02.2009, the date of Notification of the 2009 Rules. Such being the case, it is only on a notional or fictional basis that it can be said that the 2151 vacancies of UDCs had got created in the year 2003, when actually the UDCs concerned had substantively vacated their lien slots only in the year 2009, as on 14.07.2009, the date of issuance of their orders of promotions under the CSS Rules, 2009. This also answers the issue raised by the Intervenor Private Respondents which was discussed in para 26/above.
108. The 11th point raised by the applicants was that in the interregnum years, the official respondent-DoP&T had already assured and clarified to all the cadre units of CSCS that all those UDCs, who had been promoted on an ad-hoc basis to the grade of Assistants during the years 2004 to 2007, on account of cadre restructuring of CSS ordered in 2003, would not be reverted back ever, and, it was only on the basis of this assurance that even without those UDCs, promoted on Ad-hoc basis as Assistants, having substantively vacated their lien slots, many of the Cadre Controlling Units had reported those lien slots of UDCs as vacant, and they were taken into account as clear vacancies of UDCs, and were also taken into consideration while preparing the Select Lists of the UDCs grade for the respective years from 2004 onwards. But from the DoP&T file notings, it is apparent that this incorrect exercise was done by only some cadre units, and not all of the cadre units of CSCS, and that is the reason that only 444 such non-vacant lien slots of UDCs were notified for the purpose of promotions as UDCs, which has now resulted in 2151 promotions of UDCs to Assistants grade resulting in only 1707 resultant clear vacancies of UDCs. This also answers the issue raised by the Intervenor Private Respondents which was discussed in para 25/above.
109. In any case, during the lengthy arguments heard in this case over two days, the learned counsels of all the three sides, the applicants, the official respondents and the Intervenor Private Respondents, were repeatedly asked by the Bench to produce the basis for the disputed claim of 2151 vacancies in UDCs cadre having been created, due to promotion of 2151 UDCs as Assistants, but none of the figures in any of the tables produced by any of the parties totalled up to 2151, which only goes to prove the point made by the DoP&T officials in their file notings dated 01.03.2011 on pages 12 to 13, dated 17.03.2011 on page-14, and dated 18.05.2011 on pages 15 to 17 of the Note Sheets filed before us, as well as in the comprehensive Self Contained Note prepared by the Dy. Secretary CS-II on 13.06.2011 on pages 18 to 20 of the note sheets, in which in Para 1.4 of Page-18, the Dy. Secretary himself had also admitted that based upon the information as furnished by the Cadre Units, it was found that only 1707 resultant vacancies have occurred in the grade of UDCs by virtue of the antedated promotions as Assistants granted w.e.f. 2003 to 2151 UDCs in July 2009. This discussion also answers the 12th issue raised by the applicants in their reply to the impleadment application.
110. The 13th issue that the Intervenor Private Respondents have not had to wait for promotion for more than 21 years as stated, since they have actually been promoted only after 10 to 13 years, does not require any comments from us, since they were as it is eligible for being promoted as UDCs after completing 8 years of satisfactory qualifying service, with the Benchmark ACR/APAR of Good.
111. The 14th point raised by the applicants was that the claimed 2151 vacancies cannot be said to arise in 2003, as vacancies in the lower grade can occur only when the persons in that grade not only get included in the Select List for the higher grade, but also actually vacate their occupied lien in the lower grade, after their substantive promotions, and, therefore, vacancies can only occur with prospective effect, and not with retrospective effect, as has been sought to be established by the official respondents as well as the Intervenor Private Respondents. The relationship between posts and vacancies had been examined by the Honble Apex Court in the context of reservation roster in the case of R.K. Sabharwal and Others vs. State of Punjab and Others: (1995) 2 SCC 745, in para-6 of which judgment, the Honble Apex Court had distinguished the terms posts and vacancies as follows:-
6. The expressions posts and vacancies, often used in the executive instructions providing for reservations, are rather problematical. The word post means an appointment, job, office or employment. A position to which a person is appointed. Vacancy means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a post in existence to enable the vacancy to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of vacancy has no relevance in operating the percentage of reservation.
112. On the basis of the above distinction as laid down by the Honble Apex Court, a concurrent Bench of this Tribunal, including one of us, had on 10.05.2012 in OA No.3984/2011 in Rajender Mohan Saxena & Ors. Versus Union of India & Ors. held as follows :-
38. From the Apex Court judgment in the R.K. Sabharwal case (supra), it can be stated by further extrapolating that a Cadre consists of a sanctioned strength of posts, which would consist of vacant or occupied liens. In the case of a vacant lien, it would amount to a vacancy. In the case of an occupied lien, it amounts to a filled-up post. Lien slots are what gets vacated, and need to be filled up for fulfilling the sanctioned strength of the Cadre.
39. Across the Board, in all the cadres of the Union of India, Public Sector Undertakings, Banks and Financial Institutions, the system so far followed is that the vacant liens available against the sanctioned cadre strength posts are identified at the beginning of the year, and then those vacant lien slots are notified as vacancies of posts, for being filled up by direct recruitments and promotions in the prescribed quota. If, at the beginning of the year, 10 vacant liens are available in the sanctioned cadre strength of ISS Grade-IV, six slots of vacant liens would need to be filled up by direct recruitment, and four slots of vacant liens would be required to be filled up by according promotions from the eligible feeder cadres. This, to our mind, is the correct interpretation of the settled Law, as well as the Rules.
113. It is, therefore, clear that in the instant case also it has to be held by us that a vacancy can be said to have occurred only when the lien slots concerned actually got vacated, by substantive promotions being granted to the holders or occupiers of those lien slots, which, in the instant case, happened only on 14.07.2009, and not earlier.
114. In the issue No.15, it has been submitted by the applicants that the vacancies which have actually become available in the UDCs grade only during the year 2009, should be filled up only by the Select List Year 2009 UDCs, as per the provisions of CSCS Rules, 1962, and not against the ante-dated Select List of 2003, as now proposed. In this connection, the observations of the Honble Apex Court in the case of Govind Dattatray Kelkar and others v. Chief Controller of Imports and Exports and others : AIR 1967 SC 839, may be cited by us as follows:-
12. The relevant law on the subject is well settled and does not require further elucidation. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution, is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promoters are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the other in the matter of promotions, and, in that event a court may hold that there is no reasonable nexus between the differences and the recruitment. In short, whether there is a reasonable classification or not depends upon the facts of each case and the circumstances obtaining at the time the recruitment is made. Further, when a State makes a classification between two sources of recruitment, unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by placing the necessary material before the court that the said classification is unreasonable and violative of Article 16 of the Constitution: see Banarsidas v. State of Uttar Pradesh, 1956 SCR 357: (AIR 1956 SC 520); All India Station Masters and Assistant Station Masters' Association, Delhi v. General Manager, Central Railways, 1960-2 SCR 311: (AIR 1960 SC 384); and General Manager Southern Railway v. Rangachari, 1962-2 SCR 586: (AIR 1962 SC 36).
115. Here, in this instant case, both the sets of promotees, through the 75% quota on seniority-cum-merit basis, and the 25 % quota on LDCE basis, are from the same source of the lower cadre of LDCs of the CSCS, and it is not a case that there are two sources for recruitment to the posts of UDCs, in which preferential treatment can be granted to one source in relation to the other, based on any inherent difference between the two sources. Here, in this connection, the parallel Rules of the Ministry of Railways, as prescribed in the Indian Railway Establishment Manual 1989 Vol-I may be cited, where the definitions Clause Rule-103 (v) defines Direct Recruitment as follows:-
103. Definitions- For the purpose of these rules, unless there be anything repugnant in the subject or context-
(I to iv) xxxxxxxxxx
(v) Direct recruitment means the recruitment to the Group C service of any person not already in the service of the railways or any person in railway service who may be permitted to apply for appointment subject to possession of requisition qualifications along with outsiders according to the procedure laid down for recruitment.
( Emphasis supplied)
116. In the numerous Recruitment Rules framed by the Railways for their posts at various levels, Limited Departmental Competitive Examination (LDCE) has been prescribed for promotions to a number of posts along with promotions based upon seniority-cum-merit. Here, in the instant case, the CSCS has been divided into different cadres, and for the purpose of determining inter-se seniority and relative seniority among the persons to be promoted, the principles as laid down in Para-320 of the Indian Railway Establishment Manual can be borrowed for the purposes of a comparison, which states as follows:-
320. RELATIVE SENIORITY OF EMPLOYEES IN AN INTERMEDIATE GRADE BELONGING TO DIFFERENT SENIORITY UNITS APPEARING FOR A SELECTION/NON-SELECTION POST IN HIGHER GRADE.
When a post (selection as well as non-selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning inter-se-seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non-fortuitous service should be taken into account for this purpose.
Note:- Non-fortuitous service means the service rendered after the date of regular promotion after due process.
(Emphasis supplied)
117. It is, therefore, clear that in the instant case also, the service rendered by the applicants after the date of their regular promotion, after the due process of their having been declared successful at the respective years LDCE Examinations from 2004 to 2009, has to be counted as non-fortuitous service rendered by them as UDCs, and anybody who is now selected as a UDC in the year 2012, whether on the basis of an LDCE conducted for 25% of the declared 2151 posts, or through SQ quota for 75% of the said declared 2151 posts, would never be able to surmount and overcome the hurdle of the non-fortuitous service as U.D.Cs already put in by the applicants, and other similarly placed persons, and can never become their seniors as UDCs. This also answers the issue raised by the Intervenor Private Respondents, as discussed at para 27/above.
118. Therefore, to further strengthen the conclusion arrived at above at para 92/ante, it is held that the lien slots in the cadre of UDCs in the CSCS, which became available for being filled up on 14.07.2009, could have only been filled up from that date in July, 2009, onwards, against the Select List year 2009, under the provisions of the CSCS Rules, and not with any antedated retrospective seniority, which is not allowed in the relevant Rules, and for promotions to be done in the year 2012 against vacant lien slots, which had arisen in July, 2009, retrospective seniority cannot at all be allowed from the year 2003 onwards, as has been presently proposed to be done by the official respondents, which is struck down as illegal, arbitrary, de hors the Statutory Rules, and discriminatory also. This also answers the issue raised by the applicants as discussed at para 38/above.
119. In response to the 16th issue raised by the applicants that once the LDCE for selection of UDCs for the Select List Years 2004 to 2009 had already been conducted regularly by the SSC every year, and the results of such LDCE Examinations had also already been declared, and the successful candidates had even joined as UDCs, another LDCE cannot be conducted now for the Select List Year 2003, as has now been proposed by the Official Respondents. This issue has to be held in favour of the applicants, as whatever may be the impact of the 14th July, 2009, Notification in respect of the CSS service, resulting in the substantive promotion of 2151 UDCs as Assistants, it cannot now be held to have created vacant lien slots of UDCs in 2003, with antedated effect, in the other parallel service of CSCS, in respect of which no parallel Notification has been issued for antedating of the occurrence of such vacancies, as has already been commented upon earlier also. CSS and CSCS being two entirely different services, the orders issued in respect of CSS in July, 2009, cannot ipso facto affect in any manner the two cadres of LDCs and UDCs in the CSCS, without any separate Notification being issued in respect of CSCS also, under the relevant CSCS Rules, under the residuary powers of the Union of India in this regard under the Constitution of India.
120. In response to the 17th issue raised by the applicants that the seniority of UDCs is determined year after year among all the UDCs selected through LDCE, and those promoted on the basis of seniority-cum-merit, in the ratio of 1:3, and the date of completion of the process of selection through LDCE has always in the past played a crucial role in determining the seniority of all those UDCs who came through LDCE route, we tend to agree with the submissions of the applicants in this regard, and any change in the Recruitment or other Rules can only operate prospectively, to govern the seniority and future promotions of all the persons in the concerned service, which change the Government has the power to lay down by an executive order, if not provided through the statutory rules, as held by the Honble Apex Court in Wing Commander J. Kumar v. Union of India: 1982 (1) SLR 715 : 1982 (2) SCC 116 : 1982 (3) SCR 453 : 1982 (1) SLJ 452 : AIR 1982 SC 1064, and Union of India v. H.R. Patnakar, 1984 (3) SLR 136 : 1984 Supp SCC 359 : 1985 (1) SCR 400 : AIR 1984 SC 1587 : 1984 (2) SLJ 358.
121. The 18th issue raised by the applicants has already been answered in the discussion above, that an LDCE examination conducted in the year 2012, under CSCS (UDG LDCE) Regulations, 1966, cannot fill up any vacancy with effect from 2003, on an antedated basis, under the Rules.
122. This also answers the 19th issue raised by the applicants that LDCE for promotions to UDCs has only to be conducted for the purpose of preparation of a Select List of prospective UDCs, and a LDCE cannot now be conducted in 2012 for preparing a retrospective Select List of UDCs for the year 2003.
123. However, the 20th objection taken by the applicants, that the official respondents cannot make new rules for the conduct of LDCE for UDCs with retrospective effect, would be subject to the observations of the Honble Apex Court in the case of Wing Comander J. Kumar v. Union of India (supra), and Union of India v. H.R. Patanakar (supra).
124. The issue of DoP&T Circulars OM No.35014/2/90-Estt(D) dated 07.02.1986, OM No. 22011/7/86-Estt.(D) dated 03.07.1986 and the Clarification of the term availability through OM No.20011/1/2006-Estt.(D) dated 03.03.2008 also needs to be commented upon by us. It is clear from the contents of these three DOP&T Circulars that all these three have been issued only in the context of determination of relative seniority of Direct Recruits and Promotees, and they are not at all applicable in the instant case, which concerns only the promotions from LDCs grade to UDCs grade through two separate routes, of 75% promotions being based upon 8 years seniority-cum-merit criteria, and 25% promotions being based upon the criteria of minimum 5 years qualifying service for appearance at an LDCE for speeded or accelerated promotion. The aspect that under the relevant CSCS (UDGLDCE) Regulations, 1966, the Limited Departmental Examination does not concern direct recruitment, and only concerns promotions, is also clear from the contents of the DoP&Ts OM No. 28011/6/76-Estt. Dated 24-06-1978, in which LDCE has been rightly categorized to be only for the purpose of processes of selection for promotion, and not for direct recruitment. This also answers the issue raised by the Intervenor Private Respondents which was discussed in para 28/above.
125. One of the issues to be decided by us is as to whether the promotion from the grade of LDCs to UDCs, through passing of LDCE conducted by the SSC, is a direct recruitment or not. The applicants have taken a stand that the 25% quota promotions through LDCE are direct recruitments, while the private respondents have taken an exactly opposite stand that these are also promotions, though with relaxed eligibility criteria of only 5 years of eligible service having been prescribed for taking the LDCE Examination, instead of the 8 years of regular qualifying service and Good Benchmark ACR/APAR, which are required for the 75% SQ quota seniority-cum-merit based promotions. Unfortunately, the official respondents are also not consistent in their counter reply & submissions regarding the definition of direct recruitments, or categorization of the selectees of LDCE Examination Select List.
126. In the Postal Department of the Union of India, the Gramin Dak Sevaks (GDS, in short) compete in an LDCE, and move into the cadre of Postman. In such cases, since the Gramin Dak Sevaks are only holders of Civil Posts, but not regular Government Servants, in many cases it has been held by this Tribunal, as well as by the higher Courts, that this is a case of direct recruitment. Similarly, when the Postmen appear at an LDCE open only to them, and move into the entirely different clerical cadre of Postal Assistants, even though they are already Government Servants, in those cases also it has been held to be a direct recruitment. At the same time, on the other hand, in the case of many other services, both clerical as well as at the level of Group B, Group C and Group D, only the recruitments from those examinations, which are open to the open market general candidates also, and are not limited only to the departmental candidates (like in the case of LDCE), are called direct recruitments. This is the case even in respect of the CSS, where a certain percentage of posts of Assistants are filled up through direct recruitment from open market, and the remaining percentage of posts are filled up through promotions from amongst UDCs of the CSCS, through the two routes of LDCE and SQ promotions. Similarly, till the acceptance of the Committees Report of 2002 (filed by the Intervenor Private Respondents in this case) and its acceptance by the Union Cabinet, there was a direct recruitment for Section Officers also, when persons who were general candidates from the open market could compete along with any eligible internal candidates of the Assistants level for direct recruitment as Section Officers of CSS, which examination could not have been termed to be in the nature of an LDCE, as appearance at that was not limited only to the Assistants already within the CSS.
127. Therefore, it is clear that whether an examination, even though it may be called an LDCE, leads to or results in a direct recruitment or not, can be decided only by studying the nature of the cadre or group or set of persons from which the persons taking the examination emanate, and also the nature of the cadre into which they are entering after being successful in the examination, whether or not it is called an LDCE. This distinction can only be understood to have been brought about if the movement through the examination concerned, whether it is called an LDCE or not, is from one entirely different Service cadre, to an absolutely new Service cadre, like in the case of the so called LDCE for promotions of GDS to Postmen and an LDCE for promotions of Postmen to the cadre of Postal Assistants, where such recruitees through LDCE can be clearly understood and also classified to be direct recruits.
128. However, in the instant case, the LDCE conducted within the Service cadre of CSCS, for accelerated promotions of LDCs to the higher posts of UDCs, within the same Service CSCS, with reduced level of only 5 years of qualifying service, and elimination of the requirement of the benchmark Good ACRs, which along with 8 years of qualifying service is the criteria for 75% quota seniority-cum-merit based promotions, such promotions from LDCs to UDCs grade on the basis of an LDCE cannot be called to be direct recruitments at all. To this extent, the contention of the applicants is incorrect, and the contention of the Intervenor Private Respondents is correct.
129. The Govt. instructions regarding General Principles for determining seniority of various categories of persons employed in the Central services were laid down by the Office Memoranda dated 22.06.1949, 03.02.1950, 17.04.1951, 04.08.1956, and for the first time consolidated instructions in this regard were issued through the Govt. of India Ministry of Home Affairs OM dated 22.12.1959. Paragraphs 2,3,4,5 & 6 of that OM had laid down the summarized principles as follows, most of which principles still hold good:-
2. Subject to the provision of para 3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the existing orders applicable to their cases and shall en bloc be senior to all others in that grade.
Explanation: For the purpose of these principles (a) persons who are confirmed retrospectively with effect from a date earlier than the issue of these general principles; and (b) persons appointed on probation to a permanent post substantively vacant in a grade prior to the issue of these general principles, shall be considered to be permanent officers of the grade.
3. Subject to the provisions of para 4 below permanent officers of each grade shall be ranked senior to persons who are officiating in that grade.
4. Direct Recruits: Notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection;
Provided that where persons recruited initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit.
5. Promotees: i) The relative seniority of persons promoted to the various grades shall be determined in the order of their selection for such promotion;
Provided that where persons promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion, seniority shall follow the order of confirmation and not the original order of merit.
ii) Where promotions to a grade are made from more than one grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental Promotion Committee shall select persons for promotion from each list up to the prescribed quota and arrange all the candidates selected from the different lists in a consolidated order of merit which will determine the seniority of persons on promotion to the higher grade.
Note: If separate quotas for promotion have not already been prescribed in the relevant recruitment rules, the Ministries/Departments may do so, now, in consultation with the Commission wherever necessary.
Relative seniority of Direct Recruits and Promotees: The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
130. Selection and promotion are two entirely different things in Administrative Law. Promotion can only be in the line of a promotional hierarchy, and not to an ex-cadre post. While selection, by its very definition, is to an ex-cadre post, or to a new post, on which the person concerned could not have claimed movement by way of seniority-cum-merit, or through passage of time in his own existing service. Whenever the candidates face a process of selection, and after passing such process of selection or examination etc., their appointment is in a new/fresh service, like the appointment of GDS as Postmen, or of Postmen as Postal Assistants, such selection cannot be called a promotion, as it was not that they could have come into that new Cadre or service merely in the course of natural progression through passage of time, and attaining seniority within their earlier Cadre or Service. Any advancement in Service career, which is based upon a process of selection, especially undertaken for that purpose, and which results in movement to a different cadre or service altogether, cannot be called as a promotion. A promotion, by its very definition, has to be only to a higher category in the same service or cadre, or through a prescribed avenue or channel of promotion, with or without any essential element of an efficiency bar, or a process of selection, through tests or examinations etc. where any test or examination (like the LDCE in the instant case) only results in speeding up (by three years) the process of promotion as UDCs, with the bar of Good ACR/APAR having been removed, it cannot be called a selection for Direct Recruitment.
131. The meaning of the word promotion was considered by the Honble Apex Court in the case of Director General, Rice Research Institute, Cuttack & anr v Khetra Mohan Das, 1994 (5) SLR 728, and it was held as follows:-
A promotion is different from fitment by way of rationalisation and initial adjustment. Promotion, as is generally understood, means; the appointment of a person of any category or grade of a service or a class of service to a higher category or Grade of such service or class. In C.C. Padmanabhan v. Director of Public Instructions, 1980 (Supp) SCC 668: (AIR 1981 SC 64) this Court observed that "Promotion" as understood in ordinary parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two conditions namely that the new post is in a higher category of the same service or that the new post carries higher grade in the same service or class.
132. Further, in the case of State of Rajasthan v. Fatehchand Soni, (1996) 1 SCC 562, at p.567: 1995 (7) Scale 168: 1995 (9) JT 523: 1996 SCC (L&S) 340: 1996 (1) SLR 1.), the Honble Apex Court findings can be paraphrased and summarized as follows:-
In the literal sense the word promote means to advise to a higher position, grade, or honour. So also promotion means advancement or preferment in honour, dignity, rank, or grade. (See : Websters Comprehensive Dictionary, International Edn., P. 1009) Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression promotion has been understood in the wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.
133. Therefore, it can be held by us here in no uncertain terms that the promotion from the grade of LDCs to UDCs grade, through the accelerated method of passing the LDCE conducted by the SSC, is only a process of promotion, and not a process of selection, having any attributes of a direct recruitment whatsoever. This only leads us to briefly advert to the remaining aspect of seniority, as per the case law decided in this regard.
134. In the case of Pawan Pratap Singh & Ors. vs. Reevan Singh & Ors. , (2011) 3 SCC 2678 the Honble Apex Court has very aptely summarized the principles regarding determination of seniority in such cases & has held as follows:-
30. From the above, the legal position with regard to determination of seniority in service can be summarized as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.
135. In Uttaranchal Forest Rangers Assn. (Direct Recruits) & Ors. v. State of U.P. & Ors., : 2007 (2) SLJ 133 (SC) = (2006) 10 SCC 346, the Honble Apex Court has stated as follows:-
37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely appointed validly in the meantime, as decided by this court in the case of K.C. Joshi & others vs. Union of India, 1992 Suppl (1) SCC 272 held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one, it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship, but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1) of the Constitution.
38. This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. In, State of Bihar & Ors v. Akhouri Sachidananda Nath & Ors, 1991 Suppl. (1) SCC 334, this court observed that, "12. In the instant case, the promotee respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondents 6 to 23 can not be made senior to the respondents 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable."
136. Further, in a case very close to the present case, in State of Uttaranchal & Anr. v. Dinesh Kumar Sharma: 2007 (3) SLJ 242 SC = (2007) 1 SCC 683, the Honble Apex Court had observed as follows:-
28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999.
29-33. xxxxxx 34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in the case of Jagdish Ch. Patnaik & Ors. vs. State of Orissa & Ors. 1998(4) SCC 456.
137. Therefore, as was summed up by the Honble Apex Court in para 42 (9) of the judgment in Pawan Pratap Singh & ors. (supra), the basic or cardinal principle for determination of seniority is that unless provided for in the rules, seniority cannot relate back to a period prior to the date of the incumbents birth in the service/cadre, reiterating the principle (iv) summarized in Para 30 of the judgment, as reproduced above. Bowing down before these express findings of law as enunciated and laid down by the Honble Apex Court, it is obvious that any person, who is now promoted by the Official Respondents in the year 2012 from the Cadre of LDCs to UDCs cadre, by either SQ route for 75% of the vacancies, or through LDCE route for 25% of the identified vacancies in UDCs grade, cannot be assigned seniority from the year 2003, just by calling the persons so promoted in 2012 to belong to an extended seniority list of Select List year 2003 for UDCs, as has been sought to be done by the Official Respondents through their impugned orders, and we hold accordingly. All the other different case laws cited by the three sides involved in this case have no direct relevance to the facts of the instant case, which may be able to persuade us to desist from following the law as laid down by the Honble Apex Court in the above cited cases.
138. Further, there is merit in the arguments of the applicants that settled seniority cannot be unsettled after a long period of time. As per the law laid down by the Honble Apex Court in a catena of judgments, seniority issues can be reopened upto 4 or 5 years after the alleged discrepancy in seniority having occurred. In a case of catena of other cases the Honble Apex Court has held that the issue of seniority once settled should not be normally reopened. In the instant case, even the official respondents themselves have, on a parallel track, recognized the seniority of the applicants, and other similarly placed persons, in the UDCs cadre, already acquired by the incumbents appointed against the Select List Years 2003, 2004 and 2005, through the draft CSL Notification as described above. But, surprisingly, even the official respondents have now turned around, and said in their counter reply affidavit in reply to Para-1 of the O.A. that the CSL was finalized only up to the Select List year 2003, and not up to the Select List 2005 by their Department vide Office Memorandum No. 20/53/2008-CS.II (B) (Pt) dated 16.12.2011 and uploaded on the website of the Department. But, it is common sense that even if the CSL had been finalized only up to the Select List year 2003, the Select List for the very same year of 2003 cannot now be reopened by the official respondents, by adding another 2151 vacancies to that Select List Year, on an ante-dated basis, and by trying to place many persons, who will face the LDCE Examination, or the DPC for SQ, in the year 2012, to be senior to those 2366 persons, who had been in the meanwhile promoted as UDCs, and included in the Select List Years 2004 to 2009, on a regular yearly basis. As had been pointed out above also, same advice had been given by some of the officials within the Respondent DoP&T itself, as is evident from the file notings reproduced in para 79/above. It appears that, that advice was later repeatedly overlooked, and the present decision, which is bad both in law, as well as on facts, has been taken by the official respondents, which is irrational, illogical, de hors the Rules governing CSCS, and also discriminatory against the interests of the applicants .
139. One of the issues raised by the Intervenor Private Respondents is that the applicants of this OA do not, as yet, have an order passed by the official respondents affecting their seniority as on today, and that under Sections 19 & 20 of the Administrative Tribunals Act, 1985, it is necessary that the applicants should lay a challenge to any order passed, or some illegal action or inaction on their demands, on the part of the official respondents. The law in this regard has however been laid down in the following cases, to the effect that a petition can be filed even when ones fundamental rights are threatened, and the applicant need not wait till the actual threat has been carried out, and the adversity has already visited him, and that this Tribunal is competent to give relief even for the redressal of any apprehension that might be arising in the mind of a Govt. servant, provided specific act is committed, and that in such cases the limitation of Section 19(1) of the Administrative Tribunals Act, 1985, would not be valid and the objections raised in this regard are not valid:-
i) D.A.V. College, Bhatinda etc. v. The State of Punjab and others, AIR 1971 SC 1731.
ii) Prem Dass Adiwal v. Union of India & Others, (1994) 27 ATC 368;
iii) Purushottam Dass and Others v. Union of India and Another, (1992) 21 ATC 282;
iv) N.K. Murthy vs. Union of India and Others (1989) 10 ATC 631;
v) Smt. Ila Chowdhary v. Union of India and Others, (1989) 9 ATC 546;
vi) Kuldip Kumar Bamania v. Union of India and Others; (1991) 16 ATC 360;
vii) Ashok Kumar Gupta and Others v. General Manager, Eastern Railways 1986 (2) SLR 497.
140. In the result, it is declared that the official respondents or the Intervenors have failed to establish that the relevant 2151 vacancies of UDCs had actually occurred in the Select List year 2003 only, and had not been at least partially consumed and subsumed in the interregnum in the Select List Years 2004 to 2009, and it is further held that the official respondents cannot be allowed to hold a LDCE in the year 2012 for 25% of such 2151 vacancies of UDCs, and hold a DPC in the year 2012 for 75% of such 2151 vacancies of UDCs, and give retrospective seniority, thereafter, to such persons, over the head of the 2366 persons who have in the meanwhile already acquired a vested right by virtue of their having been placed in the year-wise Select Lists of UDCs for the years 2004 to 2009. No executive instructions can over-ride statutory Regulations, and the proposal, as now approved by the official respondents, does not flow from the statutory Regulations, as prescribed for CSCS, as has been pointed out and explained in detail above.
141. It is further held that the LDCE selectees cannot be categorized as Direct Recruits by any stretch of imagination whatsoever, and no Rules/Regulations/Administrative instructions applicable for determining seniority, or any related issue, as between Direct Recruits and Promotees, can be applied to the cases of LDCE selectees who are promoted, viz-a-viz the seniority quota (SQ) promotees, as both the methods are only different avenues, channels or methods of promotion. In this respect, the stand of the Intervenor-Private Respondents has to be upheld as against the Applicants of this O.A., who have taken a diametrically opposite stand.
142. In the result, the OA is allowed, and the prayers at para 8(i), (ii) & (iii), of the O.A. are granted, in view of the detailed discussion as above, but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.