Allahabad High Court
Subodh Kumar Sharma vs The Union Of India Through Secy. ... on 12 January, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Case :- SERVICE BENCH No. - 55 of 2015 Petitioner :- Subodh Kumar Sharma Respondent :- The Union Of India Through Secy. Ministry Of Mines New Delhi Counsel for Petitioner :- Amit Bose,Abhishek Bose Counsel for Respondent :- A.S.G.,Kaushik Chatterji Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. At the very outset, it is relevant to mention here that this writ petition was dismissed for want of prosecution on 31.7.2017, which was restored to its original number vide order dated 10.11.2017 passed in C.M. Application No. 108393 of 2017.
2. Heard Mr. Amit Bose, learned counsel for petitioner as well as Sri S.B. Pandey, Assistant Solicitor General of India and Sri Kaushik Chatterji, learned counsel for Union Public Service Commission.
3. This writ petition has been instituted assailing judgment and order dated 15.1.2015 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as 'Tribunal') in Original Application No. 482 of 2014 whereby claim petition of the petitioner was dismissed. By means of this Original Application relief has been sought that he should have been considered for promotion on the post/vacancies of Additional Director General (G) accrued in the year 2014-2015 for which cut of date was 1.1.2014 for eligibility for consideration.
4. It is pleaded in the grounds of writ petition that the petitioner was initially appointed on 13.7.1978 on the post of Geologist Junior in the Department of Geological Survey of India. He served for the period of about 14 years on the said post. Thereafter on 4.3.1992 the petitioner was considered and promoted to the post of Geologist Senior. He served for 15 years on this post and he was further promoted on 26.12.2006 on the post of Director (Geology). The petitioner served on this post for about seven years and he was considered for promotion on the post of Deputy Director General (Geology) in the said department.
5. It is further pleaded that vide notification dated 29.9.2010, the President of India has promulgated "Ministry of Mines Central Geological Service Group 'A' Rules, 2010". According to Rule 6 (2) of the aforesaid rules, seventy five percent of the posts in Junior Time Scale has to be filled up by direct recruitment and twenty five percent of the posts have to be filled up by promotion in accordance with the provisions of Schedule II of the aforesaid rules. It is contended that according to Schedule II of the aforesaid rules, the hierarchy of posts in Group 'A' in the Geological Survey of India comprises of Director (Geology), Deputy Director General (Geology) and Additional Director General (Geology).
6. The name of the petitioner was sent for consideration for promotion to the post of Deputy Director General (Geology) to the Union Public Service Commission in accordance with the aforesaid rules. The meeting of the selection committee was scheduled to be held sometime in February 2013. The petitioner was declared selected for the promotion on the post of Deputy Director General (Geology) along with other persons/ employees. The petitioner was informed vide letter dated 2.2.2013 issued by Union Public Service Commission. The petitioner and as many many 53 officers serving as Director (Geology) were promoted to the post of Deputy Director General (Geology) on regular basis. Vide memorandum dated 18.6.2013 issued by Director (Personnel and Administration), it was directed that officers promoted by the said order would take charge within one month on the post of Deputy Director General (Geology) at the respective places of the posting after the date of issue of the aforesaid memorandum, failing which the offer of promotion by means of aforesaid memorandum would be liable to be canceled, without any further intimation.
7. It is further mentioned in the grounds of writ petition that petitioner was posted as Director (Geology) in the Geological Survey of India at Nagpur and he had been posted as Deputy Director General in the Geological Survey of India at Lucknow. The petitioner, after availing the period of one month of joining time granted by the aforesaid memorandum, joined on 16.07.2013 as Deputy Director General and Regional Mission Head-II in the Geological Survey of India at Lucknow.
8. It is further pleaded that the Deputy Director (Personnel and Administration) issued office memorandum dated 18.2.2014 on behalf of Director General, Geological Survey of India, Kolkata and a final gradation list of officers in the grade of Deputy Director General (Geology) serving in the Geological Survey of India was issued and the petitioner was placed at Sl. No. 11 in this gradation list. Other persons, placed at Sl. No. 3, 6, 8, 9, 10, 13, 17 and 19 respectively, have all retired from service. Thus, in fact the name of the petitioner is at Sl. No. 6 of the aforesaid gradation list.
9. It is further contended by the petitioner that according to Schedule-II read with Rule 6 of the Service Rules, the post of Additional Director General (Geology)/Higher Administrative Grade in the Geological Survey of India has to be filled up by promotion from amongst officers holding the post of Deputy Director General (Geology) with three years of regular service in the Grade or officers with twenty-five years of regular service on Group 'A' duty posts in the service with at least one year of regular service in the grade of Deputy Director General (Geology).
10. It is also mentioned that Rule 8 (4) of the aforesaid rules provides that in a case where juniors who had completed the qualifying service for promotion to a particular post under the aforesaid rules were being considered for promotion, senior officers have also to be considered for promotion, the only condition being that the senior officers were not short of the requisite qualifying service by more than half of the qualifying service or two years, whichever was less and they had completed successfully the period of probation prescribed.
11. It is also pleaded that the respondents fixed cut of date 1.1.2014 for considering completion of the qualifying service for further promotion to the post of Additional Director General (Geology). The Ministry of Mines, Government of India, New Delhi submitted a proposal dated 24.4.2014 for relaxation of the period of qualifying service up to a period of six months for the officers serving as Deputy Director General so that they may be eligible for being considered for promotion for the post of Additional Director General (Geology). This proposal was submitted in respect of 24 officers holding the post of Deputy Director General (Geology) including the petitioner.
12. It is further mentioned that out of the said 24 officer, three officers namely, the petitioner, Sarvsri Anjan Kumar Chatterjee and M.B. Beeriah had not completed six months of service as Deputy Director General on 01.01.2014 as they had joined sometime in July, 2013 on the post of Deputy Director General. This proposal was accepted by the Department of Personnel and Training, Government of India, New Delhi in respect of all the officers except, three officers, namely, the petitioner, Anjan Kumar Chatterjee and M.B. Beeriah as they have not completed six months of service as Deputy Director General on 1.1.2014.
13. It is further mentioned that the petitioner joined on 16.7.2013 on the post of Deputy Director General, Sri Anjan Kumar Chatterjee joined on 29.7.2013 and Sri M.B. Beeriah joined on 10.7.2013. Therefore, the petitioner had put in service five months and 16 days on the post of Deputy Director General on 1.1.2014.
14. The petitioner relying upon Rule 8 (4) has contended that finding recorded by the Tribunal is absolutely baseless and misconceived. Inasmuch as on 18.6.2013, when the petitioner was promoted as Deputy Director General by means of order contained in Annexure No. 3, it cannot be said that the petitioner was also aware that he would be considered for promotion as Additional Director General only if he was given relaxation in the residency period of eligibility and that if he puts in less than six months of service as Deputy Director General as on 1.1.2014, he would not be granted the relaxation concerned and he would be excluded from consideration for promotion as Additional Director General.
15. It is further contended that all that petitioner can be said to have known at that time was that a residency period of service of one year as Deputy Director General was necessary for making the petitioner eligible for promotion as Additional Director General and since he had almost nineteen months of service before his retirement on 31.01.2015, he would certainly be considered and may be promoted to the post of Additional Director General.
16. It is further mentioned that the petitioner and all other officers promoted as Deputy Director General by means of order contained in Annexure No. 3 had been granted one month's time for joining on the place of their posting, which clearly meant that even according to the respondents hereto the joining of any officer within the period of one month, since the passing of the aforesaid order, would not act as an impediment for further promotion of any officer as Additional Director General. Learned Tribunal dismissed the original application filed by the petitioner on the ground that the petitioner was fully aware of the provisions regarding relaxation and as such, petitioner could not claim relaxation of 15 days, while considering him for promotion to the post of Additional Director General (Geology). This finding being perverse is liable to be set aside.
17. It is further contended that the respondents hereto cannot be permitted to blow hot and cold at the same time and inasmuch as on the one hand they are permitting the petitioner one month's time to join as Deputy Director General and at the same time, he would be excluded from consideration for promotion as Additional Director General, as he has not completed six months of service as Deputy Director General as on 1.1.2014 since the petitioner had joined on 16.7.2013 and not some time in June 2013. They could not deprive the petitioner for consideration for promotion to the post of Additional Director General simply on the ground that he had not completed six months of service as Deputy Director General on 1.1.2014. The impugned action of the respondents was apparently illegal and violative of Articles 14 and 16 of the Constitution of India. The Tribunal committed manifest error of law in dismissing the original application filed by the petitioner without considering the above aspect of the matter, the impugned judgment and order is rendered erroneous in fact and law both.
18. The petitioner has also relied upon provisions of Rule 13 of the service rules contained in Annexure No. 2 and contended that a bare perusal of the said provision would show that the said provision does not fix any period for which relaxation can be granted. it is left to sole discretion of the Central Government to consider the terms and conditions for relaxation. The only condition being that reasons have to be recorded for granting any relaxation and the Union Public Service Commission has to be consulted before granting any relaxation. In fact the language of Rule 13 of the Service Rules does not put any restrictions, such as Rule 8 (4), on the power of the Central Government to grant relaxation to any class or category of persons from the provisions of the Service Rules concerned.
19. On the above-mentioned grounds, the petitioner has sought following reliefs in the present petition:-
"(i) issue or pass a writ, direction and/or order in the nature of certiorari quashing the impugned judgment and order dated 15.01.2015 passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow in Original Application No. 482 of 2014; Subodh Kumar Sharma vs. Union of India and others as contained in Annexure No. 1 hereto together with the impugned order dated 18.12.2014 passed by the Under Secretary, Union Public Service Commission, New Delhi as contained in Annexure No. 11 thereto, and,
(ii) issue or pass a writ, direction and/or order in the nature of mandamus directing the respondents hereto to immediately consider the applicant for promotion to the post of Additional Director General (Geology), Geological Survey of India after treating him to have completed the residency period of service of six months on the post of Deputy Director General (Geology), Geological Survey of India as on 01.01.2014 either on the basis that his date of regular promotion on the post of Deputy Director General (Geology) is 12.02.2013, the date on which he Union Public Service Commission had recommended the applicant for promotion to the post of Deputy Director General (Geology) or 18.06.2013 the date on which the Memorandum dated 18.06.2013 was issued by the Director (Personnel and Administration) for and on behalf of the Director General (Geological) Survey of India as contained in Annexure No. 2 thereto, or in the alternative,
(iii) issue or pass a writ, direction and/or order in the nature of mandamus directing the respondents hereto to grant relaxation of 15 days' less than six months, the residency period on the post of Deputy Director General (Geology) as on 01.01.2014 in order to make him eligible for promotion to the post of Additional Director General (Geology) similarly as officers junior to him had been granted relaxation to the extent of six months of the period of service as Deputy Director General (Geology) as on 01.01.2014 so that they are eligible for being considered for promotion to the post of Additional Director General (Geology), Geological Survey of India, or,
(iv) Issue or pass a writ, direction, and/or order in the nature of mandamus directing the respondents hereto to immediately consider the petitioner for promotion to the post of Additional Director General (Geology), Geological Survey of India on the basis that he had completed the qualifying service of one year as Deputy Director General (Geology), Geological Survey of India on 16.07.2014 with all consequential benefits of difference of pay between the posts of Deputy Director General (Geology), Geological Survey of India and Additional Director General (Geology), Geological Survey of India and seniority on the post of Additional Director General (Geology), Geological Survey of India, and,
(v) Issue or pass a writ, direction and/or order in the nature of mandamus restraining the respondents hereto from filling up the posts of Additional Director General (Geology), Geological Survey of India, till such time as the applicant is not considered and promoted on the said post."
20. Learned Additional Solicitor General of India has filed counter affidavit on behalf of respondent nos. 1 to 4. It is contended in the counter affidavit that crucial date for examining the eligibility of residency period of the officers was 1st January of every year. Therefore, all the officers in the feeder grade have to be judged for eligibility on the said date. It is pointed out that no one in the feeder grade was eligible for promotion to the post of Additional Director General as they were not fulfilling the required residency period as per the notified recruitment rules. Therefore, before seeking approval of Union Public Service Commission consultation with Department of Personnel and Training is required. Accordingly this ministry mooted a proposal on 29.04.2014 seeking relaxation in the residency period in respect of 24 officers (including the petitioner).
21. It is further mentioned that Department of Personnel and Training vide order dated 3.6.2014 agreed to give relaxation up to six months only in respect of 21 officers and did not agree in respect of three officers i.e. Shri A.K. Cahtterjee, petitioner and Shri M.B. Beeriah, because relaxation required was more than six months. It is further contended that according to Rule 8 (4) of Service Rules, it is provided that where juniors, who have, completed their qualifying or eligibility service are being considered for promotion, their seniors shall also be considered, provided they are not short of the requisite qualification of eligibility service, by more than half of such qualifying service, these three officer were not granted relaxation including the petitioner. It is further contended that as per notified recruitment rules, the Ministry of Mines do not enjoy the power to grant relaxation, therefore, the names of 21 officers in respect of whom Department of Personnel and Training has agreed to grant relaxation, were submitted to Union Public Service Commission for their approval.
22. It is further mentioned in the counter affidavit that as per the notified recruitment rules, the eligibility for promotion to the post of Additional Director General is officers on the post of Deputy Director General (Geology) with three years regular service in grade; or officers with twenty-five years regular service in Group 'A' duty posts in the service with at least one year regular service in the grade of DDG (G). The petitioner was not having qualification of eligibility service period, therefore, he was not considered for promotion on the post of Additional Director General (Geology), because the minimum relaxation period of qualifying service was six months, which was not completed on 1.1.2014 by the petitioner. The Department of Personnel and Training vide note dated 3.6.2004 agreed to give relaxation upto six months only in respect to 21 officers only.
23. It is further pleaded in the counter affidavit that proposal for holding Departmental Promotion Committee for the post of Additional Director General for the year 2014-15 has not yet been submitted to the Union Public Service Commission for holding DPC as alleged by the petitioner in his original application. The Ministry is seeking concurrence of Union Public Service Commission for relaxation in the residency period for the officer, whom Department of Personnel and Training has already granted relaxation which is awaited.
24. It is further contended that the petitioner joined on 16.7.2013 on the post of Deputy Director General (Geology), therefore, he had not fulfilled the minimum relaxation period for qualifying service up to the period of six months as per existing rules and provisions and three officers including petitioner had not fulfilled the eligibility criteria as per Rule 8 (4) of the Service Rules of Central Geological Survey of India. It is further submitted that judgment of Central Administrative Tribunal does not suffer any illegality or infirmity and none of the grounds urged in the writ petition are tenable in the eyes of law.
25. The Respondent no. 5-Union Public Service Commission (hereinafter referred to as 'UPSC')has also filed counter affidavit. It is pleaded that the UPSC is a advisory body set up under Article 315 of the Constitution and they have a constitutional obligation to ensure that all the selections made for regular appointments to the services/posts of the Union of India, as falling under the purview of the Commission, are made strictly in accordance with the statutory Recruitment Rules and the relevant instructions issued by the Government of India from time to time. The Department of Personnel and Training, Government of India vide O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989 have issued guidelines/instructions, as amended from time to time, for holding of Departmental Promotion Committee Meetings. The UPSC holds various DPCs strictly in accordance with the aforesaid and other guidelines/instructions.
26. It is further pleaded that Ministry of Mines vide letter dated 19.9.2014 sent a proposal to the Commission seeking approval for relaxation in the residency period of one year for the post of Deputy Director General (Geology) for promotion to the post of Additional Director General (Geology) in Geological Survey of India for 12 vacancies (including anticipated) of the year 2014-15 in the Geological Survey of India. The UPSC has relied upon the eligibility criteria mentioned in Schedule II for promotion on the post of Additional Director General (Geology) and contended in paragraph nos. 6.1, 6.2 and 6.3, which read as under:-
"6.1. It is submitted that the crucial date for determining eligibility of officers for promotion, as prescribed in the DOPO&T OM No. 22011/9/98-Estt.(D) dated 8th September, 1998 is 1st January of the vacancy year irrespective of whether the vacancy year commences from 1st January or 1st April or from any other date, unless otherwise provided for in teh statutory Recruitment Rules and the Crucial date of eligibility in respect of the vacancy year 2015-16, as stipulated in DOP&T O.M. No. 22011/6/2013-Estt(D) dated 28th May, 2014 is 1st April of the vacancy year in case of financial year based vacancy year i.e. where teh Annual Performance Appraisal Reports (APARs) are written financial year-wise. In case of calendar year based vacancy year, i.e. where APARs are written calendar year-wise, the crucial date of eligibility shall remain as 1st January of the vacancy year. In the instant case, the RRs for the Additional Director General (Geology) do not have any provision regarding crucial date of eligibility and hence the crucial date of 01.01.2014 as the DOP&T OM dated 8.9.1988 is applicable for the vacancy year 2014-15.
6.2. It is further submitted that the applicant was not eligible to be considered for promotion to the post of ADG (Geology) against the vacancy years 2014-15 as he had not completed one year residency period in the grade of Deputy Director General (Geology) on 01.01.2014 i.e. the crucial date for determining eligibility of officers. Applicant's plea to consider him for promotion from the date on which he completed one year of service as Deputy Director General (Geology), Geological Survey of India, from the date of order of his promotion, i.e., 18.06.2013 or on 16.07.2014 and 01.07.2014 respectively, the dates on which he completed one year of service as Deputy Director General (Geology), Geological Survey of India from the date when they joined on the post of Deputy Director General (Geology) in pursuance of the order of his promotion on the said post, is not as per extent instructions of DOP&T and hence the same is not tenable.
6.3. As regards, contention of the applicant to grant him relaxation of 15 days less than six months, the residency period on the post of DDG (Geology) as on 1.1.2014 in order to make him eligible for promotion to the post of ADG (Geology) similarly as officers junior to him had been granted relaxation to the extent of six months of the period of service as DDG (Geology) as on 1.1.2014, it is stated that:-
(i) Proposal of Relaxation are examined in accordance with internal guidelines issued by the Commission and for examining the proposals for relaxation of the provisions of the Recruitment Rules with regard to qualifying service, educational qualification and mode of recruitment, the Commission vide internal guidelines dated 29.1.1991 decided that the cardinal principle for all the cases put up by the office will be:
"Relaxation of Recruitment rules should be considered in few really justified cases, and not as a routine."
(ii) Therefore, the applicant's contention for denying approval for relaxation in one year's residency in the post of Deputy Director General is not justified, it is stated that relaxation in qualifying service cannot be claimed as a matter of right. The commission duly deliberated upon the proposal of the Ministry for relaxation in the residency period for promotion to the post of Additional Director General (Geology) in Geological Survey of India for 12 vacancies (including anticipated) for the year 2014-15 in the grade of Additional Director General (Geology) in Geological Survey of India and did not agree to the proposal of the Ministry. The decision of the Commission was conveyed vide letter dated 18.12.2014."
27. It is further mentioned in counter affidavit of UPSC that as advised by the Commission, the Ministry of Mines submitted a DPC propsal for promotion to the post of Additional Director General (Geology) in GSI for 13 vacancies of the year 2015-16. The recommendation of DPC held on 19.5.2015 regarding 13 vacancies in the main panel and seven officers in the extended panel for promotion to the post of Additional Director General (Geology) has been fully implemented by the Geological Survey of India.
28. On the basis of above mentioned grounds, it is submitted that the present writ petition is not maintainable and deserves to be dismissed.
The petitioner has filed rejoinder affidavit reiterating contentions mentioned Original Application and grounds of writ petition.
29. Hon'ble Supreme Court in the following case has propounded exposition of law that recruitment /promotion of an employee can be made only according to Service Rules. Any prescription in advertisement which de hors the rules is bad in law. Likewise promotion should not be made against the provisions made in service rules applicable to the employee.
30. In the Case of N.A. Khan v. Union of India, reported in (2016) 16 SCC 524, the Apex Court held in para 10 and 11:
"10. It is an admitted position that the Review DPC had passed an order without going into the question whether sufficient vacant seats were available at the relevant point of time i.e. in the year 1991-1992 when the appellant was found suitable for being considered for promotion. We are informed and in fact, we find from the aforesaid order itself that five members/candidates have already been promoted superseding the claim of the appellant. If vacant seats were made available in the year 1991-1992 and the appellant was suitable for promotion, then the question of declining his claim for promotion ought not to have arisen.
11.We are therefore of the view that the impugned orders cannot be sustained. Let the matter be sent back to the Review DPC concerned to ascertain whether the appellant herein was suitable for promotion in the year 1991-1992 and if it is found so, the appellant should be promoted notionally. Since the appellant has already retired in the meantime, the appellant should be paid the amount payable to him on the basis of said notional promotion."
31. In the Case of Raminder Singh vs. State of Punjab and Ors. reported in (2016)16 SCC 95, the Apex Court held in para 28 to 31 as under:
"28. In our considered opinion, the State was not justified in cancelling the Appellant's promotion order as also the High Court was not justified in upholding the cancellation order.
29. This we say for more than one reason. First, it is an admitted case that the Appellant being an in service candidate, his case for promotion from the post of Silt Observer/Analyst to the next promotional post of "Research Assistant Grade B" was required to be considered as an in service candidate as provided in Rule 10. Second, it was again an admitted case that the Appellant was working as a Silt Observer/Analyst and in addition to the duties assigned to this post, he was also performing the duties of Research Assistant Grade B as per the directives of the office. Third, the Appellant had admittedly fulfilled the eligibility criteria and qualification prescribed in Rule 10 (1)(b) (i) and (2) as also the qualifications prescribed for appointment to the post in question for direct recruits. Fourth, the competent authorities had also recommended the case of the promotion of the Appellant certifying that the Appellant is fit for promotion. Fifth, the Appellant worked on the promotional post and performed the duties assigned to the promotional post from 14.12.2001 till 10.12.2002. Sixth, since the Government, despite merging the Grade C post in Grade-B post, did not amend the Rules and on the other hand continued with the un-amended Rules for filling the vacancies including vacancies by promotion, hence, the case of the Appellant had to be considered in the light of the requirement of the Rules. In other words, it was necessary for the State to have made appropriate amendments in the Rules after merger of one post into another, but so long as this exercise was not done by the State, the employees, who had otherwise fulfilled the requirement prescribed in the existing Rules for consideration of their cases for promotion, they could not be denied the benefits flowing from the Rules and lastly, in the absence of any adverse entries or/and record of the Appellant and further in the absence of any allegation made against the Appellant for suppressing any material information, we do not find any justification on the part of the State to have recalled the promotional order of the Appellant on the basis of some complaints said to have been made by someone after a long lapse of time which also had no factual or/and legal foundation.
30. Learned Counsel for the Respondents, however, contended that the Appellant did not possess the requisite qualifications that were necessary for the promotional post as prescribed in the advertisement and hence cancellation of the Appellant's promotion was appropriate. We do not find any force in this contention.
31. As held supra, the Appellant had fulfilled the necessary criteria prescribed in Rule 10. It was, in our view, sufficient compliance for the in service candidate. Anything prescribed in the advertisement, which was de hors the Rules was bad in law."
32. In the Case of Mrigank Johri v. Union of India, reported in (2017) 8 SCC 256, the Apex Court held in para 31 and 32 as under:
"31. It is no doubt true that the OM dated 29-5-1986 as modified by OM dated 27-3-2001 did provide for the benefit of the previous service rendered in the cadre. This is in effect also the ratio of the judgment inSub-Inspector Rooplal case [Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644 : 2000 SCC (L&S) 213] . This would also be in conformity with the normal service jurisprudential view. However, it would be a different position if the absorbing department clearly stipulates a condition of giving willingness to sacrifice the seniority while preserving all other benefits for the absorbee (which are accepted) failing which the option was available to the absorbee to get himself repatriated to the parent department. The terms and conditions are categorical in their wording that the absorbees would be "deemed to be new recruits" and the previous service would be counted for all purposes "except his/her seniority in the cadre". The appellant accepted this with open eyes and never even challenged the same. Their representations to give them the benefit of their past seniority was also turned down and thereafter also they did not agitate the matter in any judicial forum. The controversy was thus not alive and it was not open for them to challenge the same after a long lapse of period of time. In fact on the day of filing of the OM, any prayer to set aside the terms and conditions of absorption would have been clearly barred by time under Section 21 of the Administrative Tribunals Act, 1985.
32. The appellants sought to rake up the issue only when the seniority list was finalised. This was preceded by the draft seniority list. Whatever may be the dispute of seniority qua other persons, insofar as the appellants were concerned, their seniority was based on the terms and conditions of their absorption. The position of the appellants in the seniority list was thus a sequitur to the terms and conditions of their absorption. We are of the view that it is precisely for this reason, anticipating that their claim would be time-barred, that a challenge was laid only to the seniority list without challenging the terms and conditions of absorption though in the grounds, a plea was raised against the terms and conditions of absorption. Unless the terms and conditions of absorption were to be set aside, the seniority list prepared was in conformity with the same."
33. In the Case of Ranajit Kumar Meher v. State of Orissa, Reported in (2017) 4 SCC 568, the Apex Court held in para 1 and 2 as under:
"1- Leave granted. In the affidavit filed on 15-10-2013 by the Joint Director, Directorate of Animal Husbandry and Veterinary Sciences, Government of Odisha, it is stated that the petitioner does not have the qualification prescribed under the Orissa Non-Gazetted Veterinary Technical Service (Recruitment and Conditions of Service) Rules, 1983, as amended in the year 1997. The whole crux of the argument of the learned counsel for the petitioner is that he possesses the qualification as per the advertisement issued on 16-1-2004.
2.Having heard the learned counsel appearing on both the sides, we are of the view that there cannot be any appointment in violation of the Rules. Qualification is to be seen with respect to the Rules and not the advertisement inviting applications. The appellant, admittedly, does not possess the qualification as prescribed under the Rules."
34. In the case of Vindu Kishore Sharma v. Chancellor, Chaudhary Charan Singh University, reported in (2016) 15 SCC 627, the Apex Court held in para 10 and 12 as under:
"10. The aforestated extracts from the scheme of 10-9-1987, leaves no room for any doubt, that such of the teachers who desired to continue to be governed under the erstwhile scheme of 25-2-1984, were required to exercise an express option to remain out of the new scheme of 10-9-1987, in writing within 90 days, failing which it would be deemed as if they had opted to be governed by the amended scheme of 10-9-1987. The express stance adopted by the appellant was that there was no requirement for the appellant to exercise an option, to remain under the erstwhile scheme of 25-2-1984. It is therefore, that he did not tender such an option. The extracted paragraphs of the second scheme dated 10-9-1987 clearly reveals that the view of the appellant was misconceived. Factually, the scheme of 10-9-1987 expressly required all teachers who desired to continue under the prevailing scheme of 25-2-1984, to make an option in writing to that effect. Since the appellant did not exercise such an option, we have no doubt whatsoever that the appellant after the introduction of the scheme of 10-9-1987, came to be governed by the latter scheme of 10-9-1987.
12. For exactly the same reasons as have been recorded by us with reference to the "Personal Promotion Scheme" of 10-9-1987, we are satisfied that for continuing in the erstwhile scheme of 25-2-1984, it was imperative for a teacher governed by the conditions of Section 31-A of the University Act, to opt in writing to remain under the scheme of 25-2-1984. All those who did not exercise their express option in writing, would automatically be deemed to have accepted to be governed by the amended scheme of 7-1-1989. Yet again, it is apparent that the appellant did not exercise his option, even after the issuance of the amended scheme of 7-1-1989 (to continue in the original scheme of 25-2-1984)."
35. In the Case of Municipal Corpn. of Greater Mumbai v. Anil Shantaram Khoje, reported in (2016) 15 SCC 726, the Apex Court held in para 15 as under:
"15. In this conspectus we find ourselves unable to accept the position favoured by the High Court in the impugned judgment [Anil Shantaram Khoje v. Municipal Corpn. of Greater Mumbai, (2010) 2 Bom CR 123] . The extant Rules would become operative only from the date of its promulgation by publication in the Official Gazette i.e. on 28-4-2011. Promotions made prior to 28-4-2011 under the extant Rules promoting Shri Anil Shantaram Khoje (contesting Respondent 1), Shri B.P. Kolekar (contesting Respondent 5) and Shri P.J. Patil to the post of Deputy Municipal Commissioner could not have been effected in the absence of publication of the extant Rules in the Official Gazette. We note that Shri Anil Shantaram Khoje and Shri B.P. Kolekar have already retired from the post of Deputy Municipal Commissioner while Shri P.J. Patil who was promoted on 5-7-2010 to the post of Deputy Municipal Commissioner, is still holding the post. Being mindful of the fact that their promotion and retiral and other consequential benefits would be adversely impacted by our judgment, we direct that the promotion effected prior to 28-4-2011 and consequential retiral and other benefits should not be altered to their detriment."
36. In the Case of Palure Bhaskar Rao v. P. Ramaseshaiah, reported in (2017) 5 SCC 783, the Apex Court held in para 10,11 and 13 as under:
"10. Heard the learned Senior Counsel and other counsel appearing on behalf of both sides. Though several contentions have been raised, the crux of the arguments is that once seniority is considered from the date of appointment as Reserve Sub-Inspector, since the scales of pay of Reserve Sub-Inspector and Sub-Inspector (Civil) is the same and since both belong to the same class under the A.P. Police Subordinate Service, the Sub-Inspectors selected by transfer and appointed as Sub-Inspectors (Civil) against 5% vacancy and subsequently recruitment by transfer should be allowed to carry the benefit of total service, lest it should also violate Article 14 of the Constitution of India.
11. We find it difficult to appreciate the above submission. A.P. Police Subordinate Service and A.P. Police Service are two distinct and separate services. And though the pay scales of both categories in Class I post of A.P. Police Subordinate Service is one and the same, the posts are not interchangeable. It has been the submission of the State that there is functional difference in the service as well. Be that as it may, the selection to the post of Sub-Inspector (Civil) from Reserve Sub-Inspector is by way of transfer by selection based on merit. Only 5% quota is allocated to the Reserve Sub-Inspectors. Once the Reserve Sub-Inspector comes into the category of Sub-Inspector of Police (Civil), he is entitled to carry his seniority from the date of appointment as Reserve Sub-Inspector and placed accordingly in the seniority list of Sub-Inspectors (Civil). In other words as and when a Reserve Sub-Inspector is selected and appointed by transfer to the post of Sub-Inspector (Civil), though there may be Sub-Inspectors of Police (Civil) already available in that category working for more than 4 years but less than 5 years yet the Reserve Sub-Inspector transferred as Sub-Inspector of Police (Civil) will be placed above those existing Sub-Inspectors of Police recruited from other channels without the benefit of "carry on" seniority. But that does not mean that on such placement in seniority he will be entitled to claim appointment as Inspector of Police in the A.P. Police Service since under the A.P. Police Service Rules, a Sub-Inspector of Police recruited by transfer should have a minimum service of 6 completed years for appointment by transfer as Inspector of Police. This rule is not under challenge.
13. The rule as it stands now and having regard to the functional duties of Reserve Sub-Inspector and Sub-Inspector, and in the absence of a challenge set up on discrimination we find it difficult to test the arguments on the tenets of Article 14 of the Constitution of India."
37. We have perused impugned judgment and order dated 15.1.2015 passed by Tribunal in Original Application No. 482 of 2014 and relevant service rules provided by the petitioner. We have also perused promotion order dated 18.6.013 issued by Government of India, Department of Geological Survey of India, Kolkata. 53 officers including the petitioner were promoted on the post of Deputy Director General (Geology) vide order dated 18.6.2013 in the pay band-4 Rs. 37,400/- - 67,000 with Grade Pay Rs. 10,000/- on regular basis. This promotion order was issued subject to following terms and conditions:-
1. Their promotion will be in the order of DPC empanelment as indicated above.
2. The pay of the Officers concerned in the post of Dy. Director General (Geology) will be fixed according to the rules in force.
3. They may exercise option in terms of FR 22 (1) (a) (l) within one month from the date of taking over charge of the post of Dy. Director General (Geology).
4. Their promotion will take effect from the date of assuming of charge of the post of Dy. Director General (Geology) after communication of this Memorandum.
5. Their continuance in the grade will be considered in accordance with the instructions issued by the Government of India from time to time.
6. The above promotions are subject to the outcome of the pending court cases, if any having bearing on them.
7. As per the Direction of ACC, the promotion of two junior most officers namely Sri V.P. Sabale and Sri S.R. Kisku at Sl. Nos. 52 & 53 shall be on 'ad-hoc' basis till finalization of 'sealed cover' cases or subsequent regular vacancies in the grade arises, whichever is earlier.
If they are willing to accept the offer of promotion on the above terms and conditions, they may take over charge to the post of Dy. Director General (Geology) at their respective place of posting on promotion within one month from the date of issue of this Memorandum failing which offer of promotion will be liable to cancel without further intimation. Whose present place of posting have not been changed, their place of posting will be decided subsequently as per functional requirement. Two copies of the Charge Report one each for making over the charge of Director (Geology) and taking over charge as Dy. Director General (Geology) may be forwarded to this office through proper channel for issuance of Notification.
38. On perusal of promotion order of petitioner dated 18.6.2013, it revealed that his promotion would have to take effect from the date of assumption of charge on the post of Deputy Director General (Geology) after communication of the memorandum. It was specifically stipulated in the memorandum itself that "officers may take over charge to the post of Deputy Director General (Geology) at their respective place of posting within one month from the date of issue of this memorandum failing which offer of appointment will be liable to be cancelled without further intimation." The petitioner admittedly joined on 16.7.2013 on the post of Deputy Director General (Geology). Therefore, on 1.1.2014 cut off date fixed for zone of consideration for promotion on the post of Additional Director General (Geology), the petitioner had put in service for five months 16 days only. He had not completed six months as required according to Rule 8 (4).
Rule 8 (4) of Service Rules reads as under:-
"8(4). Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors shall also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service."
39. We have also perused Schedule II, which reads as under:-
Sl. No. Name of post, grade, pay structure [pay band and grade pay or pay scale].
Mode of recruitment Whether selection post or non-selection post Field of selection and the minimum qualifying service for promotion 1 2 3 4 5
1.
Additional Director General (Geology), Higher Administrative Grade Rs. 67000 - 79000/-
By promotion Selection Deputy Director General (Geology) with three years' regular service in the Grade; or Officers with twenty-five years' regular service in Group 'A' duty posts in the Service with at least one year regular service in the grade of Deputy Director General (Geology)
2. Deputy Director General (Geology), Pay band-4 Rs. 37400-67000/- plus grade pay Rs. 10,000/-
By promotion Selection Director (Geology) with eight years' combined regular service as Director (Geology) and Superintendent Geologist; or Officers with seventeen years' regular service in Group 'A' duty posts in the Service with at least four years' regular service in the grade of Superintending Geologist [including service rendered in the Non-functional Selection Grade that is Director (Geology) of the Junior Administrative Grade]
3. Director (Geology), Pay band-4 Rs. 37400/- - 67000/- plus grade pay Rs. 8700/-
By appointment to Non-Functional Selection Grade Non-Selection Superintending Geologist who had entered the fourteenth year of the Service on the 1st January of the year calculated from the year following the year of Examination on the basis of which such member was recruited.
40. It is pertinent to mention here that eligibility criteria for promotion on the post of Additional Director General (Geology) has been provided as follows:-
"Deputy Director General (Geology) with three years' regular service in the Grade; or Officers with twenty-five years' regular service in Group 'A' duty posts in the Service with at least one year regular service in the grade of Deputy Director General (Geology)"
41. According to Rule 8 (4) maximum relaxation, which could be granted was six months only by the Department of Personnel and Training, because it provides that seniors, who are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service could only be considered for promotion on the post of Additional Director General (Geology).
42. Since the petitioner took over charge on 16.07.2013 in compliance of promotion order dated 18.06.2013, therefore, period of service on the promotional post i.e. Deputy Director General (Geology) shall be counted from the date of joining on the post i.e. 16.07.2013. The promotion order was effective only after officer assumed charge of promotional post of Additional Director General (G).
43. There is no substance in the argument of learned counsel for the petitioner that this period of service would be counted from the date of promotion order i.e. 18.06.2013. Likewise this contention is to no avail that one month time was provided to the petitioner and other officers, who were promoted vide promotion order dated 18.06.2013, therefore, this one month cannot be excluded from the service period on the post of Deputy Director General (Geology), because promotion on the post of Deputy Director General (Geology) had to be effective regarding the petitioner, when he assumed charge on this post on 16.07.2013. The petitioner cannot claim his promotion on the post of Deputy Director General (G) from date 12.2.2013 as well, when Union Public Service Commission had recommended the applicant for his promotion on this post.
44. Learned counsel for the petitioner has relied upon Rule 13 which provides as under:
"13. Power to Relax. Where the Government is of the opinion that it is necessary or expedient so to do, if any, by an order, for reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with respect to any class or category of person."
45. As far as it is argued by learned counsel for petitioner that no period is fixed, which can be relaxed regarding residency period of eligibility for promotion on the post of Additional Director General (Geology), and if the Central Government is of the opinion that it is necessary or expedient so to do, it may by order by reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with respect to any class or category of person.
46. We are not impressed by argument put forth by learned counsel for petitioner for the reason that Rule 13 provides relaxation of the provision of Rule in respect of any class or category or persons and not the individual. Moreover provisions of rule 13 read with rule 8 (4) of Service Rules shall apply in case of the petitioner.
47. In the present case also the Department of Personnel & Training, Government of India considered the matter of relaxation of 24 officers including the petitioners. Since the petitioner had not completed six months of service on the post of Deputy Director General (Geology), therefore benefit of relaxation was not extended to the petitioner and two other officers, namely, Sri A.K.Chatterjee and M.B. Beeriah. Twenty one officers were granted relaxation of six months only regarding residency period of one year.
48. In the counter affidavit filed on behalf of respondent no. 1 to 4, it has been specifically contended that Department of Personnel & Training approved proposal for relaxation in respect of twenty one officers only.
49. As per notified recruitment rules the Ministry of Mines do not enjoy the power to grant relaxation. Moreover, Department of Personnel & Training had not considered the matter of relaxation of any other officers, who had not completed period of six months service on the post of Deputy Director General (Geology). According to rules, relaxation of residency period was permitted only up to six months only. As per Schedule-II of Service Rules it is prescribed that officer who has put in 25 year regular service in Group "A" duty post, with at least one year regular service in the grade of Deputy Director General (G) would be eligible for promotion on the post of Additional Director General (G).
50. Learned counsel for the petitioner has vehemently argued that the petitioner made representations on 16.06.2014, 17.06.2014, 06.08.2014 and 07.10.2014, which were addressed to Director General, Geological Survey of India, Kolkata for relaxation of qualifying period of service on the post of Deputy Director General (Geology) for promotion to the post of Additional Director General (Geology), but these representations were not considered in favour of petitioner. Moreover, period of 15 days, which was in excess of six months, was required to be relaxed in case of petitioner. It is further submitted that petitioner retired on 31.01.2015, even then he was not considered for promotion on the post of Additional Director General (Geology) for the vacancies accrued during year 2015-16. It is pertinent to mention her that in Original Application, the petitioner has not claimed his notional promotion on the post of Additional Director General (G) after his retirement on 31.1.2015.
51. It is relevant to mention here that according to Rule 8 (4) of service rules published vide notification dated 29.09.2010 by Ministry of Mines, maximum period of six months i.e. half of the eligibility criteria of one year regular service in the grade of Deputy Director General (Geology) could be relaxed according to rules. Therefore, more than six months period could not be relaxed by the Department of Personnel & Training. His alleged representations could not be considered and decided in his favour according to statutory rules applicable to the petitioners. Since he had not completed period of six months on the post of Deputy Director General (Geology), therefore, he was not considered for promotion on the post of Additional Director General (Geology). The period of 15 days which was more than six months could not be relaxed in favour of the petitioner according to rules.
52. As far as it is argued that he was not considered for the vacancies accrued for the year 2015-16, since he has retired on 31.01.2015, is also to no avail, because in counter affidavit it is specifically contended by UPSC that proposal for relaxation of residency period sent by the Ministry regarding 12 vacancies accrued in the year 2014-15 in the grade of Additional Director General (G) was not approved and decision of Commission was conveyed to the Ministry vide letter dated 18.12.2014. The petitioner has not claimed any relief in Original Application regarding vacancy accrued in the year 2015-16 and meeting of D.P.C. dated 19.05.2015, claiming his notional promotion on the post of Additional Director General (G), after his retirement on 31.1.2015. Therefore, there is no substance in argument of learned Counsel for petitioner in this regard.
53. On the basis of our discussions and facts and circumstances and exposition of law propounded by Hon'ble Supreme Court, there is no infirmity or perversity in the impugned judgment and order passed by Tribunal.
54. This writ petition lacks merit, deserves to be dismissed and is hereby dismissed.
Order Date:- 12.01.2018 Virendra