Central Administrative Tribunal - Bangalore
Rajesh K And Anr vs M/O Defence on 14 June, 2024
1
OA.No.170/00527/2021/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00527/2021
ORDER RESERVED ON: 03.06.2024
DATE OF ORDER:
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
1. Sri Rajesh. K
No. 9607472
S/o K. Bhaskaran,
Aged about 43 yrs,
LDC, Def Civil Est, Kaakul Block,
ASC Centre & College,
Agram Post, Bangalore - 560 007.
Res:
# 29/8, DCA Complex,
Someswarapura Extn,
Halsuru, Bengaluru-560 008.
2. Smt. Shilpi Yadav
No. 14861241N
D/o GS Yadav,
Aged about 31 yrs,
LDC, Def Civil Est, Kaakul Block,
ASC Centre & College,
Agram Post, Bangalore - 560 007.
Res:
#401, Sixon apartments
No. 41, Srinivagilu Main Road
Ejipura, Bangalore - 560047 .... Applicants
(Shri P Kamalesan - Advocate)
Vs.
2
OA.No.170/00527/2021/CAT/BANGALORE
1. Union of India
Rep by its Secretary,
Ministry of Defence,
South Block,
New Delhi-110 011.
2. Director General of Supplies & Transport,
Quarter Master General' Branch,
Integrated HQ of MoD (Army),
DHQ PO, New Delhi- 110 011.
3. The Commandant,
ASC Centre & College,
Agram Post,
Bangalore -560 007. ....Respondents
(By Shri K Gajendra Vasu, Sr. Panel Counsel)
O R D E R (ORAL)
PER: DR. SANJIV KUMAR, MEMBER (A)
This OA No. 527/2021 is filed seeking relief to direct the respondents to conduct the DPC immediately to fill up existing UDC vacancies of ASC Centre and College as per earlier practice; and to direct the respondents to promote the applicants with effect from 01.01.2021 protecting their seniority retrospectively with all consequential benefits in pay and allowances while quashing the impugned Order No. 78501/2/ST-12(CIV) dated 18.02.2021, and Order No. 03/ST-12/Central Roster/ 2021 dt. 05.08.2021.
2. The brief case of the applicants is that they have assailed the legality and validity of the action of the respondents in not promoting the applicants to the post of UDC on completion of 8 years regular 3 OA.No.170/00527/2021/CAT/BANGALORE service with effect from 01.01.2021 as per the RR and the earlier practice in the ASC Centre and College. The applicants contends that the same was brought to the notice of the respondents vide their representations dated 10.06.2020, 04.01.2021 and 05.01.2021 and Respondent No. 2 has not responded to their representations.
3. And they further allege that Respondent No. 2 have promoted two UDCs to the post of Superintendent as per old roster as per earlier practice. And they contend that their action is arbitrary and perverse.
Hence, the same should be set aside allowing their OA.
4. On notice the respondents have filed their reply, wherein they assert that as per their departmental requirements and administrative exigencies they have taken the impugned decision and passed the said order which are challenged. And their is no infirmity in the same.
Hence, the OA may be dismissed.
5. Rejoinder has been filed on behalf of the applicants wherein they have reiterated their facts and stand as in the OA and have refuted their assertions of the respondents as in the reply statement;
and they have requested to allow their OA. Additional reply statement has been filed on behalf of the respondents where they have further clarified the contentions as raised in the rejoinder.
6. The case came up for final hearing on 03.06.2024, Shri P Kamalesan appearing for the applicants and Shri K Gajendra Vasu for 4 OA.No.170/00527/2021/CAT/BANGALORE the respondents were present and heard. We have carefully gone through the entire records and considered the rival contentions.
7. From the averments of the parties following points come for our consideration:-
(i) Whether change of decentralized unit based cadre of UDC and LDC in the respondents department to a centralized unified cadre of LDC and UDC amounts to a cadre restructuring exercise?
(ii) Whether a cadre restructuring exercise, can it be done by mere executive order or it required amendment of relevant cadre rules?
(iii) What process the cadre restructuring exercise has gone through? Was there requirement for providing an opportunity to the affected employees a reasonable hearing and say before cadre restructuring exercise etc?
(iv) Whether the action of the respondents in promoting two UDCs for the post of Superintendent as per old roster as per earlier practice was inequitus, as the same benefit was not extended to the two applicants before us and this OA?
(v) If so, what orders?
8. Most of the facts in the case are not denied. It is not denied that Applicant No. 1 was appointed as LDC in Officers Training Academy, Chennai on 24.07.2012 and he was transferred to ASC Centre and College on 07.10.2013 on request, and the second applicant was appointed as LDC on 12.12.2012. And that both of the applicants have 5 OA.No.170/00527/2021/CAT/BANGALORE completed 8 years of regular service on 24.07.2020 and 12.12.2020 respectively.
9. It is further not denied that as per, the Army group C (Upper Division Clerk and Lower Division Clerk) Recruitment Rules 2012 gazette notification SRO-23 dated 11.04.2012, "UDC post in ASC Centre and College are to be filled up by promotion of Lower Division Clerk in the cadre with 8 years of regular service in the grade; failing which by deputation. And the composition of the DPC to approve such promotion was vested with the Commandant as Chairman, Senior Administrative Officer or Establishment Officer as Member 1 and an officer of the rank of Lieutenant Col or Major or equivalent rank from an unconnected Department as member 2."
10. The applicants further contends that the Government of India, Ministry of Personnel, Public Grievances and Pension, DoP&T OM No. 22011/4/2013 Estt (D) dt 08.05.2017 provides that the crucial date of eligibility will be 1st Jan of the vacancy year wef 2019 and last date for getting ready the approved select panel by the administrative Ministry/ Department was 31st Dec preceding the vacancy year. It is further stated that ASC Centre and College had five UDC posts vacant as per Reservation Roster cum Vacancy Status for promotion, and the applicants had completed 8 years of regular service in LDC grade on 24.07.2020 and 12.12.2020 respectively; and 6 OA.No.170/00527/2021/CAT/BANGALORE were eligible for promotion to any one of the vacant UDC post on 01.01.2021. And that Applicant No. 1 had given representation on 10.06.2020. But, as in the department there was restructuring proposal for the cadre of LDC and UDC and ASC Records (South) was in process of merging the seniority roll of Defence Civilian Employees of ASC College with other ASC units and ASC GT Units. Hence, their promotion was not considered and for such merger, applicants had raised following contentions:-
(i) Def Civ Employees serving in ASC Centre & College are governed by CCS (CCA) Rule, 1965, whereas ASC GT Units are governed by Army Act 1950. ASC Records (South) is bringing employees appointed under different Govt Rules in a single seniority.
(ii) Erstwhile ASMT and ASC school, Bareilly were operating separate seniority rosters for their employees. The same procedure is continued even after merger of the establishment and re-designation as ASC C&C and all promotional posts as authorised in the PE of ASC C&C being filled up by eligible employees of ASC C&C. Any changes in the procedure will adversely affect the career progression chances of ASC C&C employees and no consent was sought from the adversely affecting employees.
(iii) Most of the major units like OTA, MEG Centre etc., are also operating their own roster and promotions are being made from their own employees as per their authority in PE/WE.
(iv) ASC Records (South) not agreed to merge seniority roster of their employees to protect promotional prospects of 7 OA.No.170/00527/2021/CAT/BANGALORE their employees stating that they are controlled by I of R, IHQ of MoD (Army) but the same time insisting to merge seniority of ASC C&C. Many other Records like EME Records, AOC Records etc., are operating their own roster which is a clear indication of rule position on their own.
11. None of these contentions have been accepted by the respondents. And the request of the two applicants for promotion to the cadre of UDC after completion of 8 years of regular service in their grade of LDC is also not agreed to. The respondents have intimated that as there was restructuring of their cadre from decentralized one to one unified centralized cadre of LDC and UDC hence they should wait.
12. Re: point No. 1 - From the records it is evident that the cadre and recruitment rule relevant to the applicants who are civilian employees of the defence establishment of the respondents are governed by the rule named, "the Army Group C (Upper Division Clerk and Lower Division Clerk) Recruitment Rules 2012 which came into force on 11.04.2012 and was notified as SRO-23 and was circulated vide Directorate General of Supplies & Transport, Quartermaster General's Branch, Integrated HQ MoD (Army), New Delhi dated 17.05.2012 under the heading "Publication of Recruitment Rules in respect of posts of Lower Division Clerk and Upper Division Clerk in Army" which interalia other things mentions that in rule 3 "method of recruitment, age limit and 8 OA.No.170/00527/2021/CAT/BANGALORE qualifications........ "These rules shall be applicable to all the posts of Upper Division Clerks and Lower Division Clerks in the lower formations of Army, but the maintenance of seniority and promotion of each cadre shall be done separately" Which clearly indicates the decentralized nature of the cadre. Further, in column 12 of the Annexures, which specifies Group 'C' Departmental Promotion Committee which consists of following:-
(a) General Officer Commanding or Director or Dy.
Director or Additional Director or Commandant or Office-in-Charge or Officer Commanding or Principal or Group Commander or Inspector or Chief engineer or Chief Engineer Project/ Colonel Adm. - Chairman.
(b) Senior Administrative Officer or Establishment Officer - Member.
(c) An officer of the rank of Lieutenant Col or Major or equivalent rank from an unconnected Department - Member.
Which again shows its (cadre's) decentralized nature. Further, it is also not disputed that till now these were unit wise cadres having their own seniority and roster etc., and now the respondents department for certain administrative reasons as stated by them have decided and embarked upon to make this decentralized local cadres into one unified cadre vide their notification dated 20.06.2019; which speaks of, "conversion of centrally/ partially/ unit controlled defence civil employees to centrally controlled", wherein they mention the reason that, "ASC is authorized a total no. Of 13,266 defence civilian in 9 OA.No.170/00527/2021/CAT/BANGALORE various trades and is only holding 7,424 civilians as on dated which translate to a deficit of 44 per cent, which have lead to the non-preference of NAC requisitions by concerned unit on occurrence of vacancies, out of the total deficiency approximately 13,000, NAC requisitions are only under process as on date and failure on the part of the appointing authority to complete the rectification process timely. In number of instances there is an apparent inertia on part of concerned COs/OsC to undergo the rectification process in an expeditious manner. And non-availability of eligible candidates in promotional post due to requisite service required", and they conclude that, "thus the issue has assumed critical composition and warrants a complete review of existing systems and process. Therefore, it has been decided to evolve a centrally controlled mechanism for cadre management of civilian employees in ASC." Based on which, data has been collected and further central roster for defence civilian employees in ASC was issued on 05.08.2021 vide their Corps Order Part-I No. 03/ST- 12/Central Roster/2021 one of the documents which is under challenge.
Simple reading of this document makes it clear that the said document considering their man power status, which were widely dispersed, and which made decentralized cadre management ineffective, which included important aspect like reporting of wastages, maintenance of reservation roster, preservation and conduct of DPC, conduct of recruitment etc cumbersome and resulted in multiplication of efforts. And also at times leads to slippage by the concerned units for justifying a central roster of all the defence civilian employees. And accordingly, the department intended to create and manage all 10 OA.No.170/00527/2021/CAT/BANGALORE aspects of cadre management of defence civilian hence further centrally, under the agesis of ASC Records South; and accordingly instructions were issued.
Simple reading of this document dated 05.08.2021 and trying to understands its purports, we may conclude that it intended to merge certain decentralized cadre of UDC and LDC grades into one centralized cadre, which exercise from any perspective is definitely an exercise of cadre restructuring and so our answer to the first question is in affirmative that the respondents definitely were doing cadre restructuring when they were merging the decentralized unit based cadre of LDC and UDC to a unified centralized cadres, wherein by merging the unit based cadres and creating a central unified cadre with unified roster; the respondents were definitely changing the service conditions of the applicants.
13. Re: point No. 2 - If we agree that it was a cadre restructuring exercise can it be done by mere executive order or it required to amend rules relevant to the cadre. As we know service law for any cadre restructuring as it alters service conditions and prospects of various employees which requires to go through a definite process and as is clear from the cadre rules of the Army group C (Upper Division Clerk and Lower Division Clerk) Recruitment Rules 2012 dated 11.04.2012 which governs decentralized cadre of the applicants is in force, and unless the said rules is amended to that effect no such change in cadre rules or restructuring of cadre could have been given effect to. And mere notification of Central Roster for Defence Civilian Employees in ASC dated 05.08.2021 No. 03/ST-12/Central Roster/2021 which was circulated vide August 2021 ASC OM 55344 of Directorate General of Supplies and Transport ST -12 can be implemented and effected to merge the 11 OA.No.170/00527/2021/CAT/BANGALORE cadre and make a decentralised cadre into centralised one, and implement the same.
At the most this document dated 05.08.2021 can be said to be a policy statement which has to be going through the process of the cadre review which is outlined in the office memo of DoPT dated 30.09.2022 No-I-110011/16/2022-CRD with the subject, "Consolidated guidelines on cadre review of Central Civil Services."
Further, on simple reading of the earlier cadre rules it is very clear that the said rules , the Army group C (Upper Division Clerk and Lower Division Clerk) Recruitment Rules 2012 was issued in exercise of powers conferred by the provision to article 309 of the constitution and in the supercession of the Army Group C post of Upper Division Clerk and Lower Division Clerk Recruitment Rules 2000 etc. And whenever such new rules are framed or any amendments in the said rule effected, it has to compulsorily go through the rule making process of hearing the affected parties and giving them opportunity to raise objections. If the contingencies of the department required merger of the cadres, the department was free to resort to a desired cadre change, but strictly through the processes laid down by law by bringing necessary changes in the concerned rules, and giving opportunity to everyone concerned and affected by such rule to have a say. We do not find in the present case the impugned document which is at Annexure A-12, which speaks of Central Roster for Defence Civilian Employees in ASC date 05.08.2021 has gone through the process of rule making and is notified as rules. Hence, our answer to the second issue framed is that, mere executive order is not sufficient to merge cadres and restructure it as it affects the people who are already borne on the cadre. And amendment of rules and all process which are associated with new rule making had to be gone through 12 OA.No.170/00527/2021/CAT/BANGALORE before any such exercise. Which exercise we do not find in this case as to have been complied with by the respondents.
14. Re : point No. 3 - The exercise of cadre restructuring is very much outlined in detail in the consolidated guidelines of cadre review of Central Civil Services by DoP&T dated 30.09.2022 in No. I-11011/16/2022 -CRD which has to be gone through as in para 5 which speaks of cadre review of group B and C employees post and refers to OM No. 2/1/87-PP dated 23.11.1987. In the instant case of merger of decentralized cadre into one centralized one where roster for recruitment and promotion change the prospects of different incumbents in the decentralized cadre change after merger of such decentralized units into one centralized cadre, as is clear from the predicament of the applicants.
(a) The applicant No. 1 had undergone a cadre change and consequent loss of seniority when after his recruitment as LDC in the Officers Training Academy Chennai on 24.07.2012. He was transferred to ASC Centre and College on 07.10.2013 on request and now after 8 years of completion of eligible service when he was eligible for promotion from LDC to UDC on 24.07.2020 and the Applicant No. 2 on 12.12.2020 and they were standing near to a promotional opportunity by merger of the cadre that opportunity was being snatched away from them.
(b) So, it was clearly a variation in condition of service of their public post by mere executive order and the applicants were deprived of their opportunity of filing objection if any to the said decision of the Government. Which opportunity will accrue to the applicant only if the draft rules are notified calling for objections as per the rule making process prescribed.
(c) Hence, we have no doubt in our mind that, for any such change the respondents had to go through a process 13 OA.No.170/00527/2021/CAT/BANGALORE where opportunity of hearing and a participatory approach to rule making has to be gone through as is outlined in various guidelines and procedure. And, clearly respondents going ahead with implementing their executive order on central roster for defence employees in ASC vide their document dated 05.08.2021 No. 03/ST-12/Central Roster/2021 is not as per rules and procedure.
(d) At its best the document dated 05.08.2021 impugned, can be said to be a policy statement which must go through the exercise of rule making and needs to be converted into robust rules which can be implemented.
(e) Hence, we are convinced that the impugned order or document dated 05.08.2021 which is under challenge as Annexure A-12 is not actionable against the applicants cadre to the extent it takes away their rights and discretion to file their objection and opportunity of being heard before making such rules.
15. Re : point No. 4 - Over and above the general aspect of the document dated 05.08.2021 (Annexure A-12) being not a rule and being incapable of being actionable as rule and causing decentralized cadre to be merged into a one centralized cadre and operated centrally altering seniority, roster and particularly prospects of promotion to the applicants, and consequently the action of the respondents in not promoting the applicants who were eligible for promotion on 01.01.2021 as they had completed 8 years of eligible service in the grade of LDC much before 01.01.2021 with a plea and reasoning that their cadre was under restructuring; and because of exigencies and administrative requirement of the merger of the cadre the respondents department was unable to give them promotion which was due to them; whereas in similarly situated cases of two UDCs of ASC Centre and College i.e Shri Velukutty A and Smt Latha KG were promoted in the month of March 21 by a DCP held at Army Headquarters (ST 14 OA.No.170/00527/2021/CAT/BANGALORE DTE) as per earlier practice; without offering similar treatment to the applicant who are similarly situated like them; and these two were promoted from the post of UDC to the cadre of Superintendent which is also not denied by the respondents with effect from 08.03.2021; and that was against the statement of the respondents that as they were undergoing restructuring, as the decision of the merger was taken by the head of department in the organizational interest and their contentions that they need not inform to each civilian employees about the same is also not acceptable.
As such restructuring has to be gone through the rule making process and everyone affected has to be heard at appropriate stage of the rule making. And as with the case of the two UDCs being similarly placed being promoted as per the earlier decentralized rules to the grade of office Superintendent makes the assertion of the applicants of a case of discrimination against them is also substantiated. And to that extent the action of the respondents are arbitrary and perverse and required to be interfered with.
Further, as the department of the respondents and the Ministry of Defence are important departments handling emergency situations where ambiguity cannot be allowed. If we are convinced to set aside the impugned order in the light of the above discussions, it may be relevant that we must emphasis, that there is no hurdles to consider the case of the applicants for their promotion in accordance with the existing CNR rules. And in such cases the relevance of the judgement of the Hon'ble Supreme Court in the case of Babu Vargese vs Bar Council of Kerela reported in 1999 (3) SCC 422 has to be reemphasized, wherein it is held that 'It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the 15 OA.No.170/00527/2021/CAT/BANGALORE decision in Taylor vs. Taylor which was followed by Lord Roche in Nazir Ahmad vs. King Emperor who stated as under :
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
16. Hence, the respondents may consider the promotion of the applicants and others with reference to their eligibility dated 01.01.2021 in the light of the above Hon'ble Apex Court judgement. And if the department would like to go ahead with the implementation of their policy intention as stated in the document dated 05.08.2021, as any variation in the conditions of service of public post by mere executive order was not permissible, as the applicants would be deprived of the opportunity of filing objection to it if they so desire. It is made amply clear that to pursue further with the said decision, the respondents authorities must go ahead with the rule making process and power of the Government; where opportunity will accrue to the applicants for filing the objections at an appropriate time after the draft rules are notified. And only after the rules are finalized they will become actionable.
17. Further, we would like to add that no one has a right to promotion but time and again Apex Court has ruled in umpteen number of cases that every employee has a right to be considered for promotion and that would be applicable to the present applicants also. In Civil Appeal Nos. 517-518 of 2017 of Union of India & Ors vs Manpreet Singh Poonam and Ors, the same ratio is applied and earlier cases are cited vide their Division Bench judgement dated March 08, 2022 and the court observed that "No officer has a vested right to a promotional post, which is restricted to that of consideration according to law. The law on this aspect is settled by this Court in the case of Ajay Kumar Shukla and Ors. v. Arvind Rai and Ors., 2021 SCC OnLine SC 1195:
16OA.No.170/00527/2021/CAT/BANGALORE "37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty [(1991) 2 SCC 295] in paragraph 4 of the report which is reproduced below:
"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified."
38. A Constitution Bench in case of Ajit Singh v. State of Punjab [(1999) 7 SCC 209], laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:
"21 : Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22 : Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and 17 OA.No.170/00527/2021/CAT/BANGALORE appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
"Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) xxx xxx xxx
27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered"
for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."
In the case of Civil Appeal No. 5966 of 2021 arising out of SLP (Civil) No. 5435 of 2020 of Ajay Kumar Shukla and Ors vs Arvind Rai and Ors, the Hon'ble Apex Court decided similar issue and has further cited that "This Court in Major General H.M. Singh, VSM vs. UOI and Another, again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of 18 OA.No.170/00527/2021/CAT/BANGALORE India. The relevant extract from paragraph 28 is reproduced below:
"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant-General, when it became available on 1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."
As the applicants were eligible for promotion on 01.01.2021 and on the same pretext they were not considered for promotion whereas they 19 OA.No.170/00527/2021/CAT/BANGALORE had right to be considered for promotion and as the rules existing required them to be considered for promotion. Hence, it may not be out of place to say that the applicants if eligible for promotion on 01.01.2021 should be given promotion from that date as some of the similarly placed persons were given promotion with existing rules in decentralized cadre whereas the applicants were denied that benefit on the pretext that the cadre was being merged and a new unified cadre was being created.
18. Considering all the above discussions we are having no doubt in our mind and we are fully convinced that applicants have made out a good case for themselves that the impugned document at Annexure A-12 dated 05.08.2021 is not actionable and it can only be labeled as a policy intention which needs to be converted into a rule which can be actionable as per due process of law and to that effect the document dated 18.02.2021 at Annexure A-8 labeled promotions / grant of MACP in R/o defence civilian employees of ASC Centre and College No. 78501/2/Q/ ST-12 (CIV) deserves to be set aside as actionable document having effect of a service rule (But it may remain as a policy intention).
19. Accordingly, we pass the following :-
Order
(i) The impugned order dated 18.02.2021 issued by Respondent No. 2 (Annexure A-8) is set aside. And accordingly the consequent Central roaster dated 05.08.2021 (Annexure- A12) becomes without any force of law and invalid.
(ii) The respondents are directed to consider the case of promotion of the applicants and other eligible candidates as per the existing rules dated 11.04.2012 SRO- 23, the Army 20 OA.No.170/00527/2021/CAT/BANGALORE Group C (Upper Division Clerk & Lower Division Clerk) Recruitment Rules 2012 till the time the new rules are notified.
(iii) OA stands allowed to the extent indicated above.
(iv) Compliance shall be made in 03 months from the receipt of the certified copy of this order.
20. Accordingly, all pending MAs, if any are disposed of.
21. No order as to costs.
(SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/mg/