Central Administrative Tribunal - Delhi
Surinder Singh vs Union Of India Through on 12 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.1951/2011 New Delhi, this the 12th day of October, 2012 CORAM: HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Surinder Singh, Age 58 years, S/o Late Shri R.S. Heera, R/o C-9/9462, Vasant Kunj, New Delhi 110 070 Presently working as Supdt., Directorate of Logistics Customs & Central Excise .Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Union of India Through The Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi 2. The Chairman, Central Board of Excise & Customs, North Block, New Delhi 3. The Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pension, North Block, New Delhi Respondents (By Advocate: Shri R.N. Singh) O R D E R
By Dr. Veena Chhotray:
The applicant, a Superintendent under the Central Board of Excise and Customs, is aggrieved at his non promotion as Assistant Director. As this is linked with finalizing the draft revised RRs, he has also challenged the delay in their finalization. The OA seeks the following reliefs :-
(i) to direct the respondents Nos.1&2 to consider the proposal dated 06.10.2010 as submitted by the Directorate and after finalizing the recruitment rules in all respect including Gazetted Notification for the post of Asstt. Director (Communication), and consider the case of applicant for promotion to the post of Asstt. Director (Communication) and if the applicant is found fit he may be promoted with all benefits;
(ii) to pass such other and further order as deemed fit and proper.
2. Shri S.K. Gupta and Shri R.N. Singh would appear as the counsels respectively for the applicant and the respondents.
3. The brief facts are that the applicant had been transferred on deputation from the BSF as a Technical Assistant and subsequently absorbed in the then Directorate of Preventive Operations, Customs & Central Excise in 1975. (This was re-designated as Directorate of Logistics, Customs and Central Excise). He was promoted as a Superintendent (Maintenance) on regular basis in the year 2000. This is a Group B post. The applicant has been working as such since then. He is due to superannuate in March, 2013.
3.1 The claim of the applicant is for promotion to the post of Assistant Director Communications. This is a Group A post. As a result of restructuring the Group A cadre of Telecommunication Wing, 12 posts of Assistant Directors (Communication) were inter alia created in the Junior Time Scale. This was in the year 1999 (Annex.A-6). In the same year, revised draft Recruitment Rules for all Group A posts in the Telecommunication Wing of the CBEC were proposed by the Directorate to the CBEC (Annex.A-7). It is these RRs with the non finalization of which the applicant is aggrieved.
3.2 As per the details submitted in the CA, the said RRs have been in process in inter-departmental consultation and with the UPSC. However, in between, certain basic issues such as cadre restructuring of the Directorate on functional basis have arisen. At one point even winding up the entire Telecommunication set up or manning it with reduced strength has been on the cards. In March, 2010, the matter was considered by the Committee of Secretaries. While agreeing in principle with the Administrative Departments proposal to retain the Telecommunications Wing, the COS recommended that the Department of Revenue was to re-work the staffing requirement strictly on functional consideration and then only propose retention of required number of posts. While doing this, the department was also asked to look into the qualifications required for handling the equipments proposed for induction so that the RRs could be amended suitably. The aforesaid exercise was recommended to be completed within a year.
The applicant has placed reliance on the COS recommendations and the time frame set by it.
3.3 In the meanwhile, representations by the applicant have been forwarded by the Directorate to the Ministry urging for expeditious notification of the revised RRs. At one point of time, even filling up the vacant posts of Assistant Director (Communication) on ad hoc basis as an interim measure had also been suggested, on the ground of the communication work being adversely affected.
4. It is the case of the applicant that the delay in finalization and notification of the revised RRs has been arbitrary on the part of the Department of Revenue and the CBSE (Respondents No.1 and 2 respectively). The letter dated 06.10.2010 by the Commissioner from the Directorate (Annex.1) has been adverted to. By referring to this letter it is sought to be emphasized that the non finalization of the RRs was only on the presumption of the Telecommunications cadre being a dying cadre. However, the same presumptions no more holding good in light of the recommendations of the COS and the requirement of the remaining exercise to be completed by the respondents within a year of the meeting of the COS have also been highlighted. As per Shri S.K. Gupta, learned counsel for the applicant, the delay involved by virtue of which the revised RRs though proposed as long back as 1999, have still not been finalized; do not show the respondents as a model employer.
To reinforce the plea of arbitrariness, the learned counsel would also contend that in 2005 (17.1.2005 to be precise) a decision had been taken upto the level of the concerned Minister for filling the said posts of Assistant Director (Communication) by accepting the advice of the UPSC. Extracts from certain file notings obtained under the RTI would also be cited in support.
4.1 The inaction on the part of the respondents in finally notifying only a part of the RRs has also been averred to be discriminatory and thereby violative of the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution of India. As per the applicant, while the revised RRs as proposed in 1999 were for various categories of Group A posts, the RRs for the Additional Directors posts were delinked and notified in 2005. The piecemeal notification and the subsequent promotions of the higher officials have been challenged as being unjustifiably selective and discriminatory.
4.3 The impugned inaction regarding notification of the revised RRs for the categories below the Additional Director (including the Assistant Director with which the applicant is concerned) is also submitted to be violative of the relevant instructions by the GOI on the subject. The DOPT directive issued vide the OM dated 18.3.1988 requiring review of recruitment rules once in five years has been referred; as also the OM dated 16.8.1993 prescribing immediate action to frame RRs for Group A and B posts, after creation of the post.
4.4 The applicant has also pleaded for at least ad hoc promotion as per the draft RRs. Shri S.K. Gupta, the learned counsel would draw our attention to the letter dated 31.10.2008 from the Commissioner, urging for such a course of action in the interest of work of the Directorate (Annex.20). The GOI instructions vide the DOPT OM dated 30.3.1988 for making ad hoc appointments in absence of recruitment rules, and revision of recruitment rules would also be referred. Further the precedents of ad hoc promotions in the Directorate have been cited.
4.5 The learned counsel Shri Gupta would tend to highlight the legitimate expectations on the part of the applicant for promotion to the higher post; given the fact that he had been working in the same post of Superintendent since 1992 (first on ad hoc basis and from 2000 on regular basis). The delay in final notification of the revised RRs which would have provided the applicant the senior most Superintendent - an opportunity of consideration for further promotion is thus stated to have prejudicially affected his service interests. The fact of the applicant being at the fag and of his career in view of the impending superannuation in March, 2013 would also be urged by the learned counsel.
4.6 A number of case laws have been cited in support of the claims in the OA. These are briefly referred below:
i) Dr (Ms) OZ Hussain vs Union of India {1990 Supp. SCC 688} where it was held that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and make the service ineffective. Promotion is thus a normal incidence of service.
ii) CSIR & Anr vs K.G.S. Bhatt & Anr {(1989) 4 SCC 635} in which the Honble Apex Court had observed that an organization, public or private does not hire a hand, but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career, one must, therefore, be given opportunity to advance.
iii) Vimal Kumari vs State of Haryana & Ors {1998 SCC (L&S) 1018} to contend that service conditions of employees of the Government can be regulated by draft RRs in certain situations.
iv) Abraham Jacob & Ors vs Union of India {1998 SCC (L&S) 995} to argue that administrative decision could be taken to make promotions according to draft rules which were finalized later on.
v) Union of India & Anr vs Hemraj Singh Chauhan & Ors {(2010) 4 SCC 290} to reiterate that holding of cadre review at an interval of 5 years is mandatory except where there is a valid justification for not doing so. Further, to contend that lethargy, inaction and absence of a sense of responsibility cannot fall within the category of just exceptions.
5. The claims in the OA have been contested by the respondents. As per their counter reply, framing of Recruitment Rules and Notification thereof falls under the exclusive domain of the executive. It is further submitted that the needful is done by the competent authority after taking into account various factors and after due deliberations at various levels and with various nodal Departments. Reliance has been placed on the law laid down by the Honble Apex Court in Mallikarjuna Rao vs State of Andhra Pradesh {(1990) 2 SCC 707} where it was held that it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive. The other decisions cited is in P.U. Joshi & Ors vs The Accountant General, Ahmedabad & Ors {2003 (2) SCC 632} where the aforesaid view was reiterated.
5.1 The learned counsel for the respondents Shri R.N. Singh would also urge that Government cannot be compelled to amend RRs to give benefit to a particular employee or a set of employees. Further, there could not be a presumption about the RRs being framed and finalized in a particular manner. The pleadings on behalf of the applicant for an urgent finalization of the RRs in view of the impending superannuation of the applicant would be stated not to be really relevant to the issue at hand.
5.2 As per Shri R.N. Singh, there had been no sluggishness or inaction on the part of the respondents, unbecoming of the Government in a welfare State. We would be made to run through the detailed submissions made in their Counter Affidavit, para-wise reply, Para-1, to keep us abreast with the stage to stage development in processing of the matter.
5.3 It would also be highlighted by the learned counsel for the respondents that during the processing of the RRs, the Notification of the amended RRs for the post of Additional Director in the year 2005, was not on account of any selective processing on the part of the respondents, but simply due to the fact that this segment alone had been finalized at that point of time after due concurrence of the UPSC and other concerned agencies.
5.4 As per the respondents learned counsel, the proposal for restructuring of the entire Telecommunication cadre was still under consideration of the Department. In such a situation, issuance of any direction in judicial review compelling the respondents for hurrying the Notification of the amended RRs would not be appropriate.
5.5 Rebutting the applicants plea for a promotion on the basis of the draft RRs, it would be submitted that as per the settled law, the draft RRs could be acted upon only in two alternative scenarios i.e. either when there is an intent to notify them in future or when there are no earlier rules. As per the learned counsel Shri Singh, in the present case neither of the situations existed. Our attention would also be drawn to the averments in the CA to the effect about there being no provision in the existing RRs for recruitment to the post of Assistant Director (Communication) by promotion. The replies to Paras 5(E) to 5 (F) has made the following submissions:-
Paras-5(E) to 5(F): That the contents of the corresponding paras, except those being matter of record, are wrong, misleading and misconceived and hence vehemently denied. It is reiterated that the method of recruitment to the post of Assistant Director (Comns.) is by direct recruitment or reemployment or transfer or deputation and there is no provision for recruitment to the post by promotion as per existing RRs. The draft Recruitment Rules can replace the existing RRs only after their approval and notification and no promotion can be made on the basis of draft RRs. Since the RRs for the post of Assistant Director (Comns.) have not been finalized till date, the statement of the applicant that he fulfills eligibility conditions as per the proposed RRs has no meaning. The officers in the grade of Assistant Director (Comns.), Deputy Director (Comns.) and Joint Director (Comns.) were promoted to the next higher grade as per provisions in the existing RRs. Since the fate of the Directorate was uncertain and has not attained finality as on date, the case of the applicant for promotion could not be considered.
The claim of the applicant about fulfilling eligibility conditions as per the proposed RRs is thus averred to have no meaning.
5.6 Even the limited contention for ad hoc promotion has been strongly opposed by the respondents. This is sought to be done on multiple grounds: (i)Ad hoc promotions are made to meet administrative exigencies and not only to meet the expectations of an employee or a set of employees. (ii) No employee has got any enforceable right to seek promotion on ad hoc basis. (iii) As per the currently operative existing RRs there is no provision for promotion to the post of Assistant Director. (iv) The draft revised RRs cannot be acted upon in the given situation as explained above. (v) The averment of the applicant about meeting all eligibility conditions of the proposed RRs has no meaning. (vi) Directions for grant of ad hoc promotion is not even one of the main reliefs claimed as per Para 8 of the OA.
6. We have carefully considered the respective submissions and the material on records. In order to adjudicate on the issue at hand, the following aspects are found to be relevant:-
6.1 Though the need for opportunities for advancement both in the interest of the employees as well as for increasing organizational efficiency has been recognized by the superior courts in a catena of judgments; mere chances of promotions have not been held as a Fundamental Right of an employee. In the case of S.B. Bhattacharjee vs S.D. Majumdar & Ors {(2008) 1 SCC (L&S) 21, the Honble Apex Court while upholding effective and meaningful consideration for promotion as per the service rules, as a Fundamental Right of an employee; also observed that a person has no Fundamental Right of promotion in terms of Article 16 of the Constitution of India. It was also observed that the terms and conditions of service of an employee including the right to be considered for promotion indisputably are governed by the rules under the proviso appended to Article 309 of the Constitution of India.
6.2 It is also a settled proposition of law that determining service conditions of its employees, which definitely includes framing Recruitment Rules or revising them, is within the legitimate domain of the Government. No unwarranted interference in judicial review has been advocated in such matters. The respondents have cited the Apex Courts judgments in Mallikarjuna Rao and P.U. Joshis cases (supra). In another case i.e. Union of India vs Pushpa Rani & Ors {(2008) 2 SCC (L&S) 857}, it was observed by the Honble Apex Court: power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by malafide.
6.3 The position of law in respect of acting on draft RRs was spelt out by the Honble Apex Court very clearly in its Judgment in Vimla Kumaris cited on behalf of the applicant. The following propositions were propounded: (i) It is open to the Government to regulate the service conditions of the employees for whom the rules are made, by those rules even in their draft stage provided there is clear intention on the part of the Government to enforce those rules in the near future. (ii) Recourse to such draft rule is permissible only for the interregnum to meet any emergent situation. (iii) Such draft rules cannot be treated to be made under rule 309 of the Constitution (iv) Such draft rules cannot legally exclude the operation of any existing executive or administrative instruction on the subject. (v) The draft rule cannot also exclude the jurisdiction of the Government or for that matter any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.
6.4 The case laws relied upon by the applicants learned counsel are found to be factually distinguishable and hence cannot be pressed to support the claims in the OA. In Vimla Kumaris case, referred in the preceding para, on the facts of the case it had been held by the Honble Apex Court that the draft rules could not be invoked for regulating promotion criteria. Hem Raj Chauhans case dealt with the issue of cadre review, prescribed at an interval of 5 years as per the Indian Administrative Service Cadre Rules. Abraham Jacobs case essentially was only the subject of inter-se-seniority between direct recruits and promottees. As per the facts of the case, it had been held therein that an administrative decision could be taken to make promotions according to the draft rules which were finalized later on.
6.5 The contention of the applicant of an unjustified delay on the part of the respondents in finalizing the revised RRs or of arbitrarily and selectively doing the same only for the higher posts of Addl. Director has not been found tenable considering the detailed submissions made by the respondents in their Counter Affidavit. The relevant extracts from Para 1 of the para-wise reply are reproduced as here under:
Para-1: That the contents of the corresponding para, except those being matter of record, are wrong, misleading and misconceived and hence vehemently denied. It is submitted that a proposal for amendment to RRs for all group A posts in Telecommunication Wing under CBEC was submitted to the Ministry of Finance by the Commissioner, Directorate of Preventive Operations on 8.10.1999. After approval of DOP&T, the proposal was sent to UPSC on 22.8.2000. UPSC, vide its letter dated 14.9.2000, had sought certain clarification/documents which was sent to the Commission vide letter dated 7.3.2001. The UPSC, vide letter dated 12.4.2001, had noticed discrepancies in the draft RRs and had sought further clarification/documents in respect of the posts of Joint Director (Comns), Deputy Director (Comns.) and Assistant Director (Comns). The Commission had conveyed approval for the Recruitment Rules for the post of Additional Director (Comns.) in the Directorate of Preventive Operation for its publication in the Official Gaette of India. After vetting by Ministry of Law &Justice, the RRs for the post of Additional Director (Comns) were notified on 27.10.2005.
As suggested by the Commission, the changes in the RRs for the posts of Joint Director (Comns), deputy Director (Comns) and Assistant Director (Comns) were carried out and the file was referred to DOP&T for their approval. A number of consultations were made with DOP&T but the DOP&T did not approve the draft RRs. Finally, in December, 2007 the DOP&T had advised the department to consult the Department of Expenditure for the cadre restructuring of Telecommunication Wing on functional basis.
In 2008, the Staff Inspection Unit (SIU) recommended the winding up of the entire telecommunication set up in the Department. The department did not agree with the proposal and decided to retain telecommunication wing. The Ministry of Finance, vide letter No.A-11012/01/2007-Ad.IV dated 11.5.2009, had decided to abolish 484 posts in the Telecommunication Wing of Directorate of Logistics. It was also decided that the revised sanctioned strength in various grades of Telecommunication Wing will be 454. The proposal for retention of 454 posts in the Telecommunication Wing was sent to department of Expenditure for their concurrence.
The Committee of Secretaries (COS) in its meeting held on 29.3.2010 to consider the SIU recommendations on closure of Telecommunication Wing under Central Board of Excise and Customs (CBEC), had considered the proposal for retention of the 454 posts in the Telecommunication Wing of the CBEC and agreed in principle to allow retention of the Telecommunication Wing. The COS had further recommended that the Department of Revenue would critically rework the staffing requirement under Telecommunication Wing strictly on the functional consideration and then only propose retention of required number of posts. The COS had also recommended that the exercise would be completed in a year and the posts failing vacant on account of retirement, resignation and other reasons would not be filled up and shall be abolished. Thereafter, the department would approach the Department of Expenditure for authorizing specified number of posts in the Telecommunication Cadre.
As the basic requisite regarding the restructuring of the Telecommunication cadre itself has not been finalized, any argument for finalizing the revised RRs in haste would not be justified given the facts of the case. The arguments relied upon to build up a case on the contrary relying upon bits and patches of certain communications, certain documents received under the RTI; to say the least are sketchy and not based on a holistic view of the issue.
6.6 Even the proposal for an ad hoc promotion on the basis of the draft revised RRs is not found to be tenable on the several grounds advanced by the respondents, the foremost being want of any provision for promotion to the post in question as per the existing RRs.
7. To conclude, on a thorough and careful consideration, we have not found the case of the applicant as tenable either as per law on the subject or as per facts of the case. We do not find the present case as one in which the delay in finalization of the revised RRs proposed in 1999 shows an inaction or lethargy on the part of the respondents. On the other hand, it is found to be material that issues of seminal importance such as the very justification for continuation of the cadre and its size have been engaging the attention of the respondents at the highest levels. Their concern to rework the restructured proposal keeping in view the functional needs of the organization, cannot by any stretch of imagination be dubbed as arbitrary. We have also noted the specific recommendations of the Committee of Secretaries to look into the qualifications requisite for various posts, before suitable amendments of the RRs could be undertaken. The plea of any discrimination in handling of the matter has not been found to be tenable either. As per the settled law on the subject, the present one is not a case where the draft revised RRs (not even in the final stage, not to mention about there being intent to notify them in near future) cannot justifiably be directed to be made the basis for considering the promotion of the applicant. Also the prayer for ad hoc promotion, in view of the impending superannuation, cannot be accepted in light of the existing RRs not having any provision for such promotion.
Resultantly, the OA is found to be devoid of merit and is dismissed hereby with no orders as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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