Central Administrative Tribunal - Delhi
Sh. V.K. Arora S/O Late Sh. B.R. Arora, ... vs Union Of India (Uoi), Through Its ... on 25 May, 2007
ORDER Mukesh Kumar Gupta, Member (J)
1. Since issue raised in these two applications is common in nature & grounded on almost identical facts, the same are being disposed of by present common order. For sake of convenience, facts will be delineated hereinafter from OA No. 145/2006.
2. MA 162/2006 in OA 145/2006 as well as MA No 540/2006 in OA No 669/2006 under Rule 4(5)(a) of CAT (Procedure) Rules, 1987 for joining together are allowed.
3. Applicants' grievance is that judgment rendered in OA No. 1435/2005 dated 11.11.2005 by Co-ordinate Bench of this Tribunal, in which one of us (Mukesh Kumar Gupta) was party, be reviewed & recalled. Applicants also seek consequential relief. At the outset we may note that though in OA No. 669/2006 in addition to aforesaid relief prayer was made to hold a thorough enquiry into the circumstances which resulted in omission/suppression of material facts before this Tribunal & to take action against the official respondents for the same besides awarding exemplary fine & costs, but during the course of oral hearing, said relief had not been pressed.
Background Facts:
4. Central Secretariat Service Direct Recruit Assistants' Association & four others filed OA No. 1435/2005 challenging vires of Regulation 4 of Central Secretariat Service Section Officers' Grade / Stenographers' Grade 'B' (Limited Departmental Competition Examinations) Regulation 1964. They had also sought declaration that Grade-C Stenographers of Central Secretariat Stenographers Services (hereinafter referred as CSSS) are not eligible for appearing in Central Secretariat Service Section Officers Grade (Limited Departmental Competitive Examination) [herein after referred as CSSSOG (LDCE)] with consequential benefits. Said OA was allowed vide Order dated 11.11.2005 quashing Para-4 of aforesaid Regulations being ultra-vires & inconsistent to Rule 13 read with Para-2 under Fourth Schedule of said Rules. As while issuing notices in said OA vide order dated 18.7.2005 it was observed that appointment made, if any, to grade of Section Officer would be subject to final outcome of OA, it also was held that appointment made, if any, would have to be regulated in terms of said order.
5. Said order dt. 11.11.2005 was challenged before Hon'ble Delhi High Court by four officials (applicants in OA No 145/2006) vide Civil Writ Petition Nos. 23891-94/2005 stating presently they are working as Stenographers Grade-C in various Ministries / Departments. First two applicants appeared in LDCE, 2004 for Section Officers' Grade and passed written examination while applicants No 3 & 4 were aspiring for said grade. Their rights to compete were taken away vide impugned judgment dated 11.11.2005.
6. Vide order dated 06.1.2006 while disposing of aforesaid Writ Petitions, liberty was granted to them to file fresh application under Section 19 of Administrative Tribunals Act, 1985 challenging legality & validity of said order dated 11.11.2005 along-with all other issues raised therein. Basic plea raised there had been that the issue raised in aforesaid OA stood concluded by a judgment of Hon'ble Delhi High Court in Civil Writ Petition No. 1122/1975 decided on 05.11.1976 titled as Joginder Lal Sawhney and Ors. v. Union of India and Anr. and this Tribunal's order dated 26.7.2005 in OA No. 1091/2005 [Kailash Chander and Ors. v. UOI and Ors.],and said aspects being not brought to its notice were not considered by the Tribunal. Pursuant to aforesaid order, present application has been instituted.
7. Central Secretariat Service Rules 1962 were framed in exercise of powers conferred by proviso to Article 309 of Constitution. Central Secretariat Service Section Officers' Grade (Limited Departmental Competition Examinations) Regulations 1964 were framed in pursuance of the provisions of sub-para (2) of paragraph 2 of Fourth Schedule to CCS Rules, 1962. Central Secretariat Service is one of the three Secretariat services, other two being Central Secretariat Stenographer Services & Central Secretariat Clerical Services. Presently, CSS is consisted of five grades:
S. No. Grade Scale of Pay i. Senior Selection Grade(Director) Group 'A'** Rs. 14,300-18,300 ii. Selection Grade (Deputy Secretary) Group 'A' Rs. 12,000-16,500 iii. Grade-I (Under Secretary) Group 'A' Rs. 10,000-15,200 iv. Section Officer Group 'B' (Gazetted) Rs. 6,500-10,500 v. Assistant Group 'B'(Non-Gazetted) Rs. 5,500- 9,000
**Introduced consequent upon cadre restructuring of CSS vide Order dated 28th October, 2003.
8. While the grades of Director, Deputy Secretary and Under Secretary are centralized, other two grades, namely, Section Officer and Assistants are decentralized into 33 cadres comprising one or more Ministries/Departments as mentioned in the rules, namely, Rule 5 of the CSS Rules, 1962. The mode of recruitment/promotion to the post of Section Officer, as per the Rule is 20% by direct recruitment from Civil Services Examination conducted by the UPSC, 40% by promotion quota on the basis of seniority-cum-fitness from Assistants' grade of CSS & remaining 40% based on Limited Departmental Competitive Examination conducted by the UPSC from Assistants of CSS and Stenographers Grade 'C' of CSSS. It is further stated that consequent to the cadre restructuring of CSS vide order dt 28th October, 2003, the mode of recruitment/promotion to the post of Section Officers of CSS is as under:
Mode of Recruitment Quota Source of Recruitment Promotion Quota on the basis of seniority-cum-fitness 50% Assistants' Grade of CSS, which is a feeder grade for promotion to SOs' Grade Limited Departmental Competitive Examination conducted by the UPSC 50% Assistants of CSS and Stenographers Grade 'C' of Central Secretariat Stenographers' Service.
9. The zone of promotion is specified by the nodal Ministry, i.e. Department of Personnel and the cadre authorities are requested to send list of eligible Assistants covered under the zone thus fixed for inclusion in the said list. The Assistants covered in the zone and found fit by the Departmental Promotion Committees are promoted against the existing seniority quota vacancies in the respective cadres and the unadjusted/remaining Assistants are included in a Central Panel in the order in which they figure in the SCSL of Assistants prepared for the purpose of promotion in accordance with Regulation 3 of the Central Secretariat Service (Preparation of Common Seniority List) Regulations, 1970. Rule 13 of the CSS Rules, 1962 prescribe the procedure for recruitment to the Section Officers' & Assistants' Grade.
10. Fourth Schedule of the CSS Rules, 1962 provides for constitution & maintenance of the Select Lists for the Section Officer grade of CSS. It provides that addition to the Select Lists for Section Officer Grade, in any cadre, shall be made in such numbers as the cadre authority may determine from time to time keeping in view the existing & anticipated regular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified in Regulations 2 (1) (a) and 2 (1) (b). While Regulation 2 (1) (a) provides for inclusion of officers of Assistant Grade for S.O. grade who have rendered not less than 8 years' approved service in that grade and are within the range of seniority, subject to rejection of the unfit. Regulation 2 (1) (b) provides for inclusion of persons selected on the basis of result of LDCE held by the UPSC from time to time in the order of their merit. Regulation 2 (2) provides for the rules for holding the LDCE, which is further determined by the CSS SOs' Grade/Stenographers' Grade 'B' (Limited Departmental Competitive Examinations) Regulations, 1964 as laid down under the provisions of the Fourth Schedule to the CSS Rules. As per the aforesaid Regulations, any permanent or temporary officer of the Assistants Grade of the CSS or Grade 'C' of CSSS who, on the crucial date, satisfies the prescribed conditions is eligible to appear in the LDC Examination for promotion to the grade of Section Officer.
11. It is further stated that Regulations, 1964 framed under the authority of the CSS Rules, 1962 stand to supplement the rules with no intention of overriding the same. The Committee on Cadre Restructuring of CSS, which submitted its report in February 2002, examined the issue of stoppage of lateral entry of Stenographers into CSS, in detail. The Committee recommended for stoppage of lateral entry of Stenographers of CSSS into CSS both at the level of Section Officer as well as Under Secretary. However, the Government deferred a final decision in the matter & decided to constitute a 'Group of Officers' for cadre restructuring of CSSS. Based on recommendations of 'Group of Officers', the Government considered the issue and, inter-alia, following decisions were taken vide order dated 27.07.2005:
O R D E R Sub:- Lateral entry of Stenographers belonging to CSSS in the Grades of Section Officer & Under Secretary of CSS.
The Government had set up a 'Group of Officers' on Cadre Structure of Central Secretariat Stenographers Service (CSSS), in October, 2003. The Group submitted its report in February, 2004. The Report of the 'Group' has been considered by the Government and inter-alia the following decisions have been taken;
(i) To discontinue the lateral entry of CSSS officers into Central Secretariat Service (CSS) at the level of Under Secretary of CSS.
(ii) To allow only those Stenographer Grade 'C' who are graduates to participate in the Limited Departmental Competitive Examination for the Section Officer's Grade of CSS.
2. Necessary notification relating to amendment to the CSS Rules will be issued' Since the CSS Rules are statutory in nature, the Regulations made there-under have the same statutory force. The provision of lateral entry of Stenographer 'C' in the SOs' Grade LDCE is in accordance with the statutory CSS Rules, 1962 & the applicants' allegation is totally unfounded and baseless.
12. To appreciate the controversy in question, it would be expedient to notice the relevant excerpts of 1962 Rules, and 1964 Regulations framed there-under, which reads as under:
THE CENTRAL SECRETARIAT SERVICE SECTION OFFICERS' GRADE/STENOGRAPHERS' GRADE 'B' (LIMITED DEPARTMENTAL COMPETITIVE EXAMINATIONS) REGULATIONS, 1964 Conditions of Eligibility - Any permanent or temporary officer of the Assistants' Grade of the Central Secretariat Service or of Grade C of the Central Secretariat Stenographers' Service who, on the crucial date, satisfies following conditions, shall be eligible to appear at the examination:
'THE CENTRAL SECRETARIAT SERVICE RULES, 1962 In exercise of the powers conferred by the proviso to article 309 of the Constitution and all other powers enabling him in this behalf the President hereby makes the following rules, namely:
Definitions.
(e) 'cadre' means the group of posts in the Grades of Section Officer and Assistant in any of the Ministries or Offices specified in column (2) of the First Schedule and in all the Offices specified against such Ministry or Office in column (3) of that Schedule;
'Cadre officer' in relation to the Section Officers' Grade or the Assistants' Grade means a member of the Service of the Section Officers' Grade or Assistants' Grade, as the case may be, and includes a temporary officer approved for long term appointment to that Grade;
(hh) 'Common seniority list' in relation to any Grade means the seniority list of officers of that Grade serving in all the cadres specified in the First Schedule as on the appointed day and revised from time to time in accordance with the regulations to be framed in this behalf by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions;
(j) 'duty post' in relation to any Grade means a permanent or temporary post of that Grade and shall, in relation to grade I and the Section Officers' Grade, include the posts specified in column (2) and (3) respectively of the Second Schedule in respect of the offices specified in column (1) of that Schedule;
(k) 'Grade' means any of the Grades specified in rule 3;
'range of seniority' in relation to any grade means the range specified by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions in the common seniority list for that grade for additions to Select List or for temporary promotions, as the case may be;
(q) 'Select List' in relation to the Selection Grade and Grade I or the Section Officers' Grade and the Assistants' Grade means the Select List prepared in accordance with the regulations made under Sub-rule (4) of the Rule 12 or under the regulations contained in the Fourth Schedule, as the case may be;
3. Composition of the Service. - (1) There shall be four grades in the Service classified as follows, namely:
Grade Classification
(i)Selection Grade (Deputy Secretary to the Govt. of India or equivalent)
(ii) Grade I (Under Secretary to the Govt. of India or equivalent) Central Civil Service Group A Ministerial
(iii)Section Officers' grade
(iv) Assistants' Grade Central Civil Service Group B Ministerial
10. Duty posts to be held by cadre officers, - Every duty post in a cadre shall, unless declared to be excluded from the cadre under Rule 7, or held in abeyance for any reasons, be held by a cadre officer of the appropriate Grade.
Provided that, subject to such instructions as the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions may, from time to time issue, officers of Grade A of the corresponding Cadre of the Central Secretariat Stenographers' Service, who have rendered not less than two years' service in that Grade may be posted to duty posts in the Section Officers' grade and officers of grade C Stenographers' of the corresponding Cadre of the Central Secretariat Stenographers' Service who have rendered not less than five years service in that grade may be posted to duty posts in the Assistant's Grade, the period of such appointment in either case being limited to two years. Officers of the corresponding cadre of the Central Secretariat Stenographers' Service so appointed to duty posts in the Section Officers' and Assistants' Grade shall continue to draw the grade pay admissible to them in that service from time to time.
x x x x x x x x x x x x x x x x x x x x x
13. Recruitment to the Section Officers' and the Assistants' Grade. - (1) Section Officers Grade - Twenty per cent of the regular vacancies in the Section Officers' Grade in any cadre shall be filled by direct recruitment on the basis of the result of a competitive examination held by the Commission for this purpose, from time to time. The remaining vacancies shall be filled by appointment of persons included in the Select List for the Section Officers' Grade. Such appointments shall be made in the order of seniority in the Select List except when for reasons to be recorded in writing, a person is not considered fit for such appointment on his turn:
Provided that if sufficient number of candidates are not available for filling up the vacancies in a cadre in any recruitment year, either by direct recruitment or by appointment of persons included in the Select List for Section Officers' Grade, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the next recruitment year;
Provided further that no such unfilled vacancies shall be carried forward for more than two recruitment year beyond the year to which the recruitment relates, where after the vacancies if any, still remaining unfilled belonging to one mode of recruitment shall be transferred as additional vacancies for the other mode of recruitment.
(2) Temporary vacancies in the Section Officers' Grade in any cadre shall be filled by the appointment of persons, included or approved for inclusion in the Select List for the Section Officers' Grade in that cadre and any vacancies remaining unfilled thereafter shall be filled from among the officers of the Assistant Grade who have rendered not less than 8 years approved service in the grade and are within the range of seniority, on the basis of seniority subject to the rejection of the unfit:
Provided that where an officer of the grade of Assistant is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned.
Provided further that if officers within the range of seniority are not available in a cadre for promotion, the appointment shall be made from a panel, furnished by the Central Government in the Department of Personnel & Training in the Ministry of Personnel, Public Grievances and Pensions of such officers serving in the other cadres.
x x x x x x x x x x x x x x x x x x x x (5) For the purpose of sub -rules (1) and (2) a Select List for the Section Officers' Grade shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule.
(6) Assistant Grade x x x x x x x x x x x x x x x x x x x x x x x x x x (8) For the purpose of Sub-rule (6) a Select List for the Assistants' Grade shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x
23. Regulations. - The Department of Personnel and Training in the Ministry of Personnel, Public Grievance and Pensions may make regulations, not inconsistent with these rules, to provide for all matters for which provision is necessary or expedient, for the purpose of giving effect to these rules.
x x x x x x x x x x x x xx x x x x xx x x x xx x x x xx 'FOURTH SCHEDULE (See Rules 13 (5) and 13 (8)) Regulations for the constitution and maintenance of the Select Lists for the Section Officers' and Assistants' Grades of the Central Secretariat Service.
1. Constitution. - Officers borne on the Regular Temporary Establishment of the respective Grades immediately before the appointed day and allotted to a cadre under Rule 8 shall form the Select List for the concerned Grade for cadre, on such date.
A. SECTION OFFICERS' GRADE
2. Maintenance. - (1) Additions to the Select List for the Section Officers' Grade in any cadre shall be made in such numbers as the cadre authority may determine from time to time keeping in view the existing and anticipated regular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified below, namely:
(a) Officers of the Assistants' Grade in that grade who have rendered not less than eight years' approved service in that Grade and are within the range of seniority, in the order of their seniority, subject to the rejection of the unfit:
Provided that where an officer of the Assistants' Grade is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned.
Second Proviso omitted vide Notification No. 21/14/97-CS.I dated 8th March, 1999.
(b) persons selected on the results of the limited departmental competitive examinations, held by the Commission, from time to time, in the order of their merit.
(2) The rules for the limited departmental competitive examinations referred to in Clause (1) above shall be determined by regulations made by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions and the allotment of candidates from the results of these examinations to the various cadre shall also be made by the Department. xxx xxx.
13. Sh. Venkataraman, Ld. Counsel basically raised two contentions: Firstly, issue raised in OA No. 1435/2005 regarding vires of Regulation-4 stood concluded by judgment of Hon'ble Delhi High Court dt 05.11.1976 (Joginder Lal Sawhney v. UOI, CWP No. 1122/1975), which attained finality and, therefore, its validity cannot be re-agitated. Secondly, another set of Assistants of CSSS filed OA No. 1091/2005 seeking deferment of respondent No 1 & 2 decision on the stoppage of lateral entry of officers of Stenographer Service into CSSS. They had also sought directions to respondents to accept the recommendations & to declare that additional 638 posts created in pursuance of recommendations of Expert Committee to reduce / remove stagnation in Assistant Grade in CSSS cannot be taken into consideration while calculating vacancies to be filled on the basis of LDCE 2003. Said OA was dismissed by Coordinate Bench of this Tribunal on 26.7.2005. These facts were not brought to the notice of this Tribunal. Ld. counsel strenuously urged that if the above mentioned orders & judgments were brought to its notice, perhaps the Tribunal would have come to a different conclusion. Concealing these aspects render this Tribunal order dated 11.11.2005 per-se void & legally unsustainable in law. Said judgment had taken away their rights to appear in LDCE for SO grade vested in them through CSSS Rules, 1962 & Regulations, 1964. Besides the above, impugned order, passed without hearing any of Stenographer Grade-C, is per se arbitrary & violates principles of natural justice, equity & fair play.
14. Before proceeding further, it will be relevant to notice the judgment of Hon'ble Delhi High Court in Civil Writ Petition No. 1122/1975 and the issue raised in OA No. 1091/2005. Prayer, made in aforesaid OA filed by 25 Assistants, as noticed & summarized vide Para-3 of judgment & order dated 26.7.2005, read as follows:
3. By virtue of the present application, the applicants seek that decision of the respondents to defer the decision on the stoppage of lateral entry of officers of Stenographers Service into CSS is illegal, arbitrary and mala fide. They further seek that a direction should be given to the respondents to accept the recommendations and to declare that additional 638 posts created in pursuance of the recommendations of the Expert Committee to reduce / remove stagnation in the Assistant Grade in CSS cannot be taken into consideration for calculating the vacancies to be filled up on the basis of LDCE-2003. They seek a direction to revise their intimation of the vacancies.
In view of above & particularly in the background of present case, as noticed hereinabove, we are of the considered view that relief prayed in said OA & issue determined therein have no relevance to the facts of present case and, therefore, said OA & judgment, by any stretch of imagination, have no application.
Issue raised in Civil Writ Petition No. 1122/1975
15. Challenge made in said Writ Petition filed by Assistant had been to inclusion of Stenographer Grade-II based on LDCE-1975 as well as preparation of a list of candidates qualified to be appointed to SO Grade in Central Secretariat Services. Challenge was primarily based on two alternative grounds: firstly, Scheme of CSS Rules, 1962 and Fourth Schedule thereof is such that only the Assistants were meant to compete at the said LDCE. Under clause-2 of Paragraph-2 of Fourth Schedule of Rules, the Rules for LDCE shall be as determined by Regulations 'made by the Department of Personnel and Administrative Reforms' & the allotment of candidates from the results of examination to various cadres shall also be made by that Department. It was contended that in so far as said Regulations enabled Stenographers to compete at the Examination with Assistants, it were ultra-vires of the Rules. Secondly, in alternative, if Regulations were not ultravires than relevant Rules were unconstitutional being contrary to Articles 14, 16 & 309 of Constitution. For the first contention, it was observed that: 'The question whether Assistants alone should be allowed to compete or whether Stenographers also should be allowed to compete at the said Examination is entirely administrative. There is no law involved in it.' Reference was made to Clause (1)(c) of paragraph 2 of the Fourth Schedule & the term used 'person' as well as 'persons'. The second alternative contention that Assistant & Stenographer were unequal had not been accepted, with the following observations:
We are not convinced, however, that Stenographers Grade II are in any way inferior to Assistants. Firstly, both of them enjoy the same scale of pay. Secondly, many of the Assistants are promotees from the Grade of Clerks for which the qualification required is only Matriculation. Thirdly, an expert body like the Third Pay Commission has recommended that Stenographers should be allowed to compete at the limited departmental competitive examination. The Union Public Service Commission has also been consulted and has agreed to this proposal. The Government of India also have taken into consideration the stagnation suffered by the Stenographers before allowing them to appear at the limited departmental competitive examination. Lastly, the work done by the Stenographers as Personal Assistants to Officers is of a higher kind than the work done by the Assistants. All these factors must have been taken into consideration before the Government took the impugned decision.
Hon'ble Court has also noticed that Stenographers were allowed to appear in LDCE from 1964 to 69 and it was only in 1970 when new avenue of promotion was opened for Stenographers 'in their own service', their eligibility in LDCE was discontinued. The Court also noticed that on second thought, Government decided in 1973 to allow them to appear in LDCE in view of recommendations of Third Pay Commission.
16. Shri K. Venkatraman, learned Counsel also raised the following contentions namely:
Hon'ble High Court discussed in detail the term 'persons' in Sub-clause (c) in significant contrast to 'Assistants' used in Sub-clauses (a) and (b) of Clause (1) paragraph 2 of Fourth Schedule. Similarly importance of term 'limited' qualifying departmental competitive examination was emphasized. Only Assistants & Stenographers with requisite experience & qualification were admitted to said examination and not the class as a whole.
As held by Coordinate Bench of this Tribunal in OA No. 1091/2005, when there is no mala fides, perversity or illegality, there was little ground to interfere in policy matter particularly when matter is governed by statutory rules.
The Tribunal erred in creating an incorrect legal construction that power to determine eligibility condition was beyond the mandate of delegation as provided in Para-2(2) of Fourth Schedule, CCS Rules, 1962. Aforesaid Regulation 4 cannot constitute as transgressing the limits of delegation of powers.
1962 Rules delegated the powers of framing the Rules for LDCE to the Department of Personnel & Training and, therefore, the Rules of 1962 left no scope for any speculation about its extent & scope of delegation.
Judgment suffered from material irregularity in as much as it ignored the fact that if framers of CCS Rules, 1962 had only the Assistant Grade in their mind as a feeder category for SO Grade, they would not have created the provisions contained in Para-2(1)(b) of Fourth Schedule of CCS Rules, 1962, where they have consciously used the term 'persons.
The Tribunal committed an error in virtually reducing the phrase by implication as Limited Departmental Competitive Examination to Limited (Assistant) Departmental Competitive Examination. Moreover Rules which remained in operation for all this long time almost four decades, could not have been challenged by applicants in OA No. 1435/2006.
17. Shri V.S.R. Krishna, learned Counsel appearing for applicants in OA No. 669/2006 adopted the aforesaid contentions. In addition, Ld. Counsel emphasized that there had been no change in the circumstance since the year 1975 and, therefore, the bogey of changed circumstances, as projected by respondents, cannot be justified & accepted by this Tribunal. Reliance was placed on recommendations made by Vth CPC vide Paragraph-45.37. It was also emphasized that the grievance of stagnation in various grades of Central Secretariat Stenographer Services remains alive and burning issue. Our attention was also drawn to Para-3 of detailed note conveying the views of Federation of Stenographers of Central Secretariat & allied offices, placed on record as Annexure A-4, submitted to the Standing Committee of Parliament, Ministry of Home Affairs on 18.7.2002.
RESPONDENTS STAND:
18. Official respondents resisted the claim laid in OAs, stating that there was no direct or indirect intention of concealing the decisions. Said judgment rendered almost 30 years ago was not within the knowledge of authority concerned in DoP&T. Further-more it would not have made any difference even if it were brought to its notice. Respondents also challenged applicant's suggestion that said judgment squarely covered the issue raised in present OAs. It was further stated that Regulation 4 being a subordinate regulation under 1962 Rules could not have traveled beyond the parent Rules. It would be expedient to notice the relevant excerpts of said reply, which reads as follows:
It is incorrect to say that CAT decision dated 11.11.2005 in OA No. 1435/2005 would have been different if the Delhi High Court decision dated 05.11.1976 was brought before the CAT. It is incorrect to say that said decision could be applied mutatis mutandis in the present application. At two points of time, separated by almost 30 years, the situations and circumstances are entirely different. In 1976, when the Hon'ble Delhi High Court rendered its decision, following factors worked as guiding principles in the said decision.
Recommendation of Third Pay Commission to allow Stenographers to compete in LDCE.
Prevalence of stagnation in CSSS when there was no stagnation in sight in Central Secretariat Service.
But in the present scenario the circumstances are entirely different as:
stagnation in CSS upto an alarming stage Assistants in their Grade are stagnating for promotion of SO for more than 15 years.
The problems of stagnation in all grades of stenographers except PS has been redressed to a reasonable level by the Govt. by constituting a Group of officers. In this connection an excerpt of the application filed by CSSS (Gazetted Officers) Association is enclosed as an evidence.
The issue regarding lateral entry of CSSS Grade 'C' to CSS has been considered by the Parliamentary Standing Committee of Ministry of Home Affairs and in its Eighty-Third Report, which was presented to Rajya Sabha on 19th December, 2001 as well as laid on the table of Lok Sabha on the said date, it was observed therein that the channels of promotion of CSS Assistants and Grade 'C' Stenographers being different from each other, only CSS Assistants should be allowed to compete in the LDCE for CSS Section Officers.
The Committee on Cadre Restructuring of CSS, which submitted its report in Feb. 2002, examined the issue of stoppage of lateral entry of Stenographers into CSS, in detail. The Committee recommended the stoppage of lateral entry of Stenographers both at the level of US and SO. The following decisions were taken vide order dated 27.07.2005.
a) To discontinue the lateral entry of CSSS officers into Central Secretariat Service (CSS) at the level of Under Secretary of CSS.
b) To allow only those Stenographer Grade 'C' who are graduates to participate in the Limited Departmental Competitive Examination for the Section Officers' Grade of CSS.
The Govt. did not consider it necessary to bring the CAT decision dated 26.7.2005 in O.A. No. 1091/2005 before the CAT because it has nothing to do with the basic point raised by the CSS Association for framing subordinate legislation under the CSS Rules 1962 by the Govt. The main contention of CSS association is that para 4 of Regulation 1964 travels beyond the CSS Rules, 1962 and the said Regulation being a subordinate Regulation under the 1962 Rules, could not travel beyond the Parent Rules.
19. Vide reply Para-4(xxi), official respondents further asserted that it was incorrect that work done by Stenographers as Personal Assistants to Officers is of higher kind, onerous than the work done by Assistants. In case of Stenographers, there is little field of work and they have to transcribe the dictation given by officers. His role is totally mechanical. On the other hand, job of Assistants is more arduous & important than that of Stenographers. ACR of Assistants is reported upon by his immediate senior officer and reviewed by another senior officer while ACR of Stenographers is reported & reviewed by same officer. It was further emphasized/highlighted that: 'The Government does not consider appropriate that the order dt. 5.11.1976 of Hon'ble Delhi High Court was exactly applicable in the present circumstances.
20. Respondent Nos. 3-7, who were initially applicants in OA No. 1435/2005 also filed separate reply & contested the claim stating that judgment of Hon'ble Delhi High Court rendered more than thirty years back was in a different factual situation relating to service condition of Stenographers in Central Secretariat Services, which is not a valid precedent after the passage of such long time particularly when there has been sea change in service conditions namely promotional avenues besides grant of financial up-gradations under ACP scheme and host of other aspects. It is well established that Legislation may be valid at the beginning but may become invalid at a later point of time with the change in circumstances. In instant case, career prospects, promotional avenues in Central Secretariat Stenographer Services have tremendously improved since the year 1975 with introduction of ACP. Chance of stagnation had been reduced. Even if it is presumed though not admitted that said delegated legislation was valid in 1975-76 but in changed scenario of 2005 onwards, the same may not be valid. Thus, there is no infirmity in Order dt. 11.11.2005, contended Shri A.K. Behera, learned Counsel. Our attention was also drawn to various judgments noticed by this Tribunal vide order dated 11.11.2005.
21. Shri A.K. Behera, learned Counsel fervently pleaded that afore-noted judgment of Hon'ble Delhi High Court is not a valid precedent & for this purpose reliance was placed on [State of Punjab v. Devan Modern Breweries Ltd.] a Constitution Bench Judgment particularly Paras-334-336, which read as follows:
334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure:
A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and 'malleable' ... No word has one proper meaning, nor can anyone seek to fix the meaning of words for others, so the interpretation of the rule remains flexible and open-ended. (See Dias Jurisprudence, 5th Edn., p. 136.)
335. However, although a decision has neither been reversed nor overruled, it may cease to be "law" owing to changed conditions and changed law. This is reflected by the principle "cessante ratione cessat ipsa lex.
... It is not easy to detect when such situations occur, for as long as the traditional theory prevails that judges never make law, but only declare it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146-47.)
336.It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes.
22. Reliance was also placed on another Constitution Bench Judgment in [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology] particularly Paras-21 & 61, which read as follows:
(21) NORMALLY, a precedent like Sabhajit Tewary which has stood for a length of time should not be reversed, however erroneous the reasoning if it has stood unquestioned, without its reasoning being 'distinguished out of all recognition by subsequent decisions and if the principles enunciated in the earlier decision can stand consistently and be reconciled with subsequent decisions of this Court, some equally authoritative. In our view Sabhajit Tewary fulfills both conditions.
(61) IN the assessment of the facts, the Court had assumed certain principles, and sought precedential support from decisions which were irrelevant and had "followed a groove chased amidst a context which has long since crumbled". Had the facts been closely scrutinised in the proper perspective. It could have led and can only lead to the conclusion that CSIR is a State within the meaning of Article 12.
23. Further reliance was placed on [Malpa Vishwanath Acharya and Ors. v. State of Maharashtra and Anr.], wherein Hon'ble Supreme Court has dealt with a question of statute being justified when enacted but becoming arbitrary and unreasonable by passage of time. Relying upon its earlier judgments in State of Madhya Pradesh v. Bhopal Sugar Industries ; Narotam Kishore Dev Varma and Ors. v. Union of India and Anr. (1994) 7 SCR 55; H.H. Shri Gwamiji of Shri Admar Mutt, Etc. v. The Commissioner, Hindu Religious & Charitable Endowments Department and Ors. ; Bhaiyalal Shukla v. State of Madhya Pradesh (1962) Suppl. 2 SCR 257; Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 3 SCC 386; and Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors. , it came to following conclusion:
The aforesaid decision clearly recognize and establish that a Statute which when enacted was justified may, with the passage of time, become arbitrary and unreasonable.
Lastly, reliance was placed on [Divisional Contoller, K.S.R.T.C. v. Mahadeva Shetty] Para-23 in specific.
24. Shri K. Venkatraman, learned Counsel for applicants in rejoinder on the other hand contended that Regulations, 1964 are only supplement to 1962 Rules & not supplant and at the best based on Para-31 of Malpa Vishwanath Acharya (supra), Government be directed to amend the Rules. In alternative, learned Counsel pleaded that in case this Tribunal decides to retain judgment dated 11.11.2005, in that eventuality, Grade-III Stenographers, who had appeared for said examination till the year 2005 be protected as it is well settled that judgment by & large operates prospectively. Learned Counsel also pleaded aforesaid relief in equity.
25. We heard learned Counsel for parties & perused the pleadings carefully.
26. Before we proceed further we may notice that on earlier occasion, after noticing various judgments, namely Lohia Machines Ltd and Anr. v. UOI 1985 (3) SCC 197 para 13, Shanti Devi v. State of UP and Ors. , T. Sham Bhatt v. UOI 1994 Suppl. (3) SCC 340 para 19, S.L. Sachdeva and Anr. v. UOI 1981 SCC (L&S) 24 para 13, Nedurimilli Janardhana Reddy v. Progressive Demostrative Students' Union and Ors. , General Officer, Commanding-in-Chief and Anr. v. Dr. Subhash Chandra Yadav and Anr. 1988 (2) SCC 35, Mohammad Yasin v. The Town Area Committee, Jalalabad and Anr. 1952 SCR 572, Indian Council of Legal Aid & Advice and Anr. v. Bar Council of India and Anr. , State of Karnataka and Ors. v. V.S. Narayanswamy , Laghu Udyog Bharti and Anr. v. UOI , State of Karnataka and Anr. v. H. Gamesh Kamath etc , this Tribunal allowed OA No 1435/2005 vide Order dt 11.11.2005 quashing Regulation 4 of Central Secretariat Service Section Officers' Grade / Stenographers' Grade 'B' (LDCE) Regulation 1964 holding the same to be ultra-vires as well as declaring Grade-C Stenographers of CSSS not eligible for appearing in Central Secretariat Service Section Officers Grade (LDCE) with consequential benefits. The relevant excerpts of said Order read as under:
20. Upon hearing Ld. Counsel for the parties and keeping in view the law noticed hereinabove, the fundamental question which needs consideration in the present case is whether para-4 of Regulation, 1964, making Grade 'C' Central Secretariat Stenographers' Service eligible for Limited Departmental Competitive Examination of Section Officer of CSS is valid and legal or otherwise.
21. On bestowing our careful consideration to the entire aspect, particularly to the facts noticed hereinabove, we may note that the power conferred upon the Department of Personnel & Training in the Ministry of Personnel, Public Grievances and Pension under para 2 (2) of Fourth Schedule to the CSS Rules, 1962 had been to frame rules 'for the Limited Departmental Competitive Examinations'. We may note that para-2 of the said Fourth Schedule deals with the maintenance of Select List for the Section Officer Grade. It is the undisputed facts that the term 'maintenance' used therein include 'addition' to the Select List also keeping in view the existing and anticipated regular vacancies. The said para-2 read with Rules 10 & 13 of the CSS Rules, 1962 nowhere makes Stenographer Grade 'C' of CSSS as either feeder category or eligible for promotion to the Grade of Section Officer in the Central Secretariat Service. The scope of power conferred to the said Department under para 2 (2) of the Fourth Schedule, in our considered view, is limited and restricted.
Framing of rules will not, in the given circumstances, include power to lay down the conditions of eligibility and making a cadre, which is alien & outside the normal channel of promotion, eligible for the said grade of Section Officer in the CSS. We may also note the fact that the Grade 'C' Stenographers of CSSS are indeed eligible for promotion to the next higher grade in their own channel and filed, i.e. Stenography. It is not the case that the Grade 'C' Stenographers of CSSS do not have promotional avenues in their own field and hierarchy. The respondents have made no attempts to clarify as to why the Parliamentary Standing Committee, which also considered all these aspects and made a strong recommendation in its Eighty-Third Report, as, noticed hereinabove, and recommended deletion of the provision which allowed the Stenographer Grade 'C' to compete in CSS Section Officer was found to be unacceptable. If we may say so with great respect, it is a case of showing undue & unwanted favour to a group & class of officials, as the Grade 'C' Stenographers are not only eligible for promotion in their own field and line but have also been made eligible for promotion to outside their channel & normal hierarchy. The matter does not rest here. We may also note the fact that Grade C Stenographer, under Rule 10 of CSS Rules, 1962 could be 'posted' and not promoted to 'duty posts in the Assistant's Grade' limited to two years period. When such is the mandate of the rules, how the Govt. in its executive power could make the said grade/category as feeder grade to the Section Officer post, is beyond our comprehension
22. We have already noticed that the Rules of 1962 were framed by the President in exercise of power conferred under proviso to Article 309 of the Constitution and, therefore, same are statutory in nature, while the 1964 Regulations framed are only in the form, shape and in the nature of an administrative instruction as the same were not framed & issued in the exercise of power available under proviso to Article 309 of the Constitution of India. It is well settled that administrative instructions can only supplement and not supplant these statutory rules. We not find any justification in the contentions raised by the respondents that the 1964 Regulations have to be treated as statutory rules. In our view there had been no fairness in the administrative decision taken even on 27th July, 2005. Following the law noticed, hereinabove, which is squarely applicable in the facts and circumstances of the present case, we have no hesitation to conclude that the Central Secretariat Service Rules envisage selection for appointment to Section Officer and Assistant Grades from the categories of officials prescribed under Rule 13. If that be so, it cannot admit of any doubt that the Department of Personnel which framed Regulation, 1964 to make Grade C Stenographers of CSSS eligible for selection and appointment to Section Officer Grade, has done so clearly exceeding the parameters of the authorities conferred upon it under Rules 13, 23 read with sub-para (2) of para 2 under Fourth Schedule of the said Rules. The circumstances and factual reality in itself sufficient to expose and demolish the myth that the Assistants of CSS as well as Grade 'C' Stenographers of CSSS who belong to two different classes and groups have been classified as equivalent, though in fact they being unequal in important matters such as nature of posts, duties and responsibilities to be discharged by them in such posts, are not comparable. It is difficult to comprehend how they can be put in a common class for judging their comparative ability and merit in their respective job performances in the context of their suitability for appointment to the Section Officer Grade, which is the back-bone of the Central Secretariat Service. The respondents' action while framing the 1964 Regulations amounts to enlarging the scope of statutory rules of 1962, which is beyond its competence and jurisdiction. Executive instructions cannot over-ride any provision of existing rule. Similarly, as per Rule 23 of 1962 Rules, no regulations which are inconsistent with the said rules could be framed or issued by the Department of Personnel & Training. Para-4 of 1964 Regulations is ultra vires and inconsistent to Rule 13 read with para 2 under the Fourth Schedule of the said Rules and cannot be sustained.
27. Only question, in the light of above facts & discussion, which needs determination basically is whether aforesaid Order/judgment dt. 11.11.2005 requires any change/modification or re-consideration, particularly in the light of two judgments cited in Civil Writ Petition No. 1122/1975, dt 05.11.1976 Joginder Lal Sawhney and Ors. v. Union of India and Anr. and Order dated 26.7.2005, OA No. 1091/2005 Kailash Chander and Ors. v. UOI and Ors. As far as Order of this Tribunal in OA No. 1091/2005 is concerned, as we have already noticed in para 13 hereinabove that prayer made there had been to defer the decision on the stoppage of lateral entry of officers of Stenographers Service into CSS, which is not the issue in present case & therefore issue determined therein have no relevance & application in the present case. As such we are left only to consider the impact, effect & relevance of the judgment in Joginder Lal Sawhney's case.
28. With due respect we may observe that judgment in Joginder Lal Sahni (supra) dealt with two aspects. For the first question, whether Assistant alone should be allowed to compete or whether Stenographer should be allowed to compete, it was concluded to be 'entirely administrative', with further observation that: 'there is no law involved in it.' For second alternative contention, it was observed that Assistant and Stenographer were not unequal and four different reasons were assigned for it. We may note that it is not the case of Stenographers that they don't have channel of promotion available in the normal hierarchy. We may note that Vth CPC examined several suggestions made on behalf of Stenographers and vide para 45.37 observed that:
Our analysis reveals that Stenographers in the Secretariat are at a more advantageous position, as far as time taken for promotion from one grade to another is concerned, when compared to their counterparts in the subordinate offices and almost at the same position with other comparable service in the Secretariat. While we recognize the need that each service should have reasonable opportunities for career progression, at the same time we are of the firm view that the promotion prospects of a particular service cannot be improved at the expense of another service.
29. We may also observe that vide the same para, Vth CPC also made certain other recommendations e.g. upgradation of posts at various levels, and stated that with its acceptance coupled with Assured Career Progression Scheme promotion prospects of CSSS Officers 'would improve considerably in their own line'. It also recommended that 'lateral entry of Private Secretaries to the grade of Under Secretary should be discontinued.' We may also observe that it is not the case of applicants that they do not have normal channel of promotion in their own line & hierarchy. Stenographer Grade-III can be promoted to Stenographer Grade-II and Grade-I and can reach upto the level of Senior Principal Private Secretaries, which is equivalent to a Deputy Secretary. As observed by Hon'ble Supreme Court in Dewan Modern Breweries Limited (supra), a decision, which has neither been reversed nor over-ruled, may cease to be law & precedent owing to changed conditions & changed law. In the current era of globalization when the entire philosophy of society is undergoing drastic changes and much emphasis is laid on specialization in the concerned field, Stenographers certainly should concentrate only on their own line & channel and not outside their normal field. We may also note that the Government of India, vide order dated 27.7.2005, has already taken a policy decision to discontinue the lateral entry of Central Secretariat Stenographer Services Officers into Central Secretariat Services at the level of Under Secretary. This policy decision itself demonstrates the object & intention of the Government behind such policy decision. We have already noticed that the official respondents themselves in their reply have suggested that there has been a perspective change in entire scenario in as much as stagnation in CSS is alarming and Assistants have to wait more than 15 years to get promotion to the post of Section Officer. Similarly, Parliament's Standing Committee in its 83rd Report also laid emphasis on the fact that channel of promotions for CSSS Stenographer Gr.-C is different from CSSS Assistants and only CSSS Assistants should be allowed to appear in LDCE for Section Officers. When CSSS enjoys promotional avenue and channel of promotion in their own line, which were not available to them three decades ago, we see no justification that they should be allowed to encroach upon another distinct line & cadre of Assistants. This view gets further reinforced by the fact that now the situation is reversed and the shoe is on the other foot. It is the Assistants' cadre that is facing acute stagnation now. We find justification in respondents' stand that the work done by Stenographers in the current times of specialization is totally distinct & different than the one discharged by Assistants in the Central Secretariat. It is not only a question of Stenographers taking up a job with which they are not familiar, it is also a question of respondents losing a competent stenographer and getting a not-so-competent Section Officer. In these circumstances, we are of the respectful view that said judgment of Hon'ble Delhi High Court in Joginder Lal Sahni (supra) is not a valid precedent after a passage of almost three decades. We have carefully perused various judgments cited by applicants, and are of the view that the same are quite distinguishable & not applicable in the given facts & circumstances. We may also observe that said judgments were rendered in somewhat different facts altogether. As such we do not find justification in applicants' contentions. On the other hand, we find weighty reasons in the contentions raised by respondents that there is no justification/necessity to recall/review Order dated 11th November, 2005 in OA No 1435/2005.
30. However at the same time, on equitable consideration we find justification & reasons based on equity in the contention raised by applicants that since Stenographers Grade-III had appeared in the examination for the post of Section Officer till the year 2005, those who have successfully cleared the said examination need to be protected and not disturbed. Though we do not subscribe the view that the judgments by and large operate prospectively, as contended. As far as this contention is concerned, we may note that recently Hon'ble Supreme Court had an occasion to deal with this aspect in [P.V. George and Ors. v. State of Kerala and Ors. particularly para-25 wherein it has been observed that: 'in service matters, this Court on a number of occasions have passed orders on equitable consideration. But the same would not mean that whenever a law is declared, it will have an effect only because it has taken a different view from the earlier one. In those cases it is categorically stated that it would have prospective operation.'
31. In the light of discussion made hereinabove, finding no reason, justification & necessity to recall/modify Order dated 11.11.2005 in OA No 1435/2005, present OAs are dismissed with observations made in para 30 above. No costs.