Central Administrative Tribunal - Delhi
Shri Ashok Kumar Sharma vs Union Of India on 7 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 148/2014 and MA No.2769/2012
With
OA No.149/2014
Reserved on:11.09.2014
Pronounced on:07.11.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
OA No.148/2014
1. Shri Ashok kumar Sharma
Age 57 years, working as
Assistant Registrar (on ad-hoc basis)
in the Income-Tax Appellate Tribunal,
Pratishta Bhavan, 3rd floor, 101,
Maharshi Karve Road,
Mumbai 400 020 and
residing at Flat No.3244,
Building No.226, Sector VI,
C.G.S. Colony, Kane Nagar,
Mumbai Pin 400 037
2. Smt. Nalini K. Menon
Age 53 years, working as
Assistant Registrar (on ad-hoc basis)
in the Income-Tax Appellate Tribunal,
Pratishta Bhavan, 3rd floor, 101,
Maharshi Karve Road, Mumbai 400 020
and residing at A/202,
Dosti Pearl-2, Behind Stella Petrol Pump,
Behrampur, Vasai (West), Thane 401 202.
3. Shri Vijay Nhanu Warang
Age 50 years, working as
Assistant Registrar (on ad-hoc basis)
in the Income-Tax Appellate Tribunal,
Pratishta Bhavan, 3rd floor, 101,
Maharshi Karve Road, Mumbai 400 020
And residing at A/2/205,
BorivliShyamkrupa CHS,
Off Eksar Road, Borivli (West),
Mumbai 400 091. .Applicants
By Advocate: Shri Y.K. Kapoor.
Versus
1. Union of India,
Through the Secretary
Ministry of Law and Justice
Department of Legal Affairs
Govt. of India, Shastri Bhavan
New Delhi 110 003.
2. The President
Income-Tax Appellate Tribunal
Pratishta Bhavan, 3rd & 4th floor
101, Maharshi Karve Road
Mumbai 400 020
3. The Secretary
Department of Personnel & Tranining
Ministry of Personnel,
Public Grievances and Pension
North Block,
New Delhi 110001
4. The Registrar,
Income-tax Appellate Tribunal,
Pratishta Bhavan, 3rd & 4th floor,
101, Maharshi Karve Road,
MUMBAI- 400 020.
5. Miss. Rajani P.G.,
Senior Hindi Translator,
Income-tax Appellate Tribunal
3rd & 4th floor, Santosh Complex,
Kempa Gowda Road,
Bangalore 560 009.
6. Shri Manoj Kashyap,
Senior Hindi Translator,
Income-tax Appellate Tribunal,
Aayakar Bhavan Annexe,
R Block, 38, M.G.Road,
Allahabad -211 001.
7. Shri Biju P.K.,
Senior Hindi Translator,
Income-tax Appellate Tribunal
Pratishta Bhavan, 3rd & 4th floor,
101, Maharshi Karve Road,
MUMBAI- 400 020.
8. Smt. Anupama Ghera,
Senior Hindi Translator,
Income-tax Appellate Tribunal
Kendriya Sadan, 9a,
Chandigarh 160 017.
9. Shri Manish Kumar Bhoi,
Senior Hindi Translator,
Income-tax Appellate Tribunal
A-3, 2nd floor, Rajaji Bhavan,
Beasant Nagar,
Chennai -600 090.
10. Shri Madhuraj Singh Narwaria,
Senior Hindi Translator,
Income-tax Appellate Tribunal
11th floor, Lok Nayak Bhavan,
Khan Market,
NEW DELHI-110 003. .Respondents
By Advocate: Shri Rajesh Katyal for Respondent Nos.1 to 4.
Shri Deepak Verma and Shri R.P. Sharma
For Respondents No.5 to 10.
OA No.149/2012
Manoj Kashyap
S/o Shri R.P. Sharma
Aged 38 years
Senior Hindi Translator,
ITAT, Allahabad,
R/o Quarter No.37,
Type-III,
Kendranchal Colony,
Begum Sarai,
Allahabad-211014. Applicant
By Advocate: Shri Y.K. Kapoor.
Versus
1. The Union of India,
Ministry of Law and Justice,
Through the Secretary,
Department of Legal Affairs
Shastri Bhavan, Dr. Rajendra Prasad Road,
New Delhi 110 001.
2. The President
Income-Tax Appellate Tribunal
3rd & 4th floor Pratishta Bhavan,
101, Maharshi Karve Road
Mumbai 400 020.
3. Prabha Shankar Singh
S/o Late Rajeshwar Prasad Singh
R/o 2464, Netati Jagar,
New Delhi-110023.
4. M.S. Pal
S/o Late G.S.Pal
R/o F-1, Plot No.96, Shakti Khand-II,
Indirapuram, Ghaziabad
U.P.
Assistant Registrar (Ad hoc),
Income Tax Appellate Tribunal,
Delhi Bench, New Delhi.
5. P. Samuel
S/o Late S. Ponniah
R/o 5/17, II Street,
Arunachalam Nagar, Porpur,
Chennai, Tamil Nadu,
Assistant Registrar (Ad hoc),
Income Tax Appellate Tribunal,
Chennai Benches, Chennai.
6. Ashok Kumar Sharma
S/o Late Sohan Lal Sharma
R/o Flat No.3244, Building No.226,
Sector-VI,
CGS Colony, Kane Nagar,
Mumbai-400037
Assistant Registrar (Ad hoc),
Income Tax Appellate Tribunal,
Mumbai Benches, Mumbai.
7. Smt. Nalini K. Menon
W/o Shri Krishan Kumar Menon
R/o Flat A/202, Dosti Pearl-2,
Behind Stella Petrol Pump,
Burhanpur, Vasai (W),
District-Thane Maharashtra-401202.
Assistant Registrar (Ad hoc),
Income Tax Appellate Tribunal,
Mumbai Benches, Mumbai.
8. Vijay N. Warang
S/o Late Nhanu Bapuji Warang
R/o Flat No.A-2/205,
Borivli Shyamkrupa CHS,
Off Eksar Road, Borivli (W),
Mumbai-400091
Assistant Registrar (Ad hoc),
Income Tax Appellate Tribunal,
Mumbai Benches, Mumbai. Respondents
By Advocate: Shri Rajesh Katyal for Respondent Nos.1 & 2.
Shri Deepak Verma and Shri R.P. Sharma
For Respondents No.3 to 8.
ORDER
G. Geroge Paracken, Member(J) As the issue involved in these two cases is the same, they are disposed of by this common order. OA No.148/2014 has been filed earlier as OA No.237/2013 before the Bombay Bench of this Tribunal. Similarly, OA No.149/2014 has been filed earlier before the Allahabad Bench of this Tribunal as OA No.727/2013. Both these Original Applications have been transferred to this Bench on the orders of the Honble Chairman under Section 25 of the Central Administrative Tribunals Act, 1985.
2. The Applicants in OA No.148/2014 are presently working as Assistant Registrars on ad hoc basis in the Income Tax Appellate Tribunal (ITAT for short), Mumbai and the Applicant in OA No.149/2014 is working as Senior Hindi Translator in ITAT, Allahabad Bench. The grievance of the Applicants in OA No.148/2014 (supra) is that by the impugned letter dated 07.03.2013, the Respondent No.1 has directed that the existing vacancies of Assistant Registrar will be filled up through promotion under the provisions of the existing Recruitment Rules, namely, Income Tax Appellate Tribunal (Class-I and Class-II posts) Recruitment (Amendment) Rules, 1975 (1975 Rules for short). According to the said Rules, the post of Hindi Translators still continues to be one of the category in the feeder cadre for promotion to the post of Assistant Registrar. The grievance of the Applicant in OA No.149/2014 (supra), on the other hand, is against the inordinate delay in holding the Departmental Promotion Committee (DPC for short) for his consideration for promotion to the post of Assistant Registrar in violation of the 1975 Rules though he became eligible and entitled for such consideration with effect from 01.10.2007.
3. Facts in OA No.148/2014: The Applicants were initially appointed as Lower Division Clerks and then promoted as Upper Division Clerks, Head Clerks, Assistants and Superintendents. Presently, they are working on the next higher post of Assistant Registrar, on ad hoc basis. Prior to the year 2004, the post of Assistant Registrar in ITAT was a Class II (Group B) Gazetted post but now it has been declared as a Class-I (Group A) post. The Recruitment Rules for the Class (I) and Class (II) posts in ITAT were formulated and notified by the Respondent No.1-Ministry of Law and Justice, Department of Legal Affairs in the year 1967. The said Respondent, vide its letters dated 21.12.1972 and 07.05.1973 proposed that since the Translators were having Degree in Law and they were not having any promotional avenues, they might also be included in the feeder categories for the post of Assistant Registrar. Accordingly, the aforesaid Recruitment Rules were amended and notified as Income Tax Appellate Tribunal (Class-I and Class-II posts) Recruitment (Amendment) Rules, 1975, on 31.07.1975 (1975 Rules for short) and it is in vogue now. Under the Rules, the post of Assistant Registrar is to be filled up, 50% by direct recruitment and 50 % by promotion, failing which by direct recruitment. The essential and other qualifications required for direct recruitment of the aforesaid post included a Degree in Law from a recognized university or equivalent. The said provision reads as under:-
Essential:-
(i) Degree in Law of a recognized University or equivalent.
(ii) 3 years administrative experience in a responsible capacity in a government or Semi Government Organisation or commercial concern or repute.
(Qualifications relaxable at commissions discretion of a candidate otherwise well qualified).
Desirable:
Knowledge of Government rules and regulations. In the said Rules, under the promotion quota, the following categories of officers which include Translators and Senior Stenographers have also been made eligible and relevant provision reads as under:-
(i)Superintendent with three years regular service in the grade, failing which
(ii) Six years regular combined service in the grades of Superintendent and Assistant Superintendent; failing which
(iii) Assistant Superintendent and Translators with six years of the regular service in the respective grade; failing which
(iv) Assistant Superintendent with ten years regular combined services in the grades of Assistant Superintendent, Head clerk and Senior Stenographer; failing which
(v) Head Clerks and Senior Stenographers with ten years regular service in the respective grade.
4. The post of Translator (Hindi-English) in the ITAT was governed by separate Recruitment Rules, namely, the Income Tax Appellate Tribunal Translators (Hindi/English) Recruitment Rules, 1972 (1972 Rules for short). Later on it was amended and notified vide Income Tax Appellate Tribunal Translators (Hindi-English) Recruitment Rules, 1989 (1989 Rules for short). The essential educational qualification prescribed in the said Rule was Law Graduate from a recognized University with Hindi as a subject at the degree level. However, later on when candidates with Law Degree were not available for appointment to the said post, the Ministry of Law and Justice, Department of Legal Affairs amended the 1989 Rules, vide notification dated 13.09.2000 (2000 Rules for short) by which the requirement of Degree in Law was omitted and Masters Degree in Hindi/ English or Masters Degree in any subject with Hindi as medium of instructions or Bachelors Degree with Hindi and English as main subjects were prescribed as the essential qualifications. Meanwhile, in the year 1981, the Respondents have also created the post of Hindi Officer as the promotional posts for Translators.
5. In the aforesaid facts and circumstances, the contention of the Applicants is that the Ministry of Law and Justice, Department of Legal Affairs ought to have modified/amended the Recruitment Rules for the post of Assistant Registrar by omitting the Translators from the list of category of feeder cadres but they are still continuing as per the old Recruitment Rules of 1967 as amended in the year 1975. They have also stated that the last person to be appointed as Translator with Degree in Law was one Mr. J.K. Lodha and he was appointed in the year 1989. Thereafter, there was not a single person with Degree in Law was appointed as Translator in ITAT. Shri Lodha was promoted to the post of Assistant Registrar on regular basis under the Rules of 1975. Thereafter, none of the Translators were considered for promotion to the post of Assistant Registrar. 6. The Applicants have stated further that the Respondents Nos. 5 to 10 have appeared in the examination conducted by Staff Selection Commission (SSC for short) for appointment to the post of Junior Hindi Translator in the year 2001 & 2002. The said post was in the pay scale of Rs.4500-7000. Even though no post of Junior Translator in the aforesaid pay scale was available with the second respondent, the SSC nominated them to the said Respondent and they were appointed as Hindi Translators in the higher pay scale of Rs.5500-9000. According to the Applicants, when the Respondents realized that those appointments were wrong, the offer of appointment in respect of Respondent No. 8 was withdrawn vide order dated 27.09.2003. But the said Respondent, filed O.A. No. 2339 of 2003 before this Tribunal challenging the aforesaid order and the same was disposed off observing that before his appointment was withdrawn, the Respondents have not issued him any show-cause notice. However, the offers of appointment to Respondent Nos. 5 to 7, 9 and 10 were not withdrawn even though the Respondent No.2 could have done so after issuing show cause notice to them also. On the other hand, the Respondent No. 4-ITAT regularized their services in the year 2004. In any case, according to the Applicants, those private Respondents who are presently working as Hindi Translators are not the same Translators envisaged in the 1975 Rules.
7. Further, according to the Applicants, 12 posts of Assistant Registrars are vacant in various benches of ITAT at present. The Applicants were promoted to the post of Superintendent in June 2012 and in the all India Seniority List of Superintendents, they are at Sr. Nos. 1, 5 and 6 respectively. They have also completed more than 10 years of service as Head Clerk/ Assistant in the year 2012 and became eligible for promotion to the post of Assistant Registrar. According to them, in the year 2010, the Respondent No. 2 sent a proposal to Respondent No. 1 for convening of DPC for effecting promotions to the post of Assistant Registrar along with the representations made by Superintendents, Assistants/Head Clerks for excluding the Translators from the feeder category for promotion to the post of Assistant Registrar on the ground that the qualification of Law Graduation has been taken away from their Recruitment Rules and they also have promotional avenues in their own line. But the Respondent No. 1 called for the ACRs of Translators, vide their letter dated 16.03.2012. However, the Respondent No. 2 sent a proposal on 27.04.2012 to Respondent No. 1 for amendment of the Recruitment Rules for the post of Assistant Registrar by deleting the post of Translators from the lists of feeder cadres. In the said proposal, the Respondent No. 2 highlighted, inter alia, that the requirement of law graduation for appointment as Translators was withdrawn and avenue for promotion to them as Hindi Officer was created. Along with the said proposal, the draft of the amended Recruitment Rules was also sent to them. As no final decision was taken in the matter, 6 Superintendents including the Applicants were promoted to the post of Assistant Registrar on ad-hoc basis vide orders dated 23-07-2010 and 30.08.2011.
8. As regards the amendment to the Recruitment Rules is concerned, the Respondent No.1 consulted the Department of Personnel and Training (DOP&T for short) and the DOP&T, vide its Note dated 29.08.2012, observed that as per the existing instructions, Recruitment Rules should be reviewed once in 5 years with a view to effect changes as considered necessary to bring them in conformity with the changed position. They have also observed that after the acceptance of the report of the 6th CPC, DOP&T issued OM dated 24.03.2009 for revision of recruitment rules. It was further observed that the recruitment rules for the post of Assistant Registrar in ITAT are very old and the Respondent No. 1 was asked to indicate the status of updation of recruitment rules as per DOP&T instructions. Thereafter, Respondent No. 1 sent letter dated 29.09.2012 to Respondent No. 2 asking it to furnish draft amended Recruitment Rules for the post of Assistant Registrar. The Applicants have stated further that, accordingly, the Respondent No. 2 and 4 are in the process of forwarding draft recruitment rules for the post of Assistant Registrar to Respondent No. 1.
9. However, the grievance of the Applicants is that while the process for amendment of the Recruitment Rules are in the process, the Respondent No. 1 issued letter dated 07.03.2013 to Respondent No. 2 for furnishing the proposals for holding DPC for promotion to the post of Assistant Registrar on the basis of eligibility criteria as mentioned in Column 11 of the 1975 Rules themselves thereby to consider the Translators also for such promotion. The Respondent No. 1 has also stated in the said letter that it has obtained clarification from DOP&T that the amended Recruitment Rules can be given effect to, only prospectively except in rare cases. Therefore, it has directed the Respondent No.2 to fill up the existing vacancies of Assistant Registrar as per the existing Recruitment Rules. The Applicants have challenged the aforesaid direction of Respondent No. 1 in this OA and sought the following reliefs:-
(i)This Honble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the letter dated 07.03.2013(Annexure A-1).
(ii)This Honble Tribunal may further be pleased to hold and declare the existing vacancies of the post of Assistant Registrar cannot be filled by applying the provisions of the Income-Tax Appellate Tribunal (Class-I & Class-II) Recruitment Rules,1967 which was amended in the year 1975.
(iii)This Honble Tribunal may further be pleased to restrain the Respondents from reverting the Applicants from the ad-hoc post of Assistant Registrar till consideration of their cases for regular promotion to the post of Assistant Registrar as per new Recruitment Rules, which are under process of notification.
10. According to the Applicants, the aforesaid direction of Respondent No. 1 is ex-facie illegal and ab-initio void as the post of Translator (Hindi/English) can no longer be considered as part of the feeder cadre for filling up the post of Assistant Registrar. They have also stated that the Recruitment Rules of 1975 have become obsolete and admittedly they require modification. In fact it is being modified by the Respondent No.1 and 2 themselves. Therefore, merely because there was delay on the part of Respondent Nos. 1 and 2 to modify or update the Recruitment Rules, Translators cannot be considered for promotion against existing vacancies. They have also stated that the posts of Translators were made part of the feeder cadre for promotion to the post of Assistant Registrar only for the reason that according to the earlier Recruitment Rules for post of Translators, Degree in Law was an essential qualification and they did not have any promotional avenues. Since the qualification of Degree in Law has been omitted from the Recruitment Rules for the post of Translators with effect from 13.09.2000 and they have also been given promotional avenue as Hindi Officer, they could not have been considered as a category in the feeder cadre for promotion to the post of Assistant Registrar at least from 13.09.2000. Further, they have stated that since the Respondents have already taken a conscious decision to amend the Recruitment Rules for the post of Assistant Registrar by excluding the Translators from its feeder cadre and for that reason the Applicants have already been promoted on ad hoc basis till regular DPC is held, the Translators should not be considered anymore for promotion to the post of Assistant Registrar.
11. In this regard, they have relied upon the judgment of the Apex Court in the case of State of Punjab Vs. Arun Kumar Aggarwal 2007 (10) SCC 402 wherein it has been held as under:-
38. We hold the Government has taken conscious decision not to fill up the posts under the old 1941 Rules. The impugned order of the High Court is set aside. We may at this stage point out that the problem seems to have been compounded by the inaction/casual approach of the Government detrimental to public interest. The State Government shall now fill up the vacant posts in accordance with the 2004 Rules within a period of three months from today. All the eligible candidates who satisfy the criteria laid down under 2004 Rules shall be considered. The entire process of recommendation and appointment shall be completed within three months from today.
12. The Respondents No.1 and 2 in their reply have submitted that the post of Assistant Registrar is still governed by the Recruitment Rules of 1975 and, therefore, the promotions to the said post has to be made from among the eligible candidates in feeder grades which includes the post of Translator and the provisions contained in the draft Recruitment amended Rules cannot be invoked. They have also admitted that the existing Recruitment Rules are required to be modified as the qualifications for the Hindi Translators have already been revised in the year 2000. But the corresponding changes in the Recruitment Rules for the post of Assistant Registrar have not been carried out. Therefore, the existing Recruitment Rules are applicable and all the feeder grades are entitled to be considered for promotion. They have also stated that the submission of the Applicants that Hindi Translators have got double chances of promotion is not true as the Recruitment Rules for promotional posts of Hindi Officer/Assistant Director (OL) have yet to be finalized.
MA No.2697/2014 in OA No.148/2014
13. This MA has been filed by the Applicants in OA No.148/2014 seeking an interim direction to the Respondents No.1 and 2 to continue to retain them as Assistant Registrars on ad hoc basis. They have stated that during the pendency of this OA, the Madras Bench of this Tribunal in OA No.745/2013 Manish Bhol, Sr. Hindi Translator Vs. Union of India passed the following order on 28.04.2014:-
17. The position which emerges is that while the draft rule could not form the basis of grant of promotion when Rules to the contrary are holding the field and that every statute or statutory Rule would have only prospective effect unless it is expressly or by necessary implication made to have retrospective effect. It is open to the Respondent authority not to fill up the post in view of the pending new/revised RRs. The Applicant or others similarly placed have not vested right for being promoted in accordance with the extant Rules. In view of the policy decision taken by the ITAT not to fill up the post of Assistant Registrar from the steam of (Senior) Hindi Translators in view of the fact that they have another avenue of promotion, viz. as Hindi Officers redesignated as Assistant Director (OL) for which there were two posts in the feeder category of (Sr.) Hindi Translators, in the scale of pay at par with that of Assistant Registrar, and also that the amended RRs have been sent to the Ministry of Law & Justice, GOI for approval. It is not as if that proposal containing the amended RRS having lying dormant for years. We cannot be oblivious to the fact that Government was placing emphasis on improvement of official for which considerable funds were expended and that movement of Hindi Translators would affect the implementation of Hindi in the official work of ITAT. At the same time, it is necessary to take cognizance of the fact that the post of Assistant Registrar is being filled upon on ad-hoc basis [and not being kept vacant pending finalization of the draft revised RRs and there is an allegation that those put on ad-hoc basis were scutting the regular promotion as Assistant Registrar of (Sr.) Hindi Translators for the sake of getting retirement benefits. It is imperative that the matter is looked into at the higher level, that is, the Ministry of Law & Justice or by a Group comprising a representative of the office of the 1st Respondent (Ministry of Law & Justice), an Officer of DOP&T or/and Ministry of Finance and a representative of the ITAT having regard to the need of balance the interests of the different sections of staff or ITAT with the overall objective of efficient functioning of the ITAT and the policy of promoting official language in the work of ITAT and a solution found to be problem as expeditiously as possible taking into account also the claim of the Applicant and others. Also a decision should be taken for approval or otherwise of the amended (Draft) RRs, the proposal for which sent by the ITAT has been pending with the Ministry of Law & Justice, GOT for quite some time now. During the interregnum, any existing or future vacancy in the post of Assistant Registrar shold not be filled up on ad-hoc basis.
18. With the above directions and observations, the OA stands disposed of. No order as to costs.
14. They have also stated that the Respondents have filed MA No.440/2014 before the Madras Bench, Chennai seeking extension of time of six months from the date of order for implementation the aforesaid order dated 28.04.2014 and the Madras Bench, vide order dated 26.06.2014, directed that in the interest of justice and accepting the reason stated in the affidavit in support of MA, three months extension of time from the date of filing the MA for implementing the aforesaid order. Accordingly, the respondent No.2 has issued the order appointing Superintendent and Sr. Hindi Translator, ITAT as Assistant Registrar on ad hoc basis for the period from 01.07.2014 to 18.09.2014. They have also stated that Respondent No.2 has submitted the proposal to the Respondent No.1 to convene the DPC for the post of Assistant Registrar, ITAT which is under process and it is likely to take more time. Further, their tenure of ad hoc appointment is expiring on 18.09.2014.
OA No.149/201415. The Applicant in OA No.149/2014 is also the 6th Respondent (private) in OA No.148/2014. The other private Respondents Shri Biju P.K., Smt. Anupama Ghera, Shri Manish Kumar Bhoi, Shri Madhuraj Singh Narwaria are Senior Hindi Translators working in the Income Tax Appellate Tribunal at Mumbai, Chandigarh, Chennai and New Delhi respectively. The private Respondents in OA No.149/2014 are Assistant Registrars working on ad hoc basis in different Income Tax Appellate Tribunals in New Delhi, Chennai and Mumbai respectively. The submissions of the private Respondents in OA No.148/2014 (supra) and those of the Applicant in OA No.149/2014 (supra) are the same. Similarly, the submissions of the Applicants in OA No.148/2014 (supra) and those of the private Respondents in OA No.149/2014 (supra) are the same. The submissions of the private Respondents in OA No.148/2014 (supra) and those of the Official Respondents therein and those of the Applicant as well as the Official Respondents in OA No.149/2014 (supra) are also the same. Therefore, the submissions of Applicant in OA No.149/2014 (supra) who is also the 6th Respondent in OA No.148/2014 (supra) are considered here. According to him, Respondent No.2 is acting in connivance with the Applicants in allowing them to continue in their ad hoc appointment as Assistant Registrars on ad hoc basis. He has also stated that the Applicants themselves admitted that the extant Recruitment Rules for the post of Assistant Registrar in the ITAT are the Recruitment Rules of 1975 notified and the said Recruitment Rules are valid and are in force till date. His grievance, therefore, is that there is inordinate delay by Respondent No.1 in holding DPC for consideration for promotion to the post of Assistant Registrar which is in violation of the aforesaid Rules though he became eligible and entitled for the said post with effect from 01.10.2007. He has also stated that it is settled law that valid rules made under the provision of Article 309 of the Constitution operates so long the said rules are not repealed or replaced by another set of validly framed and notified Recruitment Rules and the promotions to be effected under criteria prescribed under Recruitment Rules existing on the date of vacancies. He has further stated that it is a settled law that the vacancies which has occurred prior to the Notification of the new Recruitment Rules shall be filled up as per the old Recruitment Rules only. He has, therefore, contended that the inaction on the part of the Respondents in holding the DPC is illegal, arbitrary and violative of the principle of natural justice enshrined in Article 14 and 16 of the Constitution of India. He has also stated that more than 10 vacancies of Assistant Registrars are lying vacant and they are required to be filled up on the basis of the Recruitment Rules of 1975. He has also stated that he made a request to consider him for promotion to the said post on 01.01.2008 and on 02.05.2008 he was assured in writing that action will be taken at appropriate time in accordance with law. He had sent reminders but so far no action has been taken. In this regard he has also referred to the Government of India, Department of Personnel & Training OM No.22011/4/1998-Estt.(D), dated the 12th October, 1998 wherein it has prescribed the procedure to be followed in holding the Departmental Promotion Committed. According to the said OM, for reasons beyond their control, if the DPC could not be held in a year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures:-
(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a Select List by placing the select list of the earlier year above the one for the next year and so on.
He has also relied upon the DOP&T OM No.22011/5/86-Estt(D) dated 10.04.1989 read with their OM No.22011/5/91-Estt(D) dated 27.03.1997 wherein it has heel held that DPC should be convened at regular intervals to draw panel for making promotion well in advance to fill up the existing as well as anticipated vacancies. To ensure this, a model calendar has been issued vide DOP&T OM No.22011/9/98-Estt(D) dated 08.09.1998 and 13.10.1998. The said model calendar has also been declared statutory in nature by the Honble Delhi High court in Writ Petition (C ) No.5549/2007 Dr. Sehdeva Singh Vs. Union of India and Others decided on 28.02.2012. However, there has been delay of more than 4 and half years in holding the DPC in the present case and deprived him of his legitimate expectation to get his promotion in a mala fide and arbitrary manner.
16. He has also relied upon the judgment of the Apex Court in the case of Union of India through Government of Pondicherry and Others Vs. V. Ramakrishanan and Others 2005 SCC (L&S) 1150 wherein it has been laid down that promotion is to be effected under criteria prescribed under the existing Recruitment Rules. The relevant part of the said order reads as under:-
28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India.
17. Further, he has also relied upon the judgments of the Apex Court in the case of Y.V. Rangaiah & Others Vs. J. Sreenivasa Rao and Others 1983(3) SCC 284 wherein it has been held that vacancies which occurred prior to the amended Recruitment Rules would be governed by the old rules and not the new rules. The relevant part of the said order reads as under:-
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
18. Further, he has relied upon the judgment of the Apex Court in the case of State of Rajasthan Vs. R. Dayal and Others 1997 (10) SCC 419 wherein it has been held that the appointment in the present case was required to be made on the basis of rules existing on the date of occurrence of vacancy. Since it was not done, the appointment of candidates so appointed has to be treated temporary pending consideration of the claims of all the eligible persons. Again, relying upon the judgment of Y.V. Rangahiah (supra), it was held that the posts which fell vacant prior to the amendment of the rules would be governed by the original rules and not by the amended rules. The relevant part of the said order reads as under:-
8.Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24-A indicates that options have been given to the government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This court has considered the similar question in para 9 of the judgment above-cited. This court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A(11-B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith.
9.It is contended by Shri Das that one of the persons, namely, H.L. Meena was appointed against a carried-forward post as per the existing Rules and, therefore, his appointment cannot be challenged. We find it difficult to give acceptance to the contention. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the government. As on that date, when the appointment came to be made, the selection was required to be made on the basis of the Rules as existing on the date the vacancy arose. Since, admittedly, that has not been done, the appointment of Shri Bhatnagar and H.L. Meena must be treated to be only temporary appointments pending consideration of the claims of all the eligible persons belonging to General and Reserved quota separately as per Rules.
19. Further, he has relied upon the interim order of the Central Administrative Tribunal, Chandigarh Bench in OA No.827/CH/2013 Smt. Anupama Gera Vs. UOI & Others passed on 10.06.2013. In the said OA, the Applicant were fully eligible in terms of the Recruitment Rules, the Respondents did not conduct the DPC for promotion. The Tribunal has, therefore, given an interim direction to the Respondents to consider those eligible candidates for ad hoc promotion to the post of Assistant Registrar in the office of the ITAT, Chandigarh. Further, he has relied upon the final judgment in the said OA decided on 09.01.2014 wherein Respondents were directed to convene the DPC for the regular post of Assistant Registrar within a period of 3 months from the date of receipt of a certified copy of this order.
20. We have heard the learned counsel for the parties. Recruitment Rules are rules notified under proviso to Article 309 of the Constitution or any specific statutes for posts prescribing inter alia the method of recruitment and the eligibility for such recruitment. According to the aforesaid Article, Recruitment Rules are made to regulate the recruitment and conditions of service of persons appointed to public services and posts. A rule made in exercise of the power under the proviso to Article 309 constitutes law and it can be struck down on such grounds as violation of Article 14 and 16 of the Constitution. Generally speaking, the eligibility of a candidate for selection for a post depends upon whether he is qualified in accordance with the relevant rules as they existed at the time of the advertisement for recruitment (N.T. Devin Katti Vs. Karnataka Public Service Commission 1990 (3) SCC 157). It is for appropriate authority to prescribe relevant qualifications for appointment to the post (Rangaswamy Vs. Government of Andhra Pradesh 1990 (1) SCC 288). The general principle is that so long as the Rule framed under Article 309 of the Constitution is not duly amended, it is binding on the Government (Bhatnagar Vs. Union of India 1991 (1) SCC 544). In its judgment in the case of Union of India through Government of Pondicherry and Others Vs. V. Ramakrishanan and Others 2005 SCC (L&S) 1150, the Apex Court held that the valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. In its judgment in the case of Y.V. Rangaiah & Others Vs. J. Sreenivasa Rao and Others 1983(3) SCC 284 also, the Apex Court held that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. Same was the position reiterated by the Apex Court in the case of State of Rajasthan Vs. R. Dayal and Others 1997 (10) SCC 419.
21. However, the Recruitment Rules cannot be static. They have to undergo changes as and when required. In order to regulate the recruitment as provided in Article 309 of the Constitution, the Recruitment Rules are required to be amended from time to time so as to recognize and accept the changes that are taking place in the public services or to posts to which persons are already appointed. When the prescribed qualifications for the services or posts in the existing Recruitment Rules are not sufficient enough to man such services or posts or the persons already appointed who are not adequately equipped to man those services and posts, the existing Recruitment Rules are to amended. That is the reason why the DOP&T have issued instructions to review the existing Recruitment Rules periodically and carry out amendments, if required and it is for the appropriate authority to prescribe the relevant qualifications for such services and posts and revise them, when required. The post in question in this OA is Assistant Registrar in ITAT. The main emphasis in its Recruitment Rules all through was the candidates should have the qualification of Degree in Law. In the original Recruitment Rules, the Hindi Stenographers/Translators were not included in its feeder cadre. However, when it was found that they were also holding the Degree in Law and they did not have any other promotional avenues, they have been included in the feeder cadre by amending the Recruitment Rules. The changed scenario now is that Stenographers/Translators are recruited through the SSC and Degree in Law is not an essential educational qualification for them. The Respondent No.2 which is the user department is conscious of this fact. They know it better what qualifications the candidates have to hold for the posts under them. They have, therefore, sent the proposal for amendment of the 1975 Rules to the Respondent No.1 way back in 2010 which in turn has consulted the DOP&T and DOP&T pointed out to them the instructions which have already been issued by them that all the Ministries/Departments should review their Recruitment Rules in every five years so that the necessary changes are carried out. But due to the delay on the part of the Respondent No.1, so far the aforesaid Recruitment Rules have not been amended to exclude the Stenographers/Translators from the feeder cadres for the post of Assistant Registrar. Moreover, the Stenographers/Translators now being appointed by the SSC have their own line of promotion. Therefore, just because the Recruitment Rules could not be amended due to delay on the part of the competent authority, the user department cannot be forced to accept candidates who are not qualified to hold such posts.
22. The Apex Court in the case of State of Punjab Vs. Arun Kumar Aggarwal 2007 (10) SCC 402 has observed that if the Government takes a conscious decision not to fill up the post under the old rules, it may not fill up the vacant posts in accordance with the rules in view of the impending new rules and the posts may be filled up after the amendment in the rules. The relevant part of the said judgment reads as under:-
24. Mr. Rao, therefore, contended that the conscious decision was taken by the Government not to fill up the posts under the 1941 Rules. In view of the conscious decision taken by the Government, the Government, therefore, did not conduct any DPC for promotion to the post of SDO. To substantiate his contention he has invited our attention to the decision of this Court in Dr. K. Ramulu vs. Dr. S.Suryaprakash Rao, (1997) 3 SCC 59. The three Judge Bench of this Court after referring to various decisions of this Court upheld the conscious decision of the Government not to fill up the post in view of the impending new rules. This Court finally held in paragraph 15 at scc p.67 as under:-
"15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. We hold that the Tribunal was not right and correct in directing the Government to prepare and operate the panel for promotion to the post of Assistant Directors of Animal Husbandry Department in accordance with the repealed Rules and to operate the same."
30. There is no quarrel over the proposition of law that normal Rule is that the vacancy prior to new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case.
23. In the present case, the circumstances in which the Translators were included in the feeder category for the post of Assistant Registrar are also worth mentioning. The post of Translator (Hindi-English) in the ITAT was governed by the Income Tax Appellate Tribunal Translators (Hindi/English) Recruitment Rules, 1972 (1972 Rules for short). The Ministry of Law and Justice, Department of Legal Affairs, vide its letters dated 21.12.1972 and 07.05.1973 proposed that since the Translators were having Degree in Law and they did not have any promotional avenues, they may also be included in the feeder categories for the post of Assistant Registrar. Accordingly, in the Income Tax Appellate Tribunal (Class-I and II posts) Recruitment Rules, 1967 were amended and Translators with six years of regular service in the grade were also included in the feeder category for promotion to the post of Assistant Registrar. Later on, it was amended and notified vide Income Tax Appellate Tribunal Translators (Hindi-English) Recruitment Rules, 1989 (1989 Rules for short). The essential educational qualification prescribed in the said Rule was Law Graduate from a recognized University with Hindi as a subject at the degree level. However, the Ministry of Law and Justice, Department of Legal Affairs amended the 1989 Rules, vide notification dated 13.09.2000 in which the requirement of Degree in Law was omitted and Masters Degree in Hindi/ English or Masters Degree in any subject with Hindi as medium of instructions or Bachelors Degree with Hindi and English as main subjects were prescribed as the essential qualifications. The Respondents have also created the post of Hindi Officer as the promotional posts for Translators. Therefore, the Translators are no more required to possess the qualification of Degree in Law which is an essential qualification for the post of Assistant Registrar. It was for the said reason that ITAT has sent the proposal to the Ministry of Legal Affairs for amendment of the Recruitment Rules for the post of Assistant Registrar by deleting the post of Translators from the lists of feeder cadres. In the said proposal, the Respondent No. 2 highlighted, inter alia, that the requirement of law graduation for appointment as Translators was withdrawn and avenue for promotion to them as Hindi Officer was created. Along with the said proposal, the draft of the amended Recruitment Rules was also sent to them. As no final decision was taken in the matter, 6 Superintendents including the Applicants were promoted to the post of Assistant Registrar on ad-hoc basis vide orders dated 23-07-2010 and 30.08.2011.
24. The Madras Bench of this Tribunal has also considered the same issue in OA No.745/2013 (supra) and, in the above facts and circumstances of the case, held that the principle that the Respondents are at liberty not to fill up post in view of the pending new/revised Recruitment Rules is applicable in the case. We are in respectful agreement with the aforesaid view taken by the Madras Bench. It is also understood that the Respondents were in the process of implementing the aforesaid order of the said Bench.
25. In view of the above position, OA No.148/2014 stands allowed and the OA No. 149/2014 stands dismissed. However, we direct the Respondents No.1 and 2 to ensure that the proposed amendments in the Recruitment Rules, 1975 shall be carried out as early as possible, if not carried out already. Thereafter, they shall fill the vacancies in the posts of Assistant Registrar in accordance with the amended Rules as expeditiously as possible. In the above facts and circumstances of the case, we also allow MA No.2769/2012 and direct the Respondent No.2 to allow the Applicants in OA No.148/2014 to continue on ad hoc basis till posts are filled up on regular basis in accordance with the amended Recruitment Rules.
26. There shall be no order as to costs.
Let a copy of this order be placed in both the files.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh