Central Administrative Tribunal - Delhi
Shri Sunil Garg vs Union Of India Through on 4 December, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.2081/2011 Reserved on : 17.10.2012 Pronounced on : 04.12.2012 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Sunil Garg Aged about 49 years, S/o Shri Babu Lal Garg, R/o 23/206 (Type-IV) Lodhi Colony, New Delh 110 003. .Applicant (By Advocate : Sh. A. K. Behera) Versus 1. Union of India through Secretary Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block New Delhi 110 001. 2. The Secretary Union Public Service Commission Dholpur House, Shahjahan Road, New Delhi 110 011. 3. The Secretary Ministry of Tribal Affairs Shastri Bhawan, R. No.416, B Wing (4th Floor) New Delhi 110 001. . Respondents. (By Advocates : Sh. Krishan Kumar for Respondent No.1 and Mrs. B. Rana with Sh. Varun Sharma for Respondent No.2.) O R D E R Dr. Ramesh Chandra Panda, Member (A):
The applicant Shri Sunil Garg who belongs to the Central Secretariat Service (CSS) was promoted as a Section Officer on regular basis on his qualifying in the Limited Departmental Competitive Examination for the year 1989. His next promotional post is to the grade of Under Secretary (Grade I of CSS), for which his batch was to be considered for the select list for the year 2003. It is the case of the applicant that due to the administrative decision of the respondents, no Departmental Promotion Committee (DPC) for regular promotion could be held from 2002 to 2009. However, the DPC met during 3rd 7th August, 2009 and drew the select list for the year 2003 i.e. vacancies arising between 1st July, 2003 to 30th June, 2004. The promotion to Grade-I of the CSS (i.e. Under Secretary) is governed by the CSS Rules, 1962. According to Rule 12 (2) of the said Rules, Section Officers with 8 years of approved service are eligible for such promotion. Pursuant to the recommendations of the said DPC, the respondent issued a promotion order dated 25.08.2009 (page 13) wherein the juniors of the applicant were promoted but the applicant was not promoted. All persons below serial No.495 in the said order dated 25.08.2009 (Annexure A-1) are junior to the applicant. Being aggrieved, the applicant submitted his representations dated 07.09.2009 (Annexure A-5), 24.11.2009 (Annexure A-8) and 04.12.2009 (Annexure A-9) and since his grievances were not remedied by the respondents, he instituted the instant OA on 15.4.2011 with the following prayers :-
(i) Call for the records of this case;
(ii) Direct the respondents to include the name of the applicant (CSL No.4914) in the Select List for the year 2003 of the officers of the Central Secretariat Service (CSS) for appointment to Grade-I (Under Secretary) of the Service issued by DOP&T vide their OM No.5/16/2007-CS.1 dated 25/08/2009 with all consequential benefits including arrears;
(iii) Direct the respondents to give all the consequential benefits to the applicants;
(iv) Direct the respondents to pay the cost of litigation to the applicants;
(v) pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
2. Shri A.K. Behera, learned counsel for the applicant highlighting the above facts of the case would submit that the DPC for the first time met for drawing the Select List for the year 2003 only on 3rd to 7th August, 2009 and however, in the meantime two developments had taken place viz. (i) the Ministry of Personnel Public Grievances and Pensions had already issued the OM dated 08.02.2002 (page 29) whereby supersession in promotion had been stopped; (ii) further, it had been prescribed that promotion to the Grade I of CSS would be done on the basis of benchmark Good which was duly incorporated in the Central Secretariat Service (Promotion to Grade I and Selection Grade) Regulations, 1964 by an amendment dated 13.2.2006 (page 125) . His submission is that the DPC has ignored the OM dated 08.02.2002 as well as the amendment dated 13.02.2006 and has followed the unamended rules of assessment even though the same was not existing on 3rd August, 2009 when the DPC met. The DPC, it was contended, committed grave error in not empanelling the applicant in the select panel/list for the year 2003 despite applicant having been assessed as Good by the DPC. It is alleged that the applicant has been excluded from the Select List of 2003 as the DPC adopted the unamended Regulations 5(3), 5(4) and 5(7) of CSS (Promotion to Grade-I and Selection Grade) Regulations as per which the persons within the zone of consideration are required to be assessed as outstanding, very good and good on the basis of merit and select list shall be prepared by first including the officers who are graded as outstanding thereafter officers who are graded as very good and thereafter officers who are graded as good to the extent of number of vacancies. Shri Behera highlights that after the said Regulations of 1964, the Government had issued an Office Memorandum dated 08.02.2002 whereby supercession in promotion was done away with and all the officers in the zone of consideration were required to be assessed with reference to a benchmark and all persons who are assessed as fit for promotion with reference to the benchmark prescribed were to be included in the select list in order of their seniority in the feeder grade. The said OM prescribed benchmark good in respect of promotions to the post of Under Secretary. Shri Behera would submit that the said OM was issued by the DOPT and the cadre controlling authority for CSS for drawing the Select Panel for the Under Secretary Post is also the DOPT. His submission is that the legislative intent to do away with supersession and to include officers with reference to the benchmark Good was issued on 08.02.2002, and duly included in the 1964 Regulations by an amendment published on 13.2.2006. He drew our attention to the specific explanatory note in the 2006 amendment to state that the provisions of the OM dated 08.02.2002 were incorporated in the said amendment. Shri Berera submits that between 08.02.2002 when the OM was issued and 13.02.2006 when the amendments were carried out no DPC was held for considering promotion from Section officer to Under Secretary. Clause 2 of the said amendment indicated that the amendment would come into effect from the date of publication in the official gazette i.e. 13.02.2006. Thus, between 3rd 7th August, 2009, when the DPC met, a duty had been cast upon the respondents to follow the method of assessment as contained in the OM dated 08.02.2002 read with the amendment dated 13.02.2006. It was not open to the DPC to ignore the said OM and the amendment and to proceed on the basis of the unamended regulations and permit supersession in promotion. Had that been done away the applicant who was assessed as Good would have been included at Sr. No.495 A in the promotion order dated 25.08.2009. To summarise the contentions canvassed by the learned counsel for the applicant, three main grounds emerge - (i) The OM dated 08.02.2002 prescribe benchmark Good for promotion to the grade of Under Secretary and prohibits any supersession in promotion. As the respondents have not followed the said OM there is violation of the principles envisaged in the OM in view of the fact that the process of selection of Select List for the year was undertaken by DPC in August, 2009. Further, Cadre Controlling Authority to amend the RR, issuing authority of the OM dated 08.02.2002, and conducting of selection through DPC, being DOP&T it could not have ignored the OM. (ii) The supersession in promotion is also abolished by amendment brought in the CSS Regulations, 1964 vide notification dated February 13, 2006. Hence, DPC held in August, 2009 was required to follow the provisions of amended notification on the basis of the Honble Apex Court decision reported in 2011 (6) SCC 725 titled Deepak Agarwal and Another versus State of Uttar Pradesh and Others. In this regard Shri Behera submits that a similar case was decided by Honble Supreme Court in the matter of K. Ramalu (Dr.) and Another versus S. Suryaprakash Rao (Dr.) and Others [1997-3-SCC-59]; and (iii) As the candidates having Very Good grading were selected and the applicants grading was downgraded to Good and the said downgrading of assessment based on ACRs of the applicant was not communicated to him and thus, said assessment could not be interpreted adversely against him. He placed his reliance of the judgment of Honble Supreme Court in the case of Dev Dutt versus Union of India and Others [2008-8-SCC-725]. In view of the above contentions, Shri A.K. Behera urges to allow the Original Application granting promotion to the applicant with effect from the date of his juniors promotion.
3. Shri Krishna Kumar, learned Senior Central Government counsel appearing on behalf of the 1st respondent would raise the following contentions : (i) The OA is barred by limitation as the same has been filed more than 2 years after the date of impugned order dated 25.08.2009 and the first representation of the applicant dated 07.09.2009. Frequent representations would not extend the period of limitation. He, therefore, contends that the OA is liable to be dismissed in view of sections 20 and 21 of the Administrative Tribunal Act, 1985 (ii) The issue involved is squarely covered by the Tribunal judgment dated 10.05.2011 passed in OA no.4233/10 (A.D. Ray Versus Ministry of Personnel, Public Grievances and Pensions and Others). The Judgment has been passed after due consideration of guidelines of 8th February, 2002 as notified on 13.2.2006, and the Tribunal held that the instructions of February, 2002 would not replace the Statutory Rules and Regulations. (iii) The para 24 of the Deepak Agarwals case (supra) also reiterates that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules. (iv) The OA suffers from non joinder of necessary parties, as the impugned order covers as many as 856 persons who are likely to be affected if any favourable order is passed for the applicant. (v) The Tribunal cannot sit as an Appellate Authority over the DPC. Shri Krishna Kumar draws his support from the Honble Apex Court judgment in the case of Dr. Basavaiah Versus Dr. H.L. Ramesh and Others reported in 2010 (7) SCALE 529 where it has inter alia was held that the High court was not justified in sitting in appeal over the recommendations of the Expert Committee. He further submits that one who is found unfit has no right to challenge the Selection, as the promotion is not an indefeasible right of the employee. For the aforesaid reasons, he urges that the OA being devoid of merits deserves dismissal and for any reasons, if the Tribunal has a different view, Shri Krishna Kumar contends that in view of the order dated 10.05.2011 in OA No.4233/10, the matter may have to be referred to a Larger Bench.
4. Smt. Bindra Rana, learned counsel for the 2nd respondent UPSC, refuting the grounds taken by the applicant submits that it is settled law that OM/Executive Instructions/Guidelines which are not in conformity with the provisions of Recruitment Rules cannot be acted upon, unless the concerned Recruitment Rules are amended and notified by incorporating the instructions. She placed her reliance on the decision reported in (2004) 6 SCC 85 titled T. N. Housing Board Versus N. Balasubramanium where the Honble Supreme Court held that OM/Executive instruction cannot supercede the Recruitment Rules. The Division Bench of Delhi High Court in the decision reported in 152 (2008) DLT 427 (DB) titled R. S. Sharad and Another Versus Union of India & Others held that administrative instructions issued by the Government could not supercede Rules unless instructions are incorporated in the Rules. She submits that the mode of promotion as selection in accordance with the OM dated February 08, 2002 issued by DOP&T, the CSS Regulation, 1994 was amended only on February 03, 2006 and as such would be prospectively applicable and the panel prepared for the year 2003, the relevant RR would apply. In respect of Deepak Agarwals case (supra) relied upon by the applicant is distinguishable and not applicable to the facts of the present case. The principle enunciated by the Supreme Court in Y. V. Rangaiah Versus J. Sreenivasa Rao reported in 1983 (3) SCC 284 having not been over ruled by the Honble Supreme Court, the same will hold the field. The facts of the present case is fully covered with the facts of Y. V. Rangaiahs case (supra), as the select list for every year in the month of July shall be prepared in accordance with CSS Regulations, 1964, which was mandatory. However, this could not be done due to pending litigation before the Honble Supreme Court. Although, as per the interim directions of the court, ad hoc appointment are given to the officers. In the instant case, Respondent had received no adverse remarks and had rather been graded at the level of the prescribed bench mark of above average, therefore, there was neither any onus nor requirement upon the authority concerned to have communicated the ACR entry to Respondent. The Department Promotion Committee (DPC) followed the prescribed norms as also applied its discretion vested in it to determine the comparative merit of the eligible officers and thereafter made recommendations in order of merit. Further, the downgrading of the Respondent still meets the bench mark and, therefore, merely because certain persons have been assessed by the DPC as Very good and the applicant has been graded as Good did not imply that he should have been communicated his grading. Since the applicant meets the bench mark of Good, hence ACR is not adverse and non communication of the same cannot be a ground for review DPC. She further submits that the OA is liable to be dismissed for non-joinder of necessary parties. She referred to the following decisions (i) Prabodh Verma and Others versus State of Uttar Pradesh and Others [1984(4) SCC 251] and (ii) Suresh versus Yeotmal District Central Cooperative Bank Ltd. and Another [2008 (3) SCR 1023]. Smt. Rana contends that the present OA is filed beyond the period of limitation prescribed under Section 21 of Central Administrative Tribunal Act and liable to be dismissed on this ground as well.
5. Having heard the contentions of the parties, we have perused the pleadings and relied on judgments.
6. In view of the grounds taken by the parties in the foregoing paragraphs, controversy for our consideration and determination is whether unamended or amended rules would apply for drawing up select list for the year 2003 for the Under Secretary (Grade-I of CSS) grade for which DPC was held in the year 2009?
7. Before we may advert to the aforesaid controversy, it is apt to consider two preliminary objections raised by the respondents viz (i) Limitation and (ii) Non-joinder of necessary parties.
8. Learned counsel for the 1st respondent would submit that the promotion order was issued on 25.08.2009 but the applicant moved the present Original Application on 25.04.2011, which was beyond the period prescribed under the Administrative Tribunals Act, 1985, and hence, the law of limitation would hit the case. On the contrary, Shri Behera, learned counsel for the applicant would submit that on coming to know of the said order, the applicant represented on 07.09.2009 which was forwarded only on 10.09.2009. Having received no response, the applicant made a further representation on 24.11.2009 and on 04.12.2009. Hence, his contention is that there was no delay in approaching the Tribunal. We have given our thoughtful consideration to the above contention of the applicant. It is noticed that applicant has made his last effort by giving a representation on 04.12.2009 and hence the period of limitation would expire on 04.06.2011. The applicant has filed the OA on 15.04.2011 much before the period of limitation and it is only belated and repeated representation do not extend the period of limitation, but when the representations are not belated but have been duly forwarded by the competent authority, such representations cannot be excluded for the purpose of counting limitation. Thus, the OA is perfectly within the period of limitation.
9. The next preliminary objection is on the non-joinder of necessary parties. The respondents claimed that by granting relief to the applicant, somebody else would be affected. The learned counsel for the applicant would submit that if the relief as prayed by the applicant would be allowed to direct the respondents to include his name in the promotion order dated 25.08.2009 some person(s) in the list would be affected. It is contended on behalf of the applicant that his prayer is not for quashing of the promotion of any of the individuals included in the order dated 25.08.2009. Besides, it is contended that Government is the necessary party. In this regard reliance is placed on the judgments of Honble Supreme Court in the matter of General Manager, South Central Railway versus AVR Sidhanti [(1974) 4 SCC 335] and A. Janardhan Versus Union of India & Ors. [(1983) 3 SCC 601] wherein it was held that the only necessary party was the Government and all others were at the most proper parties but not necessary parties. We have gone through the judgment and note that in AVR Sidhantis case (supra), the following law was laid by Honble Apex Court:-
15. As regards the second objection, it is to be noted that the decision of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain-Shop departments. The Respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Arts.14 and 16 of the Constitution. The proceedings are analogous to these in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No. list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition. In our view, the contention of the learned counsel for the applicant has logic and the issue is fully covered by the above judgment. Thus, this objection is rejected.
10. We may now consider the principal controversy. In this regard it is relevant to note that the Central Secretariat Service Rules, 1962 framed in exercise of the powers conferred on the Government by the proviso to Article 309 of the Constitution of India provides in Rule 12 about the recruitment to Grade I (Under Secretary grade) that the Vacancies in Grade-I shall be filled by promotion of regular officers of the Section Officers Grade who have rendered not less than eight years approved service in that Grade and The procedure for preparing and revising the Select List shall be such as may be prescribed by regulations. In pursuance of sub-rule (4) of rule 12 of the above rules the Central Secretariat Service (Promotion to Grade I and Selection Grade) Regulations, 1964 was framed. The respondents followed the unamended provisions in the Regulations 5(4) and 5(7) in drawing up the Select List of Grade-I for the year 2003 in 2009. Both the above referred regulations read thus:-
(4) The Selection Committee shall classify such of the officers included in the field of selection as are considered fit for appointment to Grade I as outstanding, very good, and good, on the basis of merit.
Note:- While considering the cases of officers belonging to the Scheduled Castes and Scheduled Tribes, the Selection Committee shall be guided by such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions shall, from time to time. (7) The Select List shall be prepared by including the required number of names first from amongst the officers finally classified as outstanding then from amongst those similarly classified as very good and thereafter from amongst those similarly classified as good. The order of names inter se within each category shall be the order in which the names are arranged in the single list prepared under clause (2). The Select List so prepared shall be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions.
11. In the meantime, the amendment was carried out on 13.02.2006 to the said Regulations fully conforming to the provisions of the OM dated 08.02.2002. The DoP&T OM dated 08.02.2002 provided that there should be no supercession in manner of selection (merit) promotion at any level. In keeping with the said decision, revised promotion norms/guidelines were issued vide Department of Personnel and Training OM No.35034/7/97-Estt.(D) dated the 8th February, 2002 as per which the element of selectivity shall be determined with reference to the relevant benchmark (very good or good) for promotion. In case of Grade-I of CSS (Under Secretary) Good has been envisaged as the benchmark. The Selection Committee shall determine the merit of those being assessed for promotion with reference to the prescribed benchmark and accordingly officers are to be assessed as fit or unfit only. Those who are graded fit by the Selection Committee are included in the Select List in order of their inter-se seniority in the feeder grade. Accordingly the Regulation 5 (4) and 5 (7) of the Regulations, 1964 were amended by the Central Secretariat Service (Promotion to Grade-I and Selection Grade) Regulations, 2005 notified on 13.02.2006 which reads thus:-
2. In the Central Secretariat Service (Promotion to Grade I and Selection Grade) Regulations, 1964, in regulation 5,--
for sub-regulation (4), the following shall be substituted, namely:-
(4) The Selection Committee shall grade such of the officers including in the field of selection as fit or unfit with reference to the benchmark of good; for sub-regulation (7), the following shall be substituted, namely:-
(7) (i) The Select List shall be prepared by including the required number of officers graded as fit in the order in which their names are arranged in the single list prepared under clause (2).
(ii) The Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions shall issue the Select List so prepared. for sub-regulation (10), the following shall be substituted, namely:-
(10) The Selection Committee shall grade shall of the officers including in the field of selection as fit or unfit with reference to the benchmark of very good.
for sub-regulation (12), the following shall be substituted, namely:-
(12) (i) The Select List shall be prepared by including the required number of officers graded as fit in order of their seniority in Grade-I.
(ii) The Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions shall issue the Select List so prepared. Explanatory Note.-(i) The Government has decided that there should be no supersession in matter of Selection (merit) promotion at any level.
(ii) In keeping with the said decision, revised promotion norms/guidelines have been issued vide Department of Personnel and Training O.M. No. 35034/7/97-Estt.(D) dated the 8th February, 2002.
(iii) As per these norms/guidelines, the element of selectivity shall be determined with reference to the relevant benchmark (very good or good) for promotion.
(iv) The Selection Committee shall determine the merit of those being assessed for promotion with reference to the prescribed benchmark and accordingly grade officers as fit or unfit.
(v) Those who are graded fit by the Selection Committee shall only be included in the Select List in order of their inter-se seniority in the feeder grade.
12. Admittedly, the above amendment was only prospective. The Select List Panel year is 2003 and due to the administrative reasons including the subsisting litigations, the regular Select List for number of years including that of 2003 for the Grade-I could not be finalized, and the said panel was finalized only in the year 2009.
13. With regard to prospectivity or retrospectivity of the applicability of the amended regulations, the learned counsel for the applicant contends that retrospective applicability of the amended OM dated 13.02.2006 based on the OM dated 08.02.2012 is applicable. He submits that in a similar case where initially an OM dated 09.07.1999 was issued and rules were subsequently amended w.e.f. 30.04.2001 with a note incorporating the issuance of OM dated 09.07.1999 the Honble High Court of Delhi interpreted the same as having been given retrospective operation in the judgment dated 03.07.2008 of the Honble Delhi High Court in W.P. (C) No.4462 of 2008 titled as Pradeep Kumar Chakraborty & another versus Union of India and Others. This stand of the learned counsel for the applicant was disputed by both counsel appearing for the respondents. Smt. Bindra Ranas contention was that facts of the present OA being different from the case decided by High Court, law laid by High court would not be applicable. We have carefully studied the above judgment and noted that in the said case the hierarchy in Military Engineering Service was Superintendent (B/R) Grade-II which was the feeder grade for promotion to Superintendent (B/R) Grade-I. Thereafter, Superintendent Grade-I was the feeder grade for promotion as Assistant Engineers. This was the position under the relevant statutory Rules vide the OM of 09.07.1999 merging and redesignating the posts of Superintendent Grade-II and Superintendent Grade-I as Junior Engineers was ordered and the corresponding amendment in the Recruitment Rules was carried out on 30.04.2001 with a note which incorporated the issuance of OM dated 09.07.1999. The question arose with effect from what date the service of the merged and re-designated grade of Junior Engineer was to be counted for the purpose of promotion i.e. whether from 09.07.1999 when the OM was issued or when the amendment was carried out on 30.04.2001. The Honble High Court upheld the decision of the Tribunal and decided that the amendment must be deemed to be retrospective from 09.07.1999 and accordingly the service of the merged grade is to be counted from 09.07.1999 and not from 30.04.2001. In the instant OA, it is not the case of merger but change in the process of drawing of Select List for promotion where the evaluation process was changed and benchmark was introduced. The law on the issue having been settled by Honble Apex Court in Y. V. Rangaiahs case (supra), the judgment of Honble High Court in Pradeep Kumar Chakrabortys case is distinguishable. Thus, in our view the amended regulation of 2006 will not be applicable retrospectively for drawing up a Select List for the year 2003. The amended regulation will have prospective applicability for the preparation of Select List.
14. We may advert to the next issue. The ground taken by the respondent was that amendment in the 1964 Regulations was carried out only w.e.f. 13.02.2006, therefore, the vacancies which have arisen prior to 13.02.2006 are to be filled up by the unamended Regulations of 1964 by following the ratio in the Y. V. Rangaiahs case. But, Shri Behera, learned counsel for the applicant, would submit that there was no universal law that vacancies were to be filled up by the law existing on the date when the vacancy arose. He referred to the law set by Honble Supreme Court in the case of Deepak Aggarwal versus State of Uttar Pradesh [(2011) 6 SCC 725] and more specifically referred to the para 26 which is reproduced below:-
26. We are also unable to accept the submissions of Dr. Dhawan that the conscious decision taken herein is not grounded on the relevant facts. A perusal of the Counter Affidavit filed by the respondent herein shows that the recruitment of the appellant No.1 has been made purely with the objective of looking after the technical work pertaining to pharmacies and industrial units. Therefore, the requisite qualification for the post is Degree in Chemical Engineering. Appellant No.2 has been recruited for compilation, analysis and maintenance of statistical data of the Excise Department. The basic qualification for the post of Statistical Officer is Graduation in Statistics. It appears that the two categories of posts have been eliminated as the incumbents on the said posts do not have any administrative experience. The decision was taken clearly in public interest. Since the decision has been taken after taking into consideration the view points of both the sides, it can not be said to be arbitrary or based on irrelevant considerations. We also do not find any merit in the submission of Dr. Dhawan that the amendment has been given a retroactive operation as the vacancies which arose prior to the amendment are sought to be filled under the amended rules.
15. The learned counsel for the respondents argued the applicability of un-amended regulation mainly on two grounds. Firstly, the OM dated 08.02.2002 being an administrative instruction could not supercede the 1964 Regulations. Therefore, till the Regulations were amended on 13.02.2006, the unamended Regulations were to be followed. Secondly, the amendment in the regulations was carried out w.e.f. 13.02.2006, therefore, the vacancies which had arisen prior to 13.02.2006 were to be filled up by the amended regulations of 1964 by following the ratio in the Y. V. Rangaiah versus J. Sreenivasa Rao reported in (1983) 3 SCC 284. The respondents contended that since the DPC, which met on 3rd August to 7th August, 2009 had rightly followed the unamended Regulations of 1964, there was nothing wrong in the same. Learned Counsel for the applicant would contend that the officers in the feeder grade would be assessed only with reference to a benchmark introduced in the OM dated 08.02.2002 with clear stipulation in para 5 that the same would come into effect from 08.02.2002 and the Para 6 stipulated to amend the service rules to incorporate the provisions of the OM and the power to do so was delegated to the Ministries/Departments. In the instant case the authority of OM dated 08.02.2002 as well as the cadre controlling authority of the CSS is the DOP&T. We have carefully considered the rival contentions and note that the Regulations 1964 have been amended only in the year 2006. Hence, the amended regulations cannot have retrospective effect as there is no such provision in the amendment. The un-amended regulations existing in the year 2003 was, in our views, properly used to prepare the Select List for 2003. In this context, we draw our support from Honble Apex Court decision in Y.V. Rangaiahs case. The relevant para of the judgment reads thus:-
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. [Emphasis added]
16. Though the judgment of Honble Supreme Court in Deepak Aggarwals case (supra) is the latest one, the judgment of Honble Apex Court in Y. V. Rangaiahs case (supra) holds the field. Even Honble Supreme Court has also referred in the Deepak Aggarwals case its judgment in Y. V. Rangaiahs case inter alia stating that its applicability will be in the same facts and circumstances of the case. The judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The said rule provided for annual preparation of a panel for the eligible candidates in the month of September. The statutory duty cast on the State was to be properly exercised every year. So also in the present case, the duty is cast on the respondents to prepare annual Select List of Grade-I CSS officers for the Grade-I of CSS as per Regulation 5(1) at least once every year and on the 1st July of the year. Therefore, the judgment of Honble Supreme Court in Y. V. Rangaiahs case (supra) fully covers the controversy in the present Original Application. Though the respondents for administrative reasons could not draw up the Select Panel for the year 2003 and the same could be done in the year 2009, the statutory duty is cast on the respondents to draw up the Select List for the year 2003. Subsequent amendments pursuant to the DoP&T O.M. dated 08.02.2002 incorporated by amending the CSS Regulations of 1964 in the year 2006 would not support the case of the applicant. It is also noted that belated drawal of Select List was due to the litigations pending before various courts and as per the interim directions of the Honble Supreme Court, ad hoc appointments were given to the concerned officers.
17. In view of the legally settled position that the rules existing as per CSS Regulations, 1964 to draw the Select Panel for the year 2003 for Grade-I of CSS, the un-amended Regulations would be applicable and the respondents have correctly applied the un-amended Regulations whereby the procedure of assessing the officers in the declining scale as Outstanding, Very Good and Good was prepared. The applicant having been assessed as Good and there being number of candidates who have been assessed as Very Good, the applicant could not have been considered for promotion and inclusion in the Select List of 2003 for the post of Under Secretary (Grade-I of CSS). In our considered opinion, the respondents have properly acted to draw the Select Panel. The law set by Honble Supreme Court in Y. V. Rangaiahs case also supports the principles and criteria adopted by the respondents. Thus, no interference is called for on this ground from the Tribunal.
18. We may advert to another issue raised by the learned counsel for the applicant, which relates to the downgrading of the ACRs of the applicant. His contention is that the officers assessed as Very Good having been selected and the applicant getting grading of Good was ignored, the below benchmark assessment should have been communicated to the applicant for his representation. In this context, learned counsel for the applicant has referred to the law set by Honble Supreme Court in the matter of Dev Dutts case (supra) to say that such below benchmark assessment should have been communicated to the applicant. There is clear distinction between the below benchmark grading to be communicated to the applicant for his ACRs and the assessment done by the competent Selection Committee/DPC. In case of below benchmark of ACRs, the ratio set in Dev Dutts case is applicable, but the present case is not of below benchmark case of the applicants ACRs. On the other hand, in the present case no adverse remarks have been given to the applicant. He has been assessed as Good by the DPC which is also one of the acceptable norms as per the guidelines existing then. The DPC has followed the norms and applied its discretion which cannot be examined by this Tribunal. Since the applicant meets the benchmark of Good and ACRs are not adverse, there was no need to communicate his assessment (Good) as he was meeting the benchmark but there were other candidates who have been assessed as Very Good and above by which they have marched over the applicant. On this count also, the applicant does not convince us seeking our interference in the matter.
19. Looking into the totality of facts and circumstances of the case and guided by the law set by the Honble Supreme Court in many judgments referred to herein, more specifically the ratio decidendi in Y. V. Rangaiahs case (supra), we are of the view that there are no grounds under which the Tribunal can interfere in the matter and issue any directions to the respondents. Accordingly, the applicant has failed to convince us on his grounds.
20. Resultantly, the Original Application being devoid of merits is dismissed. There will be no order as to costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
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