Central Administrative Tribunal - Delhi
Shri Ramesh Hanumantrao Bhalekar vs Union Of India (Uoi) And Ors. on 14 May, 1999
JUDGMENT
K.M. Agarwal, Chairman
1. This O.A. is an off-shoot of the applicant's earlier O.A. No. 1608/97, Shri Ramesh Hanumant Rao Bhalekar v. Union of India and 3 Ors., decided by us by a common order dated 9.12.1997 along with O.A. No. 2018/97, Shri Anindy as under, Son of Shri Brahmajyoti Goshal v. Union of India and 2 others with following directions:
"9. In the result, these applications succeed and are hereby allowed. The selection of Shri B.C. Mandal, (3rd respondent in O.A. 2018/97 and 4th respondent in O.A. 1608/97), for the post of Chief Controller of Explosive is quashed and the contesting respondents are directed to proceed to fill up the vacancy on the basis of the 1982 Recruitment Rules, as amended upto 1985, as also to consider the names of the two applicants in these applications in the light of the method of recruitment and eligibility conditions mention in columns 10 and 11 of the schedule to the 1982 Rules."
2. The grievance of the applicant in the present O.A., more of less, appears to be the same as was in his earlier O.A. In preference to the departmental candidates aspiring for promotion to the post of Chief Controller of Explosives, one Shri B.C. Mandal was appointed to the post by transfer on deputation. The departmental candidates were found ineligible for the post and, therefore, not considered. Shri B.C. Mandal was also found ineligible, but appointed to the post after relaxing the eligibility conditions. The selection was made on the basis of the new draft Recruitment Rules, which were later on published in Gazette of India dated 16.7.1997, but were not brought to our notice till the date of our order in the previous O. As. Now the present selection of the 4th respondent Dr. V.N. Singh has been made by following the alleged composite method of recruitment to the post by promotion and by transfer on deputation as per amended 1982 Recruitment Rules. The appointment is by transfer on deputation, because Dr. V.N. Singh was not a departmental candidate. The applicant was a departmental candidate. The selection of the 4th respondent, an outsider, in preference to the departmental candidate is, therefore, challenged in this O.A.
3. After hearing the learned counsel for the parties and perusing the record, we find that as directed by us in earlier O.As. 1608/97 and 2018/97, the official respondents were bound to consider the two applicants in those O.As. for the said post and to make selection and appointment in accordance with the 1982 Rules, as amended in 1985. As per rule 3 of 1982 Recruitment Rules:
"The method of recruitment to the said posts, age limit, qualifications and in other matters connected therewith shall be as specified in columns 5 to 13 of the schedule aforesaid."
The schedule was amended by notification dated 2.5.1985 published in the Gazette of India of even date, The amended schedule reads as follows:
Name of post No. of Posts Classification Scale of Pay 1 2 3 4 Chief Controller of Explosives Subject to variation dependant on workload General Central Service, Group 'A' Gazetted Rs. 2250-125/2-2500 Whether Selection post or nonselection Age Limit for direct recruits Whether benefit of added years of service admissible under Rule 30 of the CCS (Pension) Rules, 1972.5 6 7
Not applicable Not exceeding 50 years. (Relaxable upto 5 years for Govt.
servants) Note: the crucial date for determining the age limit shall be the closing date for receipt of application from candidates in India (other than those) in Andaman and Nicobar Islands and Lakshadweep) Yes Educational and other qualification required for direct recruits.
Whether age and Educational qualifications prescribed for direct recruits will apply in the case of promotees.
8 9Essential Age : No.
(i) Master's Degree in Chemistry from a recognised university or equivalent.
Educational qualifications -Yes-
Or Degree in Chemical Engineering/ Technology from a recognised University/ Institution or equivalent.
(ii) 15 years' experience in a supervisory capacity in storage handling or manufacture of explosives or refining of petroleum of in compressed gases.
(iii) Administrative experience.
Period of Probatioin if any.
Method of Recruitment whether by direct recruitment or by promotion or by deputation transfer and percentage of the vacancies to be filled by various methods.
In case of recruitment by promotion/deputation transfer grades from which promotion/deputation/transfer to be made.
10 11 122 years (After Amendment of 1984 to be By promotion/transfer on deputation (including short term Promotion/Transfer on deputation (including short term contract).
read as "Promotees-2 yrs. Direct Recruits-1 yr.
contract) failing which by direct recruitment.
(1)Officers of the Central/ State Government/Semi-Governments, Statutory or Autonomous Organisations:
(a)
(i) holding analogous posts; or
(ii) with 5 years service in posts in the scale of Rs.
1800-2250-/ or equivalent; or
(iii) with 7 years service in posts in the scale of Rs.
1500-2000 or equivalent, and
(b) Possessing the Educational Qualifications and Experience prescribed for direct recruits under Col. 7.
(2)The departmental Joint Chief Controller of Explosives with 5 years regular service in the grade failing which Jt. Chief Controller of Explosives with 7 years combined regular service in the grades of the Joint Chief Controller of Explosives and Deputy Chief Controller of Explosives will also be considered and in case he is selected for appointment to the post, the post shall be deemed to have been filled by promotion. "(Period of Deputation/contract including period of deputation in another ex-cadre post held immediately preceding this appointment in the sameorganisation/ department shall ordinarily not exceed 5 years.)" (Amended by vide Notification No. A- 12018/ 1/81-E. IV/Vol. III dated 29.8.1983 published in Gazette of India, Part II, Sec. 3 Sub-Sec, (i) dated 17.9.1983 G.S.R., No 681, dated 29.8.1983).
If a Departmental Promotion Committee exists what is its composition.
Circumstances in which Union Public Service Commission is to be consulted in making recruitment.
13 14Group 'A' Departmental Promotion Committee (for considering confirmation) Selection on each occasion shall be made in consultation with the Union Public Service Commission.
1. Secretary, Department of lndustrial Development-Chairman.
2. Additional Secretary, Department of Industrial Development -
Member.
Note:
The Proceedings of the Departmental Promotion Committee relating to confirmation shall be sent to the Commission for approval. If, however, these are not approved by the Commission a fresh meeting of departmental Promotion Committee to be presided over by the Chairman or a Member of the U.P.S.C. shall be held,
4. In 1985, only the eligibility conditions for the post of Chief Controller of Explosives in col. 8 of the Schedule, (wrongly mentioned as col. 7 in the notification), were amended. In the earlier OAs. The eligibility of various candidates for the said post was in dispute; whereas in the present O.A. there is no such dispute and both the applicant and the 4th respondent are admitted to be eligible for the said post of Chief Controller of Explosives. The dispute here is about the composite method of recruitment followed by the official respondents for filling up the said post of Chief Controller of Explosives.
5. Justifying the composite method of recruitment adopted by them, the official respondents have asserted that:
(i) The post of Chief Controller of Explosives is a solitary post and is a selection post, (Emphasis given).
(ii) The strength of feeder post of Joint Chief Controller of Explosives was only one as on 1.1.1995, when the post of Chief Controller of Explosives fell vacant.
(iii) Under the circumstances, the composite method of recruitment, as provided in paragraph 3.12.6 of the Handbook on Recruitment Rules published by the Department of Personnel and Training, was followed, which is as follows:
"In cases where the method of promotion is by 'selection' and the field of promotion consists of only one post, the method of recruitment by 'transfer on deputation (including short-term contract)/promotion' is prescribed so that the departmental officer is considered alongwith outsiders. If the departmental candidate is selected for appointment to the post; it is to be treated as having been filled by promotion; otherwise, the post is to be filled by deputation/ contract for the prescribed period of deputation/contract at the end of which the departmental officer will again be accorded an opportunity to be considered for appointment to the post."
(iv) Symbol "/", also known as "oblique mark" or "stroke," use in between the words"By promotion" and "transfer on deputation" below column 11 of the schedule pertaining to the method of recruitment, is also suggestive of the composite method of recruitment.
6. The post of Chief Controller of Explosives, though a solitary post, does not appear to be a 'selection post.' "whether selection post or non-selection" is mentioned in column 5 of the schedule and it is written below it, "Not applicable". It means, neither a selection nor a non-selection post. Column 13 of the schedule pertains to existence of a Departmental Promotion Committee and its composition. It is provided below it, "Group 'A' Departmental Promotion Committee (for considering confirmation)." It means, for filling up the vacancy of Chief Controller of Explosives, the Departmental Promotion Committee has no role to play, but for confirmation, it has to meet and decide.
7.1 In paragraph 2 of the common order dated 9.12.1997 in O.As. 1608/97 and 2018/ 97, it was noted:
"Briefly stated, the applicants in the two applications entered into the services of the official respondents in Inspectors of Explosives on two different dales, promoted as Controller of Explosives, further promoted as Deputy Chief Controller of Explosives and Joint Controller of Explosives and ad hoc basis and then on regular basis with effect from 7.5.1997. " (Emphasis given) The eligibility requirements for recruitment by promotion/transfer on deputation in column 11 of the 1982 Recruitment Rules were also noted. The eligibility requirements for recruitment by promotion were found to be:
"The departmental Jt. Chief Controller of Explosives with 5 years' regular service in the grade failing which Jt. C.C.E. with 7 years' combined regular service in the grades of the Jt. C.C.E. and Dy. Chief Controller of Explosives will also be considered and in case he is selected for appointment to the post, the post shall be deemed to have been filled by promotion." (Emphasis given).
However, by their Memo dated 26.8.1996, the Government decided to fill up the vacancy of Chief Controller of Explosives by transfer on deputation on the basis of fresh eligibility conditions mentioned in Annexure I to the said Memo. The applicants in the two O.As. were left out of consideration on the ground that they did not fulfil the eligibility conditions laid down in Annexurel to the GovernmentMemo dated 26.8.1996. Now on the basis of the words emphasised, we feel that even otherwise, the applicants in the said O.As could be excluded from consideration for promotion to the post of Chief Controller of Explosives, because they did not have any experience of "regular" or "combined regular service" in the grade of Jt. Chief Controller of Explosives.
7.2 In paragraph 4 of the said order dated 9.12.1997, it was found that the contesting respondents did not follow either the 1982 Recruitment Rules, or the proposed new Recruitment Rules in so far as the method of recruitment was concerned and that without disclosing any reason, it was decided "to fill up the post of Chief Controller of Explosive.... on transfer on deputation (including short-term contract) basis from amongst suitable officers." In paragraph 5 of the order, the contention on behalf of the contesting respondents was noted that:
"...... neither of the applicants in the two applications was eligible for the post either under the 1982 Rules, or under the draft Rules and, therefore, their grievance was misconceived."
7.3 After recording the reasons, it was held in paragraph 7 of the order that:
"..... the selection of Shri B.C. Mandal, (3rd respondent in O. A. 2018/97 and 4th respondent in O. A. 1608/97), for the post of Chief Controller of Explosives is vitiated and, therefore, it is liable to be quashed. As the draft recruitment Rules were not in force on the date of initiation of the impugned process of selection, (nor do they appear to have been enforced so far) we feel that the contesting respondents deserve to be commanded to proceed to fill up the vacancy on the basis of the 1982 Recruitment Rules, as also to consider the names of the two applicants in these applications in the light of the method of recruitment and eligibility conditions mentioned in columns 10 and 11 of the schedule to the 1982 Rules."
7.4. In paragraph 8 of the order it was observed:
"We may say that we are deliberately avoiding to express any opinion about the eligibility or otherwise of the applicants for the post of Chief Controller of Explosives under the 1982 Rules, because it was a disputed question between the parties and leave to the contesting respondents to decide the question at the time of making the selection. They shall also be at liberty to decide if it was advisable to exercise the power of relaxation under Rule 5 of the 1982 Rules in case none of the applicants is found to possess the requisite qualifications for the post."
8.1 In the present O.A., it has not been asserted by the official respondents that the applicant was not eligible for the post, or that he was left out of consideration for that reason. On the contrary, the stand taken by them is reflected in paragraphs 13 and 14 of their counter reply, which run as follows:
"13. In pursuance of the order dated 9.12.97 in O. A. Nos. 2018/97 and 1608/97, the respondents issued a circular No. A. 12027/1/95-E.IV/Expl. dt. 6.3.1998 inviting applications from departmental candidates as well as outsiders strictly in terms of the Recruitment Rules."
"14. Seven candidates viz. Shri R.H. Bhalekar, Shri M. Ambunathan, Dr. V.N. Singh, Dr. K.L. Patel, Dr. J.J. Rebello, Shri Ravi Babu, and Shri R.K. Agarwal applied in response to the circular, out of that 4 candidates were called by the U.P.S.C. for 'Personal Talk' on 26.2.99. The U.P.S.C., after having, Personal Talk with concerned candidates, have recommended a candidate for appointment to the post of Chief Controller of Explosives. He is not a departmental candidate....."
8.2. Circular dated 6.3.1998 referred to in paragraph 13 of the counter reply of the respondents has been filed by the applicant as Annexure A-8. Paragraph 2 and 3 of Annexure A-8 read as follows:
"2. In pursuance of the order of the CAT dated 9.12.97 and in terms of the Recruitment Rules, 1982 (amended upto May '85), it is not proposed to fill up the post of Chief Controller of Explosives by the method of promotion/transfer on deputation (including short-term contract) from amongst suitable officers. The eligibility conditions and job descriptions of the post are given in the Annexures.
"3. The departmental Joint Chief Controller of Explosives with 5 years regular service in the grade failing which Joint Chief Controller of Explosives with 7 years combined regular service in the grades of Joint Chief Controller of Explosives and Deputy Chief Controller of Explosives will also be considered and in case he is selected for appointment to the post, the post shall be deemed to have been filled by promotion."
If no Joint Chief Controller of Explosives was having 5 years regular or 7 years combined regular service, the circular dated 6.3.1998 would have been otherwise worded and instead of following the alleged composite method of recruitment, the only alternative method of recruitment by transfer on deputation would have been followed. Accordingly the contention that the strength of feeder post of Joint Chief Controller of Explosives on the date of vacancy in the post of Chief Controller of Explosives justified the composite method of recruitment was ill-founded. On the contrary, the strength of feeder post of Joint Chief Controller of Explosives on the date of initiation of selection process ought to have guided the respondents before deciding to proceed with the composite method of recruitment mentioned in paragraph 3.12.6 of the Handbook on Recruitment Rules.
8.3. In paragraph 4.2 and 4.3 of his application, the applicant has asserted that additional posts of Joint Chief Controller of Explosives were created by order No. 1/19/86-EGG (i) dated 5.5,1995, but he was promoted to the post only on 4.5.1997, but he was eligible for promotion on the date of the aforesaid order itself, i.e., on 5.5.1995. A copy of the order has been filed as Annexure A-2, which is reproduced hereinbelow with relevant entries:
"In implementation of the recommendations of the Internal Work Study Unit of the Deptt. of Industrial Development, sanction of the President is hereby accorded to the creation of the undermentioned temporary posts, in addition to the existing strength, in the offices of the Deptt. of Explosives, a Subordinate office under the Department of Industrial Development. These posts will be created w.e.f. 1.5.1995 or the date on which the posts are filled, whichever is later and will continue upto 29.2.1996. The category of posts, number of posts and scale of pay in which the posts are created are as follows (emphasis given) Name of the Post Scale of Pay No. of Posts Sr. Jt. Chief Controller 5100-6300 1 Jt. Chief Controller 4500-5700 5"
The official respondents have not disputed these factual statements, but have come forward with the explanation that:
"The post of Joint Chief Controller of Explosives was upgrated in May' 95 from the level of Rs. 4100-5300 to Rs. 4500-5700. As a result the recruitment rules had to be reviewed and hence there was a delay in filling up the post even by promotion."
The explanation is fallacious, because the life of the additional posts was restricted till 29.2.1996, as would be evident from the words underlined hereinbefore.
8.4 In paragraph 4.3 of his application, the applicant has asserted that the Government vide order dated 7.5.1997 promoted him along with Shri A.S. Ghosal and Shri Ambunathan to the post of Joint Chief Controller of Explosives. As would be evident from paragraph 14 of the counter reply, two out of three departmental candidates were also the candidates who were considered along with others for the post of Chief Controller of Explosives. It appears that Shri A.S. Ghosal, who was the applicant in O.A. 2018/97 did not apply and was not considered because in the meanwhile he had retired. Earlier the selection process was started by issuance of Memo dated 26.8.1996. On that date, neither the applicant, nor the other two departmental candidates were eligible for promotion to the post of Chief Controller of Explosives, because they had no regular service in the cadre of Joint Chief Controller of Explosives. As earlier stated, they were promoted to the posts of Joint Chief Controller of Explosives by order dated 7.5.1997 and, thereafter, the fresh selection process was initiated by issuance of circular dated 6.3.1998 mentioned in paragraph 8.2 of this order. Thus, on their own showing, the respondents were guided by the strength of feeder cadre of Joint Chief Controller of Explosives on the date of initiation of selection process, i.e., 6.3.1998. On that date, the feeder cadre for promotion to the post of Chief Controller of Explosives could not be of only one post and, therefore, the composite method of recruitment, as provided in paragraph 3.12.6 of the Handbook of Recruitment Rules published by the Department of Personnel and Training could not be followed by the contesting respondents.
9. While dealing with the "Guiding Rules" of Interpretation, in Chapter 2 of his celebrated book "Principles of Statutory Interpretation," G.P. Singh at page 57, Fifth Edition, Reprint 1993 has written that:
"The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless their is something in the context, or in the object of the statute to suggest the contrary. "The true way," according to Lord Brougham is, "to take the words as the legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered," and in the words of Viscount Haldane, L.C., if the language used "has a natural meaning we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so." In an off-quoted passage, Lord Wensleydale stated the rule thus: "In construing wills and indeed statutes and all written instruments, the grammatical and ordinary sense of the word is adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency, but no further."
Further at page 69 of his book, it is written that:
"The justification of the rule that the words are to be understood in their natural, ordinary or popular sense is well expressed by Justice Frankfurter: "After all legislation when not expressed in technical terms is addressed to common run of men and is therefore to be understood according to sense of the thing, as the ordinary man has a right to rely on ordinary words addressed." In determining, therefore, whether a particular import is included within the ordinary meaning of a given word, one may have regard to the answer which everyone conversant with the word and the subject-matter of statute and to whom the legislation is addressed, will give if the problem were put to him. In holding that a railway workman who was oiling an apparatus was not engaged in 'repairing' the same, Lord Simonds observed: "Had one of these workmen after oiling the apparatus been asked whether he had been repairing it, he would surely have answered, 'No.' And that is the answer which I must give unless the context compels me to something else than the ordinary meaning." Similarly, in emphasising that the ordinary meaning of 'sale' does not include compulsory acquisition of property on payment of compensation, Viscount Simonds said: "So far as the ordinary use of language is concerned it is difficult to avoid being dogmatic, but, for my part, I can only echo what Singleton, L.J., said 'what would any one accustomed to the use of words 'sale' or 'sold' answer? It seems to me that everyone must say the tax-prayers did not sell'. I am content to march in step with everyone and say the tax-payers did not sell." And the same method was adopted by Lord Diplock in construing the words 'he makes any unwarranted demand with menaces' as they occur in Section 21 of the Theft Act, 1968. The question in the case was whether the act of posting a letter containing a demand with menaces fell within the section irrespective of whether the letter was or was not delivered to the addressee. Lord Diplock observed that the words should be construed by ascribing to them their ordinary meaning which should be ascertained by answering the question: "Would a man say in ordinary conversation 'I have made a demand' when he had written a letter and posted it to the person to whom the demand was addressed ? Or would he not use those words until the letter has been received and read by the addressee ?" Lord Diplock then answered the question thus: "My answer to the question is that it would be normal for him to say 'I have made a demand' as soon as he had posted the letter, for he would have done all that was in his power to make the demand."
We are of the view that this rule of construction of words must equally apply to interpretation of various symbols, including oblique mark or stroke, commonly used in a language. Thus interpreted, symbol "/" used below column 11 of the schedule pertaining to the method of recruitment, can never be interpreted to mean "composite method of recruitment." It would mean either "or" or "in the alternative" in the context of the words used in column 11, "Method of Recruitment whether by direct recruitment or by promotion or by deputation transfer." (emphasis given). This conclusion is further supported by the fact that different considerations come into play while making recruitment by promotion and recruitment by transfer on deputation, so as to rule out the alleged composite method of recruitment.
10. To sum up, none of the four reasons given by the contesting respondents in support of composite method of recruitment followed by them is sustainable in law, because:
(i) as discussed in paragraph 6 of this order, the post of Chief Controller of Explosives is not a selection post;
(ii) as concluded in paragraph 8.4 of this order, on their own showing, the respondents were guided by the strength of feeder cadre of Joint Chief Controller of Explosives on the date of initiation to selection process, i.e. 6.3.1998;
(iii) and, therefore, the field of promotion did not consist of only one post, justifying the alleged composite method of recruitment followed by the respondents.
(iv) For the reasons stated in paragraph 9 of this order, the symbol "/" used in the entries below column 11 signifies "or" or "in the alternative," ruling out composite method of recruitment.
11. The two decisions of the Supreme Court in Y.V. Rangaiah v. Sreenivasa Rao, (1983) SCC 284; and in P. Murugesan v. State of Tamil Nadu, (1993) 2 SCC 340 relied on by the learned counsel for the contesting respondents and those in S.S. Sodhi v. State of Punjab, AIR 1990 SC 1064; and in A.P. Public Service Commission v. B. Sarat Chandra, (1990) 13 ATC 708 (SC) relied on by the learned counsel for the applicant are quite distinguishable on facts and need no discussion at length.
12. As the circular dated 6.3.1998, Annexure A-8, reproduced in paragraph 8.2 of this order, invited applications both from the departmental and outside candidates, the applicant cannot be denied his right in this O.A. on the ground of waiver by participating in the composite method of recruitment adopted by the contesting respondents, because in case of non-participation also, he could be non-suited by saying that he was not a candidate for the post.
13. It is unfortunate that no sincere effort was ever made by the Government to fill up the vacancy of Chief Controller of Explosives on regular, basis by promoting a departmental candidate after the retirement of one Shri B.R. Dave on superannuation on 30.6.1984. Instead, Shri Dave was given one year extension and, thereafter, Dr. H. Mukherjee was given ad hoc promotion to the post, which he continued to hold till the date of his retirement on 31.12.1994 on ad hoc basis. Acombined reading of parawise reply to para 1 of the application and Annexure R-1 to the counter reply would show that the 1 st, 3rd, 5th, 7th and 8th attempts were made to fill up the vacancy by composite method of "Promotion/Transfer on deputation," but no selection could be made, except recommending the name of Dr. H. Mukherjee at 7th attempt for regular promotion. Dr. Mukherjee was already holding the post on ad hoc basis. The 2nd, 4th and 6th attempts were to fill up the vacancy by "Direct Recruitment", but either the candidate was not found suitable, or not approved by the Competent Authority. The 9th attempt to fill up the vacancy by "Transfer on Deputation" was frustrated by this Tribunal's common order dated 9.12.1997 in O.A. Nos. 2018/97 and 1608/97. All the attempts were against the spirit of 1982 Recruitment Rules. Again the same mistake is committed by adverting to appoint the 4th respondent by transfer on deputation for a short period.
14. For the foregoing reasons, this O.A. succeeds and it is hereby allowed. The selection and appointment of the 4th respondent to the post of Chief Controller of Explosives by transfer on deputation is quashed. No costs.