Central Administrative Tribunal - Delhi
Shri Manish Bachhil vs Union Of India on 7 August, 2015
Central Administrative Tribunal Principal Bench OA No. 1720/2013 Order Reserved on: 27.04.2015 Order Pronounced on: 07.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri Manish Bachhil, S/o Late Sh. S.C. Bachhil, Aged about 40 years, R/o B-407, Pragati Vihar Hostel, Lodhi Road, New Delhi-110003 -Applicant (By Advocate: Shri Rajesh Katyal) VERSUS 1. Union of India, Through Secretary, Ministry of Home Affairs, North Block, New Delhi 2. The Director General, Sashastra Seema Bal (SSB), Force Head Quarters, East Block-V, R.K. Puram, New Delhi-110066 -Respondents (By Advocates: Shri Rajinder Nischal and Sh. Padma Kumar S.) O R D E R Dr. B.K. Sinha, Member (A):
The instant OA under Section 19 of the Administrative Tribunals Act, 1985 has been filed by the applicant seeking promotion to the post of Assistant Director (Telecommunication) [AD (Tele), for short]. During pendency of this OA, the applicant was promoted to the post of Deputy Commandant.
2. The applicant has sought the following reliefs:-
(i) To direct the respondents to hold the DPC for considering the case of the applicant for promotion to the post of Assistant Director (Telecommunication) against the three vacant posts of Assistant Director (Telecommunication) as per the old un-amended rules i.e. Cabinet Secretariat Special Service Rules, 1996 against the vacancy year 2012-13 against which the applicant had attained eligibility and was eligible as on 01.01.2012 and in case the applicant is successful, he should be promoted w.e.f. 01.04.2012 and he should be entitled for all the consequential benefits including counting of said period w.e.f. 01.04.2012 for the purpose of eligibility for further promotion. It is further prayed that the impugned order dated 20.03.2013 may be quashed and set aside being illegal and not sustainable in law.
3. The facts of the case are that as per Cabinet Secretariat Special Service Bureau (Tele) Services Rules,1996 (hereinafter referred to as Service Rules 1996), Senior Field Officer (Tele) [SFO (Tele), for short] and Deputy Superintendent of Police (Tele) [SP (Tele), for short) with 7 years of regular service, were/are eligible for promotion to the next higher post of AD(Tele). Thus, for promotion to the post of AD (Tele), there are two feeder cadres i.e. SFO (Tele) and DSP (Tele). The nomenclature of the post of DSP (Tele), was changed and re-designated as AC (Tele) and thereafter as AC (Communication). As per Service Rules 1996, the combined seniority list of SFO (Tele) and AC (Tele), has to be prepared for promotion to the next higher grade of AD (Tele) and as per the said combined seniority list, the applicant is the senior most person and eligible for being considered for promotion to the next higher post of AD (Tele). The further case of the applicant is that there are three posts of AD (Tele) in SSB and the said three posts are lying vacant since the year 2009. As per the Service Rules, 1996, SFO (Tele) and AC (Tele) should have 7 years of regular service in the feeder cadre. The applicant was promoted to the post of AC (Tele) w.e.f. 11.07.2005 and therefore, his residency period as on 01.01.2012 was 6 years 5 months and 21 days and hence was short of eligibility period of 6 months and 10 days. The applicant made representation to the respondents for granting relaxation in the residency period for promotion to the post of AD(Tele) as he was looking after the duties of AD (Tele) since last 2 years and the power for relaxation exists in Rule 6 of the above mentioned statutory rules. The above representation of the applicant was sent by the respondent No. 2 i.e. SSB to the MHA for relaxation along with a proposal dt. 09.04.2012. As certain clarifications were sought by MHA, the above proposal was again submitted to the MHA with a request to grant relaxation.
4. It is further submitted that on 16.10.2012 SSB Non-Combatised (Tele-Communication) Service Group-A Post Recruitment Rules, 2012 were amended and notified, by which the appointment to the post of AD (Tele) was governed. As per these Recruitment Rules, only SFO (Tele) with 5 years service were eligible for promotion to the post of AD (Tele). As per these Rules, the applicant was not, thus, eligible to be considered for the post of AD (Tele). However, as the 3 posts in question were in existence prior to 16.10.2012 i.e. the date of the Notification of the amended Recruitment Rules, the existing posts of AD (Tele) which were already lying vacant, were required to be filled as per the old un-amended Recruitment Rules 1996. It is the admitted case of the Respondents that the said posts are lying vacant since long and the said fact has been admitted in the proposal dt. 09.04.2012. The respondents granted the relaxation in the residency period for promotion from the post of AC (Tele) to AD (Tele) and the same was communicated to the applicant vide impugned order dated 20.03.2013 wherein it was mentioned that the relaxation of residency period in respect of applicant has been received from DoPT on 04.12.2012 i.e. after the Notification of the Revised Recruitment Rules and therefore, he cannot be considered for promotion as per earlier recruitment rules. It is a matter of fact and record that the three posts of AD (Tele) had fallen vacant and were in existence prior to 16.10.2012 and therefore, the post of AD(Tele) has to be filled in as per the old rules of 1996. The issue involved in the present case is squarely covered by the law laid down by the Honble Supreme Court of India in the matter of Y.V. Rangaiah & Ors. Vs J. Sreenivasa Rao & Ors., reported in (1983) 3 SCC 284, wherein the Honble Supreme Court had held that vacancies in the promotional posts which occurred prior to the amendment of the Recruitment Rules would be governed by the original rules and not by the amended rules. The Honble Supreme Court in the matter of State of Rajasthan Vs. R. Dayal and others reported as (1997) 10 SCC 419, followed the ratio of Y.V. Rangaiahs matter. Thus, the above posts are to be filled in as per the Cabinet Secretariat Special Service Bureau (Tele) Service Rules, 1996 i.e. the Rules, which were in existence on the date of occurrence of the vacancies. The reason for non-consideration of the applicant for promotion to the post of AD (Tele), as per the respondents, is that the relaxation has been received on 04.12.2012 i.e. after the date of Notification of the new recruitment rules. It is submitted that the said reason, given, is not sustainable in the eyes of law because the issue is not the date of granting of the relaxation but the period, during which the vacancies occurred, which in the present case is prior to 16.10.2012. Thus, the above three vacancies are to be filled up only as per the rules existing prior to 16.10.2012 i.e. as per the rules of 1996 and it does not matter when they are filled up. The Honble Supreme Court further in the matter of Arjun Singh Rathore and Ors Vs. B.N. Chaturvedi and others, reported in (2007) 11 SCC 605, considering the facts of that case, held that vacancies occurring prior to the promulgation of new Rules of 1998 will be governed according to the old rules of 1988 even though interview was held in the year 2000 when the new rules had already been notified. Thus, the Supreme Court held that if the vacancies required to be filled relate to the earlier years when the old rules were applicable, the said vacancies are required to be filled up as per the old rules even though on the date of filing of the said vacancies, the new rules are notified. During the pendency of the OA, the applicant has been promoted to the post of Deputy Commandant.
5. The private respondent i.e. Sh. Nageshwar Vashisht, SFO, filed an application for impleadment, which was allowed by this Honble Tribunal. The private respondent has raised objections that this Honble Tribunal has no jurisdiction to deal with the present OA on the ground that the applicant is a Deputy Commandant and is not holding a Civil post. The said objections of the respondent is totally frivolous because in the present case, the applicant is seeking promotion to the post of AD (Tele) as per the old Service Rules of 1996. It is submitted that the OA was filed on 20.05.2013 and this Honble Tribunal vide order 22.05.2113, after hearing the arguments, observed that a prima facie case has been made out in favour of the applicant and further directed that the respondents would keep one post of Assistant Director (Tele-Communication) vacant, till further orders. Thus, the issue of promotion of the applicant to the post of Ad(Tele) is subjudice before this Tribunal and just because the applicant, during pendency of the OA has joined the post of Deputy Commandant, his rights are not waived, which are subjudice before this Court and the same cannot be defeated. Even otherwise, as per the combined seniority list, the said private respondent is much junior to the applicant. In case the applicant is considered for promotion to the post of AD (Tele), he will gain two years of service seniority with good promotional prospects from the post of Ad(Tele). The private respondent has no locus in the present case as, as per combined seniority list, the applicant is at SI. No. 1 and the private respondent is at SI. No. 13
6. The respondents have filed the written synopsis wherein it is submitted that prior to the shifting of administrative control of Special Service Bureau from Cabinet Sectt. to Ministry of Home Affairs, the Telecommunication Cadre of SSB was governed by the provisions of the Service Rules, 1996.
7. It is further submitted that as per RRs, three posts of AD (Tele) were authorized in SSB and were lying vacant. The eligibility criteria for promotion to the post of AD (Tele) is as under:-
Promotion of SFO (Tele) or DSP (Tele) of Special Service Bureau with degree in either Telecommunication Engineering/Electronics or Science with 7 years of regular service in the grade. Their inter-se seniority will be counted from the date of regular appointment to the grade of Senior Field Officer/Deputy Superintendent of Police.
8. It is submitted that the applicant was holding the rank of AC (Tele) in SSB w.e.f. 11.07.2005 and was the senior most in the feeder cadre as per provisional seniority list circulated vide SSB PHQ Memo dated 23.12.11. He had completed 6 years and 05 months and 21 days as AC (Tele) as on 01.01.2012. The applicant had submitted a self explanatory representation on 12.01.2012 requesting therein to seek one time relaxation in the residency period for his promotion to the rank of AD (Tele) the vacancy year 2012-13 as he fell short of 06 months and 10 days in the residency period as on 1.1.2012. The respondents considered his request and had taken up the matter with MHA for grant of one time relaxation of 06 months 10 days and 10 months 22 days in respect of the applicant and Shri R.C. Singh, AC (Tele), his immediate junior respectively vide UO dated 10.04.12 so that they could become eligible for the post of AD (Tele) and could be promoted accordingly. The matter remained under protracted correspondence with MHA and DOP&T w.e.f. 10.04.2012 to 04.12.2012. However, in the meantime, SSB, Non Combatised (Telecommunication) Service Group A Post Recruitment Rules, 2012 were notified by MHA on 16.10.2012.
9. It is once again reiterated that the applicant was not eligible as on 01.01.2012 for the vacancy year 2012-13 for promotion to the post of AD (Tele) and the matter was under consideration of the concerned Ministry and DOPT to make him eligible. However, in the meantime, the revised Recruitment Rules, 16.10.2012 were notified by MHA and the relaxation in respect of the applicant was given by MHA/DOPT only on 04.12.2012 i.e. after notification of the revised Recruitment Rules of Sashastra Seema Bal, Non-Combatised (Telecommunication) Service Group A Posts Recruitment Rules, 2012. According to the provisions of the new RRs, SFO(Tele) with five years regular service in the Pay Band of -3 of Rs.15600-39100 plus Grade Pay of Rs. 5400 and possessing a degree in either Telecommunication Engineering or Electronics or degree in Science with Physics and Mathematics are eligible for promotion to the post of AD (Tele). Since the applicant was not eligible on 01.01.12 for vacancy year, 2012-13 and the revised RRs of Non Combatised (Telecommunication) Cadre were notified on 16.10.12 i.e. prior to the relaxation of MHA/DOPT making him eligible for promotion, he is not eligible for promotion to the rank of AD (Tele). SSB has now become a Border Guarding Force and recruitment at base level in respect of all non-combatised cadre has been banned.
10. MHA while conveying re-structuring of SSB have sanctioned the posts of DC (Tele), Commandant (Tele) and DIG (Tele) thereby opening the promotional avenues of Combatised Telecommunication Cadre of SSB at a large scale. Further SSB is expanding at very rapid pace and new Frontiers/SHQs and Battalions are in the process of being set up thereby creating various new posts in each cadre. The stagnation of career in various cadres such as Combatised Engineering Cadre and Combatised Telecommunication Cadre is being removed by creating new posts in the upper hierarchy. Combatised Tele-communication cadre of SSB has been enhanced by creating various posts like DC (Tele), Commandant (Tele) and DIG (Tele) in the cadre. The Recruitment Rules of these posts have already been notified by MHA.
11. The applicant is holding a combatised post of AC (Tele) and as such, he will be promoted to the rank of DC (Tele) which is the next hierarchical post in the Combtaised Telecommunication Cadre instead of AD (Tele) which is a civil post. Since the applicant was not eligible for promotion to the post of AD (Tele) prior to the notification of revised Recruitment Rules 2012, the plea of the applicant is liable to be rejected.
12. The applicant has filed his rejoinder application followed by written submissions, the essence of which has already been captured in narration of the case of the applicant.
13. We have carefully examined the pleadings submitted by the respective parties as also the documents submitted therewith. We have further listened patiently to the arguments of the respective counsels.
14. Here, the first point to be considered is that whether the applicant having been promoted to the combatised post can seek promotion now to a non-combatised post. We have already noted that the applicant was initially appointed to a combatised post of Inspector (Tele) in the respondent organization. Subsequently, he was promoted to the rank of AC (Tele), a post in the hierarchical structure of combatised Group A Communication Cadre which provides him promotional avenue up to the rank of DIG (Tele) in SSB. He is, therefore, governed by SSB Rules and Recruitment rules notified under the provisions of the said Act (page 100). The respondents have, hence submitted that his promotion to a non-combatised civil post of AD (Tele) would be contrary to the said Act and Rules as well as the combatisation policy. The plea of the applicant is that he may be promoted to a non-combatised post outside his hierarchy on the ground that the DOPT granted relaxation to the said Service Rules. This is denied by the respondents on the ground that this was an administrative decision which did not confer any right on the applicant unless he is eligible or the relaxation granted is implemented.
15. We take a look at the history of the organization Sashastra Seema Bal (SSB, for short). Prior to 2001, SSB was known as Special Service Bureau. It was raised in the year 1963 in the backdrop of Chinese aggression. It comprises two types of officers cadre, namely, combatised personnel and non-combatised employees right from its beginning. The combatised cadre was earlier governed by the Central Reserve Police Force Act, 1949 and CRPF Rules 1955 while the non-combatised cadre was governed by CCS (CCA) Rules, 1965. There had been different recruitment rules for two cadres with the combatised officers being governed by the SSB Group A Combatised (General Duty) Officers Recruitment Rules, 2004 and the non-combatised officers being governed by SSB (Senior Executive) Service Rules, 1990 and the Cabinet Secretariat Special Service Bureau, Sub-Area Organizer and Circle Organizer Group B Post Recruitment Rules 1996. The Sashastra Seema Bal Act 2007 came into force on 1.8.2009 under which the SSB was formed in 2009. With this, the security role of the organization changed into Border Guarding Force (BGF). While the combatised officers are mostly deployed with the troops and require to maintain physical and medical fitness and undergo various courses for enhancement of their profession knowledge and commanding skills and superannuated the age of 57 years, the non-combatised officers are deployed as staff with the Headquarters with no exposure of command and control of troops and with no requirement to maintain physical and medical fitness and superannuate at the age of 60 years. While the legal remedy of the combatised officers is with the respective High Courts, the non-combatised officers are amenable to the jurisdiction of the Central Administrative Tribunal. The non-combatised officers are not required to wear uniform till posted as DIG. The combatised officers, for being eligible for the post of Commandant (for being considered for the post of DIG) are required to have minimum of 15 years of Group A Service while non-combatised officers, in order to be eligible for the post of Area Organizer (for being considered for the post of DIG) are required to have 16 years of Gazetted service which includes Group B service as well. Though the non-combatised cadres are not required to wear the uniform until posted as DIG. They are initially given some training but the same was held by the Tribunal in its order dated 2.5.2003 in OA No. 459/2003 insufficient to place them at par with the combatised cadres. It is further noted that due to differences in the age of superannuation, Area Organizer from non-combatised cadres can be promoted to the post of DIG even beyond the age of superannuation of 57 years of the combatised cadre. The respondents Government have vide their OM dated 26.03.2003 of respondent no.1 have already declared non-commissioned combatised/civil cadre of SSB as a dying cadre to be phased out. A letter dated 19.12.2011 of respondent no.1 further declares the policy of combatisation of the non-combatised post.
16. This letter further provides an option to the incumbents of the remaining non-combatised posts to combatise and future vacancies in the non-combatised posts to be combatised by way of abolition etc. While we agree that as per the provisions of SSB (Telecommunication) Recruitment Rules notified by the Cabinet Secretariat vide notification dated 17.1.1996 a Senior Field Officer (Telecommunication) or Deputy Superintendent of Police (Telecommunication) of Special Service Bureau with degree in either Telecommunication Engineering/Electronics or Science with 7 years of regular service in the grade, is eligible for promotion to the post of Assistant Director (Telecommunication) in the pay scale of Rs.3000-100-3300-125-4500 (pre-revised). As per provisions of these Recruitment Rules, inter-combined seniority of SFSs (T)/DySPs(T) will be counted from the date of regular appointment to the grade of Senior Field Officer/Deputy Superintendent of Police for promotion to the rank of Assistant Director (Telecommunication). As per RR of Dy. SP (Tele), Inspector (Tele) with 03 years of service are eligible for promotion to the rank of DySP(Tele). To have a continuity of similar designation with GD Cadre and the rank prevalent in other CAPFs (RR of ITBP enclosed as F/D), the nomenclature of AC (Tele) is being used in SSB.
17. Admittedly, there are three posts of Assistant Director (Tele) that were to be filled up by way of promotion whose details are given below:-
SI. No. Vacancy year Name of SFO/AC (Tele) who were promoted to the rank of AD (Tele) Sh/Sh. Date of holding the rank of Assistant Director (Tele) Date of superannuation
1.
2000-01 MC Joshi AC (T) 27.11.2000 01.11.2008
2. 2003-04 PC Bharali, AC (T) 16.08.2004 01.09.2008
3. 2003-04 RS Rawat AC (T) 06.04.2005 01.06.2009
18. The proposal for relaxation was in respect of the applicant and one R.C. Singh, whose details are given below:-
SI. No. in seniority list Name of officer S/Sh.
Date of promotion in the present rank Residency period as on 01.01.12 Years-Months-Day Relaxation sought 01 Manish Bachhil 1.07.05 06 05 21 06 m & 10 days 02 RC Singh 23.11.05 06 01 09 10 m & 22 days
19. Admittedly, the applicant did not have the eligibility as on 1.1.2012 as he was short of eligibility for promotion in the vacancy year 2012-13 by a period of six months and 10 days in the residency period and his request for relaxation of the residency clause was still under consideration. In the meantime, the RRs of SSB Non Combatised (Telecommunication) of Service Group A Post Recruitment Rules have been enacted with 5 years regular service in PB-3 of Rs. 15600-31000+Rs. 5400 (GP) with degree either in Telecommunication Engineering or Electronic for Degree in Science with Physics and Mathematics. The basic contention of the respondents is that since the applicant was not eligible for the year 2012-13 as he fell short of requisite residency period and the cadres were notified on 16.10.2012 he is not eligible to the promotion to the rank of AD (Tele). We have taken note of the argument of the respondents that the respondent no.1 have also undertaken restructuring of SSB and have sanctioned the post of DC (Tele), Commandant (Tele) and DIG (Tele) thereby opening the promotional avenues of Combatised (Telecommunication) cadre of SSB at a large scale.
20. In view of the rapid expansion of the SSB, new posts in the hierarchy have been enhanced by creating various posts like DC (Tele), Commandant (Tele) and DIG (Tele) in the combatised cadre whose Recruitment Rules have already been notified. We have further taken note of the argument of the respondents that the applicant is eligible for being promoted to the post of DC (Tele) which is the next hierarchical Combatised (Tele) instead of AD (Tele) which is still a civilian post. The applicant has himself admitted that he has been posted to the post of Group Commandant (Tele).
21. The private respondent no.3, who was subsequently impleaded in this proceeding, has filed a counter affidavit in which he has questioned the maintainability of the OA on the ground that the applicant has accepted promotion as DC (Tele) under new Recruitment Rules 2012 and therefore, he has waived his right to seek any relief under the old Rules of 1996. He has also raised question marks on the jurisdiction of the Tribunal to decide this case as the applicant having accepted the promotion of DC (Tele) is not holding a civil post but a combatised post. The jurisdiction of the Tribunal is, the private respondent submits, automatically ousted, once the applicant accepts the combatised post. The private respondent has drawn our attention to paras 4.1 and 4.2 of the OA which states that on 25.6.1998, the applicant had joined the SSB as direct recruit to the post of Inspector (Telecommunication) and the Inspector (Tele) after three years of service is eligible for being promoted to the next higher post of DSP (Tele) i.e. AC (Tele). The post of DSP (Tele) has been re-designated and re-named as AC (Tele). Thus, the DSP (Tele) is now renamed and re-designated as AC (Tele). The submission of the private respondent regarding jurisdiction of this Tribunal is that the applicant at the time of filing the OA and after his promotion to the post of DC (Tele) was not holding a civil post but a combatised post. Therefore, this Tribunal has no jurisdiction to do a judicial review of the decision of the competent authority. The private respondent has further submitted that the entire process of selection for the post of Assistant Director (Tele) is held up due to this OA.
22. Having considered these arguments and without going further into the matter, we find that the applicant was not eligible for promotion to the post of AD (Tele) against the vacancy year 2012-13. In the meantime, new RRs were notified by MHA on 16.10.2012 while relaxation was granted to him on 04.12.2012. The applicant has relied upon the decisions of the Honble Supreme Court in State of Rajasthan v. R. Dayal & Ors., (1997) 10 SCC 419, Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. (1983) 3 SC 284 and Arjun Singh Rathore & Ors. v. B.N. Chaturvedi & Ors. (2007) 11 SCC 605 and submitted that he had acquired eligibility from back date, to be considered under old Recruitment Rules 1996. However, he could only have been considered in the appointment year 2013-14. In the meantime, the applicant had accepted appointment to the post of Deputy Commandant. Once having accepted the appointment of Deputy Commandant (Tele), the applicant becomes a combatised member and is not amendable to the jurisdiction of this Tribunal. The applicant now seeks appointment with retrospective date on the basis of relaxation granted to him against a civil post. There are two things that swayed our consideration in this matter. In the first place, we concur with the argument of the official and private respondents that once having attained the combatised status, the applicant is no longer amenable to our jurisdiction. Therefore, the Honble High Court of Delhi is the proper forum where he may agitate his grievances. In the second place, we also take note of the fact that having converted from security related organization to Border Guarding Force, the structure and the orientation of the organization have been changed. It has become Armed Force under the SSB Act, 2007 and is meant to discharge the functions at the borders. The Governments circular dated 19.12.2011 is explicit that non-combatised cadre has been declared a dying cadre and the incumbents are to be phased out as and when they retire. Therefore, having gained promotion to the post of Deputy Commandant in combatised cadre, the attempt of the applicant to revert to a civil cadre, is not permissible nor desirable. The applicant cannot be allowed to run with hare and hunt with hounds at the same time. Hence, we find the OA devoid of merits on these two grounds and dismiss the same without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/