Central Administrative Tribunal - Delhi
Csss Gazetted Officers' Association ... vs Union Of India (Uoi) Through Its ... on 24 April, 2008
ORDER Chitra Chopra, Member (A)
1. The present application filed by CSSS Gazetted Officers Association represented through its President and two other Private Secretaries is directed against DOP&T Order No. 21/41/2005-CS.I dated 29.07.2005 (Annexure-A) passed by the respondents whereby the following decision has been taken:
(i) To discontinue the lateral entry of CSSS Officers into Grade-I of Central Secretariat Service (CSS) at the level of Under Secretary;
(ii) To allow only those Stenographer Grade 'C' who are Graduates to participate in the Limited Departmental Competitive Examination for the Section Officers Grade of CSS.
2. As it transpires from the facts of the case, the Members of the Association are Private Secretaries (PS) (Gazetted Officers) working in the different Ministries/Departments of Government of India belonging to Group-A & B (merged). It is stated that the services rendered by these officers are of great significance as they not only assist the senior Bureaucrats in discharging their public duty and various constitutional obligations and functions, but also help in maintaining their busy schedule and appointments. The duties of PSs are multi dimensional, more strenuous besides having additional professional skill of shorthand writing.
3. Applicants contend that despite arduous and strenuous nature of their duties, they have always been subjected to discrimination by the respondents vis-a-vis CSS officers. Though, the CSSS officers and CSS officers are sister services of the Central Secretariat and at par at all levels, there has been little improvement in the career progression and prospect of promotion for the CSSS officers. Figures for cadre strength at different levels have been given to bring out alleged disparity, especially at the level of PPS vis-a-vis Under Secretary Grade-I. While Section Officers have 47% opportunities to move up to the next Grade-I of Under Secretary, PPS have only 8% at the same level. Thus there is considerable stagnation at the level of PS. While posts at the level of Under Secretary and above in CSS cadre have been pre-determinately fixed and created just to move the acute stagnation in that cadre, but similar steps have not been taken in the CSSS.
4. Applicants Association has been continuously representing to the Government of India (Ministry of Personnel), which is the Administrative Ministry for both the CSS and CSSS cadre. However, the Government of India, instead of redressing the grievances of the applicant particularly with regard to acute stagnation, passed an order dated 29.07.2005 much to the detriment of the interest of CSSS officers. By the said order, which is impugned in the OA, even the existing little prospect for promotion of PSs to the cadre of CSS at the level of Under Secretary through lateral entry, which has been in practice for about 40 years has been jeopardized. The said order is an executive order, which cannot prevail over the statutory rules, which provide lateral entry of CSSS officers into Grade-I of CSS. Hence, the impugned order is repugnant to the CSS Rules, 1962, particularly, Sub-rule (2) of Rule 12 and Rule 10.
5. It is further submitted that PSs of CSSS cadre have been deliberately denied their rightful share of promotion as Under Secretary under CSS Rules inasmuch as they have not been considered for such promotion on regular or ad hoc basis since 1986. On the other hand, Section Officers upto 1991-1992 Select Lists are proposed to be considered for appointment as Under Secretaries on regular/ad hoc basis. Thus, PSs, who had been victims to the discriminatory treatment since 1986 onwards, have been further prejudiced by the impugned order dated 29.07.2005 as it has adversely affected their chances for promotion and their career prospects, which have not been as good as in the case of their counterparts in the CSS. Applicants have thus sought quashing of the impugned order on the grounds:
that It is in violation of the statutory rules, which provide for lateral entry of PSs into Grade-I at the level of Under Secretary, and is also violative of Articles 14 and 16 of the Constitution of India. The PSs of CSSS cadre along with SOs of CSS Officers constitute the Central Secretariat Machinery and are the feeder cadre under Sub-rule 2 of Rule 12 of CSS Rules, 1962 to fill the vacancies in Grade-I (i.e. Under Secretary). The impugned order is contrary to the law laid down by Hon'ble Supreme Court in its judgment dated 18.08.1999 in CA No. 3797/1991 (Amrit Lal v. UOI) in which Government of India was directed to consider PSs also for promotion to Under Secretary along with Section Officers. The impugned order is also contrary to the view taken by this Tribunal in its decision dated 22.05.2001 in OA-1777/1999. The applicants have been stagnating for the last over 20 years and have been denied lateral entry to Grade-I since 1987 whereas only Section Officers of feeder channel were being appointed as Under Secretaries. Lastly, the recommendations of 5th CPC contained in Para 45.37 (IV) regarding stoppage of lateral entry of Private Secretary to Grade-I of CSS cadre have not been accepted by the Government itself and thus the impugned order is contradictory and illegal.
6. The O.A. has been opposed by the respondents. By way of preliminary objection, it is submitted that the application is not maintainable inasmuch as the same has been filed by Applicant-Association. No person aggrieved by the impugned order has joined the applicant-association in filing the O.A. Further, applicant-association has chosen to challenge the impugned order that has been passed on the recommendation of Group of Officers, which has duly endorsed the recommendations of 5th CPC, Parliamentary Standing Committee of Home Affairs and Committee on cadre restructuring of the CSS. Relevant Rule is being amended and gazette notification to this effect would be issued thereafter. Therefore, the present application challenging the policy decision of the Government is not maintainable and is liable to be dismissed. It is stated that the impugned order along with various other orders attached to it is being transformed into statutory rules in consultation with UPSC and Legislative Department following the prescribed procedure.
7. On facts, it is submitted that along with restructuring of CSS cadre, the demand of CSSS for restructuring of cadre was considered and a Group of Officers constituted by Government to look into the problem of stagnation in CSSS and make suitable recommendations vide order dated 16.10.2003. The issues examined by the said Group of Officers are in Para 1.2 of the Report, which is annexed as Annexure R-1. The said group had hearings with the applicant-association on 20.11.2003 and called for its suggestions. Both CSSS Association and CSSS (Gazetted Officers) Association submitted their representations to the Group, which deliberated over the demands raised by their Association at Para 3.4 of the Report referred to above (Annexure R-1). Chapter 4 of the said Report gives the recommendations of Group of Officers on the demands of Associations. The issue of career progression of the CSSS has been fully addressed in the said report. Applicant-association has concealed the recommendations of the said Group of Officers, except the stoppage of lateral entry of PS into CSS at Under Secretary level. Summary of recommendations given by the group has been given in Chapter-5 of the report and copies of 8 various orders issued on the improvement of CSSS Service as a result of its restructuring are at Annexure R-2 (Colly.).
8. In reply to applicant-association's allegation that there has been little improvement in the career progression, it is submitted that there is no comparison between the two services. Parity depends upon nature of work, degree of responsibility and the experience gained during the course of work. CSSS has separate identities based on its structure, functions, duties and responsibilities and method of recruitment at different levels. CSS was constituted for ensuring continuity in policy and administration in the Central Secretariat, while CSSS is a supporting service, meant mainly for providing stenographic assistance to the officers in the Central Secretariat. Further, as and when the upward advancement takes place in Government hierarchy, the strength of officers goes on diminishing. So is the case with the officers of CSSS cadre and their strength cannot be fixed in disregard to the number of officers to whom they are rendering stenographic and transcription assistance. Further, the issue of discontinuance of lateral entry of PS of CSSS into the CSS at Under Secretary level was deeply deliberated on in the Report in Paras 3.22 to 3.28.
9. It is further submitted that the restructuring of CSS has taken place on the recommendations of the Committee on restructuring of CSS in 2003 whereas restructuring of CSSS has taken place on the recommendations of group of officers. Both the services have their own pecularities depending upon their structure, functions and utilities. In reply to applicant-association's allegation of discrimination, the same has been denied. Association was given adequate opportunity to present its demand before the group of officers, which recommended the discontinuation and stoppage of lateral entry of PS into CSS at the level of Under Secretary. This fact has been duly reflected in the aforesaid report. The applicant-association has not brought out the other recommendations of the group of officers, which have been accepted by the Government. In fact, the CSSS officers have been getting undue promotion for the last 40 years at the cost of CSS officers. In response to Para 5(J) of grounds, it is stated that in so far as they relate to OA-1779/1999, are not relevant to the case in hand because the situation at that time was different. In the said O.A., the Government had not accepted the recommendations of the IV CPC for stoppage of lateral entry when the applicant was the CSS association. In this light, respondents have prayed that the application be dismissed.
10. The main prayer in the O.A. is to quash Order No. 21/41/2005-CS.I dated 29.07.2005 passed by the DOP&T and declare the same as ultra vires since by the aforesaid order the Government has stopped the lateral entry of Stenographers belonging to (CSSS) in the grades of Section Officer & Under Secretary of Central Secretariat Service (CSS). The O.A. had been filed on 15.12.2005 and on the date of first hearing itself, namely, 21.12.2005, operation of impugned order had been stayed.
11. Subsequently, CP-419/2006 had been filed by the CSSS Gazetted Officers Association alleging violation of the said order passed by the Tribunal inasmuch as ad hoc promotions were being given by the respondents to the Section Officers by promoting them as Under Secretaries in Grade-I.
12. MA-2170/2006 has been filed seeking impleadment as private respondents in the O.A. The said application has been allowed vide Tribunal's order dated 18.05.2007. Vide order dated 11.01.2007, it was directed that any promotion given during the pendency of this application shall abide by the result of this OA.
13. We may first take the impugned order dated 29.07.2005, which reads as under:
Sub: Lateral entry of Stenographers belonging to CSSS in the Grades of Section Officer & Under Secretary of CSS.
_____ The Government had set up a 'Group of Officers' on Cadre Structure of Central Secretariat Stenographers Service (CSSS), in October, 2003. The Group submitted its report in February, 2004. The Report of the "Group" has been considered by the Government and inter-alia the following decisions have been taken;
To discontinue the lateral entry of CSSS officers into Central Secretariat Service (CSS) at the level of Under Secretary of CSS.
To allow only those Stenographer Grade 'C' who are graduates to participate in the Limited Departmental Competitive Examination for the Section Officer's Grade of CSS.
2. Necessary notification relating to amendment to the CSS Rules will be issued separately.
14. The applicants have assailed the impugned order specifically on Item No. 1, namely, the proposal to discontinue the lateral entry of CSSS into CSS at the level of Under Secretary of CSS. Their contention and grounds having been detailed herein before. It is strongly argued by he applicants that their lateral entry into the CSS at Under Secretary level is being discontinued despite the specific provision in the Recruitment Rules. They have placed reliance on Rule 12 of the CSS Rules, 1962, which reads as under:
12. Recruitment to Selection Grade and Grade I.- (1) Vacancies in the Selection Grade shall be filled by promotion of regular officers of Grade I who have rendered not less than five years approved service in that Grade and are included in the Select List for the Selection Grade prepared under Sub-rule (4).
(2) 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 of regular officers of Grade A and B (merged) of the Central Secretariat Stenographers" Service who have rendered not less than eight years" approved service in that Grade and are included in the Select List for Grade I of the Service prepared under Sub-rule(4).
15. Although the rule quoted above provides for lateral entry of the CSSS at the level of Under Secretary, such lateral entry was earlier provided at the level of Section Officer. A brief background of the two services would be relevant to enable us to view the issue in perspective. The two services, namely, CSSS and CSS, no doubt having been created in the Central Secretariat, have had varying prospects of promotion and career advancement in their respective services. While running parallel at some point, they have been getting integrated at some other points. PSs have, over the years, had the grievance that they have been denied their rightful share of promotion as compared to their counterparts in the CSS (specifically SOs and USs). It is the applicants own submission that they had not been given promotion to the level of US on regular or ad hoc basis since 1986 while Section Officers have been continuously receiving promotion as Under Secretaries. It is also a matter of record that successive Pay Commissions have been making recommendations suggesting parity in the matter of promotion of the CSSS and the CSS in their cadres. The Vth CPC recommended stoppage of lateral entry of PS to Grade-I of CSS. The group of officers was set up essentially to take forward the recommendations of the Pay Commissions, to review the cadre structure of CSSS and CSS and make recommendations for their respective career progressions. It is to be noted that two groups of officers were set up to separately consider the CSSS and CSS. The entire background and genesis of the cadre restructuring and review is given in the report of the group of officers (Annexure R-1).
16. Sh. R.N. Singh, counsel for Respondent No. 1 (DOPT) drew specific attention to the issues which were examined by the group of officers. These are extracted below:
1.2.i To consider the restructuring of CSSS with a view to remove stagnation, particularly in Steno Grade 'C' and Grade 'D';
1.2.ii To give promotions to all Steno Gr. 'C' upto Select List 1989.
1.2.iii To consider Centralization of CSSS;
1.2.iv To consider the demand for maintaining paritybetween the CSSS and CSS, particularly with regard to pay scales/status;
1.2.v Creation of additional posts in the grade of PPS for posting with Additional Secretary level Officers;
1.2.vi In-situ promotion to all Private Secretaries of Select Lists 1988 & 1989;
1.2.vii To maintain status quo regarding lateral entry of CSSS officers into CSS at the level of Section Officer and Under Secretary.
1.2.viii Change of designations of various grades of CSSS.
It is further detailed that the group gave hearing to the Associations of the CSSS and called for their suggestions. They had meetings with the Associations and thereafter made recommendations with a view to alleviate some of the major grievances of the members of CSSS, consistent with the overall administrative, organization and financial concern of the Government.
17. After consideration of the aforesaid report of the group of officers, cadre structuring of the CSSS was revised vide order dated 18.07.2005 (Annexure- A2), which reads as under:
Subject: Cadre Structure of Central Secretariat Stenographers Service (CSSS).
The Government had set up a "Group of Officers" on Cadre Structure of CSSS in October, 2003, which submitted its report in February, 2004. The report of the "Group of Officers" has been considered by the Government and, inter-alia, the following decisions have been taken:
The cadre strength of various grades of CSSS shall be as under:
Sl. No. Grade (Designation) Strength (i) Senior Principal Private Secretary 68 (ii) Private Secretary Grade (Principal Private Secretary) 130 (iii) Steno Grade 'A' & 'B' (Merged)(Private Secretary) 1650 (iv) Steno Grade 'C' (Personal Assistant) 2793 (v) Steno Grade 'D' (Stenographer) 1958
18. Presumably, the impugned order was issued after the order dated 18.07.2005. The main argument adduced by learned Counsel for applicants is on legal grounds inasmuch as the impugned order and the recommendations of the group of officers, which have been accepted by the Government are in violation of the Sub-rule 2 of Rule 12 of CSS Rules, 1962. When the rules clearly provide for lateral entry of CSSS at the Under Secretary level, it is not open to the respondents to stop it by the Tribunal vide order dated 21.12.2005.
19. The second argument advanced by learned Counsel was on the issue of stagnation. He vehemently contended that applicants have not been promoted in a similar way as the Section Officers of CSS for atleast about 20 years in their cadre resulting in acute stagnation. He reiterated his statement in the OA that the Stenographers have not been promoted since 1986 whereas Section Officers have been continuously the beneficiaries of such promotion.
20. These contentions were controverted by Sh. A.K. Behera, representing the private respondents. He submitted that the scope of the OA is itself untenable and vague. It does not challenge non-promotion nor does it challenge non-preparation of seniority list. In so far as the validity of the order dated 29.07.2005 (Annexure-A) goes, it is the culmination of the recommendations of the Vth CPC and the group of officers which was set up to go into the cadre structures of CSSS and CSS. He also highlighted Para-2 of the said order, namely, that necessary notification relating to amendment to CSS Rules will be issued separately. Thus, the impugned order is only a prelude to the amendment of the Rules and that this order now stands merged with the amendment carried out vide Notification dated 01.02.2008. Sh. Behera, learned Counsel also stated that in fact there has been no combined seniority list since 1986-1987 and both the cadres have been receiving promotions in their respective channels. If they have not received any promotion since 1987 or 1989, there is no reason given by the applicants as to why they did not come to the Court earlier. Hence the question of their being covered under the CSS Rules at this point in time does not arise.
21. In regard to the judgment dated dated 22.05.2001 passed in OA-1777/1999, which is much before the setting up of the group of officers in implementation of Vth CPC. Sh. Behera, learned Counsel further submitted that in the entire process, due & deliberate application of mind at every stage has been given and the Union Cabinet has also taken a conscious decision thereon. Sh. Behera strongly contended that applicants have no case whatsoever and the OA deserves to be dismissed. Sh. Behera also specifically drew attention to Para 3.4.iv of the report, which is reproduced below:
3.4.iv Lateral entry of CSSS into CSS including interpolation of P.S. to U.S. grade of CSS.
However, the final decision culminated in the impugned order meaning thereby that the issue of lateral entry of CSSS into the CSS was duly considered by the Group-in all its aspects.
22. Sh. L.R. Khatana, learned Counsel representing respondents No. 4,5 and 6 submitted that in fact the applicants have no cause of action as the cadre restructuring of any service or any two services is entirely a policy matter and it is settled law that Courts should not interfere in such policy matters unless there is evidence of some mala fide. Learned Counsel traced in detail the genesis of the two services and submitted that the impugned order was issued after the order dated 18.07.2005 wherein cadre strength of CSSS had been revised. Sh. Khatana vehemently submitted that the two services have different duties, functions and responsibilities and parity is being sought on the strength of Sub-rule 2 of rule 12 of these Rules. He drew attention to Notification dated 16.06.1989 (Annexure-VI) vide which the rules regulating the method of recruitment for the post of PSs in the CSSS was notified. The PS in CSSS are equivalent to Under Secretary in CSS. Hence, for the PS to seek promotion to the grade of US i.e same grade is not only illogical but untenable. Thus, applicants who have been receiving promotions in the hierarchy of CSSS w.e.f. 07.10.1987 date from which the grade of PS was created in the pay scale of Rs. 3000-4500 in CSSS (Annexure-III) have no locus standi to demand promotion as Under Secretary in CSS. Further, with the coming into force of the 1989 Rules and the O.M. dated 07.10.1987, there is no post in existence, which is designated as PS qualified as Group-B.
23. Sh. R.N. Singh, learned Counsel representing Respondent No. 1 took a preliminary objection that the applicants had initially sought to amend the O.A, but this was not done. He contended that the issue raised in the O.A. as to whether the respondent-authorities, namely, the Government of India have power to issue administrative instructions is not only misconceived but baseless. In regard to promotion opportunities, if the applicants who belong to the CSSS are aggrieved, that would be a separate and independent cause of action and which has no bearing on the present O.A. In this light, the present O.A. is barred by Rule 10 of the CAT (Procedure) Rules, 1987 as multiple reliefs have been sought by the applicants. Sh. Singh further submitted that it is indeed trite law that power and authority to create posts to merge cadres, restructure cadres etc. are invariably the domain of the Government. It is the accepted position that for amending the rules, there is a due process which has to be followed, hence the interim decision cannot be held to be invalid as amendment of the Rules would necessarily take some time.
24. In regard to the second objection of the applicants relating to grant of ad hoc promotion to the private respondents (SOs) in the intervening period Sh. Singh clarified that this was in accordance with the policy decision. Further, it is again the accepted position that for many years both the services have been availing promotions in their respective cadres. Sh. Singh emphasized that although the O.A. has been filed by CSSS Gazetted Officers Association, it has not mentioned any person who has been specifically aggrieved by the impugned order. On this ground itself the O.A. deserves to be dismissed. Any person aggrieved by the action of the respondents must show that he was available and eligible for promotion, which has not been given. There are no details as to which applicants were eligible or available for promotion, nor have any names been specified. The representation dated 19.09.2005 (Annexure-A7) has been filed by the General Secretary of CSSS Gazetted Officers Association and this question involves the policy decision of the Government to stop lateral entry of CSSS Officers into Grade-I CSS. Sh. R.N. Singh also referred to the following cases:
(a) State of U.P. and Anr. v. Johrimal
(b) State of Punjab and Ors. v. Ram Lubhaya Bagga
(c) P.U. Joshi v. Accountant General, Ahmedabad and Ors.
(d) Ekta Shakti Foundation v. Govt. of NCT
25. To deliberate on the merits of the case, it would be useful to have a brief look at the hierarchy of the 2 services:
CSS CSSS Asstt. Gr.C SO Gr.B US PS/PPS DS Sr. PPS
26. Admittedly, the two services CSSS and CSS are both Central Secretariat Services. Initially, CSSS had three grades-Steno Gr.III (Grade-D), Steno Gr.II (Grade-C) and Steno Gr.I (Grade-B) (Grade-I), which was equivalent to S.O. the posts of PPS and Sr. PPS were introduced later on. Initial lateral entry from CSSS to CSS was from PS at the SO level. Later on, entry was at the US level. However, with the promulgation of the Recruitment Rules to the post of PS dated 16.06.1989, the post of PS was reclassified as gazetted and as a Group-A post. As this post was equivalent to the post of US, for obvious reasons entry at the level of US was stopped. The applicants have themselves stated that promotions from the CSSS have not been made at the level of US since 1986. This obviously is the crux of the issue.
27. As has been brought out in the pleadings and in the arguments, the issue of promotion opportunities of both the services had been coming up before the successive Pay Commissions. The fact that representation and counter representations have continuously been made by both the Associations is also a matter of record. Presumably with a view addressing the needs and requirements of both the services and enable them to have promotion in an equitable manner, the Group of Officers was set up by the Government in 2004. It would transpire from a perusal of the said report that it has had detailed discussions with the office bearers of the CSSS and has made recommendations after due consideration of all the various contentions. Government having deliberated and accepted the report and decided to stop lateral entry of the PSs to the grade of US in the CSS, this has been duly incorporated in the CSS (promotion to Grade-I and Selection Grade) (Amendment Regulations 2008). It would be relevant to reproduce the same for facility of reference:
(2(1) A fresh Select List for Grade I shall be prepared at least once every years if on the Ist July of the year the number of officers already included in the Select List for that Grade is below the strength fixed under Sub-regulation (1) of regulation 3. For the purpose of preparing the Select List, the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions shall obtain from the cadre authorities the names of all eligible officers of the Section Officers Grade included in their respective cadres units.
(2) The names of all such officers shall be arranged in accordance with their seniority by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions. The seniority of the Section Officers shall be arranged in the following manner:
the names of officers appointed to the Section Officers Grade before the appointed day and included in the Select List of Section Officers at the initial constitution under paragraph 1 of the Fourth Schedule to the rules shall be arranged in the order of their seniority as determined before that day. Addition to this lists shall be made by including officers appointed to the Section Officers Grade after the appointed day through the Select List for the Grade, officers appointed on the basis of an earlier Select List being placed above those appointed on the basis of later Select List. The order of names shall be in the same order as in all the Secretariat Select Lists issued by the Department of Personnel and Training.
28. The above amendment, when read in conjunction with the earlier rules makes it clear that the select list for Grade-I would hence forth be prepared only from eligible SOs. It is also noted that consequent upon acceptance of the recommendations of the group of officers, the cadre strength of CSSS has been revised vide order dated 18.07.2005.
29. As it emerges from the submissions made on behalf of the applicants and the various contentions put forth by the respondents, there is a long standing history and genesis of this case. Although, in the earlier orders, the CSSS were having lateral entry into the CSS at varying times, it is now finally on the recommendation of the 5th CPC and on the recommendations of Group of officers as culminated in setting up separate hierarchy and separate promotion opportunities of both the cadres. Admittedly, the nature of duties, functions and responsibilities of the Stenographer cadre and SOs cadre are different. It is by now well settled position and as has been held by Hon'ble Supreme Court that creation of services, cadre structure and restructuring etc. are matters, which lie squarely within the domain of the executive. This being a policy decision of Government, it would be neither appropriate nor permissible for the Courts to interfere in these matters. Having regard to the settled position, we are in agreement with the submissions of the respondents and the prejudice projected appear to be wholly imaginary. O.A. deserve to be dismissed. We do so. No costs.