Central Administrative Tribunal - Delhi
Unknown vs \Par on 18 October, 2011
{\rtf1\ansi\ansicpg1252\deff0\deflang1033\deflangfe1033{\fonttbl{\f0\fswiss\fprq2\fcharset0 Verdana;}{\f1\froman\fprq2\fcharset0 Times New Roman;}} {\*\generator Msftedit 5.41.21.2500;}\viewkind4\uc1\pard\nowidctlpar\qc\f0\fs24\par CENTRAL ADMINISTRATIVE TRIBUNAL\par PRINCIPAL BENCH : NEW DELHI\par \par \b Original Application No.4058/2010\b0\par \par New Delhi, this the 18\super th\nosupersub day of October, 2011\par \pard\nowidctlpar\par CORAM:\tab HON\rquote BLE MR. JUSTICE V.K. BALI, CHAIRMAN\par \tab\tab HON\rquote BLE DR. VEENA CHHOTRAY, MEMBER (A)\par \par Tushar Ranjan Mohanty,\par S/o Shri Rabi Narayan Mohanty,\par Ad-hoc SAG Officer of the Indian Statistical Service,\par Deputy Driector General (Under Posting),\par Ministry of Statistics and Programme Implemetntation,\par G-31, HUDCO Place Extension,\par New Delhi \endash 110 049\par \pard\nowidctlpar\qr\'85Applicant\par \pard\nowidctlpar (Applicant in person)\par \par \pard\nowidctlpar\qc Versus\par \par \pard\nowidctlpar 1.\tab Union of India through\par \tab The Chief Statistician of India and Secretary,\par \tab Ministry of Statistics & Programme Implementation,\par \tab Sardar Patel Bhawan,\par \tab Parliament Street,\par \tab New Delhi \endash 110 001\par \par
2.\tab The Cabinet Secretary of India and\par \tab Chairman, Indian Statistical service Board,\par \tab Rashtrapati Bhawan,\par \tab New Delhi \endash 110 001\par \par
3.\tab The Department of Personnel & Training\par \tab (Through its Secretary),\par \tab North Block, New Delhi \endash 110 001\par \par
4.\tab The Union Public Service Commission,\par \tab (Through its Secretary),\par \tab Dholpur House, Shahjahan Road,\par \tab New Delhi \endash 110 011\par \par
5.\tab Dr. Pronab Sen,\par \tab Former Chief Statistician of India & Secretary,\par \tab Ministry of Statistics & Programme Implementation,\par \tab Currently Prinipal Adviser,\par \tab Planning Commission, Yojana Bhawan,\par \tab Parliament Street,\par \tab New Delhi \endash 110 001\par \par
6.\tab Shri Swapan Kumar Das,\par \tab Director general,\par \tab Central Statistics Office,\par \tab Ministry of Statistics & Programme Implementation,\par \tab Sardar Patel Bhawan,\par \tab Parliament Street,\par \tab New Delhi \endash 110 001\par \par
7.\tab Shri Arvind Kumar,\par \tab Joint Secretary,\par \tab Ministry of Statistics & Programme Implementation,\par \tab Sardar Patel Bhawan,\par \tab Parliament Street,\par \tab New Delhi \endash 110 001\par \par
8.\tab Shri V.R. Hegde,\par \tab Deputy Director (ISS Section),\par \tab Ministry of Statistics & Programme Implementation,\par \tab Sardar Patel Bhawan,\par \tab Parliament Street,\par \tab New Delhi \endash 110 001\par \par
9.\tab Shri Bal Kishore Tyagi\par \par
10.\tab Shri Bharat Bhusan Singh\par \par
11.\tab Shri Rama Prassana Mishra,\par \par
12.\tab Shri Debasis Guha,\par \par
13.\tab Shri Amitabh Panda\par \par
14.\tab Shri G. Mohan Rao\par \par
15.\tab Shri Mukat Singh\par \par
16.\tab Shri Sher Singh\par \par
17.\tab Shri Jotirmoy Poddar\par \par
18.\tab Shri Vijay Kumar\par \par
19.\tab Shri Tapas Kumar Saha\par \par
20.\tab Shri Surendra Kumar Das\par \par
21.\tab Shri Pravin Srivastava\par \par
22.\tab Shri Rakesh Kumar\par \par
23.\tab Shri Rajiv Sharma\par \par
24.\tab Shri Tarun Kanti Basu\par \par
25.\tab Shri Madhabendra Mallick\par \par
26.\tab Shri B.N. Tiwari\par \par
27.\tab Shri Yoginder Singh\par \par
28.\tab Shri Tapas Kumar Sanyal\par \par
29.\tab Shri Harbinder Singh\par \par
30.\tab Shri Suvendu Hazra\par \par
31.\tab Shri Panchanan Dash\par \par
32.\tab Shri Surendra Mohan Mahajan\par \par
33.\tab Shri Ram Kripal\par \par
34.\tab Shri M. Peter Jhonson\par \par
35.\tab Shri P.V.R. Prasad\par \par
36.\tab Shri Jaideb De\par \par
37.\tab Shri Debasis Chaudhuri\par \par
38.\tab Shri T. Baskaran\par \par
39.\tab Shri Asit Kumar Sadhu\par \par
40.\tab Shri Inderjeet Singh\par \par
41.\tab Shri Vidya Dhar\par \par
42.\tab Shri Sunil Jain\par \par
43.\tab Shri Ajay Mishra\par \par
44.\tab Shri S.K. Gupta\par \par
45.\tab Shri A.C. Sharma\par \par
46.\tab Shri Dinesh Chand Sharma\par \par
47.\tab Shri Anjan Kumar Jena\par \par
48.\tab Ms Ratna Anjan Jena\par \par
49.\tab Ms Shailja Sharma\par \par
50.\tab Shri M. Madhusudhanan\par \par
51.\tab Ms Mamta Saxena\par \par
52.\tab Ms Vishu Maini\par \par
53.\tab Shri Preet Singh\par \par
54.\tab Shri P.K. Mukhopadhyay\par \par
55.\tab Shri Ramananda Das\par \par
56.\tab Shri G.S.N. Murthy\par \par
57.\tab Shri Ellappan Dasrathan\par \par
58.\tab Shri Vidya Prakash\par \par
59.\tab Shri Kuldip Kumar Lamba\par \par
60.\tab Shri Ajay Kumar Verma\par \par
61.\tab Ms G.S. Lakshmi\par \par
62.\tab Shri Krishna Kumar\par \par
63.\tab Shri Arup Kumar Mondal\par \par
64.\tab Shri E.V. Gangadhar Rao\par \par
65.\tab Shri Arun Kumar Biswas\par \par
66.\tab Ms. S. Krishnamurthy\par \par
67.\tab Shri Prabir Chaudhury\par \par
68.\tab Shri Ajay Kumar Gupta\par \par
69.\tab Shri Ashok Kumar Toprani\par \par
70.\tab Shri Asis Kumar Ray\par \par
71.\tab Shri Nand Lal\par \par
72.\tab Shri Pawan Kumar Dhamija\par \par
73.\tab Shri Naresh Kumar Sharma\par \par
74.\tab Shri Madan Mohan\par \par
75.\tab Ms Malti Devi Negi\par \par
76.\tab Shri Alekh Kumar Sahu\par \par
77.\tab Shri Rakesh Kumar Kamra\par \par
78.\tab Shri Ahamed Ayub B\par \par
79.\tab Ms Gopa Chattopadhyay\par \par
80.\tab Shri Sanjay Kumar\par \par
81.\tab Shri Shankar Lal Menaria\par \par
82.\tab Dr. S. Durai Raju\par \par
83.\tab Shri Kameswar Ojha\par \par
84.\tab Shri Debabrata Mukhopadhyay\par \par
85.\tab Shri Susanta Kumar Jana\par \par
86.\tab Shri Atul Kumar Gupta\par \par
87.\tab Shri Supriya Mukherjee\par \par
88.\tab Shri G. Sajeevan \par \par
89.\tab Shri S.V.R. Murthy\par \par
90.\tab Shri Pradip Kumar De\par \par
91.\tab Ms. Sunita Chitkara\par \par
92.\tab Shri P.C. Cyriac\par \par
93.\tab Shri J. Bhatacharjee\par \par
94.\tab Shri Bipad Bhanjan Pal\par \par
95.\tab Shri Amitabh Pradhan\par \par
96.\tab Ms Jiju Kurien\par \par
97.\tab Shri S.R. Joshi\par \par
98.\tab Ms. T. Rajeswari\par \par
99.\tab Shri Madan Mohan Hasija\par \par
100.\tab Shri K. Thomas\par \par
101.\tab Shri Manik Lal Rakshit\par \par
102.\tab Shri Soumendra Chattopadhyay\par \pard\nowidctlpar\qr\'85Respondents\tab\par \pard\nowidctlpar\ul Address for servie for Respondent No.(s) 9 to 102:\ulnone\par \par [Under Rule 11 (3) of the Central Administrative Tribunal (Procedure) Rules, 1987]\par \par \pard\nowidctlpar\qj SAG Level Officer of the Indian Statistical Service, Through The Chief Statistician of India and Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Parliament Street, New Delhi\par \pard\nowidctlpar (By Advocate: Shri R.N. Singh for official Respondents, Mr. C.B.N. Babu & Shri G.V. Raidu for private respondents 45, 82 & 84; Ms. Alka Sharma for R-4)\par \par \pard\nowidctlpar\qc\b O R D E R\par \b0\par \pard\nowidctlpar\b\i By Dr. Veena Chhotray\b0\i0 :\par \par \par \pard\nowidctlpar\sl480\slmult1\qj\tab The Applicant, a directly recruited 1981 Indian Statistical Service (ISS) Officer, though promoted to the Senior Administrative Grade (SAG) on ad-hoc basis vide the order dated 26.08.2009 w.e.f. 2.11.2006 has still not been promoted to this grade on regular basis. Through the instant OA the applicant challenges the promotion order dated 11.12.2009 promoting 94 Officers on regular basis to Senior Administrative Grade (Annex. A/1). Besides, the final Seniority List dated 21.6.2010 of the Senior Administrative Grade Officers of ISS as on 17.12.2009 (Annex. A/2) has also been challenged. While the name of the Applicant does not figure in the impugned promotion order, it has been shown included in the Seniority List at serial no. 36. The names of the 94 officers promoted vide the aforesaid order are listed in this Seniority List from S.L. 79 to 172 in the end. All these 94 officers have been arrayed as parties in the O.A. as private respondents 9 to 102.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 2.\tab This OA, filed under Section 19 of the Administrative Tribunals Act seeks the following reliefs:-\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1350\ri720\qj\i\ldblquote 8.1\tab to allow the present Application;\par \par 8.2\tab to quash the impugned Promotion Order dated 11.12.2009 \ul (Annexure : A-1)\ulnone as violative of the extant law and also the statutory rules and direct Respondent No.1 to reconsider grant of personal/in-situ promotions to Officers of 1981-1984 Batches of the Indian Statistical Service;\par \par 8.3\tab to quash that the impugned Seniority List dated 21.06.2010 \ul Annexure : A-2)\ulnone as violative of the extant law and also the statutory rules to the extent it is consequential to the impugned promotion Order dated 11.12.2009 \ul Annexure : A-1)\ulnone and detrimental to the interest of the Applicant and direct Respondent No.1 to delete the names of Respondent No.(s) 9 to 102 from the said Seniority List (\ul Annexure : A-2)\ulnone ;\i0\par \par \i 8.4\tab to direct the Respondent No.2 and Respondent No.3 to hold thorough independent probe to fix responsibilities in the massive fraud involved in the matter as brought out in the facts of this case and take appropriate action against the erring official for their acts of omissions and commissions in the matter;\i0\par \par \i 8.5\tab to issue any such and further orders/directions this Hon\rquote ble Tribunal deems fit and proper in the circumstances of the case; and\i0\par \par \i 8.6\tab to allow exemplary costs of the application.\rdblquote\i0\par \par \par \pard\nowidctlpar\sl480\slmult1\qj\tab Certain interim directions for placing on record the entire file and stay of the operation of the impugned Seniority List in the case of private respondents had been sought; however, no such directions have been granted by the Tribunal.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 3.\tab The applicant has represented his case in person while the respondents would be represented by the learned counsels Shri R.N. Singh for official respondents, Ms Alka Sharma for UPSC (Res. 4) and Shri C.B.N. Babu and Shri G.V. Raydu for Pvt. Res. 45, 82 and 83.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 4.1\tab To briefly state the background, the applicant as well as the private respondents belong to the Indian Statistical Service, a Group 'A' Service. The ISS is governed by the 'Indian Statistical Service Rules, 1961' which are statutory rules framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. The basic grade is Junior Time Scale filled up 60% by direct recruitment and 40% by selection from among members of the Subordinate Statistical Service. The applicant as well as the private respondents (all except 2) are direct recruitees. While the applicant is an officer of the 1981 batch; the private respondents belong to 1981 and subsequent batches. The ISS has six Functional Grades including the basic grade of Junior Time Scale. Besides, it has one Non-Functional Selection Grade.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 4.2\tab The provisions regarding filling up the posts in the various grades are contained in Rule 8. All the higher functional grades above the Junior Time Scale are to be filled up on promotional basis by way of a \lquote selection\rquote . As per the rules, a junior Time Scale Officer becomes eligible for promotion to the Senior Time Scale after five years of regular service in that grade. Similarly, for JAG, not less than 5 years in the STC and for Senior Administrative Grade Officers with 8 years regular service in the JAG, inclusive of any service rendered in the NFSG are eligible. Thus, broadly speaking as per the rules a Junior Time Scale Officer becomes eligible for Junior Administrative Grade after 10 years and to the Senior Administrative Grade after 18 years of regular service. The present controversy relates to promotion to the Senior Administrative Grade (SAG).\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 4.3\tab As noted by us in the earlier OA 1705/2009 filed by the same applicant; vide the Notification dated 11.7.2006, 81 posts had been notified as Duty Posts in Senior Administrative Grade (Para 5.1.6). However, vide an order dated 1.9.2008, 127 posts of NFSG were upgraded to the Senior Administrative Grade as a temporary measure, considering the acute stagnation at the middle levels of the hierarchy. This was on the basis of recommendations of the Indian Statistical Board in its meeting on 24.6.2008 and with the approval of the Cabinet in its meeting on 29.08.2008. However, subsequently as despite the decision for upgradtion of the posts the problem of stagnation could not be redressed, on 9.4.2009 the Cabinet approved a proposal for relaxing the qualifying length of service, as stipulated under the Rules, of 115 officers.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab The vires of this relaxation, on a challenge in the OA 1705/2009 had been upheld.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 4.4\tab The promotion orders dated 11.12.2009 impugned in the present OA had been passed during the pendency of the OA 1705/2009. Though this promotion order did not form a subject of challenge in the OA 1705/2009, interim directions had been issued about any promotions made being subject to the outcome of the OA. The aforesaid condition has been stipulated in the impugned promotion order. The Seniority List dated 21.6.2010 is subsequent to the aforesaid promotion order.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 4.5\tab The brief service history of the applicant is that he is an Officer of 1981 batch of ISS. He was promoted to the Senior Time Scale on 2.4.1993 and to the Junior Administrative Grade on 10.5.1999 on regular basis.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab The applicant was given NFSG w.e.f. 6.6.2000. In pursuance of judicial directions, the applicant was promoted to the Senior Administrative Grade of ISS on ad-hoc basis vide order dated 26.08.2009. This was, however, w.e.f. 2.11.2006.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab The basic grievance of the applicant stems from the fact that whereas he himself has not been promoted on regular basis, persons much junior to him have been given such promotions. This has been questioned on a number of grounds. The challenge to the impugned promotion order and the Seniority List is in this context and has occasioned the instant OA, perhaps the latest so far in the series by the same applicant.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 5.1\tab In their Counter Affidavit the official respondents have raised preliminary objections regarding maintainability of the instant OA. The relief claimed is stated to be virtually the same as in the earlier OA 1705/2009. In oral submissions the learned counsel Shri RN. Singh would also question about the relief being claimed in Para 8.4 regarding a direction for a probe in an alleged fraud behind the impugned actions, being within the purview of the Tribunal's jurisdiction.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 5.2\tab In course of hearing, the applicant was asked to establish the entertainability of his case for our consideration in view of the settled law that the jurisdiction of the Tribunal does not include within its compass a Public Interest Litigation or a writ of Quo Warranto \i per se\i0 . The applicant was also afforded an opportunity to submit his written arguments.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 5.3\tab Vide the Additional Written Arguments dated 26.9.2011 the applicant has pleaded about the prayers in the OA being very much within the purview of Sections 19 and 14 of the Administrative Tribunals Act, as a redressal of his grievance relating to a service matter. Several judicial rulings have been relied in support. While it may not be necessary to refer to each one of them, the extracts from the Apex Court's Judgment in \b\i Om Prakash Srivastava\b0\i0 Vs \b\i Union of India \b0\{(2006) 6 SCC 207\} \i0 are mentioned below:\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1260\ri720\qj\i "...... In order to maintain a writ petition a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondents \'85\'85\rdblquote .\par \pard\nowidctlpar\qj\i0\par \par \pard\nowidctlpar\sl480\slmult1\qj\tab As per the applicant, in this case he has a 'cause of action'. Para 3 makes the submission \i "The actual injury inflicted by the Official Respondents on the Applicant is that the juniors of the Applicant (Respondent Nos. 9 to 102), for whom posts had been created in the higher grade on personal basis, that too temporarily; who were only entitled to personal promotions and not regular promotions, and who are not even eligible for regular promotions have been granted regular promotions, rather than personal promotion.\rdblquote\i0\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab Carrying on this argument further, it has been submitted that it is the Fundamental Right of the applicant to be considered fairly for promotion, in accordance with the statutory rules. As per the applicant, the private respondents cannot automatically be placed in the regular posts, as has been done in the instant case. Grant of regular promotions and placement in the regular vacancies in SAG are averred to affect occurrence of regular vacancies in the subsequent recruitment years 2010 to 2011 even till 2012-2013, thereby affecting the applicant's promotion prospects adversely (para 9).\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab Reiterating his 'locus standi' to evoke the jurisdiction under Article 226 even under writ of Quo Warrants extracts from Supreme Court's Judgment in \b\i Jasbhai Motibhai Desai \b0\i0 Vs \b\i Roshan Kumar & \b0 Ors, AIR 1976 SC 578 : (1976) 1 SCC 671, \i0 have been cited:\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1170\ri720\qj\i "33.\tab This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226. \b An applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. \'85\b0\rdblquote\i0\par \pard\nowidctlpar\qj\par \par \pard\nowidctlpar\sl480\slmult1\qj 5.3\tab The aforesaid view, however, has been rebutted by the respondents. After the oral hearing in the case, on behalf of the private respondents, written submissions dated 23.9.2011 have been filed. Contending about a writ of quo warranto not being maintainable in the instant OA the observations of the Apex Court in \ul\b\i P.N. Lakhanpal\ulnone\b0\i0 vs \ul\b\i A.N. Ray\ulnone\b0 \{AIR 1975 Delhi 66\}\b \b0\i0 have been cited. About the writ of Quo Warrants the following was observed by the Hon'ble Apex Court:\par \pard\nowidctlpar\qj\b\par \pard\nowidctlpar\li1530\ri630\qj\b0\i "\'85\'85It is a writ, as I have stated, of a technical nature. \b It is issued against a usurper of an office or, in other words, against a person who holds an office without any authority from the person who is entitled to make an appointment to that office\'85..\rdblquote\b0\par \pard\nowidctlpar\qj\par \par \pard\nowidctlpar\sl480\slmult1\qj\i0 5.4\tab Another preliminary objection raised by the respondents is regarding the instant OA being barred by \i res judicata.\i0 The official respondents have raised this point both in their written as well as oral submissions. Besides, the private respondents in their aforesaid written submissions have averred about the applicant already having forfeited his right to challenge the regular promotion of the private respondents afresh, in view of the judgment in the OA 1705/2009. This too has been rebutted by the applicant in his aforesaid written arguments.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 5.5\tab Having considered the respective submissions, we are not inclined to summarily dismiss the present OA taking a hyper technical view. This is considering that as per the settled law a right for fair consideration for promotion has been held as a Fundamental Right of a Government Servant and the right for according of correct seniority is the critical factor determining the service graph of his career. \par \pard\nowidctlpar\fi720\sl480\slmult1\qj Thus, in the interest of substantive justice while taking note of the status of the applicant's regular promotion in the SAG, we would deal with the issue of the impugned promotion of the private respondents, as also their placement in the seniority list in the limited context of the impact on the service prospects of the applicant. \par As regards the consideration of issues being raised now, being barred by res judicata; we note that the prime reliefs claimed in the two OAs are different. While in the OA 1705/2009 the challenge was to the impugned decision dated 9.4.2009 of relaxation in the qualifying service of certain officials, the relief fin the present OA is a challenge to the promotion order dated 11.12.2009 and the Seniority List dated 21.6.2010. Neither of these was the subject of challenge in the OA 1705/2009.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab Para 1 of the Tribunal's order had taken note of the amended relief as per 8.2:\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1260\ri720\qj\i\ldblquote 8.2. to quash the impugned relaxation dated 09.04.2009 (Annexure : A-1) as violative of the extant law and also the statutory rules and consequently direct Respondent No.1 not to consider any ineligible officer for promotion to the Senior Administrative Grade of the India Statistical Service till the Applicant is promoted to the said Grade on regular basis;\rdblquote\par \par \pard\nowidctlpar\qj\i0\par \pard\nowidctlpar\fi720\sl480\slmult1\qj Interim directions that any promotions made in the DPC will be subject to the outcome of the OA had been issued.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj\tab Though we find that both the OAs raise common grounds at several points; again our weight would be in favour of substantive justice. In the process, of course, we would remain bound by the specific aspects already considered and the view taken in the OA 1705/2009. \par \tab Thus, we over rule all the preliminary objections raised by the respondents regarding the maintainability of the OA and instead would consider the issues at hand on merit. At this point we also find it apt to reiterate the observations of this very Bench in a recently decided case, RA 279/2011 in the OA 364/2010 (\b\i P.S. Behl \b0\i0 Vs \b\i GNCTD & \i0 Ors\b0 ):\par \pard\nowidctlpar\li1170\ri630\qj\i\par Where there may be two possible views, it would be more appropriate to take the view that may favour dispensation of justice on merit and protecting the rights of the affected party.\par \pard\nowidctlpar\qj\i0\tab\par \par \pard\nowidctlpar\sl480\slmult1\qj 6.\tab Before coming to the respective stands regarding the points agitated in the present OA, it would be apt to elaborate in some details the decisions of 'upgradation of 127 NFSG posts to SAG' and the relaxation in the qualifying service of certain officers for implementing the above decision.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 6.1\tab The Indian Statistical service Board in its meeting on 24.6.2008 had considered the proposal for in situ promotion to SAG for Director level ISS Officers. Deliberating on the problem of acute stagnation in the service at the middle levels the following decision was taken:-\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1260\ri720\qj\i "3.1 The ISS officers recruited during the years 1981 to 1984 will be considered for immediate SAG promotion as a measure personal to them. The rest of the batches (recruited in 1985 and 1986) would be promoted in Phase-II when the 6\super th\nosupersub Pay Commission\rquote s recommendations are approved. The benchmark for promotion would be the same as applicable to regular promotions. The Ministry of Statistics & Programme Implementation will move a note for the approval of the Cabinet to this effect.\rdblquote\par \pard\nowidctlpar\qj\i0\par \par \pard\nowidctlpar\sl480\slmult1\qj 6.2\tab Accordingly the Ministry of Statistics & Programme Implementation placed a proposal before the Cabinet vide its note dated 22.8.2008. In its meeting on 29.8.2008, the Cabinet approved the proposal contained in Para 14 of the Note. As submitted in the Counter Affidavit by the official Respondents, the following proposals were approved by the Cabinet:-\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1260\ri720\qj "i.\tab Immediately upgrade 127 posts of the NFSG officers of 1981 to 1984 batches of ISS (\b list at Annex/\b0 VI) to Senior Administrative Grade (SAG) till such time the promoted officers either retire or are covered within the sanctioned SAG posts in ISS, after which, the posts would slide back to the NFSG level.\par \par ii.\tab Normal procedure for empanelment and promotion to Senior Administrative Grade of ISS would be followed; and\par \par iii.\tab Officers presently on deputation, if found fit for promotion, would be given proforma promotion and the upgraded post would be kept vacant for them to occupy on their return to the cadre.\rdblquote\par \pard\nowidctlpar\qj\par \par \pard\nowidctlpar\sl480\slmult1\qj The formal order regarding the upgradation of these posts was issued vide the MOSPI order No.11015/2/2008-ISS dated 1.9.2008 (Annex. A/6/OA).\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 6.3\tab The proposal for relaxation in the qualifying service was submitted to the Cabinet by the Administrative Ministry vide the Cabinet Note dated 26.3.2009 (Annex A/7-Colly) under "Introduction and Justification for the proposal" the introductory para stated as under:\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1260\ri720\qj "The Cabinet had in view of the acute stagnation in the Indian Statistical service (ISS) in its meeting held on 29.08.2008, approved immediate upgradation of 127 posts of the Non-Functional Section Grade held by the officers of 1981 to 1984 batches of the ISS to the senior Administrative Grade (SAG) of the service with the stipulation that normal procedure for empanelment and promotion to the senior Administrative Grade would be followed. However, the above decision of the Cabinet could not be implemented as out of the 127 officers of these batches, 115 officers had not rendered the required qualifying service of 8 years in the Junior Administrative Grade (JAG), having been promoted to the JAG on regular basis only in April/July, 2003 after rendering a total service of 18-22 years, as against the prescribed length of 10 years of service in Group A for promotion to the JAG.\rdblquote\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj Para 12 of the Proposal for approval of the cabinet was as follows:\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\li1260\ri720\qj\i\ldblquote 12.\tab Therefore, with a view to operationalize the earlier decision of the Cabinet dated 29.08.2008, approval of the Cabinet is solicited for grant of one-time relaxation in the qualifying service of 8 years in JAG of the ISS to the extent that these officers (115 in total Annexure-II), who were promoted to JAG during April-July, 2003, could be considered for promotion to the senior Administrative Grade of the ISS against recently upgraded posts during the vacancy year 2008-09 in pursuance of the Cabinet decision dated 29.08.2008. the relaxation is being sought in terms of Rule 16 of the ISS Rules reproduced in paragraph 3 above as the relaxation required is more than two years and not covered by Rule 8 of the ISS Rules referred to in paragraph 2 above.\rdblquote\par \pard\nowidctlpar\qj\i0\par \par \pard\nowidctlpar\sl480\slmult1\qj\tab The implementation schedule referred in para 13 of the order for the Cabinet had been appended. It is also reproduced as hereunder: \par \pard\nowidctlpar\qj\par \par \par \par \pard\nowidctlpar\li900\ri540\qc\i\ldblquote STATEMENT SHOWING THE IMPLEMENTATION SCHEDULE\rdblquote\par \par \pard\nowidctlpar\li900\ri540\qj Subject:\tab Proposal for relaxation in qualifying service in Recruitment Rules (RRs) for promotion of Director (Non-Functional selection grade: NFSG) level officers of Indian Statistical service (ISS) to the newly upgraded posts of Senior Administrative Grade (SAG).\par \par \trowd\trgaph108\trleft-108\trbrdrl\brdrs\brdrw10 \trbrdrt\brdrs\brdrw10 \trbrdrr\brdrs\brdrw10 \trbrdrb\brdrs\brdrw10 \trpaddl108\trpaddr108\trpaddfl3\trpaddfr3 \clbrdrl\brdrw10\brdrs\clbrdrt\brdrw10\brdrs\clbrdrr\brdrw10\brdrs\clbrdrb\brdrw10\brdrs \cellx2556\clbrdrl\brdrw10\brdrs\clbrdrt\brdrw10\brdrs\clbrdrr\brdrw10\brdrs\clbrdrb\brdrw10\brdrs \cellx5840\clbrdrl\brdrw10\brdrs\clbrdrt\brdrw10\brdrs\clbrdrr\brdrw10\brdrs\clbrdrb\brdrw10\brdrs \cellx8748\pard\intbl\nowidctlpar\ri540\qj\fs20 Gist of the Decision Required\cell\pard\intbl\nowidctlpar\li900\ri540\qj Benefits/Results\cell\pard\intbl\nowidctlpar\li20\ri540\qj Time Frame and manner of Implementation / Reporting to Cabinet Secretariat\cell\row\trowd\trgaph108\trleft-108\trbrdrl\brdrs\brdrw10 \trbrdrt\brdrs\brdrw10 \trbrdrr\brdrs\brdrw10 \trbrdrb\brdrs\brdrw10 \trpaddl108\trpaddr108\trpaddfl3\trpaddfr3 \clbrdrl\brdrw10\brdrs\clbrdrt\brdrw10\brdrs\clbrdrr\brdrw10\brdrs\clbrdrb\brdrw10\brdrs \cellx2556\clbrdrl\brdrw10\brdrs\clbrdrt\brdrw10\brdrs\clbrdrr\brdrw10\brdrs\clbrdrb\brdrw10\brdrs \cellx5840\clbrdrl\brdrw10\brdrs\clbrdrt\brdrw10\brdrs\clbrdrr\brdrw10\brdrs\clbrdrb\brdrw10\brdrs \cellx8748\pard\intbl\nowidctlpar\ri540\qj Grant of one-time relaxation in the qualifying service to the extent that 115 NFSG ISS officers, who have rendered 23-27 years of Group \lquote A\rquote service, become eligible for the vacancy year 2008-09 for consideration for promotion to Senior Administrative Grade (SAG) of the service in terms of ISS Rules, 1961.\cell\pard\intbl\nowidctlpar\li112\ri540\qj This will facilitate implementation of the Cabinet decision dated 29.08.2008.\cell\pard\intbl\nowidctlpar\li20\ri540\qj (a)\tab The proposal for promotion to SAG will be submitted to UPSC immediately for convening the DPC. The approval of ACC will be solicited thereafter.\par \pard\intbl\nowidctlpar\li900\ri540\qj\par \pard\intbl\nowidctlpar\li-22\ri540\qj (b) The Cabinet Secretariat will be informed accordingly from time to time.\rdblquote\cell\row\pard\nowidctlpar\qj\i0\fs24\par \par \pard\nowidctlpar\sl480\slmult1\qj 7.\tab Gleaned out of the voluminous submissions before us, the basic contentions on behalf of the applicant and the respondents are briefly indicated as below.\par \pard\nowidctlpar\qj\par \pard\nowidctlpar\sl480\slmult1\qj 8.\tab The applicant has contended the impugned promotion order and the consequent inclusion of all the private respondents in the seniority list is in violation of statutory rules, Government instructions and the law. It is also stated that these impugned decisions ran counter to the three-fold basic premise behind the recommendations of the ISS Board in its meeting on 24.6.2008. The grant of in-situ promotion was to be de-linked from duty posts and were to be (i) processed on the same lines as done in the case of the Indian Economic Service; (ii) the promotions would be personal to the officers concerned; and (iii) the promotions were meant only for officers of the 1981 to 1984 batches. However, what eventually was done violated all these three conditions.\par \pard\nowidctlpar\par \pard\sl480\slmult1\qj 8.1\tab The main contention of the applicant is that as per the decisions taken the promotions against the upgraded posts were meant to be in the nature of in-situ/personal promotions for the concerned officials. By conferring regular promotions instead the respondents had misdirected themselves. Besides they were in violation of Rule 8 (1)(f) and 9-B. The Rejoinder dated 29.7.2010 elaborates the arguments further:\par \pard\par \pard\sl480\slmult1\qj 8.1.1\tab Upgradation in question was temporary with a provision for reversion of the said posts to the lower grade.\par \pard\par \pard\sl480\slmult1\qj 8.1.2\tab The upgraded posts had not been included under the SAG in Schedule-I of the ISS Rules.\par \pard\par \pard\sl480\slmult1\qj 8.1.3\tab Under the circumstances the private respondents could only have been granted personal promotions and not regular promotions. Citing Rule 9-B(i) (Para 62) states that in the present case the promotions were not effected in a regular manner as the essential eligibility criteria prescribed under Rule 8 (1)(f) had not been fulfilled.\par \pard\qj\par \pard\sl480\slmult1\qj 8.1.4\tab Officers belonging to batches other than 1981-84 could not be covered under these promotions, as per the decision taken by the Cabinet and further as per the judicial view taken in the matter by the Tribunal\rquote s order in the OA 1705/2009.\par \pard\qj\par \pard\sl480\slmult1\qj 8.1.5\tab The applicant has also questioned the batch year of the private respondents. As per para 36 of the Rejoinder while the respondents 63-64 belonged to the batch year 1986, respondents 66-67 to the batch year 1987 and the respondents 68 to 102 belong to the 1985 batch. In support, the applicant has, \i inter alia, \i0 relied upon certain DOP&T OMs to argue that the year of joining should be reckoned as the batch year.\par \pard\qj\par \pard\sl480\slmult1\qj 8.2\tab There is also the under current of the allegations that the private respondents have a history of continuous out of the way reaping of service benefits. This is stated to be by manipulating the systems in their favour by dint of being in positions of power and proximity to influence the decision makers.\par \pard\qj\par \pard\sl480\slmult1\qj 8.3\tab As regards the applicant\rquote s own case, the basic grievance is reiterated about the applicant being admittedly senior to the private respondents. Despite his claimed eligibility, he has still not been granted regular promotion to the SAG. It is also averred that even after the Tribunal\rquote s order in the OA 1705/2009, despite a lapse of more than 1 year and seven months, the opening of the \lquote sealed cover\rquote and passing a final order in the matter have still not been done.\par \pard\qj\par \pard\sl480\slmult1\qj 8.4\tab On the point of inclusion of his name in the impugned Seniority List, it is stated to be a mere \lquote eye wash\rquote . It is also the contention of the applicant that his name had not been included in the tentative seniority list, and without any representation on his part the respondents have included his name in the final Seniority List maliciously. As per the applicant, there would be no outcome of such an inclusion.\par \pard\qj\par \pard\sl480\slmult1\qj 9.\tab Opposing the claims in the OA, the contentions of the applicants are stated to be misleading and misconceived by the respondents. In their detailed Counter Affidavit the official respondents have justified the impugned promotion order and the seniority list as being in accordance with the Rules and scrupulously as per the decisions of upgradation of the posts and the \lquote one time relaxation\rquote .\par \pard\qj\par \pard\sl480\slmult1\qj 9.1\tab On the point of inclusion of names of Officers other than 1981-1984 batches, it has been submitted that a few officers of subsequent batches had to be incorporated in the lists identified for upgradation and one time relaxation. This was because being of \lquote reserved category\rquote they had moved upward in seniority. These were the following five Officers:-\par \pard\qj\tab\tab\tab\tab\tab\tab\tab\ul Year of Recruitment\ulnone\par \par \tab i)\tab Shri Arup Kumar Mondal\tab\tab 1985 **\par \par \tab ii)\tab Shri E.V. Gangadhar Rao\tab\tab 1985 **\par \par \tab iii)\tab Shri Deepak Goyal\tab\tab\tab 1985 **\par \par \tab iv)\tab Shri Arun Kumar Biswas\tab\tab 1986 **\par \par \tab v)\tab Shri S. Krishnamurthy\tab\tab\tab 1986 **\par \par \tab\tab\par \pard\sl480\slmult1\qj\tab It is submitted that while approving the proposal for upgradation, the posts and names of officers covered therein had been specifically mentioned in Annex. VI, which was a part of the Cabinet decision. While the last officer in this list was Shri Soumendra Chattopadhyay of 1984 batch, in respect of the exceptions the following foot note had been mentioned:-\par \pard\li1260\ri810\qj\i\par \par \ldblquote ***These officers moved up in seniority due to the reservation policy of the Government of India and will also be covered subject to completion of at least 20 years of regular service in the ISS as on 1.1.2008\rdblquote\i0\par \pard\qj\par \par \pard\sl480\slmult1\qj\tab A copy of this List has been annexed as R-1 with the Counter Reply.\par \pard\qj\par \pard\sl480\slmult1\qj\tab Similarly, in the context of one time relaxation for 115 officers, the names had been specified as per Annex-II appended with the note for the Cabinet (Annex A-7/OA). This list also had included the names of these five officers, who were the exceptions; while the last officer was Shri S. Chattopadhyay of the 1984 batch.\par \pard\qj\par \pard\sl480\slmult1\qj\tab As per the respondents, these lists had been prepared keeping in view the operational aspects of the Cabinet\rquote s decision maintaining seniority as per the Seniority List of Officers.\par \pard\qj\par \pard\sl480\slmult1\qj 9.2\tab On the issue of the \lquote batch year\rquote to which the private respondents were to be assigned, as per the official respondents this was reckoning the recruitment batches as per the Seniority Lists maintained in the ISS Cadre. In this context, the Seniority Lists dated 30.12.2003 and 18.3.2005 (Annex. R-2/R-3) have been referred. The reliance by the applicant on the Civil List for determining the batch year has been negated. Adverting to the preface with the Civil List of 2009 (Annex. R/4) the following disclaimer has been highlighted:-\par \pard\qj\par \pard\li990\ri720\qj\i\ldblquote The Civil List is only informative and does not confer any right or official sanction upon the individuals in respect of the particulars given therein including inter-se-seniority etc. The authenticity of relevant particulars of officers will be determined with reference to the original records, service books and other relevant records.\rdblquote\par \pard\qj\i0\par \par \pard\sl480\slmult1\qj 9.3\tab The stand of the official respondents on these aspects is found to have been crystallized in the following submissions in para 15 of Section \lquote Brief History\rquote :-\par \pard\qj\par \pard\li1260\ri720\qj\i\ldblquote Thus, it is submitted that there were two conscious cabinet decisions, (i) inter-alia, upgrading the 127 posts and identifying the posts of officers for whom the 127 posts were upgraded and (ii) relaxing the eligibility criteria in respect of 115 officers (the junior most officer in both the cases being Sh. Soumendra Chattopadhyay, who was the then junior most JAG (NFSG) level officer recruited through 1984 examination as per seniority lists and those satisfied the condition of being promoted to JAG during April-July, 2003) for promotion to SAG of ISS, the latter in pursuance to the former. In both the cases, adequate care was taken to maintain the seniority as per the seniority lists and to avoid confusion in reckoning of batches with recorded exceptions. There were, however, a few officers who were recruited earlier than 1984 in the ISS, but were junior to the junior most JAG (NFSG) level officer recruited through 1984 examination since they were promoted to JAG after July, 2003 and hence do not belong to the class of officers for which the relaxation was granted. Such officers were not covered for the benefit, in the Cabinet decision. It is further submitted that the decision of the Cabinet was scrupulously followed by the official respondents in its implementation. No illegality, whatsoever, was committed by the Respondent in the matter.\rdblquote\i0\par \pard\qj\par \par \pard\sl480\slmult1\qj 9.4\tab The applicant\rquote s contention regarding violation of Rules and instructions has also been rebutted by the official respondents. It is submitted that while approving the proposal for upgradation of posts, the Cabinet had prescribed following of normal procedures for empanelment for promotion to the Senior Administrative Grade. Again while giving one-time relaxation, the Cabinet had directed for the Administrative Ministry to submit a proposal to the UPSC and obtaining the approval of the Appointment Committee of the Cabinet.\par \pard\qj\par \pard\sl480\slmult1\qj\tab It is also emphasized by the respondents that the impugned promotions had been made after providing relaxation in the eligibility criteria stipulated in Rule 8 (1)(f) of the ISS Rules. The relaxation had been granted by the competent body at the highest level under Rule 16 of ISS Rules. The concurrence of the UPSC had been obtained too. The upholding of the validity of this relaxation including the retrospectivity as per the decision of the Tribunal in the OA 1705/2009 has also been referred to by the respondents.\par \pard\qj\par \pard\sl480\slmult1\qj\tab As regards the Seniority List, the same is averred to be in accordance with the provisions of Section 9B(2)(b) extracted below:\par \pard\qj\par \pard\li1080\ri720\qj\i\ldblquote (A) A person shall be deemed to be appointed in a regular manner, if \endash\par \par
(a)\tab *******\par \par
(b)\tab In the case of an officer promoted to any grade under the provisions of rule 8, and in the case of an officer promoted to any post not included in Schedule I, he has been promoted to the said grade or post, as the case may be on the basis of his inclusion in the select list prepared for the purpose of making promotion to such grade or post as the case may be;\par \par Provided that the promotion of an officer otherwise than in the order in which his name is placed in the Select List for promotion shall not be deemed to be an appointment in a regular manner, unless such promotion has been made by the Controlling Authority in the public interest.\rdblquote\par \pard\qj\i0\par \par \tab In para 22/Brief History, the following submissions are made:\par \par \par \pard\li1080\ri720\qj\i\ldblquote Under Rule 17 of the ISS rules \ldblquote if any question relating to the interpretation of these rules arises it shall be decided by the Government. The said promotions were legally valid regular promotions in accordance with Rule 9B(2)(b) of the ISS rules and the seniority list dated 21.6.2010 is legal and valid under Rule 9A of the ISS rules.\rdblquote\i0 .\par \par \par \pard\sl480\slmult1\qj 9.5\tab As regards the applicant\rquote s regular promotion to SAG, it has been submitted that his case had been considered while filling up 52 vacancies for the years 2006-07, 2007-08 and 2008-09 in the DPC held on 26.9.2008 and the reconvened DPC on 8.12.2008. However, the applicant could not be promoted on regular basis then because the findings of the DPC were kept in the \lquote sealed cover\rquote . \par \pard\qj\par \pard\sl480\slmult1\qj\tab In the context of the present upgradation, it is submitted that while upgrading 127 posts, one post was upgraded at SAG level for the applicant. Besides, his case had also been considered by the DPC in its meeting held on 28-30 July, 2009. In para 3 of the Section \lquote Other Submissions\rquote , the respondents have stated about the proposal concerning the applicant having already been submitted to the ACC after opening the \lquote sealed cover\rquote for the consideration of the ACC.\par \pard\qj\par \pard\sl480\slmult1\qj\tab About the \i inter-se seniority\i0 in the SAG, Para 20 of the \lquote Brief History\rquote submits that in accordance with the provisions of Rule 9A, the name of the applicant has appeared at 36\super th\nosupersub position with his seniority among the SAG in ISS intact, subject of course, to the opening the \lquote sealed cover\rquote .\par \pard\qj\par \pard\sl480\slmult1\qj 9.6\tab Vehemently rebutting any allegations of vested interests, the official respondents have opposed the claims in the OA submitting that the applicant is trying to rake up settled issues on which decision has already been pronounced.\par \pard\qj\par \pard\sl480\slmult1\qj 10.\tab The stand of the official respondents has been reiterated by the private respondents too. It has been emphasized that the applicant has no cause of action, as on opening of the \lquote sealed cover\rquote if the applicant is found otherwise fit, he will get his due seniority irrespective of the position of the private respondents. Besides the present case has been argued as not one of upgradation simplicitor, as the Cabinet had stipulated the normal procedure of empanelment and promotion to SAG. Contending that the promotion order dated 11.12.2009 is only the culmination of the policy decision regarding upgradation and the one-time relaxation, the subsequent process is stated to result in grant of regular promotion. \par \pard\fi720\sl480\slmult1\qj Para 3 of the Written Arguments dated 23.9.2011 states: \ldblquote\i The Hon\rquote ble Supreme Court, in the judgment titled Bharat Sanchar Nigam Ltd. Vs R. Santhakumari Velusamy & Ors, pronounced on 06.09.2011 in CA 5286-87 of 2005, segregating upgradation simplicitor from promotion observed at para 21 (iv) as under:\par \pard\li1080\ri720\qj\i0\par \i\ldblquote (iv)\tab Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. \b But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay sale, it will be a promotion\'85.\par \b0\i0\par \b Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.\rdblquote\par \b0\par \par \pard\sl480\slmult1\qj 11.\tab Having considered carefully the submissions by respective parties and perused the material on record, our finding in the matter are as follows:\par \pard\qj\b\i\par \pard\sl480\slmult1\qj\b0\i0 11.1\tab As clarified at the outset, the fulcrum point of our consideration remains the impact of the impugned promotion order and the seniority list on the applicant\rquote s regular promotion in the Senior Administrative Grade. The official respondents have submitted in their counter affidavit about a proposal having already been sent to the ACC after opening the \lquote sealed cover\rquote for the consideration of the ACC. Besides, it has been stated that one upgraded post has been kept for the applicant and his name suitably included in the impugned Seniority List of the Officers in the SAG with a clarificatory foot note about the final seniority of the officer being subject to the outcome of the \lquote sealed cover\rquote and subsequent regularization of service (Para 18 \endash Brief History). We also note that the placement of the applicant in the seniority list is at serial no. 36 whereas that of the private respondents at the end of the list (serial nos 79 to 172) (Annexure A/2). \par \pard\qj\par \pard\sl480\slmult1\qj\tab The contention of the applicant about the regular promotion of the private respondents and their inclusion in the Seniority List affecting his fundamental right of promotion is not found to be borne out by these facts. The argument of the consequences in the event of the applicant not being \lquote found fit\rquote is an extraneous issue and does not merit our consideration. Likewise the apprehended snowballing effect on the occurrence of prospective regular vacancies for future years would be too overstretched an argument.\par \pard\qj\par \pard\sl480\slmult1\qj\tab However, what is found relevant is the submission about no final order in the case still being passed by the respondents despite a lapse of nearly 19 months after the Tribunal\rquote s directions in its February 2010 Order in the OA 1705/2009. We are of the considered view that in the interest of not only equity, but also in deference to the fundamental right for a fair consideration for promotion, the respondents need to take a final view in the matter without any further delay.\par \pard\qj\par \pard\sl480\slmult1\qj 11.2\tab The applicant as well as the respondents have on more than one occasions referred to the decision and findings of the Coordinate Bench of the Tribunal in OA 1705/2009, in which one of us (the Member Administrative) was a Member too. To disprove the legal sustainability of the impugned promotion order and the Seniority List, the applicant has interpreted the final directions in a particular way. In his written arguments dated 22.9.2011, the following contention has been made by the applicant:\par \pard\qj\par \pard\li1260\ri720\qj\i\ldblquote 3.\tab The second ground of challenge to the impugned Promotion Order is that the said Order is subject to the outcome of OA No.1705 of 2009, in which matter, it has already been held by this Hon\rquote ble Tribunal that the relaxation of the statutory rules given by the Union Cabinet on 09.04.2009 was only valid for officers of 1981 to 1984 batches of the Indian Statistical service and, therefore, officers of other batches have to be reverted from their promoted posts for want of qualifying service for such promotion.\rdblquote\par \pard\qj\par \par \pard\sl480\slmult1\qj\i0 However, to appreciate the point in proper perspective various loose ends need to be tied. While amending the prayer clause, the following relief had been sought:-\par \pard\qj\par \pard\nowidctlpar\li1260\ri720\qj\i\ldblquote 8.2. to quash the impugned relaxation dated 09.04.2009 (Annexure : A-1) as violative of the extant law and also the statutory rules and consequently direct Respondent No.1 not to consider any ineligible officer for promotion to the Senior Administrative Grade of the India Statistical Service till the Applicant is promoted to the said Grade on regular basis;\rdblquote\par \pard\qj\i0\par \par \pard\sl480\slmult1\qj\tab Interim directions in the matter had been issued about any promotions made in the DPC being subject to the outcome of the OA. This relief had not been found entertainable by the Tribunal. While upholding the legal validity of the \lquote one-time relaxation\rquote , and issuing directions for certain action regarding the consideration of the case of the applicant for regular promotion to SAG, limited observations had been made with regard to the inclusion of officers other than 1981-84 batches in the impugned list. These are extracted below:\par \pard\li1260\ri540\qj\i\par \ldblquote To conclude, on a detailed consideration on merit, we do not find the decision of relaxation in this case as ultra vires. However, on a limited point, the applicant\rquote s contention that some of the Officers included in the list of promotees belong to batches other than 1981-84 for which the specific decision throughout has been taken (a few specific cases cited in the OA) need to be reviewed, of course after suitably giving an opportunity to explain their stand to the concerned officers. \b This would, however, not be construed to have vitiated the entire decision itself\b0 . xxxxx"\par \pard\qj\tab\tab\tab\tab\tab\tab (emphasis supplied)\par \par \par \pard\sl480\slmult1\qj\i0\tab Interpreted in plain language, what had been directed was a review by the official respondents about this aspect. This is found to have been done by a speaking order dated 23.04.2010 (Annexure R/8 with the Counter). Further, the clear mention that \ldblquote this would not be construed to have vitiated the entire decision itself\rdblquote left nothing to doubt. In case of a valid justification for inclusion of officials other than 1981-84 batches no fault was found.\par \pard\qj\par \pard\sl480\slmult1\qj\tab Thus the aforesaid tenor of argument of the applicant is not found acceptable by us.\par \pard\qj\par \pard\sl480\slmult1\qj 11.3\tab As per the applicant the impugned promotion orders have been challenged since they are in contravention of Rules, instructions and law. However, this contention too is not found tenable. The issue of \lquote upgradation of the posts from NFSG to SAG\rquote is not under challenge. Again, the issue of vires of the \lquote one-time relaxation in the eligibility criteria\rquote for filling up the upgraded posts is also no more \i res integra\i0 . As per the applicant\rquote s own admission the decision of the Tribunal in the OA 1705/2009 holding the vires of the \lquote decision of relaxation\rquote has attained finality.\par \pard\qj\par \pard\sl480\slmult1\qj\tab The contention now being raised is that by virtue of these decisions, the private respondents could not have been entitled to regular promotions. Various pleas advanced by the applicant in support have been summed up in Para 8.1 of the Tribunal\rquote s order above.\par \pard\qj\par \pard\sl480\slmult1\qj\tab As regards the non-inclusion of the upgraded posts in the Schedule-I as stipulated under the RRs, this aspect had been looked into vide the Tribunal\rquote s earlier order in the OA 1705/2009, and no legal infirmity had been found on this ground. The relevant extracts from the earlier order are reproduced as here under:\par \pard\qj\par \pard\li1260\ri540\qj\i\ldblquote The applicant has also relied upon the amended Schedule-I vide the notification dated 11.7.20006 (annexure A-15) to contend that upgraded posts had not been included in the schedule and hence would not even fall within the purview of the posts under the ISS in respect of which the relaxation powers under Rule 16 could be exercised. However, what we find is an executive order No.11015/2/2008-ISS dated 1.9.2008 (Annexure A/3), which indicated the temporarily revised strength of the SAG from 81 to 208 with Ministry-wise details incorporated therein. As submitted by the respondents in their additional affidavit this is well within the stipulations in para 5 (2) of the ISS rules. As it is settled law that executive instructions can supplant but not substitute the statute nor run contrary to it, we also do not find this objection of the applicant as valid.\rdblquote\par \pard\qj\i0\par \par \pard\sl480\slmult1\qj\tab It has also been argued by the applicant that as the private respondents had not satisfied the prescribed eligibility criteria for promotion to the SAG, they could not be conferred regular promotions. The provisions of Rule 8(1)(f) being relied upon by the applicant are as below:\par \pard\li1170\ri540\qj\i\ldblquote (f) Senior Administrative Grade -: All the posts in the grade shall be filled by promotion from amongst Junior Administrative Grade officers with eight years\rquote regular service in the grade inclusive of service, if any, rendered in the Non-Functional Selection Grade. Promotion shall be by selection by the Controlling Authority on the basis of recommendations of the Departmental Promotion Committee presided over by the Chairman/Member of the Union Public Service Commission:\par \par Provided that if any junior who has completed the qualifying / eligibility service is being considered for promotion, his seniors would also be considered provided they are not short of the requisite qualifying / eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to next higher grade along with their juniors who have already completed such qualifying/eligibility service.\rdblquote\par \par \par \pard\sl480\slmult1\qj\i0\tab However, in the present case by a conscious decision this criteria of 8 years\rquote regular service in Junior Administrative Grade had been relaxed as a one-time measure, such a decision had been taken by the competent authority with the recommendation of the ISB and on a proposal by the administrative Ministry with the approval of the Cabinet. The relaxation had been done in exercise of the powers under Rule 16, which runs as here under:\par \pard\qj\par \pard\li1170\ri540\qj\i\ldblquote\b 16. Power to relax.-\b0 The Government may, in consultation with the commission, and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons or posts and no such relaxation shall be given so as to have retrospective effect.\rdblquote\par \par \pard\qj\par \pard\sl480\slmult1\qj\i0\tab Evidently, in the present context, Rule 8 (1) (f) cannot be read in isolation of the provisions under Rule 16. Propounding the basic law of interpretation of statutes, the Hon\rquote ble Apex Court in \b\i Bhakra Beas Management Board \b0\i0 Vs \b\i Krishna Kumar Vij & Anr \b0\{(2010) 2 SCC (L&S) 694\}\b \b0\i0 had observed as under:\par \pard\li1260\ri720\qj\i When words of a statute are clear, plain or unambiguous, and are reasonably susceptible to one meaning only, Courts are bound to give effect to that meaning\'85\'85\par \b\i0\par \pard\sl480\slmult1\qj\b0\tab While rebutting the rival contentions, the Respondents have emphasized that the promotions in this case had been done in accordance with the regular procedure. The stipulation by the Cabinet while approving the proposal for upgradation of posts about following normal procedure for empanelment and promotion to Senior Administrative Grader has been referred. Likewise while approving the proposal for one-time relaxation, specific directions in this regard had been given:\par \pard\qj\par \pard\li1170\ri540\qj\i\ldblquote The Ministry will submit the proposal to the Union Public Service Commission for convening meeting of the Departmental Promotion Committee and will obtain the approval of the Appointment Committee of the Cabinet for promotion of the Officers.\rdblquote\par \pard\qj\i0\par \par \pard\sl480\slmult1\qj\tab As per the Respondents all these conditions have been fulfilled in the present case. In their written submission dated 23.9.2011, the private respondents have cited the decision of the Apex Court in \b\i Bharat Sanchar Nigam Ltd\b0\i0 (supra) to contend that the present case is not one of upgradation simplicitor as distinguished from promotion.\par \pard\qj\b\par \pard\sl480\slmult1\qj\tab\b0 We find merit in these arguments of the respondents.\par \pard\qj\par \pard\sl480\slmult1\qj 11.4\tab Another major plank of the challenge to the impugned promotion order and the Seniority List revolves round the issue of the batches of the officers (particularly of the officials arrayed as private respondents). The applicant\rquote s contention is that the decisions of upgradation as well as relaxation had pertained only to the 1981-84 batches, whereas the benefit has been given indiscriminately, to officers of later batches also. To support his point, the applicant had relied upon the purported view taken by the Tribunal in its earlier order deciding the OA 1705/2009. The fallacy of this interpretation has already been opined in Para 11.2 above. \par \pard\qj\par \pard\sl480\slmult1\qj\tab Whereas, according to the respondents, such an exception had been made for well justified reasons only in case of five officers because by being of reserved categories, they had got higher seniority; the applicant has posed the same to be for a larger number of officers from the private respondents 63 to 102. This is by agitating the issue of the batch year.\par \pard\qj\par \pard\sl480\slmult1\qj\tab In their reply, the official respondents have stated the batch years to have been based as per the final Seniority Lists of 2003 and 2005 which have not been challenged by the applicant. Even otherwise as the commonly accepted principle of law, unsettling of settled seniority has adverse administrative repercussions and thus is not encouraged in judicial review. The Hon\rquote ble Apex Court in \b\i Shiba Shankar Mohapatra & Ors \b0\i0 Vs \b\i State of Orissa & Ors\b0 \{(2011) 1 SCC (L&S) 289\},\b \b0\i0 frowning upon belated challenges in this regard, had held a period of 3 to 4 years as a reasonable period for challenging seniority. \par \pard\qj\par \tab\par \par \pard\sl480\slmult1\qj\tab The reliance placed by the applicant on Civil List to prove contrary view cannot be accepted in view of the clear disclaimer in the preface to the Civil List regarding the authenticity of relevant particulars being determined only with reference to the relevant records.\par \pard\qj\par \pard\sl480\slmult1\qj\tab Even the further endeavour to cite certain DOP&T OMs in support obtained under the RTI (Annex 15-Colly) without appreciating the context of such instructions would not help the claim of the applicant. In any case, the basic issue remains that as per the respondents the batch year is as per the relevant final Seniority Lists. We see no reason not to accept the stand of the respondents.\par \pard\qj\par \pard\sl480\slmult1\qj\tab In the passing, pertinent it would be to state the same about the applicant\rquote s contention of the Cabinet having been kept in the dark in the matter of the batches of the officers who had been given the benefit of \lquote one-time relaxation\rquote .\par \pard\qj\par \pard\sl480\slmult1\qj 11.5\tab The allegation of manipulations by vested interests run through the averments in the OA. However, as has been held by the superior Courts in a catena of judgments, such allegations are easier made than made out, and are not to be acted upon in judicial scrutiny at the throw of a hat. Hence such allegations in the present case also do not merit credence.\par \pard\qj\par \pard\sl480\slmult1\qj 12.\tab To conclude, we have dealt with the issues of challenge to the impugned promotion order as well as the Seniority List essentially from the point of their infringing any legal right of the applicant i.e. in this case the fundamental right for fair consideration for regular promotion to Senior Administrative Grade as per law and consequent assigning of inter-se seniority. However, no such infringement has been found. In the process, we have also considered several other contentions raised by the applicant challenging the virus of these orders. We would again reiterate that we are not embarking upon here in adjudicating a Public Interest Litigation or issuance of Quo Warranto \i per se. \i0 Suffice we find it to observe that we have not found any basis to quash the impugned orders.\par \pard\qj\par \pard\sl480\slmult1\qj\tab Before parting, however, we find it necessary to take note of the delay on the part of the respondents in issuance of the final order in case of the applicant\rquote s regular promotion. As per the submission of the official respondents in their counter reply, a proposal has already been submitted to the ACC after opening the \lquote sealed cover\rquote for the consideration of the ACC. Naturally this has to culminate into the passing of a speaking and reasoned final order.\par \pard\qj\par \pard\sl480\slmult1\qj\tab In this context, the OA is disposed with directions to the official respondents for passing the final order in the matter at the earliest possible and within two months from the date of receipt of a copy of this order. The parties are to bear their respective costs.\par \pard\qj\par \par \par \par (DR. VEENA CHHOTRAY)\tab\tab\tab\tab ( V. K. BALI )\par MEMBER (A)\tab\tab\tab\tab\tab\tab CHAIRMAN\par \par \par \par /\b\fs16 PKR/\b0\fs24\par } �