Central Administrative Tribunal - Delhi
Sunil Kumar Bhatia vs M/O Personnel,Public Grievances And ... on 22 May, 2023
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O.A. No. 2888/2015
Item No. 23 (C-3)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2888/2015
This the 22nd day of May, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
SHRI SUNIL KUMAR BHATIA
S/o Shri Gopal Dass Bhatia,
Working as Assistant,
NITI Aayog,
Parliament Street,
New Delhi-110001
.....Applicant
(Advocate: Mr. Kripa Shankar Prasad)
Versus
Union of India & Others: through
1. The Secretary,
Department of Personnel & Training (DOPT),
The Ministry of Personnel,
Public Grievances and Pensions,
North Block,
New Delhi-110001
...Respondent No.1
2. The Chairman,
Union Public Service Commission,
Shahjahan Road,
New Delhi
...Respondent No.2
3. The CEO/ Secretary,
NITI Aayog,
Parliament Street,
New Delhi-110001
...Respondent No.3
(Advocate: None)
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O.A. No. 2888/2015
Item No. 23 (C-3)
O R D E R (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed the present Original Application seeking the following reliefs:
"i) That this Hon'ble Tribunal may graciously be pleased to allow this O.A. and direct the Respondent No. 1 to incorporate the protection clause at para 3.1.3 of the Respondent No. 1 OM No. AB-
14017/12/88-Estt(RR) dated 31.12.2010 in the CSS Regulations 2013, thereby protecting the interests of the Applicant in the feeder grade UDCs of CSCS so that the eligibility service shall continue to be five (5) years, instead of ten (10) years for promotion to the post of Assistant Grade for the Select List of CSS Assistant Grades (2010 or 2011) and thereafter, the Applicant be considered for promotion as per Regulations of 2013 with the Note inserted therein so that the Applicant could be placed in the Select List of Assistants of CSS for the year 2011.
(ii) To quash and set aside the Notification dated 12.07.2013 notifying Central Secretariat Service Regulations Central Secretariat Service (Preparation of Select Lists for the Section Officers and Assistants' Grade) Regulations, 2013, making the same effective retrospectively w.e.f. 1st July, 2009, as the same is incomplete contravention of Para 3.1.3 of the office memorandum of DOPT dated 31.12.2010 which provides for retention of existing eligibility service.
(iii) That this Hon'ble Court may be pleased to issue directions to the Respondents to hold Review DPC on the basis of eligibility of the Applicant having five years approved service in the CSCS for placing him in the Select List of CSS Assistant Grade 2010 or 2011 and to give all the consequential benefits arising out of the same."
3 O.A. No. 2888/2015Item No. 23 (C-3)
2. The brief facts as stated by the applicant in the OA are that he joined the erstwhile Planning Commission (New NITI Aayog) on 24.05.1993 as Lower Division Clerk and appointed as Upper Division Clerk in the Central Secretariat Clerical Services (CSCS). He was governed by the extant 1962 Rules for promotion to the post of Assistant Grade of CSS which stipulated regular qualifying service of minimum five years as UDC of CSCS.
3. It is submitted that the applicant was considered by DPC constituted by the erstwhile Planning Commission recommending the name of applicant for promotion from UDC of CSCS to the post of Assistant of CSS. However, due to non finalization of Select Lists for the years 2007, 2008 and 2009, the applicant was promoted on adhoc basis on 07.09.2010. Subsequently, he was promoted as regular Assistant for the Select List of Assistant Grade 2011.
4. Subsequently, vide order dated 15.01.2014, the applicant was promoted as Assistant on regular basis in the Select List of the CSS for the year 2011. It is further submitted that the respondent no. 1 issued the Central Secretariat Service (Preparation of Select Lists for the Section Officers' and Assistant Grade's) Regulations, 2013 vide Notification dated 12.07.2013, where in para 4(B)(1)(i), the respondent no. 1 enhanced the eligibility for the Upper 4 O.A. No. 2888/2015 Item No. 23 (C-3) Division Clerks of CSCS for promotion to the posts of Assistant Grades of CSS from five to ten years, retrospectively making the same effective from 01st July, 2009. Aggrieved, the applicant made a number of representations to respondent no. 1, to which there is no reply.
5. At the outset, learned counsel for the applicant submits that the instant OA is squarely covered by an order of this Tribunal in OA No. 2773/2015 titled Ram Khilari Meena & Ors. Vs. UOI & Anr. dated 05.01.2023. The relevant paragraphs of the said OA read as under:-
3. During the course of the arguments, learned counsel for the applicants has drawn our attention to a judgment passed by the Hon'ble High Court of Delhi in Rajesh Kumar Giri & Ors. vs. Union of India & Ors. and submits that similar issue has already been decided in the said judgment of the Hon'ble High Court (supra), which reads as under:-
"6. There exists an office memorandum dated December 31, 2010 issued by DOPT, concerning revision or amendments in the existing Recruitment Rules. Inter-alia, vide para 3.1.3 of the said Office Memorandum, under the heading 'Retention of Existing Eligibility Service' it is provided :-
'RETENTION OF EXISTING ELIGIBILITY SERVICE 3.1.3 Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issues by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the 5 O.A. No. 2888/2015 Item No. 23 (C-3) date of notification of the revised rules, could be included in the revised rules.'"
7. The petitioners made representations when the new Recruitment Rules were promulgated on November 11, 2011, highlighting therein, that while amending the Recruitment Rules their chances of promotion were being adversely affected. They drew the attention of the Director General, BSF to the OM dated December 31, 2010 issued by DOPT and in particular para 3.1.3 thereof.
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12. We are more than a little bit surprised from the response for the reason the response overlooks the fact that Recruitment Rules can always be amended prospectively and if need be even retrospectively. The Ministry of Home Affairs, having conceded to the fact that it was by oversight that the DOPT OM dated December 31, 2010 was overlooked when the Recruitment Rules of the year 2001 were promulgated, and that the eligibility service for promotion prescribed in the existing Rules stood enhanced and the change adversely affected persons holding the feeder grade posts on regular basis, it became necessary to pen a note in the new Recruitment Rules to the effect that the eligibility service shall continue to be the same for persons holding the feeder post on regular basis on the date of notification of the revised Rules, as per para 3.1.3 of the DOPT OM dated December 31, 2010.
13. It hardly matters whether the amendment is made prospective or retrospective for the reason the posts with which we are concerned continue to be available.
14. Since the decision taken by the Cadre Controlling Ministry is on a wrong appreciation of the legal position we dispose of the writ petition issuing a direction to the Ministry of Home Affairs to process the recommendations made by DG, BSF and take corrective action, in that, accept the proposal to amend the BSF Air Wing Officers (Group A Combatized Posts) Recruitment Rules, 2011 by inserting a note therein to give effect to para 3.1.3 of the 6 O.A. No. 2888/2015 Item No. 23 (C-3) DOPT OM dated December 31, 2010, and for which direction we note that the Ministry of Home Affairs is the Cadre Controlling Ministry (The Rules of the year 1999 and the ones promulgated in the year 2011 have been notified by the Ministry of Home Affairs). Thereafter, case of the petitioners qua promotion be considered as per the Rules of 2011 with the note inserted therein.
Learned counsel for the applicants has also relied upon a judgment passed by the Hon'ble Apex Court in T.R. Kapur and Others vs. State of Haryana and Others (1986 (Supp) Supreme Court Cases 584). The relevant portion of the said judgment reads as under:-
"Service Law- Seniority and Promotion- Right to be considered for promotion is a condition of service- Benefits acquired under rules made under proviso to Article 309 regarding qualifications for promotion cannot be taken away retrospectively by an amendment to the disadvantage of a Government servant- Amendments effecting such retrospective operation must satisfy Articles 14 and 16- Punjab Service of Engineers, Class I, PWD (Irrigation Branch) Rules, 1964, Rule 6(b) (as amended by State of Haryana by notification dated June 22, 1984)- Constitution of India, Articles 14 and 16 & 309 - Service Law-
Retrospectively.
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19. In the result, the petitions must succeed and are allowed with costs. The impugned notification dated June 22, 1984 issued by the State Government of Haryana purporting to amend Rule 6(b) of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964 with retrospective effect from July, 10,1964 is declared to be ultra vires the State Government."
Lastly, the learned counsel for the applicants has drawn our attention to another judgment passed by the Hon'ble Apex Court in 7 O.A. No. 2888/2015 Item No. 23 (C-3) Ex-Capt. A.S. Parmar and Others vs. State of Haryana and Others (Civil Appeals Nos. 3095-96 of 1980). The relevant portion of the said judgment reads as under:-
"Statute Law- Retroactivity- Amendment of law taking away vested rights with retrospective effect- Held, invalid if it is violative of the present acquired or accrued fundamental rights of the affected persons- Punjab Government National Emergency (Concessions) Rules, 1965, Rule 4(ii), proviso [as introduced by Haryana Government Notification No. GSR/77/Const. Art. 309/Amend/(2)/76, dated March 22, 1976] and Rule 2 [as amended by Notification No. GSR 182/Const./Art. 309/Amend/(2)/76, dated August 9, 1976], held, invalid and must be quashed- Seniority list directed to be prepared afresh- Constitution of India, Articles 14 and 16 - Labour and Services- Seniority and promotion."
4. On the contrary, learned counsel for the respondents has drawn our attention to the counter affidavit filed on behalf of the respondents, wherein he has relied upon the judgments of the Hon'ble Apex Court titled Bibi Sayeeda vs. State of Bihar reported as (1996) 9 SCC 516, High Court of Delhi vs. A. K. Mahajan reported as (2009) 12 SCC 62 and S.P. Vasudeva Vs. State of Haryana and Ors. reported as AIR 1975 SC 2292.
5. Taking into consideration the submissions made, we are of the view that if the respondents had conducted a DPC on year to year basis, the applicants would have been considered for the next higher promotion in the year 2009-10, when they have completed 5 years residency period in the feeder grade. Unfortunately, the DPCs were not conducted every year, for want of amendment in the Recruitment Rules and ultimately the rules were amended in the year 2013 and have given effect to from 12.07.2013 with retrospective effect, in derogation to the rights of the applicants which is not permissible under the 8 O.A. No. 2888/2015 Item No. 23 (C-3) eyes of law. Initially the Recruitment Rules were prescribed as 5 years residency period in feeder grade for getting promotion to the next higher level but it has been modified to the extent of 10 years from the retrospective date, by way of amendment in the year 2013, taking away the earlier rights of the applicants for promotion in the vacancy of that year, is not sustainable. Thus, we hereby set aside the regulation 1(2) "deemed to have come into force on the 1st day of July,2009." of the impugned notification dated 12.07.2013. The respondents are directed to carry out necessary amendments as already directed by the Hon'ble Apex Court, within a period of four months from the date of receipt of a certified copy of this Order. And, if the applicants are found eligible for promotion, they shall be accorded the same.
8. Accordingly, the OA is disposed of as above. Associated MAs shall also be disposed of. No costs."
6. This Tribunal has already taken a view in O.A. No. 2773/2015 titled Ram Khilari Meena &Ors. v/s UOI & Ors., on the issue raised in the present OA and the applicant is similarly situated. We have no hesitation to issue the same orders in the instant OA.
7. Accordingly, the OA is disposed of in terms of the aforementioned judgment in OA No. 2773/2015. No order as to costs.
(Dr. Anand S Khati) (Ashish Kalia)
Member (A) Member(J)
/aks/