Central Administrative Tribunal - Delhi
Shashi Shekhar vs Union Of India Through on 21 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3039/2012
New Delhi this the 21st day of August, 2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K.Bhardwaj, Member (J)
1. Shashi Shekhar,
Enforcement Officer,
H.No.15, Bajaz Bagh, Bachhpora,
Srinagar-190021
Jammu & Kashmir
2. Rakesh Ranjan Kumar,
Enforcement Officer
Currently
Assistant Commissioner Security (Civil Aviation),
Bureau of Civil Aviation Security,
Ministry of Civil Aviation,
A Wing, IInd Floor, Janpath Bhawan,
Janpath, Cannaught Place, New Delhi
3. Ashutosh Kumar,
Enforcement Officer,
H.No.15, Bajaz Bagh, Bachhpora,
Srinagar-190021
Jammu & Kashmir
4. P.K.Naik,
Enforcement Officer,
H.No.15, Bajaz Bagh, Bachhpora,
Srinagar-190021
Jammu & Kashmir. Applicants
(By Advocate Shri Kumar Harshwardhan with Shri Mrinal Kumar))
VERSUS
1. Union of India through
The Secretary (Revenue),
Ministry of Finance, North Block,
New Delhi-110001
2. Ministry of Personnel Public Grievances and
Pensions through
Secretary,
(Department of Personnel & Training),
5th Floor, Lok Nayak Bhawan,
Khan Market, New Delhi.
3. Directorate of Enforcement
Through
The Director,
6th Floor, Lok Nayak Bhawan,
Khan Market, New Delhi.
4. Union Public Service Commission
Through
The Secretary, UPSC,
Dholpur House, Shahjahan Road,
New Delhi. Respondents
(By Advocate Mr. P.P.Malhotra, Additional Solicitor General
with Shri Chetan Chawla)
O R D E R
Honble Mr. A.K.Bhardwaj, Member (J) :
As has been captioned in the Original Application filed by the applicants, they were initially appointed in the Directorate of Enforcement as Assistant Enforcement Officer and subsequently got promotion as Enforcement Officer in the grade pay Rs.4800/- (PB-2) after rendering 18 to 20 years of service in the feeder grade. According to the applicants, the appointment to various posts in the Directorate is made by way of direct recruitment as well as also on deputation from other departments, viz Police Service, Customs & Excise Department, etc. Vide Office Memo dated 25.05.2011, the Directorate of Enforcement proposed to fill up 33 posts of Assistant Director (presently Assistant Director-Grade II) in the pay band of Rs.9300-34800/- with grade pay of Rs. 4800/ on deputation basis at Delhi, Jaipur, Chandigarh, Jalandhar, Srinagar, Lucknow, Kolkata, Patna, Ahmedabad, Bangalore, Mumbai, Cochin, Guwahati and Chennai. Again vide OM dated 14.06.2012, they proposed to fill up more posts of Assistant Director on deputation basis. The following categories of officials having sufficient experience in the collection and processing of intelligence as well as in investigation work were considered eligible for appointment to the posts in question on deputation basis:-
(i) Income Tax Officer, Class-II
(ii) Superintendents of Central Excise, Class-II and Appraisers Class-II of Customs Houses
(iii) Deputy Supdt. of Police or equivalent from Central/State Government On 22.07.2011, Government of India, Ministry of Finance (Department of Revenue) issued Office Memorandum No.A-35011/5/2011-Ad.ED inviting applications to fill up 47 posts of Deputy Director of Enforcement in the pay band-3 (Rs.15600-39100, Grade pay of Rs.6600/-) on deputation/absorption basis in one or more offices of Directorate of Enforcement, subordinate organization under the Ministry of Finance, in the following cities:-
Delhi, Jaipur, Chandigarh, Jalandhar, Srinagar, Lucknow, Kolkata, Patna, Ahmedabad, Hyderbad, Bangalore, Mumbai, Cochin, Guwahati, Chennai.
The following categories of officers were considered eligible for appointment to the post:-
(a) (i) holding analogous post on regular basis in the parent cadre/department;
or
(ii)with five years service in the grade rendered after appointment thereto on a regular basis in the Pay Band-3 of Rs.15600-39100 and grade pay of Rs.5400 o equivalent in the parent cadre or Department; or
(iii) with six years regular service in the grade rendered after appointment thereto on regular basis in Pay Band-2 of Rs.9300-34800 and grade pay of Rs.4800 or equivalent in the parent cadre or department; and
(b) (i) possessing experience of atleast five years in the field of intelligence, investigation work and adjudication or prosecution relating to fiscal/criminal laws; or
(ii) possessing experience of Banking or Accounts.
Enforcement Officers of the Directorate of Enforcement made a representation dated October, 2011 to the Revenue Secretary, Department of Revenue (Ministry of Finance) requesting for amendment in the RRs for the post of Deputy Director, enclosing therewith copy of the aforementioned OMs dated 25.05.2011, 14.06.2012, 22.07.2011 and also the copies of OM dated 3.10.1989 ( procedure to be followed in cases where appointment is to be made by transfer on deputation/transfer basis). The aforementioned representation and the OM dated 17.06.2010 (Transfer on deputation service of Central Government employees to ex-cadre posts under the Central Government/State Governments/Public Sector Undertakings/Autonomous bodies, Universities/UT Administration, Local Bodies etc. and vice-versa- Regulation of pay, Deputation (duty) Allowance, tenure of deputation/foreign service and other terms and conditions) have been annexed as enclosures to present Original Application filed by the applicants, praying therein:-
(i) To remove the anomaly in Recruitment Rule for appointment of Assistant Director on deputation & appointment of Deputy Director on deputation cum absorption basis in the Directorate of Enforcement so that departmental officers be given parity with the officers coming on deputation or same criteria be prescribed in the Recruitment Rule for the officers coming on deputation which would be prescribed for the departmental officer.
(ii) The recruitment of Assistant Director on deputation done earlier in pursuance of Office Memorandum no.A-3/1/2011/AD dated 25.05.2011 issued by the Directorate of Enforcement, New Delhi be cancelled.
(iii) The recruitment of Assistant Director on deputation in pursuance of OM no. A-4/15/2012 Pt dated 14.06.12 issued by the Directorate of Enforcement, New Delhi be stopped as it has been issued in pursuance of old RR for the post of CEO ( now upgraded to Assistant Director) and is against the DOPT guidelines issued vide OM No.AB14017/71/89-Estt. (RR) dated 3rd October 1989. Further, the current RR for the post of Assistant Director is pending before the Ministry of finalization as such the advertisement be made on the basis of new RR. Accordingly Respondent No.4 may also be directed to stop the proceedings of appointment through interview or screening.
(iv). Applicant/s may also be given promotion, in view of DOPTs guidelines to justify the appointment of Assistant Directors and Deputy Directors on deputation fresh Recruitment Rules for the be termed in view of DOPTs guidelines for removal of any further anomaly.
(v) The present Recruitment Rules for the post of Deputy Director may be amended in the interest of justice and the process of appointment of DD on deputation cum absorption basis for the officers in Grade Pay of Rs.4800/- of pay band-2 having six years of regular service may please be stopped and process of recruitment be conducted on the basis of amended Recruitment Rules.
And/or Any relief which deems fit to the facts and circumstances of the case in favour of the applicants. The only ground in the OA stated in para 5 thereof reads as under:-
The Applicants have been denied and refused to be given just and equal treatment and discriminated against the deputationists who despite being much junior to the direct recruits of Respondent No.3, holding analogous posts, are in violation to the respective legal proposition, made and issued by the DOPT which has been dealt elaborately in the above paragraphs and the same are being reiterated and reaffirmed herein. During the course of arguments, the following points were raised on behalf of the applicants:-
For an Assistant Enforcement Officer (PB-2+ Grade pay of Rs.4600/-), it took 18 to 24 years to become Enforcement Officer (PB-2 + Grade pay of Rs.4800/-) and similarly Enforcement officer could also become Chief Enforcement Officer after rendering almost same length of service (Presently Assistant Director in which the grade pay of Rs.5400/-). Most of the officers retired as Enforcement Officer/Chief Enforcement Officer due to such stagnation.
(ii) In terms of paras 5 and 6 of the OM No.AB 14017/71/89-Estt. (RR) dated 3.10.1989 (ibid) where specific qualifications for transfer on deputation/transfer have not been prescribed, the qualifications and experience of the officers to be selected should be comparable to those prescribed for direct recruits to the post where direct recruitment has also been prescribed as one of the methods of appointment in the recruitment rules. The contents of said para 5.1 as extracted by applicant in clause (e) of the OA read as under:-
That DOPTs Office Memorandum No.AB 14017/71/89-Estt.(RR) dated 3rd October 1989, copy of the same is annexed herewith as Annexure A-4, on the subject Procedure to be followed in case where appointment is to be made by transfer on deputation/transfer basis- consolidated instructions provides that Whenever the recruitment rules for a post prescribe transfer on deputation/transfer as a method of filling up the post, they generally contain an entry in column 12 of the standard form of schedule stating inter-alia that the transfer on deputation/transfer shall be made from amongst the officers holding analogous posts on regular basis under the Central/State Govts. On receipt of reference from various Ministries/Departments asking for the definition of analogous posts, the DOPT laid down the following criteria for determining whether a post could be treated as analogous to a post under the Central Govt. (Ref para-5 &6 of this OM).
i) Though the scale of pay of the two posts which are being compared may not be identical, they should be such as to be an extension or a segment of each other, e.g. for a post carrying the pay scale of Rs.3000-5000, persons holding posts in the pay scale of Rs.3000-4500 will be eligible.
ii) Both the post should be falling in the same Group of posts as defined in the Department of Personnel and Administrative Reforms Notification No.13012/2/87-Estt.d dated the 30th June, 1987 viz. Group A Group B etc.
iii) The levels of responsibility and the duties of the two posts should also be comparable.
iv) Where specific qualification for transfer on deputation/transfer have not been prescribed, the qualifications and experience of the officers to be selected should be comparable to those prescribed for direct recruits to the post where direct recruitment has also been prescribed as one of the methods of appointment in the recruitment rules.
Where promotion is the method of filling up such posts, only those persons from other Departments may be brought on transfer on deputation whose qualifications and experience are comparable to those prescribed for direct recruitment for the feeder grade/post from which the promotion has been made.
(iii) The filling up of the posts of Assistant Director/ Deputy Director by the respondents from amongst desired candidates is violation of the Constitution and right of equality and equal opportunity as well, available to the applicants.
Those who were considered eligible for appointment to the post of Assistant Director/Deputy Director did not fulfill the qualification and experience as comparable to those prescribed for direct recruitment to the said posts.
2. On the other hand, in the counter reply filed on behalf of respondents, it has been stated that they have been filling up the posts of Assistant Director (EO) and Deputy Director (Enforcement) in accordance with the Recruitment Rules in vogue at the relevant point of time. In para 8 of the reply, it has been explained that the OM No. A-3/1/2011/AD dated 25.05.2011 & OM No.A-4/15/2012-Pt dated 14.06.2012 as also OM dated No.A35011/5/2011-Ad.ED dated 22.07.2011 issued by them were in consonance with the relevant recruitment rules and the Directorate of Enforcement is the competent authority in respect of appointment of Assistant Director on deputation basis. The circulars were issued to fill up the posts of Assistant Director falling within the deputation quota viz. 25% of total posts of Assistant Director, i.e. 250. The OM No. A-35011/5/2011-Ad.ED dated 22.07.2011 was separately issued by Department of Revenue, Ministry of Finance, i.e. the authority competent to make appointment to the post of Deputy Director on deputation basis. The circular was issued to fill up the posts of Deputy Director falling within the deputation quota viz 50% of total posts of Deputy Director, i.e. 150. According to the respondents, at present, most of the posts in question have been filled up by promotion of eligible officers and still a large number of the posts are lying vacant. In para 11 of the reply, it has been averred that it is not correct to state that steps have been taken to fill up the posts of Assistant Director and Deputy Director only on deputation basis, as the respondent No.3 has taken the steps to fill up the posts at all levels as per the existing recruitment rules not only by deputation but by other modes of recruitment as well, i.e. by appointment of fresh candidates through SSC and by promotion of eligible departmental officers. Para 11 of the reply reads as under:-
11. That in reply to para 4 sub para (b) it is submitted that the contents of same are incorrect and the same are wrong and denied. It is respectfully submitted that it is not correct to state that steps taken to fill up the posts of Assistant Director and Deputy Director are only on basis of deputation. It is submitted that the respondent No.3 is taking steps to fill up the posts of all levels as per existing recruitment rules not only by deputation but other modes of recruitment as well i.e. by appointment of fresh candidates through SSC and by promotion of eligible departmental officers. It is categorically denied that the steps taken by the answering respondents are in prejudice and discriminatory against the interest of departmental officers. In para 17 of the reply, it is stated that respondent No.3 has already sent a proposal to Administrative Ministry, i.e. Ministry of Finance to delete from the existing recruitment rules the eligibility clause (iii) viz. officers in the grade pay of Rs.4800/- to be eligible for deputation to the post of Deputy Director as well as also the clause providing for absorption to the post of Deputy Director. Such stand has also been taken by them in para 6 of the reply, which reads as under:-
It is submitted that the respondent No.3 has on its own sent various proposals with respect to the recruitment rules to the administrative ministry, i.e. Ministry of Finance and the same are under active consideration. The issues which have already been taken up by the answering respondent No.3 with the administrative ministry are as follows:-
That a proposal has been sent to delete the existing Recruitment Rules the eligibility clause (iii) viz, officers in the Grade pay of Rs. 4800/- to be eligible for deputation to the post of Deputy Director as well as clause providing for absorption to the post of Deputy Director;
That a proposal has been sent to add minimum service of 3 years for deputation also, as is applicable for departmental officers for promotion to the post of Assistant Director;
That a proposal for deletion of clause officers with six years regular service in the grade rendered after appointment thereto on regular basis in Pay Band-2 of Rs.9300-34800 and Grade Pay of Rs.4800/- or equivalent in the parent cadre or department for recruitment of Deputy Director on deputation has also been sent;
It is submitted that draft Recruitment Rules have also been forwarded to administrative Ministry for approval/notification, suggesting therein certain changes as per requirement of the department. Nevertheless, in para 19 of the reply, they have stated that the recruitment to the vacant posts cannot be delayed for want of the amended Recruitment Rules and presently the vacant posts are filled up in accordance with the recruitment rules in vogue. Para 19 of the reply reads as under:-
That in reply to para 5 sub para (i) & (j) it is submitted that the respondent No.3 has sent a proposal for deletion of clause for recruitment of Deputy Director on deputation basis of officers with six years regular service in the grade rendered after appointment thereto on regular basis in Pay Band-2 of Rs.9300-34800 and Grade Pay of Rs.4800/- or equivalent in the parent cadre or department. The same is under active consideration in the Ministry of Finance. However, it is submitted that as per existing instructions on the subject, vacancies are required to be filled in accordance with the Recruitment Rules in force on the date of vacancy and holding of DPC meetings need not be delayed or postponed on the ground that Recruitment Rules for a post are being reviewed/amended. It is further submitted that draft Recruitment Rules have been forwarded to administrative Ministry for approval/notification, suggesting therein certain changes as per requirement of the department in the present scenario and the same is under active consideration in the Ministry. A copy of the same are annexed as Annexure R1.
In para 21 of the reply, it is categorically stated that so far no junior to applicants has been appointed by the respondents and the Directorate, on its own, has sent a proposal to the administrative Ministry for deletion of the provision providing for appointment of the officers in grade pay of Rs.4800/- and Deputy Director (Enforcement) on deputation basis.
3. Shri P.P.Malhotra, learned Additional Solicitor General referred to the Recruitment Rules for the posts of Chief Enforcement Officer (AD(E) and DD (Enforcement)) and submitted that the respondents have committed no irregularity in filling up the posts in said categories/grades in accordance with the recruitment rules. Referring to the status of the working strength of the Directorate of Enforcement, he submitted that as many as 135 posts of Deputy Director are still lying vacant in the Department and just to meet the expectation of the applicants, the functioning of the department cannot be paralyzed. He submitted with aplomb that the amendment in the recruitment rules may take its own time and the available vacancies will have to be filled up in accordance with the recruitment rules in vogue for the present. The status of the working strength of Directorate of Enforcement as produced by the learned Additional Solicitor General reads as under:-
S.No. Name of the post Sanctioned strength Working Departmental Deputation Vacant
1. Joint Director 33 7 2 5 26
2. Deputy Director 150 15 11 4 135
3. Assistant Director 250 62 17 45 188
4. Enforcement Officer 350 113 80 33 237
5. Assistant Enforcement Officer 425 45 12 33 380
4. We have heard the counsel for parties and perused the record. In brief the following proposition arises to be determined by us:-
(i) Whether in making appointment to the post of Assistant Director/Deputy Director (Enforcement), the respondents violated the provisions of Para 5.1 (iv) of DOP&T OM dated 3.10.1989 in any manner.
(ii) Whether in the event of there being conflict in the provisions of administrative instructions and the recruitment rules, the administrative guidelines can have over riding effect.
(iii) Whether the available vacancies have to be filled up in accordance with the recruitment rules in vogue when the post fell vacant or they need to be filled up by following the recruitment rules yet to come into the force and whether amended recruitment rules can be applied retrospectively, i.e. to past vacancies.
(iv) Whether in making recruitment to a post, the provision of the recruitment rules under Article 309 of the Constitution prescribed in this regard can be ignored.
5. As far as the first question is concerned, it can be seen from para 5.1 (iv) of the OM dated 3.10.1989 (ibid), the qualification and experience of the officers to be selected for transfer on deputation/transfer need to be comparable to those prescribed for direct recruitment to the post where direct recruitment has also been prescribed as one of the methods of appointment in the recruitment rules and where specific qualification for transfer on deputation/transfer has not been prescribed in RRs. In the present case, it is not so. Both in the RRs for the post of Chief Enforcement Officer and Deputy Director (Enforcement), the provisions for appointment by way of transfer on deputation have been specifically prescribed. In the Directorate of Enforcement (Class I and Class II posts) Recruitment (Amendment) Rules, 1975, it is specifically provided that the Income Tax Officer, Class II, (ii) Superintendents of Central Excise Class II and Appraisers (Class II) of Customs Houses and (iii) Deputy Superintendents of Police or Equivalent from Central/State Government are eligible for appointment as Chief Enforcement Officer by transfer on deputation against 25% of total posts. For easy reference, recruitment rules placed by the applicant on record as Annexure A-5 to OA are extracted hereinbelow:-
No.2/10/75 Government of India Cabinet Secretariat Department of Personnel New Delhi the 22nd Nov, 1975 NOTIFICATION In exercise of the powers conferred by the proviso to article 309 of the constitution, the President hereby makes the following rules further to amend the Directorate of Enforcement (Class 1 & Class II posts) Recruitment Rules, 1969, namely:-
(I) These rules may be called the Directorate of Enforcement (Class I and Class II posts) Recruitment (Amendment) Rules, 1975.
(2) They shall come into force on date of their publication in the official Gazette.
In the Schedule to the Directorate of Enforcement (Class ( & Class II posts) Recruitment Rules, 1966, for item 5 and entries relating thereto, the following item and entries shall be substituted, namely:-
_________________________________________________________________ 1. 2 3. 4. 5 Chief Enforcement 30 General Central Service Rs.650-30-740 Selection Officer Class II (Gazetted)
6. 7. 8 9 Not applicable Not applicable Not applicable 10 11 12.
By promotion falling which Promotion
By transfer on deputation 75% Enforcement Class II
Officers and Superintends D.P.C.
By transfer on deputation 25% in the Enforcement
Directorate with 3 years
Service in he grade rendered
After appointment thereto on
on a regular basis.
13. 14 15
As required under the Union Public Transfer on deputation
Service Commission (Exemption)
From Consultation) Regulations, 158 i) Income Tax Officer, Class II
if an officer from state Government. Ii) Superintendents of Central
excise Class II and Appraisers
(Class II) of Customs Houses.
iii )Deputy Superintendents of Police or
Equivalent from Central/State
Government.
16. 17.
is selected for appointment
Period of deputation shall not ordinarily exceed 3 years
________________________________________________________________________________________ Sd/-
( K.L.Ramcandran
Under Secretary of the Govt.of India
2/30/75-AVD.IV New Delhi the 22nd Nov, 1975
Copy forwarded to :-
The Director, Dte. Of Enforcement, N.D. with reference to his U.C letter No.4/4/75-dt. 19th May, 1975 Te Secy.UPSC, Dholpur House, ND with reference to his letter 3/3/(12)/75-33 dt the 12th Sept, 1975.
Sd/-
( K.L.Ramcandran Under Secretary of the Govt.of India Similarly in the Recruitment Rules for the post of Deputy Director (Enforcement), it is provided that the requisite eligibility qualification required to fill up the posts by way of deputation against 50% of the total posts have been specified. For easy reference, the rules are extracted hereinbelow:-
1. Short title and commencement.- (I) These rules may be called the Ministry of Finance, Department of Revenue, Directorate of Enforcement, Deputy Director of Enforcement, Group A Post, Recruitment Rules, 2011.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. Number of posts, classification, Pay Band and Grade Pay or Pay Scale.- The number of the said posts, their classification, pay band and grade pay or pay scale attached thereto shall be as specified in columns (2) to (4) of the Schedule annexed to these rules.
3. Method of recruitment, age-limit, qualifications, etc.- The method of recruitment, age-limit, qualifications and other matters relating thereto shall be as specified in columns (5) to(13) of the said Schedule.
4. Disqualification.- No person,-
(a) who has entered into or contracted a marriage with a person having a spouse living; or
(b) who, having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for appointment to any of the said posts:
Provided that the Central Government may, if satisfied that such a marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rule.
5. Power to relax.- Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing and in consultation with the Union Public Service Commission, relax any of the provisions of these rules with respect to any class or category of person.
6. Savings.- Nothing in these rules shall affect reservations, relaxation of age-limit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, the Ex-servicemen, the other backward classes and other special categories of persons in accordance with the orders issued by the Central Government from time to time.
SCHEDULE Name of the post Number of posts Classification Pay Band and Grade Pay or Pay scale Whether selection or non-selection post Age-limit for direct recruits.
1 2 3 4 5 6 Deputy Director of Enforcement 150* (2011) *Subject to variation dependent on workload General Central Service, Group A Gazetted, Non Ministerial Pay Band-3, Rs15600-39100, Grade Pay Rs.6600 Selection Not Applicable Educational and other qualifications Whether age and educational Period of probation Required for direct recruits. qualifications prescribed for if any.
direct recruits will apply in the case of promotion.
7. 8. 9 Not applicable Not applicable Not applicable Method of recruitment: Whether by In case of recruitment by promotion of deputation or Direct recruitment or by promotion absorption grades from which promotion or deputation or deputation or absorption and or absorption to be made.
percentage of the vacancies to be by various methods.
10. 11 50 percent by promotion, 50 percent Promotion:
By deputation/absorption Assistant Director of Enforcement with five years regular service in the grade failing with Assistant Director of Enforcement with six years combined regular service as Assistant Director of Enforcement and Enforcement Officer out of which three years regular service as Assistant Director of Enforcement.
Note 1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service, or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to Ist January, 2006 or the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding pay or pay scale extended based on the recommendations of the said Pay Commission.
Deputation/absorption:
Officers of all India Services or Central Services including State Police Organizations or Central Bureau of Investigation
(i) holding analogous post on regular basis in the parent cadre or department; or
(ii) with five years regular service in the grade rendered after appointment thereto on a regular basis in Pay Band-3 of Rs.15600-39100 and grade pay of Rs.5400 or equivalent in the parent cadre or Department; or
(iii) with six years regular service in the grade rendered after appointment thereto on regular basis inPay Band-2 of Rs.9300-34800 and grade pay of Rs.4800 or equivalent in the parent cadre or department; and
(b) (i) possessing experience of atleast five years in the field of intelligence, investigation work and adjudication or prosecution relating to fiscal or criminal laws; or
(ii) possessing experience of Banking or Accounts.
Note 1: The departmental officers in the feeder grade who are in direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.
Note 2: Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other Organization or Department of the Central Government shall ordinarily not to exceed four years. The maximum age limit for appointment by deputation shall ordinarily not exceed 56 years, as on the closing date of receipt of applications.
Note: For the purpose of appointment on deputation or absorption basis, the service rendered on a regular basis by an officer prior to Ist January, 2006, ( the date from which the revised pay structure based on the Sixth Central Pay Commission recommendation has been extended) shall be deemed to be service rendered in the corresponding grade pay or pay scale, and where this benefit will extend only for the post for which that grade pay or pay scale is the normal replacement grace without any upgradation..
As has been mentioned hereinabove, the requisite qualification for the post of Assistant Director mentioned in OMs dated 25.05.2011 and 14.06.2012 is the same as mentioned in the Directorate of Enforcement (Class I and Class II posts) Recruitment (Amendment) Rules, 1975 made by the President in exercise of the power conferred by the proviso to Article 309 of the Constitution. Similarly the qualifications mentioned in OM dated 22.07.2011 are same as prescribed for appointment by way of deputation/absorption to the post of Deputy Director of Enforcement in the Ministry of Finance, Department of Revenue, Directorate of Enforcement, Deputy Director of Enforcement, Group A Post, Recruitment Rules, 2011 made by the President under Article 309 of the Constitution. Thus, when there was specific provision made in the recruitment rules in this regard, no fault can be found with the action of the respondents in following the same in making appointment on deputation. In the circumstances, the provisions of para 5.1 (iv) of OM dated 3.10.1989 are not found to be violated in any manner.
6. In the OM dated 3.10.1989 itself, it has been specifically provided that the qualification for appointment on deputation/transfer needs to be comparable to those prescribed for direct recruitment to the post where direct recruitment has also been prescribed as one of the methods of recruitment in the recruitment rules and not in such cases where in the rules, the specific qualification for transfer on deputation/transfer has not been prescribed. In the present case, where there is qualification prescribed in the recruitment rules, the clause 5.1 (iv) (ibid) may have no application. Besides, it is settled position of law that in case of there being conflict between the provisions of administrative instructions/guidelines and the statutory rules issued under proviso to Article 309 of the Constitution, the later would prevail. Even in Sureksha Luthra Vs. The Registrar General, Delhi High Court & Ors (2011 (II) AD Delhi), it could be noticed that the rules framed by State under Article 309 proviso would prevail. In K.K.Parmar & Ors Vs. High Court of Madras (AIR 2006 SC 3559), it could be viewed that the rules framed by State under Article 309 proviso may be applicable to the employees of High Court even though the executive instructions issued by it would not be applicable, particularly when such executive instructions were contrary to or inconsistent with the rules framed by the Honble Chief Justice of the High Court in terms of Article 229 of the Constitution of India.
7. In Comptroller & Auditor General of India Vs Mohan (AIR 1991) SC 2288), it could be viewed that though there is nothing to prevent the Government from issuing administrative instructions on matters upon which the statutory rules are silent, but the non statutory rules cannot modify the statutory rules. Also in OA No. 4233/2010) and OA No.2081/2012 ( Sunil Garg Vs. Union of India), two different division Benches of this Tribunal could view that the administrative instructions contrary to rules cannot have the over riding effect on the rules and need to be ignored. Relevant excerpt of the order in OA No. 4233/2010 and OA No. 2081/2012 read as under:-
OA 4233/20107. Since the issue raised by the applicant has already been dealt with by this Tribunal in the OA referred to by the respondents in their counter reply, the same need not be delved with into in detail again. For easy reference relevant excerpt of the order passed in OA-4233/2010 is extracted herein below:-
7. The case of the respondents, on the other hand, is that the service of the applicant is governed by the statutory rules and regulations already referred to hereinabove. Regulations in terms talk of supersession of those who are good by very good, and those who are very good by those who are outstanding. Relevant regulations 5(3) to 5(7) of the Regulations of 1964, reads as follows:
(3) The field of selection shall be determined by the Selection Committee by taking the required number of persons from the single list drawn up under clause (2), in the order of their inclusion in that list.
(4) The Selection Committee shall classify such of the officers included in the field of selection as are considered fit for appointment to Grade I as outstanding, very good and good, on the basis of merit.
(5) The recommendations of the Selection committee, together with the upto date confidential records of the concerned officers and such other information as may be relevant, shall be forwarded to the Commission for their advice.
(6) Subject to the orders of Government, the recommendations of the Commission as regards suitability and classification of the concerned officer shall be accepted.
(7) The Select List shall be prepared by including the required number of names first from amongst the officers finally classified as outstanding then from amongst those similarly classified as very good and thereafter from amongst those similarly classified as good. The order of names inter se within each category shall be the order in which the names are arranged in the single list prepared under clause (2). The Select List so prepared shall be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions. The benchmark for inclusion in the select List was good and continues to be so, but as mentioned above, those with high service credentials and gradings would outsmart and thus supersede those with lesser gradings in their ACRs. It has been the consistent law, be it the Central Administrative Tribunal, or the High Courts in the country, or the Honble Supreme Court, that such reports which may be good and which may not exclude an employee from consideration for promotion, need not be communicated. These judgments still stand the test of time. A significant development, however, took place in 2002 when the Government in the Department of Personnel & Training came out with the instructions that the benchmark for promotion would be very good consistently for the last five years, and anyone who may not be having very good grading even in one year out of five, would not be promoted. Earlier to the instructions aforesaid, a person with good record or grading as may reflect from his ACRs, was to be considered for promotion, and, therefore, such reports which were good, it has been consistently held, may not be conveyed. The revision in the instructions of no supersession and consistent very good benchmark in all the ACRs under consideration brought about a sea change. We may demonstrate. Earlier to the instructions issued in 2002, if a Government employee may have four outstanding ACRs and one good ACR, which were under consideration, he would normally be promoted. Now after the instructions of the year 2002, an employee with even four outstanding ACRs and one good out of five, would not be even in the zone of consideration. It is in consideration of this significant development that the law has now evolved that even such reports which are good but would be definitely adverse as taking an employee out of the zone of consideration, shall have to be communicated. The first decision in this connection came to be recorded by a Full Bench of five Honble Vice-Chairmen/Members of this Tribunal in the matter of Ashok Kumar Aneja v Union of India & others [OA No.24 of 2007 decided on 7.5.2008]. On the heels of the judgment aforesaid, the Honble Supreme Court in Dev Dutt v Union of India & others [(2008) 8 SCC 725] and Abhijit Ghosh Dastidar v Union of India & others [Civil Appeal No.6227 of 2008, decided on 22.10.2008], held that all such reports which may be good but below benchmark for promotion, shall have to be communicated. We may specifically mention that the Tribunal while holding so has not over-ruled its earlier Full Bench judgment on the issue wherein it has been clearly held that the good reports need not be communicated. The Honble Supreme Court in its judgments in Dev Dutt and Abjijit Ghosh Dastidar (supra) has also not over-ruled its earlier judgments holding that reports which may be good need not be communicated. There was no need to do so as the judgments now containing the mandate that the all good but below benchmark reports have to be communicated, have come about only because of change in instructions where no supersession is to be made and all those who may have consistently very good grading, which is the benchmark for promotion, in all the ACRs under consideration, have to be promoted as per their seniority. In the case in hand, at the time when the case of the applicant came for consideration for inclusion in the Select List of 2003, regulations 5 (3) to (7) were in position. The applicant with two good and three very good reports was indeed considered, but was superseded by those who had better credentials of very good or outstanding. It may be recalled that not only the applicant, but seven other persons equally situate, senior to the applicant, were also found unfit because their grading was good, whereas others who may be junior to them, had very good or outstanding gradings. The instructions of 2002 would not replace the statutory rules or regulations. The change in the Regulations as regards giving precedence to those who are outstanding over those who are very good, and to those who are very good over those who are good came about by virtue of amendment brought about in the Regulations vide notification dated 13.2.2006. It is only after the notification has come about that it may be debatable as to whether it would be incumbent upon the respondents to convey to the employees such reports which may be only good. It was not incumbent at all to convey good report of the applicant at the time when his case came for consideration for inclusion in the Select List of 2003. This is the basic reason given in the impugned order dated 20.10.2010 rejecting the representation of the applicant. It is a detailed and speaking order and we find no flaw in the same.
8. For the reasons as mentioned above, finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs. OA 2081/2012
8. The view taken in the aforementioned OA was reiterated in OA-2081/2011 on 4.12.2012 (Sunil Garg vs. Union of India). For easy reference the relevant excerpt of the order is extracted herein below:
13. Thus, in our view the amended regulation of 2006 will not be applicable retrospectively for drawing up a Select List for the year 2003. The amended regulation will have prospective applicability for the preparation of Select List.
14. We may advert to the next issue. The ground taken by the respondent was that amendment in the 1964 Regulations was carried out only w.e.f. 13.02.2006, therefore, the vacancies which have arisen prior to 13.02.2006 are to be filled up by the unamended Regulation of 1964 by following the ratio in the Y. V.Rangaiahs case. But, Shri Behera, learned counsel for the applicant, would submit that there was no universal law that vacancies were to be filled up by the law existing on the date when the vacancy arose. He referred to the law set by Honble Supreme Court in the case of Deepak Aggarwal versus State of Uttar Pradesh [(2011) 6 SCC 725] and more specifically referred to the para 26 which is reproduced below:-
26. We are also unable to accept the submissions of Dr. Dhawan that the conscious decision taken herein is not grounded on the relevant facts. A perusal of the Counter Affidavit filed by the respondent herein shows that the recruitment of the appellant No.1 has been made purely with the objective of looking after the technical work pertaining to pharmacies and industrial units. Therefore, the requisite qualification for the post is Degree in Chemical Engineering. Appellant No.2 has been recruited for compilation, analysis and maintenance of statistical data of the Excise Department. The basic qualification for the post of Statistical Officer is Graduation in Statistics. It appears that the two categories of posts have been eliminated as the incumbents on the said posts do not have any administrative experience. The decision was taken clearly in public interest. Since the decision has been taken after taking into consideration the view points of both the sides, it can not be said to be arbitrary or based on irrelevant considerations. We also do not find any merit in the submission of Dr. Dhawan that the amendment has been given a retroactive operation as the vacancies which arose prior to the amendment are sought to be filled under the amended rules.
15. The learned counsel for the respondents argued the applicability of un-amended regulation mainly on two grounds. Firstly, the OM dated 08.02.2002 being an administrative instruction could not supercede the 1964 Regulations. Therefore, till the Regulations were amended on 13.02.2006, the unamended Regulations were to be followed. Secondly, the amendment in the regulations was carried out w.e.f. 13.02.2006, therefore, the vacancies which had arisen prior to 13.02.2006 were to be filled up by the amended regulations of 1964 by following the ratio in the Y. V. Rangaiah versus J. Sreenivasa Rao reported in (1983) 3 SCC 284. The respondents contended that since the DPC, which met on 3rd August to 7th August, 2009 had rightly followed the unamended Regulations of 1964, there was nothing wrong in the same. Learned Counsel for the applicant would contend that the officers in the feeder grade would be assessed only with reference to a benchmark introduced in the OM dated 08.02.2002 with clear stipulation in para 5 that the same would come into effect from 08.02.2002 and the Para 6 stipulated to amend the service rules to incorporate the provisions of the OM and the power to do so was delegated to the Ministries/Departments. In the instant case the authority of OM dated 08.02.2002 as well as the cadre controlling authority of the CSS is the DOP&T. We have carefully considered the rival contentions and note that the Regulations 1964 have been amended only in the year 2006. Hence, the amended regulations cannot have retrospective effect as there is no such provision in the amendment. The un-amended regulations existing in the year 2003 was, in our views, properly used to prepare the Select List for 2003. In this context, we draw our support from Honble Apex Court decision in Y.V. Rangaiahs case. The relevant para of the judgment reads thus:-
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewise basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. [Emphasis added]
16. Though the judgment of Honble Supreme Court in Deepak Aggarwals case (supra) is the latest one, the judgment of Honble Apex Court in Y. V. Rangaiahs case (supra) holds the field. Even Honble Supreme Court has also referred in the Deepak Aggarwals case its judgment in Y. V. Rangaiahs case inter alia stating that its applicability will be in the same facts and circumstances of the case. The judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The said rule provided for annual preparation of a panel for the eligible candidates in the month of September. The statutory duty cast on the State was to be properly exercised every year. So also in the present case, the duty is cast on the respondents to prepare annual Select List of Grade-I CSS officers for the Grade-I of CSS as per Regulation 5(1) at least once every year and on the 1st July of the year. Therefore, the judgment of Honble Supreme Court in Y. V. Rangaiahs case (supra) fully covers the controversy in the present Original Application. Though the respondents for administrative reasons could not draw up the Select Panel for the year 2003 and the same could be done in the year 2009, the statutory duty is cast on the respondents to draw up the Select List for the year 2003. Subsequent amendments pursuant to the DoP&T O.M. dated 08.02.2002 incorporated by amending the CSS Regulations of 1964 in the year 2006 would not support the case of the applicant. It is also noted that belated drawal of Select List was due to the litigations pending before various courts and as per the interim directions of the Honble Supreme Court, ad hoc appointments were given to the concerned officers.
17. In view of the legally settled position that the rules existing as per CSS Regulations, 1964 to draw the Select Panel for the year 2003 for Grade-I of CSS, the un-amended Regulations would be applicable and the respondents have correctly applied the un-amended Regulations whereby the procedure of assessing the officers in the declining scale as Outstanding, Very Good and Good was prepared. The applicant having been assessed as Good and there being number of candidates who have been assessed as Very Good, the applicant could not have been considered for promotion and inclusion in the Select List of 2003 for the post of Under Secretary (Grade-I of CSS). In our considered opinion, the respondents have properly acted to draw the Select Panel. The law set by Honble Supreme Court in Y. V. Rangaiahs case also supports the principles and criteria adopted by the respondents. Thus, no interference is called for on this ground from the Tribunal.
18. We may advert to another issue raised by the learned counsel for the applicant, which relates to the downgrading of the ACRs of the applicant. His contention is that the officers assessed as Very Good having been selected and the applicant getting grading of Good was ignored, the below benchmark assessment should have been communicated to the applicant for his representation. In this context, learned counsel for the applicant has referred to the law set by Honble Supreme Court in the matter of Dev Dutts case (supra) to say that such below benchmark assessment should have been communicated to the applicant. There is clear distinction between the below benchmark grading to be communicated to the applicant for his ACRs and the assessment done by the competent Selection Committee/DPC. In case of below benchmark of ACRs, the ratio set in Dev Dutts case is applicable, but the present case is not of below benchmark case of the applicants ACRs. On the other hand, in the present case no adverse remarks have been given to the applicant. He has been assessed as Good by the DPC which is also one of the acceptable norms as per the guidelines existing then. The DPC has followed the norms and applied its discretion which cannot be examined by this Tribunal. Since the applicant meets the benchmark of Good and ACRs are not adverse, there was no need to communicate his assessment (Good) as he was meeting the benchmark but there were other candidates who have been assessed as Very Good and above by which they have marched over the applicant. On this count also, the applicant does not convince us seeking our interference in the matter.
19. Looking into the totality of facts and circumstances of the case and guided by the law set by the Honble Supreme Court in many judgments referred to herein, more specifically the ratio decidendi in Y. V. Rangaiahs case (supra), we are of the view that there are no grounds under which the Tribunal can interfere in the matter and issue any directions to the respondents. Accordingly, the applicant has failed to convince us on his grounds.
20. Resultantly, the Original Application being devoid of merits is dismissed. There will be no order as to costs.
8. In Sheshrao Jangluji Bagde Vs. Bhaiyya S/o G. Govindrao Karale & Ors (AIR 1991 SC 76), it could be viewed that any change in the rules could not be applicable to the vacancies which occurred prior to the amendment. Relevant excerpt of the judgment read as under:-
3. .The appellant applied to the Service Commission but he was not called for an interview on the ground that he acquired the postgraduate degree in Geology only in the year 1982 and he does not possess the necessary qualification of 10 years' practical experience after obtaining the post-graduate degree. The appellant filed Writ Petition No. 500 of 1983 before the High Court of Judicature of Bombay at Aurangabad contending that R. 3(1)(c) of the Maharashtra Rules does require the practical experience after obtaining the qualification of a post-graduate degree in Geology and the insistence on such experience after obtaining the prescribed academic qualification was illegal. In this connection he contended that sub-clauses (ii) and (iii) of Cl. (c) of R. 3(1) of the Rules are two independent requirements, that they have to be read disjunctively and the experience required under sub-clause (iii) need not be after possessing the basic educational qualification of a post-graduate degree in Geology. This contention was not accepted by a Division Bench of that Court and by order dated 16-11-1983 Writ Petition No. 500 of 1983.was dismissed. Against that judgment the appellant has preferred Civil Appeal No. 2146 of 1984. While granting special leave this Court in its order dated 16-4-1984 observed: "The Government will decide itself as to whether the petitioner should or should not be reverted". However it appears that petitioner was reverted on 4-7-1985 to the position of Senior Geologist. Subsequently the Government created a new post of Deputy Director,Ground Water Survey at Aurangabad. This post was sought to be filled by promotion under R. 3(1)(a) of the Rules by the Selection Committee. The appellant was selected and appointed as Deputy Director on 14-12-1986. This appointment was challenged under Writ Petition No. 2161 of 1986 on the file of Nagpur Bench of the Bombay High Court by one Bhaiyya s/o Govindrao Karale on the ground that even for promotion from amongst the Senior Geologists the candidate should possess not only a post-graduate degree in Geology but also 10 years' experience posterior to such acquisition of postgraduate degree and that since the appellant does not have the necessary experience he is not qualified to be promoted under clause (a) of R. 3(1) of the Rules. This Division Bench also took similar view as in the earlier case and by an order dated 26th June, 1987 the writ petition was allowed and the selection and promotion of the appellant as Deputy Director under R. 3(1)(a) of the Rules was also quashed. Against this judgment Civil Appeal 2166 of 1987 has been filed. When this appeal was pending the Government of Maharashtra amended R. 3(a) by substituting for the words "sub-clauses (ii) and (iii) of Cl. (c)", the words "sub-clause (ii) of Cl. (c)". Thus the requirement of 10 years' experience mentioned in sub-clause (iii) of Cl.(c) was deleted in respect of appointment by promotion. In the counter-affidavit filed by the State Government it is stated that this was done because in the case of a promotion the requirement of 10 years' experience subsequent to the acquisition of post-graduate degree in Geology was redundant and, therefore, should not be insisted upon and.it is in that view the rule was amended. However, in direct recruitment the 10 years experience after acquiring the post-graduate qualification was retained. On the interpretation of the rule prior to its 'amendment which was relevant for considering Civil Appeal No. 2146 of 1984 we are of the view that the view taken by the Aurangabad Bench does not call for any interference. Normally when we talk of an experience, unless the context otherwise demands, it should be taken as experience after acquiring the minimum qualifications, required and, therefore, necessarily will have to be posterior to the acquisition of the qualification. However, in the case of a promotion the same interpretation may not be just or warranted. It would depend on the relevant provisions as also the particular type of experience which is required. However, this need not detain us because as we have already stated the Government have now omitted the requirement of experience by the said Amendment. The Amendment was made on 16th February, 1988 and published in the Gazette on 24-3-1988. Though the Rule does not say anything about its retrospective operation there could be no doubt that it is retroactive. This amendment shall be deemed to apply to the present case as well especially when the matter is pending in this Court and this appointment is with reference to a case of promotion and appointment. It is true that at the time when the appellant was promoted the Rule had not been amended. However it may also be mentioned that the appellant is the senior-most among the Senior Geologists and even if he is to be considered again under the amended rules he shall have to be appointed and nothing is stated in these proceedings which would disqualify him even now. In the circumstances we are of the view that the appeal against the decision in Writ Petition No. 2161 of 1986 will have to be allowed though Civil Appeal No. 2146 of 1984 will have to be dismissed.
8. In P. Mahendran & Ors Vs. State of Karnataka & Ors (AIR (1990) 1 SC 405), it could be provided that unless the amendment is given retrospective effect, it cannot affect the right of a candidate who was duly qualified according to the recruitment rules which were in force at the time when the selection was made by the body authorized to make it. Relevant excerpt of the judgment read as under:-
5. It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary-intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
In Nirmal Vs. Union of India (1991) Supp 2 SCC 363), it could be viewed that even where the restructuring of a service is necessitated by the mistake on the part of the Department, such change should not be interpreted so as to prejudice those who were in service prior to the date when the change in the rule took place. In Y.V. Rangaiah and Others Vs. State of A.P. and another (AIR 1983 SC 852), it could be viewed that the available vacancies need to be filled up in accordance with the recruitment rules in vogue at the time of occurrence of the vacancy. Relevant excerpt of the judgment read as under:
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
It has been viewed by the Honble Supreme Court in Dr. Ramulu and Another etc. Vs. Dr. S.Suryaprakash Rao and Ors (1993 (3) SCC 59), the Govt. can always take conscious decision to await the amendment in the recruitment rules and fill up the available vacancies in accordance with the amended rules. Para 13 of the judgment reads as under:-
13. It is seen that since the Government have taken a conscious, decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the appellant. The ratio in the case of, Ramesh Kumar Choudha v. State of M.P. (1996) 7 SCALE 619), is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules. He then relies on paragraph 14 of the unreported judgment of this Court made in, Union of India v. .S. S. Uppal (1996) 1 UJ (SC)393 : (1996) AIR SCW 848). Even that decision is not of any help to him. He then relies upon the judgment of this Court in, Gajraj Singh v. State Transport Appellate Tribunal, (1996) 7 SCALE 31 : (1996 AIR SCW 3793), wherein it was held that the existing rights saved by the repealed Act would be considered in accordance with the Rules. The ratio therein is not applicable because the existing Rules do not save any of the rights acquired or accruing under the Rules. On the other hand, this Court had pointed out in paragraph 23 thus:
"Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of the Parliament as if it had never been passed it, (sic,) it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. Legal fiction is one which is not an actual reality and which the law recognises and the Court accepts as a reality. Therefore, in case of legal fiction the Court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w. e. f. July 1, 1989, the law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or save."
However, in the present case, it is not so. The respondents have not taken any conscious decision not to fill up the available vacancies in accordance with the existing recruitment rules, rather learned Additional Solicitor General emphasized that there is need to fill up the available vacancies at all level in accordance with the present method prescribed in the available recruitment rules.
10. In N.T.Bevin Katti Vs. Karnataka Public Service Commission (AIR 1990 SC 1233), it could be viewed that rule operates prospectively unless it is made retrospective by express provision or necessary intendment. Para 13 of the judgment reads as under:-
13. In Y. V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284: (AIR 1983 SC 852) similar question arose relating to recruitment by promotion. The question was whether promotion should be made in accordance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under (para 9 of AIR):
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade 11 will be according to the new rules on the zonal basis and not on the State wise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
The same view was taken in P. Ganeshwar Rao v. State of Andhra Pradesh, 1988 Supp SCC 740: (AIR 1988 SC 2068). Similar view was taken in A. A. Calton v. Director of Education, (1983) 3 SCC 33: (AIR 1983 SC 1143). It is a well accepted principle of construction that a statutory rules or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. See P. Mahendra v. State of Karnataka, (1989) 4 JT 459: (AIR 1990 SC 405). Besides, it is stare decisis that the employer alone are the judges to judge the conditions required to be fulfilled by their employees.
11. It has also been held by the Honble Supreme Court in Mangej Singh & others Vs Union of India & others (JT 1998 (8) SC 176) that the user Department alone are the judges of their requirements relating to employees who can be considered for promotions. For easy reference, relevant excerpt of the said judgment is extracted hereinbelow:-
5.. The tribunal has quoted the letter of the Railway Board dated 29/11/1962 to the effect that the posts (sic tests) to which Class IV staff to be promoted to Class III posts should be subjected, should be correlated to the standard of proficiency that can reasonably be expected from employees who are generally non-matriculates. The aim of the examiners should be to assess the general suitability of the Class IV employees offering themselves for promotion to Class III posts from the point of view of knowledge of English and their general standards of intelligence. There is a subsequent letter of the Railway Board of 27/2/1980 stating that ordinarily it is not necessary to test the working knowledge of English for such promotions for employees in Hindi-speaking areas. There is also an earlier circular dated 24/12/1979 which is issued by the Northern Railways to the same effect. The present circular which is a subsequent circular of the Bikaner Division of the Northern Railways dated 22/7/1982 clearly requires ability to write and read English as a qualification for promotion from Class IV to Class III posts. The policy, therefore, in relation to the tests to be administered for promotion from Class IV to Class III has varied from time to time, presumably depending upon the Railways' perception of their requirements. It is for the Railways to decide qualifications relating to promotion from Class IV to Class III. They alone are the judges of their requirements relating to employees who can be considered for such promotions. If the circular of 22/7/1982 requires working knowledge of English for promotion, the tribunal cannot fault this requirement. Also the tribunal was wrong in deciding that because an essay and a translation were required in the written examination, the test was too difficult. This again is the tribunal's assessment of the kind of examination which should have been conducted. The tribunal's assessment cannot be substituted for the assessment of the Railways. Clearly, a large number of applicants belonging to the Class IV category passed this examination and did qualify. If they had a better knowledge of English and better general proficiency than Respondents 5 to 8 who failed, the selection of better qualified candidates cannot be faulted. The appellants relied upon two judgments of this court; one in the case of 0m Prakash Shukla v. Akhilesh Kumar Shukla (para 24 and the other in Madan Lal v. State of J&K (para 9. They contended that since the respondents had appeared in the examination without protest, they cannot challenge the examination only because they have failed. We need not examine this question because in any view of the matter we do not see any reason for faulting the examination. Respondents 5 to 8 had failed in the examination and were, therefore, not qualified for the selection. (emphasis supplied)
12. It is settled position of law that the selection process or method of recruitment is prescribed in the Recruitment Rules and cannot be evolved by the recruiting agency. In Dr. Krushan Chandra Sahu & others Vs State of Orissa & others (JT 1995 (7) SC 137), it has been held thus:
33. Now, power to make rules regulating the conditions of service of persons appointed on Govt. posts is available to the Governor of the State under the Proviso to Art. 309 and it was in exercise of this power that the present Rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislative, or, for that matter by the Governor of the State, it would be open to the appropriate Government (the Central Government under Art. 73 and the State Government under Art. 73 and the State Government under Art. 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. [See Sant Ram v. State of Rajasthan, (AIR 1967 SC 1910)].
34. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homeopathic Medical Officers, as the basis of determining their suitability.
35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art. 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR):-
"We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive".
(Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200 : (AIR 1984 SC 541), it was observed (para 44, at p.562 of AIR):-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If, such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm".
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl (2) SCR 367 : (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657 : (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Art. 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
39. If it were a mere matter of transition from one service to another service of similar nature as, for example, from Provincial Forest Service to All India Forest Administrative Service, the confidential character rolls could have constituted a valid basis for selection either on merit or suitability as was laid down by this Court in Pervez Qadir v. Union of India, 1975(2) SCR 432 : AIR 1975 SC 446 : (1975) 4 SCC 318 which has since been followed in R.S. Dass v. Union of India, AIR 1987 SC 593. But in the instant case, appointments are being made on posts in an entirely new service, though the educational qualifications required to be possessed by the candidates are the same as were required to be possessed in their earlier service.
40. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities; he should have thorough knowledge of the subject concerned; he should be organised in his thoughts and he should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting Officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the SOLE basis for determination of their suitability for the posts of junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. This Court in Liladhar v. State of Rajasthan (1981) 4 SCC 159 : AIR 1981 SC 1777 pointed out (at p. 1778 of AIR) :-
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services".
(emphasis supplied)
13. In view of the aforementioned, we do not find any merit in the OA. However, in paras 16 and 17 of the counter reply, respondents themselves have taken a stand that certain amendments in the recruitment rules are proposed. Final decision in this regard may be taken as expeditiously as possible preferably within a period of six months. Nevertheless, the amended Recruitment Rules will apply only to the future vacancies.
Subject to the aforementioned observations, OA is dismissed. No costs.
( A.K.Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) sk