Central Administrative Tribunal - Delhi
Shri Vimal Chandra Pandey vs Union Of India Through on 28 January, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.2612/2008 With OA No.3393/2013 Reserved on: 07.01.2015 Pronounced on: 28.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No.2612/2008 Shri Vimal Chandra Pandey S/o Shri Raj Narain Pandey R/o 50/4, MCD Flats, Bungalow Road, Delhi. Applicant (By Advocate: Sh. M.K. Bhardwaj) Versus 1. Union of India through Secretary, Ministry of Home Affairs, Govt. of India, North Block, New Delhi. 2. Secretary, D.O.P.T. Govt. of India, North Block, New Delhi. 3. Secretary, Union Public Service Commission Dholpur House, Shahjahan Road, New Delhi. Respondents (By Advocate: Sh. R.N. Singh for Sh. R.V. Sinha) OA No.3393/2012 1. Suresh Kumar Bhandari S/o late Sh. Khim Singh Bhandari R/o EAC-16/3, Rajpura Road, Delhi Govt. Officers Flat, Delhi 54. 2. Sudhir Mahajan s/o Late Sh. R.K. Mahajan, R/o B-1/603, Janakpuri, New Delhi 58. 3. Ajay Kumar Singla s/o Sh. Parshotam Parkash, R/o D-II/5, Court Lane, Civil Lines, Behind LG Secretariat, Delhi 54. 4. Bansi Lal Sharma S/o Late Sh. Des Raj Sharma R/o H.No. 6, Kasturba Polytechnic, Residential Complex, Pitampura, Delhi. 5. J.P. Agrawal s/o Sh. Ramdayal Agrawal, R/o D II/93, I.T.I. Campus, Pusa New Delhi. Applicants (By Advocate: Sh. Nilansh Gaur) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Union of India through Secretary, Department of Personnel & Training (DOP T) North Block, New Delhi. 3. Union Public Service Commission Through its Secretary, Dholpur House, Shahjahan Road, New Delhi 110 001. 4. Govt. of NCT of Delhi through Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 5. SKS Yadav s/o late SPS Yadav, R/o 17/14, Delhi Govt. Flats, Rajpur Road, Delhi 110 054. Respondents (Impleaded as per Tribunals order dated 25.04.2014) (By Advocate: Sh. R.N. Singh for respondents and Sh. M.K. Bhardwaj for Intervener) O R D E R By Dr. B.K. Sinha, Member (A):
These cases had been heard and reserved. However, before the order could be finally pronounced, certain clarifications were deemed to be necessary for adjudication, hence, these were placed for being spoken on 07.01.2015 on which date these matters were heard and reserved for orders.
2. The Original Application bearing OA No.2612/2008 has been instituted under Section 19 of the Administrative Tribunals Act, 1985 assailing the action of the respondents in not following the IAS (Appointment by Promotion) Regulations, 1955 [hereinafter referred to as Regulations, 1955] wherein it has been provided that Members of DANICS with eight years service are eligible for appointment on promotion to IAS, thereby denying the applicant to place in the vacancies for the years 2005-07. This case was initially heard on 03.09.2013 and orders were reserved. However, when the orders were in process of being prepared, OA No. 3393/2013 (Suresh Kumar Bhandari & Others versus Union of India & Others) came to be instituted, which was listed for admission before us and notices were issued on 27.09.2013. In this case, the applicants are aggrieved by the eligibility list of DANICS officers figuring in the zone of consideration for preparation of select list of SPC officers of UT segment for induction into IAS of AGMUT cadre against the vacancies for the year 2011 and 2012 circulated vide OM dated 13.06.2012 (Annexure A-I) and 19.03.2013 (Annexure A-2) by the respondent no.1. The principal ground of this injury which the applicants in OA No.3393/13 feel to have suffered is that some of the officers, who have not yet been appointed to JAG-I, have been included in the zone of consideration for preparation of select list for induction of officers into AGMUT cadre of IAS and the officers who are still in JAG-II have been shown in the said list of eligible officers as senior to the officers, who have already been appointed to JAG-I.
3. As both these pleas run counter to one another, it was felt that arriving at a decision in OA No. 2612/2008 would tantamount to pronouncing a final verdict in respect of OA No.3393/2013 without having heard the applicant in that matter. Hence, notices were issued to the parties and both these matters were heard jointly. As the lead issue in both these OAs happen to be common and contrary to each other, these OAs are being decided by this common order. However, there are certain additional points involved in both these OAs which have been dealt with in this very order separately.
4. The relief(s) sought for by the applicants in both these OAs are as follows:-
OA No.2612/2012(i) Produce the relevant records at the time of hearing;
(ii) Quash the impugned order (Annexure A-1);
(iii) Conduct review DPC and consider the case of the Applicant in accordance with the revised eligibility list and, if found fit, to place his name in the Select List (Annexure A-2) and grant consequential benefits. OA No.3393/2013 (a) Quash and set aside the impugned eligibility lists placed at Annexure A/1 and A/2 to this OA;
(b) Direct the respondents to prepare the fresh eligibility lists for the respective years 2011 and 2012 for purpose of consideration towards induction of DANICS officers to the AGMU cadre of IAS on the basis of their position in the JAG-I only and to include JAG-II officers below the JAP-I officers, to meet the requisite number for purposes of preparation of zone of consideration only, if sufficient number of JAG-I officers having the minimum requisite length of service are not available and thereafter;
(c) To forthwith consider the applicants for induction into IAS and if found fit, appoint the applicant to the IAS w.e.f. the vacancy year they are found fit and to grant all consequential benefits including monetary and seniority benefits;
(d) Award costs of the proceedings and
(e) Pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicants and against the respondents in the facts and circumstances of the case.
5. The case of the applicant in OA No.2612/2008 is that he was initially appointed on 25.06.1979 in Grade-II of DANICS on the basis of CSE-1977. The applicant was not confirmed in service on completion of two years probation and his services were terminated on 13.09.1982. On 05.05.1989, the applicant was reinstated in service on the basis of orders of this Tribunal. In 1989, the benefit of JAG was denied to the applicant while his junior one G.C. Joshi was promoted to JAG. On 21.05.1992, the applicant was awarded minor penalty of censure on the basis of charges drawn up against him. This punishment was quashed in 1999. The applicant, on the basis of DPC held for the vacancies for the year 1994 to 1999, was promoted in June, 2000 against 1994 vacancy. The applicant submits that he made several representations seeking promotion from the date his juniors were promoted and consequent thereto a review DPC was held in the year 2002. However, the Tribunal vide its order dated 14.11.2003 passed in OA No.581/1997 filed by one A.K. Chaturvedi, directed the respondents to hold a review DPC for the earlier period. Thereafter, the applicant filed a detailed representation on 03.08.2005 contending that there were eight vacancies in the promotion quota of IAS in the AGMUT cadre in the year 2005 and his name was being shown in the eligibility list prepared at serial no.18 i.e. much below his immediate junior one G.C. Joshi whereas his seniority should have been fixed at Sl.no.6 as determined by the UPSC. The applicant, therefore, pleaded that his name may be antedated w.e.f. 17.05.1985 and he should be placed above the said G.C. Joshi in the eligibility list of promotion to IAS for the year 2005. It is the case of the applicant that after holding another DPC as per the directives of this Tribunal, the respondents issued Notification that on 22.12.2005 wherein the applicant figured at serial no.87 while V.P. Rao was shown at serial no.93 and his immediate junior G.C. Joshi at Sl. No.74. The impugned list of eligibility, which is under challenge in the instant case, was issued prior to the Notification dated 22.12.2005. In this list, the applicant figured at serial no.18 while G.C. Joshi is at serial no.6 and V.P. Rao, who had been junior to the applicant, is shown at serial no.15. The said V.P. Rao challenged the Notification by filing OA No.23/2006 wherein this Tribunal, vide its order dated 18.08.2006, quashed the said Notification dated 22.12.2005 with the following directives:-
22. Taking a cumulative view of the matter, we find that the reasons advanced and the alleged discrepancies noted by the respondents necessitating to hold review DPC are thus not tenable in law and cannot be accepted. Accordingly we have no hesitation to quash the impugned notification holding that there was total non application of mind on the part of respondents, particularly respondents 1-3 in conducting such proceedings. Consequently Notification dated 22.10.2005 is quashed and set aside with all consequential benefits. Accordingly, if the applicant comes within the zone of consideration for induction of DANICS officers to IAS, for which purposes Screening Committee meeting was held on 12.1.2006, he shall be considered, holding review of such proceedings and if selected, appointment etc. would be regulated in terms of recommendations so made by it. This exercise shall be completed within a period of three months from the date of communication of this order.
6. The applicant filed another Original Application bearing OA No. 2241/2005 claiming that his name should have been placed above the said V.P. Rao at serial no.6. It was decided by this Tribunal, vide its order dated 24.04.2007, with the following directives:-
2. Learned counsel suggested that without touching the merits and contentions raised in the present OA, OA can be disposed of directing the respondents to regulate applicants eligibility also to the next higher grade in terms of Shri V.P. Rao judgment. It is not disputed that said judgment of Sh. V.P. Rao had been implemented, though not on all aspects, as stated by learned counsel for applicant. It is further considered that applicant was senior to Sh. V.P. Rao.
3. These aspects remain un-controverted. Therefore, we have no hesitation to observe that applicant being senior to Sh. V.P. Rao, said judgment would be applicable to him also and OA is accordingly disposed of with direction to respondents to take appropriate steps and consider applicant for promotion on to IAS. This exercise should be completed within a period of three months from the date of receipt of a copy of this order. We may note that we have not examined the merits and contentions raised in the present O.A. and it remain open to applicant to agitate, if he so aggrieved.
7. The applicant subsequently filed a contempt petition No.464/2007, which was disposed of on 13.03.2008 by giving liberty to the applicant to take up the issue appropriately under law. The grievance of the applicant is that despite having filed so many cases, the respondents issued a select list on 19.12.2007 in which his name is missing despite the fact that his juniors V.P. Rao and G.C. Joshi and others have been recommended for promotion to the IAS.
8. The basic argument which the applicant has followed is that Regulation 5(2) of the Regulations, 1955 unequivocally provides that Members of DANICS with eight years service are eligible for appointment on promotion to IAS. Regulation 5(2) further provides that the Committee set up in accordance with the Regulation 3 of the Regulations, 1955 shall mandatorily consider for inclusion in the said list, the cases of the Members of the State Civil Service in the order of seniority in that Service of a number which is equal to three times the number referred in sub-regulation (1). Proviso to this very sub-regulation further provides that the State Civil Service officers in order to be eligible must have completed not less than eight years of continuous service in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. The applicant has placed reliance on communication dated 21.05.2013 issued by the respondent no.1 contending that the criteria for placing the names of officers in the select list is the seniority in the entry grade. The learned counsel for the applicant strongly submitted that this communication negated the stand of the respondents and virtually conceded the case of the applicant. The respondents have prepared the eligibility list by correctly taking the date of appointment in Civil Services and not the date of grant of JAG as claimed by them. For greater clarity, the relevant potion of the written submissions made by the applicant is extracted herein below:-
It is clear from page no.28 of the OA that the eligibility list has been prepared strictly as per the statutory rule by taking into account the date of appointment in DANICS and not grant of JAG. Since the respondents did not follow the aforesaid rules fairly in case of applicant, therefore, the applicant was denied IAS against the vacancy for the years 2005-07.
9. The applicant has further submitted that the date of eligibility for induction to IAS cannot be decided on the basis of the JAG, as the minimum requirement of service for induction into IAS is eight years continuous service, whereas for JAG this minimum requirement is thirteen years of service. This implies that a DANICS officer can become IAS even before he has been granted JAG. This also negates the contention of the respondents that the JAG is the basis for IAS. The applicant has used alternative argument that vide Notification dated 17.04.2012 (page 189 of the paper book), he has been promoted to JAG w.e.f. 01.07.1997 and, therefore, became eligible for entry into IAS against the vacancies for the years 2005-07 by following any of the criteria i.e. by seniority of JAG-I or seniority in entry grade of DANICS.
10. The applicant has relied upon the decision of the Honble Supreme Court in the case of Govind Parshad versus R.G. Parshad and Others [1994 (1) SCC 437] wherein it has been held that the eligibility criteria as prescribed under the statutory rules cannot be modified by administrative orders/policy decisions. In yet another case titled as Renu Mullick versus Union of India & Others [AIR 1994 (SC) 1152], the Honble Supreme Court has held that the eligibility for promotion has to be decided with reference to statutory rules. In the case of Rajasthan Public Service Commission versus Kalia Kumar Paliwal [(2007) 10 SCC 260], the Honble Supreme Court has held that the promotion/recruitment should be made strictly as per the recruitment rules operating in the field.
11. The applicant, on the issue of non-joinder of parties, has submitted that since he has challenged the action of the respondents taken in the year 2005 when no promotion had been made, there was no necessity to implead anyone. There were ten vacancies in promotion quota of AGMUT as on 01.01.2008 in 2007 and the said vacancies are still available. Therefore, no prejudice would be caused to anyone in case the applicant is given promotion to IAS. In this regard, the applicant has further relied upon the decisions of the Honble Supreme Court in the cases of V.P. Srivastava versus State of Madhya Pradesh and Others [JT 1996 (2) SCC 374]; A. Janardhana versus Union of India and Others [1983 (2) SCR 936]; and OM dated 13.04.1998 (para 18.4.3) that where a junior has been promoted, senior should be promoted immediately and if there be no vacancy, the junior-most officiating person should be reverted to accommodate the senior.
12. The respondent nos. 1 & 3 have filed a counter affidavit denying all the points raised in the OA. It is submitted that the respondent no.3, UPSC, had moved WP(C) No.19044/2006 against the order dated 18.08.2006 passed by the Tribunal in OA No.23/2006. The Honble High Court while declining to grant the interim stay for holding review DPC directed vide order dated 20.12.2006 that any result of the review DPC shall be subject to the outcome of the Writ Petition. Subsequently, the writ petition was dismissed vide order dated 24.11.2011 in view of the decisions of the Government of NCT of Delhi and the Union of India to implement the judgment of the Tribunal. It was also directed by the Honble High Court that this its order would not be treated as a precedent in any other case. For the sake of greater clarity, ioperative part of the order passed by the High Court is reproduced herein below:-
8. Be that as it may, given the acceptance of the judgment by the authorities concerned, there is no warrant for keeping the present writ petition pending. It is made clear that there is no adjudication on the merits of the challenge by the petitioner with regard to the findings on the jurisdiction of the petitioner which questions are left open.
9. Accordingly, this writ petition is dismissed in view of the decisions of the Government of NCT of Delhi and the Union of India making it clear that there is no adjudication on the merits of the controversy.
10. The judgment of the Central Administrative Tribunal and the present order shall not be treated as a precedent in any other case.
13. The basic argument of the respondent nos. 1 & 3 is that on receipt of the order dated 24.04.2007 in OA No.2241/2005, the issue of seniority was examined by the respondents and the applicant was not found to be senior to said VP Rao and that the applicant had never raised the issue of seniority vis-`-vis VP Rao in OA No. 2241/2005 or in MA No.421/2006. As such, the same could not be appropriately rebutted in the reply filed in the matter and applicant obtained the aforesaid order/judgment dated 24.04.2007 by making factually incorrect statement during oral submissions before this Tribunal. For the sake of greater clarity, the relevant portion of the pleadings of the respondents is extracted as below:-
The applicant in the OA No.2241/2005 is not senior to said Shri V.P. Rao as the applicant was included in the panel for promotion to Junior Administrative Grade of the service in 1992 whereas Shri V.P. Rao was included in the same panel earlier, in 1991. Moreover, the name of the applicant in the OA No.2241/2005 finds place at serial no.19 in the Civil List of DANICS officers as on 1.1.2005 whereas the name of Shri V.P. Rao is at serial no.16 and the applicant has never challenged the said Civil List of DANICS officers as on 1.1.2005. As such there is no ground or basis for the applicant to contend that he is senior to Shri V.P. Rao. Therefore, the Review Application No.161/2007 in OA No. 2241/2005 was duly filed before the Honble Tribunal seeking review of its order/ judgment dated 24.4.2007 in the aforesaid OA. This Honble Tribunal pronounced order dated 24.08.2007 in the aforesaid RA. The relevant/operational part of the order is as follows:-
this Tribunal has not recorded any finding of fact as to whether applicant indeed is senior to Shri V.P. Rao or otherwise. We have only noticed the contention raised and accordingly disposed of the OA without touching the merits and contentions rasied.In our considered view, the order dated 24.04.2007 in OA No. 2241/2005 has not been passed merely based on the statement regarding seniority. There is not even a word in the present application as to whether applicant in the OA would be the beneficiary of judgment dated 18.8.2006 or not. As long as the judgment dated 18.8.2006, which has been implemented, as noticed vide order dated 24.4.2007 remains in operation and in position, we find no justification in recalling and reviewing the said order dated 24.04.2007. In any case, respondents were directed to take appropriate steps and consider the applicant for promotion/induction to IAS. Respondents (applicant in RA) ought to have undertaken such exercise and if they are of the view that applicant in OA was not senior to V.P. Rao, rather junior to him, they could have taken an appropriate stand in the matter. Thus, finding no error on the face of the record, RA is dismissed in circulation.
14. The said VP Rao has not been made a party to the instant proceeding as he is bound to be affected by the prayer of the applicant in the instant OA. Therefore, the issue of seniority needs to be decided on merit before the prayer is allowed lest the principle of natural justice subverted. The learned counsel for the respondents has vehemently argued that the OA deserves to be dismissed on the ground of non-joinder of necessary parties alone. The other argument that the respondents have used is that under the provision of Regulation 5(2) of the Regulations of 1955, the DPC is required to consider the cases of Members of the State Civil Services who have completed eight years of service and in order of seniority in that service of a number which is equal to three times the numbers referred in sub-regulation (1). This minimum qualifying service is one of the two eligibility requirements in view of the provisions of Regulation 5(2) and the other is the seniority of officers in the cadre. The respondents have strongly submitted that as per the proviso (iii) to Regulation 5(2) of Regulations, 1955, it is the current seniority in the cadre/service which needs to be taken into account while including the officers in the zone of consideration and preparing the select list and not the seniority in the entry grade or selection grade. Therefore, the select list of the year 2005-07 has been rightly drawn up and does not need to be interfered with. The respondents have further argued against the OA both on grounds of maintainability as well as on merit.
15. The applicant has also filed a rejoinder application and submitted oral arguments as have the respondents. They have further submitted the written submissions which we have already dealt with in the earlier part of the order. In view of the written submissions submitted by them, discussing the points raised in the rejoinder would amount to unnecessarily adding to the bulk of this order.
16. In this very continuity, we take up the facts of the other case namely OA No. 3393/2013. In this case, the applicants, who are officers in Grade-I of JAG, are aggrieved by the eligibility list of DANICS officers for the years 2011-12 circulated vide OM dated 13.06.2012 and 19.03.2013 for induction of officers of AGMUT cadre into IAS. The applicants claim that they have not made any particular officer as party respondent on the ground that since some officers who have not yet been appointed to JAG-I have been included in the eligibility list for preparation of select list for induction into AGMUT cadre of IAS and officers who are still in JAG-II have been shown in the said list of eligible officers who have already been appointed to JAG-I. By such illegal inclusion of ineligible persons, the applicants position in the zone of consideration has gone lower down. The applicants, therefore, seek preparation of the eligibility list for the purpose of preparation of select list of SCS officers of UT segment for induction into AGMUT cadre of IAS against the eight vacancies for the year 2011 and five vacancies for the year 2012 by placement in eligibility list of only such officers who were holding JAG-I and not such officers who have been denied JAG-I because they are still under cloud.
17. We find that there is a co-incidence of arguments in the two OAs before us. We have already noted that in OA No.2612/2008, challenge to the order was on the ground that what was required for induction into IAs was that the person should be substantive in the State Civil List and should have completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. We have already made a record of arguments of the respondents in OA No.2612/2008 wherein a contrary view has been taken that while eight years continuous service in the post of Deputy Collector or equivalent thereto is the minimum requirement for placing an officer in the eligibility list, the said list has to be prepared as per the seniority of officers in their respective State Civil Services (page 73 of the paper book). We note that in OA No.3393/2013, the applicants have adopted these arguments and have taken it still further. In this order, we do not propose to take up the arguments of the applicants in OA No.3393/2013 where there is co-incidence in the pleadings and the arguments of the learned counsel appearing for the respondents. We only propose to touch the additional pleas. The learned counsel for the applicants has been at pains to emphasize that the expression in the order of seniority of that service as used in the Regulation, 1955 relates to the current seniority in the service of the cadre and not the seniority either in the entry grade or selection grade. An officer must fulfill both the requirements of eligibility criteria, i.e., minimum qualifying service and seniority in the service/cadre. The applicants in OA No.3393/2013 have submitted that the impugned list is erroneous only to the extent that some officers in JAG-II in DANICS have been shown senior to the officers who are in higher pay grade/pay band in JAG-I. Therefore, promotion or induction of officers on the basis of impugned list would be in contravention of Regulation 5(2) of the Regulations, 1955. The applicants have further relied upon the decision of the Delhi High Court in the case of Raj Kumar Jha versus of India [2013(200) DLT 127]. In their rejoinder application, they have referred to the reply submitted before the Chennai Bench of this Tribunal in OA No. 135/2008 wherein the respondent no.1 had taken the stand that drawing of salary for eligibility shall be the basis of current seniority. The respondents, the applicants submit, cannot approbate and reprobate simultaneously, and have assailed the MHA letter dated 21.05.2013 addressed to the UPSC for the purpose of consideration of SCS officers for induction into IAS i.e. selection grade, and not as JAG-I/JAG-II as absolutely baseless and against the Regulations. In the rejoinder application, the applicants have further submitted that one SKS Yadav, one of the affected parties, has already been impleaded in the OA in a representative capacity. The applicants have also relied upon the recommendations of the 6th CPC holding that the grade pay shall be the determining factor for seniority.
18. As mentioned earlier, one SKS Yadav has applied for and allowed to be impleaded in OA No. 3393/2013 as party respondent, who has been officiating to the post of Deputy Collector and equivalent since 28.04.1986. The impleaded party has accused the applicants of misleading the Tribunal by citing the case of Mathew Samuel versus Union of India [OA No. 135/2008) which has been dismissed by the Tribunal. Similarly, they have not disclosed the fact that MHA had filed an appeal against the order of the Tribunal in OA No. 1342/2012 wherein a prayer had been made that eligibility list of DANICS and PCS officers for promotion to IAS AGMUT cadre would be made on the basis of entry grade as Deputy Collector or equivalent post as required under the Rules for promotion to IAS and the seniority of Pondicherry Civil Services officers would be fixed below DANICS officers in a particular year of the select list. Honble High Court of Chennai had set aside the order of the Chennai Bench of this Tribunal and remanded the same back to the Tribunal with a direction to decide the matter within 30 days vide order dated 27.11.2013. The said matter is now pending before the Chennai Bench of this Tribunal. It has been further clarified to UPSC by MHA that seniority list has been prepared correctly on the basis of the rules for promotion to IAS on the basis of entry scale with eight years of regular service as Deputy Collector, and not as JAG-II & JAG-I scales of DANICS which have been given by the 4th & 5th CPC as financial upgradation to avoid stagnation to the officers. The impleaded party has further alleged that the applicants in the instant OA have submitted incorrect eligibility list while the correct one would be as annexed at Annexure M-3.
19. The respondent no.1 in the instant OA has filed a counter affidavit in which it has been submitted that DANICS officers are included in IAS based on common eligibility list. Hierarchy of promotion of DANICS officers is Entry Grade, Selection Grade, JAG-I and JAG-II. The names of DANICS officers are inserted in eligibility list by interpolating their seniority as per their date of appointment. It has been further submitted that the Regulations of 1955 do not provide that officer in the feeder grade should be a JAG level officer. It only provides a minimum service of eight years in the rank of Deputy Collector or equivalent post thereto, which is Entry Grade in the case of DANICS officers. A preliminary objection has also been raised that the applicants have claimed themselves to be senior to B.R.S. Rathore, J.S. Sindhu, R.N. Mangla, S.K.S. Yadav and Rakesh Bhatnagar in the seniority list, but none of them has been impleaded as respondent in the OA. Therefore, the OA is hit by non-joinder of necessary parties.
20. We have carefully scrutinized the pleadings in both these OAs as well that of the impleaded party S.K.S. Yadav in OA No. 3393/2013, the documents as have been submitted by them and the written as well as oral submissions of the learned counsel representing both the parties. We feel that following issues emerge to be decided by us:-
1. Whether the induction of DANICS offices to IAS under the Regulations, 1955 would be governed by the seniority prevailing as per the provisions of National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003 or only as per the requirement of 8 years continuous service as Deputy Collector as provided under provision (iii) of Rule 5(2) of Regulations, 1955.?
2. Whether the instant Original Applications are barred by non-joinder of necessary parties?
3. What relief, if any, could be granted to the applicants?
21. Insofar as the first of the issues is concerned, it is to be decided purely on a legal proposition. The two rules involved in this exercise, as stated earlier, are National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003 and All India Services (Appointment by Promotion) Regulations, 1955. As the matter pertains to induction of the State Civil Services Officers into IAS, we deem it pertinent to start with the examination of the provisions of DANICS Rules, 2003. These rules have been framed under Article 309 of the Constitution of India and have two modes of entry i.e. Rule 6 relates to initial constitution of the Service and Rule 7 relates to future maintenance of the Service. Rule 6 provides that all existing officers holding duty posts on regular basis in JAG-I & JAG-II of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Service shall be members of the Service in the respective grades. The officers of Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Administrations holding posts, on regular basis which have been encadred in the Service shall continue to be in their respective posts and grades as existed before the appointed day till they become members of the Service after their suitability has been assessed by the UPSC. The officers assessed suitable are appointed to the appropriate grades in the Service from the date of their regular appointment to such grades. Where no officer is found suitable for appointment to the Service, the encadred post held by him regularly shall be treated as ex-cadre till he is inducted into the Service or vacates the post to be reviewed.
22. Rule 7, which relates to future maintenance of the Service, provides that while 50% of the posts in entry Grade are to be filled by direct recruitment on the basis of CSE conducted by the UPSC, the remaining 50% of posts are to be filled by promotion from amongst officers holding posts mentioned in Schedule II. Rule 7(3) further provides that all the vacancies in the grades of JAG-I, JAG-II and Selection Grade are to be filled up by promotion from amongst the officers in the immediate respective lower grade with the minimum qualifying service as specified in Schedule III, as per the Chart given below:-
Sl.
No. Grade Method of Promotion Eligibility for Promotion (1) (2) (3) (4) 1 Junior Administrative Grade-I By promotion in the order of seniority subject to rejection of unfit on the recommendations of the Departmental Promotion Committee.
A regularly appointed Junior Administrative Grade-II officer with a minimum of eighteen years approved service shall be eligible to be considered for promotion to the Junior Administrative Grade-I. 2 Junior Administrative Grade-II By promotion on selection basis on the recommendations of the Departmental Promotion Committee.
A regularly appointed Selection Grade officer with a minimum of thirteen years approved service shall be eligible to be considered for promotion to the Junior Administrative Grade-II.3
Selection Grade By promotion in the order of seniority subject to rejection of unfit on the recommendations of the Departmental Promotion Committee.
A regularly appointed Entry Grade officer with a minimum of eight years approved service shall be eligible to be considered for promotion to the Selection Grade.
NOTE: The crucial date for determining the eligibility of an officer for promotion shall be the 1st January of the year in which the vacancy has occurred.
Rule 7(4)(a) further provides that promotion to JAG-II shall be made by selection subject to benchmark grade prescribed by the Government from time to time while clause (c) provides that promotion to the JAG-I and Selection Grade is to be made in the order of seniority subject to rejection of unfit on the basis of the recommendations of the DPC. Rule 9 deals with seniority. Sub-rule (2) of Rule 9 provides as under:-
(2) The seniority of the persons recruited to the Service after the initial constitution shall be determined in accordance with the general instructions issued by the Government in the matter from time to time. According to Schedule-I, the entire Service has been categorized into four grades which when adjusted within the structure of the pay scales as provided under 6th CPC, reads as follows:-
Sl.
No. Description of Scale Pay Band Grade Pay 1 Junior Administrative Grade-I (Group-A) PB-IV Rs.37,400-67000 Rs.8700 2 Junior Administrative Grade-II (Group-A) PB-III Rs.15,600-39,100 Rs.7600 3 Selection Grade-I (Group-A) PB-III Rs.15,600-39,100 Rs.6600 4 Scale after completion of 4 years service PB-III Rs.15,600-39,100 Rs.5400 5 Entry Grade (Group B) PB-II Rs.9300-34800 Rs.4800 DANICS officers are recruited in the Grade of Rs.6500-10500 and are granted higher scales by MHA in consultation with UPSC in exercise of statutory provisions of DANICS Rules. These scales are granted on the basis of the recommendations of duly constituted DPCs and consequent upon fulfillment of eligibility/statutory requirements. It is also to be noted that the posts in JAG-I & JAG-II have been provided in Part B to Schedule-I and posts in Entry Grade and Selection Grade are provided in Part-C of the Schedule.
23. From the above, it clearly emerges that the entire Service has been divided into four grades. We have already noted that the number of posts and the responsibilities with each grade has been defined. They are in ascending order. For instance, the posts under GNCTD, as per Schedule-II in the Entry Grade are the following:-
(i) Grade I of Government of National Capital Territory of Delhis subordinate Service;
(ii) Hindi Officer;
(iii) Punjabi Officer;
(iv) Urdu Officer;
(v) Senior Stenographer (Grade-I);
(vi) Personal Assistant to Deputy Commissioner of Delhi;
(vii) Reporters of the Legislative Assembly; and
(viii) Press Officers.
The posts in JAG grade, as per Schedule IV, carry higher responsibilities. The eligibility and the mode of promotion have also been defined with the length of service which is invariably on the recommendation of the departmental promotion committee. In the JAG-I, it is the rejection of the unfit while in JAG-II it is on selection basis. It is not that all persons within the selection grades are finally upgraded. It is not equivalent to in situ promotion either. Here three things are clear
(i) That persons have to conform to the eligibility criteria;
(ii) The selection is against a limited number of posts;
(iii) Each grade entails higher responsibilities.
Therefore, the inference is to be drawn that JAG-I and JAG-II are not mere posts of financial upgradation but they actually satisfy the criteria laid down for promotion. It is also to be noted that the screening process leads to the screening out of the unfit. Here, we take up two hypothetical cases involving a person who continues at the entry grade without having earned a single promotion and a person who gets elevated to JAG-I after having gone through all rungs and after having passed screening process. The question is that whether the two can be placed at par and whether they weigh the same on the weighing scale? To our mind, the two being different on the basis of screening and evaluation, to place them at the same pedestal would be gross injustice to the persons who had cleared all hurdles to prove themselves.
24. Now we take up the second of the enactment that is of the receiving party. The induction into IAS is governed by the Regulations, 1955. Here, a special provision has been made for the GNCTD as per provision 2(j) of the Regulations, 1955, which implies that this special status has been bestowed upon the Service mentioned in sub-clause (i) of Clause (j). The Delhi and Andaman and Nicobar Islands Civil Service as a pre-curser, has been mentioned in particular. This appears to be on account of the fact that Delhi at the time of framing of the Regulations, 1955 was only a Union Territory as were Goa, Pondicherry, Mizoram and Arunachal Pradesh.
25. The entire controversy hinges around Regulation 5 of the Regulations, 1955. In short, Regulation 5(1) provides that each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned and will not exceed the number of vacancies existing on the first day of January every year. Clause (2) provide as under:-
5(2) The Committee shall consider for inclusion in the said list, the cases of members of the State Civil Services in the order of a seniority in that service of a member which is equal to three times the number referred in sub regulation (1). Proviso (iii) to Regulation 5(2) provides as under:-
Provided also that the Committee shall not consider the case of a member of the State Civil Services unless on the first day of January of the year for which the select list is prepared he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. Thus, we find that the minimum eligibility criteria have three ingredients, which are as follows:-
(i) The officer is substantive in the State Civil Service;
(ii) He has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government; and
(iii) He should rank sufficiently high in the order of seniority in that service so as to be included in the list of consideration which is to be three times the number of vacancies.
26. The point of conflict is that whether the order of seniority shall be the seniority at the time of entry on the basis of CSE or it shall be in order of seniority as provided under Rule 9(2) of DANICS Rules, 2003. To our mind, the seniority of persons shall be governed by Rule 9(2) of the Rules, 2003. In other words, Rule 9(2) along with the orders issued from time to time shall govern the seniority of persons as per the requirements prescribed under Regulation 5(2) of the Regulations, 1955. This special Regulation has two parts (i) there shall be an order of seniority as per the initial recruitment; and (ii) this seniority will be determined as per the general instructions issued from time to time.
27. We find that there is clear contradiction here, as has been pointed out by the learned counsel for the applicants, that the service required in the entry grade under third proviso to Regulation 5(2) is eight years. If we take the seniority to be counted by JAG-I & JAG-II then the requirement is of 13 years. However, the contradictions have to be reconciled applying the provisions of harmonious construction encompassing the provisions of not only the Regulations, 1955 and DANICS Rules, 2003 but also the circulars issued by the Government on the subject from time to time. The applicant in OA No. 2612/2008 has placed reliance on OM of the MHA dated 21.05.2013, which states as under:-
Sub: IAS-Selection Committee Meeting for preparation of the Select List of 2011 for promotion to the IAS of UT Segment of Joint AGMUT Cadre.
Sir, In continuation to this Ministrys letter of even no dated 10.12.2012, wherein furnished the point wise information in r/o of State Civil Service (SCS) officers for their induction into IAS for the year 2011. The statement under point (vi) of the above mentioned letter may be read as :-
Statement made by S/Shri B L Sharma, Ajay Kumar Singla, Sudhir Mahajan and D N Singh may not be considered by UPSC since their contention is incorrect. The criterias for placing name of officers in select list is their seniority as Entry Grade officers and not as JAG-I/JAG-II. Instead of Statements made by S/Shri B L Sharma, Ajay Kumar Singla, Sudhir Mahajan and D N Singh may not be considered by UPSC since their contention is incorrect. The criterias for placing name of officers in select list is their seniority as Selection Grade officers and not as JAG-I/JAG-II. The letter dated 10.12.2012 has furnished the list of officers with which the applicants are aggrieved in OA No.3393/2013. This letter reads as under:-
Sub:- IAS-Selection Committee Meeting for preparation of the Select List of 2011 for promotion to the IAS of UT Segment of Joint AGMUT Cadre.
Sir, I am directed to refer to your letter No.6/10/2012-AIS dated 03.12.2012 on the above subject and to furnish the point wise information in respect of State Civil Service (SCS) officers for their induction into IAS for the year 2011:-
i) Since S/Shri P.c. Jain, Lakhpat Raj Garg & B.R. Singh had not rendered their willingness for induction into IAS for the select list 2011, there is no need to furnish their integrity certificate. However, as desired, their integrity certificates are enclosed.
ii) The name of Sh. Tarsem Kumar is correctly placed in the Eligibility List as per the original seniority below Sh. J.S. Sindhu and name of Sh. Ajay Kumar Singla is placed above Sh. D.N. Singh.
iii) (iv) (v) The correct date of birth of the officers are as under:
Name of officers (S/Sh.) Date of Birth Suresh Gupta 25.06.1958 Umesh Kumar 06.03.1959 M.K. Garg 27.07.1961
(vi) Statements made by S/Shri B L Sharma, Ajay Kumar Singla, Sudhir Mahajan and D N Singh may not be considered by UPSC since their contention is incorrect. The criteria for placing name of officers in select list is their seniority as Selection Grade officers and not as JAG-I/JAG-II. The correct eligibility list has already been annexed with the proposal.
2. It is intimated that Shri J P Aggarwal (Sl.No.15 in the eligibility list) has been exonerated of the charge. He is clear from vigilance angle.
3. UPSC is, therefore, requested to kindly convene meeting of the selection committee for the aforesaid purpose immediately.
28. Here, we have to note that there appears to be some contradiction between the two sets of instructions. What the OM dated 10.12.2012 states is that the criteria for placing the names of officers in the select list is seniority as entry grade officers and not as JAG-I/JAG-II. The second part of the statement relating to some set of officers namely B L Sharma, Ajay Kumar Singla, Sudhir Mahajan and D N Singh is also found incorrect because the criteria for placing the names of officers in the select list is their seniority as Selection Grade Officers and not as JAG-I/JAG-II officers. There is a difference between the entry grade seniority which is determined by the CSE on the basis of which their recruitment has been made. On the other hand, the selection grade seniority as provided in the Rules, 2003 implies that it will be subject to the provisions that we have already discussed and will mainly follow the hierarchy i.e. it has moved away from entry grade to selection grade and each of the step on the ladder got its elimination criteria. The question that we are compelled to ask ourselves is that we take three sets of officers. The first is that who has continued in selection grade in the entry grade even after having completed 20 years of service when his entry into the IAS is considered; the second officer reached the selection grade and has not crossed the other grades namely JAG-I and JAG-II which have similar criteria, as we have discussed above, for going up and continue in the selection grade in the 20th year of service. The third is of the officers who have crossed all grades and placed in JAG-I. We are clearly of the opinion that according seniority between categories 1, 2 & 3 will be to wipe out all the efforts which the category-3 officers have made to reach where they are. It is a conceded position that the entry grade is not a sacrosanct thing and it shall remain for the rest of service period. Wherever one is found wanting and is filtered out through a selection process, his place will be taken by another who is more enterprising and better. Therefore, we are not prepared to subscribe to this argument. However, once a person moves away from the entry grade seniority, he has to be considered in relation to that point of time where the induction into the IAS is being considered. Stepping short of the final culmination in midway does not appear to be a reasonable solution nor does it have any logic behind it.
29. Now, we come to the pleadings. In both the cases that are before us, we find different sets of pleadings are there. We have already recorded what has been pleaded in forms of affidavits and also oral submissions. When the OM dated 21.05.2013 was produced by the learned counsel for the applicant in OA No.2612/2008 in the first hearing, Sh. R.N. Singh, learned counsel for the respondents closed his case with the observation that when the government has decided, there is nothing more that he could do. Even in the re-argument, we find that this contradiction had not been reconciled specifically. The contradictions spring from the pleadings and that cannot be retracted easily. The applicants in OA No.3393/2013 have drawn the attention to the pleadings of OA No.135/2008 pending before the Chennai Bench of this Tribunal. The relevant part of the pleadings is extracted below:-
10. That though the applicant is a 1982 Pondicherry Civil Service officer and has completed eight years of substantive service in PCS, he cannot be considered for promotion into IAS in violation of sequence in the current seniority list as he does not come within the zone of consideration due to his lower position in the seniority list. Just completion of eight years of substantive service in PCS cannot be the sole criteria for promotion to the IAS. It is just an eligibility criteria. In fact there are many other PCS officers who have completed eight years of regular service and fulfill the eligibility criteria but since the zone of consideration is limited to three times the vacancies, their names could not be considered as one has to go by the sequence in the current seniority list.
11. That Regulation 5(2) of the IAS (Appointments by Promotion) Regulations, 1955 lays down only the minimum eligibility conditions in respect of SCS officers for selection to IAS. Even though a SCS officer becomes eligible for promotion after completing eight years of continuous service (regular or officiating) on the post of Deputy Collector or equivalent post, (does not recognize adhoc service), the actual turn for his promotion comes in the order of his seniority in the State Civil Service. Only the officers coming within the zone of consideration, as per Regulation 5(2) of the IAS (Appointment by Promotion) Regulations, 1955, are eligible to be considered. If an officer does not come within the zone of consideration due to his lower position in the seniority he cannot be considered for promotion.
12. That since the time of introduction of JAG Grade in DANICS/PCS, the MHA has been considering the regular promotion to JAG as the basis for determining the cut off date for reckoning seniority of DANICS & PCS while preparing the integrated eligibility list. This practice has also been endorsed by the Honble CAT, Delhi Bench from time to time. These are pleadings which had been made with full knowledge before the Chennai Bench of this Tribunal. It appears true that the decision in OA No. 135/2008 was subsequently reversed by the Honble High Court of Madras and has been remanded to the Chennai Bench of this Tribunal for reconsideration. However, the pleadings are the considered opinion which in that case the Government has made with due diligence.
30. In the instant OAs, we have found contradictions in the pleadings and that is why the cases have to be re-heard together. Since we find the contradictions persisting, the only course of action open to us is that we should adjudicate upon the legal principle, which we have tried to do under this issue.
31. Having considered all these points, as discussed above, we are of the considered opinion that the years of service and the toil involved in reaching the JAG is not to be wiped clean altogether. In the case that we accept the entry grade seniority or the seniority in the selection grade, both these categories of persons are placed at par, this would act as a strong disadvantage to the first category of persons while the other two categories shall be rewarded particularly the third category the most.
32. For reasons recorded above, we have rejected both these pleas and we find substantial merit after having examined the structure and scheme of the DANICS and the entry procedure prescribed as under Regulations, 1955 that the seniority of service as it prevails from JAG-I downwards.
33. Now, we take up the second of the issues. In respect of OA No. 2612/2008, it has been argued on behalf of the applicant that since the entry grade seniority is the determining factor he being senior to one G.C. Joshi, be placed above him. Right now, the applicant stands at serial no.18 of the eligibility list of DANICS officers out of 24 officers. If he is brought above G.C. Joshi, who stands at Sl. No.6, he will be superseding all the persons in between, and in such an eventuality the rights of these persons will get adversely affected. It goes without much elaboration that this is in violation of natural justice. The applicant in OA No.2612/2008 has relied upon a series of cases in support of his contention namely Govind Parshad versus R.G. Parshad and Others (supra) and V.P. Srivastava versus State of M.P. & Others (supra) to submit that where Government action is being challenged, impleadment of affected party is not necessary.
34. The Honble Supreme Court in the case of Ranjan Kumar etc. versus State of Bihar [MANU/SC/0297/2014 decided on 16.04.2014] has held as under:-
4. On a perusal of the orders impugned, we find that only 40 persons were made respondents before the High Court and hardly a few appointees filed applications for intervention. It is well settled in law that no adverse order can be passed against persons who were not made parties to the litigation. In this context, we may refer with profit to the authority in Prabodh Verma and others v. State of Uttar Pradesh and others [1984 (4) SCC 251], wherein a three-Judge Bench was dealing with the constitutional validity of two Uttar Pradesh Ordinances which had been struck down by the Division Bench of the Allahabad High Court on the ground that the provisions therein were violative of Articles 14 and 16(1) of the Constitution of India.
In that context, a question arose whether the termination of the services of the appellants and the petitioners therein as secondary school teachers and intermediate college lecturers following upon the High Court judgment was valid without making the said appointees as parties. Learned Judges observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects; the core defect was that of non- joinder of necessary parties, for respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers and those who were vitally concerned, namely, the reserve pool teachers, were not made parties - not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. Thereafter the Court ruled thus: -
"The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties."
The above decision is supported by a more recent judgment in the case of Balraj Singh Yadav @ Balraj Yadav versus Abhay Kumar Singh [MANU/SC/0502/2014 decided on 13.05.2014] wherein the non-joinder of parties was one of the preliminary issues. The Honble Suprme Court in this has has abided by the decision in Ranjan Kumar (supra).
35. We are guided by the simple consideration that 12 persons intervening between the applicant in OA No.2612/2008 and his immediate junior G.C. Joshi have not been heard whereas their seniority stands to be disturbed. This is not only a government action which has been challenged but also their respective places. Hence, we deem it proper that the case of these 12 persons should be heard on the subject before their respective places are disturbed.
36. Insofar as the OA No.3393/2013 is concerned, we have already decided the principle on the basis of which the induction to the IAS is to take place. The point of non-joinder has also been raised against the applicants in this case. However, the position in this case is slightly different as one of the affected persons has been impleaded as a party and his representation has been considered. Therefore, the case of the applicants in OA No. 3393/2013 appears to be at different footings from that of the applicant in OA No.2612/2008 where none of the affected parties has been made as party respondents. Hence, the two cannot be equated. OA No.2612/2008 is hit by non-joinder of necessary party, whereas in the case of OA No.3393/2013 it has been cured by impleadment of one SKS Yadav.
37. As regards the last of the issues, we have decided the legal issue first. As per the finding in the first issue, the JAG-I and JAG-II are the structure in the regular hierarchy of the DANICS and a person who is in JAG-I is superior to person who could not progress beyond the entry grade or to one who could not progress beyond the selection grade.
38. In view of the pleadings, which have widespread contradictions amongst them, we are constrained to dismiss the OA No.2612/2008 on account of non-joinder of necessary parties and the legal issue relating to the persons to be inducted into IAS stands decided. However, the connected OA No.3393/2013, in view of our findings above, is allowed with a direction that the eligibility list which has not been considered and converted into a select list, may be suitably revised in light of the conclusion arrived at by us in this order particularly in relation to issue no.1, within a period of three months from the date of receipt of a certified copy of this order.
39. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/