Punjab-Haryana High Court
Bureau Of Indian Standars (Nro) ... vs Bureau Of Indian Standards (Bis) And ... on 8 February, 2008
Author: Hemant Gupta
Bench: Hemant Gupta, Mohinder Pal
JUDGMENT Hemant Gupta, J.
1. The challenge in the present writ petition is to the promotion of respondent Nos. 4 to 13 to the post of Section Officer, as illegal, unconstitutional and in violation of the Regulations framed under Section 38 of the Bureau of Indian Standards Act, 1986 (hereinafter referred to as the `BIS Act, 1986').
2. The petitioner is a Union of the Employees of the Bureau of Indian Standards and is a registered body under the Trade Union Act, 1926. The writ jurisdiction of this Court has been invoked by the petitioner-Union aggrieved against the action of the respondent-Bureau, established under the BIS Act, 1986, in considering the Stenographers for promotion to the post of Section Officer, even though in the Regulations framed under the Act, such posts of the Section Officers are required to be filled in from amongst the Assistants.
3. In exercise of the powers conferred under Section 38 of the BIS Act, 1986, the Regulations called as `The Bureau of Indian Standards (Recruitment to Administration, Finance and other Posts) Regulations, 1988 (hereinafter referred to as the `1988 Regulations') have been framed. The posts of Section Officer, as mentioned at Serial No. 29 of the Schedule to the said Regulations, are required to be filled in to the extent of 2/3rd by way of promotion and 1/3rd by way of Limited Departmental Competitive Examination. An Assistant with 6 years service in the Grade and who has passed the Office Manual Test, is eligible for promotion to the post of Section Officer.
4. It is the grievance of the petitioner-Union that though the post of Section Officer, as contemplated under the 1988-Regulations, is to be filled in from amongst the Assistants, but by a Circular dated 4.9.2003, Annexure P-2, even the Stenographers with three years regular service in the Grade, were considered for promotion to the 13 posts of Section Officer, alongwith the Assistants with the similar experience of three years of regular service. It is pointed out here that the consideration of Stenographers for promotion to the post of Section Officer was resisted by the petitioner-Union. The representations submitted by the petitioner-Union in this respect, are at Annexures P-3 to P-6 with the writ petition. Earlier, the petitioner-Union filed a Civil Writ Petition No. 9752 of 2005 before this Court challenging the change in the service conditions vide Circular Annexure P-2. The said writ petition was disposed of by this Court on 11.7.2005 with the directions to the respondents to take a decision on the representations submitted by the petitioner-Union, within a period of 6 months. In pursuance of such directions, an order Annexure P-10 has been passed by the respondents on 3.1.2006 whereby the claim of the petitioner- Union was declined by observing that the Stenographers have been allowed to compete with the Assistants for promotion to the post of Section Officer.
5. In reply to the present writ petition, the respondents have relied upon the Bureau of Indian Standards (Recruitment to Administration, Finance and other Posts) Regulations, 2007 (hereinafter referred to as the `2007-Regulations'), wherein the Stenographers have also been made eligible for promotion to the post of Section Officer alongwith the Assistants. Apart from the said 2007-Regulations, Mr.Rathee, learned Counsel appearing on behalf of respondent Nos. 1 to 3, has relied upon communication dated 30.4.2003, Annexure R-1/5, wherein the Executive Committee of the Bureau has considered the proposals and approved the recommendations for promotion. Such communication of the Bureau was approved by the Ministry of Consumer Affairs, Food and Public Distribution, vide communication dated 17.6.2006, Annexure R-1/6. It is, thus contended that the Stenographers have been considered for promotion alongwith the Assistants after the recommendations with the Bureau, in this respect, were approved by the Executive Committee and by the Central Government. The mere fact that such 2007-Regulations were approved finally in the year 2007, is immaterial as the promotions have been made in terms of the decision of the Competent Authority and, therefore, the amendment in the Regulations was not necessary to be carried out before giving effect to the recommendations of the Executive Committee by the Bureau. Mr. Rathee has also contended that, in fact, the members of the petitioner-Union are estopped to challenge the Circular, Annexure P-2, as the members of the petitioner-Union have participated in the selection process. Since the members of the petitioner-Union were unsuccessful in the selection process, they cannot be permitted to challenge the selection process. It is also contended that the members of the petitioner-Union have taken the benefit of relaxation of the experience i.e. 6 years on the post of Assistant, which has been reduced as that of 3 years in respect of Assistants as well, therefore, they cannot be permitted to impugn the selection process.
6. On the other hand, Mr. Pawan Kumar, learned Counsel representing respondent Nos. 4 to 10, 12 & 13 has argued that the Circular dated 4.9.2003, Annexure P-2 could very well be issued by the Bureau as the same is in consonance with the Circular of the Central Government dated 13.9.1957, Annexure P-12. Since the Circular Annexure P-2 is liberalizing the conditions of promotion in the Regulations, therefore, the same cannot be said to be illegal or ultravires in any manner.
7. We have heard learned Counsel for the parties at some length. The post of Section Officer, in terms of 1988-Regulations, is required to be filled in from amongst the Assistants with 6 years service in the Grade and who have passed the Office Manual Test. Therefore, the Stenographers do not fall in the feeder channel for promotion to the post of Section Officer in the said 1988-Regulations. In Circular dated 4.9.2003, the Stenographers were also made eligible to participate in Limited Departmental Competitive Examination. The relevant clause of the Circular, Annexure P-2, reads as under:
xx xxxxxx Thirteen posts of Section Officer (UR-10, SC-01 and ST-02) are required to be filled up through the Limited Departmental Competitive Examination (LDCE) from amongst the eligible Assistants and Stenographers with three years' regular service in the grade and who have passed the Officer Manual Test.
xx xx xx xx All the eligible Assistants and Stenographers (with three years service in the grade as on 01 January, 2003) are required to intimate in writing, in the enclosed performa, to Establishment Department by 26 September, 2003 through their Department Heads whether or not they are willing to appear in LDCE. If willing, at least three places in the order of preference for the places of posting may also be indicated. However, the selected candidates can be posted in any of the Ros/BOs/HQs wherever the vacancies are available. The options for appearing ini the LDCE received after 26 September, 2003 shall not be entertained.
xx xx xx xx.
The Instructions dated 13.9.1957, Annexure P-12 have been relied upon by Mr. Pawan Kumar, learned Counsel for respondent Nos. 4 to 10, 12 & 13. The relevant portion of the said Instructions reads as under: xx xx xx xx
(ii) Whether the intention of the alteration is to liberalize the rules in favour of the Government servants, there may be no objection to giving effect to the intention by means of an executive order in advance of the formal amendment of rules. But the formal amendment should invariable be made as soon as possible.
8. A perusal of Clause (ii) of the 1957 Instructions contemplates the liberalization of Rules in favour of the Government Servants by the executive order pending formal amendment. As per the learned Counsel for the respondents, the Circular Annexure P-2 is, in fact, liberalization of Rules and, therefore, the Stenographers could be made eligible to compete for promotion to the post of Section Officer. However, we do not find any merit in the said argument. So far as the condition of relaxation of experience from 6 years to 3 years is concerned, it can be said that it was liberalization of the Rules, but to the extent the Stenographers have been made eligible to compete for the promotion to the post of Section Officer, the same, by any stretch of imagination, cannot be said as liberalization of the Rules. The new promotion channel was being provided to the Stenographers at the costs of the Assistants. Therefore, the executive instructions at Annexure P-2 could not be issued which contravene the statutory Regulations. Thus, the Instructions, making eligible the Stenographers for promotion to the post of Section Officer, being contravention to the Regulations, are illegal, beyond jurisdiction. Therefore, the promotions made on the basis of the said Circular cannot be sustained.
9. The other question, which now arose, is whether the petitioner- Union is estopped to challenge the promotions made in pursuance of the Circular Annexure P-2. The Rule of estoppel, which has been sought to be extended by the respondents, does not come to the help of the respondents. The challenge by the petitioner-Union is to the executive order passed in contravention of the statutory Regulations. There could not be any estoppel against the statute. If the statutory Regulations do not permit the Stenographers to compete for the post of Section Officer, the Rule of estoppel cannot be raised against the members of the petitioner-Union as there cannot be any estoppel against the statute. There cannot be any waiver of rights of the members of the petitioner-Union vested with them on the basis of the Regulations. Therefore, the plea of estoppel sought to be raised against the members of the petitioner-Union cannot be raised, as any action taken in contravention of the statutory provisions, is untenable and illegal.
10. The other argument that the members of the petitioner-Union have taken benefits of the Rules and, therefore, the members of the petitioner-Union are estopped to challenge the selection process, is again misconceived. In terms of the Circular Annexure P-12, dated 13.9.1957, there could be liberalization of the Rules in favour of the Government servants. Therefore, the Circular Annexure P-2 is not within the scope of the authority of the Bureau. The participation in the promotion process and appearing in the test by competing with wholly ineligible candidates cannot be used against the petitioner-Union, it being in contravention of the statutory Regulations.
11. Faced with the situation, learned Counsel for the respondent Nos. 4 to 10, 12 & 13 has raised an argument that the writ petition filed by the petitioner-Union itself is not maintainable. Reliance is placed on a Division Bench Judgment of the Mysore High Court, reported as Government Press Employees' Association, Bangalore v. Government of Mysore AIR 1962-Mysore-25. However, the said judgment is not applicable to the facts of the present case. In the aforesaid case, the petitioner-Union was challenging the order of promotion of certain employees of the Government Press and sought promotion of the employees mentioned in the first column of the Annexure attached with the said writ petition. The Division Bench found that in the writ petition, the grievance of the employees-Corporation is of the individual grievances of several employees who claim that they should have been promoted in preference to certain other named employees. Therefore, the writ petition claiming promotion of individual members of the Union was not found to be maintainable. But in the present case, the challenge by the petitioner- Union is to the issuance of Circular Annexure P-2 being in contravention with the statutory Regulations. May be, the beneficiaries after setting aside the said Circular would be members of the petitioner-Union, but the fact remains that the challenge is to the Circular Annexure P-2 being contrary to the statutory Regulations. Therefore, it was not an individual cause which was being espoused by the petitioner-Union. It is the collective cause of all the members of the Union to seek setting aside of the Circular Annexure P-2, which was issued in contravention of the statutory Regulations. Therefore, we do not find any merit in the arguments raised by learned Counsel for respondent Nos. 4 to 10, 12 & 13. In the facts of the present case, the petitioner-Union has the locus standi to invoke the writ jurisdiction of this Court to challenge the legality and validity of the Circular Annexure P-2.
12. It is undisputed that the Stenographers and Assistants both became members of the feeder cadre to have eligible for promotion to the post of Section Officer under 2007-Regulations. No retrospective effect is reflected to have been given to the said Regulations. Therefore, we are of the opinion that, in fact, framing of 2007-Regulations supports the claim of the petitioner-Union that the Stenographers could not be permitted to compete for the post of Section Officer in terms of the Circular Annexure P-2.
13. In view of the above, we allow the present writ petition and issue the following directions:
I. The Circular dated 4.9.2003, Annexure P-2 is illegal and void to the extent that it makes the Stenographers eligible to appear in Limited Departmental Competitive Examination for promotion to the post of Section Officer;
II. The promotion of respondent Nos. 4 to 13 (Stenographers) to the posts of Sections Officers is set- aside since the promotion to the post of Section Officer is not contemplated through Stenographers;
III. The respondents are directed to revise the result of the Limited Departmental Competitive Examination held in pursuance of the Circular dated 4.9.2003, Annexure P-2, and fill up the posts of Section Officers in accordance with the merit;
IV. If any of the Assistants is liable to be promoted in view of the revised result, he shall be entitled to notional fixation of pay & seniority etc., but shall not be granted any arrears of salary;
V. The necessary action to revise the merit list be taken within a period of 2 months from the date of receipt of a copy of this order. With the aforesaid directions, the present writ petition is disposed of.