Central Administrative Tribunal - Delhi
Abhishek Kumar vs Employees Providend Fund Organisation ... on 12 May, 2026
1 O.A No. 2580/2024
Item 10 (C-3)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2580/2024
Reserved on : 21.04.2026
Pronounced on : 12.05.2026
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
1. ABHISHEK KUMAR
S/O SH. DULAL DAS
AGED ABOUT 37 YEARS
R/O- NAGENDRA NAGAR, LANE NO. 03, MITHAPURA, BELA ROAD,
MUZAFFARPUR, BIHAR-842 002
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA.
2. NEHA MISHRA
D/O GIRIJA SHANKER MISHRA
AGED ABOUT 37 YEARS
R/O-538-2ND/694, TRIVENI NAGAR-III, LUCKNOW
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-LUCKNOW
3. OMENDRA SINGH
S/O SHIV RAM SINGH
AGED ABOUT 41 YEARS
R/O- LUCKNOW ROAD, BELITA CHAND, HARDI
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-LUCKNOW
4. PRAKASH CHANDRA
S/O PARAS NATH PRASAD
AGED ABOUT 36 YEARS
R/O- CHHATAUNI, BADHAI TOLI, MOTIHARI EAST CHAMPARAN, BIHAR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-GORAKHPUR
5. ABHAY RAJ YADAV
S/O MGAT NARAYAN DARGAHI YADAV
AGED ABOUT 35 YEARS
R/O- BAREILLY
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-BAREILLY
6. SHUBHAM RASTOGI
S/O LT. SH. RAJ KUMAR RASTOGI
AGED ABOUT 34 YEARS
R/O- F-89, SECTOR-41, NOIDAPRESENTLY WORKING AS SSA AT
REGIONAL OFFICE-NOIDA
2026.05.13
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7. SHAILESH KUMAR
S/O RAMESH CHANDRA
AGED ABOUT 32 YEARS
R/O- 1A/55, BARRA 6, KANPUR PRESENTLY WORKING AS SSA AT ZONAL
OFFICE-KANPUR
8. ANUJ KUMAR MAURYA
S/O ANAND KUMAR MAURYA
AGED ABOUT 32 YEARS
R/O- LACHHIRAMPUR, AJAMPUR, HIRAPATTI, UP
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-GORAKHPUR
9. VIPIN KUMAR YADAV
S/O KOMAL SINGH
AGED ABOUT 39 YEARS
R/O- VILL PATHAKPURA, POST-KURSENA, DISTT. ETAWAH
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-AGRA
10. DILEEP KUMAR
S/O DHANESHWAR PRASAD MANDAL
AGED ABOUT 36 YEARS
R/O- KHAWASPUR MILIK, BHAGALPUR, BIHAR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-VARANASI
11. RAJ KUMAR MEENA
S/O RAM KISHORE MEENA
AGED ABOUT 37 YEARS
R/O- VILL-DULAVA, DAUSA RAJASTHAN
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-AGRA
12. VIJAY YADAV
S/O ASHOK YADAV
AGED ABOUT 40 YEARS
R/O- PIPRAGHAT, NEAR DILKUSHA COLONY, LUCKNOW
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-LUCKNOW
13. PRADEEP KUMAR SHARMA
S/O SURESH CHANDRA SHARMA
AGED ABOUT 39 YEARS
R/O- 498, ALAMNAGAR, SITAPUR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-LUCKNOW
14. BRIJESH KUMAR MEENA
S/O BHENDRA KUMAR MEENA
AGED ABOUT 34 YEARS
R/O- 13-63/2, IIND FLOOR, VAISHNO DHAM COLONY, KANKARKHEDA,
MEERUT
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE MEERUT
2026.05.13
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15. KUNAL AZAD KUMAR
S/O RAMAYAN PRASAD
AGED ABOUT 35 YEARS
R/O- VILL PATNA CITY, PATNA, BIHAR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-VARANASI
16. DAMODAR LAL MEENA
S/O CHANDRA PAL SINGH MEENA
AGED ABOUT 39 YEARS
R/O- H.NO. 4343, GHAT GATE, HUZURI TOPKHANA, JAIPUR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
17. MOTI LAL MEENA
S/O PRABHAT MEENA
AGED ABOUT 35 YEARS
R/O- VILL BHAONYA WALA, P.O. MOHAPURA, TEH-BASSI, JAIPUR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
18. RAJESH KUMAR
S/O LT. KANHAIYA LAL
AGED ABOUT 41 YEARS
R/O- S-195, TJ CAMP, NEAR SHIV MANDIR, GIRI NAGAR, KALKAJI, NEW
DELHI
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
19. ANSHRAJ MEENA
S/O BADRI
AGED ABOUT 36 YEARS
R/O- SAWALYAWALA, ANANTPURA, JAIPUR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-AGRA
20. ASHWANI KUMAR MEENA
S/O LAXMAN RAM MEENA
AGED ABOUT 40 YEARS
R/O- VILL ANANTPURA, KARAULI, RAJASTHAN
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
21. MANOJ MEENA
S/O RAJENDRA MEENA
AGED ABOUT 40 YEARS
R/O- 13-6/1204, ECOVILLAGE-1, GREATER NOIDA WEST
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
22. RAM KRISHNA MEENA
S/O HAZARI LAL MEENA
AGED ABOUT 38 YEARS
R/O- VILL GHIR, TEHSIL-BASSI, JAIPUR
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
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23. NANDESH KUMAR MEENA
S/O BANSI DHAR DAS MEENA
AGED ABOUT 34 YEARS
R/O- INAM WALI DHANI, MANOHARPUR, SHAHPURA, JAIPUR RAJASTHAN
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
24. SOUBHAGYA SHALI MEENA
S/O KISHORI LAL MEENA
AGED ABOUT 35 YEARS
R/O- VILL GUMANPURA, TEH SIKRAI, DISTT DAUSA, RAJASTHAN
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
25. NARENDRA KAWAT
S/O HANS RAJ MEENA
AGED ABOUT 37 YEARS
R/O- PLOT NO. 435, FLAT NO. 402, NITIKHAND-I, INDIRAPURAM,
GHAZIABAD
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
26. VIKAS GUNAWAT
S/O RAM KHILADI MEENA
AGED ABOUT 41 YEARS
R/O- E-41, SARASWATI NAGAR, GAITORE MALVIYA NAGAR, JAIPUR
RAJASTHAN
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
27. SATISH CHANDRA MEENA
S/O RAM KUMAR MEENA
AGED ABOUT 43 YEARS
R/O- QUARTER 7, NIDHI KUNJ COLONY, AGRA
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-AGRA
28. DINESH KUMAR
S/O RAMA SHANKAR RAM
AGED ABOUT 40 YEARS
R/O- H.NO. 122, LAXMI NIWAS, MANSAROVAR PARK-III, LALKUAN,
GHAZIABAD
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
29. HARENDRA SINGH MARTOLIA
S/O LAXMAN SINGH MARTOLIA
AGED ABOUT 34 YEARS
R/O- SURING PITHORAGARH, UTTARAKHAND
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-BAREILLY
30 .VISHRAM MEENA
S/O RAM RATAN
AGED ABOUT 39 YEARS
R/O- PLOT NO. 435, FLAT NO. 202, NITIKHAND-I, INDIRAPURAM,
GHAZIABAD
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-NOIDA
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Item 10 (C-3)
31. LOKESH CHANDRA MEENA
S/O KISHORI LAL MEENA
AGED ABOUT 35 YEARS
R/O- VILL MUNAPURA, MANDWAL, DAUSA RAJASTHAN
PRESENTLY WORKING AS SSA AT REGIONAL OFFICE-AGRA
... APPLICANTS
(By Advocate : Mr. Abhishek Kr. Tiwari with Mr. Tushar Bawa)
Versus
1. EMPLOYEES PROVIDENT FUND ORGANIZATION
THROUGH ITS CENTRAL PROVIDENT FUND COMMISSIONER
14, BHIKAJI CAMA PLACE, NEW DELHI-110066
2. THE CENTRAL BOARD OF TRUSTEES
THROUGH ITS MEMBER SECRETARY AND CENTRAL PROVIDENT FUND
COMMISSIONER
EMPLOYEES PROVIDENT FUND ORGANIZATION
MINISTRY OF LABOUR, GOVT. OF INDIA
BHAVISHYA NIDHI BHAWAN,
14, BHIKAJI CAMA PLACE, NEW DELHI-110066
3. THE CENTRAL PROVIDENT FUND COMMISSIONER
EMPLOYEES PROVIDENT FUND ORGANIZATION
14, BHIKAJI CAMA PLACE, NEW DELHI-110066
... RESPONDENTS
(By Advocate : Mr. Ajit Sharma with Mr. Kanchan Kumar for R-2 and Mr. P.
K. Singh)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A) :
The instant OA had been filed originally by 48 similarly placed applicants under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-
"A To declare the applicants eligible in terms of OM dated 25.03.1996 and, in accordance with the judgment of the Hon'ble Supreme Court in Smt. Sadhana Khanna 2008 (1) SCC 720 and allow the Applicants to participate in the in the Limited Departmental Competitive Examination for promotion to the post of Section Supervisor, and/or;
2026.05.13 MAYA B TARAGI 16:52:45+05'30' 6 O.A No. 2580/2024 Item 10 (C-3) B. To Quash the Circular/Notification dated 07.06.2024 which is not in compliance of the orders of the Hon'ble Supreme Court and non-compliance of the DOP&T O.M dated 18.03.1988, 23.10.1989 and 25.03.1996. and, not in accordance with the judgment of the Hon'ble Supreme Court in Smt. Sadhana Khanna 2008 (1) SCC
720. C. To direct the respondent No. 1 to amend the Recruitment Rules 1992 (amended in 2006, 2017 and 2019) in accordance with the OM No. AB. 14017/12/87-Estt. (RR) dated 18.03.1988, OM No. AB-14017/12/87-Estt. (RR) dated 23.10.1989 and OM No. AB-14017/12/88-Estt. (RR) dated 25.03.1996 and, in accordance with the judgment of the Hon'ble Supreme Court in Smt. Sadhana Khanna 2008 (1) SCC 720.
D. To call for the records from the respondent, and/or;
E. To allow this OA with cost and/or;
F To pass such other and/or further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The factual matrix of the case as per the counsel for the applicants is that the applicants are working as Social Security Assistants (SSA) in EPFO and are challenging the action of the respondents in not permitting them to participate in the Limited Departmental Competitive Examination (LDCE) for promotion to the post of Section Supervisor. Their grievance arose from EPFO Circular dated 07.06.2024 whereby Limited Departmental Competitive Examination (LDCE) was notified for filling up vacancies up to 31.12.2024 and the cut-off date for determining eligibility was fixed as 01.01.2024 requiring completion of 9 years of regular service in the cadre of SSA. The result was declared on 08.01.2014 and the applicants joined service between 2014 to 2016 after completion of formalities. It is the case of the applicants that earlier Recruitment Rules prescribed eligibility of 3 years which was later amended to 5 years and thereafter to 9 years.
However, due to staggered joining, some candidates of the same batch who 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 7 O.A No. 2580/2024 Item 10 (C-3) joined in 2014 became eligible, whereas those who joined in 2015-2016 became ineligible as on 01.01.2024. The counsel for the applicants contended that such delay in joining was due to respondents and therefore they cannot be penalized. He further contended that juniors are being permitted while seniors are excluded, which is arbitrary. The counsel relied upon DoPT OMs dated 18.03.1988 and 25.03.1996 and judgments including R. Prabha Devi & Others vs. Govt. of India, Through Secy., Ministry of Personnel and Training, Administrative Reforms and others, Sadhna Khanna vs. UOI etc., to contend that seniors should be considered along with juniors even if short of eligibility. Aggrieved, the applicants preferred representation dated 11.06.2024 however, no relief was granted to them which led them to file the present O.A.
3. The MA No. 2554/2024 was heard by the Coordinate Bench of this Tribunal on 15.07.2024 and all the 48 applicants were allowed to sit in the Limited Departmental Competitive Examination (LDCE) notified vide Notice dated 07.06.2024 for the post of Section Supervisor to save them from grave prejudice and irreparable loss. However, it was directed that the result of the applicants shall be kept in sealed cover and not to be disclosed without the leave of the Court. Later, when the matter was heard by us on 02.04.2026, the counsel of the applicants had submitted that out of the 48 candidates, only 31 had qualified in the LDCE and 17 had failed. He had further stated that 17 applicants who had failed had no cause of action to pursue the case and only 31 applicants who had qualified wish to press this OA. Accordingly the counsel of the applicants was advised to file an amended Memo of Parties.
2026.05.13 MAYA B TARAGI 16:52:45+05'30' 8 O.A No. 2580/2024 Item 10 (C-3)
4. Later, the counsel of the applicants submitted a compilation of decisions and judgments in favour of his case which are listed below :-
(i) Sadhana Khanna vs. UOI - OA No. 1271/1993 dated 24.09.1999 -
Coordinate Bench of this Tribunal - paras 5 & 6 of which are quoted below :-
"5. We have considered the matter carefully. It is to meet just such situations on noticed above, that DoPT issued OM dated 19.7.89, soon after the pronouncement of the judgment by the apex Court in Prabha Devi's case (supra), such that where Juniors who had completed the eligibility condition ware considered for promotion, than seniors were also to be considered, even if they had not completed the eligibility period. There is merit in the stand of applicant that this on dated 19.7.89 issued by PAT witch is the nodal ministry in regard to service matters of Central Govt. employees, calling upon all Ministries Deptts. to insert a Note to the above effect, was in the nature of a direction and the aforesaid OM has to be read along with the RRs and applicant cannot be penalised for non-consideration of her case for promotion along with her junior, merely because respondents did not insert the foresaid Note in the RRs. In this connection, Shri Gupta has invited our attention to the Hon'ble Supreme Court's judgment in Balkishan Vs. Delhi Admn. 1989(6) SLR 35 in which It has been held :-
"In service there could be only one more for confirmation or promotion of persons belonging to the some cadre. No junior shall be confirmed or promoted without considering the case of his senior. my deviation from this principle will have demoralizing effect in the service apart from being contrary to Article 16(1) of the Constitution."
6. In the facts and circumstances noticed above, this Of Succeeds and is allowed to the extant that respondents should consider applicant's case for being promoted as Section Officer with effect from the date her immediate juniors were promoted. In case applicant is so promoted, she will be entitled to all consequential benefits admissible to her in accordance with rules and instructions and judicial pronouncements, including consideration for further promotions.
(ii) UOI vs. Sadhana Khanna - (2008) 1 SCC 720. Paras 9 and 11 of which are reproduced below :-
2026.05.13 MAYA B TARAGI 16:52:45+05'30' 9 O.A No. 2580/2024 Item 10 (C-3) "9. The Tribunal allowed the OA by its order dated 24.941999, In the said OA it was held that the Department of Personnel and Training had issued an office memorandum dated 19-7-1989 soon after the decision of this Court in R. Prabha Devi v. Govt of Initial stating that where the juniors had completed the eligibility requirement of promotion then their seniors will also be considered even if they have not completed the eligibility period.
11. It may be noted that the respondent was offered appointment vide letter dated 5-7-1983 which is after 1-7-1983 from which the eligibility was to be counted. Hence, it is the department which is to be blamed for sending the letter offering appointment after 1-
7-1983, In fact, some of the candidates who were junior to the respondent were issued letters offering appointment prior to 1-7- 1983, Hence it was the department which is to be blamed for this. Moreover, in view of the office memorandums of the Department of Personnel and Training dated 18-3-1988 and 19-7-1989 the respondent was also to be considered, otherwise a Very incongruous situation would arise, namely, that the junior will be considered for promotion but the senior will not."
(iii) Mrs. Garima Singh vs. UOI & Ors. - OA No. 3278/2010 and batch dated 09.05.2021. The Full Bench vide Paras 18, 20 and 22 held as under:-
"18. On a pure and simple question of law, the respondents endeavor to show that have been be of no meaning instructions/guidelines/OMs have no statutory character, and` unless such instructions etc may not and consequence. The respondents have a plethora of case law to cite in support of their contention as mentioned above. We may make a mention of some judicial precedents relied upon by the respondents on that behalf. In T. N. Housing Board v N. Balasubramanium & others [(2004) 6 SCC 851, it was held that executive instructions providing that where feeder categories carried different pay scales and no quota was fixed for promotion, then persons in higher pay scales should be given preference, and that executive instructions could not be applied to give preference to Chief Head Draftsmen/Head Draftsmen with less than the prescribed minimum length of service over eligible Junior Engineers. Briefly, the facts of the case are that under provisions of T.N. State Housing Board Regulations framed under T. N. State Housing Board Act, 1961, 25% of the posts of Assistant Executive Engineers in the Housing Board were to be filled up from amongst Junior Engineers with minimum of ten years of service, and Chief Head Draftsman/Head Draftsman with minimum of fifteen years of service. Panel for such promotions was prepared in which names of the respondent-Draftsmen were not included due to lack of requisite length of service. The High Court held that the executive order dated 13.10.1984 would be applicable and directed the Board to create supernumerary posts to promote the 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 10 O.A No. 2580/2024 Item 10 (C-3) respondents as Assistant Executive Engineers. Referring to regulation 28 of the Regulations, the said executive order provided that where no quota was fixed for feeder categories carrying different pay scales, persons in higher pay scale were to be given preference. The order of the High Court was challenged in the Supreme Court which held that for Junior Engineers and Draftsmen, eligibility criteria had been laid down in the Regulations. Admittedly, the said eligibility criteria was mandatory in nature and the validity thereof had not been questioned. It was held that once, the eligibility criteria was considered to be a pre- requisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable, and that once, it was held that relying on the basis of the executive instructions in terms of regulation 28(a), the Draftsmen who had been getting higher salary were to be given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose, which consequence would lead to an absurdity, and, therefore, the executive instructions could not be given effect to. In R. S. Sharad & another v Union of India & others [WP(C) No.2178 of 1996, decided on 8.5.2008, 4 reported as 152 (2008) Delhi Law Times 427 (DB)), a Division Bench of the High Court of Delhi held that administrative instructions issued by the Government could not supersede the rules unless the instructions are incorporated in the rules. There would be no need to refer to all the judgments relied upon by the respondents, as there cannot be any dispute that the executive instructions, particularly when the same may be against the rules, cannot be applied, the same have to be ignored. In the case in hand, however, we are of the considered view that the judgments referred to above and others which have been relied upon by the respondents, may not be applicable. DOP&T OMs dated 18.3.1988, 19.7.1989, 25.3.1996 and 24.9.1997 can well be considered as if issued by the executive of the Union in the legislative powers conferred upon it by Article 73 of the Constitution. They deal with uncovered issues, i.e., a situation where a junior may be considered for promotion over and above his seniors, and where a senior may not have the eligibility criteria. Such a situation is not covered under the Rules of 1962. The OMs may not specifically make a mention of Article 73, but it is too well settled a proposition of law that non- mentioning of the provision or making mention of wrong provision would not make any difference. The real test is that there should be a power to do what has been done by the legislature or the executive. There is a mandate in the OMs that all cadre controlling authorities should insert a Note in the respective recruitment rules to the effect that whenever a junior who has completed the requisite eligibility service is considered for promotion, then all his seniors should also be considered. The directive issued by the DOP&T has admittedly been complied with by many cadre controlling authorities by inserting the Note in the respective recruitment rules, and wherever such Note has not been incorporated, the Government has been freely making resort le exemption or relaxation in the rules as regards eligibility. While dealing with the subject of relaxation involved in the present case, we will make a detailed mention as regards the consistent 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 11 O.A No. 2580/2024 Item 10 (C-3) stand of the Government in that regard. At this stage, we may only refer to the note dated 14.11.2008 available on records, wherein it is clearly recorded that DOP&T has been adopting a consistent policy of allowing up to a maximum of two years relaxation in qualifying service in promotions in all services, and that UPSC too has been accepting this from time to time in accordance with DOP&T OM dated 25.3.1996. It has also been mentioned that OM dated 24.9.1997 has been issued by way of clarification on the basis of judgment of the Apex Court in R. Prabhadevis case (supra), and that from a perusal of the judgment of the Supreme Court and OM aforesaid, it would be clear that it is neither a direction of the Supreme Court nor the intent of the DOP&T to supersede its earlier circular dated 25.3.1996, and that in fact, DOP&T has consistently adopted the policy of allowing relaxation of up to two years of service as qualifying service in case of promotions in all services. The applicant has indeed brought on record rules of at least two services where the note as ordained above in the OMs aforesaid has been inserted. The applicant has also brought on record some orders giving relaxation in rules as regards eligibility where juniors were to supersede seniors. Article 73 of the Constitution reads as follows:
73. (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws, and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement :
provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution Perusal or provisions contained in Article 73 would manifest that the power of the Union shall extend to matters with respect to which Parliament has power to make laws. By virtue of clause (1)(a), the executive power is co-extensive with the legislative power of the Union Parliament. It has been held by the Supreme Court that under the Constitution the functions of the executive are not confined to the execution of laws made by the legislature already in existence. Articles 73 and 162 indicate that the powers of executive of the Union and of a State are co-
extensive with the legislative power of the Union and of a State, as the case may be. While the executive cannot act against the provisions of a law, it does not follow that in order to enable the executive to function relating to a particular subject, there must 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 12 O.A No. 2580/2024 Item 10 (C-3) be a law already in existence, authorizing such action. Reference in this connection may be made to judgments of the Hon'ble Supreme Court in Naraindas Indurkhyav State of Madhya Pradesh & others [AIR 1974 SC 1232] and M/s Bishamber Dayal Chandra Mohan, etc. v State of Uttar Pradesh & others (AIR 1982 SC 32). Whereas, the first judgment deals with Article 162 of the Constitution, which is as regards the extent of executive power of State, the second judgment referred to above deals with Article 73, which is as regards the extent of executive power of the Union. In M/s Bishamber Dayal (supra) it has been held that the State in exercise of its executive power is charged with the duty and responsibility of carrying on the general administration of the State, and so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed, and further that if there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions of instructions, until the legislature makes a law in that behalf. This Tribunal in the matter of Sadhana Khanna (supra) has already held that the OMs which are directives, have to be read with the rules, and the judgment, as mentioned above, has been confirmed by the highest Court of the land. This Tribunal, in view of the very instructions subject matter of dispute which, il was held by the Tribunal, are to be read along with the recruitment rules, so confirmed by the Apex Court, may not have much choice but for to follow the said precedence. We may however, give additional reasons as to why the instructions relied upon have to be read along with the rules. In addition to that these OMs are directives and even though Article 73 of the Constitution may not have been specifically mentioned, the same can be treated to have come into existence by powers exercised by the executive under Article 73, the first DOP&T OM dated 18.3.1988, it may be recalled, came into being immediately after the decision of the Hon'ble Supreme Court in R. Prahadevils case (supra). The same came into being to take care of seniors so that they may not be superseded by their juniors because they were not having the requisite eligibility criteria provided under the rules. The said criteria vide OM dated 25.3.1996 is to be reduced only by two years. The Government has slept over the matter insofar as, the very department, ie, DOP&T, which is the nodal agency for all Government employees, for a period of almost two decades. Meanwhile, as mentioned above, the Note came to be inserted in some other services, whereas in other services relaxation in rules has been given. In the circumstances as mentioned above, if, therefore, the applicant was to seek a writ in the nature of mandamus directing the respondents to insert the Note in the service rules, could there be any meaningful resistance to such a writ by the Government? We are conscious that to make laws is in the exclusive domain of the legislature, but the present case is not where the applicant may have sought directions to be issued to the Government to amend the rules. It would have been simple case to act upon the decision already taken by the Government so as to amend the rules. The decision to amend the rules having already been taken, the applicant would have been well within her 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 13 O.A No. 2580/2024 Item 10 (C-3) right to seek a mandamus directing the respondents to insert the Note in the Rules of 1962. We may refer in that regard to a recent decision recorded by us in the matter of Dr. Balram Airan & others v All India Institute of Medical Sciences & others (OA. No. 1080 of 2009 decided on 24.9.2009) Brief facts of the said case reveal that there had been a long pending demand of the faculty members of AIIMS and other centrally-managed institutions to increase their age of retirement. Deliberations in that regard spanned over a considerable time resulted into a cabinet decision to increase the age of retirement of faculty members from 62 to 65 years The directive of the Government would, however, be effective only if the regulations providing age of superannuation were to be amended. This exercise was to be gone into by the governing body of AIIMS. Despite the fact that the Cabinet had approved the increase in age of superannuation from 62 to 65 years on 5.6.2008, the Institute would not incorporate necessary amendment in its regulations. The faculty members became apprehensive that if necessary amendment was not brought about in the concerned regulations, they may have to quit on attaining the age of 62 years. The applicant in the case aforesaid, of course, made a grievance as regards a faculty member who was given extension in age before the Cabinet decision was taken to enhance the age of retirement, but he was joined by the association of doctors, who claimed a direction to be issued to the respondent Institute to forthwith amend the concerned regulations to provide retirement age at 65. The OA as regards the applicant who complained about extension in age of Dr. A. Sampath Kumar was found to be genuine. The grievance of the association that AIIMS was bound under law to bring about amendment in the regulations was also found to have merit and a direction in that regard came to be issued by us in our judgment dated 24.9.2009 to the AIIMS to incorporate the amendment in the regulations. The Government sought opinion on our judgment from the Solicitor General of India, who opined in tune with the decision taken by us. The said judgment has since been implemented. The amendment has been brought about retrospectively from the date when the Cabinet decision to increase the age of retirement of faculty members from 62 to 65 years. A single Bench of the Hon'ble High Court of Delhi in G. S. Bhogal v Union of India (CW No 4227 of 1998 decided on 31.1.2000, reported as 84 (2000) DLT 313) held that when the Central Government had accepted the recommendation of enhancing age of retirement from 58 to 60 years, failure to amend the rules according to the recommendation would not make any difference, and there would be no discretion left in the Corporation but for to accept the recommendation, and the concerned employee would be entitled to continue in service till the age of 60 years. We may refer to the relevant observations made on that behalf. The same read, thus:
It is no doubt true that the rules of the Corporation have not yet been amended and in terms of paragraph 2 of the Office Memorandum the decision of the Central Government would not come into effect till the rules are amended. But, in my view, the Corporation was not entitled to keep the decision of 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 14 O.A No. 2580/2024 Item 10 (C-3) the Central Government in abeyance by not amending its rules, although, the Office Memorandum had been received, by the respondent No.1 Corporation on 10th June, 1998, so as to deprive the petitioner of the benefits thereof. I am, therefore, inclined to agree with Mr. Gupta that having regard to the decision taken by the Central Government at a time when the petitioner was still in service, the petitioner should not be deprived of the benefit of the said decision of the Corporation merely because it had chosen not to amend its rules as per the directions contained in the Office Memorandum in question. In our view, if the applicant or other equally situate person were to seek a writ in the nature of mandamus directing the respondents to incorporate the Note mentioned in the OMs, as mentioned above, such a claim could not have been resisted by the Government. In the present case, there is an additional reason why such a claim could not be resisted by the Government, and the same is that incorporating the Note in the rules of other services by virtue of the same very OMs, giving relaxation in rules, and not doing so in the Rules of 1962, would have been a case of invidious discrimination, and thus violative of provisions contained in Article 14 of the Constitution, The directives contained in the OMs are applicable across the board, ic, applicable to all services of the Government of India, and for that reason, have to be taken as if the legislation by the executive under Article 73 of the Constitution. Moreover, it is not open to the Government to say that they would apply the OMs as regards other services but as regards the Central Secretariat Service they would not do so, and rather take a decision that the same unless incorporated in the rules would be of no consequence. It is not, in our view, open to the Government to take such a stand in the peculiar facts and circumstances as have been fully detailed above. Last but not the least, the OMs cannot be treated as waste paper, they have to be given their meaning as incorporated therein."
20. What clearly emerges is that if the OMs are not to be read as exemption under rule 25(a) of the Ruler of 1962, although not so specifically stated, as surely they are applicable to all services under the Central Government, the fundamental right of a senior for even consideration for promotion would be thwarted. It would he a case of complete discrimination between Central Government employees of different departments. Note as regards consideration of seniors without their even having the eligibility period, has been inserted in number of services, including the Indian Revenue Service and the Indian Ordnance Factories Service. The exemptions have been granted to members of the Central government services in other departments. If, therefore, the OMs are not treated as exemptions to the limited period mentioned therein, which would be, as per the OM dated 25.3.1996, only two years, which is also subject to the incumbent having completed the probation successfully, it would be discrimination which is frowned upon by Article 14 of the Constitution of India. Thirdly, OM dated 25.3.1996 clearly states that if the note is not inserted, the matter may have to be taken 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 15 O.A No. 2580/2024 Item 10 (C-3) up for exemption each time. Fourthly, as regards other services and in particular, the Indian Statistical Service, exemption has indeed been granted. Lastly, the circulars having been issued more than two decades ago, which are in nature of directives and cannot be treated as a dead inert affair or a waste paper. The Government, in any case, cannot be permitted to turn around and say that simply because its slackness, it has been unable to carry out the necessary amendments in the rules, and, therefore, the OMs shall not be binding upon it. Such a stand, particularly when the note envisaged under the OMs for amendment has been added in other services of the Government, cannot be countenanced. On one hand, the OMs having not been inserted in the rules, it may legally be submitted that the same would be of no use and consequence, whereas, on the other hand, the Government cannot be permitted to deny their existence, nor backtrack from it, particularly in the manner as mentioned above, when such note has been inserted in other service rules, and where not so inserted, the relaxation has been granted. The only harmonious way to reconcile this situation is to treat the OMs as relaxation. The OMs being directions across the board relating to all services under the Government of India, have to be treated as general directions and not as if orders passed under the rules relating to relaxation. Incidentally, in the present case, all parameters as contained in rule 25(a) of the Rules of 1962 dealing with relaxation in the Rules are met. The rule aforesaid empowers the Government to relax the provisions of the Rules in consultation with UPSC. We reserved these matters for judgment and while preparing the same, vide order dated 26.4.2011 we required the parties to clarify as to whether the OMs referred to above came into being in consultation with LIPSC. In that regard, it is urged by the learned counsel representing the applicant that even though, copies of all OMs were sent to UPSC, but insofar as the OM dated 24.9.1997 is concerned, same came into being in consultation with UPSC, as is clearly recorded therein. This argument is not controverted during the course of arguments.
The learned counsel would also contend that the word used in rule 25(a) is consultation and not concurrence. It is urged that consultation with UPSC, in any case, would not be mandatory, and for the contention aforesaid reliance has been placed upon the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh v Manbodhan Lal Srivastava [AIR 1957 SC 912], wherein it has been held that the provisions of Article 320 (3) (c) of the Constitution are not mandatory and non-compliance with those provisions would not afford cause of action to a civil servant in the court of law."
(iv) Bal Kishan vs. Delhi Administration and Anr. - Civil Appeal No. 1106/1989 dated 06.10.1989 wherein the Hon'ble Apex Court in Paras 9 to 11 held as under :-
2026.05.13 MAYA B TARAGI 16:52:45+05'30' 16 O.A No. 2580/2024 Item 10 (C-3) "9. In service, there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will have demoralizing effect in service apart from being contrary to Article 16(1) of the Constitution.
10. It is not shown that the seniors were not eligible for confirmation when the appellant was confirmed. Nor it is shown that the seniors were not suitable for promotion when the appellant was promoted. The appellant therefore, could not complain against the corrective action taken by the respondents.
11. In the result, we dismiss the appeal, but without an order as to costs."
5. The counsel of the applicants also submitted written submissions wherein they concluded that the administrative inaction of the respondents in syncing appointment dates and their failure to update the RRs in line with DoP&T directives had created a "Reverse Seniority" anomaly. The applicants having proven their merit by sitting for the exam under Court orders, deserve to have their results declared and seniority restored from the date their juniors were promoted.
6. Per contra, the counsel of the respondents opposed vehemently and argued vociferously that DoPT vide its OM No. AB-14017/12/97-Estt (RR) dated 24.09.1997 had clarified that in its judgment of 08.03.1988 in case of R. Prabha Devi & Others vs. GOI & Others, the Hon'ble Supreme Court has specifically held as follows :-
"Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rule. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over ride in the matter of promotion to the next higher post."
2026.05.13 MAYA B TARAGI 16:52:45+05'30' 17 O.A No. 2580/2024 Item 10 (C-3)
7. The counsel of the respondents also submitted his written arguments on 27.04.2026. The main submissions are as follows :-
"5. Present case is squarely covered by ratio of Union of India v. Himanshu Prabhakar & Ors. [WP No. 1738 of 2017], which was decided in similar facts: The Respondents place reliance upon the judgment of the Hon'ble Delhi High Court in Union of India v. Himanshu Prabhakar & Ors., wherein it was authoritatively held that the DoPT O.M.s dated 18.03.1988, 25.03.1996 and 24.09.1997 do not ipso facto amend Recruitment Rules and merely confer enabling powers upon departments to consciously amend their rules, if required. In the absence of such actual amendment in Recruitment Rules by EPFO, i.e. in the Recruitment Rules, 2019, such unamended rules continue to govern the field in full force. [refer to paras 27 @ pg. 11-22 of Counter Affidavit]
6. The Judgment in Himanshu Prabhakar (supra) has been upheld by the Hon'ble Supreme Court of India vide order dt. 14.01.2020 passed in SLP (C) No. 29186. Himanshu Prabhakar (supra) also held that the Tribunal has no power to relax eligibility criteria by substituting its own view in place of the Recruitment Rules. [refer to para 33-43.] In the present case, Recruitment Rules specifically provides the eligibility criteria, i.e. 9 year of continuous service [refer to pg. 88 of Original Application]. The cut-off date of 01.01.2024 was specified pursuant to DoPT OM Dt.
08.05.2017. As such, the impugned examination notice reiterates that applicants must meet the 9 year service criteria as on 01.01.2024.
7. DoPT O.M. dt. 25.03.1996 does not apply in the present case: It is submitted that aforementioned OM, which amended DoPT O.M. dt. 19.03.1988 pursuant to the judgment of the Hon'ble Supreme Court in R. Prabha Devi & Ors. v. Union of India & Ors. [1988 AIR 902], is merely an enabling provision and not mandatory, as the O.M. itself provides that the relevant note "may be inserted" in the Recruitment Rules. The Recruitment Rules, 2019 governing the post of Section Supervisor in EPFO do not contain such note and therefore no automatic relaxation can be claimed by the Applicants. [refer to paras 4-5 @ pg. 3; paras 20-21, pg. 8-10; paras 28-30 @ pg. 22-23 of Counter Affidavit]
8. Pertinently, Himanshu Prabhakar (supra) considered R. Prabha Devi (supra) and thereafter held that DoPT OM has no relevance or applicability where recruitment rules have not actually been amended pursuant to such OM.
9. The Applicants' grievance regarding delayed appointment is equally untenable. The process of appointment necessarily depends upon completion of mandatory formalities such as police verification, medical examination, and submission of requisite documents, all of which may vary across candidates and States.
2026.05.13 MAYA B TARAGI 16:52:45+05'30' 18 O.A No. 2580/2024 Item 10 (C-3) The fact that several candidates from the same recruitment batch and region joined service in 2014 itself clearly demonstrates that there was no selective or deliberate delay attributable to the Respondent Organization. The Applicants cannot derive any legal advantage from administrative timelines beyond the control of the Respondent. Moreover, seniority in the SSA cadre is determined in accordance with merit and applicable regulations, not merely date of joining. [refer to paras 12-14 @ pages 5-6 of Counter Affidavit]
10. It is further submitted that the Limited Departmental Competitive Examination (LDCE) notification dated 07.06.2024 specifically prescribed 01.01.2024 as the cut-off date for determining eligibility, in consonance with DoPT O.M. dated 08.05.2017 and the approved examination scheme. The Recruitment Rules, 2019 expressly mandate that only Social Security Assistants with 9 years' regular service in the grade and serving in the respective zone are eligible for promotion through LDCE. Admittedly, the Applicants had not completed the requisite qualifying service as on the prescribed date and were therefore ineligible under the applicable statutory framework. [refer to paras 15-19 @ pg. 6-8; paras 22-25 @ pg. 9-10 of Counter Affidavit]
11. The settled legal position is that seniority cannot substitute eligibility. The Hon'ble Supreme Court in R. Prabha Devi (supra) categorically held that mere seniority in a cadre does not confer a right to promotion unless the employee fulfills the eligibility conditions prescribed under the relevant Recruitment Rules. Seniority becomes relevant only amongst otherwise eligible candidates. Therefore, the Applicants' attempt to rely upon their comparative position vis-à-vis juniors is legally unsustainable in the absence of fulfillment of the mandatory 9-year service requirement. [refer to para 30-31 @ pg. 23-26 of the Counter Affidavit]
12. The Respondents further rely upon the decision of this Hon'ble Tribunal in Shreekant Ranjan v. Union of India & Ors. [O.A. No. 424 of 2012], wherein under materially similar circumstances, claims based on notional seniority and retrospective recruitment year were expressly rejected. This Hon'ble Tribunal held that eligibility for promotion must be reckoned from actual qualifying service and that notional seniority cannot substitute or override statutory eligibility requirements. The said decision fully supports the Respondents' case and squarely negates the Applicants' contentions herein. [refer to para 31 @ pg. 24-26 of Counter Affidavit] "
8. We have given our thoughtful consideration to the rival submissions; examined the documents on record and perused the relevant judgments of Hon'ble Apex Court; High Courts and decisions of the 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 19 O.A No. 2580/2024 Item 10 (C-3) Coordinate Bench of this Tribunal. As per the ratio in landmark judgments of Hon'ble Supreme Court in (i) R. Prabha Devi & Ors. vs. Govt. of India
(ii) UOI vs. Sadhana Khanna and (iii) Decision of the Full Bench of CAT in Mrs. Garima Singh vs. UOI in OA 3278/2010 (supra), it is a settled principle in Administrative Law and Service Jurisprudence that where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided that they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service. This was also incorporated in DoPTs OM dated 19.07.1989 and DoPT OM No. AB-14017/12/88-Estt. (RR) dated 25.03.1996:-
""To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules."
Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service."
In our considered view, this OM is not just "advisory" (as the respondents are contending) but 'mandatory' as it has been issued after due diligence; discussion and debate by DoPT - the Nodal and over arching Ministry of Govt. of India that has the final say in all service matters and 2026.05.13 MAYA B TARAGI 16:52:45+05'30' 20 O.A No. 2580/2024 Item 10 (C-3) human resource (HR) issues of Central Govt. employees. The DoPT OMs cannot be treated as waste paper; they have to be given their full and real meaning as incorporated therein. The directions contained in the OMs are applicable across the Board i.e., applicable to all services of Govt. of India and for that reason have to be taken as if it is legislation by the Executive under Article 73 of the Constitution. We have observed that the applicants in the instant OA are covered by the DoPT OMs. The respondents have been careless, casual and cavalier in their approach by not incorporating this clause as per the directions of DoPT in the Recruitment Rules (RRs) of Social Security Assistants and Section Supervisors of Employees Provident Fund Organisation (EPFO)
9. In the light of the above, we are of the considered opinion that the balance of convenience in the instant OA clearly lies with the applicants.
The instant OA has merit; deserves to be allowed and is accordingly allowed.
The respondents are directed to consider incorporating the mandatory clause from DoPT OM dated 25.03.1996 i.e., relaxation "Note" as quoted in the foregoing paras in the Recruitment Rules for Social Security Assistants (SSAs) and Section Supervisors in EPFO and then to consider promoting the applicants as per their due dates - dates from where their juniors were promoted. This exercise should be completed within a period of six months from the date of receipt of certified copy of this order. MAs if any are disposed of in similar manner. However, there shall be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/
2026.05.13
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