Central Administrative Tribunal - Hyderabad
Mohd. Yousuf And 3 Ors. vs Union Of India (Uoi) And Ors. on 31 March, 1999
JUDGMENT R. Rangarajan, Member (A)
1. Heard Mr. J. Sudheer for the applicants and Mr. N.R. Devaraj for the respondents.
There are four applicants in this OA. They are Stenographers in the Employees' State Insurance Corporation (ESI) at Hyderabad.
2. The Recruitment Rules for the post of Head Clerk/Assistants are embodied in the Recruitment Rules, called, the Employees State Insurance Corporation (Recruitment) Regulation, 1965 published in the Gazette of India on 3-4-1965. The requisite qualification required for promotion to Head Clerk/Assistant is incorporated in Schedule-II of above said Regulations at Sl. No. 3 which is captioned as "Class III Ministerial". Column 6 of the above schedule shows the course and source from which promotion/deputation to be made for the post of Head Clerk/Assistant. As per that column the feeder categories indicated for the post of Head Clerk/Assistant are UDC/UDC incharge/Cashier in the UDC scale. Stenographers are also considered for promotion on merit but the promotion will not be in direct line. The promotion of Stenographer to the post of Head Clerk/Assistant has to be read with Note-3 under Schedule II. Note-3 under this Schedule II reads as follows :
"Stenographers may be posted to work as UDC for two years before they are considered for promotion to the higher grade. In which case their promotion to higher grade can be in direct line". From the above, 1965 Regulations the Stenographers are eligible for consideration for promotion to the post of Head Clerk/Assistant treating both the UDCs and Stenographers categories as feeder categories.
3. The Recruitment Rules, 1965 was modified and a notification No. 7(3)-16/72-Estt, dated 28-6-1974 was issued for promotion to the post of Head Clerk/Assistant. As per this notification both the UDC and Stenographers are eligible for promotion to the post of Head Clerk/Assistant. But in this Gazettee notification Note-3 in Schedule I of 1965 of Recruitment Rules has been deleted. Hence, the Stenographers need not now be posted as UDCs before they are being considered for promotion to Head Clerks/Assistants. From the above two notifications of 1965 and 1974 it is crystal clear that the Stenographers are in the Feeder category for promotion to Head Clerks/Assistants.
4. When the matter stood thus, a memorandum was issued on 3-8-1994 for Direct Recruitment to the post of PAs and above and this memo talks of Recruitment regulations for the post of Stenographer and personal Assistant/Sr. PA etc. At that stage the UDCs filed OA. 1059/95 impleading the applicants herein as private Respondents whereby they resisted the promotion of Stenographers to the post of Head Clerks/Assistants on the ground that they were having a channel of promotion to PA/Sr. PA and hence they need not get the channel for Head Clerks/Assistants. As a one time measure the Stenographers were also asked to have an option either to progress in the Stenographer category by getting promotion as PA/Sr. PA etc. or to choose the line of becoming UDC/Head Clerk/Assistant as per the Gazette. That OA was disposed of by order dt. 11.12.1996. The direction given reads as below;
"The letter dated 30-6-95, whereby the Stenographers are to be posted as UDCs as one time exception and posting of four Stenographers as UDCs by letter dated 30-8-95 are set aside. The promotions of UDCs and Stenographers are to be regulated as observed above."
5. Thereafter it is stated that the options called for from the applicants who were Stenographers were cancelled in view of the direction given in that OA and the respondent submit that thereby they had complied with the directions.
6. Thereafter a notification was issued titled as "Employees' State Insurance Corporation (Head Clerks/Assistant) Recruitment Regulations, 1997" issued in the Gazette of India, dt. 22.3.1997" As per this notification the posts of Head Clerk/Assistant has to be filled only from the Feeder cadre of UDC/UDC Cashiers with three years of regular service in that grade. By this notification the Stenographers who were in the Feeder category for promotion to the post of Head Clerks/Assistants as per notification of 1965 and 1974 has been withdrawn.
7. This OA is filed to set aside the notification No. A-12(l l)-2/94 Estt.I(A) dated 1-3-1997 so far it dbes not include the Stenographers as Feeder Category for the post of Head Clerk/Assistants and include the Stenographers also as one of the feeder categories for Head Clerks/Assistants with consequential promotions to the applicants herein as Head Clerks/ Assistants.
8. A reply has beef) filed in this OA.
9. The main contention of the respondents are as follows :
(i) Regulations called ESIC Stenographer Recruitment Regulations, 1994 was issued by memo No. 1(1)-3/73-E, I(A) dated 13-7-94 (AN-III). By that memo the Stenographers can aspire to go up in that cadre as PA/Sr. PA. However, certain restrictions were imposed earlier for new comers. They were relaxed and 100% vacancies of PA are now made available only to Stenographers, thereby widening their promotional avenue to the higher posts of Personal Assistants. Thus the applicants have got enough promotional opportunities to continue in the cadre of Stenographers and PA. Hence including them as feeder category for the post of Head Clerks/Assistants is not considered necessary. Hence, the impugned notification dated 22-3-1997 was issued, which is in order. The above contention is at page-9 of the reply.
(ii) The second contention of the respondents is that the Government reserves right to alter the Recruitment Rules as and when required in accordance with the circumstances. In the present case the promotion chances of all the applicants have been enchanced by the ESIC Recruitment Rules for Stenographers and hence Government thought it fit to restrict their entry to the post of Head Clerks/ Assistants by deleting them in the feeder category for promotion to that post.
(iii) The third contention of the respondents is that earlier OA. 1059/95 was disposed of by judgment dt. 11-12-1996. That judgment was given later than the issue of Stenographer promotion scheme to the post of PA which was issued on 13-7-1994. Hence, the respondents have started initiating action for giving separate channel of promotion for Stenographers even before the issue of judgment in OA. 1059/95. That process ended with the issue of notification in the Gazette of India dated 22-3-1997. Hence, it is to be stated that the respondents had not acted against the principles laid down by this Bench in the earlier OA.
(iv) The earlier judgment in OA. 1059/95 in no way restricts the issue of notification dated 22-3-1997. Hence, the respondents had not violated the earlier judgment of this Tribunal.
10. From the above contentions the following questions arise:
(a) Whether the Government can issue a modified ruling when certain privileges/ service conditions are held and enjoyed by an employee in a Department?
(b) Whether the Recruitment Rules can be issued without taking note of any judgment in connection with Recruitment Rules even if the respondents reserve their rights to change the Recruitment plicies.
11. Before analysing these two points it is essential to explain the import of the directions given in the previous judgment in OA. 1095/95. By this direction the respondents were directed that Stenographers should not be asked to go to cadre of UDC first before being promoted as Head Clerk/Assistant, in view of the 1974 Rules. The second direction given was that the option called for from them to choose their line of promotion either in the category of Stenographer/PA/Sr. PA or to the post of UDC/Head Clerk/Assistant is not in accordance with the rules. By prohibiting ESIC from asking the Stenographers to work first as UDC before being promoted as Head Clerk and asking for option to choose their line of promotion the Tribunal had clearly enumerated that the promotional opportunities as Stenographers as laid down in the 1965 Rules and 1974 is sacrosanct and cannot be violated. That would mean that the Stenographers are still in the Feeder category for promotion to the post of Head Clerks/Assistants.
12. Having clarified the position in the earlier judgment the questions raised as above are to be answered. It is not necessary for this Bench to answer the above two questions as these two questions had already been answered by the Apex Court in the reported case 1987 (Vol.I) SCR 584, T.R. Kapur and Ors. v. State of Haryana and Ors. The facts of this case are as follows :
The petitioners in that OA were Engineering Diploma holders. They were appointed to Class III Overseers Engineering Service (Irrigation Branch) in the erstwhile State of Punjab in the year 1953, 1949, and 1952 respectively. In due course they were promoted as Sub-Divisional Officers in Class II and were eligible for promotion to the post of Executive Engineer in Class-I service under the Unamended Rule 6(b) having more than eight years service in Class II service. As Parmar v. State of Haryana, 1984(2) SCR 476, the Apex Court interpreted the unamended Rule 6(b) and had held that a Degree in Engineering was not essential qualification for promotion to Class II Officers to the cadre of Executive Engineer in Class I service. But just before that they were about to be promoted, the State of Haryana issued impugned notification rendering them ineligible.
13. In that case similar to the present case there was an order of the Supreme Court in Parmar's case. It was held that with eight years of service the applicants therein became eligible for promotion to Executive Engineer and it is riot necessary to possess Engineering Degree qualification for promotees. That direction was not adhered to by the Punjab Government. In the present case earlier there was an order from this Bench stating that the Stenographers are in the Feeder category of Head Clerks/Assistants. But that was invalidated by the notification dated 22-3-1997. Hence both the cases are similar.
14. The Hon'ble Supreme Court had held as follows in that reported case:
"The decision in the Supreme Court case is not open to question. What was of essence for the purpose of promotion to Sub-Divisional Officers who were members of the Class-II service to the post of Executive Engineers under Rule 6(b) of Class I Rules was not degree in Engineering but eight years experience in Class II service. The petitioners and other members of Class II service who were Diploma Holders and satisfy the eight years service in that class were therefore eligible for being considered for promotion to the post of Executive Engineer in Class I service without having degree in Engineering.":
15. It was further observed by the Apex Court in that OA as follows:
"Power to frame rules to regulate the conditions of the service under proviso the Article 309 of the Constitution carries with it the power to amend or alter rules with a retrospective effect. This rule is, however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect."
16. Thus from the above citation it is very clear that it is bad in law to upset an earlier decision taken by a judicial forum. The purport of the earlier position had already been explained which was not understood properly by the respondent organisation. Hence, that decision cannot be annulled by issue of notification dated 22-3-1997 whereby the Stenographers are not included in the Feeder category for the post of Head Clerks/Assistants.
17. There is no doubt that the Government has got full powers to amend or alter the rules with restrospective effect. However, the principle that the benefits acquired under the existing rules cannot be taken away by the amended rules.
18. The applicants who were stenographers were enjoying the benefits of being in the Feeder category for promotion to the post of Head Clerks/Assistants right from 1965 onwards. That benefit available to them is being taken away by amended rules issued vide notification dated 22-3-1997. This in our opinion is not an admissible action on the part of the respondents. Further, the promotion prospects of the Stenographers was issued by ESI Stenographers Recruitment Regulation, 1994 by order dated 13-7-1994. Even assuming that the order was issued earlier to our judgment in the OA. 1059/95 that order cannot take away the benefits already available to the Stenographers earlier to the issue of that order. Hence, it has to be held that the notification dated 22-3-1997 can take effect only (sic) from the date of issue of earlier order dated 13-7-1994. Stenographers joined before 13-7-1994 should be given an opportunity for progressing either in Personal Asst./Sr. PA category or in the UDC/ Head Clerks/Assistants category. But those who joined Stenographers category on or after 13-7-1994 are eligible to be promoted in accordance with Recruitment Rules issued vide notification dated 22-3-1997.
19. The next question that may arise is that there are two categories of Stenographers. One of the categories have two promotional channels whereas the other have only one promotional channel. That may be treated as case of discrimination coming under Articles 14 and 16 of the Constitution. But that also has been answered in the reported case cited wherein it is stated that such a classification is not violative of Articles 14 and 16 of the Constitution.
20. In view of what is stated above, the following direction is given :
The applicants herein are eligible for progressing in both the channels viz. either UDC/ Head Clerks/Assistants or in the post of PA/Sr. PA. If they were earlier prohibited to appear for Head Clerks/Assistants posts their cases should be reviewed in view of this judgment and on that basis of review necessary consequential action should be taken in accordance with law.
21. Time for compliance of the above order is four months from the date of receipt of a copy of this order.
22. The OA is ordered accordingly. No costs.