Central Administrative Tribunal - Delhi
Ashok Jailkhani vs Union Of India Through on 20 February, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.24/2009 C.P.No.67/2009 M.A.No.156/2009 New Delhi, this the 20th day of February 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. (Smt.) Veena Chhotray, Member (A) Ashok Jailkhani S/o Shri M.L. Jailkhani Aged about 55 years R/o A-12, Sarita Vihar New Delhi-76 And working as Dy. Director General Doordarshan Bhavan, Copernicus Marg, New Delhi-1 ..Applicant (By Shri G.D. Gupta, Senior Advocate (Shri S.K. Sinha and Shri Vijay Pandita, Advocates with him) Versus 1. Union of India through Secretary Govt. of India Ministry of Information and Broadcasting Shastri Bhawan, New Delhi-1 2. Chief Executive Officer (CEO) Prasar Bharati, PTI, Building New Delhi-1 3. Director General Doordarshan Doordarshan Bhavan Copernicus Marg, New Delhi-1 ..Respondents (By Shri Nageshwar Rao, Senior Advocate (Shri D.S, Mahendru, Advocate) for Respondent No.1 Shri V.K. Rao, Advocate for Respondent Nos. 2 & 3) O R D E R (ORAL)
Shri Shanker Raju:
In service jurisprudence, as per the trite law, the chances of promotion are not legal or vested right but right to be considered for promotion is a fundamental right guaranteed to a government servant. Such consideration should be effective and meaningful, which is governed by the rules framed under the proviso appended to Article 309 of Constitution of India, as ruled by the Apex Court in S.B. Bhattacharjee Vs. S.D. Majumdar & others, (2007) 10 SCC 513.
2. By virtue of this OA, applicant, a Senior Administrative Grade (SAG) (Group A) Officer in the pay scale of Rs.18400-22400 of Indian Broadcasting (Programme) Service (for short IB(P)S), has impugned selection / interview held on 5.12.2008 for the post of Director General (Doordarshan). It is also prayed that a fresh selection and interview be ordered and the applicant shall be considered with all consequences in law.
3. Brief factual matrix of this case being relevant is highlighted.
4. Under the IB(P)S, there are two streams, namely, All India Radio (AIR) and Doordarshan. Further, there are two sub-cadres of Programme Management and Programme Production both in AIR as well as in Doordarshan. Separate seniority lists are maintained in each of the cadres but a unified or a composite inter-se-seniority list of Programme Management cadre of Akashwani, Programme Production cadre of Akashwani, Programme Management cadre of Doordarshan and Programme Production cadre of Doordarshan of Broadcasting (Programme) Service has not been issued. Under the Prasar Bharati (Broadcasting Corporation of India) Director General (Akashwani) and Director General (Doordarshan) (Recruitment) Regulations, 2001 (for short Regulations 2001), the method of recruitment for the post of Director General (Doordarshan) in the pay scale of Rs.24050-26000 is by promotion / deputation failing which by direct recruitment on short term contract basis. The eligibility for promotion / deputation is the officers of All India Services or Central Services Group A holding analogous posts on regular basis or with three years regular service in pay scale of Rs.18400-22400 or equivalent and empanelled as Joint Secretary to the Government of India with three years regular service and having experience in Media or Mass Communication or Public Administration. The appointment has to be made in consultation with the Recruitment Board, which is headed by the Chief Executive Officer. However, the Note appended in column 10 of the Regulations 2001 provides as under:-
10.
Promotion / Deputation:
Officers of All India Services or Central Services Group A holding analogous posts on regular basis or with three years regular service in the pay scale of Rs.18400-22400 or equivalent and empanelled as Joint Secretary to the Government of India with three years regular service and having experience in Media or Mass Communication or Public Administration.
Note:
(1) Officers of the Senior Administrative Grade of Broadcasting (Programme) service with three years regular service in the grade shall also be considered along with applicant for appointment on deputation terms and in case any of them is selected, the post shall be deemed to have been filled in by promotion.
For the purpose of promotion, eligibility list of Senior Administrative Grade Officers belonging to programme Management cadre of Akashvani, Programme Production cadre of Akashvani, Programme Management cadre of Doordarshan and Programme Production cadre of Doordarshan of Broadcasting (Programme) Service shall be prepared on the basis of their date of appointment on regular basis subject to the condition that the inter-se-seniority in their respective cadres shall be maintained. In case there are more than one officer appointed on the same date, their placement in the eligibility lists will be determined according to their date of birth, on the principle of Older the Senior.
The crucial date for determining the eligibility of officers for promotion shall be 1st January of the preceding year of vacancy(ies) Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors shall be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less for promotion to the next higher grade alongwith their juniors who have already completed such qualifying or eligibility service.
Departmental officers shall not be eligible for appointment on deputation basis.
Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment shall ordinarily not exceed 3 years.
5. Applicant, who was born on 27.4.1953, was appointed as Assistant Station Director, Group A service in Junior Times Scale w.e.f. 6.4.1985, which is an organized cadre under IB(P)S. He was further appointed to the post of Senior Times Scale (STS) w.e.f. 29.9.1987 and to the Junior Administrative Grade (JAG) w.e.f. 30.7.1996. Applicant was thereafter appointed to the post of SAG Group A in the pay scale of Rs.18400-22400 of IB(P)S w.e.f. 14.10.2004 and had been working as Deputy Director General in Doordarshan.
6. Though there is no channel of promotion from the post of Deputy Director General but SAG with three years regular service is eligible to be considered for the post of Director General, AIR as well as Director General (Doordarshan). On 8.5.2006, Prasar Bharati notified a post of Director General (Doordarshan) to be filled as direct recruitment by way of conducting an interview. However, no interview was conducted till the applicant preferred his application and applied for the post. A seniority list of officers of SAG in Programme Management / Production cadre of IB(P)S or Doordarshan as on 1.1.2006 was issued where one Shri L.D. Mandloi, who was appointed in SAG on 14.10.2004 along with applicant on the same day, was shown senior to the applicant. A representation was called for by 28.2.2006 positively, failing which the seniority list in the grade would be treated as final. The aforesaid seniority has been arrived at on the basis of merit obtained by the respective officers in the grade. The aforesaid was represented by the applicant on 7.1.2008. However, Shri L.D. Mandloi and Ms. Noreen Naqvi approached the Tribunal by seeking their consideration for selection to the post of Director General (AIR & Doordarshan) on reckoning their ad hoc service in SAG for eligibility. The said OA was allowed by the Tribunal, which was challenged before the High Court in WP-4478/2007 wherein an interim order passed in CM-8377/2008 directed consideration of respondent therein, which was reiterated in CM-4188/2008. As a result thereof, by a communication dated 12.9.2008 issued by the Ministry of Information & Broadcasting, Prasar Bharati has been directed to convene a Board meeting for regular selection and in that process consider Shri L.D. Mandloi and Ms. Noreen Naqvi along with other officers in the panel already available by counting their ad hoc service in SAG as a qualifying service. However, to avoid further litigation, it has been decided that those senior to Shri L.D. Mandloi, namely, Ms. V. Sekose, DDG, Shri Jaylal, DDG and Shri A.K. Padhi, DDG were also to be considered. As a result thereof, an eligibility list was prepared as on 1.1.2008 in all the four cadres in Doordarshan and AIR where the name of the applicant was figuring at Sl.No.7.
7. As per the Regulations 2001, as the vacancy of Director General (Doordarshan) was available in 2006, the eligibility was to be considered as on 1st January of the preceding year of the vacancy(ies), which comes out to 1st January of 2005, yet the eligibility was reckoned by the respondents w.e.f. 1.1.2006. The eligibility list was prepared on the basis of age criteria where the applicant was placed below Shri A.K. Padhi but above Shri Jayalal and Shri L.D. Mandloi. Later on, to maintain inter-se-seniority, as Shri Jayalal was senior to Shri Padhi, he was placed above him and Shri Mandloi being senior to the applicant was placed above him. In the selection, total 19 persons were called, out of which 14 attended. Apart from deputationists, 5 departmental candidates were considered, of which one was absent but the name of the applicant has not been considered for promotion to the post in question.
8. The present OA was filed by the applicant and by an interim order dated 13.1.2009, appointment to the post of Director General (Doordarshan) was made subject to the outcome of the OA. However, MA-156/2009 filed by the applicant to restrain the respondents not to take further action after interview was held on 5.12.2008. As the officiating Director General was functioning, an interim order passed on 9.2.2009 by the Tribunal directed maintenance of status quo regarding appointment of Director General (Doordarshan).
9. However, CP-67/2009 has been filed by the applicant on the ground that despite service of the notice, one Smt. Aruna Sharma was not only appointed to the post but she has also taken over the charge. She was selected under the deputation quota. It transpires that after the aforesaid incident, Prasar Bharati issued a circular whereby Ms. Noreen Naqvi had been continuing as acting Director General and Smt. Aruna Sharma, IAS of 1982 batch was relieved to report to the Department of Personnel & Training. The matter was finally heard and closed for orders on 17.2.2009.
10. Shri G.D. Gupta, learned senior counsel appearing for the applicant stated that the applicant being eligible and senior to Shri Mandloi has not been considered for promotion, which is his fundamental right guaranteed under the Constitution of India, arbitrarily, malafidely and in derogation of the Regulations 2001.
11. Learned senior counsel states that when all the officers in the feeder category as per the crucial date of eligibility were not eligible, insofar as three years regular service in 2006 is concerned, the notification, which was issued for the post of Director General (Doordarshan) in May 2006, at best a panel is to be drawn remaining valid for a period of one and a half years. As such, acting upon eligibility, etc. drawn in 2006 and the selection process as also the appointment in 2008 after more than two years cannot be sustained in law. Hence the selection proceedings have to be declared illegal.
12. Shri Gupta states that assuming the respondents have complied with the directions of High Court of Delhi, insofar as considering Shri Mandloi and Ms. N. Naqvi is concerned, in such an event, the consideration of persons senior to them, namely, S/Shri Jayalal and Padhi, is not sustainable. The learned senior counsel also avers that the date of appointment in SAG of the applicant as also of S/Shri Jayalal and Mandloi being identical, the principle of Older the Senior as per the date of birth when followed, the applicant being senior to them should have been enlisted in the eligibility list and called for in the interview. Deprivation of this opportunity and consideration being a fundamental right when violated by ignoring the seniority of the applicant dehors the statutory Regulations 2001 renders the selection proceedings as vitiated.
13. While drawing our attention to seniority list of SAG in Programme Management Cadre of IB(P)S of Doordarshan as on 1.1.2006, it is stated by learned senior counsel that Shri Jayalal with the same date of appointment as SAG and Shri Padhi and Shri Jayalal being younger in age and also within the cadre, Shri Mandloi, who had an identical date of appointment in SAG being younger, applicant is to be deemed senior and had to be considered.
14. Learned senior counsel has also drawn our attention to the Regulations of Director General (Doordarshan) to contend that when a senior is considered in the wake of junior being considered, the qualifying eligibility service is to be relaxed and in such an event, applicant being eligible has a fundamental right to be considered.
15. Shri Gupta would interpret Note-II appended in column 10 of the Regulations 2001 to state that the eligibility list of SAG in all four cadres of AIR and Doordarshan is to be prepared on the basis of appointment on regular basis and their inter-se-seniority in respective cadres is to be maintained but in case two officers are having same date of appointment within all the cadres, then eligibility list will be determined according to the date of birth on the principle of Older the Senior rule. In the light of above, it is stated that the applicant being older has to be deemed senior but this criteria has not been adopted by the respondents.
16. While drawing our attention to the reply filed by Ministry of Information & Broadcasting respondent No.1, it is stated that when initially the criteria of Older the Senior was followed by the respondents where the name of the applicant had figured below Shri Padhi in the eligibility list, preparing the final eligibility list is in violation of the Regulations in Note II.
17. Learned senior counsel would also contend that as per the Regulations for the post of Director General (Doordarshan) being a lone vacancy in case of composite method of deputation / promotion, the criteria to be adopted in consonance with DOPT OM dated 3.10.1989, is consideration of departmental officers by way of promotion and not by default or failing which clause. In this regard, a decision of High Court in Union of India v. O.N. Mathur, WP (C) No.6913/2007 decided on 11.1.2008 has been relied upon.
18. Shri Gupta would further rely upon the OM of DOPT on Departmental Promotion Committee issued in 1989 and reiterated in 1997 to contend that while preparing zone of consideration for promotion, 1: 5 ratio has to be maintained. As such, calling only 3 persons for consideration is violation of the Regulations 2001.
19. Learned senior counsel states that when seniors are ignored, right to be considered in fair and equitable manner falls as an obligation on the respondents. As such, adoption of criteria of inter-se-seniority in exclusion of Older the Senior rule has vitiated the selection, as the DPC is bound by the Regulations and once it is not followed or followed in a wrong manner, selection proceedings get vitiated with a review DPC to be held to consider the claim of the applicant.
20. On the other hand, Shri Nageshwar Rao, learned senior counsel (Shri D.S. Mahendru, Advocate with him) appeared for Ministry of Information & Broadcasting respondent No.1. It is stated that as the advertisement has not been challenged, applicants claim is liable to be dismissed.
21. It is further stated that out of 4 cadres in IB(P)S, no inter-se-seniority is prepared in the cadres. However, for considering departmental candidates, who are in SAG, three years regular service was required as on 1.1.2006, which is the cut-off date and applicant having not completed three years service as on date and being ineligible, he has no right to challenge the selection.
21. Learned senior counsel would contend that in fact nobody was found eligible from the feeder category for promotion as Director General (Doordarshan). However, in cases of Shri Mandloi and Ms. Naqvi, in whose respect, the case is sub judice before the High Court of Delhi, in compliance of interim directions of the High Court, their ad hoc service for eligibility was considered, subject to the outcome in the pending writ petition. However, two other officers, i.e., Shri Jayalal and Shri Padhi, who were senior to Ms. Naqvi, have been left over but as per the Regulations, they have been considered. However, the Board has not found any of the departmental candidates fit but in the second mode of selection, one Smt. Aruna Sharma was selected.
22. Insofar as the issue regarding applicant being senior to Shri Mandloi is concerned, learned senior counsel would further contend the seniority list was published on 6.2.2006 and the applicant having failed to represent, the seniority was finalized. As such, the representation preferred has been considered but found time barred, however, no formal orders have been communicated to the applicant.
23. It is also stated that as per the Regulations 2001, inter-se-seniority of each cadre is a determining factor and its maintenance while preparing eligibility list is the import of Note-II of the Regulations 2001. In such an event, though following the age criteria Older the Senior, applicant was found at Sl.No.2 but on finalizing the eligibility list, inter-se-seniority of Shri Jayalal was maintained between him and Shri Padhi and in another cadre, Shri Mandloi, who is senior to the applicant, was placed above him.
24. Shri Nageshwar Rao, learned senior counsel has also invoked the concept of negative equality by stating that assuming the persons, who have not completed the eligibility, were considered in the selection, yet the applicant being ineligible as per the Regulations 2001 has no indefeasible vested right to get the illegality and wrong perpetuated. For this, a decision in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 SCC 337 has been relied upon.
25. Further relied upon are the decisions of Apex Court in Chandigarh Administration & another v. Jagjit Singh & another, (1995) 1 SCC 745 and State of Kerala & others v. K. Prasad & another, (2007) 7 SCC 140.
26. Shri V.K. Rao, learned counsel represented respondent Nos. 2 & 3. He adopted on reiteration the submissions made by learned senior counsel for respondent No.1. However, he has fairly stated that respondent Nos. 2 & 3 have not issued any appointment letter to Smt. Aruna Sharma for the post of Director General (Doordarshan).
27. It is also stated that on the advice of Ministry of Information & Broadcasting, vide their letter dated 12.9.2008, names of Shri Jayalal and Shri Padhi were considered in addition to Shri Mandloi and Ms. Naqvi.
28. Rejoinder reiterates the case of the applicant made in the OA.
29. We have carefully considered the rival contentions of the parties and perused the material placed on record.
30. In S.B. Bhattacharjees case (supra), insofar as the consideration for promotion is concerned, following observations have been made by the Apex Court:-
13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India. It was also held that in evaluation by the DPC, the procedure notified by the State for adjudging the merit and suitability is bound to be followed in letter and spirit.
31. In R.S. Garg v. State of U.P. & others, (2006) 6 SCC 430 while laying down the norms for exercise of discretion by the administrative authorities, it is held that the action has to be adjudged on the basis of norms set up by the statutory rules and on the basis of reasons assigned but could not be supplemented by fresh reasons in the shape of an affidavit or otherwise. While further holding a judicial view on promotion, following observations have been made:-
43. It is also not correct to contend that the selection was on merit basis. If the post was not reserved, in no way the 3rd respondent could have been promoted. He might not have come within the purview of zone of consideration. This case points out how the illegalities are committed by the State causing deprivation of legitimate right of promotion of more meritorious and senior candidates.
32. In Coal India Ltd. & others v. Saroj Kumar Mishra, 2007 (5) SCALE 724 on right of promotion, following observations have been made:-
10. Both First Appellant as also Mahanadi Coalfields Ltd. are 'State' within the meaning of Article 12 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a State is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefor in terms of Article 16 of the Constitution of India. A right of promotion can be withheld or kept in abeyance only in terms of valid rules. Rules operating in the field do not provide that only because some allegations have been made as against an officer of the company, the same would itself justify keeping a valuable right to be considered for promotion of an employee in abeyance. When a question of that nature comes up for consideration before a superior court, the extant rules operating in the field must necessarily be construed in the light of the constitutional scheme of equality.
33. In Union of India & others v. Sangram Keshari Nayak, (2007) 6 SCC 704 on denial of promotion and consideration thereof, the Apex Court has held has under:-
11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.
12. The terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law.
34. In State of Punjab & another v. Teja Singh & others, (2007) 3 SCC 153, the Apex Court has held that promotion cannot be denied on unjustified grounds.
35. Three Judge Bench of Apex Court In Union of India & another v. A.K. Narula, (2008) 1 SCC (L&S) 656 as to the judicial review on assessment, following observations have been made:-
15. The guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court will not interfere (vide State Bank of India v. Mohd. Mynuddin [1987 (4) SCC 486], Union Public Service Commission v. Hiranyalal Dev [1988 (2) SCC 242] and Badrinath v. Government of Tamil Nadu [2000 (8) SCC 395]). The review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R S Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1.4.1987 to 31.3.1988 from 'good' to 'very good', the overall grading of the respondent continued to remain as 'good'. There was no question of moving him from the block of officers with the overall rating of 'good' to the block of officers with the overall rating of 'very good' and promoting him with reference to the DPC dated 13.6.1990. In the absence of any allegation of mala fide or bias against the DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to respondent, as was done in the case of R. S. Virk.
36. Also in A. Satyanarayana & others v. S. Purushotham & others, (2008) 2 SCC (L&S) 279, on promotion, following observations have made by the Apex Court:-
28. The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No.991 of 2008 decided on 5.2.2008]. The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same.
29. Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the other hand, a cap of 10 posts has been made for all the four categories of posts. It is one thing to say that the State evolves a policy of prescribing a reasonable quota at all levels of the promotion but it would be another thing to say that while totally ignoring the question of birthmark, a few posts shall be identified only on the basis of the original posts held by the employee concerned. To the said extent, the rule maintain a birthmark which runs counter to the decisions of this Court in Dwarka Prasad & Ors. v. Union of India & Ors. [(2003) 6 SCC 535].
30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.
37. With the above trite law discerned on ratio deci dendi as per paragraph 18.1 of DOPT OM of 1997, a review DPC is mandated when an eligible person has not been considered or some procedural irregularities have been committed by the Department.
38. In the matter of interpretation of a statute, rule or regulation, the cardinal principle is to have a literal and grammatical interpretation and intention of legislature has to be gathered from the language used. Courts shall not read words into it, as held by the Apex Court in V.K. Reddy v. State of A.P., 2006 (2) SCALE 34. It is also trite law that while interpreting the statute, which is clear, no words cannot be added or Court cannot make up any deficiency.
39. Note appended with a statute or Regulation is a clarification and being explanatory is treated as a part of the main Regulation.
40. The statute should be construed in such a manner to make the machinery workable, as ruled in M/s. Mahim Patram Private Ltd. v. Union of India & others, 2007 (3) SCALE 584.
41. However, in service jurisprudence or in interpretation of a Service Rule, if two views are possible then the rule is to be interpreted in consonance with the practice followed in Department for long time, as held in Shailendra Dahia & others v. S.P. Dubey & others, (2007) 2 SCC (L&S) 202.
42. Any literal construction if it causes hardship or injustice has to be avoided, as held in M/s. Girnar Traders v. State of Maharashtra & others, 2007 (10) SCALE 391.
43. Any interpretation by pre-dominant majority view by the High Court has even followed and found favoured with by Apex Court, as in Synco Industries Ltd. v. Assessing Officers, Income Tax Mumbai & another, (2008) 4 SCC 22.
44. Inter-se-seniority in a cadre is regulated by OM dated 4.11.1992, which is as per the order of merit indicated at the time of initial recruitment.
45. As transpired from the facts of this case, all the four cadres in IB(P)S maintained their respective seniority and this seniority has never been unified by a common seniority list for further promotion to these feeder categories to the promotional post of Director General (Akashwani) and Director General (Doordarshan). Accordingly, if in the light of principles evolved and reflected ibid the Regulations 2001 for the post of Director General (Doordarshan) is interpreted apart from composite method of recruitment, it is by promotion / deputation, failing which by direct recruitment on short term contract basis.
46. Officers of All India Service and Central Services Group A are to be considered for promotion but in case of promotion, officers of SAG of all the cadres with three years regular service shall have to be considered on deputation terms but on their selection, the post is deemed to have been filled by promotion.
47. Such a composite method of selection has come up for examination before the High Court of Delhi in O.N. Mathurs case (supra) where the decision of the Tribunal has been challenged by the Union of India. As per the recruitment rules therein for appointment to the post of Finance and Accounts Officer, it was transfer on deputation/ promotion. On selection of departmental officers, the posts are deemed to have been filled by promotion. The Tribunal while relying upon the OM dated 3.10.1989 of DOPT where in a situation the field of promotion consists of only one post, the departmental officers in feeder categories are considered for promotion when they are fully qualified but if they are not considered for eligibility or found fit for promotion, it will not be proper for them to again consider for appointment on transfer or on deputation basis. In the above view of the matter, the circular dated 21.10.2003 was found apt in law.
48. In the present case also, an attempt made by Shri G.D. Gupta, learned senior counsel to say that the decision mutatis mutandis applies to the present Regulations 2001 to the post of Director General (Doordarshan) on the mode of promotion has to be adopted first, failing which it would be transfer on deputation, appears to be a correct argument. This gives rise to the departmental officers on eligibility to be considered and if no eligible candidate is available, then resort to deputation, failing which direct recruitment shall be the alternate method to be adopted for selection to the post of Director General (Doordarshan).
49. Note-I appended with Regulations 2001 provides eligibility of feeder category of SAG (BP) with three years regular service in the grade and the crucial date of determining the eligibility shall be 1st January of the proceeding year of vacancy(ies), as contained in Note-III. If it is so, then vacancy had arisen when the advertisement was published on 8.5.2006, which is the deemed date of availability of vacancies. In such an event, as per the Regulations 2001, the eligibility criteria should go back to 1st January of the preceding year. Accordingly, no officer from all the cadres was qualified and eligible as none of them as per the eligibility list drawn on 1.1.2008 had completed three years regular service in SAG. However, we find from Annexure R-1 that the eligibility list of Director General, AIR and Director General (Doordarshan) was prepared on 1.1.2008, which is possible only when a selection is notified and the vacancies available, which is not the case of the respondents, as the vacancy was available since 2006 and one of the incumbent Ms. Naqvi was officiating as Director General (Doordarshan).
50. In the above view of the matter, the preparation of eligibility list as on 1.1.2008 showing the officers having completed three years service is not in consonance with rules and is rather in violation of the statutory Regulations.
51. Assuming that the eligibility has been considered as on 1.1.2006, yet no departmental officer had completed the requisite three years regular service. However, to avoid contempt of the High Court where against the decision of the Tribunal in respect of Shri Mandloi and Ms. Naqvi whose ad hoc service in SAG had been directed to be counted by the Tribunal towards qualifying service and in the wake of interim orders passed by the High Court in CMs, the Selection Committee had considered Shri Mandloi and Ms. Naqvi. The interim orders passed clearly indicate that no impediment was found with the posting of Director General (Doordarshan), which has to be in accordance with rules. Respondent No.1 before the High Court, i.e., Ms. Naqvi if found eligible under the rules, would have to be considered and such a benefit has to be construed with eligibility relating back to the ad hoc service. However, the respondents to avoid further litigation have decided to hold a general selection by considering the beneficiary of the interim order of the High Court. The persons so considered, i.e., Shri Mandloi and Ms. Naqvi, their seniors, Ms. V. Sekose, Shri Jayalal and Shri A.K. Padhi being senior to Shri Mandloi were also considered simultaneously. This presumably had been done in the wake of Note-IV of the Regulations 2001 where when juniors, who have completed their qualifying or eligibility service, are being considered for promotion, their seniors shall also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service. Accordingly, those, who had completed two years service, i.e., upto 14.10.2006, have been considered by the respondents. However, by applying the Regulations when the crucial date for determining the eligibility was 1st January of the preceding year of vacancy(ies), even upto 1.1.2005, no departmental officer had completed the service, yet these persons had been considered.
52. As neither the recruitment rules nor has the advertisement been challenged by the applicant, assuming as a legal fiction that the selection was held on achieving the eligibility of criteria under the Regulations 2001 by these departmental candidates, yet we find from the records that the Note-II appended with Regulations is the bone of contention from both sides and requires a valid legal, reasonable, logical and rationale interpretation.
53. It is in the wake of the fact that no unified seniority list is prepared between four cadres. The methodology has been derived to prepare the eligibility list, which is based on a date of appointment on regular basis of feeder category SAG officers but is subjected to a condition that their inter-se-seniority in the respective cadre shall be maintained. A purposeful harmonious construction of the above Note would discern that while placing the names of the officers in different cadres, their inter-se-position of the seniority shall not be disturbed, like officer in a particular cadre when occupies a position in the seniority list as Sl.No.1 and another officer at Sl.No.2 at the time of preparing the eligibility list, the officer at Sl.No.2 cannot be placed at Sl.No.1. Apart from it, no other interference could be drawn legitimately or legally. If it is so, then while preparing the eligibility list, the inter-se-seniority between Shri Jayalal and Shri Mandloi was maintained and between Shri Mandloi and the applicant in both the respective cadres.
54. However, things would not end here. Further stipulation for want of a unified seniority list among the cadres, it is provided that in case there are more than one officer is appointed on the same date, their placement in the eligibility list will be determined according to their date of birth on the principle of Older the Senior.
55. Learned senior counsel for respondent No.1 would contend that this principle of Older the Senior would only be applicable in case of maintenance of inter-se-seniority in the respective cadres for the purposes of eligibility list. However, the principle would not apply in case a comparison is made in the eligibility list to the officers of different cadres when they have identical date of appointment in SAG.
56. If the interpretation given by Shri Nageshwar Rao, learned senior counsel for respondent No.1 is accepted, then in the wake of Shri Mandloi and the applicant though the seniority as per the merit in respective cadre has been maintained by placing Shri Mandloi over and the applicant, yet the principle of Older the Senior has not been applied. No doubt, when an interim direction is issued, whatever has been done in compliance thereof is always subjected to final outcome of the controversy. The High Court has directed that the selection be held in accordance with the rules but the eligibility for Shri Mandloi has to be reckoned after counting the ad hoc service. By this, Shri Mandloi on a legal fiction becomes eligible and on the date of appointment being pre-poned, ranks senior. As the date of appointment has not been finalized, it is only a provisional consideration, subject to the outcome of the writ petition and the date has related back to ad hoc service of Shri Mandloi, yet as per the rules and date of appointment being 14.10.2004, on a legal fiction, Shri Mandloi would have become eligible. Hence by applying the Note-III of Regulations 2001, applicant, who is older than Shri Mandloi, is a senior for the purposes of eligibility list and should have figured as a candidate to be considered senior in the letter dated 12.9.2008 issued by Ministry of Information & Broadcasting.
57. As a juxtaposition, though inter-se-seniority is to be maintained to ensure that no junior from a respective cadre steal march over his senior, yet when it comes to finalization of the eligibility list in any of the cadres if the officers are having same date of appointment in SAG, irrespective of their inter-se-seniority, which is maintained, the seniority has to be determined for the purpose of eligibility list on application of Older the Senior rule and whosoever is older in age would have to be ranked senior, irrespective of the fact that the initial seniority was prepared in respective cadres on the basis of initial merit accorded to them.
58. Applying the aforesaid in case of Shri Jayalal, what we find that his date of appointment in SAG of IB(P)S in AIR is 14.10.2004 but his date of birth is 16.5.1953 whereas applicants date of birth is 27.4.1953 and as such being older, he has to be considered senior to Shri Jayalal and should have been included for consideration. If inclusion of Shri Jayalal was on account of senior being ignored, this seniority of Shri Jayalal has been derived only on the basis of his being older to Shri Mandloi.
59. If the seniority is construed as per the date of birth and there is no inter-se-seniority operated among the cadres, then the respondents have approbated and reprobated by following the principle of Older the Senior in case of Shri Jayalal but not applying this principle and restructuring it to inter-se-seniority in each cadre in case of applicant. It is pertinent to note that this comparison and a decision as to seniority of Shri Jayalal with that of Shri Mandloi is in different cadres, which demolishes on contradiction the contentions raised before us by learned senior counsel.
60. It is trite law that when consideration for promotion is a fundamental right guaranteed under the Constitution of India and has to be operated in consonance with the statutory Regulations, then not following the Regulations and not applying the criteria in its letter and spirit, the proceedings of the Selection Committee get vitiated in law.
61. The concept of negative equality projected by learned senior counsel for respondent No.1 is another example of approbating and reprobating, as the decision dated 12.9.2008 has been found to be a decision in consonance with law and rules, as junior on eligibility if considered, senior has to be considered with relaxation in eligibility criteria and if it is taken in case of applicant, he is also eligible as on 1.1.2008, as he completes more than two years service and even in 2006, i.e., 14.10.2006, like in case of others half of the service had been completed. In such an event, creating the legal fiction to state that if the selection was illegal, then the applicant has no indefeasible right cannot be countenanced, as it is expected from administrative authorities to be very fair and straight in their actions. Having held the selection in a manner where the laid down criteria was adopted in breach when it is applied to the applicant, this has deprived him of a reasonable opportunity and a fair and equitable consideration for promotion, which is violative of a principle of equality enshrined under Article 14 of the Constitution of India.
62. If the action of the respondents to hold the selection was not illegal, as it is in pursuance of interim directions of High Court of Delhi by no logic or rationale, we cannot held such a selection as illegal and in such an event, the applicant has an indefeasible right to seek consideration for promotion. The case laws cited on behalf of respondents would not apply in the facts and circumstances of this case and the ratio is distinguishable.
63. Insofar as the plea that affected parties not being impleaded and right of Smt. Aruna Sharma is concerned, even if he selection is held, the selectee has no indefeasible right for appointment, as held by the Constitution Bench of Apex Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 47.
64. Moreover, respondent Nos. 2 & 3 have specifically stated that as the appointment was made subject to the outcome, they have not issued any appointment letter to Smt. Aruna Sharma. As such, no indefeasible right has been violated to afford her an opportunity in the wake of principles of natural justice.
65. Leave apart, seniority being a civil right can only be infringed by applying the rules, as held in State of U.P. & another v. Dinkar Sinha, (2008) 1 SCC (L&S) 38. In the instant case, the eligibility list has not been prepared and the seniority of applicant, vis-`-vis others, who participated in the selection, has not been rightly construed on application of valid and statutory regulations, which has affected his right. As such the same cannot be countenanced in law.
66. In the result, for the foregoing reasons, as we find that no appointment letter has been issued by respondent Nos. 2 & 3 to Smt. Aruna Sharma, CP-67/2009 as well as MA-156/2009 stand disposed of.
67. Resultantly, OA is allowed. Selection held by the Board for the post of Director General (Doordarshan) and the consequent interview held on 5.12.2008 are also set aside. Respondents are directed to hold the selection afresh after adhering to the directions of High Court of Delhi in CMs (supra) and the others candidates, who are eligible, shall also be considered. Applicant on deemed eligibility and seniority shall also be considered for the post of Director General (Doordarshan). Our observations made in the preceding paragraphs shall be adhered to while preparing the eligibility list and holding the selection. The above directions shall be complied with within a period of one month from the date of receipt of a copy of this order.
68. Manning the post of Director General (Doordarshan) being an important post, it cannot be left in limbo. Administrative exigencies in high public interest require that somebody should officiate on the post till the above directions for holding fresh selection stand complied with. We have deliberated on this issue and find that the earlier incumbent, who was in the feeder category and in fray for being considered for appointment as a departmental candidate for the post of Director General (Doordarshan) having not made to the post, the only alternative arrangement, which is feasible and practical is that Smt. Aruna Sharma, who was considered as a deputationist by the ACC and her appointment was cleared and also was short of only a formal appointment order by respondent Nos. 2 & 3, may be considered to officiate on the post of Director General (Doordarshan) till a final selection is made within the stipulated period, as specified above. However, we make it clear that neither any leverage nor any preferential right would accrue to her on account of this interim arrangement and shall not be construed as legitimizing her earlier appointment in the selection lawfully. However, the above observations should not be construed as juxtaposition to our conclusion arrived at. This is only an ad hoc arrangement to facilitate the administrative exigencies and it will expire as soon as fresh selection is finalized. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/