Central Administrative Tribunal - Jaipur
Sanjay Yadav And Ors. vs Union Of India (Uoi) And Ors. on 24 December, 2002
Equivalent citations: 2003(3)SLJ378(CAT)
ORDER
G.L. Gupta, J. (Vice Chairman)
1. The reliefs claimed in the O.A. are as follows:
(i) a direction to the respondents to include the two years probation period of the applicants while computing the length of their regular service.
(ii) a direction to the respondents to convene DPC to consider the applicants for promotion to the post of Selection Scale Divisional Accountant (now re-designated as Divisional Accounts Officer Gr. II) and grant seniority to the applicants from retrospective effect.
2. The case for the applicants No. 1 to 3 in brief is that they are Divisional Accountants and are eligible to be promoted to the post of Divisional Accounts Officer Gr. II, as they have put in more than 5 years service in the grade of Divisional Accountant, but the respondents are not counting the probation period of two years.
3. In the counter, the respondents' plea is that the application is premature and also that the applicants are not eligible to be considered for promotion to the post of Divisional Accounts Officer Gr. II, because the probation period of two years cannot be counted as 'regular service.'
4. We have heard the learned Counsel for the parties and perused the documents placed on record. In the O.A. there is a reference of Rules, 1988 and at one place Rules of 1989. However, it was submitted by both the learned Counsel that Rules of 1987, known as Indian Audit and Accounts Department (Selection Grade Divisional Accountant) Recruitment Rules, 1987, are applicable, to the applicants.
5. The Rules of 1987, were promulgated by the President of India under Clause (5) of Article 148 of the Constitution of India, providing the method of recruitment, age limit, qualifications etc., and other matters relating to various posts specified in Columns 5 to 15 of the Schedule, annexed to the Rules.
In the Schedule, the post of Selection Grade Divisional Accountant re-designated as Divisional Accounts Officer Gr. II is mentioned at page 188 of the Appendix 19. In the said Schedule, it is stated that the post of Selection Grade Divisional Accountant is a non-selection post. At. Col. 12 it is stated as follows:
12.
In case of recruitment by promotion/deputation/ transfer, grades from which promotion/ deputation/transfer to be made.
Promotion Divisional Accountant in the grade of Rs. 1,400-2,600 with five years regular service in the grade.XXX XXX.
6. A Divisional Accountant in the pay scale of Rs. 1,400-2,600 with five years regular service in the grade is eligible for promotion to the post of Selection Grade Divisional Accountant. Admittedly, applicant No. 1 was appointed as Divisional Accountant and he completed the probation period on 27.6.98, the second applicant on 17.8.97 and the 3rd applicant on 22.5.99. On completion of the probation, they were confirmed in the said post vide orders dated 10.10.2000 and 13.6.2001 (Annex. I and II)
7. The apprehension of the applicants is that they will not be considered for promotion to the post of Selection Grade Divisional Accountant since two years probation period spent by them in the grade of Divisional Accountant will not be counted while considering their eligibility.
We would have dismissed the O.A. as being premature but keeping in view the averments made in the reply, we think it proper to decide the legal issue involved which will avoid further litigation.
8. The respondents' case is that the period of probation is not to be counted as 'regular service' while computing the 5 years regular service in the grade of Divisional Accountant for the purpose of promotion, in view of the letter of the Comptroller and Auditor General of India, dated 28.12.99.
9. It is not in dispute that if the probation period is also counted as 'regular service' the three applicants will be eligible to be considered for the post of Selection Grade Divisional Accountant.
10. The Comptroller and Auditor General of India's letter dated 28.12.99, was addressed to the Accountant General (A&E), Rajasthan, Jaipur. The same is reproduced hereunder:
Sub : Promotion of Divisional Accountant to Divisional Accounts Officer Gr. Ii I am directed to refer to your office letter No. WM/A'Cs /Promotion/DAO II/ 1323 dated 15.12.99 on the subject mentioned above and to state that the regular service prescribed for promotion as DAO Gr. II is reckoned from the date of taking over regular charge of the post of Divisional Accountant after successful completion of probation period. The period of probation is not taken into account for this purpose.
Yours faithfully Sd/-
A.K. Sinha Administrative Officer (APP) The text of the letter is that regular service prescribed for promotion as Divisional Accounts Officer Gr. II is from the date of taking over charge of the post of Divisional Accountant after successful completion of the probation period.
11. It may be pointed out that in the Rules 1987 or Schedule appended to the Rules, it is no where provided that five years 'regular service' of the Divisional Accountant would be after successful completion of the probation period. It is not clear on what basis the CAG has issued the clarification.
12. Rules of 1987, have been promulgated by the President of India in exercise of power under Article 148(5) of the Constitution of India. The CAG in our opinion did not have the power to issue instructions not in consonance with the Rules. He could not change the position envisaged in the Rules of 1987. Therefore, the CAG letter of 28.12.99 has to be ignored.
13. The Hon'ble Supreme Court in the case of K. Madhavan and Anr. v. Union of India and Ors., (1987) 4 SCC 566, has explained the expression 'on a regular basis.' It was observed that the period spent on probation shall also be counted for the purpose of computing the service on a 'regular basis'. The relevant observations appearing at para 10 of the report are reproduced hereunder:
"The 1975 Rules which are relevant for the purpose do not explain what is meant expression 'or a regular basis'. The expression has created some ambiguity in the eligibility clause giving raise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation his appointment is no a regular basis, but when a person is appointed to a post on a purely temporary or on an adhoc basis, the appointment is not on a regular basis. The expression 'on a regular basis', in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SP. The general principle is that in the absence of any specific provision to the contrary the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the purpose of seniority or eligibility for the higher post from the date of appointment. In our view, therefore, the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contra-distinction to appointment on adhoc or stop gap or purely temporary basis.....
(Emphasis supplied) In the Rules of 1987 the expression 'regular basis' has not been defined. Therefore, the interpretation in the aforesaid Ruling applies fully to the Rules of 1987.
Their lordships of the Supreme Court have reiterated the observations in L. Chandra Kishore Singh v. State of Manipur and Ors., (1999) 8 SCC 287, wherein it was observed at para 15 of the report as under:
"It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the services rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority and shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G.P. Doval v. Chief Secretary Govt. of U.P. (1977) 3 SCC 399.
(Emphasis supplied) In the case of Keshav Chandra Joshi and Ors. v. Union of India and Ors., AIR 1991 SC 284=1991 (2) SLJ 42 (SC), it was held as under:
"Once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of confirmation."
14. In the Rules of 1987, it is not provided that the probation period shall not be counted for computing regular service while considering the case of the individual for promotion to the post of Selection Grade Divisional Accountant. Since there is no specific provision for excluding the probation period of two years for the purpose of computing regular service, it has to be held that the two years period spent on probation by the applicants is to be counted towards regular service.
15. The applicants also seek a direction to convene the meeting of the DPC to consider their case for promotion to the post of Selection Grade Divisional Accountant. Such a direction cannot be given. The Court cannot compel the department to fill up any vacancy or post. It is for the respondents to convene DPC as per the requirement.
16. Consequently, the application is allowed in part. It is held that the respondents shall include the two years period spent on probation by the applicants while considering the eligibility of length of service on regular basis for promotion to the post of Divisional Accounts Officer Gr. II.
17. No order as to costs.