Central Administrative Tribunal - Delhi
Ram Singh S/O Late Shri Kishan Singh And ... vs The Secretary, Ministry Of ... on 28 September, 2006
ORDER
M.A. Khan, J. (Vice Chairman)
1. The applicants in these OAs No. 1344/2006 and 1524/2006 are working on the post of Section Officer (SOs) on ad hoc basis. They have filed two identical OAs for a direction to the respondents to continue them to work as Section Officer on ad hoc basis till either they are promoted on regular basis or their services are replaced by regular Section Officers.
2. The facts relevant for deciding the two OAs, may be summarized as follows. The applicants were appointed as Assistants under Central Secretariat Service Rules 1962 (Rules 1962) and were allotted to the CSS (Grade-IV) cadre of Department of Agriculture and Co-operation. On 31.8.2005, the applicants in OA No. 1344/2006 (Annexure A-6) were appointed to the post of Section Officer (Group B Gazetted) in the pay scale of Rs. 6500-10500 on ad hoc basis in the CSS cadre of the Ministry of Agriculture and Co-operation for a period of one year or till regular incumbent becomes available, whichever is earlier. The order spelt out that the ad hoc appointment shall not confer any right to continue in the grade indefinitely or for inclusion in the said list for regular appointment or to claim seniority in the grade of Section Officer. The applicants in OA No. 1524/2006, were appointed to the post of Section Officer grade in CSS of the Ministry of Agriculture and Co-operation on ad hoc basis by orders dated 5.8.2005 and 19.9.2005 on identical terms and conditions.
3. The period of one year of ad hoc appointment of the applicants has already expired. The regular vacancies against which these applicants were promoted had become available as a result of restructuring of the cadre strength of Central Secretariat Service on 28.10.2003. The cadre strength of the Section Officer grade Office Memorandum dated 6.3.2004 on the subject of cadre restructuring in CSS so far as it related to the post of Section Officer provided for filling up of the post of Section Officer, 50% by way of LDCE and 50% by seniority. This process will take little time as a large number of vacancies have arisen in the grade, so ad hoc promotion may be made purely as a stop-gap arrangement from the Assistants till regular candidates in SOs grade became available through seniority/LDCE. The applicants, as such, were promoted on ad hoc basis though they belong to the Select Lists of Assistants of the year 1991 and 1992 whose turn for regular promotion has still not been matured. Here it will be pertinent to note that the Assistants of CSS working in 34 cadres in different Ministries/Departments had a common seniority list and the controlling authority for appointment and promotion in the cadre was the Ministry of Department of Personnel and Training of the Government of India. It will also not be out of place to mention here that as a result of restructuring of the cadre in CSS, the strength of the SOs in the grade of CSS in the cadre of Agriculture and Cooperation was enhanced to 118.
4. The bone of contention is the Office Memorandum of the respondents dated 1.5.2006 issued by the Department of Personnel and Training of the Ministry of Personnel, PG and Pensions of the Government of India, copy of which has been filed by the respondents. It appeared that the ad hoc promotion of certain junior Assistants to the post of Section Officer was resented by their seniors in the combined seniority list but working in other cadres/departments and in order to set right the anomaly, the DOP&T reviewed its earlier OM dated 20.4.2005, 25.10.2005 and 13.12.2005 in order to maintain uniformity in promotional prospect from the post of Assistant to the post of Section Officer in different cadres. The OM directed that no ad hoc promotions would be made from the grade of Assistant to the grade of Section Officer on decentralized basis by the cadres henceforth and that they would be made from amongst the Assistants whose names were included in the select list upto the year 1990 etc. As a result the applicants apprehended that they would be reverted to the post of Assistants and Assistants from other cadres, all being senior to them, would be appointed and replace them, so they have filed the present OAs.
5. The argument of the learned Counsel for the applicants in these two OAs is that these applicants were permanent officer of CSS cadre of the Ministry of Agriculture and Co-operation. On increase of the posts of SOs in the Ministry of Agriculture and Cooperation, a large number of vacancies became available. As per the Recruitment Rules, 50% of these vacancies were to be filled through LDCE and the remaining 50% by seniority. Till regular appointments were made to these posts, the respondents as per the Recruitment Rules, filled up these vacancies in the cadre of Ministry of Agriculture and Cooperation by making ad hoc appointment of the applicants initially for a period of one year. It is submitted that the applicants are now sought to be replaced by a second set of Assistants on ad hoc basis, which it is vehemently argued is not permissible under the Recruitment Rules. According to him, these applicants would not have any grudge if they are replaced by a regular appointee to the post of Section Officer.
6. Referring to the definition of Cadre and Long Term Appointment defined in Rule 2 of Central Secretariat Service Rules 1962, it is argued that temporary and ad hoc appointments are juxtaposed being long term appointment made under the rules on the post in the grade of Assistants in sub Ministry, as mentioned in the first schedule of the Rules. It is argued that ad hoc appointment to the post of Section Officer are made under Sub-rule (2) of Rule 13 of Rules 1962 and in accordance with this sub-rule, the temporary vacancies in the grade of Section Officer in a cadre shall be filled by appointment of persons approved for inclusion in the select list and any vacancy remaining unfilled thereafter shall be filled from among the officers of the Assistants Grade who have rendered not less than 8 years approved service in the grade and are within the range of seniority, subject to rejection of unfit. He drew our attention to Explanatory Memorandum to the Central Secretariat Service Rules, 1962 which in respect of Rule 13 has stated that minimum length of service has been laid down to avoid large disparity of promotion prospects in various cadres and if persons possessing minimum length of service were not available within the cadre, appointment would be made from a panel of such persons belonging to other cadres. The learned Counsel has argued that the officers of the Assistants Grade in other cadres would be considered for promotion against the temporary post or for ad hoc appointment only when such officers with prescribed qualifying service were not available in the cadre of Ministry of Agriculture and Cooperation. It is, therefore, submitted that the Office Memorandum dated 1.5.2006, the implementation of which has resulted in replacement of the applicants by another set of ad hoc appointees from other cadres would be in transgression of the Recruitment Rules of 1962. Administrative/Executive Instructions cannot override the statutory rules and the enactment as the Recruitment Rules have been made under Article 309 of the Constitution of India.
7. Conversely, the learned Counsel for the respondents has submitted that there are 34 CSS cadres in different ministries but there is no centralized cadre management of all these cadres and the controlling authority is Department of Personnel and Training of the Government of India. All appointments and promotions to the post of Section Officers grade of CSS are made through the combined seniority lists of all the cadres. It is submitted that 34 cadre units of CSS can make ad hoc appointment for a period upto one year and any further continuance on ad hoc appointment is to be done with the approval of the DOP&T. In view of the representation received from senior Assistants working in various cadre units and the information furnished by the cadre authorities, it was decided to make promotion on centralized basis of Assistants of Select List of 1990 to the post of Section Officer on ad hoc basis. Thus, any Assistant belonging to any Select List subsequent to select list of 1990 will stand reverted on completion of one year or on availability of ad hoc/regular Section Officer. It is submitted that the applicants belonging to the Select List of 1991 and 1992 and they are junior to the appointees of select list of 1990, so their present ad hoc appointment could not be extended beyond one year without approval of DOP&T and the cadre authority. It is further submitted that for appointment on regular basis nominations from select list of 2003 have already been issued by the DOP&T and 13 candidates have also been allocated. The finalisation of the select list of 2004 was in the process and 10 candidates from examination quota have since been nominated. According to him each years eligibility zones are fixed with reference to number of vacancies available and a person who falls within the zone of eligibility fixed for a select list year is to be considered for promotion as Section Officer. The applicants who were appointed on ad hoc basis on 30.6.2005 have completed one years period on 29.6.2006. The ad hoc appointment was resorted to as a stop gap arrangement and when the seniors became available from one cadre or reversion from deputation or for any other reason like regular or ad hoc appointment, juniors have to be reverted if vacancies for them are not available. It has been reiterated by the learned Counsel that ad hoc appointments in the grade of Section Officers in CSS is made under General Service Rules of deputation and not under Section 13(2) of Rules 1962.
8. The learned Counsel for the applicants has fairly admitted that regular appointment/promotion to the grade of Section Officer in CSS in different cadres are made by DOP&T. But, it is submitted, that temporary and ad hoc appointment against vacancies in a particular cadre are made from the officers of the grade of Assistants in CSS and not from the officers in the grade of Assistants in other cadre. The grievance of the applicant, as such, is that for appointment to the grade of Section Officer in the cadre of Agriculture and Cooperation, some officers in the grade of Assistant in CSS are being considered and if it happens, the applicants, who are working on the post on ad hoc basis, would be replaced by another set of ad hoc appointees, which is not permissible in law and would also be in contravention of the Recruitment Rules.
9. We have given due consideration to the submissions made at the bar. To appreciate the arguments of the learned Counsel for the applicants, we reproduce here the definition of the words cadre and the phrase long term appointment. We also reproduce Sub-rule (2) of Rule 13 along with the Explanatory Note of Rule 13 given in Explanatory Memorandum to the CSS Rules, 1962. They are as under:
(i) Cadre means the group of posts in the Grades of Section Officer and Assistant in any of the Ministries or Offices specified in Column (2) of the First Schedule and in all the offices specified against such Ministry or Office in column (3) of that Schedule.
(ii) Long Term Appointment means appointment for an indefinite period as distinguished form a purely temporary or ad hoc appointment, like appointment against a leave or other local vacancy of a specified duration.
Rule 13 - This rule relates to the mode of recruitment for the Section Officers Grade and the Assistants Grade. In order to avoid large disparities in promotion prospects in the various cadres, a requirement as to the minimum length of service has been laid down for promotion from one grade to another. If persons possessing such minimum length of service are not available within the cadre, appointments shall be made from a panel of such persons belonging to other cadres. In order to enable the Department of Personnel and A.R., Ministry of Home Affairs, to furnish such panels, Ministries will send to that Department lists of persons in the Assistants and Upper Division Clerks Grades who satisfy the requirement as to minimum length of service for promotion to the next higher grade. The Department of Personnel and Administrative Reforms, Ministry of Home Affairs will prepare a panel from amongst such persons. Ordinarily, the panel will contain not more than three names and the selection will have to be made by the cadre authority from those names.
10. Sub-rule (2) and its Explanatory Note would show that it provides for appointment against temporary vacancies in the Section Officers Grade in a cadre. Such temporary vacancy is first to be filled up from the persons who are included or approved for inclusion in the select list for Section Officers Grade in that cadre. Remaining vacancies, however, may be filled from the officers of the Assistant Grade, whose name is not included or approved for inclusion in the select list but who have not less than 8 years of approved service in the grade of Assistants on the basis of seniority subject to rejection of unfit. Sub-rule (2) clearly spelt out that even appointment against temporary vacancies in the grade of Section Officer is to be made first from the select list for the Section Officers grade in that cadre and if no such person is available, then only the other Assistants in the grade with minimum 8 years qualifying service would be considered on the basis of their seniority etc. The temporary vacancies in the grade of Section Officer in a cadre are to be filled from the officers of the grade of Assistant either from those whose names are on the select list or others with prescribed years of service, as the case may be, available in the said cadre. In other words, officers in the grade of Assistant working in other cadres will not be eligible for appointment to the grade of Section Officers available in the cadre to which they do not belong.
11. But in the present case the appointment of the applicants on ad hoc basis by order dated 31.8.2005 is not against temporary vacancies in Section Officers Grade. These ad hoc appointments were manifestly made against regular vacancies in Section Officers Grade which became available as a result of increase in the strength of the grade of Section Officer in the cadre of Ministry of Agriculture and Cooperation. The applicants were even otherwise not appointed in the grade of Section Officer on temporary basis. Their appointment was on ad hoc basis. Clause (s) of Rule (2) of Rules 1962 defines a temporary officer as a person holding temporary or officiating appointment in the grade on the basis of his being regularly approved for such appointment. Reference to the definition of long term appointment given in Clause (l) of Rule 2, to our view, is misconceived. By this clause long term appointment was defined as an appointment for an indefinite period has distinguished purely from ad hoc or temporary appointment meaning thereby that temporary appointment and ad hoc appointment were not long term appointment. Cadre officer, which is defined in Clause (g) of Rule (2) included, the members of the service in the cadre of Section Officers grade or the Assistants grade as the case may be and it also included temporary officer approved for long term appointment to that grade. The temporary appointment may be made against a permanent/regular vacancy in the grade of Section Officer or the grade of Assistants, as the case may be, or against a temporary vacancy. It is admitted case of the parties that the applicants were not appointed against temporary vacancies in the grade of Section Officers so their appointment, by no stretch of reasoning, could be treated to be an appointment made under Sub-rule (2) of Rule 13. Even if the definition of the word temporary appointment is stretched to include in its ambit the ad hoc appointment, we do not agree that ad hoc appointment could be made against regular or long term vacancy by virtue of Sub-rule (2) of Rule 13 of Rules 1962.
12. According to the respondents, as per the existing instructions, ad hoc appointment to the post of Section Officer up to the period of one year is made by the cadre units, i.e., within the department but for extension of the ad hoc appointment beyond the period of one year, requires approval of the DOP&T, which is the centralized cadre management authority. The regular appointment and promotion to the post of Section Officer in different cadre units is made from the combined seniority list in the seniority quota or LDCE quota by the DOP&T on the basis of the Select List prepared. If the cadre authority is DOP&T, which is competent to make appointment and promotion from the Assistant grade to the grade of Section Officer in CSS on regular/permanent basis, it would be competent to make appointment/promotion to the cadre of Section Officer of CSS against regular vacancies/long term vacancies on temporary or ad hoc basis. The cadre unit, however, may make promotion to the Section Officers' grade against temporary vacancies from amongst the officers of Assistant Grade available in the cadre in accordance with Sub-rule (2) of Rule 13.
13. We have not been shown any rule or the government instructions which authorizes the cadre unit to make appointment of the officers of Assistant grade in CSS of that cadre unit to the post of Section Officers grade against the regular or long term vacancies in Section Officers' Grade available in that cadre unit on ad hoc basis beyond the period of one year without obtaining the approval of the DOP&T. DOP&T is the cadre authority and is competent to make ad hoc appointment in Section Officers grade against the regular vacancies or long term vacancies, as held above.
14. Reverting to the question whether the applicants have any right to continue to the extension of their ad hoc appointment after one year for which they were appointed by order dated 1.5.2005, suffice to say that ad hoc appointment does not confer any right on such appointees to claim extension of their ad hoc appointment on the expiry of the period of their appointment. The applicants in these cases have prayed that their ad hoc appointment on the post of Section Officer should be continued till persons, who are appointed to the said post on regular basis, becomes available or they are promoted to the said post on regular basis. Such a prayer cannot be granted. The period of ad hoc appointment is within the domain of the State Policy and the applicants cannot ask for extension of the ad hoc appointment as a matter of right. The ad hoc appointment may be terminated on the expiry of the period of such appointment and the persons may be repatriated to the post on which they are holding the lien or have their substantive appointment. The ad hoc appointment may even be terminated prematurely on justifiable grounds. The termination of ad hoc appointment could be challenged only on mala fide grounds (see ________________________). The applicants, as such, cannot be granted the first relief that their ad hoc appointment should be continued till a regular appointee becomes available for replacing them or they themselves are promoted to the post of Section Officer in accordance with the Recruitment Rules.
15. Confronted with this position in law, the applicants have vehemently argued that they are being replaced by another set of officers of Assistant Grade appointed on ad hoc basis. It is argued that on general principle an ad hoc appointee cannot be replaced by another set of ad hoc appointees. But it is not an exclude rule depending on the facts of each case whether ad hoc appointment may be terminated to appoint someone else on the same post on ad hoc basis. Needless to state that even in the matter of ad hoc appointment the seniority cannot be ignored altogether. Therefore, if a senior becomes available for promotion, the junior who was promoted on ad hoc basis could be reverted to make ad hoc appointment of the senior. In the present case the Assistants, who are in the select list waiting for their appointment to the grade of Section Officer, were aggrieved that their juniors whose names were not approved or included in the select list and even their turn has not come for promotion, have been promoted to the Section Officers grade, although on ad hoc basis, before them in certain cadres. On promotion, those seniors could be promoted is not denied even to the cadre of Agriculture and Cooperation in which these applicants are working. The Government, therefore, had to review its earlier Office Memorandum which had allowed that ad hoc appointment to the available vacancies in the grade of Section Officer from and within the cadres. For valid and justifiable reason, the DOP&T has now decided to appoint officers of the Assistant Grade in the select panels for promotion to the grade of Section Officers available even on ad hoc basis. There is no flaw or illegality in this order of the respondents. The ad hoc period of the applicants have already expired. The applicants are controlling to work on the post of Section Officer under the interim order of this Tribunal passed in the present proceedings. They have no indefeasible right to work in the said grade when seniors are eligible and available for being posted even on ad hoc basis by the cadre authority.
16. For the reasons stated above, we do not find any merit in any of the two OAs. OAs are accordingly dismissed. Interim order stands vacated.