Central Administrative Tribunal - Delhi
Oa No.2701/2009 vs Union Of India on 7 January, 2010
Central Administrative Tribunal Principal Bench OA No.2701/2009 OA No.3222/2009 New Delhi, this the 7th day of January, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. OA No.2701/2009 Lt. Col. R. K. Purohit Assistant Director (AG) S/o Dr. Kulanand Purohit HQ SFF, East Block-V, R. K. Puram, New Delhi-66. Applicant. (By Advocate: Sh. L. R. Khatana with Mrs. Pratima Gupta) Versus 1. Union of India Through Secretary (DOPT) North Block, New Delhi. 2. Special Secretary, ARC & HOD (SFF) C/o Office of IGSFF Directorate General of Securities East Block-V Level-IV, R. K. Puram, New Delhi. 3. IG, SFF East Block-V, Level-IV, R. K. Puram, New Delhi. 4. Cabinet Secretariat Bikaner House (Annexe) New Delhi. 5. Deputy Director (C) Office of the IG, SFF East Block-V, Level-IV, R. K. Puram, New Delhi. . Respondents. (By Advocate : Sh. B. K. Barera) 2. OA No.3222/2009 Col. Mani Ram S/o Late Shri Krishan Datt HQ SFF, East Block-V, R. K. Puram, New Delhi-66. . Applicant. (By Advocate: Sh. L. R. Khatana with Mrs. Pratima Gupta) Versus 1. Union of India Through Secretary (DOPT) North Block, New Delhi. 2. Special Secretary, ARC & HOD (SFF) C/o Office of IGSFF Directorate General of Securities East Block-V Level-IV, R. K. Puram, New Delhi. 3. IG, SFF East Block-V, Level-IV, R. K. Puram, New Delhi. 4. Cabinet Secretariat Bikaner House (Annexe) New Delhi. 5. Deputy Director (C) Office of the IG, SFF East Block-V, Level-IV, R. K. Puram, New Delhi. . Respondents. (By Advocate : Sh. B. K. Barera) :ORDER: Dr. Ramesh Chandra Panda, Member (A):
By this common order, with the consent of the counsel for the parties, we are examining the common issues raised and common relief prayed for in the OA No.2701/2009 and OA No.3222/2009. Both the cases were heard together by us on 21.12.2009.
2. In OA No.2701/2009, while issuing notice to the Respondents on 24.9.2009 at the admission stage, it was ordered that meanwhile if any appointment is made on the post of Deputy Director (G), the same shall be subject to decision of this Original Application. It is further directed that any one who is appointed on the said post shall be informed about this fact by making a mention in the appointment letter. The above interim direction has been continuing.
3. Lt. Col. R. K. Purohit, the Applicant In OA No.2701/2009, joined Indian Army on 26.8.1982 and was promoted to the rank of Major in December 1993. He joined as the Assistant Director (General Duty) on 17.4.2001 in Special Frontier Force (SFF) in the office of the Respondent No.3 on deputation basis and was promoted in the Indian Army to the rank of Lt. Colonel in July 2001. As the post of Assistant Director SFF fell vacant during January 2003, he applied for the same and was appointed on 2.12.2003. He vide his representation dated 22.6.2009 (Page-29) requested the IG SFF to consider his past service in Indian Army to be taken into account for his promotion to the post of Deputy Director which was to fall vacant on 31.8.2009 due to superannuation of Shri S. K. Baveja. He followed it up with another detailed representation on 7.7.2009 (Annexure A-5) addressed to Special Secretary/Director General of Security, Cabinet Secretariat. The IG SFF by a letter dated 25.06.2009 (Page 15) and DG of Security vide his letter dated 28.07.2009 (Annexure A-2) responded to the Applicant informing him that qualifying regular service as Assistant Director for promotion to the post of Deputy Director is 12 years as per the Recruitment Rules (RR) and the provision of counting the past service rendered in the Indian Army before re-employment was a one time measure and same was not applicable to him. Thus, his request to take into account the past Army Service for promotion to the Deputy Director post was not acceded to.
4. Col. Mani Ram, the Applicant in OA No.3222/2009, who joined Indian Army on 21.12.1979, came on deputation to the post of Assistant Director (General duty) in the rank of Major and reached rank of Lt. Colonel (on 29.02.1996) and Colonel (w.e.f. 22.12.2005), applied for the post of Assistant Director in SFF and on selection was appointed on 1.1.2006. As in the case of Applicant in OA No.2701/2009, he also requested to consider his past service for promotion to the post of Deputy Director which was not accepted.
5. Both Applicants being aggrieved by the Respondents reply dated 25.6.2009 (Annexure A-1) and 28.7.2009 (Annexure A-2), have assailed the same in their respective OA, and are before this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with following prayers :
a. to quash the impugned order dated 25.6.2009 (Annexure A-1) and order dated 28.7.2009. b. To declare the NOTE as a one time measure, the existing Assistant Director with 5 year regular service in Grade shall be eligible to count their past services in the Army in the grade equivalent to that of Assistant Director, for counting total qualifying service of 12 years for promotion to the Grade of Deputy Director Inserted in the recruitment rules of 2002 a ultra vires to Constitution of India & null & void. c. declare the applicant eligible for the post of Deputy Director.
d. direct the Respondents to conduct review DPC and consider the case of applicant for promotion for post of Deputy Director. e. consequently direct the Respondents to promote the applicant to the post of Deputy Director. f. Any other and further relief as deemed fit and properly by the Honble Tribunal.
6. Shri L. R. Khatana assisted by Mrs. Pratima Gupta, the learned Counsel representing both Applicants, has contended that as there are no promotional opportunities available in the SSF to the Officers working on the post of Assistant Director and the only opportunity is to be promoted to the rank of Deputy Director, the Recruitment Rules framed in the year 2002, more specifically the Note inserted therein over the previous Recruitment Rules are arbitrary, discriminatory and unreasonable. He also contended that the retired Lt. Col./Col. of the Indian Army appointed as Assistant Director on re-employment would never have 12 years of service to be considered for promotion to the post of Deputy Director. This is being acknowledged as the fact since the Lt. Col./Col. normally retire at 54 years of age. It is also stated that there being no feeder category/grade for the Assistant Director for the purpose of promotion, by promoting the Applicants to the post of Deputy Director nobody is going to be affected. The Note providing 12 years of service in the grade (i.e. Assistant Director) has been so interpreted by the Respondents which Shri Khatana argues that the exception has over ruled the main rule. In the Column 11, the Recruitment Rules for the post of Deputy Director envisages promotion as the first option failing which other means of filling of the post would arise. Therefore, the promotion of the Assistant Director to the said post of Deputy Director need to be considered by the Respondents in the first instance. Shri Khatana drew our attention to Para 4(1) of DOPT OM dated 16.06.1980 which stipulates that officers reemployed prior to the attainment of age of superannuation will be treated as direct recruits and drawing similarity, he argued that the amendment in the RR for promotion to the post of Deputy Director goes against the principles envisaged in the above cited OM of the DOPT. Citing the said OM, Shri Khatana submitted that since the Applicants have joined on reemployment prior to superannuation they should be treated as direct recruits and their past service in Indian Army should be considered for the purpose of promotion. He placed reliance on the judgment of Honble Supreme Court in Smt. Renu Mallick Versus Union of India & Another [JT 1993 (6) SC 527]. He also highlighted that the qualification and experience as envisaged in the Assistant Directors post is such that the post would get filled up only from the rank of Lt. Col. and above in the Indian Army. Therefore, his argument was that the Note indicating one time relaxation should be given to the existing Assistant Directors for promotion to the post of Deputy Directors.
7. On the other hand, Shri B. K. Berera, learned Counsel for the Respondents, very vehemently opposed the contentions put forward by Shri Khatana. Shri Berera submitted that the Respondents have authority under the Constitution to frame statutory rules to regulate the recruitment process for various posts in the Government. The Rule making power is the legislative function which cannot be challenged unless arbitrariness and discrimination violating the fundamental rights enshrined in the Constitution is clearly spelt out. He also submitted that the contentions and the arguments put forward by the Applicants have not shown any such discrimination or arbitrariness. He also submits that the judicial restraint need to be applied insofar as challenging the rules framed under Article 309 of the Constitution of India and, therefore, he submitted that the RR 2002 are the rules framed by proper application of mind and taking into account the circumstances and, therefore, it cannot be called unconstitutional by any means. He also brought to our notice that the Special Frontier Force was created and many posts are being filled up by Army Officers on deputation. The Organisational requirements has been undergoing changes, and accordingly the Recruitment Rules have undergone changes keeping in view the needs of SFF. He also drew our attention to OA No.2701/2009 to show that Applicant was appointed on 2.12.2003 as Assistant Director and would be completing 12 years of service in 2015 and he would still be left with 4 and = years of service if he gets promoted in the year 2015 to the post of Deputy Director. Therefore, he opposed the contention that all those who joined as Assistant Director in SFF coming from the Lt. Col. level would not have adequate time to serve and get promoted to the post of Deputy Director. Shri Berera relied on the judgment of Honble Supreme Court in the case of Union of India and Another Versus G. R. K. Sharma [JT 1998 (7) SC 241] to state that the period prescribed in the regular grade as a condition for promotion is applicable in the present OA. In the above background he submits that both the applications being devoid of merits need to be dismissed.
8. It is not in dispute that Deputy Director (General) is a selection post. The Recruitment Rules of 1977 (RR 1977) were amended on 27.12.1995 (RR 1995) and again amended in 2002 (RR 2002). It is an admitted fact that Column 12 in RR of 1977, RR of 1995 and RR of 2002 are not uniformly same. Changes have been carried out in each RRs. In the Government of India, Cabinet Secretariat Order No.49011/07/2001-DO-1-114 dated 1.4.2003, number of Deputy Directors posts was indicated to be 3. The method and manner of filling up the post of Deputy Director (General) have undergone changes and the RRs applicable and impugned by the Applicants are the RRs 2002. Columns 11 and 12 more specifically the Note in column has come up for arguments during the hearing. Thus, we extract the provision in both columns which read as follows :
11 12 Promotion failing which by Deputation/re-employment Promotion:-
Assistant Director (General Duty), Assistant Director (Logistic), Assistant Director (PTS) and Assistant Director (Signals) with 12 years regular service in the grade. Note :- As a one time measure the existing Assistant Director with five years regular service in the grade shall be eligible to count their past service in the Army in the grade qualification to that of Assistant Director for counting total qualifying service of 12 years for promotion to the grade of Deputy Director. Deputation :- Brigadiers serving on regular basis in the Army in the pay scale of Rs.16,700-450-18,050/- plus Rs.2400/- as Rank pay and should have qualified the Defence Service Staff College Course. Desirable :-
(a) Officers should have :-
(i) Commanded an Infantry / Mountain / Armoured / Artillery / Engineer Brigade or.
(ii) Qualified in Higher Command Course, or.
(iii) Qualified in Long Defence Management Course or.
(iv) Held the appointment of Brig General Staff, or Brig Administration or Brig Quartermaster or Sub Area Commander.
OR
(b) Army Officer who have served in the SFF for a period of at least two years and having been approved by Armys Promotion Board to the Rank of Brigadiers.
Note :- (i) The maximum age for appointment by deputation shall not exceed fifty three years as on the closing date of receipt of application.
(2) The period of deputation including the period of deputation in another Ex-cadre post held immediately preceding this appointment shall ordinarily not be exceeding four years.
3. Re-employment : Retired Army Officer of the rank of Brigadiers in the pay scale of Rs.16,700-450-18,050/- with 2,400/- Rank pay who should not have completed the age of 57 years on the last day of receipt of application and should have qualified the Defence Service Staff College Course and having desirable qualification as specified above for deputation.
9. It is admitted fact that there are 6 posts of Assistant Director (GD) in Special Frontier Force (SFF). The promotional avenue for the post of Deputy Director is from the Assistant Director subject to the eligibility conditions mentioned in the Recruitment Rules. It is not necessary that as and when vacancies arise the existing Assistant Directors can be immediately promoted even de hors the Recruitment Rules. In case of both the Applicants, they have taken premature retirement from the Indian Army and have not submitted technical resignation and joined as Assistant Director on re-employment. The RRs 2002 provide that the Assistant Directors for the purpose of promotion to the rank of Deputy Director must have put in 12 years of regular service in the rank of Assistant Director. It is a fact that one post of Deputy Director fell vacant on 1.09.2009 but none of the Applicants fulfill the requisite 12 years of regular service in the post of Assistant Director. Therefore, on the eligibility criteria alone, the Applicants are not entitled to be considered for the post of Deputy Director and accordingly the letters dated 25.6.2009 and 28.7.2009 sent by the Respondents are held as valid under the RR 2002.
10. The Government has the power to frame rules as per provisions contained in Article 309 of the Constitution of India. The same can indeed be challenged on variety of grounds, inclusive of that the same are arbitrary or discriminatory. We find no arbitrariness or discrimination that may have been meted out to the Applicants in prescribing 12 years regular service for promotion on the post under contention. It is no doubt true that the first mode of appointment on the post of Deputy Director as provided in the Recruitment Rules of 2002 is promotion, and it is only failing such method of appointment that deputation or reemployment may have to be resorted to, but it is not a case, as adverted to above, where persons in the feeder post with requisite period of service may not be available at all. The Applicants themselves, as mentioned above, would be eligible, even though later in point of time and would still serve for a period of four and a half years.
11. Another contention was raised by the counsel for the Applicants citing the example of DOPT OM dated 1.09.1998 where the counting of past services at the time of lateral entry on direct recruitment basis for promotion to the higher grade is taken into account. We find that this OM dated 1.09.1998 is not applicable in the case of Applicants since the said OM of DOPT governs only the Group A services and is not applicable to the officers for counting their past service in the Indian Army.
12. If the rules may not permit counting of the past service for purposes of eligibility, i.e. 12 years continuous service in the post of Assistant Director, the courts cannot supply the same. Reemployment being a new employment after retirement or premature retirement from the past service, the service rendered before reemployment would have no relevance for the eligibility prescribed for promotion to the higher post. Therefore, on this count as well, the Applicants have failed to convince us to intervene in the matter.
13. Considering the totality of facts and circumstances of the case and our discussion as above, we come to the considered conclusion that the Respondents exercising their power under Article 309 of the Constitution of India have very rightly amended and framed the Recruitment Rules in 2002 and the same being intra vires of the Constitution are tenable in the eyes of law. We also find that the Applicants have not made out a case in their favour to consider their past services in the Indian Army for the purpose of considering them to be promoted to the post of Deputy Director. In the result, the Applicants have failed to convince us to intervene in the matter and both the Original Applications, therefore, being devoid of merits are dismissed and the interim directions issued earlier are vacated. Let a copy of this order be placed in each of the OAs. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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