Central Administrative Tribunal - Delhi
Subhash Chander vs Union Of India Through on 12 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3270 of 2010 This the 12th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Subhash Chander, Inspector of Customs, Indira Gandhi International Airport, New Delhi. Applicant ( By Shri Padma Kumar S., Advocate ) Versus 1. Union of India through Secretary, Ministry of Finance, North Block, New Delhi-1. 2. Chief Commissioner, Central Excise Commissionerate (Delhi Zone), C.R. Building, I.P. Estate, New Delhi. Respondents ( By Shri R. N. Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Subhash Chander, an Inspector employed with the respondents, the applicant herein, complains of denial of consideration for promotion to the grade of superintendent despite being senior to many who are being considered. He seeks a direction to be issued to the respondents to consider him in the SC category for the post of Superintendent in the original DPC or by holding review DPC.
2. The facts on which the relief as mentioned above is sought to rest, as projected in the Original Application, reveal that the applicant belongs to SC category and appeared in the clerks grade examination 1981, and on having qualified the said examination, was allotted the department of Customs and Central Excise, where he joined as Lower Division Clerk (LDC) in the pay scale of Rs.260-400. He was promoted to the post of Upper Division Clerk (UDC) in the revised pay scale of Rs.1200-2040 in September, 1987, and became Tax Assistant in May, 1992. He was promoted to the post of Inspector on 18.12.1995 and joined the said post on 22.12.1995 on ad hoc basis, and was regularised on the said post on 28.3.2002. A seniority list of Inspectors came to be issued on 21.9.2004. The next higher post of Inspector is that of Superintendent and is governed by the statutory rules known as the Superintendents of Central Excise Recruitment Rules, 1986 (hereinafter to be referred as the Rules of 1986). It is the case of the applicant that as per the statutory rules, the eligibility service for higher post of Superintendent is eight years regular service, and that having been promoted to the post of Inspector on 28.3.2002, he completed the requisite period of eight years on 27.3.2010. In the year 1998, DOP&T had issued instructions to have the reckoning date of eligibility as 1st January of the year in which the DPC is held. It is his case that in view of the instructions, the eligibility can be reckoned from 1st January of the year only after the statutory rule is amended to that effect, and in the present case the statutory rule of 1986 is still in vogue and no amendment has been made therein. The respondents initiated action for conducting the DPC for the post of Superintendent on 29.10.2010 by seeking vigilance clearance in respect of following employees belonging to Scheduled Caste category, who are stated to be junior to the applicant:
(a) Shri Suresh Kumar (Seniority No.708)
(b) Shri G. S. Lahare (Seniority No.726)
(c) Shri V. K. Rajore (Seniority No.728)
(d) Shri Atul K. Pancholi (Seniority No.761)
(e) Shri Ashok Kumar (Seniority No.813)
(f) Shri Om Prakash (Seniority No.826)
(g) Shri Rajesh Kumar (Seniority No.829) The applicant is at seniority No.423, but has not completed eight years as on 1st January as per the instructions referred to above, and, therefore, his name has been left out. It is pleaded that if a junior is considered, the senior shall also have to be considered, and that in addition, the statutory rule contains a provision for relaxation for any category of employees. It is pleaded that in the past the respondents have been resorting to invocation of the relaxation clause for relaxing the eligibility period. It is then pleaded that the post of Superintendent is not sufficiently subscribed by the SC category employees and there are sufficient number of vacancies for accommodating the applicant even by relaxation, and, therefore, he made a representation on 23.9.2010 seeking relaxation in the eligibility criteria, but with no tangible results. It is in wake of the facts and circumstances as mentioned above that the present Original Application for the relief already indicated above has been filed.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. It has inter alia been pleaded in the counter reply by way of preliminary objections that the OA is not maintainable in view of the law laid down by the Honble Supreme Court in R. Prabha Devi & others v Government of India & others [(1988) 2 SCC 233], wherein it has been held that unless a public servant may fulfill the eligibility conditions, he cannot be promoted. While replying on merits, it is pleaded that rule 3 of the Rules of 1986 prescribes Inspectors with eight years of regular service as eligible to be considered for promotion to the grade of Superintendent and the DOP&T has fixed 1st January immediately preceding the relevant financial year-based vacancy year as the crucial date for reckoning the requisite eligibility service prescribed by the recruitment rules for promotion. DOP&T OM dated 17.9.1998 fixes the crucial date for determining the eligibility service prescribed in the recruitment rules for consideration of officials for promotion. No cause of action, it is pleaded, has arisen in this case, as none of the junior of the applicant in the grade of Inspectors has been considered for promotion. Fulfillment of eligibility condition, it is further pleaded, is pre-requisite to consider someone for promotion and thus the applicant has not been considered for not fulfilling eligibility condition relevant for promotion to be effected during the current year.
4. The applicant has filed rejoinder wherein the plea raised by the respondents that none of the junior of the applicant is being considered for promotion, has not been denied.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The only contention raised by the learned counsel representing the applicant is that the executive or administrative instructions cannot replace, modify, amend or alter the statutory rules, and, therefore, prescription of a cut-off date for consideration for promotional post as prescribed in the instructions referred to above would be illegal. It is stated that this precise question came to be debated and adjudicated by this Tribunal, wherein the plea raised, as mentioned above, was upheld. Reference in this connection is made to the decision of this Tribunal in OA No.607/2003 decided on 29.8.2003 in the matter of Gianeshwar Sawhney v Union of India.
6. Per contra, Shri R. N. Singh, learned counsel representing the respondents, would contend that present is not a case where the executive instructions may run counter to the statutory rules, and that the statutory rules only prescribe eight years service on the post of Inspector to be eligible for promotion to the post of superintendent, and further that the statutory rules nowhere prescribe a date of the year from which the eligibility shall have to be reckoned. The date of the year when an employee may complete eight years has not been provided under the statutory rules, and the same, it is urged, can be supplemented by executive instructions. Insofar as, the judgment of this Tribunal is concerned, it is urged that a writ against the same was filed before the Honble High Court, wherein the following order came to be passed on 7.12.2004:
Petitioners assail tribunal order dated 29th August, 2003 directing them to hold DPC for promotion to the post of Sr.PPS in the scale of Rs.12,000-16,500/- for vacancies occurring during 2002-2003 and consider respondent for promotion and to grant him consequential benefits if he was selected.
Petitioners case is that this respondent was not eligible under Rule 4 of the relevant rules read with OM dated 17.9.1998 as he had not completed three years service in the grade of Principal Private Secretary on 01.1.2002. Even according to petitioners, this respondent would have been eligible on 31.3.2002 which made a difference of two months or so.
It is not known on what basis petitioners had fixed the date of 01.1.2002 for counting the requisite service for eligibility. Be that as it may and since this respondent had retired from service and the direction passed by tribunal was innocuous which may or may not result in his promotion ultimately, we do not feel inclined to interfere in the tribunal order. However, this should not be taken as a precedent for determining any legal position enunciated by the tribunal in interpreting the terms of OM dated 17.9.1998.
Petition is dismissed with this.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The limited controversy which needs to be commented and adjudicated upon by this Tribunal, has since already been adverted to above. The eligibility rule, insofar as the same may be relevant prescribing eight years service for promotion to the grade of Superintendents reads as follows:
Inspector of Central Excise (ordinary Grade) with 8 years regular service in the grade, if any, rendered in the grade of Inspectors (Senior Grade). The instructions on which reliance has been placed by the respondents, and which, according to the applicant, would be contradictory to the rule, or would not be applicable till such time the rules are amended, read as follows:
G.I., Dept. of Per. & Trg., O.M. No.22011/3/98-Estt.(D), dated the 17th September, 1998 Fixing of crucial date of eligibility of officers to be considered for promotion by DPC.
The undersigned is directed to say that where the Recruitment/Service Rules lay down promotion as one of the methods of recruitment, some period of service in the feeder grade is generally prescribed as one of the conditions of eligibility for the purpose of promotion. Vide the Department of Personnel and Training Office Memorandum No.22011/7/86-Estt.(D), dated the 19th July, 1989, the crucial date for determining the eligibility of officers for promotion has been prescribed as under:-
1st July of the year in cases where ACRs are written calendar year-wise.
1st October of the year where ACRs are written financial year-wise.
2. The matter has been reconsidered by the Government and in supersession of the existing instructions, it has now been decided that the crucial date for determining eligibility of officers for promotion in case of financial year-based vacancy year would fall on January 1 immediately preceding such vacancy year and in the case of calendar year-based vacancy year, the first day of the vacancy year, i.e., January 1 itself would be taken as the crucial date irrespective of whether the ACRs are written financial year-wise or calendar year-wise. For the sake of illustration, for the panel year 2000-2001 (financial year), which covers the period from April 1, 2000 to March 31, 2001, and the panel year 2000 (calendar year), which covers the period from January 1, 2000 to December 31, 2000, the crucial date for the purpose of eligibility of the officer would be January 1, 2000 irrespective of whether ACRs are written financial year-wise or calendar year-wise.
3. The crucial date indicated above is in keeping with Para 9 of the Department of Personnel and Training Office Memorandum No.22011/9/98-Estt.(D), dated September 8, 1998 which prescribes a Model Calendar for DPCs. In accordance with Paragraphs 10 and 11 of the said Office Memorandum, these instructions will come into force in respect of vacancy years commencing from January 1/April 1, 1999 and will accordingly be applicable to all such subsequent vacancy years.
4. These instructions shall be applicable to all services/posts. The Recruitment/Service Rules may, therefore, be amended accordingly. All Ministries/Departments are requested to bring these instructions to the notice of all concerned, including Attached/Subordinate Offices, for guidance and compliance. This Tribunal in OA No.607/2003 in the matter of Gianeshwar Sawhney v Union of India & others, decided on 29.8.2003, indeed held in tune with the contention raised by the learned counsel representing the applicant. The Tribunal observed, thus:
4. We have gone through the DOP&T instructions dated 17.9.1998 (Annexure A-10) carefully. It has been stated in these instructions, These instructions shall be applicable to all services/posts. The Recruitment/Service Rules may, therefore, be amended accordingly. All Ministries/Departments are requested to bring these instructions to the notice of all concerned, including Attached/Subordinate Offices, for guidance and compliance. It means that these instructions were to apply only on amendment of the recruitment rules. Admittedly, the related rules have not been amended so far. As such, the unamended 2001 rules shall apply to the present case, as executive instructions (Annexure A-10) shall not override the provisions of the statutory rules. The observations as extracted above would manifest that what has been held is that till such time the rules are amended, unamended rules of 2001 would be applicable, as the executive instructions would not override the provisions of the statutory rules. No contradiction in the rules and instructions has been pointed out. Before we may further proceed in the matter, we may mention that in the writ filed against the order aforesaid, while disposing of the same, the High Court mentioned that the same be not treated as precedent. In the facts and circumstances of the case, the High Court did not interfere with the order passed by the Tribunal. The correctness of the law laid down by the Tribunal was not gone into, and it would appear that if the matter was to be gone into, a different view might have been taken, and it is for that precise reason, it appears, it was mentioned that the same would not be treated as precedent. Surely and admittedly, it is not to be a precedent for the High Court. The judgment of the Tribunal can never be a precedent for it, as the same may only have a persuasive value, but would not be binding. We are firm in our view that the observation that it would not be a precedent can only mean that it would not be a precedent for the High Court only. If that be the position and we may have a different view, we might have referred this matter to a larger Bench. However, we do not find it to be a case to do so as the same precise question came to be debated, even though as regards different instructions, before a Full Bench of this Tribunal in the matter of Garima Singh, etc. v Union of India & others (OA No.3278/2010 and connected matters, decided on 9.5.2011). In that regard, we may mention that the contention raised by the respondents as mentioned in para 18 of the judgment was that instructions/guidelines/OMs have no statutory character, and unless such instructions etc. may not have been incorporated by way of amendment in the statutory rules, the same would be of no meaning and consequence. The instructions subject matter of interpretation by the Full Bench pertained to relaxation in the eligibility criteria where a person junior was to be considered for promotion over his senior. The eligibility criteria was provided in the statutory rules. The case of the applicant was that the instructions conveyed through various OMs making mention of relaxation of eligibility criteria to some extent would be binding upon the State, whereas it would be urged by the State that having not been incorporated in the rules, the same would not be of any meaning and consequence. It is relevant to mention that, like in the present instructions, in the instructions dealt with by the Full Bench, there were similar words to amend the relevant rules so as to incorporate the relaxation in tune with the instructions. While referring to Article 73 of the Constitution of India, we observed that DOP&T OMs in question could well be considered as if issued by the executive of the Union in the legislative powers conferred upon it by Article 73, as they dealt with uncovered issues, i.e., a situation where a junior may be considered for promotion over and above his seniors, and where a senior may not have the eligibility criteria. We referred to the provisions of Article 73 and the entire case law on the point. In the present case as well, we find no contradiction in the statutory rules and instructions dated 17.9.1998, reproduced above. The eligibility criteria under the rules is of eight years of service. It does not talk of the date and month on which eight years would be taken as completed. The cut-off date as prescribed under instructions has been applied across the board and it is not even the case of the applicant that such a cut-off date is irrational. Once, the date of reckoning of eight years has not been prescribed under statutory rules, the same, in our considered view, can well be supplemented by instructions.
8. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/