Central Administrative Tribunal - Bangalore
M C Nanda vs Income Tax Appellate Tribunal on 21 July, 2023
1 OA No.282/2019/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00282/2019
ORDER RESERVED ON : 11.07.2023
DATE OF ORDER : 21.07.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Mrs.M.C.Nanda,
W/o G.Hanumantharayappa,
Aged about 59 years,
Working as Senior Private Secretary,
Office of Income Tax Appellate Tribunal,
2nd & 3rd Floors, Golden Jubilee Building,
FKCCI, K.G.Road,
Bangalore
alore -560009.
Resident of: No.75A (N), 2nd Cross,
Kendriya Nagara, Banashankari 6th Stage,
Talagattapura Post, Bangalore -560109. ...Applicant
(By Party in person )
Vs.
1. The President,
Income Tax Appellate Tribunal,
3rd & 4th Floors, Pratishta Bhavan,
Maharshi Karve Road,
Mumbai -400020.
2 OA No.282/2019/CAT/BANGALORE BENCH
2. The Union of India,
Represented by its Secretary,
Ministry of Law & Justice,
Department of Legal Affairs,
New Delhi.
3. Smt. Rajani P.G.
Assistant Registrar,
Income Tax Appellate Tribunal,
2nd & 3rd Floors, Golden Jubilee Building,
FKCCI, K.G.Road,
Bangalore -560009.
4. Shri Manoj
Ma Kashyap,
Assistant Registrar,
Income Tax Appellate Tribunal,
G-4,
4, Rajmahal Residency Area,
C-Scheme,
Scheme, Jaipur-302006.
Jaipur
5. Shri Biju P.K.,
Assistant Registrar,
Income Tax Appellate Tribunal,
3, 2nd Floor, Rajaji Bhavan,
A-3,
Besant Nagar, Chennai-600090.
Chennai
6. Smt. Anupama Ghera,
Assistant Registrar,
Income Tax Appellate Tribunal,
Kendriya Sadan, Sector 9-A,
9
Chandigarh - 160017.
3 OA No.282/2019/CAT/BANGALORE BENCH
7. Shri Manish Bhoi,
Assistant Registrar,
Income Tax Appellate Tribunal,
CGO Complex, 1st Floor, A Wing,
Shivaji Chouraha, A.B.Raod,
Indore - 452001.
8. Shri Madhuraj Singh Narwaria,
Assistant Registrar,
Income
ncome Tax Appellate Tribunal,
6th and 7th Floors, 225/C,
A.J.C. Bose Road,
Kolkata
Kolkata-700020.
9. Shri R.R.Wankhede,
Assistant Registrar,
Income Tax Appellate Tribunal,
3rd & 4th Floors, Pratishta Bhavan,
Maharshi Karve Road,
Mumbai -400020.
10. Smt.Rajni Haldankar,
Assistant Registrar,
Income Tax Appellate Tribunal,
3rd & 4th Floors, Pratishta Bhavan,
Maharshi Karve Road,
Mumbai -400020.
11. Smt.Leena A. Vaz,
Assistant Registrar,
Income Tax Appellate Tribunal,
3 & 4th Floors, Pratishta Bhavan,
rd
Maharshi Karve Road,
Mumbai - 400020.
4 OA No.282/2019/CAT/BANGALORE BENCH
12. Shri K.C.Meena,
Assistant Registrar,
Income Tax Appellate Tribunal,
27
27-A, Hanuwant Vihar,
Ria Ka Bag,
Jodhpur
Jodhpur-342001 (Rajasthan). ....Respondents
(By Advocate,
Advocate Shri N.Amaresh for Respondents No.1 and 2, Party
in person for Respondent No.3 and None appears for Respondent
No.4 to 12 )
ORDER
Per: Justice S.Sujatha ...........Member(J)
This application is filed by the applicant under Section ion 19 of the Administrative Tribunals Act, Act, 1985 seeking the following reliefs reliefs:
"(i
(i) Call for relevant records leading to the issuance of impugned order F.No.45-Ad(AT)/2018 F.No.45 Ad(AT)/2018 dated 04.10.2018 (Annexure A11) A ) which was issued based on the letter F.No.12023/1/2018 Admn.III(LA) dated 01.10.2018, issued F.No.12023/1/2018-Admn.III(LA) by the Respondents and on perusal.
(ii) (ii direct the Respondents No.1&2 to consider the case of the applicant for the grant of promotion to the post of Assistant Registrar in terms of Recruitment Rules of 1975 from 04.10.2018 i.e., the date on which the juniors i.e. Respondent No.3 to 12 are promoted while quashing the 5 OA No.282/2019/CAT/BANGALORE BENCH impugned order F.No.45-Ad(AT)/2018 F.N Ad(AT)/2018 dated 04.10.2018 (Annexure A11) A ) which was issued based on the letter F.No.12023/1/2018 F.No.12023/1/2018-Admn.III(LA)(LA) dated 01.10.2018, as arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
(iii) (iii direct the Respondents No.1 &2 to implement the DOPT Policy of Quinquennial review of Recruitment Rules while amending the Recruitment Recruitment Rules, 1975 to the post of Assistant Registrars and provide for ratio of personnel to be earmarked from each feeder cadre category of personnel to be considered for promotion to the post of Assistant Registrar in a just and equitable manner considering the number of years of experience, the pay scale, the nature of duties performed, etc. from each of the feeder cadre of personnel to be considered eligible for promotion to the post of Assistant Registrar; and
(iv) pass any other order or direction or gran grant any other relief as deemed fit by this Hon'ble Tribunal including the cost of the exemplary cost, in the interest of justice, equity and fairplay in administration."
2. Briefly stated the facts as narrated by the applicant are that she was initially appointed as Stenographer (Ordinary Grade) through Staff Selection Commission vide order dated 16.08.1984 posted in the Income Tax Department, Bangalore. Subsequently, the applicant was appointed on deputation basis in the Income 6 OA No.282/2019/CAT/BANGALORE BENCH Tax Appellate Tribunal, Bangalore in the post of Senior Personal Assistant and was absorbed in the said post with effect from 01.08.1997. No promotion was earned by the applicant, but she was upgraded upgrade from the post of Senior Personal Assistant in the pay scale of Rsa.6500-200-10500 Rsa.6500 10500 to the post of Senior Private Secretary in the pay scale of Rs.7500 Rs.7500-200-12000 on completion of requisite qualifying service of three years vide notification dated 10.01.2002.
2002. It is the grievance of the applicant that though she is eligible for promotion to the post Assistant Registrar in terms of Income Tax Appellate Tribunal (Class I & II posts) Recruitment (Amendment) Rules, 1975 ('Rules, 1975' for short), the respondents ents have not considered her case, but promoted the Respondents No.3 to 12 as Assistant Registrars vide order dated 04.10.2018. Hence this OA.
3. Applicant, party in person, submitted that in terms of Recruitment Rules, 1975, the applicant ought to have been considered for promotion to the post of Assistant Registrar, which 7 OA No.282/2019/CAT/BANGALORE BENCH is a Group 'A' Gazetted post and the applicant is holding Group 'B' Gazetted post. The incumbent in all other stream/category provided in the Recruitment Recruitment Rules belonging to Group B (Non (Non-
Gazetted) posts have been considered for promotion to the post of Assistant Registrar, in exclusion of the applicant in Senior Stenographer cadre now upgraded/redesignated as Senior Private Secretary in Group 'B' (Gazetted) (Gazetted) post. The respondents ought to have provided promotional avenue to the applicant also as per the Recruitment Rules. Inviting the attention of the Bench to the order passed by the Hon'ble High Court of Delhi in Writ Petition (C) No. 13/20 /2015 (DD: 30.05.2016) -(Manoj (Manoj Kashyap and Ors. vs. Union of India & Ors), Ors) submitted that the Stenograph Stenographer cadre has been completely ignored. Respondents No.3 to 12 have been promoted to the post of Assistant Registrar with effect from 04.10.2018 based on their seniority from Class Class-III posts or from Group C/B as per Recruitment Rules, 1975. The same and equal treatment ought to have been extended to the applicant being Group 'B' (Gazetted) personnel in the Stenographic cadre as provided in 8 OA No.282/2019/CAT/BANGALORE BENCH the Recruitment Recruitment Rules, 1975. Denial of promotion to the applicant, who is senior than the Respondents-3 Respondents 3 to12 is discriminatory discriminatory. By virtue of redesignation of the posts, Senior Stenographers were redesignated as Senior Personal Assistant Assistants. The applicant was appointed inted in the redesignated post of Senior Personal Assistant in ITAT on 01.08.1997.. The applicant was discharging the same nature of duties as that of the Senior Stenographer. Merely for the change in nomenclature of the post, no promotion could be denied to the applicant. Referring to the Income Tax Appellate Tribunal (Senior Personal Assistant) Recruitment Recruitment Rules, 1990 ('Rules, 1990 for short), the applicant submitted that the educational and other qualifications required for Senior Private Secretary is the same as the educational qualification required for Senior Stenographer under der the Recruitment Rules, R 1975. The applicant argued that the directions issued by the Hon'ble High Court of Delhi in the writ petition supra, has not been strictly complied with with, by the respondents. DPC ought to have considered the promotions on yearly basis bas commencing from 2003-2004.
2004. In the DPC notes, assessment against the vacancy year 2005 2005-06 and 2006-07 is shown as nil out of two vacancies (UR-1 (UR 1 and SC SC-1 (SC-1 carried forward).
9 OA No.282/2019/CAT/BANGALORE BENCHIt is recorded that no candidate is available for promotion against one vacancy for unreserved and one for SC vacancy; these vacancies may be carried forward for the next financial year, so far as the 2005-06 2005 06 is concerned. Similarly, for the assessment year 2006-07 07 it is recorded that no candidate is available for promotion against three three vacancies for unreserved category and one vacancy for SC category, therefore, these vacancies may be carried forward for the next financial year. If the candidature ndidature of the applicant was considered in terms of Rules, 1975, the applicant coming under the category of Senior Stenographer was eligible for promotion to the post of Assistant Registrar. The respondents have totally ignored the category of Senior Stenographers, while selecting the panel for promotion. The applicant has placed reliance on the following rulings:
1) Writ Petition (C) No.13/2015 - Manoj Kashyap and Others vs. Union of India and others - Hon'ble High Court of Delhi.10 OA No.282/2019/CAT/BANGALORE BENCH
2) (2011) 9 SCC 510 - Bharat Sanchar Nigam Limited vs. R.Santhakumari Velusamy and others.
3) (2020) 9 SCC 208 - Ramanand and others vs.Chief Secretary, Government (NCT of Delhi) and Another.
4. Detailed reply statement has been filed on behalf of the official respondents to which rejoinder has been filed by the applicant.
5. Learned Counsel Shri N.Amaresh representing the official respondents had placed the original file of the DPC proceedings in the connected matter, OA No.707/2019 in compliance with the order issued by this Tribunal. After perusing the said file we had directed ected the Registry to return the original file after keeping photocopy of the relevant pages.
pages. Learned Counsel for the Respondents
espondents-1&2 submitted that applicant was absorbed in Income Tax Appellate Tribunal in the post of Senior Personal Assistant (Group 'B' Gazetted post) in the pre-revised pre revised scale of Rs.2000 Rs.2000-3200 on 01.08.1997. Senior Private Secretaries were granted an 11 OA No.282/2019/CAT/BANGALORE BENCH upgradation to the pay scale of Rs.7500 Rs.7500-250-12000 from the pay scale of Rs.6500-200-10500 Rs.6500 10500 vide order dated 10.01.2002, when Vth Pay Commission was in operation. During that period, Assistant Registrar of ITAT was drawing only a lower pay scale of Rs. 650 6500- 200-10500/ 10500/-.. The applicant is claiming the promotion referring to Rules 1975. In the course of time, career of Stenographers witnessed steep change, they were re-
re-designated, pay scale got upgraded. In order to safeguard their interest and to ensure progress, ITAT had issued many orders in this regard. Order dated 30.04.1977 was issued re-designating re designating Senior Stenographer into Personal Assistant along with revision of pay. Similarly, modified Recruitment Rules for Personal Assistant known as Income Tax Appellate Tribunal (Senior Personal Assistants) Recruitment Rules, 1990 ('Rules, 1990' for short) was issued by the Law Ministry dated 22.05.1990. Further, Income Tax Appellate Tribunal (Private Secretaries) Recruitment Rules, 2006 was issued and ggazetted on 15.09.2006. Thus it was argued that sepa separate recruitment rules have been issued for the Personal Assistants, Senior Private Secretaries keeping in mind their career guidance and growth. From the date of joining in ITAT, the applicant was out of feeder category fixed 12 OA No.282/2019/CAT/BANGALORE BENCH to the post of Assistant Registrar. Re-designation of Senior Stenographer to the Senior Personal Assistant vide order dated 23.08.198 indicates that the post of Stenographers in ITAT 23.08.1988 holding Class III posts, became Gazetted po post (Class II) and automatically did exit out of Class III post. After this class change, no promotions promotion were granted to the post of Assistant Regist Registrar from Stenographers grade. Since then it becaame inoperative. Justifying the promotion list impugned, learned Counsel submitted that the same is in conformity with observations and directions issued by the Hon'ble High Court of Delhi in writ petition referred to supra. Learned Counsel further referring to DPC noting sheets submitted submitted, yearwise vacancy has has been considered in accordance with law. Ignoring the re-designated re designated post to which th the applicant was appointed in ITAT ITAT as Senior Personal Assistant with effect from 01.08.1997 vide order dated 17.07.19997, no promotion could be extended on par with Senior Senior Hindi Translator Translators.
6. We have carefully considered the submissions of the applicant and the learned Counsel for the respondents and perused the material on record.
13 OA No.282/2019/CAT/BANGALORE BENCH
7. Arguments of the applicant are two fold, firstly Respondent Respondent-1&2 have failed to consider the case of the applicant for grant of promotion to the post of Assistant Registrar in terms of Recruitment Rules, 1975 in the category of Senior Stenographer notwithstanding her h appointment in the ITAT as Senior Perso Personal Assistant to Member in ITAT on 01.08.1997 01.08.1997. Secondly, Respondent Nos.1&2 No .1&2 have not complied with the order of the Hon'ble High Court of Delhi passed in writ petition supra, in strict stricto sensu.. If the Hindi Translators are considered as Senior Hindi Translators and promotion is extended xtended to them, the same treatment ought to have been given to the applicant on parity.
8. Itt is apt to refer to the Rules, 1975. In terms of the said Rules, for promotion to the post of Assistant Registrar, a hierarchy has been prescribed. The T eligibility of grades prescribed reads thus:
"Superintendent Superintendent with three years regular service in the grade failing which Six ix years regular combined service in the grades of Superintendent and Assistant Superintendent, failing which 14 OA No.282/2019/CAT/BANGALORE BENCH Assistant Superintendents and Translators (Hind (Hind-English) with 6 years regular service in the respective grade, failing which Assistant Superintendent with 10 years regular combined service in the grades of Assistant Superintendent, Head Clerk and Senior Stenographer, Stenographer, failing which Head Clerks and Senior Stenographers with 10 years' regular service in the respective grade.
grade."
The gazette notification dated 23.08.1988 .1988 under which Personal Assistants of the ITAT were re-designated re designated as Senior Personal Assistant (General Central Service Group 'B' Gazetted), plays an important role in the career of Stenographers of ITAT. The posts of Personal Assistant was redesignated as Senior PA (General Central Service Group 'B' Gazetted) with the gazette publi published on 30.09.1988. Rules, 1990 were framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution, in supersession of the Income Tax Appellate Tribunal (Personal Assistant Recruitment Rules, 1986) to regulate the method of recruitment to the post of Personal Assistant in the ITAT. Rules Rules, 1990 has come into force on the date of their publication in the 15 OA No.282/2019/CAT/BANGALORE BENCH official gazette i.e., 22.05.1990. The Senior PA was upgraded to the post of Senior P.S., in the pay scale of Rs.7500 Rs.7500-12000 vide notification dated 10.01.2002. Senior Private Secretaries Recruitment Rules, 2006 was w issued vide order dated 15.09.2006 15.09.2006.
It is not in dispute that subsequent to issuance oof Rules, 1990, Rules, 1975 were not amended. However, no Stenographer post existed in ITAT subsequent to re-designation designation of the posts with effect from 23.08.1988. The post of the Assistant Registrar also got changed into Class-I Class I Group 'A' Gazetted post w with effect from 02.04.2004 without any financial implications. The DPC notings would indicate that no candidates were available for the vacancy year 2005-06 2005 and 2006-07.
07. The contention of the applicant that she he has rendered and completed 10 years of regular service in the combined grade of Senior Stenographer and higher grades of Private Secretary and Senior Private Secretary as on 14.06.2002 and as such the applicant ought to have been considered for the post of Assistant Registrar, in our opinion lacks merit. In view of the re re-
designation of post and the applicant having been appointed as Senior Personal Assistant on deputation in ITAT with effect from 01.08.1997 vide order dated 17.07,1997,, the service in the grade 01.08.1997, 16 OA No.282/2019/CAT/BANGALORE BENCH of PA cannot be considered as the service rendered in the post of Senior Stenographer.
Stenographer The applicant is not fulfilling the criteria of Senior Stenographer with 10 years regular service in that grade for promotion to the post of Assistant Registrar. In our considered view, the post of Senior Stenographer and Senior Personal Assistant being different, merely considering the nature of the work discharged by the applicant as that of the Senior Stenographer, the period of service of both the posts i.e., Senior Stenographer and PA/Sr.PA/Private Secretary cannot be reckoned for the purpose of promotion. It is not the mere change of nomenclature as contended by the applicant.
applicant The he post of Senior Personal Assistant/Private Secretary are a category categor apart. The he applicant has availed the benefit of higher pay scale coming under Group 'B' Gazetted post from Group 'C' with effect from 10.01.2002 10.01.2002. It is to remove the anomalies in the pay scales of the posts of Assistant Registrar, Deputy Registrar and Registrar in the ITAT, the Department of Expenditure has agreed to the upgradation of the pay scale of the post of Assistant Registrar 17 OA No.282/2019/CAT/BANGALORE BENCH from the pay scale of Rs.6500-10500 Rs.6500 10500 to the pay scale of Rs.8000 Rs.8000- 13500 with prospective prosp effect and the same was communicated to the Registrar, ITAT, New Delhi vide Annexure R R2 dated 02.04.2004. In that context,, any stray observation made in Annexure R2 R by the Under Secretary to the Government of India that the feeder post of Senior PA PA was allowed higher pay scale of Rs.7500-12000, subsequent to the recommendations of the 5th CPC would not give any credential value to consider the Senior PA post as the feeder cadre for promotion to the post of Assistant Registrar. Further the letter of Ministry of Law and Justice dated 29.04.1998 addressed to the Registrar, ITAT, Mumbai indicates the irregularity and violations of Government instructions observed in certain appointments. The relevant paragraphs would read thus thus:
"1(iii) After the implementation of Fifth Pay Commission report, w.e.f. 1-1-96, 1 96, the pay scale of Sr.P.AS. in the I.T.A.T., is the same as that Asstt. Registrars in the I.T.A.T., namely, Rs.6500-200-10,500/-.
Rs.6500 . Therefore, the post of
Sr.P.As can not be kept
kept in the feeder grade for promotion to the post of Astt. Registrar in the Tribunal. Therefore, the Sr. P.AS. who are in the same grade cannot be promoted to the posts of Asstt. Registrars and as such the continuation of these Sr.P.As. as Asstt. Registr Registrars is highly irregular.18 OA No.282/2019/CAT/BANGALORE BENCH
........................................................................ ........................................................................ .................
2.(i) All ad-hoc promotions from the posts of Sr.P.As. to the posts of Asstt. Registrars in the I.T.A.T. be cancelled immediately and that no future promotion should be ordere ordered from the posts of Sr.P.As to that of Asstt. Registrars in the Tribunal."
Be that as it may, once the separate Recruitment Rules for the post of Senior PA and Senior Private Secretary were notified, their rights and claims ceases under the Recruitment R Rules of 1975 to claim as Senior Stenographer.
Stenographer Therefore, it is hard to accept the applicant's claim for the promotion to the post of Assistant Registrar considering her as Senior Stenographer in ITAT ITAT.
9. The applicant if so eligible for promotion to the post of Assistant Registrar in 2003, having completed 19 OA No.282/2019/CAT/BANGALORE BENCH qualifying service as Senior Stenographer, she could have claimed the same at the relevant point of time, but that exercise has not been done.. The applicant applica got the benefit of Senior PA and Senior Private Secretary and availed the higher pay scale than the Assistant Registrar. She remained silent at the relevant point of time. The pay scale of the Assistant Registrar was revised with effect from 02.04.2004 004 from the pay scale of Rs.6500 Rs.6500-10500 to the pay scale of Rs.8000-13500. However, the applicant in the post of Senior PA was drawing the pay scale of Rs.7500-12000 12000 at that time. It is true that upgradation of pay scale is not promotion, in other words promotion and upgradation of pay scale are distinct as held by the Hon'ble Apex court in BSNL vs. Santhakumar Velusamy and others supra. But the conduct of the applicant in not raising grievance till ti 2018 becomes significant. No reasons are explained for the delay caused in not airing the voice at the appropriate time i.e., in the year 2003.
10. The Hon'ble High court of Delhi while examining the claim of the Hindi Translators/Senior Hindi Transl Translators, who 20 OA No.282/2019/CAT/BANGALORE BENCH sought for enforcement of appointment to the post of Assistant Registrar as per the Rules, 1975 observed thus:
"14. The proposal for filling up the posts shows that out of the five feeder cadres, except for categories 1 & 2, the other three categories categories were to be considered sequentially in the DPC exercise. In categories 1 and 2 no one was eligible for consideration. Strangely, the candidates in Category Category-III were not proposed to be considered although they had a higher educational degree - of gra graduation, whereas those in Category - IV were proposed to be considered although they were not graduates but only matriculates. The minimum recruitment qualification for Head Clerk, Senior Stenographer, Assistant Superintendent is only 10 years regular combined combined service in the grades of Assistant Superintendent, Head Clerk and Senior Stenographer whereas qualification service for Hindi Translator is 6 years regular service in that grade although they have a much higher educational qualification, i.e., of graduation. It is apparent that there was an emergent ne need to man the posts of Assistant Registrars. Therefore, it would be in the interest of the ITAT to appoint from the eligible persons to the posts of Assistant Registrars. Seeking to exclude Senior Hindi Translators simply because there was a proposal pendi pending for many years to amend the Rules cannot come in the way of the Senior Hindi Translators being considered by the DPC 21 OA No.282/2019/CAT/BANGALORE BENCH for promotion to the post of Assistant Registrar. The right of the respondents not to fill up the posts is unexceptionable. However, to fill the posts by ad hoc appointments from persons in Category IV, while declining the same to those Category III is contrary to the mandate of the extant Rules which mandate that Category IV employees would be considered only if a Category III employee ca cannot be promoted. Hence breach of the prescribed hierarchy and sequence for consideration for promotion is not only illegal and arbitrary, it is also discriminatory and falls foul of Articles 14 and 16 of the Constitution. Therefore, whenever the said proposed proposed amendments are notified, they would be, applicable only from the date of the notification, unless the new rules are retrospective. Meanwhile, the vacancies which have arisen for the year 2003 will have to be filled up as per the extant rules. Apropos the currently vacant posts of Assistant Registrars, starting from the year 2003 onwards they would need to consider all eligible candidates under the 1975 Rules, including Senior Hindi Translators. Indeed, in the note dated 01.11.2011 it has been recorded as under:
"The ITAT has proposed to exclude Senior Hindi Translators from consideration on the plea that Recruitment Rules for the post of Assistant Registrar are proposed to revised. This is not possible at this stage as all Recruitment ecruitment Rules are prospective only and vacancies occurred are to be filled with existing 22 OA No.282/2019/CAT/BANGALORE BENCH Recruitment Rules, in which no change has been approved/notified so far."
15. A reading of paragraph 14 reflects and it is accepted that no one from Category I and and II was eligible for being considered for the post of Assistant Registrar under the 1975 Rules. Interestingly, paragraph 11 records that Translators (Hindi / English) with six years years‟ regular service in the regular grade were eligible. Similarly, about fiv five persons in Category IV i.e. Assistant Superintendents with ten years regular combined service in the grades of Assistant Superintendents, Head Clerk and Senior Stenographers were also eligible. However, Category IV employees would only be considered in case case Category III employees are not selected and appointed as Assistant Registrar i.e. even after such consideration their remain some vacancies.
16. The question of filling up the post of Assistant Registrar is different from filling up posts from Category IV employees on an ad hoc basis after by by-passing and ignoring the claim of Category III employees, who are eligible for consideration. Any attempt to do so, would fall foul of the Statutory Rules i.e. 1975 Rules and would be contrary to Articles 14 14 and 16 of the Constitution. It is apparent that there was an emergent and necessary need to man the post of Assistant Registrar, but the official respondents acted in an illegal manner by making ad ad-hoc appointments of Category IV employees who were not eeligible for 23 OA No.282/2019/CAT/BANGALORE BENCH consideration for promotion, as there were Category III employees with six years regular service available in the grade. The official respondent had the option not to fill up the post, though such action could also be challenged, but they cannot cannot fill up the posts contrary to the extant rules in the hope that the 1975 Rules would undergo an amendment.
17. Normally, amendments to Recruitment Rules are not retrospective. Vacant posts prior to the amendment would be governed by the earlier rules aand posts that fall vacant post the amendment would be governed by the new rules. When we apply the said principle to the vacant posts of Assistant Registrar starting from the year 2003, we cannot ignore the claim of the eligible Translators to be considered under the 1975 Rules. Indeed this position in law considered was understood as per the internal note dated 1 st November, 2011 prepared by Department of Legal Affairs, Ministry of Law and Justice.
18. We, therefore, have no hesitation in issuing the writ of certiorari certiorari and setting aside the direction of the Tribunal to the official respondents to first amend the Rules and thereafter fill-up fill up the posts of Assistant Registrars as per the amended Rules. The facts of the present case show an unusual and peculiar situation.
situation. The Translators in Category Category-
III, who were eligible for consideration for promotion under 50% promotion quota, were ignored and regular DPCs were 24 OA No.282/2019/CAT/BANGALORE BENCH not convened. At the same time, the official respondents were confronted with a situation where they requi required the posts of Assistant Registrar to be occupied, and had given ad hoc promotions to those in Category Category-IV, obviously without holding of the regular DPCs or following the procedure in the recruitment rules. In fact, those in Category IV could not have be Category-IV been considered and were ineligible for promotion or even ad hoc promotion as long as there were eligible candidates in Category Category-III, i.e., Translators. In this situation, the argument that the official respondents were entitled and cannot be directed to not fill- up vacant posts of Assistant Registrar under the 50% promotion quota cannot be countenanced and has to be rejected. The conduct of the official respondents beyond doubt and debate establishes that the posts of Assistant Registrars were required to be filled filled-up, as indeed they were by ineligible candidates, albeit on an ad hoc basis. The right to not fill-up fill up vacant posts, which we believe is not an absolute and unquestionable right, would not curtail and prevent us from passing this order in the afores aforesaid situation.
In the given facts, we deem it proper and appropriate to issue the writ of mandamus and directions to the official respondents to consider the eligible Translators including Senior Hindi Translators for promotion to the post of Assistant Registrar, Registrar, by holding a DPC in accordance with law. The said DPC will fill-up fill up the posts of Assistant 25 OA No.282/2019/CAT/BANGALORE BENCH Registrar as per the extant recruitment rules, i.e., 1975 Rules. The yearwise vacancies will be ascertained and those eligible and within the zone of consider consideration will be considered as per the extant 1975 Rules.
Rules."
Accordingly the following directions were issued:
"19.
19. As the promotions have not taken place in accordance with law since 2003 onwards, we deem it appropriate to direct that regular DPC be convene convened within a period of six months from the date of receipt of a copy of this order by the official respondents.
respondents."
Considering hierarchical categories of eligibility prescribed which was required to be considered sequentially, since Category-IV was considere ignoring Category-III, as there were eligible candidates considered candidates-
Translators, the Hon'ble High Court of Delhi directed to convene regular DPC as per extant 1975 Rules. The said judgement has been confirmed by the Hon'ble Apex Court.
11. We have carefully perused the judgment judgments referred to, by the applicant.
applicant Bharat Sanchar Nigam Limited supra, deals with concepts of promotion and upgradation. It is observed thus: 26 OA No.282/2019/CAT/BANGALORE BENCH
"13.
13. The said order is challenged in these appeals by special leave by the appellant. The appellant has put forth the following contentions :
(i) There is a clear distinction between upgradation and promotion. While promotion involves advancement in rank, grade or both and is always a step towards advancement to higher position, grade or honour,, upgradation does not involve promotion to a higher position and the pedestal of the employee remains the same and the employee is merely conferred some financial benefits by granting a higher pay scale, to overcome stagnation. The BCR scheme introduced as per order dated 16.10.1990 was a scheme of upgradation and not promotion.
(ii) Where there is only upgradation of existing posts, with creating additional posts, principles of reservation would not apply. The Tribunal and the High Court committed a ser serious error by treating upgradation as a promotion to which reservation rules would apply. The Tribunal and the High Court ought to have followed the decision of this Court in All India Non-SC/ST Employees Association (Railways) vs. V.K. Agarwal - 2001 (10) SCC 165 and the decision of the Gujarat High Court dated 24.3.1999 in Special Civil Application No.7576 of 1997 - Union of India vs. 27 OA No.282/2019/CAT/BANGALORE BENCH All India Non Scheduled cheduled Caste/Scheduled Tribe Telecom Employees Associa Association.
14.................................................
15.....................................................
16.....................................................
17. We may next consider the concepts of `promotion' and `upgradation'. In Lalit Mohan Deb, (1973) 3 SCC 862, this Court explained the difference between a promotion post and a selection selectio grade :
"7.....It It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency."
18. In Tarsen Singh vs. State of Punjab - 1994 (5) SCC 392, this Court defined `promotion' thus :
"9.......Promotion Promotion as understood under the service law jurisprudence means advancement in rank, grade or 28 OA No.282/2019/CAT/BANGALORE BENCH both. Promotion is always a step towar towards advancement to a higher position, grade or honour."
19. In S.S. Ranade (1995) 4 SCC 462, the scope and meaning of the word `promotion' was considered. The issue in that case was whether a Commandant (Selection Grade) held a higher rank than a Commandan Commandant and consequently entitled to be superannuated at a later age of 58 years instead of 55 years. This Court, following the decision in Lalit Mohan Deb, held as follows:
"9. .....Undoubtedly, Undoubtedly, a Commandant who becomes a Commandant (Selection Grade) secures a promotion to a higher pay scale. But it is a higher pay scale in the same post. The use of the word 'promotion' in Rule 6 and the Constitution of a Departmental Promotion Committee for selection of Commandant (Selection Grade) in Rule 7, do not necessarily lead to the conclusion that the promotion which is contemplated there is necessarily a promotion to a higher post.
Promotion can be either to a higher pay scale or to a higher post. These two Rules and the use of the word 'promotion' there do not conclude the issue.
14. In the present case, an element of selection is involved in granting selection grade because there is no automatic promotion to the selection grade pay scale. But this factor is not decisive. In the present case also, 29 OA No.282/2019/CAT/BANGALORE BENCH as in the above cases, s, Selection Grade posts are created entirely for the purpose of granting some relief to those who have very limited avenues of getting promotion to a higher post. That is why a higher pay or pay scale is granted in the same post. Thus, by its very nature, a selection grade post cannot be considered as a higher post for the purposes of Rule 9.
15. ...Because the creat creation of a selection grade in the same post stands on a very different footing. By its very nature a selection grade provides a higher pay or a higher pay scale in the same post. The beneficiary of a selection grade does not thereby occupy a post which is higher in rank than the post earlier occupied by him." On facts, this Court found that the respondent therein required a promotion which result resulted in occupation of a post which was higher in rank than the post earlier occupied, to get the relief of longer service. This Court held that though his promotion from Commandant to Commandant (Selection Grade), resulted in a promotion to a higher pay scal scale, that was not sufficient to grant relief to the respondent therein as his promotion to selection grade did not involve advancement to a higher post.
post."
30 OA No.282/2019/CAT/BANGALORE BENCHThere is no cavil on this well settled legal principle. However, the same would not come to the assistance of the applicant applicant, the respondents have referred to the higher pay scale drawn by the applicant as Senior Personal Assistant/Senior Private Secretary sans airing any voice for promotion to the post of Assistant Regist Registrar, which indeed was carrying the pay scale less than that of the Senior Personnel ersonnel Assistant at that time, to show the conduct of the applicant.
12. In the case of Ramanand and others supra, the Hon'ble Apex court while considering Telephone Operators having minimum five years year of regular gular service required to underg undergo training and were placed in higher pay scale, held that it was not merely re-description scription or re-organisation re organisation of cadre but contained element of selection criteria. Consequently held that appellants therein were disentitled sentitled to the benefit of MACP Scheme Scheme, since the object of the Scheme deals with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. In that context, distinction between promotion and 31 OA No.282/2019/CAT/BANGALORE BENCH upgradation adation has been discussed. In our considered view view, this judgment would not come to the aid of the applicant.
13. We have carefully perused and examined the DPC notings placed before us. Note on the prepage recorded in the DPC file discloses assessment made against the yearwise vacancy. Senior Stenographer grade comes in Category V, last in the sequence under the Rules, Rules, 1975. DPC has not considered the case of applicant for promotion to the post of Assistant Registrar for the reason that she he was appointed as Senior PA in ITAT with effect from 01.08.1997 vide order dated 17.07.1997 17.07.1997, not as Senior Stenographer. Even in the previous department, the applicant has not rendered 10 years regular service as Senior Stenographer. The applicant has not impleaded herself self in the proceedings before the Hon'ble High Court C of Delhi hi for seeking promotion to the post of Assistant Registrar, which was the subject matter of the proceedings. Being a fence sitter, after conclusion of the DPC proceedings, challenging the selection of promotion panel is not justifiable. As such, the applicant cannot contend that the DPC proceedings were not convened in conformity with the directions 32 OA No.282/2019/CAT/BANGALORE BENCH issued by the Hon'ble High Court of Delhi. In our considered view, the applicant is not possessing the qualifying eligibility of 10 years regular service in the grade of Senior Stenographer for promotion on to the post of Assistant Registrar as the applicant joined ITAT with effect from 01.08.1997 as Senior Personal Assistant, as such, the claim lacks merit. We do not find any discrimination meted out to the applicant in not treating the Senior Stenograp Stenographers on par with the Hindi Translators, Translators, since they form a separate class.
14. For the reasons aforesaid, OA is bereft of merit and accordingly stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
33 OA No.282/2019/CAT/BANGALORE BENCH