Andhra HC (Pre-Telangana)
M. Harindranath vs Union Of India (Uoi) And Ors. on 22 February, 2001
Equivalent citations: AIRONLINE 2001 AP 1
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. The only question which arises for consideration in this writ petition filed by the petitioner herein feeling aggrieved by a judgment and order dated 24.3.1999 passed by the Central Administrative Tribunal, Hyderabad in O.A.No.1263 of 1997 is as to whether the guidelines provided for in office memorandum dated 18.3.1988 shall prevail over the statutory rules.
2. The petitioner filed the aforementioned application along with 14 other persons who were senior auditors under the 3rd respondent therein. The said application was taken up together with various other applications wherein a common prayer was made that the rules framed under Article 309 of the Constitution of India by the Ministry of Finance dated 23.7.1971 and amendment made thereto on 18.6.1993 so far as the condition of passing of SAS examination in case of recruitment by promotion to the higher post of accountant now designated as Section Officer [for short 'SO(A)'] is illegal, arbitrary and unconstitutional and for a consequential direction to the respondents to consider the applicants therein for promotion to the post of SO(A) from the date of their eligibility. It appears that the Tribunal considered a similar question in O.A.No.145 of 1997 which was disposed of on 11.3.1999. Before the learned Tribunal apart from the contentions raised in the said O.A.No.145 of 1997 the following contentions were raised:
"(i) The respondents by insisting on the pre-requisite qualification of pass in S.A.S. examination for promotion to the post of S.O.A., the applicants are put to a very great disadvantage as they have to retire without even a single promotion in their career; and
(ii) There are certain guidelines which should have been followed and merely sticking to the recruitment rules framed under the proviso to Article 309 of the Constitution is not in order and valid".
3. The learned Tribunal observed that for the said purposes the authorities might be approached by the applicants therein. It was held:
" The recruitment rules framed under Article 309 of the Constitution are sacrosanct. No guidelines can over rule the provisions of the recruitment rules framed under Article 309 of the Constitution. The submission of the counsel for the applicant that guidelines are to be followed and not the recruitment rules framed under Article 309 of the Constitution of India is absolutely invalid".
4. A review application appears to have been filed by the said applicants for review of the said judgment which was dismissed. The petitioner who appeared in person inter alia submitted that the learned Tribunal failed to consider the errors apparent on the face of the record. It has been pointed out that despite the fact that various such errors both of fact as also law were pointed out to the learned Tribunal, it failed to take into consideration the same and passed the impugned order dated 23.9.1999. The impugned rule is known as Defence Accounts (Class III and IV Posts) Recruitment Rules, 1970 framed by the Union of India in exercise of its power conferred by it under the proviso to Article 309 of the Constitution of India. The relevant portion of the said rules reads thus:
1 2 3 4 5 6Accoun-tant Central Civil Service Class III Ministerial (Non Gaz) Rs 270-15-435 EB 30 575 Non selection post Between 18 to 25 years. Age limit will be 29 in case of registered and CAs as well as Cost and Works Acctts. Relaxation upto a limit of 2 years will also be per mitted in the case of candi dates possessing exceptional qualifications A University degree with first class/second class/Honours, a degree of master of arts, science/commerce (1st class/2nd class) a diploma Cas and Cost & Works Acctts (Associate of Cost & Accts, England and Instt of Cost Works Accts India) first class graduates will be preferred 7 8 9 10 11 12 13 No For directly recruited individuals 2 years from date of appointment as officiating acct after passing depart mental subordinate accts exam. For promoted individuals 2 years 20% by direct recruitment of apprentices to the subordinate accts service and 80% by pro motion Pro motion from the grade of selection grade Roster A This is con fined to those who have passed depart mental subordinate accts service exam Class III depart mental promotion committee NA The apprentices directly to the subordinate accounts services will be required to pass the departmental subordinate accts service examination. Not more than two chances will be allowed to them to pass each part of it. They will be allowed to appear for every subordinate accounts service examination held after 10 months of the commencement of apprenticeship. Failure to pass the examination will made them liable for discharge.(2) Are liable for field service in and out of India.
5. It was submitted by the petitioner that clause (12) of the said Rules which provide for promotion from the selection grade having been confined to those who have passed departmental subordinate examination is incompatible with the fact that the post is a non-selection one.
6. It was submitted that by reason of the said rule a fictional post was created and non-selection post has been converted into a selection post inasmuch as prescription of a qualification would be applicable only to a selection post. The guidelines upon which the petitioner has placed reliance are as follows:
" 3.12.7:- In cases where there are two or more feeder grades, a separate percentage for promotion may be prescribed to each of the feeder grade.
3.13.1:- Column 12: (Grade from which recruitment by promotion/deputation/transfer/short-term contract re-employment is to be made).
The fields of selection under the various methods should be clearly specified. If promotion is kept as a method of recruitment, it is also necessary to lay down the number of years of qualifying service before the persons in the field become eligible for promotion. Only regular, and not ad hoc, period of service is taken into account for purposes of computing this service. With a view to making the position clear, the filed may be specified as "with ..... years service in the grade rendered after appointment thereto on a regular basis". The field for 'transfer on deputation/short-term contract/transfer' should, as far as possible, consist of officers holding analogous posts on regular basis but may be widened to include officers working in the next lower grade also with the qualifying service on regular basis normally prescribed for promotion.
In some cases, different periods of qualifying services in the respective grade post on account of different scales of pay are prescribed for promotion in the recruitment rules. In order to facilitate preparation of an eligibility list for promotion, in cases where no separate quotas for each different grade have been prescribed a "Note" as under may be added:
NOTE:- The eligibility list for promotion shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grade/post".
7. We fail to understand how the said guidelines can be of any help to the petitioner.
8. In the original application filed by the petitioner along with others the following reliefs were prayed:
" I. Declare the rules framed under Article 309 of the Constitution by the Ministry of Finance - SO No 4025, dated 23.7.1971 and amendment in SRO.No.88 dated 18.6.1993, so far as the condition of the passing SAS examination in case of recruitment by promotion as illegal, arbitrary and unconstitutional.
II. Direct the respondents to consider the applicants herein for promotion to the post of SOA from the date of their eligibility with all consequential benefits".
9. It is, thus, evident that the petitioner has made a volta face. The submissions of the petitioner are absolutely contrary to and inconsistent with the stand taken by him in the original application filed before the learned Tribunal.
10. In the earlier application being O.A.No.145 of 1997 the Tribunal held that the post of a SO being a supervisory post, prescription of a pre-requisite qualification cannot be held to be arbitrary or discriminatory. It was further held:
"27. From the above analysis, we come to the conclusion that in the provisions for promotion to the post of SO(A) by non-selection method, there is no disguise of selection test to circumvent the law. The method of non-selection has been fully adhered to by the respondents while framing the rules for the post of SO(A) from the lower post of Senior Accountant. In that view, it has to be held that all these OAs are devoid of merits."
11. Having regard to the prayers made in the Original Application by the petitioner herein, it is evident that the same were misconceived. The State in exercise of its power conferred upon it under the proviso appended to Article 309 of the Constitution of India may frame rules laying down the conditions of service. It is one thing to say that the method of promotion has been laid down ie., by declaring the post to be a selection or a non-selection one, in other words, while granting such promotion whether merit-cum-seniority or seniority-cum-merit rule shall be followed. But it is another thing to say that for holding a supervisory post a person must possess requisite qualification. There cannot be any doubt that the State is entitled to prescribe qualification for holding a post. Only because a qualification has been prescribed in relation to a non-selection post, the same by itself would not come in conflict with the method of promotion inasmuch as only those persons who have the requisite qualification would be considered for promotion to the next higher post.
12. For grant of such promotion, if the post is a non-selection one, the rule of seniority-cum-merit may be followed. But only thereby, prescribing a qualification for holding such a post cannot be said to be arbitrary or discriminatory. We are, therefore, of the opinion that no case has been made out for interference with the impugned judgment. This Writ Petition is, therefore, dismissed but in the facts and circumstances of the case there will be no order as to costs.