Central Administrative Tribunal - Delhi
Sh. Sandeep Singh vs Union Of India on 23 December, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1288/2009
MA-875/2009
New Delhi this the 23rd day of December, 2009.
Honble Mrs. Meera Chhibber, Member(J)
Honble Mr. N.D. Dayal, Member(A)
1. Sh. Sandeep Singh,
S/o Sh. B.P. Singh,
R/o S-2, 4/327, Vaishali,
Ghaziabad, UP.
2. Sh. Raghbir Singh,
S/o Sh. Mehar Chand,
R/o B-121, Hari Nagar,
New Delhi-64.
3. Sh. Shiv Prasad,
S/o late Sh. Ram Prasad,
R/o H-11, Shakarpur,
New Delhi-92. . Applicants
(through Sh. R.N. Singh, Advocate)
Versus
1. Union of India,
Ministry of Defence,
South Block,
New Delhi-11.
(through its Secretary)
2. The Joint Secretary(T)&CAO,
Ministry of Defence,
E-Block,
New Delhi-11. . Respondents
(through Sh. A.K. Bhardwaj, Advocate)
O R D E R
Mr. N.D. Dayal, Member(A) The three applicants in this OA have been working as Section Officers (SOs) in Group B and belong to the Armed Forces Headquarters Civil Service (AFHQCS). They were appointed as SO on the basis of Limited Departmental Competitive Examination (LDCE) conducted by the UPSC. It is submitted that this was in accordance with the provisions of Rule 2(b)(ii) of the AFHQCS Rules, 2001 (Annexure- A2) which envisage three modes of recruitment viz. direct recruitment, LDCE and promotion. While the applicant No.1 was appointed as SO on the basis of LDCE 2003 and given appointment in July 2005, applicant No.2 was appointed on the basis of LDCE 2002 and given appointment in April 2004 and applicant No.3 was appointed on the basis of LDCE 2004 and given appointment in March 2006.
2. The applicants submit that they had earlier approached the Tribunal along with others in OA-766/2007 seeking grant of non-functional scale grade (NFSG) of Rs.8000-13500/- (pre-revised) with all consequential benefits as granted to similarly situated persons in Central Secretariat Service (CSS). A perusal of copy of the OA filed at Annexure A-3 shows the names of applicants No.1 and 2 but the name of Sh. Shiv Prasad who is applicant No.3 is not traceable in the cause title. This O.A. was disposed of on 26.10.2007 directing the respondents to take a final decision as to the grant of NFSG within the stipulated period of time. The respondents passed orders on 22.09.2008 (Annexure-A5) in compliance thereof conveying the decision to grant the NFSG of Rs. 8000-13500/- to SOs of AFHQCS on the same lines as had been granted to SOs of CSS vide DoP&T order dated 13.11.2003 modified by order of 25.01.2006. This decision was taken in consultation with Ministry of Finance and DoP&T. It is pointed out that in fact, following acceptance of the recommendations of the 6th CPC, the respondents by their communication dated 11.09.2008 (Annexure-A4) had already forwarded the names of serving regular SOs belonging to DR and LDCE mode who had completed 4 years or more approved service in the grade as on 01.01.2006 onwards to the Dy. CAO(A) and others for considering their cases for grant of pay fixation in Pay Band-3 (Rs.15600-39100). The list of regular SOs (LDCE mode) enclosed with this communication shows the names of applicants No. 1, 2 and 3 at Serial Nos. 51, 6 and 91 and the columns against their names indicate that they had taken the LDCE 2003, 2002 and 2004 respectively and as a result their approved service had been reckoned from 01.01.2003, 01.01.2002 and 01.01.2004 respectively. It is asserted that this was in accordance with Rule 2(b) (ii) of the AFHQCS Rules, 2001 taking the approved service correctly from the Ist January of the year of the LDCE in which the applicants participated and succeeded for their appointment as SO. It is stated that although this communication is not endorsed to the applicants but they had received a copy by letter dated 06.02.2009 under RTI Act, 2005.
3. In furtherance to the order dated 22.09.2008 a sanction was also released on 25.09.2008 granting the benefit of NFS to them notionally from 01.01.1996 and actual benefits from 03.10.2003 with arrears subject to vigilance clearance. However, as per the entries in their pay slips for the month of September, 2008, the applicants did not receive the benefits notified.
4. But instead of releasing the pay scale and making due payments, the respondents issued the impugned letter dated 30.09.2008 (Annexure-A), informing the Dy. CAO(A) and others to hold in abeyance till further communication action on the note dated 11.09.2008 by which their cases were to be considered for pay fixation in Pay Band-3. Subsequently, another letter dated 15.12.2008 was issued to Dy. CAO(A) and others enclosing fresh lists in which the applicants No.1,2 and 3 have been shown at Serial Nos. 51,6 and 91 as before but the column showing the year of LDCE stands omitted and the approved service has been reckoned from one year later in comparison with the lists enclosed with the communication dated 11.09.2008, thus delaying the date of grant of NFSG by one year.
5. The applicants submit that such action on the part of the respondents is contrary to the recommendations of the 6th CPC, directions of the Tribunal already implemented and sanction issued as well as the provisions of rule 2(b)(ii) contained in the AFHQCS Rules, 2001 notified on 01.05.2001 in which approved service (for recruitment by LDCE mode) in relation to any grade has been defined to mean, unless the context otherwise requires, as follows:-
In respect of an Officer recruited to that grade through Departmental Examination, period or periods of regular service rendered in that grade, including period or periods of absence during which he would have held a post on regular basis in that grade but for his being on leave or otherwise not being available to hold such post, from the first day of January of the year for which such examination was held; Thus it is contended that they have been deprived of correct fixation of pay as well as arrears illegally, arbitrarily and contrary to the Rule. The respondents cannot blow hot and cold at the same time. Once they had taken a conscious decision in compliance of the orders of the Tribunal dated 26.10.2007 they cannot unilaterally change the same by non-speaking orders leading to civil consequences without affording any opportunity of hearing to the applicants which reflects non application of mind and colorable exercise of power.
6. In this background the applicants seek the following reliefs:-
(i) Call for the relevant records of the respondents;
(ii) Declare the Letter No.A/47955/CA/P-1 dated 30.9.2008 (Annexure-A Impugned) as illegal, arbitrary and discriminatory and quash the same;
(iii) Declare the Annexure-III to Letter No.A/47955/NFS/CAO/P-1 dated 15.12.2008 (Annexure-A-1 Impugned) to the extent it indicates the reckoning of the approved service of the applicants and other similarly placed persons one year later than the actual date from which the applicants and similarly placed persons have become eligible to have the benefit of non-functional pay-scale of Rs.8,000-13,500 (pre-revised and revised to pay-scale of Rs.15600-39100 in the Pay Band-3 with grade pay of Rs.5400/-) as illegal and arbitrary and quash the same and declare such list annexed with their letter dated 11.9.2008 (Annexure-A-4) as correct and the persons, including the applicants, to be entitled for the benefits of approved service as per such list;
(iv) Declare that in view of the provisions of Rule 2(b)(ii) of AFHQCS Rules, 2001 coupled with the decisions/orders dated 11.9.2008, 22.9.2008 and 25.09.2008 of the respondents, the applicants and similarly placed persons are entitled for grant of Non-functional pay-scale of Rs.8,000-13,500 (pre-revised and revised to pay-scale of Rs.15600-39100 in the Pay Band-3 with grade pay of rs.5400/-) on completion of 4 years in the grade of Section Officer from the 1st day of January of the year for which the Limited Departmental Competitive Examination was held for filling up the post of Section Officer;
(v) Direct the respondents to accord the consequential benefits viz. refixation of pay from the correct date, arrears of pay and 12% interest on such arrears.
7. By their counter affidavit the respondents have, inter alia, pointed out that SOs in AFHQCS belonging to LDCE mode have been given the benefit of NFSG by reckoning their approved service w.e.f. Ist January of the year of vacancies against which their appointment was made. For example, successful candidates of LDCE 2002 and 2003 were granted NFSG by reckoning their approved service w.e.f. 01.01.2003, 01.01.2004, and so on. That even in respect of SOs of CSS cadre, on whose lines the benefit has been extended to SOs of AFHQCS, the officers of LDCE quota reckon their approved service from Ist July of the year for the vacancies of which such examination was held. It is explained that Rule 2(b)(ii) also says that approved service would be from Ist day of January of the year for which such examination was held and not from the Ist January of the year of examination itself. Since vacancies intimated for the purpose belong to the following year of the exam year concerned, approved service should also be reckoned from Ist January of the year (of vacancies) for which examination was held. Even the direct recruits and departmental promotees reckon their approved service in terms of the year of vacancies against which their appointment was made. Such a view has been upheld by the DoP&T in the case of LDCE for qualified PSs of AFHQ Stenographers Service, which supports the action taken as the Recruitment Rules of both are similarly worded. If such benefit is given from Ist January of the year of LDCE it would bring about discrimination within the service between the LDCE appointees, direct recruits and promotees. It is pointed out that the Legal Adviser has opined that approved service means period of regular service rendered in the grade. This is possible only if there is a vacancy in that grade and any interpretation which allows appointment on regular basis prior to occurrence of vacancy would be arbitrary and ultra vires of the Rules. As per Apex Court judgment dated 19.02.2008 on the issue of seniority of Direct Recruits and Promotees the date of allocation of substantive vacancy is the basic principle for counting regular service in the grade and approved service is the regular service rendered in the grade.
8. It is further elaborated that LDCE 2002 had catered for the vacancies of 2003-04 in the SO grade of AFHQCS and therefore the date of approved service was taken from 01.01.2003. The communication dated 11.09.2008 was a note issued in the context of internal deliberations for extending the benefit. It was addressed to the concerned administrative authorities. This was an internal matter. However, because of certain observations regarding the interpretation of approved service, the note of 11.09.2008 was ordered to be held in abeyance by another internal note dated 30.09.2008. Thus such communications were a part of the internal deliberations within the department and were not actual orders in implementation of the government sanction dated 25.09.2008. When the information under RTI Act was provided to applicant No.2 by letter dated 23.05.2006 at Annexure A-8, the matter was sub-judice and under consideration by 6th CPC. It was re-examined and the provisions of the Rules were correctly applied. The benefit has been given to the applicants and others similarly placed as per sanction dated 25.09.2008 and orders contained in note dated 15.12.2008.
9. The applicants have filed a rejoinder by and large reiterating the grounds taken in the OA and particularly opposing the clarification given by the respondents that the approved service should be reckoned from Ist January of the year of vacancies for which examination was held as the word vacancies cannot be imported in the relevant Recruitment Rules to justify the action taken. The applicants also oppose the inter linking of the definition of approved service for SOs appointed in AFHQCS through the three different modes as this would amount to introducing provisions of rule relevant to service conditions of other cadre or service despite rule being clear for LDCE mode. The applicants point out that it is settled law that a Statute should be read and implemented in the simple and plain meaning of it but the respondents have ignored this.
10. It is argued that although the Rules provide for counting approved service from 1st day of January of the year for which such examination was held, the benefit has now been extended only from 1st January subsequent to the year of examination whereas it has to be with respect to the year of LDCE. According to the applicants the Recruitment Rules applicable to CSS and AFHQCS are worded identically with the difference that in CSS approved service is to be counted from 1st day of July of the year for vacancies of which such examination was held, but in the case of AFHQCS it is counted from the 1st day of January of the year for which such examination was held. Therefore in CSS it is dependent on the year for vacancies of which the exam was held whereas there is no such condition in the AFHQCS. At the same time, it is stated that since the benefit of NFSG has been granted at par with CSS, it was arbitrary and discriminatory to decide upon a different year than CSS for reckoning of approved service. It is pointed out that Annexure-AR2 (Colly.) shows that SOs of CSS promoted on the basis of LDCE 2003 have been given NFSG from 01.07.2007 as per documents at pages 26 to 31 enclosed with the rejoinder. The benefit of NFSG was therefore required to be given at par with similarly situated SOs of CSS, particularly since the respondents had accepted in their reply to the averments of the applicant in OA-766/2007 that eligibility for NFSG would be as on 01.01.2007 as recruitment was through LDCE 2003. We, however, do not find any copy of such reply affidavit on record. The Recruitment Rules of SOs in CSS dealing with the grant of NFSG are also not traceable in the pleadings. However, the action taken by the respondents with regard to reckoning of approved service in the case of SOs and PSs of CSS has also been contested as being arbitrary. This appears to be somewhat contradictory to earlier averments. It is stated that there were sufficient vacancies under LDCE in the year 2001 and 2002 and the opinion of the Legal Advisor was in a different matter concerning seniority between direct recruits and promotees and not relevant to the present case. The applicants have enclosed a copy of the judgment of the Honble Supreme Court dated 19.02.2008 in the case of Direct Recruits vs.Promotees at Annexure AR-3 as well as reply received under RTI Act dated 25.03.2009 whereby file notings asked for were received. The latter are placed at Annexure AR-6 and perusal thereof shows a discussion of the variation in assessment of approved service between the three modes of recruitment of SOs in AFHQCS.
11. We have heard the learned counsel for both sides and perused the pleadings.
12. It is observed that AFHQCS Rules, 2001 had been notified on 01.05.2001 by the Ministry under proviso to Article 309 of the Constitution. These Rules as placed at Annexure-A2, inter-alia, carry definition of approved service for direct recruits, LDCE recruits as well as those recruited by promotion on the basis of length of service. The order of the Tribunal in OA-766/2007 is dated 26.10.2007. The Tribunal had, inter-alia, directed the respondents to take a final decision as to grant of NFSG by issue of speaking order treating the erstwhile pay parity with CSS. The 6th Pay Commission recommendations are not before us. From the order passed by the respondents on 22.09.2008 it is noticed that upon recommendations of the 6th CPC the Government vide Ministry of Finance (Deptt. Of Expenditure) Notification dated 29.08.2008, as accepted by the Government Resolution of the same date, decided to grant the NFSG pay scale after completion of 4 years of service to SOs of those organizations/services which had historical parity with CSS/CSSS like AFHQCS/AFHQSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC etc. As such, the order states that the pay scale was granted to SOs of AFHQCS on the same line as granted to SOs of CSS by DoP&T orders dt. 13.11.2003 and 25.01.2006. The sanction dated 25.09.2008 extended the same DoP&T orders to SOs of AFHQCS at par with SOs of CSS. These DoP&T orders have not been produced. The Cadre Controlling Authority thus consented to the grant of NFSG to the SOs but inter alia subject to completion of 4 years of approved service in that grade. The communication of 11.09.1998 is seen to be an internal note of the Ministry of Defence from the office of JS (TRG) & CAO meant for Dy. CAO(A) & Others asking them to consider the cases of SOs in the enclosed lists for pay fixation in Pay Band-3. It was noted that a number of references had been received for admissibility of pay fixation to SOs in Pay Band-3 on the basis of completing 4 years regular service. However, keeping in view Rule 2(b) of AFHQCS Rules, 2001 the lists enclosed were purported to have been prepared on the basis of completion of 4 years or more approved service in the grade as on 01.01.2006 onwards. At that time neither the order dated 22.09.2008 in compliance with the directions of the Tribunal nor the sanction dated 25.09.2008 had yet been issued.
13. Thus we find that the note dated 11.09.2008 cannot be said to have imparted any rights to the applicants herein not only because it was issued as part of the internal exercise to consider the cases for pay fixation in Pay Band-3 but also because it was not directly connected with the compliance of the orders of the Tribunal regarding grant of NFSG. Significantly, it carries no mention of NFSG. This note was held in abeyance, till further communication, by another note dated 30.09.2008. Such decision on the part of the respondents appears to reflect their concern with regard to the correctness or otherwise of the earlier note dated 11.09.2008. Thereafter, when the respondents had made up their mind the note dated 15.12.2008 has been issued. A reference has been made therein to the definition of approved service and sanction dated 25.09.2008 granting NFSG in the revised Pay Band-3 of Rs.15600-39100/- with grade pay of Rs.5400/- in terms of approved service. Other conditions have also been mentioned. This was given in respect of those who were due for this benefit after inception of AFHQCS Rules, 2001 reckoned in terms of Rule-2 of these Rules. The lists of officers including the applicants were enclosed. The officers concerned were informed. Further steps would have had to follow in respect of those whose names were entered in the lists. As such, we are unable to appreciate why these should be regarded as non-speaking orders or that a colorable exercise of powers should be inferred. We may also note that a reply to an application under RTI Act, 2005 does not by itself constitute a cause of action as held by a Co-ordinate Bench of this Tribunal by order dated 14.05.2009 at Jabalpur in OA-746/2007 titled P.P. Singh Sisodia Vs. UOI & Ors. The same is true of notings that remain uncommunicated as an order.
14. It is evident that keeping in view the AFHQCS Rules, 2001 the entitlement for grant of NFSG was laid down in terms of the approved service defined therein and upon completion of 4 years of such service in the grade. In this way the sanction of such benefit was based on approved service and did not say regular service. It may have been a similar provision for CSS as appears from representation of applicant No.2 dated 24.09.2008 addressed to JS(Trg.&CAO) in which he has pointed out that in both the DoP&T orders i.e. 13.11.2003 and 25.01.2006, by which NFSG was granted to SOs of CSS by DoP&T, it was mentioned that this scale is admissible to SOs of CSS on completion of 4 years approved service in the grade. The applicants have pointed out by reference to the annexures to the rejoinder that SOs in CSS who were successful in LDCE 2003 were given the benefit of NFSG after completion of 4 years with reference to the year 2003 in terms of the order at page-102 and effective from 01.07.2007. However, the AFHQCS Rules, 2001 were already in existence more than 7 years before the benefit of NFSG was extended to AFHQCS. These Rules mentioned the Ist of January whereas the CSS Rules take into account Ist of July for consideration of approved service, which would have its own implications for such a situation in CSS, especially as the applicants themselves aver that in CSS it relates to Ist of July of the year for vacancies of which such exam was held.
15. The applicants have relied upon the decision of a 3 Judge Bench of the Apex Court in Union of India and Others Vs. R.C. Jain and others, AIR 1981 SC 951, wherein it had been inter alia observed that:-
.it is not a sound rule of interpretation to seek the meaning of words used in an Act, in the definition clause of other statutes. The definition of an expression in one Act must not be imported into another. This would seem to apply to a comparison with the definition of approved service and provisions in the Rules of CSS and others which have distinct statutory Rules and constitute a separate service nothwithstanding a combined UPSC exam. We also notice that neither the Tribunal nor the 6th CPC seem to have given any specific direction that there should be parity even in respect of details such as the concept of approved service and its calculation. This would also not have been feasible without challenging the Rules since the AFHQCS Rules were already in existence since 2001. On the other hand the three modes of recruitment in AFHQCS form part of the same Rules, 2001 and being part of the same statute it may not be impermissible to read the provisions of the same harmoniously.
16. The applicants have relied upon a Constitution Bench judgment of the Honble Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405, particularly Para-8 thereof which reads as under:-
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji3.
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
17. They have further relied upon a judgment of the Honble Supreme Court in the case of UOI & Others Vs. Braj Nandan Singh, 2005 SCC (L&S) 1135 and particularly emphasized paras 5 to 10 thereof. In this matter the Court was dealing with the Rules 26(1) and 26(2) of the CSS (Pension) Rules, 1972 and had inter alia held that all the provisions of a statute have to be read together and no particular provision should be treated as superfluous. A well settled principle of law was also noted that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. In paras 7 to 10 of this judgment the Apex Court has held as follows:-
7. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse .) The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner courts cannot aid the legislatures defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel .) It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock v. Frank Jones (Tipton) Ltd. )Rules of interpretation do not permit courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn, L.C. in Vickers Sons and Maxim Ltd. v. Evans quoted in Jumma Masjid v. Kodimaniandra Deviah .)
8. The question is not what may be supposed and has been intended but what has been said. Statutes should be construed, not as theorems of Euclid, Judge Learned Hand said, but words must be construed with some imagination of the purposes which lie behind them. (See Lenigh Valley Coal Co. v. Yensavage .) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama (SCC p. 284, para 16).
9. In D.R. Venkatchalam v. Dy. Transport Commr. It was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
10. The above position was highlighted by this Court in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat .
18. We, therefore, propose to examine Rule-2(b)(ii) of the AFHQCS Rules, 2001 in the light of the above. Looking at the language used in the definition of approved service, we find that approved service comprises period or periods of regular service. It applies in respect of an officer who is recruited to the grade, which is that of SO. In the case of K. Madhavan and Another Vs. UOI & Ors., 1987(4)SCC 566 the Apex Court had explained the expression on a regular basis in the context of computing service on such basis for the period spent on probation. It was inter alia held that this would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stop gap or purely temporary basis. It was observed that the general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or the eligibility for the higher post. The Honble Supreme Court in the case of K. Narayanan Vs. State of Karnataka, 1994 Supp.(1)SCC 44 had occasion to examine the meaning of the word recruitment. It was held in para-6 thereof as follows:-
Article 309 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post. Recruitment according to the dictionary means enlist. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well-known methods of recruitment. Even appointment by transfer is not unknown. Thus, keeping the above in view and in the context of the definition of LDCE mode contained in the Rules, 2001 approved service would need to be understood as a period or periods of service rendered from the date of appointment to a post in the grade of SO by an officer who has been recruited to that grade through departmental examination. It would include periods of absence on leave or being unavailable otherwise than only on leave, but the officer must have been holding the post as the period of absence other than on leave cannot be construed to be a period when he had not even been recruited or when he was not in regular service.
19. However, there is a portion of the definition which requires consideration in this context. This is at the conclusion and reads from the first day of January of the year for which such examination was held. These words have been interpreted by the parties before us in various ways. The applicants have said that this means from the first day of January of the year in which the applicants participated and succeeded for their appointment as SO. Therefore, in respect of LDCE, 2002 it would mean approved service from 01.01.2002. A question therefore arose during the hearing whether the definition should not have been worded differently, in keeping with such interpretation, replacing the word for by in or replacing the words for which by when thereby leaving no doubt that it would be the year in which or when such examination was held. The respondents have argued that these words mean from the first day of January of the year of vacancies against which the appointment of the applicants was made. It is clarified that the exam is held in respect of vacancies occurring in the following year and meant to fill the same. As such the words year for which such examination was held means the following year.
20. It is well settled that only when a statute is capable of two interpretations that the rules of construction would need to be considered but where the language is clear and the meaning is plain effect must be given to it. The applicants have not challenged the vires of the statutory definition or sought change in it as it exists. But they seek the interpretation favorable to them. However, the above contradictory interpretations seem to also imply addition or substitution or rejection of words in the statutory definition. Language is important to gauge the legislative intent. But if the language is not plain and unambiguous, some imagination may need to be used to appreciate the object and purpose behind it without interfering with the words already employed to express the same, or insisting upon an unnatural meaning. No words could be read into the Rule, unless absolutely necessary to do so and only if the provision in it is of doubtful meaning. What has been said and also that which has not been said would require to be kept in view.
21. In P.S. Rajput and two others etc. etc. Vs. UOI & Ors., 2006(1) ATJ (CAT Full Bench) 36, a Full Bench of this Tribunal at Allahabad noticed a decision of the Honble Supreme Court in the case of R.K. Sabharwal Vs. State of Punjab & Ors, 1995(2)SCC 745, particularly para-6 thereof, wherein the Court had elaborated on the expression posts and vacancies bringing out the difference between the two as under:-
The expressions posts and vacancies often used in the executive instructions providing for reservations are rather problematical. The word post means an appointment, job, office or employment. A position to which a person is appointed. Vacancy means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a post in existence to enable the vacancy to occur.
22. An examination could not be of use unless it is known in advance that vacant posts exist which need to be filled up. There may be vacancies which are carried forward because they could not be filled up after an earlier examination due to any reason or there may be vacancies which it is known would definitely arise or again there may be vacancies that it may be possible to anticipate. These vacancies may undergo some change for various reasons and also depending upon exigencies of administration. The vacant posts are usually filled up from those on the select panel which would be prepared out of candidates found successful in the examination. No appointment is possible against a post that is not vacant. Besides, the life of a panel is normally 1 to 1 = years. Therefore appointments would follow the holding of an examination and during currency of the panel. It is not inconceivable that there may be an interval of time between holding the departmental exam and the actual recruitment by appointment to a post. The Departmental Exam is only the mode through which the recruitment is facilitated, just like DPC or Direct Recruitment.
23. The eligibility for grant of benefit of NFSG depends inter-alia upon completion of the required 4 years of approved service. It would therefore be necessary to consider as to from which date such approved service is to be taken as having commenced. The definition links the commencement of approved service to the first day of January of the year for which such examination was held. The rationale for interpretation of this as the first day of January of the year of vacancies against which the appointments are made, as per the stand of the respondents, would appear to lie in the Rules and instructions contained in Chapter 54 of Swamys Complete Manual on Establishment and Administration for Central Government Offices Ninth Edition 2003. These reveal that there is a concept of vacancy year which is either the calendar year or financial year. In order that filling up of vacant posts arising in such year is not delayed the panels have to be prepared in advance of the vacancy year. The date of eligibility with reference to the vacancy year is invariably the first of January of that year. That is, for vacancy year 2003-2004 it would be the first of January 2003. Such date of eligibility seems to be followed in the case of NFSG for Group-A posts as well. NFSG is a segment of the grade which is that of SO in the present case. It is also Non-Functional in character since the appointment to NFSG involves mainly the extension of a higher pay scale to eligible officers within the existing sanctioned strength of the cadre. It is in the nature of a higher financial grade which is given in view of length of service, but on the same post. As such, these words in the definition would extend eligibility for grant of NFSG to all those SOs in AFHQCS who have entered the fifth year of approved service, starting from first of January of the vacancy year. The words of the year for which such examination is held would therefore mean the vacancy year and in accordance with the interpretation put forward by the respondents. It would not be the year by which the Departmental examination is merely designated.
24. At the same time one cannot lose sight of the fact that, since approved service has the attributes of regular service, it would follow that such service would have to be taken as beginning from the date of appointment on regular basis to a vacant post in the grade of SO in AFHQCS. In that event an SO would be eligible for NFSG on such date 4 years later. This would vary from individual to individual depending upon the date of appointment. Therefore, even if the year for which such examination is held is taken to be the vacancy year, it would still be necessary to reconcile such different dates of eligibility with the words from the first day of January as common to all. It is a settled position that a statute is to be presumed to be a reasonable, valid enactment and every part of it should have effect. It is noteworthy that the words from the first day of January categorically lay down the day before which credit for approved service cannot be claimed. After that it would be the period(s) of regular service commencing from the date of appointment on regular basis against a vacant post of SO. But, if the administration has, as a matter of policy, found it expedient to consider all such cases for grant of NFSG with a common date of eligibility, inter-alia for administrative reasons and in view of the characteristics of NFSG, as well as in the interest of the applicants since it gives the SOs the benefit for this purpose of an additional period, we d o not think it necessary to interfere with the same.
25. In view of the above discussion, we are not persuaded that there are sufficient grounds for intervention on behalf of the applicants. The O.A. is dismissed. No costs.
(N.D. Dayal) (Mrs. Meera Chhibber) Member(A) Member(J) /vv/