Central Administrative Tribunal - Delhi
Mr. Hari Singh vs The Union Of India Represented By on 15 May, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA No.434/2013
M.A. No.216/2014
M.A. No.303/2014
Reserved On:18.03.2014
Pronounced On:15:05.2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. Mr. Hari Singh
S/o Sri Mool Chandra
Aged about 58 years
Working as the Senior Assistant
Director,
National Horticulture Board,
Ministry of Agriculture,
Department of Agriculture & Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon PIN122015, Haryana
Residing at House No.7, Gali No.7,
West Rajiv Nagar,
Gurgaon,
Haryana.
2. Dr. (Mr.) R.S. Bhati
S/o Mr. Ram Saran Bhati,
Aged about 51 years
Working as the Senior Assistant
Director,
National Horticulture Board,
Ministry of Agriculture,
Department of Agriculture & Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon PIN122015, Haryana
Residing at House No.E-88,
East Vinod Nagar,
Delhi PIN110091. ..Applicants
By Advocate: Shri S.K. Gupta.
Versus
1. The Union of India represented by
The Secretary,
Ministry of Agriculture,
Department of Agriculture and Co-operation,
Government of India,
Krishi Bhawan,
New Delhi PIN 110001.
2. The National Horticultural Board,
Represented by its Board of Directors,
Ministry of Agriculture,
Department of Agriculture and Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon PIN 122015, Haryana.
3. The Managing Director,
National Horticultural Board,
Represented by its Board of Directors,
Ministry of Agriculture,
Department of Agriculture and Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon PIN 122015, Haryana.
4. The Additional Managing Director,
National Horticultural Board,
Represented by its Board of Directors,
Ministry of Agriculture,
Department of Agriculture and Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon PIN 122015, Haryana.
5. The Director (Personnel)
National Horticultural Board,
Represented by its Board of Directors,
Ministry of Agriculture,
Department of Agriculture and Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon PIN 122015, Haryana.
6. Mr. Bani Singh,
Sr. Assistant Director,
The National Horticultural Board,
Represented by its Board of Directors,
Ministry of Agriculture,
Department of Agriculture and Co-operation,
Government of India,
85, Institutional Area,
Sector-18, Gurgaon
PIN 122015, Haryana. ..Respondents
By Advocate: Shri Sanjeev Singh for Respondents 2 to 5.
Shri Subhash Gosain for Respondent No.6.
O R D E R
Mr. G. George Paracken, Member (J) The Applicants are aggrieved by the Annexure A-I Office Order dated 16/18.11.2013. According to the said order, due to exigency of the work in the Co-ordination Division, the officiating charge against the post of Deputy Director (which has been lying vacant due to deputation of Shri N.C. Mistry, Deputy Director as Additional Managing Director up to 31.07.2014) in the pay scale of Rs.15600-39100 + GP Rs.6600 was given to Shri Bani Singh, Sr. Assistant Director (Respondent No.6) on temporary basis till such time the post is filled up on regular basis. The said order further states that the officiating pay shall be fixed in terms of Order No.F.1/4/2009-Estt.(Pay.1) dated 08.03.2010 of the DOP&T and the said officiating arrangement will not confer any right upon Shri Bani Singh for regular promotion to the post of Deputy Director.
2. The brief facts of the case: The first Applicant initially joined second Respondent-National Horticulture Board (NHB for short) on 23.06.1988 as a Market Information Officer, re-designated as Assistant Director and on completion of 12 years service in that post, as Senior Assistant Director. Similarly the second Applicant joined NHB on 19.12.1988 as Market Information Officer and later re-designated as Assistant Director. The turn for promotion to the post of Dy. Director twice came to the Applicant No.1, first in the year 2001 and then in the year 2005 but on both the occasions he was superceded by his juniors Shri Brajendra Singh and Shri Dheer Pal Singh. In the current Seniority List of Assistant Directors released in 2012, the Applicant No.1 has been shown at Sl.No.1, the Applicant No.2 at Sl.No.5 and Shri Bani Singh at Sl.No.16. Applicant No.1 has, in fact, made the Annexure A-2 representation on 14.11.2013 to consider him for regular promotion as Deputy Director against the existing post which has been lying vacant since December, 2011. But both the Applicants have again been sidelined by the Respondent No.2 vide the impugned Office Order dated 16/18.11.2013 by giving the officiating charge to the post of Deputy Director to Shri Bani Singh.
3. According to the Applicants, they have already been suffering the ignominy of working under their far junior officers like Mr. Brajendra Singh and Mr. Dheer Pal Singh since 2001 and 2005 respectively. Now another far more junior, Shri Bani Singh has been placed above them by the impugned order. They have also stated that the third respondent should not have issued the impugned order during the pendency of the aforesaid representation dated 14.11.2013. Further according to them, 15 Assistant Directors from Sl.No.1 to 15 in the seniority list including them have been ignored by picking up the 6th Respondent. According to them, he has been selected because he was the personal choice of the third respondent, i.e., MD, NHB who arbitrarily widened the zone of consideration up to 16 officers and promoted the 6th Respondent who was at the 16th position.
4. The Applicants have challenged the impugned Annexure A-1 order as the same was got issued by the third Respondent without recourse to the relevant Recruitment Rules. The post of Deputy Director being a promotional post for the post of Assistant Directors it has to be filled up after following the prescribed procedure of selection. However, no such proceedings have been followed before issuing Annexure A-1 Office Order. Further, according to Applicant No.1, he had the legitimate expectation to get the promotion to the aforesaid post of Deputy Director in view of his Annexure A-2 representation and his position in the Annexure A-4 seniority list. Second Applicant had also the legitimate expectation for his promotion in view of his position at Sl.No.5 in the Annexure A-4 seniority list. On the other hand, Shri Bani Singh was not at all entitled for the promotion overlooking the claims of the Applicants and other 13 persons who are senior to him. Shri Bani Singh was also having the grade pay of only Rs.6600/- at the time of issuing of the Annexure A-1 order while that of the candidates at Sl.No.1 to 14 including the Applicants in the Annexure A-4 seniority list was Rs.7600/-.
5. The Respondents No. 2 to 5 have filed their reply. They have stated that the Respondent No.6 was given the officiating charge purely on temporary basis as per the work requirement and in view of the exigency. They have further stated that in accordance with the guidelines framed under FR 49, the Central Government is empowered to appoint a Government servant already holding a post in a substantive or officiating capacity to officiate as a temporary measure in one or more of independent posts at one time in the Government and the Respondent No.6 was found the most suitable candidate among all to hold the post of Dy. Director.
6. The Private Respondent No.6 Shri Bani Singh has filed the reply stating that this Tribunal has no jurisdiction to entertain the present OA in view of clause (i) of sub-rule (1) of Rule 6 and clause (ii) of sub-rule (1) of Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 as neither the impugned order has been passed within the jurisdiction of this Tribunal nor any cause of action, wholly or in part has arisen within jurisdiction of this Tribunal. He has also stated that the principle of seniority is applicable only where two persons are of equal merit. The Applicants need not feel any ignominy as the promotions have been made on the basis of merit with due regard to seniority. They lack merit compared to their counterparts. He has further stated that it is well settled law that period of service rendered under officiating capacity will not be reckoned for the purpose of determining the seniority and the Applicants have no loss towards their seniority if he continues to perform the duty of Dy. Director in officiating capacity as his appointment is not a substantive appointment. Moreover, he was given charge of Dy. Director purely on temporary and officiating basis up to 31.07.2014 in place of the regular incumbent Shri N.C. Mistry who is on deputation as Additional MD up to that period. Thereafter, he may be reverted to the post of Dy. Director which is his original post. He has also stated that Shri D.P. Singh in the department was earlier given promotion as Dy. Director in 2005 through duly constituted DPC on temporary basis against the vacancy occurred on account of deputation of an officer and when regular vacancy fell vacant in 2011, he was promoted on the said post through DPC following recruitment rules/procedure on the basis of merit with due regard to seniority. But no regular vacant post is available in 2011 for promotion as claimed by Applicant(s). He has also submitted that officiating charge given to him with the clear instructions that the officiating arrangement does not confer any right for regular promotion to him. He submitted further that the officiating charge was given to him considering his past experience from 2004 to 2011 and again from September, 2012 onwards in attending urgent and time bound matters like addressing parliament questions, VIP references, organizing meetings of Board of Directors, Managing Committee, project approval committees having coordination with NABARD, NCDC, Ministry of Agriculture and other concerned organizations, and also addressing other related important issues inter alia. On the other hand, the Applicants have no such experience in handling the issues of vital importance as stated above and the management has more confidence in him than in the Applicants. He has been given the officiating charge by the department after considering his case along with other eligible officers, namely, Shri Lal Singh and Shri Dal Singh at Sl.No.12 and 15 in the seniority list. However, he was found most suitable and capable amongst them. Again before giving him the charge for the post of Dr. Director, the management considered his ACRs along with past record of his experience and abilities and all his ACRs for the years 2005-06 to 2011-12 were outstanding whereas there was not a single outstanding ACR for the Applicants for the said period. Rather, they were all having the grading of Good for continuous three years.
7. He has also relied upon the judgments of the Apex Court in the case of Appeal Civil 4679-4680 of 1996 - P.U. Joshi and Others Vs. UOI and Others decided on 19.12.2002, Sarat Kumar Dash and Others Vs. Biswajit Patnaik and Others 434 JT 1995 (2) 69 and CWP No.23/1979 Shri Gopal Krishan Vs. University of Delhi and connected cases decided by the High Court of Delhi. On 21.01.2004. In the case of P.U. Joshi and Others (supra), the Apex Court that it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. The relevant part of the said judgment is held that as under:-
We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
In the judgment in Sarat Kumar Dash and Others (supra), the Apex Court held that In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. The relevant part of the said judgment is as under:-
6. It is seen that the government, in the absence of statutory rules, have applied, by administrative order, the principle of "merit-cum-suitability with due regard to seniority". It is settled law that in case of promotion to the posts of higher cadre, it has always been the settled criteria applied by the governments is "merit-cum-suitability with due regard to seniority" or "merit and ability" but not 'seniority' or "seniority-cum-suitability". In fact, this question was considered by PSC, as stated earlier, before its evaluation of the respective merits. They secured the rules in the comparable services of the State where the principle of "merit-cum-suitability with due regard to seniority" is the statutory rule and thereby, the PSC had accepted the recommendation of the government 1 1973 2 SCC 836 : 1974 SCC (L&S) 5 : 1974 1 SCR 797 to apply the above rule to adjudge the relative merits of the candidates and in fact they did so apply.
XXX XXX XXX
8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a juniormost man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for consideration. But in case where the relative merit and suitability or ability have been considered and evaluated, and found to be superior, then the seniority has no role to play. In our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of 'B'. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit.
In its judgment in the case of Gopal Krishan and Another (supra), the High Court of Delhi has held that The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor. The relevant part of the judgment is as under:-
9. It is thus apparent that as per the Rule, appointment by promotion has to be on the basis of merit and record of service. Due regard has to be paid to seniority. Stand of the respondent is that there was nothing adverse in the record of service of any of the 10 persons whose name is entered from serial Nos. 1 to 10 of the list noted in para 3 above. It is also the admitted position as is evident from the pleadings of the University that placement of the 10 persons at serial No. 1 to 10 was based on their merit position determined on the basis of mistakes committed by each candidate. Lesser the number of mistakes higher the position on the merit list.
10. Does the rule require rearranging the names of the person by unscrambling the list based on merit and record of service and rearranging the same on basis of seniority held by the candidate in the feeder cadre? What would be the meaning of the words 'due regard being paid to seniority' in the service rules? The Supreme Court, in its decision reported as AIR 1974 SC 87 Union of India Vs. M.L.Capoor considered a service rule which reads as under:-
"The Selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority."
It was held:-
"22.........The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor. A simple reading of the Regulation 5 (2) clearly indicates this to be the correct view. The required number has thus to be selected by a comparison of merits of all the eligible candidates of each year. But, in making this selection, seniority must play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service should be. There could be a certain number of marks allotted, for purposes of facilitating evaluation, to each year of experience gained in the service."
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12. Indeed, "concept of merit-cum-suitability with due regard to seniority" is distinct from the "concept of seniority subject to merit" and the "concept of seniority subject to suitability". As explained in Sarat Kumar Dash's case applying Capoors case, the principle of merit-cum-suitability subject to seniority mean that where competing candidates are equal or come close in order of merit and ability, seniority would break impasse and the one senior would be placed above the other. Save and accept this limited role, seniority has no role to play where the rule prescribes merit-cum-suitability, due regard being paid to seniority.
8. We have heard the learned counsel for the Applicants Shri S.K. Gupta, learned counsel for the Respondents No.2 to 5 Shri Sanjeev Singh and learned counsel for Respondent No.6 Shri Subhash Gosain. We have also perused the original record made available by the Respondents. The following notings in the file are relevant and they are reproduced as under:-
NATIONAL HORDITCULTURE BOARD Sub: Filling up the one post of Dy. Director on officiating basis.
There are 5 posts of Dy. Directors available in the National Horticulture Board. Out of these 5 posts, presently one post is lying vacant due to the deputation of Shri N.C. Mistry, the then Dy. Director, NBD as Addl MD up to 31.07.2014.
In this connection, it is pertinent to mention here that the Recruitment Rules of various posts in the Board are under review/revision. However, in the meantime the Recruitment Rules are finalized with the approval of MC/DAC, we may fill up one post of Dy. Director giving officiating charge to one Assistant Director keeping the exigency of work.
Further, it is also relevant to submit that as per FR 49, The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government (F/A).
Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post.
As per FR 35, the Central Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules. However, the pay shall be restricted, so as not to exceed the basic pay in the revised scale by more than the amounts shown below (F/B).
a) For employees in receipt of pay in the pay band above Rs.14,880/- pm 12-1/2% of the basis pay subject to a maximum of Rs.2000 p.m. (including the difference of grade pay between the feeder and the promotional post)
a) For employees in receipt of pay in the pay band above Rs.14,880/- pm 15% of the basis pay subject to a maximum of Rs.2000 p.m. (including the difference of grade pay between the feeder and the promotional post) In terms of delegation of powers (F/C) MD, NHB has the full powers to appoint staff up to the level of Dy. Directors.
As desired by DD (P), the case is, therefore, submitted for favour of kind consideration for filling the one post of Dy. Director (which is lying vacant on temporary basis) presently giving officiating to one AD (as per seniority list placed below at F/D).
Submitted for kind consideration of Competent Authority Sd/-
(C.P.Gandhi) Asstt. Director (C) DD (P) The work of Assistant Director (Computer) on pre-page 4/ante and above may kindly be perused regarding filling the one post of Dy. Director (which is lying vacant on temporary basis) giving officiating to one AD. In my opinion, Shri Bani Singh, Sr. AD, who had worked earlier in coordination w.e.f. 2.8.2004 to 16.06.2011 and again is working w.e.f. 10.09.2012 in this Division, with full dedication a zeal for coordination IC/PAC/MC and BOD meeting as well as Parliament Question may be considered based on performance, however, AMD may like to see before sending it to competent authority.
Submitted please.
Sd/-
08.01.2013 HMD NATIONAL HORTIULTURE BOARD Reference Note on Pare-page:
As per the pre-page note of Pers. Division, it is stated that one post of Dy. Director post which is vacant due to deputation of undersigned as Addl. MD in Board, may be filled up on officiating basis among the Sr. Ads on the basis of performance. In this connection, it is mentioned that Shri Bani Singh, Sr. Assistant Director who had revived the Coordination division by handling/attending parliament questions, organization BOD, MC, PA, IC meetings, VIP references with accuracy, punctuality and sincerity since 2004 to 2011 and again from September, 2012 onwards in this division, is most suitable for the officiating post of Dy. Director with outstanding performance for all these years and also has the better abilities to handle various issues than others.
Keeping in view, Shri Bani Singh, Sr. AD may be given the post of Dy. Director on officiating basis.
Sd/-
(N.C. Mistry) Addl. Managing Director Managing Director HORTICULTURE DIVISION Kindly peruse the Note of Addl. MD, NHB on pre-page.
It is stated that one post of Dy. Director, NHB is lying vacant due to deputation of Shri N.C. Mistri, Deputy Director as Addl. MD in the Board may be filled up on officiating charge from the officers of the rank of Sr. Assistant Director on the basis of their performance. In this regard a merit-cum-seniority list with the status of ACR/APAR has been prepared and may be seen at (F/A). Accordingly, there are three officers, namely, S/Shri lal Singh, Dhal Singh and Bani Singh at Sl. No.12,15 and 16 respectively having outstanding performance. But based on the overall work & field experience of these officers, Shri Bani Singh, Sr. Assistant Director is more competent than that of two. It is pertinent to mention here that Shri Lal Singh has limited field experience and worked as PS to MD only, Shri Dhal Singh has coordination and administrative work experience only at Headquarter level and Shri Ban Singh, Sr. A.D. has worked in the Coordination Division by handling parliament questions, organizing meeting of Board of Directors, Managing Committees, Project Approval Committees, Internal Committees, VIP references with accuracy, punctuality and sincerity since 2004 to 2011. Based on earlier performance, Shri Bani Singh was again given the responsibilities of this Division from September, 2012 onwards including coordinating with MoFPI in respect of Cold Chain Horticulture projects being handled by NHB. He has also been provided as excellent and commendable performance in the field offices for development of horticulture during his tenure in states.
2. In terms of delegation of Power (F/) MD, NHB has the full powers to appoint the official up to the level of Deputy Director.
3. Based on the above, Shri Bani Singh, Sr. A.D. is most suitable and competent for the post of Dy. Director, NHB and may be given the officiating charge of Dy. Director.
Submitted for kind consideration and approval please.
Sd/-
(Om Prakash) Additional Commissioner (NHM) 16.01.2013 JS (NHM)/MD,NHB Ok. Shri Bani Singh may be given the officiating charge.
Sd/-
16.01.2013 Sd/-
AMD 23.01.2013 Sd/-
DD 23.01.2013.
9. A perusal of the above noting would reveal that the appointment of Shri Bani Singh as Dy. Director on ad hoc basis has been done in an arbitrary manner. The officials in the office of the Respondent No.3 was predetermined to promote Shri Bani Singh ignoring the rightful claim of 15 of his seniors. The Dy. Director (P) in the said office asked his subordinate, i.e., Assistant Director ( C) to make a proposal for appointing another Assistant Director as Deputy Director on ad hoc basis. The said Dy. Director (P) straightaway suggested the name of Shri Bani Singh without examining the proposal with reference to the relevant rules/instructions. The Additional Managing Director Shri N.C. Mistry to whom the aforesaid suggestion was made was earlier incumbent of the aforesaid post of Dy. Director. He is now occupying the present post on deputation basis. He has also recommended Shri Bani Singh for the aforesaid post because of his past preference as Sr. Assistant Director in Co-ordination Section. Thereafter, the Additional Commissioner (NHM), in order to give a semblance of selection, made a comparative assessment of the ACRs of 16 Sr. Assistant Directors on seniority basis. The Additional Commissioner, without any rhyme or reason, extended the zone of consideration up to seniority No.16 as Shri Bani Singh was at that number. On the other hand, if there is only one post, a maximum of only 5 persons in the seniority list have to be considered. Even otherwise, according to his own assessment, three officers, namely, S/Shri Lal Singh, Dhal Singh and Bani Singh have the Outstanding gradings. They are at Sl.No.12, 15 and 16 of the seniority list. Even then the choice fell on Shri Bani Singh who was the junior-most among all the candidates considered. The reason given for his selection are that he worked in the Coordination Division and handled parliament questions, organized meeting of Board of Directors, Managing Committees, Project Approval Committees, Internal Committees etc., dealt with VIP references with accuracy, he was punctual and sincere. It is not the case of the Respondents that other officers are not doing those work, they are not punctual and sincere. In our considered view, such arbitrary considerations are not permissible in public appointments. Nobody is indispensable. The officials in the feeder cadre have to be considered in an objective manner. Only when one gets the opportunity to work on a particular post, he can perform well and prove his mettle.
10. Further according to the aforesaid notings of the Respondents, it is seen that the Recruitment Rules for the post of Dy. Director is under Review. In our considered view, just because the Recruitment Rules are under revision, the Respondents cannot adopt any method which is against the established norms to fill up the post even on ad hoc basis. The Government of India, Department of Personnel has issued already specific instructions to be followed for ad hoc appointments vide different Office Memoranda. They have been compiled and published in Swamys Complete Manual on Establishment and Administration. According to said OMs, whenever short-term vacancies are caused by the regular incumbents proceeding on leave for 45 days or more, study leave, deputation, etc. of less than one year duration, they may be filled by other officers available on an approved panel. Such a panel may be maintained over a period of 12 months in accordance with the existing instructions/holding DPCs. Wherever no officer is available in the approved panel the post may be kept vacant, as far as possible. Further, according to those instructions, where ad hoc appointment is by promotion of the officer in the feeder grade, it may be done on the basis of seniority-cum-fitness basis even where promotion is by selection method. The Department of Personnel and Administrative Reforms, vide the OM dated 08.02.2002, have issued the specific principles to be observed in preparation of panel for promotion. The said OM has not made any distinction between ad hoc promotions and regular promotions. The relevant part of the said OM is as under:-
6.3.1 Principles to be observed and preparation of panel The list of candidates considered by the DPC and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion by the DPC. The following principles should be observed in the preparation of the panel:-
(a) Mode of Promotion-In the case of 'selection' (merit) promotion, the hitherto existing distinction in the nomenclature ('selection by merit' and 'selection-cum-seniority') is dispensed with and the mode of promotion in all such cases is rechristened as 'selection' only. The element of selectivity (higher or lower) shall be determined with reference to the relevant bench-mark ("Very Good" or "Good") prescribed for promotion.
(b) Benchmark for promotion - The DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench-mark and accordingly grade the officers as 'fit' or 'unfit' only. Only those who are graded 'fit' (i.e. who meet the prescribed bench-mark) by the DPC shall be included and arranged in the select panel in order to their inter-se seniority in the feeder grade. Those officers who are graded 'unfit' (in terms of the prescribed bench-mark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded 'fit' (in terms of the prescribed bench-mark) by the DPC.
( c) Although among those who meet the prescribed bench-mark, inter-se seniority of the feeder grade shall remain intact, eligibility for promotion will no doubt be subject to fulfillment of all the conditions laid down in the relevant Recruitment/Service Rules, including the conditions that one should be the holder of the relevant feeder post on regular basis and that he should have rendered the prescribed eligibility service in the feeder post.
11. However, in this case the Respondents have given a go by to the aforesaid procedure. On the other hand they extended the zone of consideration to 16 officials only to favour Shri Bani Singh for promotion as Dy. Director. It is seen that one officer at the level of Dy. Director considered that the 6th Respondent was the most suitable person to be appointed as Dy. Director on ad hoc basis without any valid reasons or authority. Other officers above him also concurred with him and succeeded in misleading the competent authority to get his approval. When there are prescribed procedure for making ad hoc promotions, the same have to be followed strictly. Just because some officers consider a person as the best among all other officers, he cannot be appointed ignoring the claim of the seniors who holds the benchmark for such selection. Moreover, when the promotional post involves payment of higher salary and allowances, the same cannot be illegally denied to the seniors who are otherwise eligible to hold that post. Therefore, we are of the considered view that the appointment of the 6th Respondent is arbitrary and illegal.
12. We, in the above facts and circumstances of the case, allow the OA and quash and set aside the Annexure A-1 Office Order promoting the Respondent No.6 as Deputy Director. The Respondents shall fill up the vacant post of Deputy Director on ad hoc basis only in accordance with the prescribed procedure.
13. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh