Central Administrative Tribunal - Delhi
Sri Manohar Lal vs Union Of India Through on 24 December, 2014
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3707/2013
Reserved on: 28.07.2014
Pronounced on: 24.12.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
1. Sri Manohar Lal
PPS, Office of MOS (EA),
MEA, South Block,
New Delhi.
2. Sri Kode Govind Raju
PPS to Joint Secretary (Gulf)
Ministry of External Affairs,
South Block,
New Delhi 110 011.
3. Sri R.S. Virdi,
PPS to JS (PV),
CPV Division, MEA,
Patiala House,
New Delhi. Applicants
(By Advocate: Shri Ashwarya Sinha)
Versus
1. Union of India through
Secretary,
Ministry of External Affairs,
South Block, Govt. of India,
New Delhi.
2. Union of India through
Secretary,
Deptt. of Personnel & Training,
North Block, Govt. of India,
New Delhi.
3. Union of India through
Under Secretary (GA & Cadre)
Ministry of External Affairs,
South Block, Govt. of India,
New Delhi.
4. Union Public Service Commission through
Chairman,
Dholpur House, Shahjahan Road,
New Delhi 110 069. Respondents
(By Advocate: Sh. R.N. Singh)
O R D E R
By Dr. B.K. Sinha, Member (A):
The instant OA assails the OM dated 02.09.2013 (Annexure A-1 page 29 of the paper book) vide which the applicants have been rendered ineligible for appearing in a Special Limited Departmental Competitive Examination for Scheduled Castes/Scheduled Tribes for appointment of Section officers to the post of Under Secretary.
2. The applicants have sought the following relief(s):
i) Quash and set aside the impugned Circular dated 02.09.2013 issued by the Ministry of External Affairs, Govt. of India vide which the Applicants herein have been deprived of their legitimate right to appear in the Special Limited Departmental Examination for SC/ST officers which is to be conducted by the UPSC on 26.10.2013 and 27.10.2013 for appointment of the Section Officers to the post of Under Secretary.
ii) Direct the Respondents to allow the Applicants to appear in the Special Examination to be conducted by the UPSC for promotion to the post of the Under Secretary.
iii) Pass such other order/orders as your Lordships may deem fit and proper in the interest of justice.
3. The case of the applicants, in brief, is that they have been working in the Stenographers Cadre of the IFS (B). Under Rule 7 of the Indian Foreign Service, Branch B (Stenographers Grade, Principal Private Secretary Posts) Recruitment Rules, 1992 [hereinafter referred to Rules of 1992], Private Secretaries had an option to choose whether they desired promotion to the post of Grade-I in the General Cadre or to continue in the Stenographers Cadre. On 03.01.2008, the Cadre Cell of the Ministry of External Affairs notified a revised seniority list of the Grade Stenographers in the Stenographers Cadre of IFS (B) vide OM dated 03.01.2008. However, on 17.10.2008, Indian Foreign Service Branch B (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 [hereinafter referred to RCSP Rules, 1964] were amended providing that the vacancies in the Grade-I of General Cadre (Under Secretary) shall be filled by promotion of the employees working in integrated Grades-II & III of the General Cadre (Section Officers) only. Thus, the applicants contend that an avenue which had been in vogue for the last 45 years to opt for the post of Under Secretary at par with Section Officers was closed. The Members of the Stenographers Cadre approached this Tribunal by way of OA No. 2243/2008 which was dismissed solely for want of jurisdiction. Against the said order of the Tribunal, similarly situated applicants moved a Writ Petition bearing WP(C) No.6697/2010 before the Honble High Court of Delhi which was also dismissed vide order dated 22.11.2010. On 23.05.2012, one Suresh Kumar, a similarly situated person, preferred an OA bearing No.2139/2012 before this Tribunal which, the present applicants claim, is pending adjudication. The applicants further submit that in the Circular dated 02.09.2013 of the Ministry of External Affairs (respondent no.1), the crucial dates of eligibility have been fixed as 01.12.2008 for the select list of 2009, 01.12.2009 for the select list of 2010 and 01.12.2010 for the select list of 2011. This, the applicants allege, has been done deliberately to deprive the Private Secretaries who otherwise would have become eligible to be promoted as Under Secretary had the crucial dates be fixed as 01.07.2008 as per the then RCSP Rules, 1964.
4. The applicants filed a representation in September, 2013 and in response thereto the respondents sent an email dated 19.09.2013 informing that the last date of filling up the application online was extended to 22.09.2013. The applicants allege that they have been discriminated by fixing the date of eligibility to their exclusion.
5. The applicants, in the second place, state that the Limited Departmental Competitive Examination for Section Officers and Departmental Competitive Examination for Cipher Assistants are open examinations and no classification between the Stenographer Cadre and the General Cadre is made during the selection process. The applicants have again relied upon Rule 7 of the RCSP Rules, 1964 which, inter alia, provides that the controlling authority could post employees of Integrated Grades-II & III of the General Cadre against a post in the Selection Stenographers Cadre and vice versa. The Controlling Authority may also post a Cipher Assistant of the Cipher Sub-Cadre against a post in Grade IV of the General Cadre. This Rule does not distinguish between any particular cadres in the IFSB B for optimal utilization of the talent available. The applicants have also relied upon a decision of the Honble Supreme Court in the matter of Union of India versus Alok Kumar [2010 (5) SCC 349 at para 60] wherein it has been held that any practice followed for a long duration of time and is not violative of Constitution, can be termed as good in law.
6. The learned counsel for the applicants emphatically submitted that the respondents were duty bound to continue the previous practice in view of un-amended Rule 7 of the RCSP Rules, 1964. They have also submitted that the amendment to Rule 12(2) in the RCSP Rules, 1964 is self-contradictory in view of Rule 7 of the Rules of 1992 because application of Rule 7 to choose between the post of Under Secretary, General Cadre, Grade I and PPS of Stenographer Cadre appears to be intact and this cannot be disregarded. Therefore, subsequent notification/ amendment will have no value. The applicants have further relied upon the decision of the Honble Supreme Court in the case of Chandigarh Administration versus Usha Khetarpal Waie [2011 (9) SCC 645] wherein it has been held that if the Government issues any administrative instruction, in absence of any rules, such an instruction would not be binding. The applicants also contend that the impugned Circular dated 02.09.2013 is violative of Article 320 of the Constitution of India. Moreover, no cogent reasons have been assigned for the amendments in the rules so made by the respondents.
7. The respondents have filed a counter affidavit wherein it has been stated that the applicants are no longer eligible for promotion to Grade-I of IFS B after amendment of the rules effective from 17.10.2008. They even do not have any locus standi to raise this issue. The learned counsel for the respondents further submitted that a Special Limited Departmental Examination has already been conducted for filling up of 43 backlog vacancies of SC/ST officers arising in the following manner:-
Year Select List Year SC category ST category Total 2009 2009-10 1 0 1 2010 2009-10 1 0 1 2011 2010-11 27 14 41 Total 43 They have further stated that the eligibility criteria meant for appearing in the examination has been indicated under Rue 3 of the Examination Rules. The learned counsel for the respondents contended that against 63 eligible SC/ST candidates, only 38 had applied and finally only 35 candidates took the examination, result whereof is awaited. Moreover, the Original Application bearing OA No.2139/2012 filed by one Suresh Kumar has, in the meantime, been decided by the Tribunal vide order dated 23.10.2013 wherein a challenge to the amendment on the basis of Rule 7 of Rules of 1992 has been found invalid by this Tribunal and OA stood dismissed. Thereafter, nothing survives in the instant OA as in Suresh Kumars case (supra), the Tribunal has unequivocally held that the respondents may bring about the changes in their policy structure.
8. The applicants have filed rejoinder application and have rebutted all the points raised in the counter affidavit. It has been stated in the rejoinder application that the Special Limited Departmental Competitive Examination has been held in utter disregard to Rule 12(2) of RCSP Rules, 1964 and rights of the applicant to appear in the said examination.
9. We have carefully gone through the pleadings of the parties and patiently heard the arguments advanced by the respective learned counsel for the parties. The points that attract our attention and need to be decided in the present context are as follows:-
(1) Whether disregard to Rule 7 of the Rules of 1992 while holding the examination under the amended Rule 12(1) of RCSP Rules, 1964 would invalidate the process of examination? and (2) Whether fixing the dates of eligibility w.e.f. 01.12.2008, 01.12.2009 and 01.12.2010 would amount to an act of discrimination in violation of Articles 14 & 16 of the Constitution of India?
(3) What relief, if any, may be granted to the applicants?
10. Insofar as the first of the issues is concerned, we find that this matter had been dealt in the case of Suresh Kumar versus Union of India (supra) wherein the same has been examined in detail vide order dated 23.10.2013. In the said case, the applicant had sought the following relief(s):-
(i) Quash and set aside the impugned Office Memorandum dated 13.09.201 passed by the Ministry of External Affairs, Govt. of India, vide which it rejected the application/request of the Applicant for promotion to the post of Under Secretary and further direct the respondents to consider the applicant for promotion to the post of Grade-I;
(ii) Quash and set aside the Amendment Notification dated 17.10.2008 amending Rule 12(1) of the Indian foreign Service Brnach B (Recruitment, Cadre, Seniority and Promotion) Rules, 1964, vide which the officials belong to the Stenographers Cadre became ineligible for promotion to the post of Under Secretary;
(iii) Pass such other order/orders as your Lordships may deem fit and proper in the interest of justice. The following issues were framed by the Tribunal in the aforesaid case:-
(i) Whether amendment to the Rule 12(1) IFS (B) Rules, 1964 is bad under law as being violative of Article 14 of the Constitution?
(ii) Whether the applicant has right to claim continuous consideration in the year 2008-09 and beyond?
(iii) The fact that the promotion was granted to one Madan Lal Regar to the post of Under Secretary is discriminatory against the applicant.
(iv) What relief, if any, can be granted to the applicant?
It appears from the above that the basic issue related to the validity of the amendment to Rule 12(1) of the Rules, right of the applicants to continue consideration beyond 2008-09 being violative of the Constitution of India, and Rule 7 of the Rules was also under consideration. After a detailed examination, this Tribunal arrived at the following conclusion:-
24. In so far as the last issue is concerned, we clearly find that the policy decision has been taken to amend Rule 12 (1) of IFSB B Rules 1964 to Rule 7 (2) of IFSB B (Stenographers Cadre, Principal Private Secretary posts) Recruitment Rules, 1992. These policy decisions have been taken on a certain tangible basis as a part of policy making and cannot be questioned. In view of the categorical decisions given by the Apex Court, except under the circumstances enumerated of either being contrary to some provisions of Constitution or violative of any of the Fundamental Rights or of statutes or being patently against the basic tenets of justice. None of these cases appear to hold good in the instant OA.
11. In the instant OA also we note that the same issues have been presented in a different garb. Admittedly, there is a difference between the two cases. While in the case of Suresh Kumar versus Union of India & Others (supra), the approach was to assail the amendment to Rule 12(1) of the RCSP Rules, 1964 as being opposed to Rule 7 of the Rules, 1992 which had remained un-amended, the argument being that in view of this anomalous situation, the amended provision of Rule 12(1) cannot be given effect to unless Rule 7 of the Rules, 1992 has also been amended and brought in sync with Rule 12(1) of RCSP Rules, 1964. In the instant case, the approach of the applicants is different. Here, the argument is based upon Rule 12(2) which has remained un-amended. For the sake of clarity, Rule 12(2) is extracted along with Rule 12(1) as under:-
12. Recruitment to Grade I of General Cadre (1) Subject to the provisions of sub-rule (2), vacancies in Grade I of the General Cadre shall be filled by promotion of the regular officers of the Integrated Grades II and III of the General cadre.
(2) No person shall be eligible for promotion to Grade I of the General Cadre unless he has rendered at least eight (8) years of approved service in his respective Grade:
Provided that if any officer of the Integrated Grades II & III of the General Cadre is considered for promotion to Grade I of the General Cadre under this rule, all officers senior to him in the Grade and belonging to Scheduled Castes or the Scheduled Tribes, who have rendered not less than four years of approved service in the Grade, shall also be considered for promotion.
12. Here, the learned counsel for the applicants has emphasized that eight years of approved service in the respective Grade has been made mandatory for promotion under Rule 12(1) of the RCSP Rules, 1964. However, there is a proviso that where officers of the Integrated Grades II & III of the General Cadre are considered for promotion to Grade I of the General Cadre, all officers senior to them in the Grade and belonging to Scheduled Castes or Scheduled Tribes with not less than four years approved service in the Grade shall also be considered for promotion. Admittedly, the applicants, who are members of the Scheduled Castes/ Scheduled Tribes, have submitted that the crucial dates of eligibility have deliberately been fixed as 01.12.2008 for the select list of 2009, 01.12.2009 for the select list of 2010 and 01.12.2010 for the select list of 2011 to disallow the Private Secretaries to be promoted as Under Secretary, who would have otherwise become eligible had the crucial dates been fixed as 1st January /1st July as the then RCSP Rules, 1964 allowed the Private Secretaries to become Under Secretaries. This issue finds detailed exposition in Issue No.2 in the instant proceedings. In case of Suresh Kumar versus Union of India & Others (supra), the issue that had been considered was the validity of the amended Rule 12(1) of RCSP Rules, 1964 vis-`-vis Rule 7 of the Rules of 1992 which remained un-amended.
13. In fact in view of the clear cut findings in the case of Suresh Kumar versus Union of India & Others (supra), we are of the opinion that the present issue has been sufficiently answered. Once the challenge to Rule 12(1), which is the fundamental rule through which right to promotion has been derived, had been considered and quelled by this Tribunal in the case of Suresh Kumar versus Union of India & Others (supra), no more challenges or claims to promotion under General Cadre can be made using this rule. This rule will also have an overarching effect upon the collateral issues that may arise.
14. Insofar as the second issue is concerned, we are obliged to look at the relevant provisions of Rule 3 of the Examination Rules, which reads as under:-
Any officer whose name has been included in the Select list of Integrated Grades II & III of the General Cadre (Section Officers) of the Indian Foreign Service B and who belong to Scheduled Castes/Scheduled Tribes and satisfies the conditions regarding length of service i.e. should have rendered not less than 4 years approved and continues service in the said grade on the crucial date as under:-
Select List year Crucial date of eligibility 2009-10 01.12.2008 2010-11 01.12.2009 2011-12 01.12.2010 Note (1) Officers of the Integrated Grade II & III of the General Cadre of Indian Foreign Service B, who are on deputation to ex-cadre posts with the approval of the competent authority, shall be eligible for the said examination if they are otherwise eligible. Provided that it shall not apply to an officer who been appointed to an ex-cadre post or to another post on transfer and does not have a lien in the respective grade.
15. We have also taken note of the fact that the relevant Rule 3 of the examination rules has not been challenged in this proceeding. As per the requirement of the UPSC, candidates were required to submit their applications online. Out of 63 eligible candidates only 38 had applied to appear in the examination and finally 35 took the examination. As noticed hereinabove, the amendment dated 17.10.2008 amending Rule 12(1) of the Rules of 1964 has already been upheld in the case of Suresh Kumar versus Union of India (supra). We also find that there is no merit in the challenge to the dates of examination. It is easy to make allegations but difficult to prove the same. In the instant case, we find that allegations regarding the eligibility dates being discriminatory remain mere allegations on account of lack of substance.
16. In view of the above, we can safely sum up that the challenge to the amendment dated 17.08.2010 having failed and the applicants failing to substantiate their claim of discrimination in deciding the dates of the eligibility, we find that the OA is devoid of merit and is, therefore, dismissed. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/