Madras High Court
Union Of India (Uoi) Rep. By The ... vs The Registrar, Central Administrative ... on 26 March, 2008
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla, K. Chandru
ORDER F.M. Ibrahim Kalifulla, J.
1. The Union of India represented by the Secretary to Government, Water Resources Department and the Central Ground Water Board along with the Union Public Service Commission are the petitioners. The challenge is to the order of the Central Administrative Tribunal dated 30.09.2002 passed in O.A. No. 419 of 2002. The issue concerns the promotion of respondents 2 and 3 from the post of Assistant Hydrogeologist to the post of Scientist 'B', viz., Junior Hydrogeologist.
2. The second and third respondents joined the post of Assistant Hydrogeologist in the year 1987 and 1988 respectively. As per the Rules, on completion of three years of service in the post of Assistant Hydrogeologist, they are entitled to be considered for promotion to the post of Scientist 'B' namely Junior Hydrogeologist. The second and third respondents became eligible for being considered for Scientist 'B' post in the year 1990. However, they were actually promoted to Scientist 'B' post only in the year 2001. The grievance of the second and third respondents was that they ought to have been promoted to Scientist 'B' post once they became eligible in the year 1990 and therefore, the petitioners should be directed to accord such promotion to Scientist 'B' post from the year 1990 onwards. In support of the said claim, the second and third respondents placed reliance upon Rule 6 (2) and (3) of the Central Ground Water Board (Scientific Group 'A' Post) Recruitment Rules 1987.
3. Rule 6 reads as under:
6. Future Maintenance. (1) The method of recruitment, age limit, qualifications and other matters connected therewith shall be specified in columns 5 to 13 of the Schedule (2) The assessment Board as specified in the Schedule to the various posts shall meet at least once a year and shall consider the cases of all departmental officers, who have rendered the requisite qualifying service. In the respective grade on the 1st January of the year following the year to which the departmental officers have become eligible for in situ promotion wherever applicable, to assess their suitability for promotion to the next higher grade.
(3) The system of flexible complementing and "in situ" promotions shall be followed in the matter of promotion of departmental officers in the grade of Scientist 'B' Scientist 'C' and Scientist 'D' to the respective higher grades, namely, Scientist 'C' and Scientist 'D' subject to the following conditions, namely:
(a) The total number of officers in the grades of Scientist 'D', shall not exceed 30% of the total number of posts in the grades of Scientist 'B' Scientist 'C' and Scientist 'D' put together.
(b) The total number of officers taken together shall not exceed the total number of posts in the grades of Scientist 'B' Scientist 'C' and Scientist 'D' at any given point of time but their shall be complete flexibility in the number of posts in relation to the respective grades.
(c) The departmental officers who have rendered in the respective grade the requisite regular service specified in column (11) of the Schedule may be recommended by the Board of Assessment comprising the officers specified in column (12) of the Schedule for promotion to the next higher grade. While evaluating the suitability of the officers for promotion, the Assessment Board shall take into consideration their qualifications, performance, merit and seniority. The selection shall be on basis of confidential reports and interview. However, the Assessment Board, may at their discretion, consider in absentia the candidature of such officer who is unable to present himself for the interview. The Assessment Board shall draw up a list of officers who are assessed as fit for promotion to the next higher grade. In so far as persons undergoing training in India or abroad (under F.R.51) are concerned, they shall be promoted to the next higher grade with effect from the date they would have been so promoted had they not proceeded on training subject to the following conditions being fulfilled:
(a) The period of such training is treated as duty under F.R.9(6)(b).
(b) They have been approved for promotion to the next higher grade.
(c) All their seniors, except those promoted as unfit for promotion to the particular grade, available have been promoted to that grade. (4) ...
(5) ...
(6) ...
4. By relying upon the above said Rule 6(2) it was contended by the second and third respondents that the petitioners ought to have held the DPC for Scientist 'B' post every year and the non holding of such DPC cannot be detriment to the interest of second and third respondents. The contention of the second and third respondents weighed with the Central Administrative Tribunal and the Tribunal by the order impugned in this writ petition, following certain other orders passed by the Jaipur Bench of the Tribunal in O.A. No. 60 of 1996 dated 12.02.1998 as well as the Gauhati Bench of the Tribunal in O.A. No. 17 of 1999 dated 08.03.2001 and also the order of the Bangalore Bench of the Tribunal in O.A. Nos. 193, 237 to 240 of 2001 dated 03.06.2002, directed the petitioners to apply the very same relief granted by the Jaipur Bench in O.A. No. 60 of 1996 dated 12.02.1998. The Tribunal directed the petitioners to grant promotion to the second and third respondents to Scientist Grade 'B' and consequently to Grade 'C' and 'D' in accordance with law. Since the Tribunal had chosen to follow the order of the Jaipur Bench, it had not gone into the details of the issues raised in the present Original Application filed by the second and third respondents.
5. We heard Mr.A.S.Chakravarthy for the petitioners and Mr.Karthick Mukundan for respondents 2 and 3. We also perused the above referred to Rule 6.
6. Mr.A.S.Chakravarthy, in his submissions contended that Rule 6 (2) and (3) cannot be applied in abstract for considering Assistant Hydrogeologist for the post of Scientist Grade 'B' by way of 'in situ' promotion and that the promotion of Assistant Hydrogeologist to Scientist Grade 'B' will depend upon the availability of vacancies in the Grade of Scientist 'B'. Learned Counsel submitted that the scheme of flexible, complementing and 'in situ' promotion as provided in Rule 6(2) and (3) is available only for consideration of Scientist 'B' to the post of Scientist 'C' and thereafter, from Scientist 'C' to 'D' subject to the conditions prescribed under the said Rule and that for entry into the grade of Scientist Grade 'B' the holding of DPC every year was not the prescription under the Rule.
7. We heard Mr.Karthick Mukundan and when we perused Rule 6(2) along with the Schedule, we find that the number of posts in the grade of Scientist 'B' 'C' have been specifically provided at the relevant point of time. As far as Scientist 'B' is concerned, the total number of posts was 167 in the year 1986. The second column in the Schedule also states that such posts of 167 was subject to variation dependent on work load. Similarly in the very same Schedule, in so far as Scientist 'C' is concerned, the number of posts has been mentioned as 76 in the year 1986, again subject to variation and dependent on the work load. Under Rule 6(3)(a) and (b) the total number of Officers in the grade of Scientist 'D' have to be worked out. Rule 6(3)(a) specifically mentions that the number of posts in Scientist 'D' should not exceed 30% of the total number of posts in the grades of Scientist 'B' 'C' and 'D' put together. Further, under Rule 6(3)(b) the total number of officers taken together should not exceed the total number of posts in all the three Grades namely Scientists 'B', 'C' and 'D' at any given point of time, but there can be complete flexibility in the number of posts in relation to the respective grades.
8. A conspectus reading of Rule 6(2)&(3) and 6(a)&(b) makes it clear that unless and until the vacancy is available in Group 'B' post, on the application of Rule 6(3)(a) and (b), there would be no scope for holding DPC, in so far as considering a person holding the post of Assistant Hydrogeologist to the post of Scientist 'B'. Therefore, mere eligibility of a person for the post of Assistant Hydrogeologist on completion of three years cannot ipso facto entitle him to claim that on attaining such eligibility there must be a DPC at the relevant year and on satisfaction of the prescribed qualifications and other requirements there should be automatic promotion to the post Grade 'B' in that year itself.
9. However, the petitioners cannot be heard to contend that in between the year 1990 when the second and third respondents became eligible for being considered to the post of Scientist 'B' and the year 2001 when they came to be actually promoted to the post of Scientist 'B', there was no scope to hold any DPC for want of any vacancy. We say so, because on a perusal of the reply statement filed by the petitioners before the Central Administrative Tribunal, we do not find any specific statement with details to the effect that there were no vacancies in the Grade of Scientist 'B' in between the years 1990 and 2001 and because of that the second and third respondents were not considered for being promoted to the post of Scientist 'B'.
10. We perused the order of the High Court of Rajasthan made in C.R.P. No. 4628 of 1998 dated 25.02.2000. By that judgment, the order of the Central Administrative Tribunal made in O.A. No. 60 of 1996 dated 12.02.1998 was confirmed. The Rajasthan High Court had dealt with Rule 7 of the Central Ground Water Board (Scientific Group 'A' Posts) Recruitment Rules of the year 1995. Under the 1995 Rules, 1987 Rules came to be repealed. Rule 7 of 1995 Rules is in para materia with Rule 6 of 1987 Rules. While considering the said Rule, the Rajasthan High Court has stated as under in paragraph 3:
Under Rule 7 it was mandatory for the respondents to have held the DPC meeting and to consider the names of such respondents along with others in due time. The appellant failed to convene the meeting. It was not so done for number of years and ultimately in the year 1993 the meeting was held. From the order of promotion as Scientist 'B', it has not been mentioned as to from which year they had been promoted. The respondents were entitled to be allocated the year of promotion as was being done in the case of other employees similarly situated. Had the appellant held the meeting of the DPC and acted in accordance with rules, the respondent Nos. 2 and 3 would have been allotted the year of promotion as Scientist 'B' in accordance with the rules....
11. By holding so, it cannot be taken to mean that even in respect of promotion from the post of Assistant Hydrogeologist to the post of Scientist Grade 'B', there was a mandatory requirement of holding of DPC every year. We are not able to discern such a conclusion stated to have been arrived at by the Rajasthan High Court. On the contrary as held by us earlier, Rule 6 of 1987 Rules which was applicable to respondents 2 and 3, the holding of the DPC was dependent upon the availability of vacancies in the Group 'B' post and not for holding DPC mandatorily every year for considering the candidates who had satisfied the eligibility criteria of three years of service in the lower post.
12. In fact, the Hon'ble Supreme Court has not approved of the decision of the Rajasthan High Court. In paragraph 11 in the decision reported in 2007(3) All India Services Law Journal pg 129 [Union of India and Ors. v. S.K. Saigal and Ors.], the Hon'ble Supreme Court while referring to the above decision of the Rajasthan High Court stated as under:
Learned Counsel for the respondents also referred to the various decisions of the Rajasthan High Court in which similar questions had been raised and the relief was granted by the High Court and the High Court orders were implemented. According to him, taking note of the line of the decisions of the Rajasthan High Court, the order impugned passed by the High Court in the present case may not be disturbed. We are not at all impressed by such submissions. Such orders, if any, passed dehors the rules will not bind us, not withstanding the orders being implemented. Those orders are also under challenge in appeals that are transferred to this Court in T.P.(C) Nos. 197 to 220 and pending. Moreover, illegal decisions cannot be allowed to be perpetuated. A decision which is contrary to law and rules does not form a precedent. A decision becomes a precedent when it decides the law in accordance with the Act and the Rules.
Therefore, we hold that unless any vacancy existed in the post of Scientist Grade 'B' during the years 1990 to 2001, there would have been no necessity for the petitioners to hold the DPC and consider the claims of respondents 2 and 3. Unfortunately, the petitioners have not furnished those particulars in their statements filed before the Tribunal. It is therefore imperative that the impugned order is set aside and the petitioners are directed to furnish those details, if any, before the Tribunal to enable the Tribunal to decide the issue in accordance with what is stated in this order.
13. Having regard to our conclusions, we are of the view that the petitioners are bound to explain as to the vacancy positions that existed as between the year 1990 and 2001, i.e. the date when respondents 2 and 3 became eligible and the year when they were actually promoted to the post of Scientist Grade 'B' and in the event of any vacancies available during that period, the reasons why no DPC was held and why the claims of respondents 2 and 3 was not considered. To carry out the said above exercise, we deem it appropriate to set aside the order impugned in this writ petition and remit the matter back to the Central Administrative Tribunal. While remitting the matter back to the first respondent-Tribunal, we direct the petitioners to file appropriate statement furnishing details as to the availability or non availability of the vacancies between the years 1987 and 2001 and explain the position as regards the non holding of the DPC during the said period. On such statement being filed by the petitioners, it will be open to respondents 2 and 3 to file their reply and thereafter, the first respondent Tribunal shall consider the said limited issue and pass appropriate orders in accordance with law. The writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.