Central Administrative Tribunal - Delhi
Sudesh Kumar vs Union Of India Through on 15 April, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.3040/2012 Order pronounced on the 15th day of April, 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) Sudesh Kumar, S/o Sh. Chandu Lal, Assistant Director, Ministry of Women and Child Development, GOI, R/o B-413, Pragati Vihar Hostels, Lodhi Road, New Delhi-110003. Applicant (By Advocate : Ms. Harvinder Oberoi) Versus Union of India Through 1. Secretary, Ministry of Statistics & Programme Implementation Sardar Patel Bhawan, Sansad Marg, New Delhi. 2. Secretary, DOP&T, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi-110001. 3. Secretary, Ministry of Women and Child Development, Shastri Bhavan, New Delhi-110001. 4. Secretary, U.P.S.C., Dholpur House, New Delhi. Respondents (By Advocate : Shri Rajeev Kumar ) ORDER Mr. V.N. Gaur, Member (A) :
The applicant in this case was appointed as Assistant Director in the Ministry of Women and Child Development - respondent No.3 on 22.10.1993 after being selected through UPSC. In the year 2004, a proposal was mooted by respondent No.1 to create a Statistical Division in the Department of respondent No.3 to be headed by an officer of Indian Statistical Service (ISS) and encader the technical (Statistical) posts under the ISS or the Subordinate Statistical Service (SSS) depending upon the level of the posts. After detailed consultation between respondent No.3 and respondent No.1, the post on which the applicant had been working was encadered in ISS on 05.01.2006, simultaneously processing the proposal to induct the incumbents of those posts. After a delay of nearly four years from the date of encadrement of the post, the applicant was inducted in ISS with effect from 27.01.2010 vide order dated 23.02.2010. The respondent No.1 also issued a seniority list on 09.01.2012, wherein name of the applicant was shown below the direct recruits of ISS of the year 2009. The applicant made a representation to the respondents asking for benefit of his past service in the grade of Assistant Director since 1993 prior to his induction in ISS. The respondent No.1 rejected his request by OM dated 06.02.2012, primarily on the ground that according to the Rule 9-A of the ISS Rules a departmental candidate had to be placed below the junior most officer appointed on a regular basis in the concerned grade. The applicant has, therefore, filed this OA praying for the following reliefs:
(I) allow the present application with all consequential benefits.
(II) Quash and set aside the Rule 9-A(4)(i) and sub clause thereof the Indian Statistical Service Rules 1961, thereby commanding the respondents to amend the rules which is under challenge to the extent keeping in mind DOP&T instructions dt 27.03.2001 formulated in terms of SI Roop Lal case as the applicant in the instant case is holder of analogous post:
(III) Direct the respondents after amending the rules as averred in clause II of the relief clause to fix the final seniority of the incumbents in accordance with rule and regulation and accordingly the impugned seniority list may be declared illegal, arbitrary and non est (Annexure A-3).
(IV) To declare the action of respondents illegal and arbitrary in not considering the relevant DOP&T instructions while encadering the applicant in ISS from MINISTRY OF WOMEN AND CHILD DEVELOPMENT and the impugned order dated 06.02.2012 (Annexure A-2) may also be quashed and set aside.
(V) To direct the respondent to modify the order dated 23.02.2010 which speaks of absorption of the applicant with immediate effect to the extent that applicant is entitled to be absorbed w.e.f. the date of encadrement of his post i.e. 05.01.2006 and further he should get all the benefits of his past service rendered by him in his parent ministry since 22.10.1993 i.e. in MINISTRY OF WOMEN AND CHILD DEVELOPMENT.
(VI) Pass such and further order/directions the Honble Tribunal deems fit and proper in the facts and circumstances of the case and (VII) Allow exemplary costs of the application.
2. The learned counsel for applicant highlighted the fact that the applicant was appointed as Assistant Director in the year 1993 in a substantive capacity following the procedure laid down in the Recruitment Rules through UPSC. The proposal to encadre the post of Assistant Director in ISS was initiated by respondent No.3 with the understanding that the incumbent of the post would also be inducted in ISS simultaneously. However, respondent No.1 with a view to give benefits to the existing incumbents of the ISS, encadered the post in the year 2006 and granted promotion to its own officers but delayed the appointment of the applicant to ISS for nearly four years. Even when he was appointed to ISS vide order dated 23.02.2010, his seniority was fixed only from 27.01.2010. According to the learned counsel since the applicant was working in a substantive capacity in the post of Assistant Director on the date of encadrement of the post, he was entitled to be appointed to the Junior Time Scale (JTS) of ISS which was equivalent to the post of Assistant Director, from the date of encadrement of the post and all other benefits with effect from 22.10.1993. The learned counsel relied on the judgment of the Honble Supreme Court in SI Roop Lal Vs., Lt. Governor Through Chief Secretary Delhi & Ors. (2000)1 SCC 644. Referring to the stand taken by the respondents in their counter that this Tribunal had already rejected such relief in OA No.3069/2004 - Suresh Kumar & Anr. Vs. UOI and Ors., the learned counsel stated that in that case this Tribunal had given its finding that the seniority of the applicant therein was correctly fixed in terms of the rule 9-A(4)(i) of ISS Rules, but in this case the applicant has challenged the vires of that rule. The learned counsel referred to para 3.5 of the DOP&T OM dated 11.11.2010, a compilation of all the instructions and guidelines on seniority, which clarified that the provisions contained in the OM dated 29.05.1986 as amended by DoPT OM dated 27.03.2001 would also be applicable to a person who was absorbed directly without being on deputation. The amended DOP&T OM dated 29.05.1986 provided that where a person had been holding the same or equivalent grade on regular basis in the parent department, such regular service in the grade shall also be taken into account while fixing his seniority and such seniority will be given with effect from the date from which he had been appointed on regular basis to the same or equivalent grade in the parent department. The respondent No.1 ought to have taken into account these instructions into account and amended the ISS rules, but the same was not done. Since the present provision governing the seniority in ISS in Rule 9-A(4)(i) is not in conformity with the law laid down by the Honble Supreme Court in SI Roop Lal (supra) and instructions issued by the DOP&T, this clause was liable to be struck down to the extent it denied benefit of the past service in equivalent or analogous post to the officers inducted in ISS.
3. The learned counsel for respondents raised preliminary objection of limitation stating that the impugned order was issued on 23.02.2010 and applicant filed this OA on 12.09.2012, which is about 2 = years later. The applicant was aware of the Rule position with regard to seniority in ISS at the time of his absorption but he accepted his induction in ISS and did not challenge the rules at that time. He further argued that the seniority of the applicant was fixed in accordance with the existing rules and even if the same was not amended, as argued by the learned counsel for applicant, the law is well established that a rule validly made even if it had become unworkable unless repealed or replaced by another rule or amended would continue to be in force. He relied on the judgment of Honble Supreme Court in the case of UOI Vs. Ramakrishnan 2005 AIR SCW 5147. He further submitted that if the argument of the applicant is accepted, then ISS Rules would have to be amended retrospectively which cannot be done under the law.
4. Referring to the facts of the case, the learned counsel stated that the applicant along with other eligible officers was inducted into JTS of ISS with effect from 27.01.2010. Out of five officers who were inducted into various cadres of ISS, none of them, except the applicant, challenged the order as everyone was aware of the rule position. Refuting the allegations that the respondent No.1 deliberately delayed the encadrement process, he stated that immediately on encadrement of the post, the applicants Ministry was requested vide order dated 28.03.2006 to provide relevant details of the existing incumbents in the prescribed proforma including the option for encadrement, but the process took considerable time resulting into the delay in holding the meeting of UPSC Selection Committee. The applicant in this OA has sought relief which amounted to re-fixation of his seniority since 1993, which would affect about 500 officers recruited since then and the applicant has not made those officers as party in this OA. Relying on the judgment in Civil Appeal No.5984/1998 decided by Honble Supreme Court on 20.11.2003, the learned counsel stated that the OA was liable to be dismissed on the ground of non-joinder of necessary parties. The learned counsel also relied on the judgment of Rajbir Singh H.F.S.-II Vs. State of Haryana and Another (SLP(C) No.77/1993, wherein it was held that claim for inter-se- seniority is not maintainable without impleading the necessary party.
5. We have heard the learned counsels and perused the record. At the heart of controversy is the Rule 9-A(4)(i) which provides that seniority of a departmental candidate would be fixed below the junior most direct recruit in that grade on the date of absorption. The Rule 9-A(4)(i) of the ISS Rules reads thus:
9-A(4)(i) Where a departmental candidate, being a person, who on the date of the constitution of the Service, had neither held, nor held lien on any post which was included in any grade in Schedule I after the date of the constitution of the Service, is appointed to that grade under the provisions of sub-rule(1) of rule 7A, he shall be assigned a position in the seniority list of the concerned grade in the following manner, namely :
(a) he shall not be placed above the junior most officer who is substantive in that grade of the Service with effect from a date not later than the date of selection of the departmental candidate to the concerned grade of the service under the provisions of sub-rule (1) of rule 7A;
(b) he shall be placed amongst the officers who are not substantive in that grade, below the junior-most officer who was appointed on a regular basis to a post included in the concerned grade in schedule I earlier than the date of appointment on a regular basis of the departmental candidate to the post included in the concerned grade in Schedule I:
Provided that such departmental candidate shall not be placed above an officer who, having been recommended by the Commission under the provisions of sub-rule (2) of rule 7 for appointment to the concerned grade, was appointed to the next lower grade for want of a vacancy and had been subsequently promoted to the concerned grade under the provisions of sub-rule (2A) of rule 7, and who has continuously officiated in the concerned grade or in a post equivalent thereto from a date not later than the date of appointment on a regular basis of the departmental candidate to the post included in Schedule I.
6. The term departmental candidate has been defined in the Rule 2(d) of the ISS Rules which is reproduced below:
2(d) Departmental Candidates means persons who have been appointed otherwise than on tenure basis in consultation with the Commission or on the recommendation of a Departmental Promotion Committee and who hold posts or hold liens on posts-
(i) specified in Schedule I, on the date of sanction of the Service, or
(ii) encadred in the Service and included in Schedule I after the initial Constitution of the Service, on the date of such encadrement;] The above definition shows that the rules do not distinguish between a person who hold post or lien on posts specified in Schedule I through DPC route and the one inducted because of encadrement of his post.
7. The DOP&T had issued general instructions with regard to fixation of seniority of persons absorbed after being on deputation vide OM dated 29.05.1986. The relevant portion of that OM is reproduced below:
(iv) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for Transfer on deputation/Transfer), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from
- the date he has been holding the post on deputation, or
- the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later.
The fixation of seniority of a transferee in accordance with the above principle will not, however, affect any regular promotions to the next higher grade made prior to the date of such absorption. In other words, it will be operative only in filling up of vacancies in higher grade taking place after such absorption.
In cases in which transfers are not strictly in public interest, the transferred officers will be placed below all officers appointed regularly to the grade on the date of absorption. (emphasis supplied)
8. The aforesaid OM was amended vide DOP&T OM dated 27.03.2001 replacing the clause whichever is later by the clause whichever is earlier. This was done by DOP&T to bring this instruction in conformity with the judgment of the Honble Supreme Court in SI Roop Lal (supra). Para 2 of the OM dated 27.03.2001 reads as follows:
2. The Supreme Court has in its judgment dated December 14, 1999 in the case of Shri S.I. Rooplal & others vs. Lt. Governor through Chief Secretary, Delhi, JT 1999 (9) SC 597 has held that the words whichever is later occurring in the Office Memorandum dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence, those words have been quashed from that Memorandum. The implications of the above ruling of the Supreme Court have been examined and it has been decided to substitute the term whichever is later occurring in the Office Memorandum dated May 29, 1986 by the term whichever is earlier. (emphasis supplied)
9. In para 3.5 of the compilation issued by DoPT vide OM dated 11.11.2010, it has been clarified that the provision of OM dated 29.05.1986 /27.03.2001 will also apply to the persons transferred and absorbed directly without being on deputation. This clarification reads thus:
3.5 Seniority of persons who are transferred and absorbed directly without being on deputation Some cases has been received in this department seeking clarification whether the (DOP&T) O.M. No.20020/7/80-Estt. (D) Dated 29.05.1986 and No.20011/1/2000-Estt.(D) Dated 27th March, 2001 ] in the case of a person who is initially taken on deputation and absorbed later, would be applicable also for persons who are transferred and absorbed directly without being on deputation i.e. where the recruitment rules provide for recruitment through absorption. The matter has been considered and it has been decided that, in such cases also the provision as contained in the afore-said O.Ms would be applicable i.e. the date he has been holding the post on deputation or the date from which he has been appointed on the regular basis to the same or equivalent grade in his parent department, whichever is earlier.
10. A combine reading of the DOP&T OMs referred to above, would show that the seniority of a person, transferred and absorbed directly without being on deputation, would be fixed from the date he had been holding, or appointed to, a post in the same or equivalent grade in his parent department on regular basis.
11. A perusal of the Rule 9-A(4)(i) of ISS Rules will make it obvious that it does not conform to the judgment of the Apex Court in SI Roop Lal (supra) and DOP&T instructions and guidelines on the subject. According to the applicant, the ISS Rules have not been amended since its inception while the respondents argued that the same had been amended as late as in the year 2005. However, the copy of the ISS Rules placed on record by the applicant shows that the provisions contained in Rule 9-A(4)(i) appears to have been amended last by GSR 202(E) dated 19.4.1973. Therefore, in the context of the Rule governing the seniority, submission of the applicant is apparently true and the same ought to have been visited by the respondents following the judgment of Honble Supreme Court in SI Roop Lal (supra) and the DOP&T OM dated 27.03.2001 (supra).
12. It has been submitted by the applicant that in the case of induction from SSS the respondents are following a policy of granting weightage of past service to the inductees while fixing their seniority after absorption in SSS. However, neither of the parties in this case has filed a copy of the relevant rules governing the seniority in SSS. The respondents have countered the submission made by the applicant only by saying that different services may have different rules and one service cannot claim that the rules applicable to another service should also be made applicable to them. The respondents have given example of Indian Administrative Service and the Central Secretariat Service where the cadre controlling authority, for both these services, is DOP&T, still the service rules are not comparable. We are unable to accept this argument of the respondents as they have not quoted the rules that govern the seniority of officers inducted in the IAS or CSS, and whether such inductees are given weightage of past service or not. Notwithstanding that, there cannot be two opinions that any service rules have to conform to certain basic principles of natural justice and laws of the land. No rule making authority can claim as its prerogative to put a provision in the service rules that is in conflict with the existing laws. A counter question can be asked whether a service rule containing a provision to give benefit of past service will be valid in law. The answer to this question can be found in the following judgment of the Hon'ble Supreme Court.
13. In Wing Commander J. Kumar vs. Union of India and Ors., 1982 (1) SCALE 227 the Hon'ble Supreme Court considered the validity of the rule governing the seniority after permanent settlement in the Defence Research and Development Organization (DRDO), which provided that all the service officers being permanently settled to the DRDO will be based on their seniority of the substantive ranks of Major/Sqn Ldr/Lt. Cdr. This rule was challenged by the appellants on the ground that the rule was arbitrary and violative of Articles 14 and 16 of the Constitution of India as it took away the rights of those who had joined DRDO prior to induction by an officer but the latter is giving benefit of seniority from the date he held the substantive rank of Major or equivalent. The Honble Supreme Court upheld the validity of the aforesaid rule. The relevant paras of the said judgment are extracted below:
10. As already noticed, the main contentions put forward by the appellant are two-fold, namely, that the principles laid down in rule 16 of the rules for determination of the seniority of officers permanently seconded to the R&D are arbitrary and illegal, and that lateral induction of officers holding ranks above substantive Major/equivalent and assigning of seniority to such subsequent inductees by applying the provisions of rule 16 amounts to deprivation of the vested rights of persons like the appellant who had joined the Organisation earlier and it is, therefore, illegal and unwarranted.
11. After giving our best consideration to the argument advanced on both sides, we do not see any substance in either of the aforesaid contentions advanced by the appellant.
14. In K. Madhavan & Anr. vs. Union of India & Ors., JT 1987(4) SC 43, the Honble Supreme Court took a view that there is not much difference between deputation and transfer. Brief facts of that case are that the petitioners No.1 and 2 were directly recruited as Deputy Superintendent of Police on 06.07.1963 and 10.08.1963 respectively in the Central Bureau of Investigation (in short, CBI) and one of the respondents, i.e., Respondent No.5, was appointed to the post of DSP on 13.07.1962 in the Rajasthan State Police, who came on deputation to CBI on 01.07.1967. The dispute arose when these officers were promoted to the grade of Superintendent of Police by giving the benefit of the date of appointment in their respective cadres. The Honble Supreme Court held that when a deputationist is permanently absorbed in an organization, he is under the rules appointed on transfer. It will be against the Rules of service jurisprudence, if a Government servant holding the particular post is transferred to the same or an equivalent post in another Government Department, the period of his service in the post before his transfer was not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he had been transferred. The relevant part of the judgment is reproduced below:
21. We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre. See R. S. Mokashi v. I. M. Menon, (1982) 1 SCC 379: (AIR 1982 SC 101); Wing Commander J. Kumar v. Union of India. (1982) 3 SCR 453: (AIR 1982 SC 1064). (emphasis supplied)
15. In SI Roop Lal (supra), the question involved was whether a Sub-Inspector who was appointed as such in the Border Security Force (BSF) when transferred on deputation to Delhi Police in the cadre of Sub-Inspector (Executive), on being permanently absorbed in the transferred post, was entitled to count his substantive service as Sub-Inspector in the BSF for the purpose of his seniority in the Cadre of Sub-Inspector (Executive) in Delhi Police or not. The Honble Supreme Court, after considering the cases in K. Madhavan (supra) and Wing Commander J. Kumar (supra) and several other Judgments, held that the appellants were entitled to count the substantive service rendered by them in the post of SI in the BSF while counting their service in the post of SI (Executive) in Delhi Police Force.
16. From the above quoted judgments, it can be concluded that for giving the benefit of the past service, the conditions to be fulfilled are that an officer should have:
(i) been appointed in the parent department in accordance with the recruitment rules
(ii) to an equivalent post and,
(iii) in a substantive capacity
17. In the case of encadrement of a post to the ISS, along with the induction of its incumbent, all the aforementioned conditions are fulfilled as the inducted person was holding the same post prior to its encadrement, selected/appointed in accordance with the Recruitment Rules, holding the post in substantive capacity, and brought over to ISS along with the post which became a cadre post. The case of the applicant is on a much stronger footing than an appointment on direct transfer basis to which the DOP&T OMs of 29.05.1986 /27.03.2001 was extended by the OM dated 11.11.2010 as the applicant occupied the same post which was encadred subsequently. The rule applied by the respondents in such cases, i.e., Rule 9A(4)(i) stipulates that the inducted officer will be placed below junior most officer who was appointed on a regular basis to a post included in the concerned grade earlier than the date of appointment from the inductee. There can be no doubt that this Rule is in direct conflict with the law laid down by the Honble Supreme Court in a catena of judgments as it obliterates the service rendered by the applicant in same post prior to its encadrement. We are, therefore, of the view that this rule violates the Articles 14 and 16 of the Constitution in so far as it denies the benefit of the service rendered in the post encadred subsequently in the ISS.
18. The learned counsel for the respondents has raised the preliminary objection of delay and latches on the ground that the order of encadrement was issued on 23.02.2010 and the applicant has chosen to challenge that order after a lapse of more than two years. The learned counsel has relied on the Judgment of the Honble Supreme Court in M. L. Ceicil DSouza vs. Union of India, AIR 1975 SC 1269.
19. In M. L. Ceicil DSouza (supra) the petitioner had sought quashing of the seniority list of the Additional Commissioner of Income Tax circulated by Govt. of India as on 01.02.1971 claiming that having been promoted earlier to the private respondents under 1947 seniority rules, he was senior to those promoted after 1952 seniority rules were brought into force even though in the seniority list published in 1956 the private respondents were shown as senior to the petitioner. The Honble Supreme Court held as under:
8. The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971. The petitioner in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karnik's case AIR 1970 SC 2092 (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.
20. It can be seen that in the aforesaid case the petitioner had not challenged the rules that regulated the seniority. We are, therefore, unable to accept the contention of the respondents on limitation because the main question in this case does not pertain to the seniority of the applicant vis-`-vis a particular officer or a group of officers of ISS. The applicant has challenged the legality of the seniority rule contained in the ISS Rules of 1961 that governs the seniority of the officers inducted in the service. M. L. Ceicil DSouza (supra) will, therefore, not apply in this case. For the same reason, the objection raised by the respondents with regard to the non-joinder of the necessary parties, will not be relevant in the present case.
21. In their counter argument the respondents have mainly relied on this Tribunals order in OA-3069/2004. In the order dated 05.01.2006, this Tribunal, while dismissing the OA, had held as follows:
From what has been discussed above, we are of the view that from whatever angle we look at the question involved in this case whether on the ground of past practices or from the point of view of the rules position, we are inclined to agree with the contention of the respondents. If the contention of the applicants is upheld and the seniority is agreed to from the date of their initial appointment on the ex-cadre post, it would amount to appointment dehors the rules. We are of the considered opinion that applicants have been appointed as Departmental Candidates under Rule 7-A of ISS Rules. Rule 9-A(4)(i) specifically deals with the fixation of seniority of such officials and as such, the applicants are entitled for the seniority in accordance with extant rule position and not from the date of holding the ex-cadre posts.
22. After dismissal of the above OA No.3069/2004, the applicants therein, one Shri Suresh Kumar and another, filed RA no.49/2006 in OA no.3069/2004, which was rejected by this Tribunal after dealing with the citation Gurnam Singh v. State of Punjab & Others, 1997(2) SLR 619 which, the applicants pleaded, could not be placed before the Tribunal while hearing the OA. The order of the Tribunal was further challenged before the Honble High Court of Delhi in WP(C) No.7143/2009 but the same was rejected by Honble High Court of Delhi on the grounds of delay and latches. According to the respondents, the issue was already settled and this Tribunal would be bound by the precedent of its earlier order.
23. We have carefully considered this contention put forward by the applicant and perused the order of this Tribunal in OA No.3069/2004 dated 05.01.2006. The factual matrices, in the two cases, are more or less similar. The order has recorded the following grounds raised by the applicant in the OA:
5. . The main grounds of challenge may be indicated as under:-
a) The action of the respondents is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and is bad in law.
b) The applicants have been inducted in the JTS of ISS under Rule 2(d)(ii) of the Rules ibid which defines the departmental candidates as encadred in the service and included in Schedule-1 after the initial constitution of the service, on the date of such encadrement. These departmental candidates are appointed to the ISS under Rule 7-A of the Rules ibid. It has been submitted that the applicants have been encadred and appointed to JTS of the ISS on the recommendation of the UPSC w.e.f 7.11.2002 and their seniority is to be determined by Rule 9-A of the Rules ibid and close scrutiny of the Rule, it has been pleaded, that it would be clear that applicant No.1 shall stand senior to applicant No.2 in the impugned seniority list and while determining their inter-se-seniority with others, the same has to be done vis-a-vis date of regular appointment to the grade of service or the post later included in the service. As such, the crucial date is the date the two applicants were regularly appointed to the post that were later encadred to the service which does not appear to have been followed by the respondents and the action of the Respondents Ministry is against Rule 7-A and Rule 9-A(4)(i) of the Rules ibid.
c) The applicants have further relied on the practice being followed by the respondents in the past cases regarding the post and the seniority given to the officers in the Data Processing Division (DPD) and Survey Design and Research Division (SDRD) of the National Samples Survey Organization (NSSO). It has been submitted that the post of the aforestated Divisions of NSSO were included in ISS on 13.9.1983 vide Notification No.710 by which Schedule-1 of the ISS Rules, 1961 was amended (Annexure A-26). Officers of these two Divisions were reconsidered by the Selection Committee, who recommended their inclusion into various grades of the ISS vide letter dated 1.9.1984 (Annexure A-27) and the respondents Ministry issued notification dated 3.7.1985 appointing several officers of these two Divisions into various grades of ISS, which were nearly a year after the encadrement of this post and inclusion in Schedule-1 of the Rules ibid (Annexure A-28) that the date of appointment of these officers of these two Divisions is given in O.M. dated 10.8.1983 which is the seniority list of Assistant Directors in these two Divisions (Annexure A-30). It has also been submitted that they were assigned seniority from the date they had held their post in these two Divisions. The seniority list of Grade-IV of the ISS circulated vide Office O.M. dated 8.7.1996 proves this point (Annexure A-31). Accordingly, it has been claimed that as per past practice too, the applicants have to be given seniority from the dates they were holding the post of Assistant Director (Programme) in their earlier office on regular basis.
d) Strong reliance has been placed on the stand taken by the Respondents in the case of Tushar Ranjan Mohanty vs. Union of India in O.A.No.1827/1996 and the interpretation of the Respondents Ministry that in terms of Rule 9A(4)(1) of ISS Rules, the departmental candidates, who have been initially appointed by the UPSC to the posts encadred into ISS, shall be given seniority from the date of their initial appointment to the posts encadred to the ISS and accordingly, it has been pleaded that the power of interpretation is with the Government in terms of Rule 17 of the Rules ibid and so will squarely apply to the applicants also and respondents cannot go back on the same now and propound a fresh and new interpretation.
24. The order further noted the objections raised by the respondents with regard to the non-joinder of the necessary parties. It has also noted the Honble Supreme Courts judgment in Rajbir Singh, H.F.S.-II Vs. State of Haryana and Another (arising out of SLP(C) No.77/93), wherein it was held, inter alia, that claim for inter-se-seniority not maintainable without impleading the necessary party. The statement of the respondents had also been noted to the effect that the applicants have neither challenged respondents order dated 29.05.2003 nor challenged relevant service rules dealing with fixation of seniority. As such the O.A. is devoid of any merit and deserves to be dismissed. After taking note of the judgments of the Honble Supreme Court in Narendra Chaddha and Others v. Union of India and Others, (1986) 1 SCR 211 and T.R.Mohanty vs. Union of India, OA-1827/1996, the order passed in that OA runs as follows:
13. We have very carefully heard and considered the rival submissions made by the counsel for the parties. We have also gone through the written arguments as well as the pleadings on record.
14. The crucial question, which falls for consideration, is the validity of impugned order dated 13.4.2004 (Annexure A-1). If one examines very carefully the contentions/claims of the applicants mentioned in various paragraphs of this order in para 5 above and compare the counter arguments contained in paras 6 to 10 which has been pleaded by the respondents, one is inevitably led to the conclusion that the arguments of the applicants appear to be very superficial. From what has been discussed above, we are of the view that from whatever angle we look at the question involved in this case whether on the ground of past practices or from the point of view of the rules position, we are inclined to agree with the contention of the respondents. If the contention of the applicants is upheld and the seniority is agreed to from the date of their initial appointment on the ex-cadre post, it would amount to appointment de hors the rules. We are of the considered opinion that applicants have been appointed as Departmental Candidates under Rule 7-A of ISS Rules. Rule 9-A(4)(i) specifically deals with the fixation of seniority of such officials and as such, the applicants are entitled for the seniority in accordance with extant rule position and not from the date of holding the ex-cadre posts.
15. In view of the facts and circumstances mentioned above and the discussions made, the O.A. is devoid of merit and is accordingly dismissed. There is no justification for this Tribunal to interfere with the order at Annexure A-1, which has been passed validly in accordance with rules prescribed in this regard. (emphasis supplied)
25. It can be seen that this Tribunal had tested the claim of the applicant on the touch stone of the rule 9A(4)(1) alone, i.e., if the contention of the applicants is upheld and the seniority is agreed to from the date of their initial appointment on the ex-cadre post, it would amount to appointment de hors the rules. In other words, the Tribunal took a view that the ISS rules did not permit granting of seniority from the date of initial appointment.
26. We are of the view that this Tribunals order in OA No.3069/2004 need to be ignored as sub-silentio for the reasons that:
i) The Rule under which the action of the respondents was upheld has itself been challenged in the present OA.
ii) No other ground taken by the respondents had been upheld in that order.
iii) The RA no.49/2006 in OA no.3069/2004 was dismissed only on the ground that Gurnam Singh v. State of Punjab & Others (supra), which the applicant wanted to be considered, was not found to be applicable to the facts and circumstances of that OA.
27. Therefore, considering the entire conspectus of the case and for the reasons discussed in preceding paras, we quash the rule 9A(4)(i) of the Indian Statistical Service Rules, 1961 to the extent it denied the benefit of the seniority to the applicant from the date of his substantive appointment to the post which was encadred in the ISS with effect from 05.01.2006. The respondents are directed to fix the seniority of the applicant after taking into account the service rendered in substantive capacity as Assistant Director (AD) in the Department of Women and Child Development (now, Ministry of Women and Child Development) prior to its encadrement in ISS keeping in view the DOP&T OMs dated 29.05.1986, 27.03.2001 and 11.11.2010. However, the respondents shall give a notice of four weeks to all the officers who are likely to be affected by the aforesaid revision of seniority of the applicant and decide their claims and objections, if any, through a speaking order. The whole exercise shall be completed within a period of four months from the date of receipt of a copy of this order. No costs.
(V. N. Gaur) (A. K. Bhardwaj) Member (A) Member (J) Rachna/nsnr