Central Administrative Tribunal - Delhi
Rajender Mohan Saxena (Aged 58 Years) vs Union Of India Through on 31 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA N0.3984/2011 MA No.2969/2011 Judgment reserved on 10.05.2012 Judgment pronounced on 31. 05.2012 HONBLE MR.JUSTICE S.C. SHARMA, ACTING CHAIRMAN HONBLE MR. SUDHIR KUMAR, MEMBER (A) 1. Rajender Mohan Saxena (Aged 58 years) S/o Shri Raj Krishna, Deputy Director, Directorate General of Supply & Distribution, Ministry of Commerce & Industry, Jeevan Tara Building, Sansad Marg, New Delhi. R/o 15/272, Lodi Colony, New Delhi-110003. 2. Rakesh Agarwal (Aged 53 years), Deputy Director, Department of Agriculture & Cooperation, Ministry of Agriculture, Krishi Bhawan, New Delhi-110001. R/o D-114 (a), Lajpat Nagar, Sahibabad, Ghaziabad. 3. Govind Prasad Kori (Aged 57 years), Deputy Director, Central Water Commission, Ministry of Water Resources, R.K. Puram, New Delhi. 4. Mulchand Ram (Aged 45 years), Deputy Director, SSD, Ministry of Statistics and Programme Implementation, West Block-8, R.K. Puram, New Delhi. 5. Suresh Chand Agarwal (Aged 45 years), S/o Shri K.L. Agarwal, Assistant Director, D/o Family Welfare, Ministry of Health & FW, Nirman Bhawan, New Delhi. 6. Kush Kumar Bansal (Aged 56 years), Deputy Director, Ministry of Health & FW, Room No.511-D, Nirman Bhawan, Moulana Azad, New Delhi. 7. Surrender Kumar (Aged 51 years), Deputy Director, General Staff Branch, ASO/MISO/GS, Ministry of Defence, Integrated HQ MOD (Army), West Block-III, R.K. Puram, New Delhi. 8. Sukhvir Singh (Aged 55 years), S/o Shri Nawal Singh, Deputy Director, DGFT, Ministry of Commerce & Industry, Udyog Bhawan, New Delhi. 9. R.N. Rathee (Aged 53 years), S/o Shri Ram Kishan Rathee, Assistant Director, SSD, Central Statistical Organization, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Sansad Marg, New Delhi. 10. Prem Pal Singh (Aged 59 years), Deputy Director, Ministry of Steel, Udyog Bhawan, Maulana Azad Road, New Delhi. 11. D.S. Mishra (Aged 47 years), S/o Shri K.K. Mishra, Assistant Director, DGMI, Ministry of Defence, Sena Bhawan, New Delhi. 12. Mitra Sen (Aged 55 years), Assistant Director, Ministry of Human Resources Development, Shastri Bhawan, New Delhi. 13. Narender Singh (Aged 53 years), S/o Shri Raghuvir Singh, Assistant Director, Registrar General of India, Ministry of Home Affairs, 2-A, Mansingh Road, New Delhi 14. Basant Kumar (Aged 51 years), Deputy Director, Ministry of Road Transport & Highway, Jamnagar House, Shahjahan Road, New Delhi-110011. 15. Rakesh Chandra Negi (Aged 55 years), S/o Shri B.S. Negi, Assistant Director, Ministry of Women & Child Development, Shastri Bhawan, New Delhi 16. Jagat Hazrika (Aged 39 years), S/o Shri Rabiram Hazarika, Sr. Research Officer, Planning Commission, Yojana Bhawan, New Delhi 17. B.S. Rathore (Aged 59 years), Deputy Director, PEO Division, Planning Commission, Yojana Bhawan, Sansad Marg, New Delhi. 18. Girdhari Lal (Aged 55 years), S/o Shri Panhabaram, Deputy Director, Ministry of Food Processing Industries, Panchsheel Bhavan, August Kranti Marg, New Delhi. 19. Chhattr Singh (Aged 54 years), S/o Late Shri Kishan Lal, Deputy Director, Directorate of Economic & Statistics, Ministry of Agriculture, Krishi Bhawan, New Delhi. 20. Kailash Chand (Aged 56 years), SRO, Planning Commission, Yojana Bhawan, New Delhi. 21. V. Ehiraj (Aged 53 years), S/o Shri Vijayaraghavan, Deputy Director, National Building Organization, Ministry of Urban Development & PA, G-Wing, 2nd Floor, Nirman Bhawan, New Delhi. 22. M.S. Dhanda (Aged 55 years), S/o Shri Balle Singh, Assistant Director, D/o Agriculture & Co-operation, Ministry of Agriculture, Krishi Bhawan, New Delhi. 23. Raj Lal (Aged 57 years), S/o Shri Krishna Chand, Assistant Director, Ministry of Rural Development, Krishi Bhawan, New Delhi. 24. Shrikant Kale (Aged 49 years), Deputy Director, Ministry of Rural Development, Krishi Bhawan, New Delhi. 25. M.A. Khan (Aged 51 years), S/o Shri Abdul Wahid, Assistant Director, Dte. of Vanaspati, D/o Food & Public Distribution, Ministry of Consumer Affairs, New Delhi. 26. Satyender Kumar (Aged 47 years), S/o Shri Bhagwati Prakash Chand, Assistant Director, ASO/MISO/GS Ministry of Defence, West Block-III, R.K. Puram, New Delhi. 27. Velivela Ravi (Aged 55 years), S/o Late Shri V.V. Anjanuratu, Assistant Director, O/o Chief Labour Commissioner, Ministry of Labour & Emp., New Delhi. 28. Raghubir Singh Mehra (Aged 54 years), S/o Shri Lichhman Singh, Assistant Director, Dte. of Economics and Statistics, Ministry of Agriculture, Krishi Bhawan, New Delhi. 29. Rajendra Pathak (Aged 50 years), S/o Shri Shikil Chand, Assistant Director, Ministry of Culture, P&B Division, A 1-Annexee Building, Janpath, New Delhi. 30. R.K. Gupta (Aged 59 years), Deputy Director, Central Water Commission, Ministry of Water Resources, R.K. Puram, New Delhi. 31. Amit Kamal (Aged 50 years), S/o Shri N.P. Verma, Assistant Director, CSO, Ministry of Statistics & PI, S.P. Bhavan, Sansad Marg, New Delhi. 32. Mahabir Singh (Aged 50 years), S/o Shri Shankar Lal, Assistant Director, NSSO (CPD), Ministry of Stat. Pl., S.P. Bhawan, Sansad Marg, New Delhi. 33. Sunder Pal (Aged 56 years), SRO, Planning Commission, Assistant Director, Ministry of Planning, Yojana Bhawan, Sansad Marg, New Delhi. 34. Kishori Lal (Aged 59 years), Deputy Director, Ministry of Labour & Employment, Shram Shakti Bhavan, New Delhi. 35. Ved Prakash (Aged 58 years), S/o Shri Bhart Singh, Assistant Director, D/o Animal Husbandary & Development, Ministry of Agriculture, DMS Complex, West Patel Nagar (Near SBI), New Delhi. 36. Ms. Raj Kumari Beniwal (Aged 49 years), Assistant Director, Central Bureau Health Investigation, Ministry of Health & FW, Nirman Bhawan, New Delhi. 37. Hari Dass (Aged 55 years), S/o Shri Mukund Ram, Assistant Director, Dte. General of Employment and Training, Ministry of Labour & Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi. 38. Lal Singh Deswal (Aged 57 years), S/o Late Shri Sire Chand, Assistant Director, NAD, CSO, M/o Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 39. Malkhan Khan (Aged 57 years), S/o Shri Dull Khan, Deputy Director, NAD, CSO, M/o Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 40. Sushil Kumar Mittal (Aged 59 years), Deputy Director, NAD, CSO, M/o Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 41. Promod Kumar (Aged 48 years), S/o Shri Shriram, Assistant Director, NAD, CSO, M/o Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 42. Tanveer Ahmed Khan (Aged 51 years), S/o Shri Chhote Khan, Assistant Director, Town & Country Planning Organisation (TCPO), M/o Urban Development, ITO, New Delhi. 43. Ashok Kumar Chopra (Aged 57 years), Deputy Director, CPD, NSSO, M/o Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 44. Bodh Raj Sharma (Aged 59 years), S/o Shri K.L. Sharma, Deputy Director, National Accounts Division, Ministry of Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 45. J.P. Meena (Aged 55 years), Deputy Director, Dte. General of Health Services, M/o Health & Family Welfare, Nirman Bhawan, New Delhi. 46. B.K. Jain (Aged 54 years), Deputy Director, M/o Health and Family Welfare, Nirman Bhawan, New Delhi. 47. M.P. Diwakar (aged 55 years), S/o Shri Haken Singh, Assistant Director, SD, CSO, M/o Statistics & Pl., West Block, R.K. Puram, New Delhi. 48. Deep Narayan Mandal (Aged 50 years), Assistant Director, DGHS, M/o Health & FW, Nirman Bhawan, New Delhi. 49. B.S. Lakra (Aged 56 years), S/o Shri Barfe Singh, Assistant Director, M/o Culture, 210-D, Shastri Bhawan, New Delhi. 50. K.C. Meena (Aged 51 years), Assistant Director, NVBDCP, M/o Health & FW, 22, Sham Nath Marg, New Delhi. 51. Govind Sharma (Aged 54 years) S/o Shri S.K. Sharma, Deputy Director, TRU, Ministry of Finance, North Block, New Delhi. 52. Ved Pal Singh (Aged 46 years), Assistant Director, TRI, D/o Revenue, M/o Finance, North Block, New Delhi. 53. J.R. Meena (Aged 46 years), S/o Shri M.C. Meena, Sr. Research Officer, Planning Commission, Yojana Bhawan, New Delhi. 54. S.K. Gupta (Aged 58 years), Deputy Director, NAD, CSO, M/o Statistics & Pl., Sardar Patel Bhawan, New Delhi. 55. P.K. Anand (Aged 51 years) Deputy Director, D/o AYUSH, M/o Health and Family Welfare, Red Cross Building, New Delhi. 56. M. Lakshmi Rao (Aged 48 years), W/o Shri M.M. Rao, Assistant Director, D/o Edu., M/o Human Resources Development, Shastri Bhawan, New Delhi. 57. Ram Rattan Banga (Aged 45 years), Assistant Director, M/o Tourism, C-1 Hutments, Dalhousie Road, New Delhi. 58. Ghisa Ram Janghu (Aged 51 years), S/o Shri Chandgi Ram, Assistant Director, D/o IPP, M/o Comm. & Industry, Udyog Bhavan, New Delhi. 59. Khem Chand (Aged 57 years), S/o Shri Ram Phal, Deputy Director, Dte. of Anti Dumping, M/o Commerce and industry, New Delhi. 60. Poonam Gupta (Aged 48 years), W/o Shri Ajay Kumar Gupta, Assistant Director, NAD, M/o Statistics & Pl., S.P. Bhawan, Sansad Marg, New Delhi. 61. Riyasuddin (aged 58 years) Deputy Director DP Centre, MOPI Puspa Bhawan, New Delhi. 62. Deep Chand Sharma (aged 58 years) Assistant Director BPRD M/o Home Affairs, Block II, CGO Complex, Lodhi Road, New Delhi. 63. K.K.Vasudeva (aged 58 years) S/o Shri M.N.Vasudeva Assistant Director TPP, NSSO (CPD) MOSPI, SP Bhavan, Sansad Marg, New Delhi. 64. C.S.Bhatia (aged 59 years) S/o Shri Samparan Singh Bhatia Assistant Director ESD, Central Statistical Organization M/o Stat. Pl. Jeevan Prakash Building, 25, K.G.Marg, New Delhi. 65. Anil H.Ramteke (aged 45 years) Assistant Director ESD, Central Statistical Organization MOSPI, 9th Floor, Jeevan Prakash Building, K.G.Marg, New Delhi. 66. Sandeep Sharma (aged 47 years) Assistant Director M/o Rural Development Krishi Bhawan, New Delhi. 67. K.C.Rathore (aged 52 years) Assistant Director M/o Steel Udyog Bhawan, Maulana Road, New Delhi. 68. Brij Mohan (aged 51 years) S/o Shri Ami Lal Assistant Director D/o Animal Husbandary & Development Ministry of Agriculture, DMS Complex, West Patel Nagar (Near SBI), New Delhi. 69. Pradip Ray (aged 51 years) Assistant Director Ministry of Heavy Industry Block No.14, CGO Complex, New Delhi-110 002. 70. Ram Swaroop Singh (aged 54 years) Assistant Director M/o Petroleum & Natural Gas Paryavaran Bhawan, CGO Complex, New Delhi-110002. 71. A.K.Chopra (aged 57 years) Deputy Director Ministry of MSME AGCR Building ITO, New Delhi. 72. P.K.Srivastava (aged 50 years) Assistant Director FOD (NSSO) Head Quarter Ministry of Statistics & Pl R.K.Puram, New Delhi-110002. 73. Alok Nigam (aged 50 years) Assistant Director Ministry of Agriculture DMS Complex, Shadipur Deopt, New Delhi. 74. Madhu Kanwar (aged 56 years) Deputy Director D/o AH & D N/o Agriculture, Krishi Bhawan, New Delhi. 75. Dharam Pal Dugga (aged 56 years) S/o Shri Guran Dass Assistant Director CACP, M/o Agriculture Krishi Bhawan, New Delhi. 76. Subhash Kumar (aged 56 years) S/o Shri Tej Singh Deputy Director Ministry of Telecommunication Sanchar Bhawan, New Delhi-110001. 77. Shiv Nath Singh DD, Dte. of IT Air Hq, Computer Centre M/o Defence, New Delhi. 78. O.P.Gupta (aged 51 years) S/o Shri Mahadev Singh Assistant Director M/o Stat. & Pl, Sarvekshan Bhawan, Plot No.3 Sector-3, Madhuban Housing Board, Phase-1, Jodhpur (Rajasthan). 79. P. Dhayalan (aged 55 years) S/o Shri A.Padavittan Deputy Director RO NSSO (FOD) M/o Stat. & Pl, III Block, Shastri Bhawan, 26, I laddows Road, Nanga, Chennai. 80. B.S.Negi (aged 46 years) Assistant Director Labour Bureau Ministry of Labour Chandigarh. 81. B.B.S.Negi (aged 46 years) S/o Late Shri Ishwar Das Negi Assistant Director Labour Bureau, Ministry of Labour Chandigarh. 82. Ratish Chandra Sukla Baid (aged 54 years) Deputy Director Dte. General of Commercial Intelligence and Statistics 565, Anandpur, Kolkatta-700107. 83. Devanand P. Lade (aged 43 years) S/o Shri Pundik Lade Assistant Director FOD, NSSO, M/o Statistics & Pl, Nagpur-40006. Applicants. (By Advocate: Shri P.P.Khurana, Sr. counsel with Ms.Kanika) Versus Union of India through 1. The Secretary, Ministry of Statistics & Programmes, Implementation, Department of Statistics, Sardar Patel Bhawan, Sansad Marg, New Delhi-110001. 2. The Secretary, Department of Personnel and Training, North Block, New Delhi. .. Respondents (By Advocate: Dr. Ch. Shamsuddin Khan) O R D E R Per Mr. Sudhir Kumar, Member (A):
The applicants before this Tribunal are a group of officers presently working in the Junior Time Scale/Senior Time Scale in the Indian Statistical Service (ISS, in short henceforth). They have come before this Tribunal by filing M.A. No.2969/2011 with a prayer for joining together since they have a common cause, and are aggrieved by the same OM dated 13.10.2011 issued by the Ministry of Statistics and Programme Implementation (ISS Division), rejecting their representation regarding the implementation of the Recruitment Rules for allocating year-wise vacancies in the Junior Time Scale (Grade-IV) of ISS for the period 1997-98 to 2004 as between the Direct Recruit Officers and the Promotees in the Department. The MA No.2969/2011 for their joining together is allowed.
2. Through this OA, the 83 applicants before us had made the following prayers:-
a) To summon the records and set aside OM dated 13.10.2011 issued by Respondent No.1.
b) To fill up the vacancies arising prior to 14.09.2005 viz the promulgation of amended Recruitment Rules, in accordance with the Recruitment Rules which were in vogue prior to 14.09.2005, more specifically to fill the vacancies in accordance with Para 6 of the OM dated 31.3.2001 issued by Respondent No.1.
c) To hold DPC/Review DPC in accordance with law and to grant consequential relief of emoluments attached to the higher post with arrears.
d) To grant further consequential relief by way of further promotion to higher grade on completion of the requisite period of service, calculated with effect from the date the vacancy arose in the lower grade.
e) Pass any other and further order which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
3. The applicants had been earlier holding the Statistical functional posts (Group B) in different Ministries and Departments of Govt. of India till they were promoted, on different dates, to the Grade-IV Junior Time Scale (JTS in short) Group A posts in ISS, which was initially constituted with Grades I to IV. Till October 1984, the Department of Personnel & Training of the Govt. of India was the Cadre Controlling Authority of ISS, which function was thereafter taken over by the Respondent No.1 Ministry. The applicants have submitted that they had worked for almost 12 years to 17 years in the Group B feeder posts of the service till they were promoted to as Assistant Director (JTS), vide orders issued between the periods 2004 to 2011.
4. The Service Rules for the ISS were initially notified as on 01.11.1961 through Annexure A-3 produced by the applicants. These Service Rules provided that the vacancies in Grade-IV of ISS, the lowest grade, were to be filled in the ratio of 60% through direct recruitment, and 40% through promotion by selection from amongst the officers serving in the offices under the Government of India in various statistical posts recognized as a feeder post for this purpose. The relevant Rule No.7 of the ISS Service Rules dated 1.11.1961 talked about the Initial Constitution of the Service in Paragraph 7(1) to 7(4). Rule-7(A) of the said Rules introduced w.e.f. 24.12.1966 provided for certain special provisions regarding certain departmental candidates. Rule-8(1) Clauses (a) to (g) provided for Future maintenance of the Service after the initial constitution of the Service has been completed by appointment of departmental candidates or otherwise, and after promotions in accordance with Sub-Rule 2 A and Rule 7 have taken place, by stating in the Rule-8 (1) (a) relating to the Grade-IV, the lowest entry level grade of ISS, as follows:
8. (1) Future maintenance of the Service:- After the initial constitution of the Service has been completed by appointment of departmental candidates or otherwise and after promotions in accordance with sub-Rule 2A and Rule 7 have taken place, vacancies shall be filled in the manner as hereinafter provided:-
(a) Grade-IV
(i) 60 percent of the vacancies in this grade shall be filled by direct recruitment through an open Competitive examination to be held by the Commission in the manner prescribed in Schedule II.
(ii) xxxxxxxxxxx
(iii) 40 percent of the vacancies in this Grade shall be filled by Selection from among officers serving in officers under the Government in Statistical posts recognized for this purpose by the Controlling Authority who shall prepare a list of such posts in consultation with the Commission. The Controlling Authority may in consultation with the Commission add to modify the list from time to time. The selection will be made from amongst those who have completed at least 4 years of service on a regular basis in these posts on the basis of merit the due regard to the seniority by the Controlling Authority on the advice of the Commission.
Provided that if any junior person in an office under the Government is eligible and is considered for selection for appointment against these vacancies, all persons senior to him in that office shall also be so considered notwithstanding that they may not have rendered 4 years of service on a regular basis in their posts.
5. Paragraphs-8(1)(b) concerned with Grade-III, 8(1)(c) concerned with Grade-II, 8(1)(d) concerned with Grade-I, 8(1)(e) related to the posts in Selection Grade, 8(1) (f) related to Super Time Scale-II and 8(1) (g) related to Supertime Scale (I). Rule-9 prescribed the Rules for Probation and Rule-9 (A) was introduced to provide for determination of Seniority. Rule-9 A (2) had prescribed as follows:-
2. Where a departmental candidate is appointed to any grade under the provisions of sub-rule (3A) of rule 7, he shall be placed below the officer who on the date of selection of such departmental candidate to that grade is the junior most amongst the officers who had been appointed on a regular basis to that grade.
6. Rule 9(A) (clause-3 (i) (a) prescribed as follows:-
3. (i) Where a departmental candidate, being a person who, on the date of the constitution of the Service, had either held, or held lien on, any post which was included in any grade in Schedule I after the initial constitution of the Service, is appointed to that grade under the provisions of sub-rule (1) of rule 7A, he shall be placed below the junior most officer who-
(a) was appointed on a regular basis to a post included in that grade in Schedule I earlier than the appointment on a regular basis of the departmental candidate to the post included in such grade in that Schedule.
(Emphasis supplied).
7. This term Regular basis was used thereafter many times in the remaining portion of Rule-9 A also, and Rule-9 B then went on to define the term Regular basis as follows:-
9B Regular basis defined- (i) where a person is appointed in accordance with the procedure laid down in sub rule (2) against a regular vacancy, then he shall be deemed to have been appointed to any grade or post on a regular basis.
Explanation: A vacancy shall be deemed to be regular vacancy if it arises by reason of-
1. The vacation of a post by a regular incumbent by regular promotion, transfer from the service, retirement, resignation, dismissal, removal or death;
II. The inclusion of a post in Schedule I in the absence of a departmental candidate in respect of that post;
III. The deputation of the regular incumbent of a post included in Schedule I for a period not less than three years;
IV. The deputation of the regular incumbent of a post included in Grade I in Schedule I to a higher post under the Government, where the Controlling Authority is satisfied that there is no likelihood of the officer reverting to a post in Grade 1.
(2) A person shall be deemed to be appointed in a regular manner, if-
(a) in the case of a direct recruit to any grade appointed under the provisions of rule 8 or clause (i) of rule 10, and in the case of a direct recruit to any post not included in Schedule-I he has been appointed to the said grade or post, as the case may be, as a direct recruit in pursuance of the recommendation of the Commission;
(b) in the case of an officer promoted to any grade under the provisions of rule 8, and in he case of an officer promoted to any post not included in Schedule I, he has been promoted to the said grade or post, as the case may be, on the basis of his inclusion in the Select List prepared for the purpose of ranking promotion to such grade or post, as the case may be;
Provided that the promotion of an officer otherwise than in the order in which his name is placed in the Select List for promotion shall not be deemed to be an appointment in a regular manner, unless such promotion has been made by the Controlling authority in the public interest.
8. Thereafter, through the Gazette Notification dated 14.09.2005 (Annexure A-3), in exercise of the powers conferred by the proviso to Article 309 of the Constitution, the ISS Rules were amended by notifying the Indian Statistical Service (Amendment) Rules, 2005. This Notification had introduced the fresh classification of the posts in the Cadre of ISS between Higher Administrative Grade-I, Higher Administrative Grade-II, Senior Administrative Grade, Junior Administrative Grade, Senior Time Scale and the Junior Time Scale, and it was further provided that in addition to these functional grades, there shall be a Non-Functional Selection Grade also, between Junior Administrative Grade, and Senior Administrative Grade with a strength equivalent to 30% of the senior duty posts, namely all duty posts at the level of Senior Time Scale and above. The same Gazette Notification also brought about the change that in Rule 8 sub-rule (1) and sub clause (i) of clause (a) for the word Vacancies, wherever they occur, the word Posts was ordered to be substituted. Thereby the sub-clause (ii) in clause (a) of sub-rule (1) of Rule 8, amended position became as follows :
(ii) 40 percent of the posts in the Junior Time Scale shall be filled by selection from amongst officers belonging to the Subordinate Statistical Service in the pay scale of Rs.6500-10500. The promotion shall be made by selection from amongst those who have completed at least five years of service on a regular basis in these posts including service rendered, if any, in the Non-Functional scale of Rs.7450-225-11500, by the Controlling Authority on the recommendations of Departmental Promotion Committee headed by Chairman/Member, Union Public Service Commission:
Provided that if any junior who has completed five years eligibility service is being considered for selection for appointment against these vacancies all persons senior to him in that office would also be considered provided they are not short of the requisite eligibility service by more than half of such eligibility service or two years, whichever is less, and have successfully completed their probation period on promotion to next higher grade along with their juniors who have already completed such eligibility service.
9. It has been submitted by the applicants that as a result, while earlier the vacancies in the JTS grade of ISS were being allocated for the purpose of 60% of total vacancies for Direct Recruits, and 40% for the Promotee quota, the position after this amendment changed to the allocation of total posts in that grade in the ratio of 60:40 as between Direct Recruits and Promotees. Along with this change, the respondents also introduced the Post Based Roster for reservation of vacancies from the same date of 14.09.2005, by implementing the Government of India DOP&T OM dated 2.7.1997 (Annexure A-4) issued in obedience and implementation of the judgment of the Honble Supreme Court in the case of R.K. Sabharwal Vs State of Punjab (1995) 2 SCC 745.
10. The applicants before us herein are aggrieved that this changed the scenario for promotional prospects for them all of a sudden. They admitted that the vacancy position in respect of Promotee quota in the JTS grade of ISS during 1993-94 was calculated as 34, during 1994-95 as 08, during 1995-96 as 14, and during 1996-97 as 45, and the vacancies were also filled up accordingly. However, the vacancies as calculated as 40 for 1997-98 were not filled up, on the ground that now the DOP&T OM dated 02.07.2007 regarding Post Based Roster was being followed and implemented. This was further compounded by the fact that through Notification dated 23.12.1997, the respondents had notified the ISS (Amendment) Rules, 1997, changing the eligibility criteria for promotion from 4 years of qualifying service in the feeder cadre to 7 years of such qualifying service on a regular basis. The applicants are aggrieved that the Respondent No.1 thereafter re-calculated the posts as per the Post Based Roster for the period from 1997-98 to 2004-2005, and filled up those posts through DPCs conducted on 23.09.2003 and 09.11.2004, even though the formal amendment regarding Post Based Roster being followed, as different from the earlier Vacancy Based Roster in the case of ISS, had been notified only on 14.09.2005.
11. The applicants before us are aggrieved that since amendments of Service Rules cannot be made with retrospective effect, the Respondent No.1 had erred in calculating yearly vacancies of posts from 1997-1998, 2004-2005 by applying the Post Based Reservation Roster prescribed by the DOP&T OM dated 02.07.1997, while the purpose of that OM issued by DOP&T was only limited for the purposes of achieving the prescribed percentage of reservation for SCs & STs and the Backward Classes in a cadre, and not for the distribution of posts or vacancies between the Direct Recruits and Promotees in the ratio of 60:40.
12. In the meanwhile, some of the similarly placed officers had earlier approached this Tribunal in OA No.3346/2002, in which orders came to be pronounced on 02.02.2006 through Annexure A-5. The applicants therein had sought that the DPC constituted for preparing the yearly select panel for promotions to apply the law as laid down by the Honble Apex Court in the case of N.R. Banerjee and ors. Vs. Union of India & Ors. 1997 SCC (L&S) 146, and Union of India vs. Vipin Chand Hiralal Shah JT 1996 (9) SC 686; (1996) 6 SCC 721, and Nirmal Chandra Bhattacharjee vs. Union of India (1991) Supp 2 SCC 363; JT 1991 (5) SC 35, and had prayed before this Tribunal to issue directions to the respondents to give year-wise vacancy based promotions to Grade-IV of the ISS, and the consequential benefits to the applicants therein in terms of salary, promotions etc. on the basis of their position in the respective years selection lists.
13. While deciding that OA No.3346/2002, the Tribunal had directed the respondents to re-examine the matter in the light of the observations made by the Bench in the judgment, and, in furtherance of that, prepare year-wise select panels for the vacancies pertaining to the years 1996 to 2003 by holding a review DPC, except the 28 vacancies filled up in October 2003, and in that review DPC, the claim of the applicants be also considered for antedated promotions, and in the case of their being found fit, they may be accorded all the consequential benefits. It was also clarified that the promotion of the applicants therein being antedated may require them to be considered for further promotion to Grade-III also.
14. The respondent No.1 thereafter passed the order at Annexure A-6 dated 12.05.2006, and it was pointed out that it was found that there was no discrepancy, and no review DPC was required to be held, as the detailed observations of this Tribunal in the judgment had already been taken into account earlier while reporting the vacancies to the Union Public Service Commission. The applicants herein are aggrieved by this order dated 12.05.2006 (Annexure A-6) also, though it does not appear that any Contempt Petition was filed by any of the applicants of the OA 3346/2002, for pointing out a mistaken implementation of the orders of this Tribunal.
15. However, the applicants herein kept on agitating the matter, and through Annexure A-9 dated 26.08.2010, applicant No.53 before us, Shri J.R. Meena, made a representation to the Respondent No.1 in regard to the issues arising out of the Recruitment Rules for ISS concerning allocation of vacancies for promotee quota as well as direct recruitment quota during the period 1997-2005. The applicant No.1 also filed another representation the same day and issued a reminder on 17.02.2011 for fixation of seniority of ISS JTS Officers on the basis of allocation of vacancies in accordance with the prevailing Recruitment Rules. He further issued a second reminder on 03.06.2011 and a third reminder on 26.09.2011.
16. The Respondent No.1 Ministry had referred this issue for consideration by the Department of Personnel and Training, and the DOP&T had, in turn, issued the reply OM dated 17.04.2009 (Annexure A-7), and the reply OM dated 30/31.08.2010 (Annexure A-10), and after receipt of the final reply from DOP&T dated 30/31.08.2010 (Annexure A-10), the Respondent No.1 issued the Office Memo dated 13.10.2011 which has been impugned as Annexure A-I in this OA. In the result the grievances of the applicants before us are essentially two fold. Firstly, they have urged that there has been a glaring error in allocation and earmarking of vacancies in between the direct recruits and the departmental promotees in JTS Grade-IV of ISS from 1997 to 2005, inasmuch as the distribution of yearly vacancies, which ought to have been allocated in the ratio of 60: 40 during the said years, has instead been allocated as per the Post Based Reservation Roster in the light of DOP&T instruction dated 02.07.1997, without appreciating the fact that that OM is applicable only to serve as a reservation roster for reservation of posts for SCs/STs and OBCs, and not for allocation of vacancies in between the promotes and direct recruits, and the second grievance is that this change was given effect to from 1997 to 2005, even before the formal amendment dated 14.09.2005 was brought about in the ISS Recruitment Rules.
17. The contention of the applicants is that the Recruitment Rules/Service Rules being statutory in nature, the provisions contained therein must prevail over any executive instructions, as has been clarified and admitted by the respondents also through the DOP&T Noting dated 21.04.2010, a copy of which was produced by the applicants at Annexure A-2 (pages 102 and typed copy at page 103 of the OA). Having said this, no separate grounds had been urged by the applicants in the OA in order to lay their challenge to the impugned order dated 13.10.2011 (Annexure A-1), and the impugned actions of the respondents. It was, however, further submitted that while referring the matter to the DOP&T through their OM dated 31.03.2010 the respondents have themselves admitted that if they had gone by the existing Rules of Recruitment of ISS, the calculation of vacancies during this period would have been as per the Table-A given below:-
Items/ Years 1997-98 1998-99 1999-00 2000-01 2001-02 2002-03 2003-04 2004-05 Cadre strength of JTS 333$ 316 316 316 316 275 275 275 Total vacancies 154 (137$) 59 82 55 31 78 12 78 Dr (60%) 82 35 49 33 19 47 7 47 Promotee (40%) 55 24 33 22 12 31 5 31
18. But, if these vacancies are calculated on the basis of the post Based Roster Rules, since the vacancies of promotion quota in 1997-98 were also used to adjust the excess officers of the promotion quota, due to the implementation of the Post Based Roster, the vacancy distribution during the same period could be calculated as per the Table-B below:-
Items/ Years 1997-98 1998-99 1999-00 2000-01 2001-02 2002-03 2003-04 2004-05 DR-Post Based 50 50 50 50 25 22 - 22 Promotee based $13 $9 $32 $5 6 56* 12 56 *28 vacancies utilized for induction against earlier vacancy.
$ Utilized to adjust the excess officers belonging to General Category after implementation of the Post based reservation roster in terms DOP&Ts order dated 2.7.1987.
19. In the result, the applicants have prayed for the OA to be allowed, and the impugned OM Annexure A-1 dated 13.10.2011 issued by Respondent No.1 to be set aside apart from the other reliefs, as described in Para-2 above.
20. The respondents filed their reply written submissions on 28.02.2012. Through this, the respondents had submitted that they had merely followed DOP&T instructions dated 15.12.2008, which had stipulated as follows:-
14. The issue of continuation of vacancy based rosters was examined in consultation with the then Attorney General of India. The Attorney General advised that:
As per the Supreme Court judgment in the R.K. Sabharwal case, reservation has to be with reference to posts and not vacancies.
A post based roster is a mechanism to ensure that the reserved categories get their due share of posts upto the prescribed percentages of reservation for the concerned categories in line with the principles enunciated in the aforesaid Supreme Court judgment.
The post based rosters are consistent with the judgment of the Supreme Court in the aforesaid case and the Government cannot continue the old vacancy based rosters.
Further vide para 3 of annexure II of the said instructions of DOP&T stipulated that:-
The Office Memorandum dated 2.7.1997 was examined in consultation with the Attorney General of India. The Attorney General advised that the Government could not have continued the vacancy based rosters and had no option but to switch over to post based rosters. He also expressed the view that the decision of the Supreme Court could be nullified only by way of amendment to the Constitution itself, amending Article 16 and providing that the reservation shall be vacancy based. However, he felt that such an amendment, if made, is likely to be challenged and the ground of violation of the basic structure of the Constitution..
21. The respondents have further submitted that accordingly, when the issue or matter regarding the date of implementation of Post Based Reservation Roster in ISS cadre was referred to the Reservation Division of DOP&T through Annexure R-1 dated 30.07.2010, along with the earlier opinion of DOP&T dated 21.04.2010, the DOP&T had, through their OM dated 13.10.2011, as cited in the impugned Annexure A-1, clarified that after 2.7.1997, all posts are required to be filled up on the basis of Post Based Rosters, even if the vacancy related to a period prior to or after 2.7.1997. It was only then that the impugned order dated 13.10.2011 was issued by the Respondent No.1 Ministry.
22. It was further submitted that the applicants have been knowingly trying to mislead this Tribunal by not annexing the complete Service Rules, as the ISS Rules, 1961, comprise of 17 Sub-Rules, but the applicants had annexed and referred only upto Rule-11, while Rule-13 of the Service Rules stipulates as under:-
13. Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes, etc. Appointment to the Service shall be made subject to orders relating to reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes issued by the Central Government from time to time.
23. The respondents further submitted that challenging the OM dated 13.10.2011 of the respondent Ministry, which had only reiterated the implementation of the Post Based Roster in ISS w.e.f. 2.7.1997, amounts to a challenge to the policy of the Union of India dated 2.7.1997, which is more than 14 years old, and which Post Based Reservation Roster system had been implemented in the ISS from the date it was prescribed to be applicable by the Government. It was pointed out that since then 12 batches of direct recruits have joined the service, and if any orders favouring the present applicants are passed, the seniority of officers recruited from 1997 onwards will be adversely affected. However, since the applicants have not made any of these officers likely to be affected, if relief is granted to them, as party respondents, the OA is liable to be dismissed on the ground of non-joinder of necessary parties.
24. It was further submitted that re-opening and re-fixation of seniority already fixed in the year 2004 would result in unsettling of the settled seniority and will have adverse administrative repercussions, while the Honble Apex Court has in the case of Shiba Shankar Mohapatra & Ors Vs. State of Orissa & Ors (2011) 1 SCC (L&S) 289), held a period of upto 3 to 4 years as a reasonable period for challenging seniority, and had frowned upon any belated challenges to seniority. On this ground also, the respondents had submitted that the OA is liable to be dismissed as not maintainable.
25. It was further submitted that the issues of re-calculation of vacancies had already been raised in the earlier OA No. 3346/2002, and when the matter was examined in the light of the directions issued by this Tribunal in that OA, and a speaking order was passed, which was not challenged, raising the same issue again through this present OA is hit by the principle of res-judicata, and, therefore, the OA is liable to be dismissed on this count also.
26. Further, it was submitted by the respondents that a large number of promotee officers, who were seniors to the present applicants, and were promoted subsequent to the implementation of the Post Based Roster since 1997, have not joined this OA as party applicants, since many such promotee officers promoted since 1997 had even superannuated from service, and the present applicants have chosen to approach this Tribunal only after the superannuation of their seniors. It was submitted that, assuming, but not conceding, that if the seniority of the applicants needs to be re-fixed as a result of this OA, many of the applicants do not qualify to make the pleadings before this Tribunal, as they have been promoted to the ISS only between 2006 and 2011, and they have waited for their promotion to ISS to take effect before choosing to challenge the implementation of the Post Based Reservation Roster, which was implemented way back in 1997.
27. It was further submitted that, assuming, but not conceding, that Post Based Roster was implemented in the ISS even without formal amendment to the ISS Recruitment Rules, such provisions could have been made by administrative orders also, even if the Rules were silent on the point, though in the instant case Rule-13 (as cited in Para-22 above), specifically deals with such situation. In support of their contention, the Respondents had cited the findings of the Honble Apex Court in Santaram Sharma vs. State of Rajasthan (1968), SCR 111: AIR 1967 SC 1910, which had, in-turn, cited the Apex Court findings in Akhil Bhartiya Soshit Karamchari Sangh (Railways) vs. Union of India (1981) SCC 246: (1980) Lab. IC 1325. The respondents had defended their actions on the basis of the Constitution Bench findings in R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745, and had submitted that the applicability of Post Based Reservation Roster prescribed through DOP&T OM dated 2.7.1997 in the ISS also was fully justified, because of the law clearly laid down by the Honble Apex Court in Indira Sawhney vs. Union of India (1996) 6 SCC 506, that an executive order making a provision under Article 16(4) is enforceable the moment it is made or issued.
28. It was reiterated by the respondents that since the calculation of posts to be filled up on the basis of Post Based Roster has already been done by the respondent Ministry, and a speaking order passed on 12.5.2006, in compliance with the directions of this Tribunal in OA No.3346/2002, the matter of calculation of the posts to be filled up, having been settled under the directions of this Tribunal, cannot be now re-opened once again after a lapse of 6 years. The respondents have, therefore, prayed that the OA is liable to be rejected and should be dismissed.
29. The applicants had filed a rejoinder on 19.03.2012, more or less reiterating their submissions in the OA. They had submitted that they have no quarrel with the Post Based Reservation Roster policy of the Government of India meant for achieving the prescribed levels of reservations for SCs/STs/OBCs in the JTS Grade-IV, but it was pointed out that this prescribed level can only be achieved when the yearly vacancies are correctly earmarked at first, between the Direct Recruits or Promotee Officers, which is the core issue of the instant OA. They had reiterated that since the amended ISS Rules came into effect only from 14.09.2005, the allocation of yearly vacancies till that date ought to have been made in terms of available vacancies, and not in terms of posts, and a retrospective amendment to the Recruitment Rules is a gross violation of the law. They had reiterated that the Post Based Reservation Roster sought to be applied by the respondents for calculation of allocation of vacancies has nothing to do with the allocation of vacancies between Direct Recruits and Promotee Officers, which can only be governed by the relevant Recruitment Rules, and had nothing to do with the reservation policy of the Government under Articles 15 & 16 of the Constitution of India.
30. They had further submitted that respondents have themselves to be held responsible for the situation they are confronted with, as they have pushed the cause of the direct recruits, and have left the promotees behind, by acting dehors the Recruitment Rules as prescribed. It was reiterated that the Respondent No.1 is willfully suppressing material facts, and evading the core issue regarding implementation of the Recruitment Rules, for allocation and filling up of vacancies that arose prior to 14.9.2005. They had reiterated that the Post Based Reservation Roster sought to be applied by the Respondent No.1 for calculation and allocation of vacancies in promotee quota is not as per the prevailing Recruitment Rules, as is evident from the stand taken by both the UPSC and DOP&T, and they had, therefore, reiterated that the OA deserves to be allowed in terms of its prayer clause.
31. Heard the arguments in detail. The learned counsel for the applicants had relied upon the judgment in the case of R.K. Sabharwal and Others v. State of Punjab and Others (1995) 2 SCC. That judgment had considered the legal position with reference to reservations in appointments for SCs/STs and OBCs, and Post Based Roster being applied for the reservations, and that judgment was not regarding the maintenance of proportion between the direct recruits and promotees in a cadre, as in the instant case. However, it is seen that in Para-6 of the said judgment, the Honble Apex Court has distinguished the terms posts and vacancies as follows:-
6. The expressions posts and vacancies, often used in the executive instructions providing for reservations, are rather problematical. The word post means an appointment, job, office or employment. A position to which a person is appointed. Vacancy means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a post in existence to enable the vacancy to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of vacancy has no relevance in operating the percentage of reservation.
32. The learned counsel for the applicants had also relied upon the case of A. Janardhana vs. Union of India and Others (1983) 3 SCC 601, in which it is seen that the Honble Apex Court, while dealing with the case of seniority between promotees and direct recruits, and in a case where the appellant promotee had been inducted in excess of the quota prescribed for the promotees, had recorded its findings as follows:-
6. The recruitment was to be from two sources; (i) direct recruitment by competitive examination; and (ii) by promotion in accordance with Part III of the Rules. Rule 4 confers discretion on the Government circumscribed by the provision of Rule 3 enabling the Government to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be filled during any particular period, and the number of candidates to be recruited by each method. There is a proviso to Rule 4 and it is the subject matter of acrimonious debate in the Court. One submission of Mr. P. R. Mridul, learned counsel for direct recruits was that the proviso is the proviso to sub-rule (ii) of Rule 3 and it fixes the quota of 9 to 1 between direct recruits and promotees. At the other end of the spectrum, the submission was that it merely provides a ceiling and not an inviolable quota rule. We would examine both the submissions a little while after. Part II of the Rules makes detailed provision for the competitive examination to be held in India for selecting direct recruits. Rules 21 to 23 in Part III of the 1949 Rules, prescribe qualification and method for recruitment by promotion. One worth noticing is Rule 23 which prescribes that no individual shall be eligible for promotion to the service unless, he would, but for age, be qualified for admission to the competitive examination under Part II. This would mean that except for age all other qualifications including educational qualification for direct recruits and promotees are the same. There are 5 Appendices to 1949 Rules. Para 3 in Appendix V provides for inter se seniority between direct recruits and promotees. Sub-para (iii) of para 3 is relevant and may be extracted.
"(iii) A roster shall be maintained indicating the order in which appointments are to be made by recruitment and promotion in accordance with the percentages fixed for each method of recruitment in the Recruitment Rules. The relative seniority of promotees and direct recruits shall be determined by the dates on which the vacancies reserved for the direct recruits and the promotees occur ................"
Though the 1949 Rules were published on Sept. 17, 1949, they were brought into operation by a notification of the Ministry of Defence dated July 29, 1950, with effect from April 1st 1951, 1949 Rules when enacted were admittedly non-statutory in character.
xxxx xxxx xxxx xxxx xxxx 19. What emerges from the decision in Bachan Singh's case? 1949 Rules and the subsequent amendments thereto acquired statutory flavour in 1969 and '1949 Rules' became statutory in character by incorporation only in 1969 and till then they were mere administrative instructions. Rule 3 of '1949 Rules' permitted recruitment only from two sources i. e. by competitive examination and by promotion. Rule 4 permitted the Government to fill in any particular vacancies or such vacancies as may require to be filled during any particular period, the method or methods to be employed for the purpose of filling any particular vacancies and the number of candidates recruited by each method. Rule 3 provides for the sources of recruitment, namely, direct recruitment and promotion. Rule 4 confers discretion on the Government either to fill the vacancies and from which service subject to the proviso to Rule 4 which prescribes, according to Bachan Singh's case, a quota. Rule 24 which was introduced in 1967 conferred power on the Union Government for the reasons to be recorded in writing and after consultation with the Union Public Service Commission to relax all or any of the rules with respect to class or category of persons/posts. As the '1949 Rules' were non-statutory in character till 1969 and this Court read power of relaxation is in '1949 Rules' till 1969, the power of relaxation was exercised during 1961-1962-1963 because there was emergency during this period. The Government was in need of large number of Engineers and, therefore, had to make recruitment by a method not prescribed by the rules in relaxation of the rules, and large number of persons had to be given departmental promotion with the same and in view which would amount to relaxation of the quota rule. This Court in terms held that the Government had the power to relax 1949 Rules till they acquired statutory character in 1969 and Government did make recruitment from both sources after exercising the power to relax rules. This ratio of the decision is binding on us.
xxxx xxxxx xxxxx
36. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellant. By an order made by the High Court, the names of respondent 3 to 418 were deleted since notices could not be served on them on account of the difficult in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this Court by 9 direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr. P. R. Mridul, learned senior counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to General Manager, South Central Rly., Secundrabad v. A. V R. Sidhanti (1974) 3 SCR 207 at p. 212: (AIR 1974 SC 1755 at P. 1759). Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this Court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts. 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating to seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and, therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived.
33. The learned counsel for the applicants had further relied upon the case of Col. D.D. Joshi and Others vs. Union of India and Others (1983) 2 SCC 235, in which the Honble Apex Court had recorded its findings as follows:-
23. On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re-settle the seniority list, those over whom petitioners and those similarly situated would score a march should have been impleaded as respondents and in their absence, no relief can be given to them. We would not accept this contention for two reasons : (i) that the decision in General Manager, South Central Railways, Secundrabad etc., (AIR 1974 SC 1755) would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merely to give effect to the decision of this Court. Therefore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the Court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there.
34. On the other hand, the learned counsel for the respondents had during his arguments pressed the point made in his written submissions (para 23 above) that any re-opening and re-fixation of seniority by entertaining the present OA would affect the seniority of many officers, whom the applicants have not made as opposite party respondents in this case. Shelter from that argument was however taken by the learned counsel for the applicants in his reply that in accordance with Para-36 of the judgment in A. Janardhana (supra), since seniority has not been claimed by the present applicants against any individuals, even though the affected persons have not been impleaded as party respondents in this case, the OA cannot fail on that ground alone.
35. As mentioned earlier in para 16 above also, while discussing the submissions of the applicants, two issues fall for our consideration. Firstly, as to whether without any formal amendment in the ISS Recruitment Rules, which was brought about by the respondents only from 14.09.2005, without amending the statutory Rules, the respondents could have applied the law of the land as determined by the Honble Apex Court in R.K. Sabharwal case (supra), following the ratio of which case instructions had been issued by the DOP&T through its OM dated 02.07.1997, and secondly whether it is possible that while for the purpose of reservation being provided for SCs/STs and OBCs, a Post Based Roster can be followed, a different concept of vacancies Based Roster can be followed for the purposes of maintenance of 60:40 ratio among the Direct Recruits and Promotees in the ISS cadre for the selections made year after year. A corollary of the second issue is as to whether a direct recruit can be recruited only when one direct recruit retires, or leaves the job, or is no more, or is no longer available, and whether a post vacated due to superannuation of a promotee can be filled up only by promoting a fresh promotee, and not by direct recruitment.
36. Even the applicants have not contended the fact that R.K. Sabharwals case (supra) holds the field in the matter of Post Based Reservation Roster being applied to fill up SCs/STs and OBCs reserved posts. Their only contention is that such Post Based Reservation Roster does not automatically translate into a Post Based Reservation in between the Direct Recruits and the Promotees also, and that a direct recruitment should be held only when a post is vacated by a direct recruit, and a promotee should be promoted whenever the post is vacated by a promotee on superannuation or otherwise.
37. If we discount that a post may fall vacant due to many reasons, including any mishaps or resignations etc., a direct recruit to ISS would normally occupy a post for a period of 35 years and may remain in the ISS Grade-IV for a maximum of 8 years or so, depending upon the level of stagnation above him. If the contention of the applicants is accepted that a Grade-IV ISS post can be filled up by direct recruitment only if and when once a direct recruit moves out and upwards from Grade-IV, it may so well happen that for many years there will be no direct recruitment in the ISS. Another necessary corollary would be that since the promotees would be retiring more often, and early, the posts vacated by them would in any given year be much more in number than the posts available due to vacancy of posts in that grade by the direct recruits.
38. From the Apex Court judgment in the R.K. Sabharwal case (supra), it can be stated by further extrapolating that a Cadre consists of a sanctioned strength of posts, which would consist of vacant or occupied liens. In the case of a vacant lien, it would amount to a vacancy. In the case of an occupied lien, it amounts to a filled-up post. Lien slots are what gets vacated, and need to be filled up for fulfilling the sanctioned strength of the Cadre. While filling up the vacant lien slots, the provisions concerning the policies of reservations may require certain vacant liens to be kept and set apart for being filled up by only SCs, STs and OBC candidates. Another similar policy concerning the policy of division/bifurcation of the process of filling up the vacant liens may require the slots of 60% of such vacant liens to be filled up through direct recruitments, and the slots of 40% of such vacant liens to be filled up through promotions. In that sense, it appears to us to be necessary that the same policy of Post Based Roster has to be necessarily followed both for the purposes of providing for reservations for SCs/STs/OBCs, as well as for the purpose of providing for proportionate quota for direct recruitments and promotions.
39. Across the Board, in all the cadres of the Union of India, Public Sector Undertakings, Banks and Financial Institutions, the system so far followed is that the vacant liens available against the sanctioned cadre strength posts are identified at the beginning of the year, and then those vacant lien slots are notified as vacancies of posts, for being filled up by direct recruitments and promotions in the prescribed quota. If, at the beginning of the year, 10 vacant liens are available in the sanctioned cadre strength of ISS Grade-IV, six slots of vacant liens would need to be filled up by direct recruitment, and four slots of vacant liens would be required to be filled up by according promotions from the eligible feeder cadres. This, to our mind, is the correct interpretation of the settled Law, as well as the Rules.
40. Therefore, the applicants cannot be allowed to plead that when a vacancy is created by the retirement on superannuation of a promotee, that vacant lien should be filled up only by a promotee, and cannot be counted as a vacant lien of a sanctioned cadre post. If there is a situation that the plea of the applicants is accepted, then there may not be any direct recruitments in ISS for many years at a stretch, and only promotions from the feeder cadres would take place, which cannot be the effect of either the statutory Rules or Regulations, or of the Law as laid down by the Honble Apex Court.
41. Further, the contention of the applicants that the law of the land, as laid down by the Honble Apex Court in R.K. Sabharwal case (supra), applies for a Post Based Roster being followed only for the purposes of reservation, and not for the purpose of maintenance of ratio among Direct Recruits and Promotees, cannot also be accepted. It would be impossible realistically, logically and administratively for two separate rosters of Post Based Roster for reservations being combined with a Vacancy Based Roster for distribution of quota for promotions/direct recruitments. The judgment in R.K. Sabharwals case (supra), as cited in the Paragraph-31 above, does not state it in so many words, but it appears to us that the ratio of the Honble Apex Courts judgment was that whether it may be reservation for SCs/STs and OBCs, or distribution of quota among Direct Recruitments and Promotees, the basis shall be only a Post Based Roster, and not a Vacancy Based Roster.
42. We bow our head before the wisdom of the Honble Apex Court as interpreted and perceived by us, and hold that the respondents have not committed any mistake in having followed a Post Based Roster for filling up the vacant liens available to them from 1997 onwards.
43. As regards the second contention of the applicants that the respondents could not have done so from 1997 onwards by mere virtue of the directions issued by the DOP&T Circular, based upon the Honble Apex Courts findings in R.K. Sabharwals case (supra), and that they could have done so only from the date the ISS Recruitment Rules were actually amended in the year 2005, it appears to us that any such interpretation of the Recruitment Rules would run counter to the law of the land as laid down by the Honble Apex Court. In a broader prospective, the law of the land would over-ride the notified Recruitment Rules, and whether or not the Recruitment Rules were formally amended, since the law of the land had been determined by the Honble Apex Court in R.K. Sabharwal case (supra) in clear terms, and it had also been notified by the DOP&T through its OM dated 2.7.1997 for being followed through out the Government of India for all cadres, to that extent the provisions of the Recruitment Rules stood superseded automatically, even in the absence of a formal amendment having been brought, which the respondents have unfortunately unnecessarily delayed.
44. We have also seen that even in the decision in the previous OA No. 3346/2002 cited above, no directions were issued to the respondents contrary to the law of the land as laid down by the Honble Apex Court in R.K. Sabharwal case (supra), and, therefore, the respondents were fully within their rights to follow the Post Based Roster, both for the purposes of reservation for SCs/STs and OBCs, and for the purposes of distribution of vacancies between Direct Recruits and Promotees, which they have done from 1997 onwards.
45. In the result, the OA fails, but there shall be no order as to costs.
(SUDHIR KUMAR) (JUSTICE S.C. SHARMA) MEMBER (A) ACTING CHAIRMAN cc.