Central Administrative Tribunal - Delhi
Shreekant Ranjan vs Union Of India on 5 December, 2013
Central Administrative Tribunal
Principal Bench
O.A. No.424/2012
M.A. No.330/2012
Order reserved on: 24.10.2013
Order pronounced on: 05.12.2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. V. Ajay Kumar, Member (J)
1. Shreekant Ranjan
S/o Shri Raman Kumar Trivedi
R/o 711, Minto Road Hostel,
New Delhi-110002.
2. Anil Kumar Samdarshi
S/o Late Shri B.C. Roy,
R/o 711, Tagore Road Hostel,
New Delhi-110002.
3. Amit Sahai
S/o Shri B.N. Srivastava
R/o Flat No. 18, Kaveri Towers,
Vaishali, Sector-4,
Ghaziabad, Uttar Pradesh. -Applicants
(By Advocate: Ms. Aishwarya Bhati with
Shri Karmarmender Singh)
Versus
Union of India
Through Secretary
Department of Personnel & Training
North Block, New Delhi-110001. -Respondent
(By Advocate: Shri D.S. Mahendru)
O R D E R
Mr. Sudhir Kumar, Member (A):
M.A. No.330/2012 filed by the three applicants praying for permission for joining together in filing this O.A. is allowed.
2. The three applicants of this O.A. are before us aggrieved on account of the non-inclusion of their names in the list showing the names of persons whose period of ad-hoc promotion has been extended from 31.12.2011 up to 30.06.2012 through the Office Memorandum dated 31.01.2012 placed by them at Annexure A-17 (pages 103 to 105 of the paper book). They have alleged that the respondents have acted in a wholly, arbitrary, unjust, and unreasonable manner in directing the cancellation of their promotion on ad-hoc basis, which is incomplete contravention of the previous OMs No. AB 14017/12/87-Estt. (RR) dated 18.03.1988, AB-14017/82/88-Estt. (RR) dated 23.10.1989 and OM No. AB-14017/12/88-Estt. (RR) dated 25.03.1996, and also against the judgments of the Honble Apex Court in R. Prabha Devi & others vs. Government of India & others 1988 (2) SC 233, and in Union of India vs. Sadhana Khanna 2008 (1) SCC 720. They have submitted that in spite of the applicants having submitted numerous representations in this regard, requesting the respondents to consider their cases for promotion in accordance with the principles, and directions laid down by the Honble Apex Court in these two cases, the respondents have not paid any heed to their prayers. In the result, the applicants have prayed for the following reliefs and Interim Relief in this O.A:-
To direct the respondent No.1 to amend the CSS Rules, 2009 in accordance with the OM No. AB-14017/12/87-Estt.(RR) dated 18.03.1988, OM No. AB-14017/12/87-Estt. (RR) dated 23.10.1989 and OM No.AB-14017/12/88-Estt.(RR) dated 25.03.1996.
Quash the DOP&T Office Memorandum No.6/9/2010-CS-I(S) dated 31.01.2012 which is not in compliance of the order of the Honble Supreme Court and non compliance of its own O.Ms dated 18.03.1988, 23.10.1989 and 25.03.1996.
Direct the Respondent to include the names of the Applicants in the list annexed with DOP&T OM No.6.5.2011-CS-I (S) dated 19.01.2012, in accordance with the judgment of the Honble Supreme Court in Smt. Sadhana Khanna 2008 (1) SCC 720.
The ad-hoc appointment in the grade of Section Officer of the applicants may also be extended upto 30.06.2012 alongwith the juniors who have already been granted extension of their ad-hoc appointment as Section Officer vide DOP&T OM No.6/5/2011-CS-I (S) dated 19.01.2012.
Interim Relief Pending final decision on application, the applicants seeks to stay the implementation of impugned DOP&T Office Memorandum No.6/9/2010-CS-I(S) dated 31.1.2012 which is contrary to its own O.Ms dated 18.03.1988, 23.10.1989 and 25.03.1996 is also in contravention of the order of the Honble Supreme Court in Smt. Sadhana Khanna, 2008 (1) SCC 720.
3. On the very first date of hearing of the case on 08.02.2012, it was directed by the Bench that the respondents shall not pass any adverse orders against the applicants till the next date of hearing. After completion of pleadings, the case was heard in detail and reserved for orders, and the learned counsel for the applicants was permitted to file written submissions, and supporting judgments, if any, within a week, which were filed by the learned counsel on 24.01.2013, within the time allowed.
4. The case of the applicants is that through their first OM dated 18.03.1988 cited above, the respondent, Govt. of India, Ministry of Personnel, Public Grievance and Pension, Department of Personnel & Training (DoP&T, in short), issued instructions on the subject regarding revision of guidelines for framing/amendment/relaxation of Recruitment Rules, which were earlier issued in a consolidated form through their previous OM dated 22.05.1979. This Office Memorandum was issued in exercise of the Ministrys Action Plan for the year 1987-88 for reviewing existing instructions, and issuing them in a consolidated form, and it was further mentioned that the contents of this OM will replace the existing Part-I of the Hand Book on Recruitment Rules.
5. Para-3.1.2 of the said O.M. (Part III attached to Annexure A-1) regarding Consideration of Seniors stated as follows:-
3.1.2. It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, a suitable Note may be inserted in the recruitment rules so that the seniors who have completed the probation period, are also be considered where the juniors who have completed the requisite service are being considered.
(Emphasis supplied).
6. When the instructions regarding consideration of the cases of seniors were not incorporated in their Recruitment Rules by many departments, by way of a reminder the DOP&T issued an Office Memorandum dated 23.10.1989, (Annexure A-2), which stated as follows:-
New Delhi the 23rd Oct, 1989 Subject: Consideration of seniors who have not completed the qualifying service for promotion in cases where the juniors who have completed the requisite service are being considered.
The undersigned is directed to refer to para 3.1.2 of Part III in this Departments O.M.No.AB-14017/12/87-Estt.(RR) dated 18th March, 1988 wherein it was suggested that a suitable Note may be inserted in the recruitment rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered.
2. It has been brought to the notice of this Department that inspite of the instructions referred to above, the proposed Note has not been incorporated in the recruitment rules of a number of posts. This has led to difficulties at the time of making promotion when the seniors had either to be left out or relaxation of recruitment rules had to be resorted to on each occasion. In order to avoid a situation of this kind, it is requested that all the Ministries/Departments may kindly examine their recruitment rules and insert a Note as referred to above wherever it is considered necessary.
(Emphasis supplied).
7. Later on, the DOP&T decided to amend the suggested Note itself, which had been earlier suggested by it on 18.03.1988, to be included in the Recruitment Rules of all the departments, in the light of the Apex Courts judgment in R. Prabha Devi and others (supra), which case had been decided by the Honble Apex Court on 08.03.1988, on the judgment and order in that case dated 11.02.1986 of this Tribunal. DoP&T then issued its modified instructions, through their OM dated 25.03.1996 (Annexure A-3) according to which the last sentence of the above cited para 3.1.2 of the OM dated 08.03.1988 (supra) was suggested to be amended to read as follows:-
To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules.
Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of requisite qualifying/ eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less and have successfully completed their probations period or drawing to the next higher grade alongwith their juniors who have already completed such qualification/eligibility service.
(Emphasis supplied)
8. Most of the Ministries and Departments of Govt. of India amended their Recruitment Rules in accordance with these instructions, flowing from the judgment of the Honble Apex Court in R. Prabha Devi and others (supra).
9. The Applicant No.1 before us was appointed as Assistant in the Ministry of Health & Family Welfare on Direct Recruitment basis w.e.f. 01.07.2005, though against the Select List Year 2002, on the basis of the Combined Graduate Level Examination 2002-2003. Applicant No.2 was appointed as Assistant in the Ministry of Agriculture on Direct Recruitment basis w.e.f. 12.08.2005, against the same Select List Year 2002, on the basis of the same Combined Graduate Level Examination 2002-2003, and the Applicant No.3 was also appointed as Assistant in the Ministry of Finance on Direct Recruitment basis, w.e.f. 21.09.2005, against the same Select List Year 2002, on the basis of the same Combined Graduate Level Examination 2002-2003. It may be mentioned here that in the Central Secretariat Service, to which these three applicants belong the Select List Year is counted from the 1st of July of a Calendar Year to the 30th of June of the next calendar year.
10. In the meanwhile, a related matter reached the Honble Apex Court in Union of India vs. Smt. Sadhana Khanna (supra), in which judgment was pronounced by the Honble Apex Court on 14.12.2007 (Annexure A-4). In her case, Smt. Sadhana Khanna had, after her selection as a Direct Recruit Assistant against the Select List Year 1981-1982, been issued a letter offering her appointment on 05.07.1983, which was after 01.07.1983, the starting date of the Select List Year 1983-84, from which date the eligibility for her promotion was to be counted, and she had actually joined as Assistant on 13.07.1983. Holding that her regular service of 8 years in the grade of Assistant was short by a period of 12 days, her case had not been considered as on 01.07.1991 for promotion to the post of Section Officer from the grade of Assistants under the seniority quota, which is on non-selection basis, based only on seniority. The Honble Apex Court had then pointed out that in fact in the case of some of the candidates, who were junior in the merit list of the Recruitment Examination to the said respondent Smt. Sadhana Khanna, such juniors of hers were issued letters offering them appointment prior to 01.07.1983, and they could, as a result, therefore, join before or on the date of 01.07.1983, the date of commencement of the Select List Year 1983-84, from which date the eligibility was to be counted, and it was only the respondent-department, which was to be blamed for sending her belatedly the letter offering her appointment after 01.07.1983, and, therefore, it was the Department which alone was to be blamed for that shortfall of 12 days in her qualifying service.
11. The Honble Apex Court observed that in terms of the above cited Office Memoranda dated 18.03.1988 (supra) and 19.07.1989 (supra), the gap of 12 days in the case of Smt. Sadhana Khanna was also to be considered for enabling her promotion, as, otherwise, a very incongruous situation would arise, inasmuch as the juniors will be considered for promotion, but the senior will not be considered. With these observations, the Honble Apex Court had found no merit in the appeal of Union of India, and had dismissed the appeal.
12. The applicants before us have sought to derive sustenance from this judgment for their ground that there cannot be a case in which seniors would not be considered for promotion but the juniors would be considered for promotion.
13. Thereafter, the DoP&T Guidelines of 18.03.1988 (supra), as were amended through the O.Ms dated 23.10.1989 (supra) and 25.03.1996 (supra) as cited above, were once again reviewed by the DOP&T, in consultation with UPSC, and a further revised Guidelines for framing/amendment/relaxation of Recruitment Rules was issued through Office Memorandum dated 31.12.2010 (Annexure A-5/colly), para-2 of which OM stated as follows:-
2. The existing instructions have been reviewed in consultation with UPSC and consolidated in the form of Guidelines on framing/ amendment/ relaxation of Recruitment Rules, a copy of which is enclosed. The number and the date of original OM has been referred in the relevant instructions for easy reference to the context. The Guidelines on framing/ amendment/relaxation of recruitment rules along with the relevant instructions and existing model RRs are available on the DoPT website www.persmin/nic.in* in the dynamic form of Handbook on Recruitment Rules 2010. This Department would continue to update these instructions from time to time.
14. Through this O.M., the last instructions issued in this regard on 25.03.1996 (supra) were further amended, and on the subject of Consideration of Seniors, it was ordered that the Para 3.1.2 of the original O.M. would stand amended further, and the following instructions were ordered to replace the earlier versions:-
CONSIDERATION OF SENIORS 3.1.2 It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, following note may be inserted in the recruitment rules/column in the schedule to the Recruitment Rules.
Note:
Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service. (Emphasis supplied).
15. Thereafter, the DOP&T issued a common Seniority List of Assistants of Central Secretariat Service (CSS, in short) for the year 2002 through their O.M. dated 18.01.2011 (Annexure A-6), and it was mentioned that the same has been prepared in compliance with the Honble Apex Courts judgments dated 07.05.2010 in Civil Appeal Nos. 4310-4311 of 2010 Union of India vs. Ramesh Ram & Ors, and the advice of the Establishment (Reservation) Section of DOP&T. The names of the applicants found place at the positions No.15, 30 & 36 respectively in this O.M. Thereafter, through their order dated 04.10.2011 (Annexure A-7), the DoP&T issued orders of promotion of Assistants to the grade of Section Officers of CSS, on ad-hoc basis. It was mentioned therein that the OM was being issued considering the fact that posts of Section Officers were lying vacant in various Ministries/Departments mainly on account of Court cases, and it had been decided that those eligible Assistants, who had completed 8 years of qualifying/approved service in the grade of Assistants upto Select List Year 2002 (General & SC) may be promoted to the grade of Section Officers on ad-hoc basis, to the extent of the vacant posts available in the Cadre Units upto 31.10.2011. Prior to that, all the eligible Assistants of ST category upto Select List Year 2002 had already been promoted as Section Officers on ad-hoc basis vide another OM dated 11.11.2010, with which we are not concerned in the instant case.
16. These ad hoc promotions as Section Officers were ordered to be subject to the following conditions:-
The period of ad-hoc promotion would be upto 31.12.2011 or till the regular Section Officers are made available, whichever is earlier;
The ad-hoc appointments shall not confer on the appointees any right to continue in the grade indefinitely or for inclusion in the Select List of Section Officers for regular appointment or to claim seniority in the Section Officers grade of CSS;
Ad-hoc appointments would continue till regular candidates in Section Officer Grade are available either through Seniority Quota or Limited Departmental Competitive Examination (LDCE). In the event of the ad-hoc appointees not qualifying for regular appointment in either of these two categories, they will be reverted to the Assistants Grade on availability of such regular officers from the date they (regular Section Officers) join duty in their respective cadre units allotted to them by this Department;
The effective date of ad-hoc promotion in respect of those found fit and clear from vigilance angle would be the date from which the officer concerned joins duty in Section Officers grade in his own cadre unit.
17. For completing this exercise, Paragraphs 3,4,5 & 6 of the O.M. had given the necessary directions for the procedure to be followed as follows:-
3. If any of the Officers, who is eligible for promotion in Section Officer grade on ad-hoc basis and is on deputation, he/she may be given option to revert within one month with a view to avail of the promotion on ad-hoc basis.
4. All the Cadre Units are requested to take urgent action to conduct DPCs in respect of all the Assistants within the Zone prescribed as at Para 2 above and to promote eligible Assistants to the grade of Section Officer on ad-hoc basis to the extent of vacancies available upto 31.10.2011. A copy of the appointment order may be endorsed to this Department.
5. The recommendations of the DPC in respect of the remaining eligible Assistants in the above zone, who are clear from vigilance angle and cannot be promoted by 31.10.2011 within the Cadre Unit due to lack of vacancies, may be forwarded to this Division by 15.11.2011 so that they could be promoted against existing vacancies in SO grade elsewhere.
6. It has also been decided that the period of ad-hoc I promotion allowed upto 30.09.2011, in the case of existing ad-hoc Section Officers as communicated vide OM No.6/9/2010-CS-I(S) dated 06.07.2011, may be extended upto 31.12.2011 subject to the conditions as prescribed in para 2 of this OM.
7. .(Not reproduced here).
18. When the consequent exercise was undertaken in the Ministry of Finance, Department of Expenditure, through OM dated 15.11.2011 (Annexure A-8), the applicant No. 3 was included in the list of selectees for ad hoc promotion as Section Officer at Sl. No.12, out of all the 14 persons whose ad hoc promotion was ordered. The abovementioned conditions (i), (ii), (iii), (iv) as at para 16/above were prescribed in their order of ad hoc promotions. The Applicant No.1 represented on 16.11.2011 that since the Ministry of Finance, Department of Expenditure has already promoted all the eligible Assistants including Direct Recruits as Section Officers, and he was also appointed as Assistant in the Ministry of Health and Family Welfare w.e.f. 04.10.2011 against the Select List Year 2002, on the basis of the very same Combined Graduate Level Examination 2002-2003, and he has also put in about 7= years of approved service in the Assistants grade, his case should also be considered for ad-hoc promotion. Even the Applicant No.2 also got similar relief, in the sense that through their Order dated 28.11.2011, the Ministry of Agriculture, Department of Agriculture and Cooperation, also accorded ad-hoc promotions to 12 Assistants as Section Officers, with the Applicant No.2 being included at Sl. No.9 of the list of those 12 persons through Annexure A-11. Within one month thereafter, the Applicant No.1 also got relief from the respondents, through Office Order dated 23.12.2011 (Annexure A-12), by way of his promotion to the post of Section Officer on ad-hoc basis, along with four other persons, and a reference was made that his promotion will be subject to the conditions as mentioned in the DoP&T OM cited above.
19. Thereafter, through Annexure A/13 dated 19.01.2012, which is impugned in this OA, the Cadre Controlling Authority of CSS Assistants were allowed to further continue the ad- hoc promotions in the grade of Section Officers upto 30.06.2012, since it was mentioned that the availability of regular Section Officers may take some more time, and it had been decided to extend the period of ad-hoc promotions granted earlier in the Section Officers grade upto 31.12.2011. This further continuation of such ad-hoc promotion for six more months was made subject to four conditions, as given in the impugned OM as below, exactly on the lines of the four original conditions as reproduced in para 16/above:-
i) The period of ad-hoc promotion would be upto 30.06.2012 or till the date of retirement of the officer or until further orders, whichever is earlier.
ii) The extension in the period of ad-hoc promotion shall be subject to vigilance clearance;
iii) The ad-hoc appointment shall not confer on the appointees any right to continue in the grade indefinitely or for inclusion in the Select List of Section Officers for regular appointment or to claim seniority in the Section Officers grade of CSS.
iv) Ad-hoc appointment would continue till regular candidates in Section Officer Grade are available either through Seniority quota or Limited Departmental Competitive Examination (LDCE). In the event of the ad-hoc appointees not qualifying for regular appointment in either of these two categories, they shall be reverted to the Assistants Grade on availability of such regular officers from the date the regular Section Officers join duty in their respective cadre units allotted to them by this Department.
20. In respect of the 1106 persons whose names were annexed as per the documents submitted by the applicants at pages 72-91 of the paper-book, with the instructions that any discrepancy in the Annexure may be brought to the notice of the DoP&T, actually the document as filed with the paper-book does not reflect as to whether the 20th page of the Annexure upto serial No.1106 was the last page of the Annexure or not, and as to whether there were some more names of any other pages, but that is not the subject in issue before us. It so happened that in that Annexure, the names of the present 03 applicants, who were also in the meanwhile promoted as ad hoc Section Officers, and were directly recruited Assistants of the Select List Year 2002, though appointed in 2005 (para 9/above), were excluded, while all the promotee Assistants of that Select List Year had been given such extension for further six months.
21. Immediately thereafter, the applicant No.2 gave a representation to his parent cadre, Ministry of Agriculture, Department of Agriculture and Cooperation, on 23.01.2012 through Annexure A/14, the applicant No.1 gave a similar representation to his parent cadre, Ministry of Health and Family Welfare, on 24.01.2012 through Annexure A/15, and the applicant No.3 also gave a representation to his parent cadre, Department of Revenue, on 25.01.2012 through Annexure A/16. A number of other people might also have represented in this behalf, but their cases are not before us. On many similar representations having been received, the DoP&T was prompted to issue the impugned clarificatory OM dated 31.01.2012 through Annexure A/17, which is the subject matter of this OA, in paras 2, 3 & 4 of which it was stated as follows:
2. A number of representations have been received in this Department from DR Assistants of 2002 batch claiming promotion to the grade of Section Officer on ad-hoc basis as their junior promotee Assistants have been promoted. Ministries/Departments have also sought clarification as to whether DR Assistants of 2002 batch, though not having 8 years approved service, could be promoted to SO (ad-hoc), in view of the fact that promotee Assistants of SL 2002 have already been promoted.
3. The matter has been considered in this Department. Vide this Departments OM No.6/9/2010-CS-I(S) dated 11th November, 2010, the Assistants upto SLs 1999 (General Category), upto SLs 2000 (SC Category) and upto SLs 2002 (ST Category) with 8 years approved service in the Assistants Grade were to be promoted to the grade of Section Officers on ad-hoc basis. The same condition of 8 years approved service in the grade of Assistants was reiterated when the OM NO.615/2011-CS-I(S) dated 04th October, 2011, was issued while extending the zone of ad-hoc promotion of the Assistants upto SLs 2002 (General & SC Category) to the grade of Section Officers on ad-hoc basis. The final exam of DR Assistants of 2002 having been conducted in September 2003, their approved service as per CSS Rules, 2009, commences only from 1st July, 2004. It is clarified that DR Assistants of 2002 batch have not fulfilled the required eligibility criteria of 8 years approved service for promotion to the grade of Section Officers on ad-hoc basis as per this Departments OM No.6/9/2010-CS-I(S) dated 11th November, 2010, and OM No.6/5/2011-CS-I(S) dated 04th October, 2011. DR Assistants of 2002, therefore, will be eligible for promotion to the grade of Section Officers on ad-hoc basis w.e.f. Ist July, 2012 only.
4. Keeping in view the above clarifications, all the Ministries/Departments, who have already wrongly promoted DR Assistants of 2002 batch to the grade of Section Officers on ad-hoc basis in contravention to this Departments OM No. 6/9/2010-CS-I(S) dated 11th November, 2010 and OM No.6/5/2011-CS-I(S) dated 04th October, 2011 are, therefore, requested to cancel their promotion ab-initio. These Assistants can again be considered for promotion on ad-hoc basis w.e.f. Ist July, 2012 (the date on which they become eligible) subject to fitness, vigilance clearance and availability of vacancies at that time.
(Emphasis supplied).
22. The applicants are aggrieved by the DoP&T to have taken a stand in this impugned OM dated 31.01.2012 that the required eligibility criteria of 08 years of approved service for promotion would be counted in their case only from 1st July, 2004, as the final exam for the Combined Graduate Level Examination for the Select List Year 2002 was conducted only in September, 2003, and, as per CSS Rules, 2009, their approved service can therefore commence only from 1st July, 2004 and 08 years from that date would be computed on 1st July, 2012 only. In saying so, the applicants before us have forgotten that all three of them had been actually appointed as Assistants only in the year 2005, that too much after 01.07.2005, as per the details given in para 9/above.
23. The applicants have taken a number of grounds in filing this OA. They have tried to take shelter behind the fact that the main examination for direct recruitment for the Select List Year, 2002, held in September, 2003, was covered by the definition under clause 2 (c) of the earlier CSS Rules, 1962, which clause has remained unchanged in the new CSS Rules, 2009, also, and an interpretation that their qualifying service will be counted therefor from 1st July, 2004, only, will give an undue advantage to the promotee Assistants of the Select List Year 2002, who have been held to have completed their 08 years of approved service as on 30.06.2010, or prior to 01.07.2010. They have termed the cancellation of their ad hoc promotion as void ab initio, illegal and arbitrary in nature, violative of their rights under Articles 14 & 16 of the Constitution of India, and being against the Honble Apex Courts judgment in R. Prabha Devi & Ors. (supra) decided on 08.03.1988. They have also stated that such an action is also against the various DoP&T OMs from 18.03.1988 onwards upto 25.03.1996, as already discussed in detail above. They have submitted that even after about 23 years of the judgment of the Honble Apex Court in R. Prabha Devi & Ors. (supra), and 15 years after the directions issued by the DoP&T itself to insert the note in the Recruitment Rules as per the OMs mentioned in detail above, the DoP&T itself had not inserted the abovementioned Note in the Recruitment Rules of CSS 1962, and had not even incorporated it in the new Rules of CSS implemented since 2009, the CSS Rules, 2009, though it has been done in most of the Services of the Central Government already by the respective Cadre Controlling Authorities.
24. The applicants have relied upon an RTI reply received by one of their colleagues from the DoP&T itself, which has been placed in the OA at Annexure A/10 (pages 64 & 65 of the paper-book), in which DoP&T itself had admitted on 22.11.2011 that its instructions regarding the provision of consideration of seniors in case juniors are being considered for promotion to be incorporated in the Recruitment Rules are applicable in respect of all civil posts/services under the Central Government. They have further submitted that some Ministries and Departments have, in view of the express guidelines of DoP&T dated 25.03.1996, considered the Direct Recruit Assistants of Select List Year, 2002, borne on their cadre, for promotion to the post of Section Officers along with their juniors, who have completed the requisite eligibility service, and had granted them promotions to the posts of Section Officers upto 31.12.2012. Therefore, denying it to the applicants alone has created a situation of hostile discrimination against them, requiring indulgence on the part of this Tribunal. They have further raised the ground that if this Tribunal does not interfere, the applicants will be reverted back to their lower post of Assistants, and will be forced to work in subordination of their juniors. The applicants have challenged the action of the respondents also on the basis of Honble Apex Courts judgment in Balakrishnan v. Delhi Administration, 1989 (6) SLR 35, in which the Honble Apex Court has held as follows:
In service there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be conformed or promoted without considering the case of senior. Any deviation from this principle will have demoralizing effect in the service part from being contrary to Article 16 (1) of the constitution. (Emphasis supplied).
25. The applicants have taken the further ground that since the above OMs as issued are applicable across the board, and are applicable to all services of Govt. of India, they have to be taken as if it is framing of subordinate legislation by the Executive under Article 73 of the Constitution of India, the applicability in which to all civil posts/services under the Central Government has been accepted by the DoP&T itself also in response to the RTI application referred to above. On the specific issue of the interpretation of the DoP&T OM dated 18.03.1988 (supra), the applicants have cited the Full Bench judgment of this Tribunal in OA No.3278/2010-Mrs. Garima Singh & Ors. Vs. Union of India, reported in 2011 Indlaw CAT 614, in which it has been held as follows:-
the first DOP&T OM dated 18.3.1988, it may be recalled, came into being immediately after the decision of the Honble Supreme Court in R. Prahadevis case (supra). The same came into being to take care of seniors so that they may not be superseded by their juniors because they were not having the requisite eligibility criteria provided under the rules. The said criteria vide OM dated 25.3.1996 is to be reduced only by two years. The Government has slept over the matter insofar as, the very department, i.e., DOP&T, which is the nodal agency for all Government employees, for a period of almost two decades. Meanwhile, as mentioned above, the Note came to be inserted in some other services, whereas in other services relaxation in rules has been given. In the circumstances as mentioned above, if, therefore, the applicant was to seek a writ in the nature of mandamus directing the respondents to insert the Note in the service rules, could there be any meaningful resistance to such a writ by the Government? We are conscious that to make laws is in the exclusive domain of the legislature, but the present case is not where the applicant may have sought directions to be issued to the Government to amend the rules. It would have been simple case to act upon the decision already taken by the Government so as to amend the rules. The decision to amend the rules having already been taken, the applicant would have been well within her right to seek a mandamus directing the respondents to insert the Note in the Rules of 1962.
26. The applicants have pointed out that in the same judgment, it has been further held as follows:-
In our view, if the applicant or other equally situate person were to seek a writ in the nature of mandamus directing the respondents to incorporate the Note mentioned in the OMs, as mentioned above, such a claim could not have been resisted by the Government. In the present case, there is an additional reason why such a claim could not be resisted by the Government, and the same is that incorporating the Note in the rules of other services by virtue of the same very OMs, giving relaxation in rules, and not doing so in the Rules of 1962, would have been a case of invidious discrimination, and thus violative of provisions contained in Article 14 of the Constitution. The directives contained in the OMs are applicable across the board, i.e., applicable to all services of the Government of India, and for that reason, have to be taken as if the legislation by the executive under Article 73 of the Constitution. Moreover, it is not open to the Government to say that they would apply the OMs as regards other services but as regards the Central Secretariat Service they would not do so, and rather take a decision that the same unless incorporated in the rules would be of no consequence. It is not, in our view, open to the Government to take such a stand in the peculiar facts and circumstances as have been fully detailed above. Last but not the least, the OMs cannot be treated as waste paper; they have to be given their meaning as incorporated therein.
27. In the result, the applicants had prayed for the reliefs as already mentioned in para 2/above.
28. Respondents filed two sets of counter replies. They first filed a so-called short reply dated 06.03.2012 (pages 110 to 114 of the paper book), and thereafter, on 20.04.2012, they filed further counter affidavit (pages 171 to 196 of the paper book). The stand of the respondents in the short reply affidavit dated 06.03.2012 was that while the applicants who were the Direct Recruit Assistants of Select List Year 2002 batch, but they could join their service only in the year 2004, whereas the promotee Assistants of that Select List Year 2002 could join in the same year 2002. Thereafter, the latter had acquired the requisite number of years of qualifying service for promotion to the next higher grade, while the former could not gather the requisite work experience, and, therefore, they have been denied promotion. The respondents did not point out that the three applicants before us had joined as D.R. Assistants only in the year 2005, that too much after 01.07.2005.
29. It was submitted that as per the CSS Rules, 2009, the approved service in relation to any grade has been defined as follows as per the Recruitment Rules annexed by them at Annexure R-2:-
i) For Promotees:- 1st July of the year for which recruitment was made.
ii) For Direct Recruitment:- 1st July of the year following the year in which the examination for direct recruitment was held.
30. It was further pointed out that out of the 41 Cadre Units, 8 Cadre Units had erroneously promoted 19 Direct Recruit Assistants of 2002 batch to the posts of Section Officers on ad-hoc basis, even though as on the date of such promotions, these officers did not have the requisite 8 years of approved service. Upon coming to know about the above fact, the DoP&T had sought clarifications from the various Cadre Units/Individual Employees, and while granting further extension to all the existing ad hoc Section Officers beyond 31.12.2011, and upto 30.06.2012, the names of those 19 officers, who had been erroneously promoted earlier on ad hoc basis, were omitted from the list issued by the DoP&T through the impugned OM dated 19.01.2012.
31. It was submitted that this decision to cancel the earlier ad-hoc promotions of these Direct Recruit Assistants was taken in consultation with the concerned authorities, and communicated to them through the OM dated 31.01.2012, which has been impugned in the present O.A. It was further submitted that in response to the instructions of DoP&T, two Ministries, i.e., Ministry of Science and Technology, and Ministry of Shipping, have already cancelled the ad hoc promotion orders issued by them through their Notifications/Office Orders dated 08.02.2012 and 07.02.2012 respectively, which were produced at Annexure R-6 & R-7 respectively. They had, therefore, prayed that the Interim Relief dated 08.02.2012 granted to the applicants is liable to be vacated, as the continuance of the applicants in the same post will cause administrative problems in the working of the Departments, and they had thus prayed for vacation of the stay granted in favour of the applicants.
32. It is seen that this prayer of the respondents for vacation of the Interim Relief granted to the applicants was never allowed till the final hearing of the matter.
33. In the second counter reply filed by the respondents on 20.04.2012, it was contended that through the DoP&T OM dated 04.10.2011, the zone of consideration for ad- hoc promotions from Assistants to Section Officers of CSS itself was extended, and, resultantly, the Assistants with 8 years approved service up to the Select List Year 2002 were allowed ad-hoc promotion till 31.12.2011, subject to vigilance clearance. It was pointed out that the applicants were not eligible for promotion as on the date of issuance of O.M. dated 04.10.2011, as on that date they did not possess the requisite qualifying approved service of 8 years, and, therefore, the ad-hoc promotions given to the applicants by their respective cadre units were, therefore, invalid as per the very definition of approved service as given in the CSS Rules, 2009.
34. It was pointed out that such a mistake was committed only in 8 out of 41 cadre units, in which the Direct Recruit Assistants were erroneously so promoted on ad-hoc basis, even though they did not have the requisite approved qualifying service of 8 years. It was submitted that when these erroneous ad-hoc promotions were brought to their notice, the DoP&T had issued a clarification vide O.M. dated 31.01.2012, clarifying that the DR Assistants of Select List Year 2002, whose approved qualifying service itself begins from 1st July, 2004, would become eligible for such promotions only eight years thereafter on 01.07.2012, and not before that. Three of the cadre units realized their mistake, and cancelled the promotion orders, but the remaining five cadre units who had given such erroneous ad-hoc promotions did not do so because of the present OA filed by the three applicants before us, and because another OA No.706/2012 had also been filed by 13 other similarly placed candidates, and interim orders had been passed by the Tribunal in that O.A. also on 08.02.2013, directing the Government not to pass any adverse orders against the applicants till the next date of hearing.
35. It was pointed out that though the applicants have taken shelter behind the DoP&T OM No. AB-14017/12/97-Estt (RR) dated 24.09.1997 (Annexure R-1), which was issued after the above cited Honble Apex Courts judgment in R. Prabha Devi & others (supra) (mentioned in Para-2 & 7 above), in which the law had been laid down as follows:-
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post.
(Emphasis supplied).
36. It was pointed out that through this O.M. dated 24.09.1997 (Annexure R-1), the cadre units had been asked to take conscious decision to amend the relevant recruitment Rules, but since the CSS Rules, 2009, do not contain a senior-junior clause, it was contended that this Apex Court judgment in R. Prabha Devi & Others (supra) does not support the case of the present applicants before us.
37. It was submitted that as per clause 2 (c) of CSS Rules, 2009 (Annexure R/II), the definition of approved service in relation to any grade has since been redefined, as already reproduced by us in Para-29 above, and, therefore, the applicants, who were directly recruited as Assistants in the Select List Year, 2002, selected through the Combined Graduate Level Examination, 2002, conducted by the Staff Selection Commission in September, 2003, would be able to count their approved service only from 1st July, 2004, whereas for promotee Assistants of 2002 Select List Year, the approved service starts from 1st July 2002 itself. Therefore, the official respondents contended that the promotee Assistants of Select List Year 2002 have to be deemed to have completed 8 years of approved service as on 01.07.2010, and were, therefore, eligible for promotion as on 04.10.2011, the date of issuance of DoP&T O.M. extending the zone of consideration for ad-hoc promotions, on which date the Direct Recruit Assistants of Select List Year 2002 batch were not eligible, as they were to be deemed to have completed 8 years of approved service from 01.07.2004 onwards only on 1st of July 2012. It was submitted that the applicants themselves have accepted at Page-1 of the OA in the Compilation-I of the List of Date and Events that they had completed only 7 = years of approved service in the Assistants grade in their respective cadre units. It is, therefore, clear that they did not have 8 years approved service, and the DoP&T, therefore, rightly had held that their names could not be included while issuing extension order in respect of the ad-hoc promoted Section Officers on 19.01.2012.
38. It was further submitted that while the applicants have quoted the DoP&T OMs dated 18.03.1988 (supra), dated 23.10.1989 (supra) and dated 25.03.1996 (supra), but they have conveniently failed to cite the last OM in this series vide OM dated 24.09.1997, which was issued citing the very judgment of the Honble Apex Court in Ms. R. Prabha Devis case (supra).
39. The respondents further argued that the cited Office Memoranda do not purport to be self-operating, inasmuch as they had only proposed to the respective Cadre Controlling Authorities that an amendment be carried out to the Recruitment Rules, by the respective Rule making authorities, and, therefore, the Memoranda as cited could have been given effect to only by way of an amendment of the Recruitment Rules, which has not been done in the case of Central Secretariat Service.
40. The respondents had then explained the facts of the case of Smt. Sadhana Khanna (supra), as already discussed in para 10/above. In that case the Honble Apex Court had, in view of the DoP&T OM dated 18.03.1988 (supra), and 19.07.1989 (supra), directed that her case may also be considered for promotion, as, otherwise a very incongruous situation would arise, namely the junior will get the promotion but the senior will not. The official respondents further submitted that the case of the present applicants, however, stands on an entirely different footing from that of the case covered by the judgment in Smt. Sadhana Khanna (supra), which was in personam and not in rem, and it cannot be applied in general. The official respondents further tried to distinguish the case of the present applicants from that of Smt. Sadhana Khanna (supra), inasmuch as that case related to a reference to seniority between a Direct Recruit Assistant, with that of another Direct Recruit Assistant whereas in the instant case the applicants are Direct Recruit Assistants, who have sought to be compared with the promotee Assistants, and hence the judgment of Smt. Sadhana Khanna (supra) is not applicable in the case of the present applicants.
41. It was submitted that many representations were received in the DoP&T from individuals/cadre units regarding promotion of Direct Recruit Assistants of 2002 Batch for seeking relaxation/clarification of the 8 years approved service criteria, including that of the Applicant No.1, whose representation was received through the Health Ministry on 28.11.2011 and 14.12.2011 (Annexure-VI and VII). However, without waiting for a clarification from DoP&T in regard to the representations, the ad-hoc promotion orders were issued by their respective Cadre Controlling Units in respect of Applicant No.3 on 15.11.2011, in respect of Applicant No.2 on 28.11.2011, and in respect of Applicant No.1 on 23.12.2011. It was submitted that only when these erroneous promotion later came to the notice of DoP&T, a decision was taken at the level of Honble Minister-in-charge of DoP&T not to relax the criteria of 8 years of approved service for promotion, in contravention of the Recruitment Rules, and the necessary clarification in response to the representations received was issued, by directing the concerned Cadre Controlling Authorities to cancel these ad-hoc promotion orders of the applicants, which cancellations are now under challenge, and impugned in the present O.A. The official respondents had also pointed out that the instructions contained in OM dated 31.12.2010 could not have been incorporated in the CSS Rules 2009, which were issued nearly two years earlier, on 27.02.2009.
42. The official respondents had further justified having directed the names of the applicants to be excluded from the OM dated 19.01.2012, while conveying approval for extension of ad-hoc promotions beyond 01.01.2012, upto 30.06.2012, only since they were erroneously promoted by the respective Cadre Controlling Units, having without their completed 8 years of approved service.
43. The official respondents had also cited the Honble Apex Courts judgment in Balakrishnan vs. Delhi Admn (supra), which was relied upon by the applicants also (cited in para-24/above), but it was submitted that since the judgment has laid down that there could be only one norm for confirmation or promotion of persons belonging to the same cadre, and since the DoP&T has resorted to only one norm, i.e., 8 years of approved qualifying service for all categories of Assistants, whether Direct Recruits or Promotees, for promotion to the grade of Section Officers, the Honble Apex Courts judgment actually goes against the applicants themselves, and supports the stand taken by the DoP&T.
44. Again in the context of the case of Ms. Garima Singh (supra) (cited by us in para-22/above), it was explained that Ms. Garima Singh was one of the Direct Recruit Section Officers of 1996 Civil Services Examination, and had only 6 years of approved service as on 01.07.2003, and was, therefore, not eligible for inclusion in the Under Secretary Select List (USSL, in short) 2003. On completion of 8 years of her approved qualifying service on 01.07.2005, she was included in USSL 2005. But, as many of her juniors, who were Section Officers of promotee quota, and had already achieved 8 years of qualifying approved service as on 01.07.2003 had been included in USSL 2003, she had prayed before this Tribunal to quash the result of USSL 2003, and had prayed that she and other directly recruited officers should also be placed in the Select List in the same years in which their juniors were placed by relaxing the eligibility criteria. The Tribunal had in its order dated 09.05.2011, as reproduced in part in Para-25 above, ruled in favour of the applicant, and had directed DoP&T to prepare a fresh Select List for USSL 2003, for promotion of Section Officers to Under Secretary grade, by considering the cases of those Direct Recruits also who were short of qualifying service by two years. The Tribunal had also directed to reduce the eligibility criteria as regards Direct Recruits by two years in respect of only those who may be falling short of the eligibility criteria by two years, and not others. It was pointed out by the official respondents that this decision of the Tribunal had not been implemented, and that Writ Petition had been filed before the Honble Delhi High Court against the said judgment, on the directions of the Honble Supreme Court (Annexure R/VIII). It was further submitted that this order of the Tribunal in respect of redrawing the Under Secretary Select List of 2003 only is in a case of regular and substantive promotion, and not ad-hoc promotions, and, therefore, has no bearing on the case of the present applicants, who are only praying for ad hoc promotions, and whose case, therefore, stands on a different footing altogether.
45. It may be noted by us here that in the said case of Ms. Garima Singh, the Union of India had directly approached the Honble Apex Court in Union of India vs. Garima Singh & Others in Special Leave to Appeal (Civil) CC No.1890/2012, in which, on 13.02.2012, the Honble Apex Court had passed the following orders:-
Delay condoned.
We are not inclined to entertain the Special Leave Petition against the order dated 9th May, 2011, passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No.3278 of 2010, by-passing the High Court, more so, when it is stated that writ petitions against the same very judgment are pending disposal before the High Court. The submission of Mr. Rohinton F. Nariman, learned Solicitor General, that since the conflict of view in two judgments of this Court, viz., R. Prabha Devi and others versus Government of India and ors. [(1988) 2 SCC 233] and Union of India versus Sadhana Khanna (Smt.) [ (2008) 1 SCC 720], can be resolved only by this Court and, therefore, this petition deserves to be entertained, also does not convince us, inasmuch as while taking a final decision in the writ petitions, the High Court will undoubtedly take into consideration both the aforesaid decisions.
The Special Leave Petition is dismissed accordingly.
(Emphasis supplied).
46. In regard to the contention of the applicants that the guidelines/instructions issued through the above cited Official Memoranda required to be dealt with in the Recruitment Rules, it was submitted that this matter is entirely in the domain of the Government, and the applicants do not have the right of seeking directions from the Tribunal to incorporate provisions in the relevant Recruitment Rules. Therefore, it was prayed that this Tribunal may be pleased to dismiss the OA, with exemplary costs.
47. The applicants filed a rejoinder thereto on 10.09.2012. Through this rejoinder, apart from denying all the averments and contentions taken by the respondents in the counter affidavit, and praying for the contents of the OA to be treated as a part and parcel of the rejoinder affidavit, which contents are not being repeated, the applicants had pointed out that a recent development has taken place, whereas the respondents have since issued an order dated 31.07.2012, whereby they have promoted officers of Grade-I (Under Secretary) of CSS to the Selection Grade (Deputy Secretary) on ad hoc basis for a period of one year, or until further orders, whichever is earlier. It was pointed out that this O.M. had been issued in compliance of the order passed by the Tribunal in the case of Garima Singh (supra), which has been relied upon by the present applicants also. It was pointed out in this O.M. that the respondents have considered and granted promotion to the seniors along with their juniors, even though they were falling short of the required eligibility service criteria, and the applicants had enclosed a copy of the order as Annexure-RA/1 to their rejoinder.
48. It was, therefore, submitted that the conduct of the respondents by excluding the names of the present applicants in Office Memorandum dated 19.01.2012, and by not granting extension of their ad hoc promotions as Section Officers upto 30.06.2012, and rather directing through Office Memorandum dated 31.01.2012, to cancel the ad hoc promotions of such Direct Recruit Assistants of 2002 Select List Year batch who had been promoted to the grade of Section Officers on ad hoc basis, is, therefore, illegal and arbitrary in nature, and violates their rights under Articles 14 & 16 of the Constitution of India. It was, therefore, prayed that in the above facts and circumstances of the case, the OA may be allowed.
49. We must here reproduce the contents of this Annexure- RA/1 dated 31.07.2012, the issuance of which was pointed out by the applicants through their rejoinder, as follows:-
No.4.14/2011-CS-1(D) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Lok Nayak Bhavan, New Delhi 31st July, 2012 ORDER Subject: Promotion of Officers of Grade-I (Under Secretary) of the Central Secretariat Service (CSS) to the Selection Grade (Deputy Secretary) on ad-hoc basis.
Sanction of the President is hereby accorded to the appointment of officers of Grade-I (Under Secretary) of the Central Secretariat Service, whose names are given in the Annexure, to the Selection Grade (Deputy Secretary) purely on ad-hoc basis, initially for a period of one year or until further orders, whichever is earlier.
2. The aforesaid ad-hoc appointments are subject to the following conditions:-
(i) The ad-hoc appointments are subject to the final outcome of the pending Writ Petition No.4097/2011 (Arun Gaur Vs Garima Singh & Ors.), W.P. No.4616/2011 (V.S. Pandey & Ors. Vs. Garima Singh & Ors.), W.P. No.7619/2011 (UPSC Vs. Garima Singh & Ors.), W.P. No.2176/2012 (Union of India Vs. Garima Singh & Ors.) and other connected Writ Petitions Nos. W.P.(C) 2523/2012 (Union of India Vs. Anant Kishore Saran), W.P. (C) 2524/2012 (Union of India Vs. Shersha and Anr.), W.P. (C)2525/2012 (Union of India Vs. Syed Eram Rizvi and Anr.), W.P. (C)2526/2012 (Union of India Vs. Sandeep Kumar Gupta), W.P.(C) 2527/2012 (Union of India Vs. Soumya Chattopadhyay and Anr.), in the High Court of Delhi and the (SLP(C)No.9653/2012 (Syed Ekram Rizvi and Ors. Vs. Union of India & Ors.), in the Supreme Court and also any other order by any competent court in any of the concerned matters, apart from the above.
(ii) The ad-hoc appointments shall not bestow on the incumbents any claim for regular appointment to the grade.
(iii) The service rendered on ad-hoc basis in the grade would not count for the purpose of seniority in that grade or for promotion to the next higher grade.
(iv) The appointments on ad hoc basis shall be effective from the date of assumption of charge of the post of Deputy Secretary in the Ministry/Department to which the officers have been allocated.
3. On their ad-hoc promotion, the officers whose names are indicated in the Annexure are allocated to the Ministries/Departments as shown against their names. If an officer who is presently on deputation fails to join within 15 days from issue of this order, his ad-hoc appointment shall stand cancelled automatically.
4. The Ministries/Departments shall relieve/retain the officers as given in the annexure to this order on this ad-hoc promotion while ensuring that the officers are clear from vigilance angle. In case of pendency of such proceedings, the matter may be reported to this Department immediately.
5. The ad-hoc appointments shall not confer any right on the incumbents to continue in the grade indefinitely and may be terminated at any point of time without giving any reasons therefore.
6. A copy of the notification issued may be endorsed to this Department for records.
Sd/-
(Utkaarsh R. Tiwaari) Director. (Emphasis supplied).
50. It is seen that the orders issued for appointment of the 158 persons whose names have been enclosed in Annexure to the said order dated 31.07.2012 were clarified to be only ad hoc appointments, subject to the conditions as given in Para-2 (i), (ii), (iii) & (iv) of that order as reproduced above. The Para-2 (i) actually gives a list of all the pending cases as on today concerning the level of seniority higher than that of the applicants before us, and does not list the instant case, which concerns a lower level of seniority. It is seen that in the first para, Para-2 (iii) and in Para-5 of this order, the respondents have again and again repeated that such promotions are purely on an ad-hoc basis, initially for a period of one year, or until further orders, whichever is earlier, and that this shall not bestow on the incumbents any claim for regular appointment to the grade, and the service rendered on such ad hoc basis in the grade would not count for the purpose of seniority in that grade, and for promotion to the next higher grade, and that such promotion shall not confer any right on the incumbents to continue in the grade indefinitely, and that such ad hoc appointments may be terminated at any point of time without giving any reasons therefor.
51. Heard. The case was argued very vehemently, and as mentioned above also, written submissions were filed by the applicants on 24.01.2013, after the case was heard in detail and reserved for orders on 16.01.2013. Later on, since some of the submissions made by the applicants were not at all countered by the respondents, and the applicability of the judgment of the Honble Apex Court in Union of India & Ors. vs. N.R. Parmar & Others (and the four related cases): 2012 (1) SCALE 437=JT 2012(12) SC 99, decided by the Honble Apex Court on 27-11-2012, a copy of which had been annexed to the written submissions, to the facts of the instant case had not been commented upon by the respondents, it was considered necessary for the matter to be kept for being spoken to, so the matter was again listed on 24.10.2013, and further heard, and was then reserved for orders.
52. During arguments on 16.01.2013, reliance was placed on Para 18 & 24 of the Full Bench judgment of this Tribunal dated 09.05.2011 in the case of Mrs. Garima Singh (supra), which had stated as follows:-
18. On a pure and simple question of law, the respondents endeavour to show that instructions/guidelines/OMs have no statutory character, and unless such instructions etc. may not have been incorporated by way of amendment in the statutory rules, the same would be of no meaning and consequence. The respondents have a plethora of case law to cite in support of their contention as mentioned above. We may make a mention of some judicial precedents relied upon by the respondents on that behalf. In T. N. Housing Board v N. Balasubramanium & others [(2004) 6 SCC 85], it was held that executive instructions providing that where feeder categories carried different pay scales and no quota was fixed for promotion, then persons in higher pay scales should be given preference, and that executive instructions could not be applied to give preference to Chief Head Draftsmen/Head Draftsmen with less than the prescribed minimum length of service over eligible Junior Engineers. Briefly, the facts of the case are that under provisions of T.N. State Housing Board Regulations framed under T. N. State Housing Board Act, 1961, 25% of the posts of Assistant Executive Engineers in the Housing Board were to be filled up from amongst Junior Engineers with minimum of ten years of service, and Chief Head Draftsman/Head Draftsman with minimum of fifteen years of service. Panel for such promotions was prepared in which names of the respondent-Draftsmen were not included due to lack of requisite length of service. The High Court held that the executive order dated 13.10.1984 would be applicable and directed the Board to create supernumerary posts to promote the respondents as Assistant Executive Engineers. Referring to regulation 28 of the Regulations, the said executive order provided that where no quota was fixed for feeder categories carrying different pay scales, persons in higher pay scale were to be given preference. The order of the High Court was challenged in the Supreme Court which held that for Junior Engineers and Draftsmen, eligibility criteria had been laid down in the Regulations. Admittedly, the said eligibility criteria was mandatory in nature and the validity thereof had not been questioned. It was held that once, the eligibility criteria was considered to be a pre-requisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable, and that once, it was held that relying on the basis of the executive instructions in terms of regulation 28(a), the Draftsmen who had been getting higher salary were to be given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose, which consequence would lead to an absurdity, and, therefore, the executive instructions could not be given effect to. In R. S. Sharad & another v Union of India & others [WP(C) No.2178 of 1996, decided on 8.5.2008, reported as 152 (2008) Delhi Law Times 427 (DB)], a Division Bench of the High Court of Delhi held that administrative instructions issued by the Government could not supersede the rules unless the instructions are incorporated in the rules. There would be no need to refer to all the judgments relied upon by the respondents, as there cannot be any dispute that the executive instructions, particularly when the same may be against the rules, cannot be applied; the same have to be ignored. In the case in hand, however, we are of the considered view that the judgments referred to above and others which have been relied upon by the respondents, may not be applicable. DOP&T OMs dated 18.3.1988, 19.7.1989, 25.3.1996 and 24.9.1997 can well be considered as if issued by the executive of the Union in the legislative powers conferred upon it by Article 73 of the Constitution. They deal with uncovered issues, i.e., a situation where a junior may be considered for promotion over and above his seniors, and where a senior may not have the eligibility criteria. Such a situation is not covered under the Rules of 1962. The OMs may not specifically make a mention of Article 73, but it is too well settled a proposition of law that non-mentioning of the provision or making mention of wrong provision would not make any difference. The real test is that there should be a power to do what has been done by the legislature or the executive. There is a mandate in the OMs that all cadre controlling authorities should insert a Note in the respective recruitment rules to the effect that whenever a junior who has completed the requisite eligibility service is considered for promotion, then all his seniors should also be considered. The directive issued by the DOP&T has admittedly been complied with by many cadre controlling authorities by inserting the Note in the respective recruitment rules, and wherever such Note has not been incorporated, the Government has been freely making resort to exemption or relaxation in the rules as regards eligibility. While dealing with the subject of relaxation involved in the present case, we will make a detailed mention as regards the consistent stand of the Government in that regard. At this stage, we may only refer to the note dated 14.11.2008 available on records, wherein it is clearly recorded that DOP&T has been adopting a consistent policy of allowing up to a maximum of two years relaxation in qualifying service in promotions in all services, and that UPSC too has been accepting this from time to time in accordance with DOP&T OM dated 25.3.1996. It has also been mentioned that OM dated 24.9.1997 has been issued by way of clarification on the basis of judgment of the Apex Court in R. Prabhadevis case (supra), and that from a perusal of the judgment of the Supreme Court and OM aforesaid, it would be clear that it is neither a direction of the Supreme Court nor the intent of the DOP&T to supersede its earlier circular dated 25.3.1996, and that in fact, DOP&T has consistently adopted the policy of allowing relaxation of up to two years of service as qualifying service in case of promotions in all services. The applicant has indeed brought on record rules of at least two services where the note as ordained above in the OMs aforesaid has been inserted. The applicant has also brought on record some orders giving relaxation in rules as regards eligibility where juniors were to supersede seniors. Article 73 of the Constitution reads as follows:
73. (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend o the matters with respect to which Parliament has power to make laws; and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
provided that the executive power referred to in sub-cause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
Perusal or provisions contained in Article 73 would manifest that the power of the Union shall extend to matters with respect to which Parliament has power to make laws. By virtue of clause (1)(a), the executive power is co-extensive with the legislative power of the Union Parliament. It has been held by the Supreme Court that under the Constitution the functions of the executive are not confined to the execution of laws made by the legislature already in existence. Articles 73 and 162 indicate that the powers of executive of the Union and of a State are co-extensive with the legislative power of the Union and of a State, as the case may be. While the executive cannot act against the provisions of a law, it does not follow that in order to enable the executive to function relating to a particular subject, there must be a law already in existence, authorizing such action. Reference in this connection may be made to judgments of the Honble Supreme Court in Naraindas Indurkhya v State of Madhya Pradesh & others [AIR 1974 SC 1232] and M/s Bishamber Dayal Chandra Mohan, etc. v State of Uttar Pradesh & others [AIR 1982 SC 32]. Whereas, the first judgment deals with Article 162 of the Constitution, which is as regards the extent of executive power of State, the second judgment referred to above deals with Article 73, which is as regards the extent of executive power of the Union. In M/s Bishamber Dayal (supra) it has been held that the State in exercise of its executive power is charged with the duty and responsibility of carrying on the general administration of the State, and so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed, and further that if there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. This Tribunal in the matter of Sadhana Khanna (supra) has already held that the OMs which are directives, have to be read with the rules, and the judgment, as mentioned above, has been confirmed by the highest Court of the land. This Tribunal, in view of the very instructions subject matter of dispute which, it was held by the Tribunal, are to be read along with the recruitment rules, so confirmed by the Apex Court, may not have much choice but for to follow the said precedence. We may, however, give additional reasons as to why the instructions relied upon have to be read along with the rules. In addition to that these OMs are directives and even though Article 73 of the Constitution may not have been specifically mentioned, the same can be treated to have come into existence by powers exercised by the executive under Article 73, the first DOP&T OM dated 18.3.1988, it may be recalled, came into being immediately after the decision of the Honble Supreme Court in R. Prahadevis case (supra). The same came into being to take care of seniors so that they may not be superseded by their juniors because they were not having the requisite eligibility criteria provided under the rules. The said criteria vide OM dated 25.3.1996 is to be reduced only by two years. The Government has slept over the matter insofar as, the very department, i.e., DOP&T, which is the nodal agency for all Government employees, for a period of almost two decades. Meanwhile, as mentioned above, the Note came to be inserted in some other services, whereas in other services relaxation in rules has been given. In the circumstances as mentioned above, if, therefore, the applicant was to seek a writ in the nature of mandamus directing the respondents to insert the Note in the service rules, could there be any meaningful resistance to such a writ by the Government? We are conscious that to make laws is in the exclusive domain of the legislature, but the present case is not where the applicant may have sought directions to be issued to the Government to amend the rules. It would have been simple case to act upon the decision already taken by the Government so as to amend the rules. The decision to amend the rules having already been taken, the applicant would have been well within her right to seek a mandamus directing the respondents to insert the Note in the Rules of 1962. We may refer in that regard to a recent decision recorded by us in the matter of Dr. Balram Airan & others v All India Institute of Medical Sciences & others (OA No.1080 of 2009 decided on 24.9.2009). Brief facts of the said case reveal that there had been a long pending demand of the faculty members of AIIMS and other centrally-managed institutions to increase their age of retirement. Deliberations in that regard spanned over a considerable time resulted into a cabinet decision to increase the age of retirement of faculty members from 62 to 65 years. The directive of the Government would, however, be effective only if the regulations providing age of superannuation were to be amended. This exercise was to be gone into by the governing body of AIIMS. Despite the fact that the Cabinet had approved the increase in age of superannuation from 62 to 65 years on 5.6.2008, the Institute would not incorporate necessary amendment in its regulations. The faculty members became apprehensive that if necessary amendment was not brought about in the concerned regulations, they may have to quit on attaining the age of 62 years. The applicant in the case aforesaid, of course, made a grievance as regards a faculty member who was given extension in age before the Cabinet decision was taken to enhance the age of retirement, but he was joined by the association of doctors, who claimed a direction to be issued to the respondent Institute to forthwith amend the concerned regulations to provide retirement age at 65. The OA as regards the applicant who complained about extension in age of Dr. A. Sampath Kumar was found to be genuine. The grievance of the association that AIIMS was bound under law to bring about amendment in the regulations was also found to have merit and a direction in that regard came to be issued by us in our judgment dated 24.9.2009 to the AIIMS to incorporate the amendment in the regulations. The Government sought opinion on our judgment from the Solicitor General of India, who opined in tune with the decision taken by us. The said judgment has since been implemented. The amendment has been brought about retrospectively from the date when the Cabinet decision to increase the age of retirement of faculty members from 62 to 65 years. A single Bench of the Honble High Court of Delhi in G. S. Bhogal v Union of India [CW No.4227 of 1998 decided on 31.1.2000, reported as 84 (2000) DLT 313] held that when the Central Government had accepted the recommendation of enhancing age of retirement from 58 to 60 years, failure to amend the rules according to the recommendation would not make any difference, and there would be no discretion left in the Corporation but for to accept the recommendation, and the concerned employee would be entitled to continue in service till the age of 60 years. We may refer to the relevant observations made on that behalf. The same read, thus:
It is no doubt true that the rules of the Corporation have not yet been amended and in terms of paragraph 2 of the Office Memorandum the decision of the Central Government would not come into effect till the rules are amended. But, in my view, the Corporation was not entitled to keep the decision of the Central Government in abeyance by not amending its rules, although, the Office Memorandum had been received, by the respondent No.1 Corporation on 10th June, 1998, so as to deprive the petitioner of the benefits thereof. I am, therefore, inclined to agree with Mr. Gupta that having regard to the decision taken by the Central Government at a time when the petitioner was still in service, the petitioner should not be deprived of the benefit of the said decision of the Corporation merely because it had chosen not to amend its rules as per the directions contained in the Office Memorandum in question.
In our view, if the applicant or other equally situate person were to seek a writ in the nature of mandamus directing the respondents to incorporate the Note mentioned in the OMs, as mentioned above, such a claim could not have been resisted by the Government. In the present case, there is an additional reason why such a claim could not be resisted by the Government, and the same is that incorporating the Note in the rules of other services by virtue of the same very OMs, giving relaxation in rules, and not doing so in the Rules of 1962, would have been a case of invidious discrimination, and thus violative of provisions contained in Article 14 of the Constitution. The directives contained in the OMs are applicable across the board, i.e., applicable to all services of the Government of India, and for that reason, have to be taken as if the legislation by the executive under Article 73 of the Constitution. Moreover, it is not open to the Government to say that they would apply the OMs as regards other services but as regards the Central Secretariat Service they would not do so, and rather take a decision that the same unless incorporated in the rules would be of no consequence. It is not, in our view, open to the Government to take such a stand in the peculiar facts and circumstances as have been fully detailed above. Last but not the least, the OMs cannot be treated as waste paper; they have to be given their meaning as incorporated therein.
19 to 23xxxxxxxxxxxxx(Not reproduced here).
24. In view of the discussion as made above, while allowing the main and the connected Original Applications, we would direct the respondents to prepare a fresh Select List for 2003 for promotion of Section Officers to the grade of Under Secretary by considering such of the direct recruits who may be short of eligibility service by up to two years as per the approved seniority list of Section Officers, and make promotions accordingly. We reiterate that the eligibility criteria as regards direct recruits shall be reduced only by a period of two years, and only such of the direct recruits would be benefited who may be falling short of the eligibility criteria by two years, and not others. Vide interim orders passed from time to time, as fully detailed above, the Government was permitted to make promotions as per the Select List prepared by it, but the last six candidates, it was ordered, would not be promoted. It was further ordered that in all promotion orders it would be mentioned that the same would be subject to outcome of the Original Applications. That being the position, no hearing shall now be involved in the case from those who might have already been promoted and who may, by virtue of the orders passed by us, may have to be reverted. The issue is hanging fire for a very long time and, therefore, we direct the exercise as ordained above to be done as expeditiously as possible, but not later than eight weeks from today. In the peculiar facts and circumstances of the case, costs of the litigation are made easy.
(Emphasis supplied).
53. But the Applicants counsel did not mention that this matter had later been carried before the Honble Apex Court, in which the orders as cited in para 45/above came to be passed. Further, in the written submissions filed on behalf of the applicants, some further contentions had been raised, apart from filing a copy of the Honble Apex Court judgment in Union of India & Ors. vs. N.R. Parmar & Others (and the four related cases): 2012 (1) SCALE 437=JT 2012(12) SC 99, decided by the Honble Apex Court on 27-11-2012, and a copy of the O.M. dated 08.01.2013 issued regarding Promotion of Assistants in the grade of Section Officers of CSS on ad hoc basis, which was issued in parallel to the OM impugned before us, granting ad hoc promotions to the incumbents as per the list attached to that O.M. The applicants had in their written submissions further prayed for directions for suitable amendments to be brought about in CSS Rules, 2009, in accordance with the OM dated 18.03.1988 (supra), OM dated 23.10.1989 (supra), and OM dated 25.03.1996 (supra).
54. It was further submitted in the written submissions that the present issues are not covered by the decision of the Tribunal dated 27.09.2012 in Pankaj Kumar Mishra & Ors vs. Union of India (OA No.248/2012), and that facts of that case are not relevant in the present case, as that case was in between promotees vs. promotees, and the method of recruitment was through Limited Departmental Competitive Examination, whereas in the instant case, admittedly, the applicants are Direct Recruits, recruited against the Select List Year 2002, on the basis of the Combined Graduate Level Examination-2002 held in September 2003. It was further submitted that DoP&T itself had issued the Common Seniority List 2002 of Assistants of CSS, circulated vide DoP&Ts OM dated 18.01.2011 (supra), consisting of both Promotees as well as Direct Recruits, wherein the names of the Applicants No.1,2 & 3 are placed as 30th, 15th and 36th positions respectively in that list, and that there is no dispute on the seniority of the applicants vis-`-vis the promotees, and that the aforesaid Seniority List had never been challenged by anybody. It was mentioned that admittedly the applicants have been sought to be left out of consideration for ad hoc promotions merely on the ground of their not having completed the requisite qualifying approved service while their juniors have been promoted on ad hoc basis.
55. In support of their contentions in the written submissions, the learned counsel for the applicants had also relied on the decision of the Honble Apex Court in H.S. Vankani and Ors. vs. State of Gujarat and Ors., (2010) 4 SCC 301, where the Honble Apex Court has held that seniority is a civil right, which has a vital and important role in ones service career, and that seniority once settled is decisive and ought to be respected. Therefore, the applicants had again prayed in the written submissions also that the OA may be allowed, in the interest of justice.
56. We are, therefore, faced with a peculiar situation. When after the Full Bench judgment of this Tribunal was challenged before the Honble Apex Court, while dismissing the SLP filed by Mrs. Garima Singh & Ors. (supra), decided on 13.02.2012, as reproduced in Para-45 above, the Honble Apex Court has itself noticed the conflicting view of two judgments of the Honble Apex Court, viz., R. Prabha Devi and others (supra), and Union of India versus Sadhana Khanna (Smt.) (supra), but apparently since the writ jurisdiction of the Honble High Courts had been by-passed, even on the submission of the learned Solicitor General, Mr. Rohinton F. Nariman, that this conflict of view in two judgments of the Honble Apex Court can be resolved only by the Honble Apex Court itself, and, therefore, the petition in Union of India vs. Mrs. Garima Singh & ors. (supra) deserved to be entertained, the submissions of the learned Solicitor General did not find favour with the Honble Apex Court, and the Honble Apex Court was pleased to observe that while taking a final decision in the Writ Petitions, the High Court will undoubtedly take into consideration both the aforesaid decisions.
57. After the observations of the Honble Apex Court on 13.02.2012, in spite of a diligent search on our part, we have not been able to ascertain any distinction and consideration of these two conflicting views expressed by the Honble Apex Court having been taken into consideration by the Honble High Court, and resolved, one way or the other. Therefore, being the Court of first instance, it is now left to this Tribunal only to try to resolve the conflict of views in the two judgments of the Honble Apex Court, regarding which the submission was made by the learned Solicitor General before the Honble Apex Court on 13.02.2012 itself.
58. The Honble Apex Courts decision in N.R. Parmar (supra) has since been delivered on 27.11.2012, but, unfortunately for us, that Apex Court judgment also was delivered without noticing and re-visiting the conflict of views between R. Prabha Devi & ors. (supra) and Union of India vs. Smt. Sadhana Khanna (supra), and the Honble Apex Court has upheld the DoP&T prescriptions in regard to the controversies in between Direct Recruits and Promotees in general. Respondents also submitted on 24.10.2013 that the said judgment of the Honble Apex Court in the case of N.R. Parmar (supra) would not apply to the facts of the instant case. Not being able to derive any assistance and guidance from the Honble Apex Courts judgment in N.R. Parmar (supra) for the instant case before us, let us now proceed to decide the issues concerned ourselves, leaving it to the superior Courts to determine in judicial review as to whether our interpretation is the correct interpretation of the law, or not.
59. In Para-26 of the Honble Apex Courts judgment in N.R. Parmar (supra), the Honble Apex Court had discussed the nature of a clarification, and observed that essentially a clarification does not introduce anything new to the already existing legal position, and only explains the true purport of an existing instrument. As such, the Honble Apex Court did not accept the contention that a clarification would only have prospective application, and held that a clarification always relates back to the original date of instrument which is sought to be clarified. In this context, the Honble Apex Court had also cited its own earlier judgment in S.S. Garewal vs. State of Punjab (1993) 3 Suppl. 234, and had held that the clarification dated 03.03.2008 of the earlier OM dated 03.07.1986 would relate back to the date of original instrument namely, the OM dated 03.07.1986. Since that is the law of the land as laid down now in regard to the clarification, it would apply to any clarification issued in the present case also. In that context, the Office Memorandum under our consideration had referred to the instructions on framing /amendment/relaxation of Recruitment Rules, which were issued in a consolidated form earlier in the DoP&Ts OM dated 18.03.1988, and had noted that subsequently, a number of orders and clarifications had been issued on this subject, and had then, on a review of the existing instructions, in consultation with the UPSC, consolidated the same in the form of the Guidelines on framing/amendment/relaxation of Recruitment Rules.
60. Since these consolidated Guidelines were only in the nature of consolidation of the orders and clarifications issued already on the same subject, as covered in the DoP&Ts OM dated 18.03.1988, applying the ratio as laid down in the Apex Courts judgment in N.R. Parmar (supra), all the clarifications dated 23.10.1989 (Annexure A-2), dated 25.03.1996 (Annexure A-3) and dated 31.12.2010 (Annexure A-5), ought to necessarily relate back to the date of 18.03.1988, the date of issuance of Annexure A-1. Accordingly, we have before us at least three versions of the Note suggested to be inserted in the Recruitment Rules:-
Sl. No. Consideration of Seniors (Ist Version) O.at O.M. dated 23.10.1989/25.03.1996 OM dated 31.12.2010- 3.1.2. It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, a suitable Note may be inserted in the recruitment rules so that the seniors who have completed the probation period, are also be considered where the juniors who have completed the requisite service are being considered.
Subject: Consideration of seniors who have not completed the qualifying service for promotion in cases where the juniors who have completed the requisite service are being considered.
The undersigned is directed to refer to para 3.1.2 of Part III in this Departments O.M. No. AB-14017/ 12/87-Estt.(RR) dated 18th March, 1988 wherein it was suggested that a suitable Note may be inserted in the recruitment rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered.
2. It has been brought to the notice of this Department that inspite of the instructions referred to above, the proposed Note has not been incorporated in the recruitment rules of a number of posts. This has led to difficulties at the time of making promotion when the seniors had either to be left out or relaxation of recruitment rules had to be resorted to on each occasion. In order to avoid a situation of this kind, it is requested that all the Ministries/Departments may kindly examine their recruitment rules and insert a Note as referred to above wherever it is considered necessary.
2nd Version To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules. Where juniors who have completed their qualifying/eligibility service are being considered provided they are not short of requisite qualifying/ eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less and have successfully complete their probations period or drawing to the next higher grade alongwith their juniors who have already completed such qualification /eligibility service.
CONSIDERATION OF SENIORS 3.1.2 It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, following note may be inserted in the recruitment rules/column in the schedule to the Recruitment Rules.
Note:
Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service.
61. In the case before us it is not the case that the seniors have not been considered. The Para 3.1.2 and the Note below that only concerns those cases where juniors, who have completed their qualifying/eligibility service are being considered for promotion, and it provides that their seniors would also be considered, provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service, or two years, whichever is less, and who have successfully completed their probation period, and are thereby eligible for promotion to the next higher grade, along with their juniors, who have also completed such qualifying/eligibility service.
62. It may not be out of place to mention here that this prescription in the DoP&T O.M. is not an entirely new prescription of law, but finds place in a slightly different form & language in the Indian Railway Establishment Manual also, as per para 203.2, which is reproduced below:-
203.2. In case a junior employee is considered for selection by virtue of his satisfying the relevant minimum service conditions, all persons senior to him shall be held to be eligible, notwithstanding the position that they do not fulfil the requisite minimum service conditions.
63. Here, the applicants were recruited as a result of a process of recruitment started in the same year, though they were selected through the Combined Graduate Level Examination 2002, which examination itself was conducted only next year by the SSC, in 2003, and the result of which was declared much later, and their approved service can, therefore, be counted to start only from 01.07.2004. However, the promotee Assistants of the Select List Year 2002 had been promoted in the calendar year 2002 itself, and their approved service has, therefore, to be counted to start from 01.07.2002, and, therefore, they had completed 8 years of approved service, and became eligible for promotion as on 01.07.2010.
64. As has been noted above, out of 41 Cadre Units, only 8 Cadre Units had erroneously promoted 19 Direct Recruit Assistants, whose approved service itself started from 01.07.2004, even though they were stated to be counted towards the Select List Year 2002 batch, and had been promoted as Section officers on ad hoc basis, even though they did not have the requisite 8 years of approved service as on 04.10.2011. The applicants belong to that group of those 19 candidates only. In consultation with the appropriate Competent Authority, the DoP&T then directed on 31.01.2012 to cancel such ad hoc promotions granted to these Assistants ab-initio, and, as a follow up action after that, three Ministries who were Cadre Controlling Units had even cancelled such promotions vide their Notifications dated 08.02.2012, 07.02.2012 and 05.03.2012, as already noted above. It was only the applicants before us in this O.A., and the applicants of OA No.706/2012, which is still pending for adjudication, who escaped such cancellations of their promotions on ad-hoc basis, since they had obtained interim orders of this Tribunal.
65. We have now to decide as to whether the judgment of the Honble Apex Court in R. Prabha Devi (supra) has to be applied to the case of the applicants, or the judgment of the Honble Apex Court in the case of Smt. Sadhana Khanna (supra) has to be applied to the present case, which task we have to perform as a duty cast on us, in view of the fact that the Honble Apex Court had itself, on 13.02.2010, while dismissing the SLP in Mrs. Garima Singh & Ors. (supra), left the task of taking into consideration the aforesaid decision to the Honble High Courts, and since High Courts are Writ Courts, as the Court of first instance, this Tribunal has now to perform this task.
66. It is very clear from a plain reading of the two judgments that the case of Smt. Sadhana Khanna (supra) was unique in itself. She had been selected as a DR Assistant, and, in the normal course, she would have joined her job duties before 01.07.1983, along with all the other persons selected along with her, but could not so join because while the letters offering appointment had been issued in the case of all other persons selected along with her in time, only in her case it was delayed, because of which she could join service on 13.07.1983, and was falling short of the requisite eligibility service of 8 years by 12 days only. The Honble Apex Court had in that case observed that the fault of delay had been on the part of the Department in belated issuance of appointment letter, and had thereafter condoned the gap of 12 days, on the basis of equity along with all other persons who were selected along with her in the Combined Graduate Level Examination of 1981, and had got appointed before 01.07.1983, and had dismissed the S.L.P. With that, this Tribunal Full Bench judgment in OA No.3278/2010-Mrs. Garima Singh & Ors. Vs. Union of India, reported in 2011 Indlaw CAT 614, became final, but the points in issue, which were considered in that case, were not on all fours with the present case. However, we cannot derive sustenance from that Full Bench judgment in the case of Mrs. Garima Singh & Ors. (supra) also.
67. But, it appears to us that the facts of this case are closer to the Honble Apex Court judgment in R. Prabha Devi & Ors. (supra), and are not on all fours with the judgment in Smt. Sadhana Khanna (supra). As cited in Para-35 above, the Honble Apex Court had in the case of R. Prabha Devi & Ors. (supra) held that mere seniority in a particular cadre does not entitle a public servant for promotion to a higher post, unless he fulfills the eligibility condition prescribed by the relevant rules. Here, in this case the applicants before us were only notionally counted to have been appointed against the Direct Recruitment Quota of the year 2002, even though their selection test itself was actually held in the year 2003, and they had joined their service actually in the year 2004, and, therefore, for the purpose of counting of the qualifying service, which is the eligibility condition for promotion to a higher post, their date of eligibility would only be 01.07.2004.
68. In good measure, the Honble Apex Court had in R. Prabha Devi & Ors. (supra) further held that a person must be eligible for promotion having regard to the qualifications prescribed for the post, before he can be considered for promotion. Since eligibility for promotion even on an ad hoc basis in the instant case is only on the basis of length of 8 years of qualifying service, the applicants before us, even though they are otherwise called to have been appointed against Direct Recruitment Assistants Quota of Select List Year 2002, but they started their eligible service only on 01.07.2004, and can be counted to have become eligible for promotion as Section Officers, on ad hoc or substantive capacity basis, only on completion of 8 years of their qualifying service, w.e.f. 01.07.2012 onwards.
69. The Honble Apex Court had further observed in R. Prabha Devi & Ors. (supra) that inter-se seniority will be relevant only amongst persons who are otherwise eligible. Therefore, even if, in the meanwhile, the promotee quota Assistants of the Select List Year 2003, who had started to count their qualifying service from 01.07.2003, had completed 8 years of qualifying service, had become eligible for ad hoc or substantive promotion as Section Officers w.e.f. 01.07.2011, prior to the applicants before us (notionally counted against Direct Recruitment Quota of Select List Year 2002 Assistants), since the applicants before us had not attained eligibility, even their notional seniority over and above the promotee Assistants of the year 2003, who had actually attained eligibility after completing qualifying service of 8 years, would be of no relevance.
70. In R. Prabha Devi & Ors. (supra), the Honble Apex Court had held that seniority cannot be substituted for eligibility, nor it can over-ride it in the matter of promotion to the next higher post. Here, the applicants before us are not at all senior to the promotee Assistants of the Select List Year 2002, who had started to count their qualifying service from 01.07.2002 itself, and are only claiming to be notionally senior by virtue of their being counted as having been appointed against Select List Year 2002 DR Assistants quota, as against the promotee Assistants of 01.07.2003. Such notional seniority cannot, therefore, be substituted for actual experience & seniority, and resultant eligibility, nor can it over-ride the claim of any person who had in the meanwhile attained eligibility in the matter of promotion to the higher post of Section Officers prior to them.
71. The consequences which follow are that only when it comes to a comparison with the promotee DR Assistants of the Select List Year 2004, who also would be eligible to count their eligibility for promotion from 01.07.2004 only, like the applicants before us, and all other Direct Recruit Assistants appointed against the Select List Year 2002 DR Assistants quota, since both the sub-quotas would count their eligibility from the same actual date of 01.07.2004, the claim of the applicants before us, by virtue of their seniority in the Select List Year, would prevail, and they would be eligible for ad hoc and/or substantive promotion ahead of the promotee Select List Year 2004 Assistants, who would also count their eligibility to start on the same date, w.e.f. 01.07.2004.
72. Therefore, we find that reliefs at para 8 (a) & (b) are not at all maintainable before us, and the relief as prayed for at para 8(c) cannot be granted to the applicants as discussed above, since, as discussed above, in the facts of this case, we would have to go by the Honble Apex Court judgment in R. Prabha Devi & Ors. (supra), rather than the judgment in Smt. Sadhana Khanna (supra), as discussed above, and the prayer at para 8(d) also cannot be granted to the applicants.
73. In the result, the OA fails, and is rejected, but there shall be no order as to costs.
(V. Ajay Kumar) (Sudhir Kumar)
Member (J) Member (A)
cc.