Central Administrative Tribunal - Delhi
Shri Virender Kumar Mehta S/O Late Shri ... vs Union Of India (Uoi) Through Its ... on 20 March, 2007
ORDER Shanker Raju, Member (J)
1. Applicants, three in number and working as Private Secretary, have assailed an order passed by the respondents on 4.8.2005 in pursuance of the directions of this Tribunal in OA-933/2005 dated 6.5.2005 whereby promotion of the applicant therein as Administrative Officer (AO) has been advanced.
2. To better understand the controversy, brief factual matrix of the case is relevant to be highlighted, which transpires that Bylaw-1 governing the conditions of service of the employees in ICMR provides that all matters concerning the service conditions of employees of the Council, Fundamental Supplementary Rules framed by the Government of India and such other Rules and orders made by the Government of India from time to time shall mutatis mutandis apply to the employees of the Council provided that such orders, who are not specifically made applicable to autonomous organization, like ICMR, should not apply. Accordingly, certain documents during the course of hearing have been produced by the applicants to show that ICMR being an autonomous body, wholly funded by the consolidated funds under the Ministry of Health letter dated 26.3.2000 adopts mutatis mutandis revision of nomenclature of various grades, including Stenographers at par with Central Government Stenographers Service.
3. An order passed by the ICMR on 17.8.2006 conveys the provisions of Bylaws as to its applicability mutatis mutandis to the ICMR employees of the rules framed by the Government of India.
4. Central Secretariat Service Rules, 1962 (for short 'CSS Rules'), insofar as the recruitment in selection Grade-I is concerned where the Section Officer (SO) grade having rendered not less than eight years' approved service and officers of the Central Secretariat Stenographers Service not rendered less than eight years' approved service are on a joint service included in the select list for Grade I of the service and considered for further promotion accordingly. There is no ratio assigned inter-se between the SOs and Stenographers.
5. Accordingly, the circular of 26.11.1981 of the ICMR issued by the Deputy Director General (Administration) on the question whether PSs or SOs are eligible for consideration for promotion as AO, the CSS Rules have been taken into consideration and no ratio has been assigned.
6. Another circular of ICMR dated 10.8.1988 clarified that no quota has been fixed for any category and as per the joint seniority, eligible candidates are being considered by the DPC.
7. On 31.5.1995 while considering filling up the post of AO inter-se-seniority of the feeder grades, namely, SO and PS is to be taken into consideration by the DPC but the seniority list would be operated separately. However, the ICMR on 1.8.2000, for want of any recruitment rules framed for the post of Group 'A' (Ministerial) Staff, framed the rules where recruitment to the grade of AO was on the basis of promotion on merit amongst SO and PS having completed not less than eight years' service and no ratio has been fixed. The aforesaid rules have been sent for finalization to the Ministry of Health & Family Welfare and are yet to be settled.
8. As per the DOPT OM of 30.3.1998 in consideration of ad hoc promotion when the recruitment rules are yet to be finalized, criteria of seniority-cum-fitness has to be adopted.
9. One Ganga Lal Sharma approached the Tribunal by filing OA-161/2002 whereby he challenged the minutes of the DPC for the post of AO dated 24.12.2001 and sought direction on the ground that instead of following the seniority-cum-fitness criteria, selection criteria has been adopted by the respondents. Accordingly, a direction issued on 17.1.2003 made applicability of OM dated 30.3.1998 and as a result thereof, panel prepared by the DPC dated 23.12.2001 has been quashed and review DPC was ordered to be conducted and if the applicant therein was found fit, he be promoted accordingly. The above order when challenged by the respondents in CW-5008/2003 was affirmed on 18.9.2003. As a result thereof, the DPC held on 4.10.2004 promoted the applicant therein.
10. Applicants being Stenographers through Association approached the Tribunal in OA-933/2004. An order passed on 6.5.2005 extended to them on consideration of their representation the benefit given in Ganga Lal Sharma's case (supra). As a result thereof, the respondents while responding to the directions of the Tribunal both in OA-161/2002 and in OA-933/2004 not only reviewed the DPCs held on 15.1.2002, 14.3.2002, 22.7.2002 and 31.12.2002 but also made subsequent promotions on ad hoc basis on 1.5.2003, 1.10.2003, 8.10.2004, 1.12.2004, 4.2.2005 and 1.4.2005 and as a result thereof, certain persons have been antedated in promotion and the applicants' promotion was advanced. This has led to the present OA.
11. It is also pertinent to note that there are two types of posts; one is extra mural, which is project post, i.e., AO and the other is intra mural post of AO, which is to be filled on regular basis but the respondents have filled both theses posts on ad hoc basis keeping in light the finalization of the recruitment rules.
12. Shri Rajeev Sharma, learned Counsel for applicants vehemently contended that the decision of the Tribunal holds an authority to the issue decided thereupon and as only DPC held on 24.11.2002 was to be reviewed, the decision of the respondents to review all the subsequent DPCs till 4.1.2005 is bad in law.
13. It is stated that the applicants were not parties before the Tribunal and their advancement of promotion as AO has caused them prejudice and also affected their rights, without impleadment them and without any opportunity to effectively defend, principles of natural justice have been violated.
14. Learned Counsel would contend that the ratio of 4:1 adopted by the respondents on the basis of a decision of the Association with Management cannot have universal application in perpetuity.
15. Referring to the note of ICMR dated 8.11.2001, it is stated that the same was the method for filling up the post of AO, which was restricted to the current financial year 2001-02, as such, this would not have any universal application thereafter.
16. Learned Counsel would contend that the decision cannot be final, as it has been agreed to on entrustment to Ex. Additional Secretary, Government of India regarding possibility of evolving a separate cadre for AOs and Stenographers and on approval of EC, the decision was to be implemented. Accordingly, it is stated that the ratio of 4:1 cannot be countenanced as the draft recruitment rules, which are yet to be finalized by the competent authority, the only instruction was the erstwhile decision taken by ICMR in circulars of 1981 and 1988 and in view of Bylaw-1, the provisions in CSS Rules are to be adopted. In such an event, when there is no methodology of laying down the ratio then common seniority would have resulted in promotion of the applicants from both the cadres on attainment of eligibility qualification.
17. The decision of the Apex Court in Vimal Kumari v. State of Haryana and Ors. has been relied upon to contend that when draft rules are intended to be notified in near future, they can be followed in the interregnum to meet emergent situations but if there is no intention to notify any statutory character, under Article 309 proviso, draft rules cannot exclude the jurisdiction of the competent authority to regulate service conditions by Executive instructions. Accordingly, it is stated that when circulars of 1981 and 1988 and also the Bylaws are in vogue, adoption of a different criteria would not be in consonance with law.
18. Learned Counsel would also contend that a subordinate legislation can be given retrospective effect only if the power is contained in the main Act. He relies upon the decision of the Apex Court in Mahabir Vegetable Oils (P) Limited and Anr. v. State of Haryana and Ors. to substantiate his plea that the agreement arrived at cannot hold good as a justification.
19. On the other hand, Shri V.K. Rao, learned Counsel for respondents vehemently opposed the contentions and stated that in Ganga Lal Sharma's case (supra) the criteria of ad hoc when commented upon by the Tribunal and as affirmed by the High Court, envisaged seniority-cum-fitness criteria to be adopted and with a view to mitigate hardship and also to avoid multiple litigation, all the DPCs held subsequently have been reviewed, as on adoption of seniority-cum-fitness criteria and as a result thereof, the advancement of promotion of the applicants is an implication of the decision of the Tribunal.
20. Learned Counsel would contend that the tripartite agreement arrived at on 8.11.2001, ratio of 4:1 has been agreed to between the parties, i.e., four persons are to be picked from the cadre of SO and one from PS cadre, as the total cadre strength of both are SOs-48 and PSs-12. As such, as per the OM of 18.3.1998 where it is stated that when there are two feeder grades for promotional posts, Government is free to determine the ratio. Hence no prejudice is caused to the applicants.
21. Learned Counsel has stated that as the recruitment rules circulated are still subject to the approval of Ministry of Health & Family Welfare, the eligible persons shall be arranged in the order of their respective grades. Thereafter DPC selected persons as per the prescribed quota would be arranged in consolidated order of merit.
22. Learned Counsel would also contend that DPC has adopted the prescribed procedure and seniority list of two separate cadres was prepared as per the agreement and the ratio of 4:1 is followed.
23. It is fairly stated at last that as the recruitment rules are sent for approval to the Ministry of Health where the delay has taken place, issuing any direction to the respondents would not facilitate in settlement of dispute between the cadres of SO/AO.
24. We have carefully considered the rival contentions of the parties and perused the material placed on record.
25. As held by the Apex Court in S.C. Jaisinghani v. Union of India and Ors. that non-arbitrariness shall be the necessary ingredient of rule of law. The administrative authorities should act fairly without arbitrariness and on a judicious exercise of the discretion vested in them. What amounts to acquiescence is when a person acquires a right or with the passage of time he gets certain rights. If no action is taken within a reasonable time, it would amount to acquiescence. Waiver is also a theory propounded in law according to which a right accrued to a person by non-action can be waived.
26. In the light of above, applicants after they have sought extension of the benefit of Ganga Lal Sharma's case (supra) kept on representing to the respondents to promote them on regular basis as AO on intra/extra mural basis and the criteria adopted was questioned. Accordingly, this would not amount to waiving their right or acquiesced to it. More particularly when the representation culminated into an order passed by the respondents on 4.8.2005, this has given them a fresh cause of action and a right to seek redressal of grievance before us.
27. An agreement binds the parties to it. However, agreement has to be interpreted to ascertain the aforesaid. No doubt, the statutory rules for promotion to the cadre of AO have been at the draft stage with the Ministry of Health & Family Welfare and are sent to the cadre controlling authority, Ministry of Health & Family Welfare, yet non-approval would not initiate their applicability in any manner whatsoever. In such view of the matter, when there is no prospect or intent to notify the recruitment rules and for want of any statutory rules in vogue, what has to be applied safely is the administrative instructions, which operate the field, as ruled by the Apex Court in Vimal Kumari's case (supra).
28. Moreover, in M.M. Dolichan and Ors. v. State of Kerala and Ors. (2001) 1 SCC 151, it has been ruled that the Government has a right in absence of statutory rules to operate administrative instructions till the recruitment rules operate the field.
29. If one has regard to the above, Bylaws of ICMR clearly stipulate that for want of any statutory rules on the subject pertaining to the service conditions, which includes consideration for promotion to the various grades, adoption of Government of India's rules and instructions, which have applicability mutatis mutandis. We have perused the CSS Rules, which do not specifically rule out applicability of the autonomous bodies.
30. In such view of the matter, ICMR vide its circulars of 1981 and 1988 apply CSS Rules for operating the promotion as AO and in such view of the matter on a joint seniority list issued, on consideration of suitability, both the feeder categories are to be promoted but no ratio has been fixed thereupon. The tripartite agreement, to our considered view, has been arrived at between the ICMR Officers' Association, Stenographers' Association, Employees' Association and the Management side. To this tripartite agreement though nomenclatured as procedure to be followed for appointment to the post of AO has been restricted to the current financial year, i.e., 2001-2002. Moreover, there is no percentage prescribed in this agreement, except by showing nine posts, seven going to SOs. There has been a noting that possibility of evolving separate cadre has to be worked out for both the cadres and the decision on approval by EC has to be implemented by the Council. It appears that the circulars of 1981 and 1988 have been given a 'go-bye' and the Bylaws have been ignored where CSS Rules had applicability, yet by virtue of this agreement, the ICMR had found a novel way to fill up the post of AO by raising the percentage of one class, i.e., SO being feeder category with some ulterior motive or with a view to favour the particular cadre. However, this decision does not lay down on uniformity a principle of ratio of 4:1 for promotion of feeder categories, as this ratio had never been agreed to upon in the circulars issued in 1981 and 1988. These two circulars having not been superceded and rescinded, they still hold the field till the recruitment rules are formulated on approval.
31. The aforesaid leads to the issue whether the review of the DPC post-24.12.2005 by the respondents is fair or not?
32. From the decision in Ganga Lal Sharma's case (supra), we do not find any discussion or challenge to the procedure of DPC, as one of the SOs being a feeder category for AO when challenged his non-promotion, the finding has been recorded in a particular case pertaining to the DPC held in 2001. The aforesaid would not bind or lay down any ratio decidendi as to the legality of following the ratio of 4:1 by the respondents.
33. It is trite that a ratio decidendi of a decision is to be inferred not from what has not been decided but from the issue discerned on discussion and the point of law adjudicated upon. In the light of above, the suo motu exercise of the respondents to review all the DPCs, maybe with a view to minimize litigation and to mitigate hardship, has caused a civil consequence upon the applicants on advancement of their promotion date, which could not have been arrived at without following due procedure of law and in consonance with the principles of natural justice and also not being impleaded as a necessary party in Ganga Lal Sharma's case (supra). As such, any implication of the order on implementation cannot prejudice the right of the applicants.
34. Accordingly, we find that the ratio settled by the respondents as a principle for feeder categories of SO and PS is not in consonance with either their earlier notifications or Bylaws and non-adoption of CSS Rules, which had been done in the past, is not justifiable.
35. In the result, for the foregoing reasons, order dated 4.8.2005 is set aside. Without disturbing the right of Ganga Lal Sharma, we direct the respondents to reconsider on review the promotion of applicants as well as other Private Secretaries and also the Section Officers strictly in accordance with their circulars issued in 1981 and 1988 and also on adoption of CSS Rules. This would further entail fixing the seniority on inter-se combined basis and thereafter on consideration of promotion, applicants would be entitled to all the consequential benefits. This shall be done within a period of three months from the date of receipt of a copy of this order. OA is accordingly partly allowed.
36. Before parting with, we would like to observe that it is only the delay in finalization of the recruitment rules that such a litigation has cropped up, which could have been avoided. Accordingly, we direct respondent No. 1 to finalize the recruitment rules forwarded by respondent No. 2 within the aforesaid period. No costs.