Central Administrative Tribunal - Delhi
Dr. Rajeshwar Singh vs Union Of India Through on 24 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3653/2013 Order reserved on 19th December 2013 Order pronounced on 24th December 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Dr. Rajeshwar Singh House No.300 1st Floor, Sector 15-A NOIDA (UP) .. Applicant (Mr. Gopal Sankaranaryan, Ms. Haripriya Padmanabhan, Ms. Apoorv and Mr. Vikramditya, Advocates) Versus
1. Union of India through the Secretary, Ministry of Finance North Block, New Delhi-1
2. Union Public Service Commission Through The Secretary, UPSC Dholpur House, Shahjahan Road New Delhi
3. Ministry of Personnel Public Grievances And Pension through Secretary (Department of Personnel & Training) 5th Floor, Lok Nayak Bhawan, Khan Market, New Delhi ..Respondents (Mr. R. Balasubramanian, Advocate for respondent 1, Mr. Rajinder Nischal, Advocate respondent 2 and Mr. Rajeev Kumar, Advocate for respondents 1 & 3) O R D E R Mr. A.K. Bhardwaj:
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 praying therein:
a) Direct the Respondents to produce the entire files concerning the Office Memorandum of Respondent No.1 dated 22.07.2011 with regard to filling up of the 47 posts of Deputy Director of Enforcement in the ED, and the recommendation dated 19.9.2012 of Respondent No.2 concerning the same;
b) Direct the respondent No.1 to abide by the recommendation dated 19.9.2012 of Respondent No.2 and to absorb the Applicant for the post of Deputy Director, Directorate of Enforcement, Ministry of Finance, Govt. of India.;
c) pass any other order(s) or directions that this Honble Tribunal may deem fit.
2. Mr. Gopal Sankaranaryan, learned counsel for applicant commenced his arguments by referring to the Schedule to the Directorate of Enforcement (Group A Posts) Recruitment Rules, 2009 (for short Rules 2009) published vide Notification dated 23.6.2011 by the Ministry of Finance (Department of Revenue) and submitted that in terms of the said Rules 2009 Officers of all India Services or Central Services including State Police Organizations or Central Bureau of Investigation with six years regular service in the grade rendered after appointment thereto on regular basis in Pay Band-2 of 9300-34800 and Grade Pay of 4800 or equivalent in the parent cadre or department and possessing experience of at least five years in the field of intelligence, investigation work and adjudication or prosecution relating to fiscal or criminal law are eligible to be appointed to the post of Deputy Director of Enforcement. He further referred to the Office Memorandum No.A-35011/5/2011-AD.ED dated 22.7.2011 (Annexure P-2) and submitted that having decided to fill up the 47 posts of Deputy Director of Enforcement in the Directorate of Enforcement in the Pay Band-3, 15600-39100, Grade Pay of 6600/- on deputation / absorption basis in one or more offices of Directorate of Enforcement, a subordinate organization under Ministry of Finance, i.e., Delhi, Jaipur, Chandigarh, Jalandhar, Srinagar, Lucknow, Kolkata, Patna, Ahmedabad, Hyderabad, Bangalore, Mumbai, Cochin, Guwahati, Chennai in terms of the aforesaid Rules 2009, the Ministry of Finance (Department of Revenue) requested the Cadre Controlling Authorities to forward the applications of the eligible and willing officers in the proforma annexed to the Memorandum so as to reach to the Under Secretary (ED), Ministry of Finance, New Delhi within 60 days from the publication of the advertisement in Employment News / Rozgar Samachar. He also referred to letter No.3/15(13)/2012-ADT-1 dated 19.9.2012 (Annexure P-6) whereby the name of the applicant was recommended by the Union Public Service Commission (UPSC) to the Secretary to the Government of India, Department of Revenue, Ministry of Finance for his absorption as Deputy Director of Enforcement in Pay Band-3, 15600-39100, Grade Pay of 6600/- in the Department of Revenue.
3. Having referred to the aforementioned documents, learned counsel for applicant submitted that in not accepting the aforementioned recommendations regarding absorption of applicant for more than one year while accepting the same in respect of the candidates mentioned at Sl. Nos. 2 to 5 in the letter dated 19.9.2012, respondent No.1 violated Articles 14 and 16 of the Constitution of India, as also disregarded the Rules 2009, the Office Memorandum dated 22.7.2012 as well as recommendations of the expert body. He relied upon the letter dated 25.7.2011 (Annexure P-4) of Directorate of Enforcement, Department of Revenue, Government of India to espouse that the Directorate of Enforcement had considered the absorption of the applicant as Deputy Director of Enforcement as much needed in the interest of continuity of certain important investigations, like 2G Spectrum scam, CWG scam, EMMAR MGF case, IREO case, etc. He also placed reliance on another letter No.A-11/11/2006 dated 13.10.2011 of the said Directorate to submit that there is overall shortage of officers in the Directorate of Enforcement and it has become necessary for the Directorate to retain experienced and energetic Investigating Officers. He relied upon the decision of this Tribunal in Shashi Shekhar & others v. Union of India & others (O.A.No.3039/2012) decided on 21.8.2013 to project that the available vacancies need to be filled up by respondent No.1 in accordance with the Rules 2009, in vogue at the time of occurrence of vacancies. A reference was also made by him to the Annual Confidential Reports (ACRs) of the applicant, stand of the UPSC and opinion of the Additional Solicitor General to submit that while not accepting the recommendations of the UPSC, the Department of Revenue had not followed the due procedure stipulated by the Department of Personnel & Training (DoPT) in guidelines issued vide Office Memorandum No.39023/02/2006-Estt (B) dated 5.12.2006 and that the persons selected by the UPSC for appointment as Deputy Director of Enforcement on absorption/ deputation basis need to be appointed/absorption. Finally, he relied upon paragraphs 14 & 15 of the judgment of the Honble in Secretary, A.P. Public Service Commission v. B. Swapna & others, (2005) 4 SCC 154 and paragraph in 10 of the judgment in R.S. Mittal v. Union of India, JT 1995 (3) 417.
4. On the other hand, Mr. R. Balasubramanian, learned counsel opened his arguments by referring to the Recruitment Rules of 1975 and submitted that prior to the amendment in the Recruitment Rules, the post of Deputy Director of Enforcement was designated as Assistant Director Grade I and the post of Assistant Director was known as Assistant Director Grade II. Relying upon the said Rules, he submitted that prior to June 2011, there was no provision for recruitment / appointment to the post of Assistant Director Grade I (Deputy Director) by way of absorption and the post was filled up by way of promotion and appointment on deputation only. He made an attempt to draw distinction in appointment by way of deputation and absorption. According to him, since the appointment by way of deputation was envisaged in terms of Recruitment Rules of 1975 also, there could be no difficulty in accepting the recommendations of the UPSC for making appointment of those who are selected to be appointed on deputation basis, but since in respect of the applicant there was recommendations for his absorption, the same could not be accepted. Having submitted that the deputation and absorption are two different modes of appointment, he denied that in giving appointment to four other candidates, whose appointment was to be made on deputation basis and not appointing the applicant, respondent No.1 violated the Articles 14 and 16 of the Constitution.
5. Relying upon the judgment of the Honble Supreme Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 47, Mr. R. Balasubramanian, learned counsel submitted that even the Government is under no obligation to fill up all the vacant posts and the final view in respect of appointment to a selected candidate need to be taken by the Government. He also submitted that in view of the decision of Honble Apex Court in Jai Singh Dalal & others v. State of Haryana & another, 1993 Supl. (2) SCC 600, respondent No.1 could always take a conscious decision to amend the Recruitment Rules and not fill up the vacant posts till such amendment.
6. To meet the submissions made by learned counsel for applicant on the basis of the decision rendered by this Tribunal in O.A.No.3039/2012 (ibid), learned counsel for respondent No.1 submitted that in the said Original Application, the applicants had questioned the appointment to the post of Assistant Director of Enforcement by way of deputation even and the entitlement of Deputy Director of Enforcement for absorption was not an issue in the said case. Relying upon the letter No.A-4/11/2011-Pt.I dated 2.5.2012 (Annexure R-1), learned counsel for respondent No.1 submitted that only the officers selected on deputation basis joins the Directorate as Deputy Director and completes at least three years of the service in the grade with the Directorate, can be considered for absorption on the said post.
7. Relying upon certain noting contained in departmental file No.A-35011/5/2011-ED (photocopy of which was kept for our perusal), learned counsel for respondent No.1 submitted that the feeder cadre for the promotional post of Deputy Director is Assistant Director and with the absorption being allowed in the said cadre, the absorbed officer would adversely affect the career prospects of the officer to be promoted as Deputy Director from the rank of Assistant Director and besides the officers to be absorbed as Deputy Director would be comparatively younger than the officers who are to be promoted. However, learned counsel for respondent No.1 maintained that consideration of the applicant for his absorption on the post of Deputy Director of Enforcement is strictly in accordance with the Recruitment Rules.
8. Mr. R Balasubramanian, learned counsel also referred to the following judgments of the Honble Supreme Court:
J & K Public Service Commission & others v. Dr. Narinder Mohan & others, (1994) 2 SCC 630,
(ii) State of M.P. & others v. Raghuveer Singh Yadav & others, (1994) 6 SCC 151,
iii) State of Bihar & others v. Md. Kalimuddin & others, (1996) 2 SCC 7,
iv) Union of India & others v. K.V. Vijeesh, (1996) 3 SCC 139,
v) Dr. K. Ramulu & another v. Dr. S. Suryaprakash Rao & others, (1997) 3 SCC 59; and
vi) Rajasthan Public Service Commission v. Chanan Ram & another, (1998) 4 SCC 202.
9. Mr. Rajinder Nischal, learned standing counsel for UPSC submitted that the only submission needed to be made by him on behalf of the Commission is that the name of the applicant has been recommended by it for absorption of Deputy Director of Enforcement in the Directorate of Enforcement and respondent No.1 should accept the same.
10. Mr. Rajeev Kumar, learned counsel for respondent Nos. 1 and 3 submitted that he would adopt the arguments made by Mr. R. Balasubramanian, learned counsel for respondent No.1.
11. We have heard the learned counsels for the parties and perused the material placed on record.
12. As captioned in the brief facts of the case stated in the counter reply filed on behalf of respondent No.1, the applicant is a police officer belonging to the State Government of Uttar Pradesh and his services were availed by the Directorate of Enforcement as Assistant Director Grade II w.e.f. 5.12.2007 for a period of 3 years on deputation basis in the Zonal Directorate at Lucknow and immediately after his such appointment on deputation basis, the process for his appointment as Assistant Director Grade I on ad hoc basis was set in motion. In the Recruitment Rules in vogue as on date of appointment of the applicant on deputation (amended upto 1999), there was no provision for appointment as Assistant Director Grade I on deputation. Nevertheless, respondent No.1 with the approval of DoPT agreed to place the applicant in the grade of Assistant Director Grade-I (re-designated as Deputy Director) purely on ad hoc basis. In sum and substance, it is the case of respondent No.1 also that the applicant has been working as Deputy Director of Enforcement in the Directorate since 8.9.2008. The Recruitment Rules for the post of Deputy Director was amended on 8.10.2009 thereby making State Police Officer(s) amongst others eligible for the post of Deputy Director. Vide the Advertisement dated 22.7.2011, respondent No.1 invited applications for appointment to the post of Deputy Director of Enforcement by way of absorption / deputation. In response to said Advertisement, the applicant submitted his application along with other candidates. His application was forwarded to UPSC for its recommendations. The amendment made in the Recruitment Rules in the year 2011 providing for appointment to the post of Deputy Director by absorption was not acceptable to the officers, who had directly joined the same cadre and raised strong objection to provision of absorption on the ground of detrimental effect on their career progression. Some of such employees also approached this Tribunal with the plea that only the officers, who were holding equivalent post in their parent organization, could be absorbed / appointed on deputation on any post. Nevertheless, in view of the application made by the applicant, UPSC recommended the appointment of the applicant on the post of Deputy Director of Enforcement by way of absorption vide letter dated 19.9.2012 (Annexure P-6). For easy reference, the relevant excerpt of the recommendations of UPSC is extracted hereunder:-
I am directed to refer to your letter No.A-35011/5/2011-Ad.ED dated 14.09.2012, on the above subject, and to say that the Union Public Service Commission, on the basis of assessment of available ACRs and bio-data of the eligible officers received in connection with the case cited above and after holding Personal Talk with them on 18th & 19th 2012, recommend the following in that order Sl.No. Name(S/Shri) Recommended on Rajeshwar Singh Absorption basis.
Ram Badan Singh Deputation basis.
H.S. Jain Deputation basis. Ms. N. Ananthie Deputation basis. H.P. Sudham Das Deputation basis.
for appointment to the post of Deputy Director Enforcement in the Pay Band-3, Rs.15600-39100 + G.P. Rs.6600/- in the Directorate of Enforcement, Department of Revenue, Ministry of Finance. The remaining vacancies may be filled up as per the provisions of the Recruitment Rules.
2. The officers recommended for appointment on Deputation / Absorption basis may be appointed after the appointing authorities have satisfied itself about their integrity.
3. A copy of the notification appointing the officers may kindly be forwarded to the Commission, as and when issued. When the said recommendation has not been accepted, the applicant filed the present Original Application.
13. As far as the question of eligibility of the applicant is concerned, as has been provided in the Recruitment Rules dated 23.6.2011/2009, i.e., the Rules in vogue as on 22.7.2011, when the selection process for filling up 47 posts of Deputy Director of Enforcement in the Directorate of Enforcement on deputation / absorption basis was set in motion, the Officers of all India Services or Central Services including State Police Organizations or Central Bureau of Investigation with six years regular service in the grade rendered after appointment thereto on regular basis in Pay Band-2 of 9300-34800 and grade pay of 4800 or equivalent in the parent cadre or department and possessing experience of at least five years in the field of intelligence, investigation work and adjudication or prosecution relating to fiscal or criminal law, were eligible for appointment to the post of Deputy Director of Enforcement on deputation basis. For easy reference, relevant excerpt of the Scheduled to aforesaid Rules 2009 is extracted hereinbelow:-
Name of the post Number of posts Classification Pay Band and Grade Pay or Pay Scale Whether selection or non-selection post Age-limit for direct recruits (1) (2) (3) (4) (5) (6) Deputy Director of Enforcement 150* (2011) *Subject to variation dependent on workload General Central Service, Group A, Gazetted, Non-Ministerial Pay Band-3, Rs.15600-39100, Grade Pay Rs.6600 Selection Not applicable Educational and other qualifications required for direct recruits Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotes Period of probation, if any (7) (8) (9) Not applicable Not applicable Not applicable Method of recruitment : Whether by direct recruitment or by promotion or deputation or absorption and percentage of the vacancies to be filled by various methods In case of recruitment by promotion or deputation or absorption grades from which promotion or deputation or absorption to be made (10) (11) 50 per cent by promotion, 50 per cent by deputation absorption Promotion:
Assistant Director of Enforcement with five years regular service in the grade failing with Assistant Director of Enforcement with six years combined regular service as Assistant Director of Enforcement and Enforcement Officer out of which three years regular service as Assistant Director of Enforcement.
Note 1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service, or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1st January, 2006 or the date from which the revised pay structure based on the Sixth Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding pay or pay scale extended based on the recommendations of the said Pay Commission.
Deputation/absorption:
Officers of all India Services or Central Services including State Police Organizations or Central Bureau of Investigation:
(a) (i) holding analogous post on regular basis in the parent cadre or department, or
(ii) with five years regular service in the grade rendered after appointment thereto on a regular basis in Pay Band-3 of Rs.15600-39100 and grade pay of Rs.5400 or equivalent in the parent cadre or Department, or
(iii) with six years regular service in the grade rendered after appointment thereto on regular basis in Pay Band-2 of Rs.9300-34800 and grade pay of Rs.4800 or equivalent in the parent cadre or department, and
(b) (i) possessing experience of atleast five years in the field of intelligence, investigation work and adjudication or prosecution relating to fiscal or criminal laws; or
(ii) possessing experience of Banking or Accounts.
Note 1: The departmental officers in the feeder grade who are in direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion.
Note 2: Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other Organization or Department of the Central Government shall ordinarily not to exceed four years. The maximum age limit for appointment by deputation shall ordinarily not exceed 56 years, as on the closing date of receipt of applications.
Note: For the purpose of appointment on deputation or absorption basis, the service rendered on a regular basis by an officer prior to 1st January, 2006 (the date from which the revised pay structure based on the Sixth Central Pay Commission recommendation has been extended) shall be deemed to be service rendered in the corresponding grade pay or pay scale, and where the benefit will extend only for the post for which that grade pay or pay scale is the normal replacement grade without any upgradation.
If a Departmental Promotion Committee exists, what is its composition Circumstances in which Union Public Service Commission is to be consulted in making recruitment (12) (13) Group A Departmental Promotion Committee (for considering promotion) consisting of-
1. Additional Secretary, Department of Revenue-
Chairman
2. Director of Enforcement Member
3. Special or Additional Director of Enforcement-
Member Consultation with Union Public Service Commission is necessary while appointing an officer on deputation or absorption.
14. It is not even the case of the respondents that in terms of the said Recruitment Rules in vogue at the relevant point of time the applicant was not eligible for absorption to the post of Deputy Director. What respondent No.1 has tried to project is that (i) in the Recruitment Rules of 1975 (amended upto 1999), there was no provision for appointment of an officer from State Police Service as Deputy Director of Enforcement on deputation basis, (ii) in the letter dated 2.5.2012 (Annexure R-1) issued by the Directorate of Enforcement, it is emphasized that in view of the Directorates letter dated 30.4.2012 request for absorption to the post of Deputy Director may be considered only after the officer selected on deputation basis joins the Directorate as Deputy Director and completes at least three years of the service in the grade with the Directorate, (iii) in view of the noting contained in the departmental file No.A-35011/5/2011-ED (Notes Vol. I & II) the absorption of the applicant will adversely affect the career prospects of the officer to be promoted as Deputy Director from the rank of Assistant Director; and (iv) as has been mentioned in the letter dated 15.10.2013, a decision has been taken to remove the provision for appointment to the post of Deputy Director, by way of absorption and the recommendation of UPSC is not agreed to.
15. As far as the reliance placed by the learned counsel for applicant on the Recruitment Rules is concerned, his argument based on said Recruitment Rules is that the member of the State Police Service could have been appointed on the post of Deputy Director of Enforcement on deputation basis in terms of the said Rules. Such is not the issue in the present case. The question arises to be determined in the present Original Application is that when in terms of the Recruitment Rules in vogue at the point of time when the respondents had set the process for appointment to the post of Deputy Director of Enforcement by way of deputation/absorption in motion (22.7.2011) and the applicant was fully eligible for his appointment to the post by way of absorption and was duly selected by the UPSC, whether respondent No.1 can refuse to accept said recommendations on the plea that after such recommendation, the recruitment rules are sought to be amended to safeguard the interest of Assistant Directors, directly joined the organization. As has been noticed herein, it is not even the case of respondent No.1 that the selection of the applicant is in disregard of the relevant Recruitment Rules. There is no concept in service jurisprudence providing for ad hoc promotion of a deputationist in the borrowing department. The appointment of an employee in borrowing department by way of deputation in either capacity has to be considered as appointment by way of deputation only. There is no bar in appointment on deputation on a higher post. If the respondents appointed the applicant as Deputy Director of Enforcement (Assistant Director Grade I) in Directorate of Enforcement w.e.f. 8.9.2008, his appointment cannot be termed as irregular appointment for the simple reason that Rule 5 of the Recruitment Rules provided for relaxation of the rules and the appointment of the applicant may be considered in deemed relaxation of the rules. Nevertheless, as far as the question of absorption of the applicant is concerned, the post occupied by him on deputation basis is of no consequence, as admittedly the applicant satisfied the eligibility conditions mentioned in the Recruitment Rules for his absorption on the post in question and his appointment to the post of Deputy Director of Enforcement on deputation basis w.e.f. 8.9.2008 only strengthens his claim for absorption on said post. By now, he has experience of more than 6 years in the field of intelligence, investigation work and adjudication or prosecution relating to fiscal or criminal law and experience of more than 5 years of the post on which his selection is recommended by the UPSC. Again while forwarding the application of applicant for absorption to the post in question, the Directorate of Enforcement emphasized that there were only two Assistant Directors working in the DZO against the sanctioned post of three and the applicant was investigating in the DZO the important cases like 2G Spectrum scam, CWG scam, EMMAR MGF case, IREO case, etc., of which the 2G Spectrum investigation was being monitored by the Supreme Court on day-to-day basis. In the letter, it is mentioned that his absorption will give much needed continuity to the investigations being done in DZO and his application for absorption needed to be considered favourably. For easy reference, relevant excerpt of the said letter dated 25.7.2011 is extracted hereinbelow:-
The Director Directorate of Enforcement 6th Floor, Lok Nayak Bhawan, Khan Market, New Delhi Sub: Application for absorption to the post of Deputy Director- forwarding of application of Shri Rajeshwar Singh, Assistant Director, Grade-I Reg.
Sir, Shri Rajeshwar Singh joined, Enforcement Directorate as Assistant Director Grade-II w.e.f. 05/12/2007 on deputation. Prior to this he was working as Deputy Superintendent of Police in Uttar Pradesh Police. Later he was made Asstt. Director General I on Ad hoc basis. After completion of initial tenure of deputation of 3 years his deputation period was extended for one year wef 21/4/2011.
At present there are only two Asstt. Directors working in DZO against the sanctioned strength of three. Shri Rajeshwar Singh is investigating some of the important cases being investigated in the DZO like the case of 2G Spectrum scam, CWG scam, EMMAR MGF case, IREO case. The HO is aware that the 2G spectrum scam investigation is being monitored by the Supreme Court on day to day basis. Because of this reason the deputation of Rajeshwar Singh was extended by the competent authority upto 21/4/2012.
Shri Rajeshwar Singh has submitted an application for his absorption in this organization to the post of Deputy Director (earlier designated as Assistant Director, Grade-I), in term of amended Recruitment Rules of the said post promulgated vide Ministry of Finance, Gazette Notification No.336 dated 23/06/2011. His absorption will give much needed continuity to the investigations being done in DZO. In view of this his application for absorption may be favourably considered.
16. After said letter, the letter dated 13.10.2011 addressed to the Joint Secretary, Department of Revenue, Ministry of Finance was written espousing that it had become necessary that the Directorate of Enforcement should retain experienced and energetic Investigating Officers. In the said letter, it was also stated that there is overall shortage of officers in the Directorate of Enforcement and the situation has further worsened due to retirement of many cadre officers on superannuation. The letter also contained appreciation of the applicant, who is described as hardworking, sincere and outstanding officer. For easy reference, said letter is also reproduced hereinbelow:-
The Joint Secretary Department of Revenue, Ministry of Finance, Government of India North Block, New Delhi Sub: Absorption of Shri Rajeshwar Singh, to the post of Deputy Director in the Directorate of Enforcement-reg.
Sir, Shri Rajeshwar Singh joined Directorate of Enforcement as Assistant Director on 05/12/2007 on deputation for initial term of three years upto 05.12.2010. Prior to this, he was working as Deputy Superintendent of Police in Uttar Pradesh Police. His deputation period was extended upto 21.04.2012 vide letter dated 05.04.2011 of Ministry of Finance, Department of Revenue, issued from the file No.F.No.2/1/2008-Ad. ED.
At present the Directorate of Enforcement is investigating very highly sensitive case like, 2G Spectrum, Y.S. Jagan Mohan Reddy Case, Common Wealth Games-2010, Food Grain Scam in UP etc. Progress of investigation of these cases is regularly being monitored by the various Honble High Courts and Honble Supreme Court of India. Therefore, it has become necessary that the Directorate of Enforcement should retain experienced and energetic Investigating Officers.
There is overall shortage of officers in the Directorate of Enforcement. Despite our best efforts, there continues to be shortfall of officers in this Directorate. The situation has further worsened due to retirement of many cadre officers on superannuation. To fill up existing vacancies to some extent, Recruitment Rules have recently been amended for the post of Assistant Director, Grade-I and the post has been redesignated as Deputy Director, vide Ministry of Finance, Gazette Notification No.336 dated 23/06/2011 and providing therein a provision for absorption.
Shri Rajeshwar Singh is a hardworking, sincere and outstanding officer. He has been handling sensitive cases of PMLA and FEMA viz including Supreme Court monitored 2G Spectrum case etc., besides pursuing large number of complaints and new cases filed in the recent past. The repatriation of Shri Singh at this stage would not only hamper the investigation of ongoing cases, but would also adversely affect the operational effectiveness of the Directorate. Shri Singh has already submitted his willingness for his absorption to the post of Deputy Director (earlier designated as Assistant Director, Grade-I) (copy enclosed).
NOC for absorption of Shri Rajeshwar Singh from the U.P. Police, vide their Fax message No.DG-nks/v-27(17)2006 dated 12.10.2011 (Copy enclosed) has since been received.
In view of the above, it is requested that the matter be taken up for the approval of the competent authority for absorption of Shri Rajeshwar Singh to the post of Deputy Director (earlier designated as Assistant Director, Grade-I), since his services are required in larger public interest. Complete proposal is also being forwarded.
This issue with the approval of Director, Directorate of Enforcement.
17. As far as letter dated 2.5.2012 (Annexure R-1) authored by the Director, Directorate of Enforcement, New Delhi is concerned, we are satisfied that the applicant has completed 3 to 5 years of service as Deputy Director of Enforcement in the Directorate and satisfied the condition mentioned in the said letter. Besides, no administrative instructions, far less any letter, can substitute or vary the provisions of the Recruitment Rules. In the matter of recruitment to a post, the Rules notified under Article 309 of the Constitution are sacrosanct. In this regard, it would be apt to refer to paragraphs 6 and 7 of the order dated 21.8.2013 passed by this Tribunal (ibid), which read thus:
6. In the OM dated 3.10.1989 itself, it has been specifically provided that the qualification for appointment on deputation/transfer needs to be comparable to those prescribed for direct recruitment to the post where direct recruitment has also been prescribed as one of the methods of recruitment in the recruitment rules and not in such cases where in the rules, the specific qualification for transfer on deputation/transfer has not been prescribed. In the present case, where there is qualification prescribed in the recruitment rules, the clause 5.1 (iv) (ibid) may have no application. Besides, it is settled position of law that in case of there being conflict between the provisions of administrative instructions/guidelines and the statutory rules issued under proviso to Article 309 of the Constitution, the later would prevail. Even in Sureksha Luthra Vs. The Registrar General, Delhi High Court & Ors (2011 (II) AD Delhi), it could be noticed that the rules framed by State under Article 309 proviso would prevail. In K.K.Parmar & Ors Vs. High Court of Madras (AIR 2006 SC 3559), it could be viewed that the rules framed by State under Article 309 proviso may be applicable to the employees of High Court even though the executive instructions issued by it would not be applicable, particularly when such executive instructions were contrary to or inconsistent with the rules framed by the Honble Chief Justice of the High Court in terms of Article 229 of the Constitution of India.
7. In Comptroller & Auditor General of India Vs Mohan (AIR 1991) SC 2288), it could be viewed that though there is nothing to prevent the Government from issuing administrative instructions on matters upon which the statutory rules are silent, but the non statutory rules cannot modify the statutory rules. Also in OA No. 4233/2010) and OA No.2081/2012 (Sunil Garg Vs. Union of India), two different division Benches of this Tribunal could view that the administrative instructions contrary to rules cannot have the over riding effect on the rules and need to be ignored. Relevant excerpt of the order in OA No. 4233/2010 and OA No. 2081/2012 read as under:-OA 4233/2010
7. Since the issue raised by the applicant has already been dealt with by this Tribunal in the OA referred to by the respondents in their counter reply, the same need not be delved with into in detail again. For easy reference relevant excerpt of the order passed in OA-4233/2010 is extracted herein below:-
7. The case of the respondents, on the other hand, is that the service of the applicant is governed by the statutory rules and regulations already referred to hereinabove. Regulations in terms talk of supersession of those who are good by very good, and those who are very good by those who are outstanding. Relevant regulations 5(3) to 5(7) of the Regulations of 1964, reads as follows:
(3) The field of selection shall be determined by the Selection Committee by taking the required number of persons from the single list drawn up under clause (2), in the order of their inclusion in that list.
(4) The Selection Committee shall classify such of the officers included in the field of selection as are considered fit for appointment to Grade I as outstanding, very good and good, on the basis of merit.
(5) The recommendations of the Selection committee, together with the upto date confidential records of the concerned officers and such other information as may be relevant, shall be forwarded to the Commission for their advice.
(6) Subject to the orders of Government, the recommendations of the Commission as regards suitability and classification of the concerned officer shall be accepted.
(7) The Select List shall be prepared by including the required number of names first from amongst the officers finally classified as outstanding then from amongst those similarly classified as very good and thereafter from amongst those similarly classified as good. The order of names inter se within each category shall be the order in which the names are arranged in the single list prepared under clause (2). The Select List so prepared shall be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions. The benchmark for inclusion in the select List was good and continues to be so, but as mentioned above, those with high service credentials and gradings would outsmart and thus supersede those with lesser gradings in their ACRs. It has been the consistent law, be it the Central Administrative Tribunal, or the High Courts in the country, or the Honble Supreme Court, that such reports which may be good and which may not exclude an employee from consideration for promotion, need not be communicated. These judgments still stand the test of time. A significant development, however, took place in 2002 when the Government in the Department of Personnel & Training came out with the instructions that the benchmark for promotion would be very good consistently for the last five years, and anyone who may not be having very good grading even in one year out of five, would not be promoted. Earlier to the instructions aforesaid, a person with good record or grading as may reflect from his ACRs, was to be considered for promotion, and, therefore, such reports which were good, it has been consistently held, may not be conveyed. The revision in the instructions of no supersession and consistent very good benchmark in all the ACRs under consideration brought about a sea change. We may demonstrate. Earlier to the instructions issued in 2002, if a Government employee may have four outstanding ACRs and one good ACR, which were under consideration, he would normally be promoted. Now after the instructions of the year 2002, an employee with even four outstanding ACRs and one good out of five, would not be even in the zone of consideration. It is in consideration of this significant development that the law has now evolved that even such reports which are good but would be definitely adverse as taking an employee out of the zone of consideration, shall have to be communicated. The first decision in this connection came to be recorded by a Full Bench of five Honble Vice-Chairmen/Members of this Tribunal in the matter of Ashok Kumar Aneja v Union of India & others [OA No.24 of 2007 decided on 7.5.2008]. On the heels of the judgment aforesaid, the Honble Supreme Court in Dev Dutt v Union of India & others [(2008) 8 SCC 725] and Abhijit Ghosh Dastidar v Union of India & others [Civil Appeal No.6227 of 2008, decided on 22.10.2008], held that all such reports which may be good but below benchmark for promotion, shall have to be communicated. We may specifically mention that the Tribunal while holding so has not over-ruled its earlier Full Bench judgment on the issue wherein it has been clearly held that the good reports need not be communicated. The Honble Supreme Court in its judgments in Dev Dutt and Abhijit Ghosh Dastidar (supra) has also not over-ruled its earlier judgments holding that reports which may be good need not be communicated. There was no need to do so as the judgments now containing the mandate that the all good but below benchmark reports have to be communicated, have come about only because of change in instructions where no supersession is to be made and all those who may have consistently very good grading, which is the benchmark for promotion, in all the ACRs under consideration, have to be promoted as per their seniority. In the case in hand, at the time when the case of the applicant came for consideration for inclusion in the Select List of 2003, regulations 5 (3) to (7) were in position. The applicant with two good and three very good reports was indeed considered, but was superseded by those who had better credentials of very good or outstanding. It may be recalled that not only the applicant, but seven other persons equally situate, senior to the applicant, were also found unfit because their grading was good, whereas others who may be junior to them, had very good or outstanding gradings. The instructions of 2002 would not replace the statutory rules or regulations. The change in the Regulations as regards giving precedence to those who are outstanding over those who are very good, and to those who are very good over those who are good came about by virtue of amendment brought about in the Regulations vide notification dated 13.2.2006. It is only after the notification has come about that it may be debatable as to whether it would be incumbent upon the respondents to convey to the employees such reports which may be only good. It was not incumbent at all to convey good report of the applicant at the time when his case came for consideration for inclusion in the Select List of 2003. This is the basic reason given in the impugned order dated 20.10.2010 rejecting the representation of the applicant. It is a detailed and speaking order and we find no flaw in the same.
18. The noting contained in departmental file No.A-35011/5/2011-ED (Notes Vol. I & II) relied upon by learned counsel for respondent No.1 to contend that the absorption of the applicant would adversely affect the career prospects of such officers who are promoted as Deputy Directors from the rank of Assistant Directors is of no consequence, for the simple reason that the noting in the departmental file are nothing but discussion and analysis on a subject and have no authority and force in the eyes of law until and unless culminated in an order/instruction/ circular/ office memorandum on the subject. Moreover, likelihood of adverse effect on seniority of certain incumbents, who are yet to be promoted to a particular grade, can be no ground to deny absorption to a candidate duly selected and recommended for such absorption by a constitutional body, like UPSC.
19. With reference to the aforementioned noting, Mr. R. Balasubramanian, learned counsel for respondent No.1 also contended that said respondent has taken a conscious decision not to fill up the post of Deputy Director of Enforcement till the amendment of the Recruitment Rules. In this regard, he has placed reliance upon the judgment of Honble Supreme Court in Dr. K. Ramulus case (supra), wherein the Apex Court had taken a view that the Government is entitled to take a decision not to fill up the existing vacancies on the relevant date. The view taken in Y. V. Rangaiah v. J Sreenivasa Rao, (1983) 3 SCC 284 was distinguished by the Honble Apex Court in the said case with a view that in the case of Y.V. Rangaiah the Government merely amended the Recruitment Rules and applied the same without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date of new Rules came into force. For easy reference, paragraphs 12 & 13 of the said case are extracted hereinbelow:-
12. The same ratio was reiterated in U.O.I. & Ors. v. K.V. Vijeesh [(1996) 3 SCC 139, paras 5 and 7]. Thus, it could be seen that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. Shri H. S. Guraraja Rao, contends that this Court in Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. [(1983) 3 SCC 284] had held that the existing vacancies were required to be filled up as per law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who are eligible prior to the date of appointment. It is seen that the case related to the amendment of the Rules prior to the amendment of the Rules. Two sources were available for appointment as sub-Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as sub-Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As proposition of law, there is no dispute and cannot be disputed. But the question is: whether the ratio in Rangaiah's case would apply to the facts of this case? The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao & Ors. v. State of A.P. & Ors. [(1988) Supp. SCC 740], P. Mahendranath v. State of Karnataka [(1990) 1 SCC 411], A.A. Caljon v. Director of Education [(1983) 3 SCC 33], N.T. Dev v. Karnataka PSC [(1990) 3 SCC 157, Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors. [(1996) 7 Scale 619]. In none of these decisions, situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules.
13. It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the rules, Rule 3 of the General Rules is not of any help to the appellant. The ratio in the case of Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors. [(1996) 7 SCALE 619] is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules. He then relies on paragraph 14 of the unreported judgment of this Court made in Union of India V/s. S.S. Uppal & Anr. [(1996) 1 Unreported Judgments (SC) 393]. Even that decision is not of any help to him. He then relies upon the judgment of this Court in Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc. [(1996) 7 SCALE 31] wherein it was held that the existing rights saved by the repealed Act would be considered in accordance with the Rules. The ratio therein is not applicable because the existing Rules do not save any of the rights acquired or accruing under the Rules. On the other hand, this court had pointed out in paragraph 23 thus:
"Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of the Parliament as if it had never been passed it, (sic) it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. Legal fiction is one which is not an actual reality and which the law recognises and the court accepts as a reality. Therefore, in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise could not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w.e.f July 1, 1989, the law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or saved."
20. In the present case, it is not so. No decision was taken by respondent No.1 to not fill up the existing vacancies in terms of the Recruitment Rules of 2009. Rather the application of the applicant for his absorption as Deputy Director of Enforcement in the Directorate of Enforcement was duly forwarded and he was selected for such absorption by the UPSC and recommendations were made to respondent No.1 for his appointment by way of absorption. In the noting contained in the departmental file No.A-35011/5/2011-ED, it could be communicated on 31.10.2012 that allowing the absorption will adversely effect the career prospect of officers who are promoted as Deputy Directors from the rank of Assistant Directors. The said note was recorded when the UPSC had already sent its recommendations to the Secretary to the Government of India, Department of Revenue for absorption on 19.9.2012. The note initiated after selection of the applicant for absorption and the recommendations of the UPSC in this regard cannot be treated as conscious decision not to fill up the post in accordance with the Recruitment Rules in vogue. Moreover, in the said note there is no decision taken to not fill up the vacancies as per the un-amended Recruitment Rules. What is decided is to not fill up the post of Deputy Director of Enforcement by way of absorption for the reason that it could adversely affect the seniority of Assistant Directors, who are likely to be promoted as Deputy Director. The likely adverse effect on seniority or career prospects on certain employees can be no ground to deny absorption to a particular individual or category of persons. Rather such decision taken to safeguard the interest of employees of one category to the detriment to the interest of another category can be described as colorable exercise of power or bias decision. It would not be out of place to note here that it is not in dispute that the officers whose names are mentioned at Sl.Nos. 2 to 5 in the letter dated 19.9.2012 of UPSC in which the name of applicant is mentioned at Sl.No.1 have been given appointment on deputation. We dont know any such law, which provides that a decision can be taken not to fill up vacancies by absorbing a candidate at serial number one of the list of candidates recommended for appointment by way of absorption and fill upon the vacancies by appointment of candidates at Sl.Nos. 2 to 4 on deputation.
21. In O.A.No.3039/2012 (ibid), it was the stand of the Union of India, espoused through Mr. P.P. Malhotra, Additional Solicitor General, that there was need to fill up the available vacancies at all levels in accordance with existing available Recruitment Rules. The stand taken on behalf of the Union of India noticed in the Order passed in the said O.A. after due note of the judgment of Honble Supreme Court in Dr. K. Ramulus case (supra), reads as under:-
8. In P. Mahendran & Ors Vs. State of Karnataka & Ors (AIR (1990) 1 SC 405), it could be provided that unless the amendment is given retrospective effect, it cannot affect the right of a candidate who was duly qualified according to the recruitment rules which were in force at the time when the selection was made by the body authorized to make it. Relevant excerpt of the judgment read as under:-
5. It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary-intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
In Nirmal Vs. Union of India (1991) Supp 2 SCC 363), it could be viewed that even where the restructuring of a service is necessitated by the mistake on the part of the Department, such change should not be interpreted so as to prejudice those who were in service prior to the date when the change in the rule took place. In Y.V. Rangaiah and Others Vs. State of A.P. and another (AIR 1983 SC 852), it could be viewed that the available vacancies need to be filled up in accordance with the recruitment rules in vogue at the time of occurrence of the vacancy. Relevant excerpt of the judgment read as under:
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
It has been viewed by the Honble Supreme Court in Dr. Ramulu and Another etc. Vs. Dr. S.Suryaprakash Rao and Ors (1993 (3) SCC 59), the Govt. can always take conscious decision to await the amendment in the recruitment rules and fill up the available vacancies in accordance with the amended rules. Para 13 of the judgment reads as under:-
13. It is seen that since the Government have taken a conscious, decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the appellant. The ratio in the case of, Ramesh Kumar Choudha v. State of M.P. (1996) 7 SCALE 619), is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules. He then relies on paragraph 14 of the unreported judgment of this Court made in, Union of India v. .S. S. Uppal (1996) 1 UJ (SC)393 : (1996) AIR SCW 848). Even that decision is not of any help to him. He then relies upon the judgment of this Court in, Gajraj Singh v. State Transport Appellate Tribunal, (1996) 7 SCALE 31 : (1996 AIR SCW 3793), wherein it was held that the existing rights saved by the repealed Act would be considered in accordance with the Rules. The ratio therein is not applicable because the existing Rules do not save any of the rights acquired or accruing under the Rules. On the other hand, this Court had pointed out in paragraph 23 thus:
"Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act completely from the record of the Parliament as if it had never been passed it, (sic,) it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. Legal fiction is one which is not an actual reality and which the law recognises and the Court accepts as a reality. Therefore, in case of legal fiction the Court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w. e. f. July 1, 1989, the law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or save."
However, in the present case, it is not so. The respondents have not taken any conscious decision not to fill up the available vacancies in accordance with the existing recruitment rules, rather learned Additional Solicitor General emphasized that there is need to fill up the available vacancies at all level in accordance with the present method prescribed in the available recruitment rules.
22. Also in the letter written by learned Additional Solicitor General on the basis of the aforesaid Order of the Tribunal dated 21.8.2013, it has been advised that it would be in order for the Government to accept the recommendations of the UPSC regarding appointment on the post of Deputy Director of Enforcement on deputation / absorption basis. For easy reference, the relevant excerpt of said letter dated 6.9.2013, placed on record as enclosure to the rejoinder affidavit of the applicant, is reproduced hereinbelow:-
Regarding Departments Query about outcome of OA No.3039 of 2012 in Shashi Shekhar & Ors Vs. UOI. Directorate of Enforcement.
Recruitment Rules for the posts of Deputy Director of Enforcement, Group A posts Recruitment Rules, 2011 provided that in 2011 there were 150 posts of Deputy Directors. An OM was issued on 22nd July, 2011 to fill up 47 posts of Deputy Directors. As per the said Recruitment Rules, 50% of the posts were required to be filled up by promotion and remaining 50% of the posts were to be filled up by deputation/absorption. Several persons were interviewed by the UPSC>
2. The selection had been made by the UPSC after following the due procedure and five officers were recommended for the post of Deputy Directors as per Recruitment Rules by deputation/ absorption.
3. The above OA was filed by four Enforcement Officers to challenge the selection and appointment of Deputy Directors who was selected as per existing Recruitment Rules under Article 309 of the Constitution. In the OA it was claimed that there was some anomaly in the Rules and in view of the alleged anomaly the applicants claimed promotion.
4. The Tribunal after due hearing, has passed a detailed order and has disposed of the OA. The Tribunal has held that in view of the specific provisions in the Recruitment Rules no fault could be found with the Government in making the appointment on the basis of deputation/absorption and it is a settled position of law that in case of any conflict between Administrative instructions and Rules, the Statutory Rules under Article 309 will prevail.
5. Since the selection has been made as per Rules and O.A. has been dismissed, therefore selected persons are liable to be appointed.
6. I have been informed that even though UPSC had made recommendations for appointments but the Department of Personnel & Training has not yet made the appointment. In view of the dismissal of the OA it would be in the order for the Government to accept the recommendations of the UPSC and further proceed in the matter. In view of the aforementioned, particularly the fact that the respondents had not taken any conscious decision not to fill up the post in question till amendment of the Recruitment Rules, the view taken in the case of Dr. K. Ramulu (supra) is distinguishable.
23. In the case of Secretary, A.P. Public Service Commission (supra), it could be held by the Apex Court that once a process of selection starts, the prescribed selection criteria cannot be changed. The Logic behind the same is based on fair play. Paragraphs 14 & 15 of the said judgment read as under:-
14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for the applicant-respondent No.1 it was un-amended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criteria e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the Statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If the Rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran and Ors. v. State of Karnataka and Ors. etc. (1990 (1) SCC 411) and Gopal Krishna Rath v. M.A.A. Baig (dead) by Lrs. And Ors. (1999(1) SCC 544).
15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramchandra Iyer and Ors. v. Union of India and Ors. (1984 (2) SCC 141) this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
24. In the present case, once the respondents had set the process of selection to the post of Deputy Director of Enforcement by way of deputation / absorption on 22.7.2011 and before that no conscious decision has been taken to not fill up the post in accordance with the Recruitment Rules in vogue, after selection of the applicant in September 2012, respondent No.1 could not have taken a decision to not fill up the post by way of absorption and to fill up the same by way of promotion in accordance with the rules / provisions to be incorporated in the rules by way of amendment.
25. In view of the aforementioned, the plea of the applicant that a conscious decision had been taken not to fill up the post of Deputy Director of Enforcement in accordance with the Rules in vogue cannot be accepted. In view of the judgment in the case of State of A.P. Public Service Commission (supra), the respondents could not have denied the benefit of recommendations of UPSC dated 19.9.2012 to the applicant, as they cannot be allowed to defeat his selection already finalized on the plea that the provisions of the Recruitment Rules on the basis of which the selection was based are to be amended. At the cost of repetition, it is viewed that denial of absorption to an individual on the plea that the same would stand in the way of seniority of category of persons, who were likely to be promoted in the grade, can hardly be countenanced. Such stand would be easily described as favoritism. The stand taken in letter No.A.35011/5/2011-Ad-Ed. Dated 15.10.2013 is in direct conflict of the aforementioned judgment of Honble Supreme Court and cannot be accepted.
26. Another vital plea taken by learned counsel for respondent No.1 is that the said respondent can always take the conscious decision not to fill up the vacancies and deny appointment to selected candidate. In this regard, reliance has been placed on the judgment of Apex Court in the case of Shankarsan Dash (supra). In paragraph 7 of the judgment, it has been viewed that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire no indefeasible right to be appointed and the State is under no legal duty to fill up all or any of the vacancies. Nevertheless, in the said case also, it is viewed that the State has no licence of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. For easy reference, paragraph 7 of the said judgment reads as under:-
7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.
27. In the present case, it is not so that respondent No.1 has decided not to fill up the vacancies of Deputy Director of Enforcement. Rather to the contrary, it is emphasized in the letters dated 25.7.2011 and 13.10.2011 of the Directorate of Enforcement (ibid) that the absorption of the applicant will give much needed continuity to the investigations being done in DZO and there is overall shortage of officers in the Directorate of Enforcement. In O.A.No.3039/2012 (ibid), it was the stand taken on behalf of the Union of India that 135 posts of Deputy Director of Enforcement are vacant and the existing vacancies need to be filled up in accordance with the Recruitment Rules in vogue, as the functioning of the department cannot be paralyzed. The stand taken by the learned Additional Solicitor General in the O.A. was taken note of in the Order dated 21.8.2013, which reads as under:
3. Shri P.P.Malhotra, learned Additional Solicitor General referred to the Recruitment Rules for the posts of Chief Enforcement Officer (AD (E) and DD (Enforcement)) and submitted that the respondents have committed no irregularity in filling up the posts in said categories/grades in accordance with the recruitment rules. Referring to the status of the working strength of the Directorate of Enforcement, he submitted that as many as 135 posts of Deputy Director are still lying vacant in the Department and just to meet the expectation of the applicants, the functioning of the department cannot be paralyzed. He submitted with aplomb that the amendment in the recruitment rules may take its own time and the available vacancies will have to be filled up in accordance with the recruitment rules in vogue for the present. The status of the working strength of Directorate of Enforcement as produced by the learned Additional Solicitor General reads as under:-
S. Name of the Sanctioned Working Departmental Deputation Vacant
No. Post strength
1. Joint Director 33 7 2 5 26
2. Deputy Director 150 15 11 4 135
3. Assistant Director 250 62 17 45 188
4. Enforcement
Officer 350 113 80 33 237
5. Assistant
Enforcement Officer 425 45 12 33 380
28. Even now also, it is not so that respondent No.1 has taken a decision not to fill up the post of Deputy Director of Enforcement but it has decided to deny the absorption to the applicant on the ground that his absorption may have adverse effect on the seniority of the Assistant Directors likely to be promoted as Deputy Directors. Such ground to deny absorption to an individual duly selected and recommended can hardly be countenanced. In the circumstances, we do not find any force in the plea of learned counsel for respondent No.1 that since the Government has a right to take a decision not to fill up any vacancy, the applicant can be denied the benefit of recommendations of the UPSC (ibid).
29. In R.S. Mittals case (supra), it has been viewed by the Apex Court that there has to be a justifiable reason to decline appoint to a person who is on the select-panel. Paragraph 12 of the said judgment reads thus:
12. It is no doubt correct that a person on the select- panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified.
30. We have already viewed hereinabove that resentment of a group of officers and likelihood of adverse effect on their promotion and seniority or the possibility of absorption of an eligible younger officer on a post cannot be a justifiable ground to not implement the recommendations of the UPSC to absorb / appoint the selected candidate. Besides the applicant is already occupying the post on which his absorption is recommended, thus there is hardly any case that respondent No.1 has decided not to fill up the post.
31. Also in Jai Singh Dalals case (supra), it could be viewed by the Apex Court that the appointment / recruitment process can be stopped by the Government at any time before a candidate is appointed and a candidate has no vested right to compel the Government to complete the process. Such is not the position in the present case, as the post on which the absorption of the applicant has been recommended, is already occupied by him. In the said case, the appellants were members of the Haryana State Services and were working in different capacities in the State of Haryana in the year 1990. In that year the total strength of the Haryana Civil Service (Executive Branch) was 200 against which only 155 officers were in position. There being 45 vacancies, the Government of Haryana took a decision to resort to special recruitment under Rule 5 of the Punjab Civil Services (Executive Branch) Rules, 1930. Subsequently, the special recruitment was withdrawn by the Government. The Honble High Court refused to interfere with the decision of the Government to withdraw the special recruitment. As has been noticed hereinabove, in the said case it was not so that any select list was prepared. The Government of Haryana cancelled the notifications dated 20.12.1990 and 25.1.1991 itself. The factual and legal position in the present case is materially different, as it is only after the selection of the applicant by the UPSC for his absorption that the respondent No.1 did not act upon said recommendations merely because the absorption of the applicant can adversely affect the seniority of the Assistant Directors, who are likely to be promoted as Deputy Director. It is settled position of law that a judgment can be followed as precedent, keeping in view the factual position contained therein. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another, 2004 (6) SCALE 232, it has been held thus:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
32. Also in the case of J & K Public Service Commission (supra), it could be viewed by the Apex Court that the process of selection for recruitment against existing or anticipated vacancies does not create a right to appointment and the Government has power to decide the number of posts which should be filled up. In the present case, it is not so that respondent No.1 has decided not to fill up the post. The only reason for not implementing the recommendations of the UPSC is that if the applicant is absorbed, the Assistant Directors likely to be promoted in future will get seniority below him. Such ground for not acting upon the recommendations of the UPSC can hardly be countenanced. In this regard, it would be apt to reproduce the letter dated 15.10.2013 (ibid) as under:-
3 If absorption is allowed then such officers being absorbed will become part of the ED Cadre and their inter se seniority will be fixed vis-`-vis officers who have been promoted to the rank of Deputy Director. This will adversely impact the career promoted to the rank of Deputy Director. This will adversely impact the career prospects of the departmental officers as officers coming from other departments are likely to be younger than the promoted officers leading to large scale resentment amongst the departmental officers. (emphasis supplied)
33. Also in State of M.P. & others v. Raghuveer Singh Yadav & others (supra), the Recruitment Rules for the post of Inspectors, Department of Weights and Measures in the State of M.P. were amended to the effect that the eligibility qualification of degree in Arts or Commerce was substituted with the qualification of degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. Such amendment was made to improve the efficiency of service. The directly recruited Inspectors were to serve the organization for long. The amendment in the Recruitment Rules, in the interest of efficiency of service, was a conscious decision and the Apex Court found justification in such amendment and not filling up the post as per the un-amended Recruitment Rules. In the present case, the ground to deny appointment is not the interest / efficiency of service but is the interest of Assistant Directors, who are likely to be promoted as Deputy Directors. Besides the applicant has already been working on the post on which his absorption is recommended by the UPSC, for over 5 years and his performance and efficiency is duly appreciated by the Department.
34. State of Bihar & others v. Md. Kalimuddin & others (supra), the Apex Court viewed that the selected candidates have no indefeasible right to appointment. In the said case, the stand of the appellants, i.e., the State of Bihar, was that the High Court could entertain the petition after one year, i.e., after the list had lapsed, on the erroneous assumption that the respondents had moved the petition before the expiry of one year. In the said case, the life of panel had come to an end on the expiry of one year on 18.1.1992 while the petition was filed two days later i.e. on 20.1.1992. In the present case, there is no issue that the applicant is seeking appointment after expiry of the panel. Here the applicant is working on the post of Deputy Director of Enforcement and he has sought implementation of the recommendations of the UPSC for his absorption.
35. In Union of India & others v. K.V. Vijeesh (supra), the Apex Court held that the denial of appointment to the persons removed from the list is not arbitrary or discriminatory. In the present case, the vacancies are in abundance but the Department has already emphasized need to fill up the same.
36. In Rajasthan Public Service Commission v. Chanan Ram & another (supra), the last date for submission of the applications was 31.12.1993 but three days prior to the date of submission of applications, the Rajasthan Government asked the appellant-Commission not to proceed with the recruitment because the relevant recruitment rules were being amended. Such is not the position in the present case, as respondent No.1 has denied appointment to the applicant after selection only because his absorption may have adverse effect on the seniority of Assistant Directors likely to be promoted as Deputy Directors.
37. The controversy in the present case is, in all fours, of the decision in Secretary, A.P Public Service Commission v. B. Swapna & others (supra) wherein it has been held that the norms of selection cannot be altered after commencement of the selection process. We agree with the learned counsel for respondent No.1 that the absorption and deputation are two distinct modes of recruitment but such distinction is of no consequence in the present case. Even otherwise also, as has been mentioned by the UPSC in its letter dated 24.10.2013 (page 230 of the paper book), the appointing authority cannot overrule the recommendations of UPSC and if it proposes to disagree with the advice of UPSC for any valid reason, the matter need to be referred to ACC. For easy reference, paragraph 3 of the said letter is extracted hereinbelow:
3. It is also observed that while disagreeing with the recommendations of the Commission, the Department of Revenue has not followed the due procedure as stipulated by DoP&T in its guidelines issued vide its O.M. No.39023/02/2006-Estt (B) dated 05.12.2006 (copy enclosed) which prescribes a certain procedure to be followed while not accepting the advice of the UPSC tendered in response to a reference made to it in appointment and disciplinary case. In the appointment case (direct recruitment/deputation/promotion etc.), these guidelines stipulates as under:
(1) (b) Cases were approval of ACC is not required for appointment.
Where the Appointing Authority proposes to disagree with advice of UPSC for any valid reason, case(s) should be referred to the ACC, alongwith a self contained note, through EOs office in Department of Personnel and Training for decision. In respect of cases, where the final decision by the ACC involves disagreement with the advice of UPSC, reasons for non-acceptance of the Commissions advice will also be intimated by the Ministry/Department/concerned Division of Department of Personnel & Training to the UPSC while communicating the decision of the ACC, unless it has been decided to withhold the reasons for disagreement in the public interest.
38. In the present case, respondent No.1 has not acted upon the same merely because the absorption of the applicant can have adverse effect on the seniority of certain employees directly joined the Department. We have repeatedly stated above that such ground to deny absorption is not plausible.
39. Following the view taken by the Honble Apex Court in Secretary, A.P. Public Service Commission v. B. Swapna & others (supra), we allow the present Original Application. Respondent Nos.1 and 3 Union of India, Ministry of Finance and Ministry of Personnel Public Grievances & pension are directed to abide by the recommendations of the Union Public Service Commission and to issue the order of absorption of the applicant as Deputy Director of Enforcement, within a period of four weeks from the date of receipt of a copy of this order. Till the order of absorption is issued, the interim order dated 11.10.2013 would remain in operation. No costs.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) December 24, 2013 /sunil/