Central Administrative Tribunal - Delhi
Sh. P.B. Singh vs Union Of India Through on 23 September, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No. 1245/2014 Reserved on: 03.09.2014 Pronounced on: 23.09.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Sh. P.B. Singh, Joint Secretary & Legislative Counsel, Legislative Department, Ministry of Law and Justice, 4th Floor, A-Wing, Shastri Bhawan, New Delhi 110 001. Applicant (By Advocate: Sh. A.K. Behera) Versus 1. Union of India through Cabinet Secretary, Cabinet Secretariat, Rashtrapati Bhawan, South Block, New Delhi 110 004. 2. Secretary, Department of Legal Affairs, Ministry of Law and Justice, 4th Floor, A-Wing, Shastri Bhawan, New Delhi 110 001. 3. Secretary, Legislative Department, Ministry of Law and Justice, 4th Floor, A-Wing, Shastri Bhawan, New Delhi 110 001. 4. Secretary, Department of Personnel & Training, Ministry of Personnel & Public Grievances, North Block, New Delhi. Respondents (By Advocate: Sh. Rajesh Katyal) O R D E R By Dr. B.K. Sinha, Member (A):
The instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 is not directed against any particular order. Here, the applicant is aggrieved by the alleged maliciously motivated actions and inactions of respondent no.3, who has highhandedly violated all service rules, legal ethics and the Cabinet decisions dated 15.06.2004 and 11.10.2007 [Annexure P-1 (Colly.)] which require for the appointment of the applicant being the senior- most Joint Secretary and Legislative Counsel (hereinafter referred to as JS&LC) against the vacancy which had arisen on 07.08.2013 consequent to promotion of one N.L. Meena, the then Additional Secretary in Legislative Department to the post of Member Secretary Law Commission.
2. The applicant has prayed for the following relief(s):-
To direct the respondents to appoint applicant-the senior most Joint Secretary & Legislative Counsel as Additional Secretary against vacancy of 7th August, 2013 in the Legislative Department, in Ministry of Law & Justice, in accordance with the Cabinet decision dated 11.10.2007 in the Government of India (Annexure P-1)(Colly) with effect from 7th August, 2013 the date vacancy arose in the post of Additional Secretary in Legislative Department.
Pass such other orders as the Honble Tribunal may deem fit and proper in the facts and circumstances of the case as well in the interest of justice.
3. The case of the applicant, very briefly stated, is that he is the senior-most JS&LC in the Legislative Department, Ministry of Law & Justice, and he is entitled to hold the post of Additional Secretary in the Legislative Department in terms of the Cabinet decision dated 11.10.2007 whereby one post of JS&LC was upgraded to that of the Additional Secretary to be held by the senior-most JS&LC in the Legislative Department. Since the creation of that post, there is a precedent that the senior-most JS&LC is promoted to hold the post of Additional Secretary while the other posts in Law Commission cadre, Government Advocates Cadre and Legislative Cadre Departments are being filled up by Search-cum-Selection method in terms of the Circular of the DOP&T issued on 02.09.1999. The applicant submits that all the posts in three Legislative Departments of the Indian Legal Service ought to be filled vide circulars of the Government of India relating to promotion as Additional Secretary following due process. The applicant had earlier filed OA No.1692/2013 for enforcement of his rights. The said OA was dismissed by this Tribunal vide order dated 15.07.2014. The applicant has also filed a review application against the aforesaid order of the Tribunal, which is pending consideration. However, the post of Additional Secretary in the Legislative Department had fallen vacant w.e.f. 07.08.2013 on account of elevation of one N.L. Meena, the incumbent of the said post, as Member Secretary, Law Commission. It is the case of the applicant that both by convention as well as by application of rules, he should be elevated to the post of Additional Secretary being the senior-most JS&LC. The applicant submitted his representation to this effect on 07.04.2014, which has been of no avail. He, therefore, filed the instant Original Application.
4. It is submitted that since the applicant is involved in a series of litigation bearing OA No.883/2012, 1294/2012 and 1692/2013 before this Tribunal, the respondents are highly prejudiced against him and are maneuvering to deny him the benefit of this dispensation. It is further submitted that the respondents are silent over his representations dated 08.08.2013 and 18.09.2013 and are procrastinating the matter over the last nine months knowing well that the applicant is due to retire from service on 30.11.2014.
5. The applicant, amongst the grounds in support of the OA, submits that under Rule 13 of Indian Legal Service Rules, 1957 [hereinafter referred to as Rules of 1957], the conditions of service of the members of the service in respect of matters for which no provision is made in the rules shall be the same as are applicable from time to time to officers of the Central Civil Services, Class-I. The instructions of the DOP&T are applicable for appointment to the higher grade of Additional Secretary by virtue of Rule 13 of the Rules of 1957. Wherever instructions provide for appointment through seniority, the right of consideration for appointment accrues, and the denial thereof amounts to violation of Articles 14 & 16 of the Constitution. The applicant has alleged that Sh. P.K. Malhotra, Secretary of the Legislative Department is prejudiced against him on account of the fact that the applicant had challenged his appointment as Secretary in the Department. The applicant has, therefore, challenged inaction of the Government in not appointing him to the post of Additional Secretary of the Legislative Department being discriminatory in character as in that post similarly situated persons had been appointed on the basis of seniority.
6. The respondents have filed a counter affidavit stating that in the year 2004, there was one post of Secretary, one post of Additional Secretary and six posts of JS&LC in the Legislative Department. In view of the increasing workload in the Legislative Department, one post of JS&LC was upgraded to that of Additional Secretary for being held by the senior-most JS&LC with the approval of the Cabinet. This post was initially held by one Z.S. Negi, the senior-most JS&LC in the Legislative Department, till his superannuation on 31.08.2005. The said post remained unfilled for more than one year and it was deemed to have been abolished w.e.f. 31.08.2006. Then the approval of the Cabinet was solicited to operationalize/revive the said post of Additional Secretary for being held by the senior-most JS&LC of the Legislative Department and it was approved in the meeting dated 11.10.2007.
7. It has been admitted by the respondents in the affidavit that the applicant has had the requisite experience, and a meeting was scheduled to be held on 06.09.2013 for making selection to the post of Additional Secretary in the Ministry of Law & Justice. The meeting was subsequently postponed. However, on 29.08.2013, a note was sent to Cabinet Secretariat informing that the post of Additional Secretary in Legislative Department which had fallen vacant on 08.08.2013 was not to be filled by the process of Search-cum-Selection Committee but to be held by the senior-most JS&LC in the Legislative Department. Therefore, the Cabinet Secretariat was requested to clarify whether the Department may go ahead with the proposal for filling up the post by way of appointment of senior-most JS&LC, the Cabinet Secretariat, in turn, informed that the matter may be taken up with the Cabinet for filling up the post through Search-cum-Selection Committee procedure so that there may not be any ambiguity in the matter. Now, the crux of the matter is that the Cabinet Secretariat is contemplating that the post of Additional Secretary in the Legislative Department should be filled up by the process of Search-cum-Selection Committee. In view of the proposal for changing the mode of selection process for filling up the post of Additional Secretary from the senior-most JS&LC in the Legislative Department to that of Search-cum-Selection procedure, it is inadvisable to fill up the post and to await the outcome of the proposed policy.
8. Rest of the facts being admitted, the respondents have strongly denied there being any malice on part of Sh.P.K. Malhotra, who has processed the case of the applicant according to the rules and law for appointment to the post of Additional Secretary in the Legislative Department. However, a change in policy is the outlook of the Government and is being dealt with at the level of the Cabinet Secretariat.
9. We have carefully gone through the pleadings of the parties as also the documents adduced by them. We have also patiently heard the arguments advanced by the learned counsel for the parties. The only point for our consideration is that whether the applicant has any right to hold the post of Additional Secretary, particularly in light of the fact that a policy change is in contemplation whereby the post in question in the Legislative Department would also be filled up by Search-cum-Selection method like in other departments of the Indian Legislative Service, and whether by not considering him for appointment to the said post by the respondents, he is being discriminated in derogation of Articles 14 & 16 of the Constitution of India.
10. It is an admitted fact that the post of Additional Secretary was held by one N.L. Meena from 14.12.2007 to 07.08.2013. We also take note of the fact that the applicant has submitted a seniority list (Annexure P-2) whereby one N.K. Nampoothiry (since retired) is shown at Sl.No. 1, and Dr. Sanjay Singh, Additional Secretary, who was appointed on 18.06.1991, is at serial no.2, while the applicant is at serial no.3 and was appointed to the Service on 28.12.1989. It is a fact that the post of Additional Secretary in question is lying vacant since 07.08.2013 consequent upon promotion of the incumbent to the post of Member Secretary, Law Commission. It is also a fact that the policy change is under contemplation of the Cabinet Secretariat whereby the post under consideration is also to be filled in a manner similar to that of the Additional Secretary through a Search-cum-Selection procedure. No doubt, a person has only right of consideration against a particular post and not to appointment. In the instant case, we find that when the proposal was submitted for promotion of the applicant, a number of queries were raised and ultimately it was decided to change the mode of promotion to that of the Search-cum-Selection Committee. In this regard, the respondents have submitted the following table which is being extracted just to illustrate the point:-
Appointment to the post of Additional Secretary created in 2004 by up-gradation of one post of JS&LC in Legislative Department and revived in 2007 Statement showing details of action taken by the Department.
Sl.
No. Date Action Taken 1 14.8.2013 Shri N.L. Meena, Additional Secretary was appointed as Member-Secretary Law Commission of India w.e.f. 8.8.2013 vide Notification dated 14.08.2013 issued by Department of Legal Affairs.
2 19.8.2013 Action initiated by Legislative Department for making appointment to the post by sending a note for Vigilance Clearance in respect of Shri P.B. Singh, senior most JS&LC, Legislative Department.
3 22.8.2013 Vigilance Clearance received from Department of Legal Affairs.
4 27.8.2013 Note dated 23.8.2013 received from Cabinet Secretariat informing that next meeting of Search-cum-Selection Committee will be held on 6.9.2013 for making selection to the posts of Additional Secretary in the Ministry of Law & Justice.
5 29.8.2013 Note sent to Cabinet Secretariat informing that the post of Additional Secretary in Legislative Department which has fallen vacant on 8.89.2013 is not to be filled by the process of Search-cum-Selection Committee but to be held by senior most JS&LC in Legislative Department. Cabinet Secretariat requested to clarify whether Department may go ahead with the proposal for filling up the post of appointment of senior most JS&LC.
6 3.9.2013 Cabinet Secretariat informed that meeting of Search-cum-Selection Committee scheduled to be held on 6.9.2013 has been postponed and now will be held on 25.09.2013.
7 4.9.2013 Reminder sent to Cabinet Secretariat asking whether proposal may be sent to E.O. Office for filling up the post of Additional Secretary in Legislative Department by appointment of senior most JS&LC.
8 20.9.2013 Cabinet Secretariat informed that meeting of Search-cum-Selection Committee scheduled to be held on 25.9.2013 has been postponed.
9 25.9.2013 Another reminder sent to Cabinet Secretariat.
10 7.10.2013 Cabinet Secretariat informed that meeting of Search-cum-Selection Committee will be held on 22.10.2013.
11 15.10.2013 Cabinet Secretariat informed that issue may be discussed in the meeting of the Search-cum-Selection Committee to be held on 22.10.2013.
12 27.12.2013 Reminder sent to Cabinet Secretariat informing that no reference/clarification on the issue raised in communication dated 29.08.2013 has been received after meeting of Search-cum-Selection Committee meeting held on 22.10.2013.
14 21.3.2014 Reminder sent to Cabinet Secretariat informing that no reference/clarification on the issue raised in communication dated 29.08.2013 has been received after meeting of Search-cum-Selection Committee held on 22.10.2013.
15 1.4.2014 Cabinet Secretariat informed that matter may be taken up with the Cabinet for filling up the post through Search-cum-Selection Committee procedure so that there is no ambiguity in the matter. The position has also been brought to the notice of the Appointments Committee of the Cabinet by the Cabinet Secretariat.
16 4.4.2014 Proposal put up for change in the procedure for appointment to the post of Additional Secretary as advised by the Cabinet Secretariat.
17 14.4.2014 Honble MLJ approved the proposal.
18 16.4.2014 Draft note for the Cabinet for modification in the procedure for appointment to the post of Additional Secretary circulated to concerned Departments seeking their comments.
19 25.4.2014 Comments on Draft note for the Cabinet received from Department of Legal Affairs.
20 9.5.2014 Comments on Draft note for the Cabinet received from Department of Personnel & Training.
21 27.5.2014 Draft note for the Cabinet put up for approval of Honble MLJ incorporating comments received from Deptt. Of Legal Affairs & DOP&T.
11. From the above Table, it would be clear that the respondents have not yet considered the applicant for appointment to the post of Additional Secretary which has fallen vacant w.e.f. 07.08.2013 as the mode of recruitment is yet to be finalized.
12. The decision in Y.V. Rangaiah and Others versus V.J. Sreenivasa Rao & Others [1983 (3) SCC 284] continues to hold the field that old vacancies have to be filled up under the rules existing at the time of occurrence of vacancies. In the case of Deepak Agarwal & Another versus State of Uttar Pradesh & Others [2011 (6) SCC 725], a similar issue had come up for consideration of the Honble Supreme Court. The appellants were recruited through the U.P. Public Service Commission and appointed to the post of Statistical Officers and were subsequently confirmed in service. Under the U.P. Excise Group `A' Service Rules, 1983, only Assistant Excise Commissioners and Technical Officers were eligible for promotion. However, subsequently Statistical Officers were also made eligible for promotion to the post of Deputy Excise Commissioner by amendment of the 1983 Rules on 22.06.1988. Subsequently, ten vacancies arose prior to 17.05.1999 for promotion under Rule 5(2). Despite pending representations of the appellants, the 1983 Rules were amended on 17.05.1999. The justification given for the aforesaid amendment was that a conscious decision had been taken to exclude Technical Officers and Statistical Officer as they were not fit for the post of Deputy Excise Commissioner because of their peculiar qualifications, duties, responsibilities and work experience. Having considered the facts, the Honble Supreme Court held that a candidate has a right to be considered for promotion in light of the existing and anticipated vacancies. Relevant para 32 of the judgment reads as under:-
32. Similarly, this view has been reiterated by this Court in the cases of State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs. Union of India & Ors. (supra) and Rajasthan Public Service Commission Vs. Chanan Ram & Anr. (supra). This Court in Rajasthan Public Service Commission's case (supra) has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. In Para 17, it has been held as follows:
"In the case of State of M.P. v. Raghuveer Singh Yadav a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended Rules had only prospective operation. The Government was entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. In the case of J&K Public Service Commission v. Dr Narinder Mohan & another Division Bench of two learned Judges of this Court consisting of K. Ramaswamy and N.P. Singh, JJ. considered the question of interception of recruitment process earlier undertaken by the recruiting agency. In this connection it was observed that the process of selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a mandamus. It has to be recalled that in fairness learned Senior Counsel, Shri Ganpule for the respondent-writ petitioner, stated that it is not his case that the writ petitioner should be appointed to the advertised post. All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5-11-1993 Annexure P-1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become infructuous and otiose on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner."
Likewise, in the case of State of Sikkim & Others versus Adup Tshering Bhutia & Others [2014(2) SCALE 373], the Honble Supreme Court has held that a person has right to be considered for promotion though not a right to be promoted. However, for the sake of greater clarity, the relevant portion of the judgment is extracted herein below:-
25. In S. S. Bola and others v. B.D. Sardana and others[(1997) 8 SCC 522] also, this Court held that seniority of a government servant is not a vested right and that an Act of State Legislature or a Rule under Article 309 of the Constitution of India can retrospectively affect the seniority of a government servant. To quote:
153. xxx xxx xxx xxx AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se.
xxx xxx xxx xxx xxx
200. Thus to have a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby.
26. The High Court patently erred in holding that the acquired or accrued rights of the writ petitioner had been affected by the fixation of seniority at the level of sub-inspector of Police. It has to be noted that, but for merger, neither the writ petitioner nor the members of the two other police forces, viz., Sikkim Vigilance Police and Sikkim Armed Force, could have got any promotion at all to the post of Deputy Superintendent of Police. The very purpose of integration was to remove the inequality and provide them with the opportunity for promotion to the post of Deputy Superintendent of Police. If length of continuous service in the highest cadre of some similar services is taken as the basis of fixing the seniority and for further promotion to higher posts that would certainly result in deeper injustice to the members of the other services. It was hence the State, after due deliberations and based also on report of an expert Committee consisting of the top level offices in the State, took an equitable decision to make the post of sub-inspector of Police, where there is direct level entry in one of the services, as the determining factor for fixation of seniority. The writ petitioner did not suffer any demotion in the process. He continued in the post of inspector. The only thing is that his compeers in Sikkim Police Force who could not get accelerated promotion to the post of inspector, but who are admittedly senior to him if the date of appointment to the post of sub- inspector is taken, were given the deemed date of promotion to the post of inspector based on the seniority at the level of sub- inspector. The amended rule certainly has thus a nexus to the injustice sought to be removed so as to balance the equity. It is neither irrational nor arbitrary. Further, in the matter of High Court of Delhi & Another versus A.K. Mahajan [2009 (12) SCC 62], the Honble Supreme Court has held that to be considered for promotion is a fundamental right though to be promoted is not. This view has further been reiterated in the case of Union of India & Others versus Sangram Keshari Nayak [2007 (6) SCC 704] and in a series of other cases including Ajit Singh Januja & Others versus State of Punjab & Others [1996 (2) SCC 715] and Jagdish Lal & Others versus State of Haryana & Others [1997(6) SCC 538.
13. Looking to the facts of the instant case, we find that the applicant being the senior-most JS&LC has a right to be considered for promotion against the post of Additional Secretary which had fallen vacant w.e.f. 07.08.2013. Though his case had been put up for promotion, but he was not considered despite his having the eligibility and vigilance clearance. It is also a fact that the applicant is due to retire on 30.11.2014. We feel that though it is the prerogative of the Government to bring a change in the rules including the method of recruitment, yet the proposed amendment qua appointment to the post of Additional Secretary by Search-cum-Selection Method has not yet been materialized and is under process. Therefore, so long the change in the method of appointment does not take place, the right of consideration of the applicant to the post of Additional Secretary shall remain in place. In this regard, we are fully guided by the decision of the Honble Supreme Court in the case of Deepak Agarwal & Another versus State of Uttar Pradesh & Others (supra). Considering the fact that the applicant is due for retirement shortly, he may not have a long tenure to serve with but is likely to have enhancement in pensionary benefits.
14. In totality of the facts of the case, we dispose of this Original Application with a direction to the respondents to consider the claim of the applicant for promotion to the post of Additional Secretary as per rules existing at the time of consideration within a period of one month from the date of receipt of certified copy of this order. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/