Central Administrative Tribunal - Delhi
Dr. B. G. Naik S/O B. Rama Naik vs Union Of India Through on 22 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2354/2009 This the 22nd day of July, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. B. G. Naik S/O B. Rama Naik, Joint Director (Entomology), National Plant Protection Training Institute, Rajendra Nagar, Hyderabad-30. Applicant ( By Shri Mahavir Singh, Sr. Advocate and with him Shri Rakesh Dahia and Shri Santhakrishnan, Advocates ) Versus 1. Union of India through Secretary, Department of Agriculture & Cooperation, Ministry of Agriculture, Krishi Bhawan, New Delhi. 2. Union Public Service Commission through its Secretary, Dholpur House, Shahjahan Road, New Delhi. 3. V. K. Yadav S/O Balkrishnaji, Joint Director (Entomology), Directorate of Plant Protection, Quarantine & Storage, National Highway No.4, Faridabad, Haryana. Respondents ( By Shri Naresh Kaushik for UPSC, Shri A. K. Singh for Respondent No.1 and Shri Yogesh Sharma for Respondent No.3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
The applicant joined on the post of Deputy Director (Entomology) in the year 1982. Vide order dated 26.11.2002, on the recommendations of the fifth Central Pay Commission, and in terms of para 56.20 of the report of the Commission, sanction of the competent authority was accorded to re-designation of four posts in Entomology discipline under the Directorate of Plant Protection, quarantine & Storage. The four posts were of Joint Director (Entomology), Deputy Director (Entomology), Entomologist (Insecticides) and Joint Director (Bioassay). They were re-designated as Joint Director (Entomology). The pay scale of the four re-designated posts as Joint Director (Entomology) remained the same. All the four posts were in the pay scale of Rs.12000-375-16500, and the post of Joint Director (Entomology) was also in the same pay scale. Promotion on the post of Director from that of Deputy Director is governed by statutory rules. It is only in April, 2008 that the rules were amended, re-designating the four posts, as mentioned above, as Joint Director (Entomology). Whereas the applicant would state that for promotion on the post of Director (IPM) he would be eligible for reckoning number of years of service spent by him on the post of Joint Director (IPM) from the date the four posts were re-designated, i.e., 26.11.2002, the respondents would state that the eligibility of the applicant has to be worked out from the date the statutory rules were amended, and from that day up to the time the matter for promotion came to be considered by the concerned authorities, as the applicant did not have the eligibility criteria, he could not even be considered for promotion on the post of Director (IPM). This the short question which arises for determination by this Tribunal in the present Original Application filed by B. G. Naik, the applicant herein, who states that even though eligible, he has been kept out of reckoning. Promotion of the 3rd respondent V. K. Yadav, without taking his case into consideration is stated to be illegal and, therefore, the applicant, in consequence of setting aside the selection and appointment of the 3rd respondent on the post of Director (IPM), would seek a direction to be issued to the respondents to re-consider the matter by holding that the applicant is eligible for promotion.
2. Before we may take into consideration the rival contentions of learned counsel representing the parties on the issue as mentioned above, it would be necessary to refer to the relevant facts culled out from the pleadings of the parties. The applicant is M.Sc., Ph.D in Entomology. He joined service as Deputy Director (Entomology) in the year 1982. The post of Deputy Director was subsequently re-designated as Joint Director (Entomology) in the scale of pay of Rs.12000-375-16500 in accordance with the recommendations of Fifth Central Pay commission w.e.f. 26.11.2002. While working in the post of Joint Director (Entomology), the applicant was given additional charge of Additional Plant Protection Advisor-cum-Director (NPPTI), Hyderabad vide order dated 30.5.2002, and is continuing to hold the additional charge of the said post till date. The next avenue for advancement available to the applicant is to the post of Director. In the cadre of Director, there are three posts called as Director (Integrated Pest Management), director (Central Insecticide Laboratory) and Secretary (Central Insecticide Board & Registration Committee). The post of Director (IPM) is regulated by the service rules issued vide notification dated 26.11.1991. The post is intended to be filled up by promotion of Joint Directors in Plant Pathology and entomology with three years of regular service in the grade. It is the case of the applicant that he fulfills the criteria prescribed in the rules. He is the senior-most Joint Director eligible for consideration for promotion. In the seniority list of Joint Directors circulated vide OM dated 19.8.2008, his name is shown at serial no.1. Even though, all three posts of Director are vacant, the respondents took steps to fill up only the post of Director (IPM). In view of the placement assigned in the seniority list dated 19.8.2008, the applicant, it is his case, is the automatic choice for such consideration. The applicant claims to be having an outstanding record of service and would have been promoted in normal circumstances. Proposal to amend the rules governing the post of Director in Integrated Pest Management (IPM) is stated to be pending consideration of the Government of India for a long time. The significant change that is now sought to be brought in is the prescription of higher residency period, i.e., five years instead of three years in the cadre of Joint Director as eligibility criteria. The vacancy of Director was in existence since 1.1.2004, but remained unfilled on the ground that the rules required to be amended in the manner as mentioned above. It is the case of the applicant that a junior to him, Shri V. K. Yadav, 3rd respondent herein, who is presently working as Joint Director in the office of the Directorate at Faridabad, filed OA No.2144/2007 before the Tribunal. His claim was that non-filling up of the existing vacancies on the ground that the rules were likely to be amended prescribing higher residency period as Joint Director to acquire eligibility for promotion and seeking to apply such a provision to a vacancy which is in existence since long, would be arbitrary and, therefore, he sought for a direction to consider him for promotion as Director (IPM) without insisting for completion of five years of service, in terms of the recruitment rules governing the post of Director notified on 26.11.1991. Shri Yadav impleaded the applicant as a party respondent in the said OA. Inasmuch as, the applicant is senior to Shri Yadav and since Shri Yadav did not raise any dispute regarding seniority, the applicant did not oppose the claim made by him with reference to the eligibility criteria. The Tribunal vide its judgment dated 13.5.2008 directed the respondents to consider the entitlement of the applicant therein for promotion to the post of Director (IPM) as per existing recruitment rules within a period of three months. Subsequently, the time was extended up to the end of December, 2008. It is the case of the applicant that in terms of directions of the Tribunal, DPC was held on 12.12.2008. In terms of seniority list dated 19.8.2008 the name of the applicant along with Shri Yadav was proposed for consideration by the DPC. However, the name of the applicant was not considered by the DPC on the ground that for the post of Joint Director, new recruitment rules were notified on 2.4.2008 and since the rules were notified only from the said date, the applicant would be deemed to have become Joint Director only from that date and, therefore, he would not have the eligibility of service. Having come to know that his name was not likely to be considered by the DPC even before its scheduled meeting, the applicant submitted a representation on 29.11.2008 seeking information under the Right to Information Act on his consideration, the criteria for consideration and the likelihood of holding of the DPC. The information sought for by the applicant was withheld till the DPC meeting was actually held on 19.12.2008. On specific query made by the applicant, it has now been answered that his name was not considered by the DPC on the ground that he would be treated as Joint Director only with effect from 2.4.2008. The reply given to the applicant was to the effect that as the new rules governing the post of Joint Director (Entomology) were notified on 2.4.2008, till that time the merger and re-designation of Deputy Director (Entomology) with the post of Joint Director (entomology) vide office order dated 26.11.2002 should be construed as illegal and invalid. This action of the respondents, the applicant pleads, is illegal and, therefore, aggrieved thereby, he has filed the present OA.
3. Pursuant to notice issued by this Tribunal, respondents have entered appearance. Three separate counter replies have been filed by the three respondents arrayed in the OA. Initially, UPSC, the second respondent, had not filed any reply. On 3.2.2010, we recorded the following order:
It appears that the applicant was not held eligible for the post of Director on objections raised by the UPSC, which line was followed by the respondent employer. UPSC is a party respondent in the present OA and has been served as well. No one has chosen to appear on behalf of UPSC nor any reply on their behalf has been filed. For proper adjudication of this matter, we are of the view that it is better to have reply of the UPSC.
Issue fresh notice to UPSC through Secretary. With service/summons, a copy of this order be also sent. We expect that UPSC would cause appearance on its behalf and on the date fixed file the reply as well. A copy of the OA along with the present order and summons be given to the applicant for serving DASTI on the UPSC. List on 18.02.2010. Thereafter, reply came to be filed on behalf of the respondent UPSC.
4. In the reply filed on behalf of the 1st respondent, it has inter alia been pleaded that the Directorate of Plant Protection, quarantine and Storage (DPPQ&S), is an attached office of the Department of Agriculture and Cooperation. The Directorate is responsible for plant bio-security which is a national priority. The Directorate consists of Central Insecticides Board and Registration Committee (CIB&RC), Central Insecticides Laboratory (CIL), National Plant Protection Training Institute (NPPTI) (now renamed as National Institute of Plant Health Management [NIPM]), Locust Warning Offices (LWO), Central Integrated Pest Management Centers (CIPMC), Regional Pesticide Laboratories (RPTL) and Plant Quarantine (PQ) Stations. The Directorate is headed by Plant Protection Advisor (PPA) in the pay scale of Rs.16400-20000 (pre-revised). There are officers from different disciplines, like Plant Pathology, Entomology, chemistry, Engineering, etc. to assist the Plant Protection Advisor in carrying various functions related to the department. There are four posts of Director in the grade of Rs.14300-18300 (pre-revised) under the Directorate of PPQ&S, Faridabad. The details of the posts are as follows:
Sl.
No. Post Mode of Recruitment Remarks
1. Director (IPM) Promotion failing which by transfer on deputation (ISTC) and failing both by direct recruitment. Shri V.K. Yadav promoted by UPSC
2. Director (NPPTI) (recommended for abolition) Direct Recruitment NPPTI, Hyderabad
3. Director (CIL) Direct Recruitment failing which by transfer on deputation (ISTC) Recruitment pending due to finalization of recruitment rules
4. Secretary (CIB&RC) By transfer on Deputation Post presently filled by Dr. (Smt.) Sandhya Kulsherastra.
On the recommendations of the Fifth Central Pay Commission, all the above posts were re-designated as Additional Plant Protection Advisor-cum-Director (IPM)/Director (NPPTI)/Director (CIL)/ Secretary (CIB&RC) respectively in the pay scale of Rs.14300-18300 (pre-revised) vide order dated 25/30.1.2002. The amendment of recruitment rules for the re-designated posts is stated to be under consideration through inter-ministerial consultation. As per the existing recruitment rules for the post of Director (IPM), the vacancy in the grade is to be filled up by promotion failing which by transfer on deputation (including short term contract) and failing both by direct recruitment. Joint Director (Plant Pathology) and Joint Director (Entomology) with three years regular service in the grade are eligible for consideration to the post of Director (IPM). As there is no reservation in promotion in Group A, the vacancy falls under unreserved category. The Directorate of PPQS entrusted with the task of circulating seniority list of Group A officers of the Directorate, had circulated the provisional seniority list of Joint Director (Ent.) on 19.8.2008 after notification of recruitment rules, placing the applicant as senior to the 3rd respondent, Shri V. K. Yadav. Shri Yadav filed OA No.2144/2007 before the Principal Bench of the Tribunal praying for consideration of his promotion on the post of Director (IPM) based on existing recruitment rules. The Tribunal vide its judgment dated 13.5.2008 directed the respondents to consider his case for promotion to the post of Director (IPM) as per the existing recruitment rules within a period of three months. When the order was not implemented in time, the said respondent filed a contempt petition on 21.8.2008. Subsequently the proposal for promotion on the post of Director (IPM) was prepared by the 1st respondent based on the provisional seniority list of Joint Director (Ent.) and sent to UPSC on 22.9.2008. During preparation of the proposal it was concluded that the applicant was the senior-most officer on the post of Joint Director (Ent.). The Commission vide its letter dated 13.10.2008 sought clarification from the 1st respondent enquiring about the basis of revision of the stand of the 1st respondent in concluding that the applicant was senior. In response, the respondent clarified the position to the Commission vide letter dated 4.11.2008. In the contempt filed by Shri Yadav, the stand taken by the 1st respondent was that delay in completion of recruitment process was for the reason that latest seniority list of the feeder cadres of Joint Director (PP) and Joint Director (Ent.) needed circulation for the concerned officers to file objections, which, after finalization, were to be transmitted to UPSC. The contempt matter was, however, disposed of with the direction to expedite selection process by 31.12.2008. Sequel to orders passed by this Tribunal in its hearing held on 8.11.2008, the officers of the 1st respondent discussed the matter with the commission. In its deliberations, the Commission made it clear that the administrative order issued by the 1st respondent on 26.11.2002 merging the posts of Deputy Director (Ent.) (Rs.12000-16500), Entomologist (Insecticides) (Rs.12000-16500), and Joint Director (Bio Assay) was not legally binding as the same had been issued without repealing the recruitment rules for these posts. Since the recruitment rules are statutory in nature, they could not be by-passed by administrative orders dated 26.11.2002. Hence the revised recruitment rules for the post of Joint Director (Ent.) issued on 2.4.2008 only could supersede the old recruitment rules of Deputy Director (Ent.), Entomologist (I) and Joint Director (Bio-Assay). Under the circumstances, the old recruitment rules of Deputy Director (Ent.), Entomologist (I) and Joint Director (Bio-Assay) were applicable till 1.4.2008. For these reasons, the incumbents on these posts could not be considered to have merged into the post of Joint Director (Ent.). Hence, on 1.1.2008 the name of the applicant could not have become part of the seniority list for the post of Joint director (Entomology). The Commission desired the 1st respondent to send a communication endorsing its stand in the matter. Such letter was issued by the respondent to the commission on 21.11.2008. The commission held its DPC meeting on 12.12.2008 and considered the promotion proposal. In the minutes of the meeting sent by the Commission, it was mentioned that the DPC examined the character rolls of the 3rd respondent, the only eligible officer, and assessed him fit for promotion to the post of Director (IPM). The 3rd respondent was appointed subject to outcome of this OA as ordered by this Tribunal while dealing with the interim prayer made by the applicant on that behalf. Primarily, thus the case of the 1st respondent is that even though, there may have been an administrative order for merging three posts of Deputy Director into one in 2002, but the same was by an administrative order and not as per the existing recruitment rules. The amendment came about so as to merge the three posts of Deputy Director only in 2008 by which time, the applicant did not have the eligibility for his consideration for promotion on the post of Director (IPM).
5. Respondent UPSC in its counter affidavit pleas that the pre-amended recruitment rules for the post of Director (IPM) notified on 26.11.1991 provided that the post would be filled by promotion failing which by transfer on deputation (including short term contract) and failing both by direct recruitment. For promotion, Joint Director (Plant Pathology) and Joint Director (Entomology) with three years regular service were eligible to be considered. A proposal for convening meting of DPC to consider promotion to the post of Director (IPM) in the Directorate of Plant Protection, Quarantine & Storage, Department of Agriculture & Cooperation, was received in January, 2007 on the basis of the Recruitment Rules notified on 26.11.1991. There were certain deficiencies in the proposal which were pointed out to the Ministry with a request to rectify the same, vide letter dated 10.4.2007. The Ministry, however, in April 2008, informed that the recruitment rules for the post of Director (IPM) being very old, had been sent to DOP&T for revision/amendment and, therefore, it had been decided that a fresh proposal relating to Director (IPM) would be submitted to the Commission on finalization of the recruitment rules. In the said proposal for DPC on the basis of the pre-amended recruitment rules notified in 1991, the Ministry had furnished the seniority lists of Joint Director (Entomology) and Joint Director (Plant Pathology) as on 1.11.2005 and 30.10.2006, and Shri V. K. Yadava, the 3rd respondent, was reported to be the only eligible officer for consideration for promotion as he had completed the qualifying years of service of three years. Subsequently, in September, 2008 the Ministry forwarded a provisional seniority list in which the applicant was shown as senior to the 3rd respondent. The Ministry was requested to clarify the reasons for the variation in the seniority of the 3rd respondent. In reply, the Ministry inter alia intimated that on recommendations of the Fifth CPC the four posts as mentioned above were re-designated as Joint Director (Entomology) in the pay scale of Rs.12000-16500 vide order dated 26.11.2002. It was observed in this connection that the recommendations of the Fifth CPC for the merger as above called for amendment of the relevant recruitment rules in various disciplines as also for the post of Joint Director (Entomology). The required amendments apparently were not carried out before giving effect to the merger of various posts as mentioned above. The Ministry was, therefore, requested to clarify as to how the merger of the various disciplines was given effect to without amending the relevant recruitment rules. The Ministry was also requested to clarify as to why this fact was not brought out at the time of sending the earlier proposal on the basis of the pre-amended recruitment rules notified in 1991. Meanwhile, Shri Yadav, the 3rd respondent filed OA No.2144/2007 before this Tribunal praying for a direction to the respondents to consider him for promotion to the post of Director (IPM) on the basis of the pre-amended recruitment rules notified in 1991 within a specified period from the date he became eligible with all consequential benefits. The Tribunal vide order dated 13.5.2008 allowed the OA aforesaid and directed to consider the case of Shri Yadav for promotion to the post of Director (IPM) as per provisions of the pre-amended recruitment rules notified in 1991 within a period of three months. When the order aforesaid was not complied with, Shri Yadav filed a contempt petition which was disposed of with the observation that time was given to complete the process of promotion orders by 21.12.2008. Finally, in pursuance of orders passed by the Tribunal in the OA aforesaid, DPC meeting was held in the office of the Commission on 12.12.2008 on the basis of the pre-amended recruitment rules notified in 1991 against the vacancy which arose on 1.1.2004, which was carried over to the year 2007-08 due to non-availability of any suitable officer. The third respondent was the lone officer considered and recommended for promotion to the post of Director (IPM) against the aforesaid carry forward vacancy.
6. The 3rd respondent in his reply, in addition to opposing the claim of the applicant on the grounds as taken by the respondents 1 and 2, further pleads that the earlier inter partes litigation where the applicant was also a party respondent, would cover the issue, and once the applicant has not challenged the order of this Tribunal, this Application needs to be rejected without any further discussion. He refers to para 4.9 of his earlier OA No.2144/2007, which reads as follows:
4.9 That it is relevant to mention here that although the post of Deputy Director (Entomology) is Rs.10,200-15,200/- Grade post, but there is an isolated post of Deputy Director (Entomology) in Hyderabad, grade of Rs.12000-16500/-, and Dr. B.G.Naik, was appointed against that isolated post on his choice, and although there is no ACP scheme in Group A post in cadre post, but being an isolated post, Dr. B.G.Naik, applied for grant of benefits of ACP scheme and on his demand, he has been granted the benefits of ACP scheme of grade of Rs.14300-18300/-. It is further pleaded that the applicant was never in the feeder post of Director (IPM) as per existing recruitment rules. As regards re-designation of the four posts of Entomology discipline, as per recommendations of the Fifth CPC, it is pleaded that the recommendations cannot be considered to have been implemented as no notification for implementation of the same was issued; this required amendment of the rules, and administrative orders, unless given effect to by amending the rules, would be of no meaning and consequence. It is further pleaded by him that the applicant was working against an isolated post to which there would be no feeder post, nor any promotional avenue, and it is for that reason that the applicant requested for benefit of ACP scheme, which was granted. He reiterated that the applicant was appointed as Deputy Director (Entomology) in Hyderabad against an isolated post and that at the time of his appointment he was aware that he was appointed against an isolated post, and further that he is getting all the benefits of isolated post including the benefit of ACP scheme and, therefore, his claim for promotion to the post of Director (IPM) is not tenable at all. As per Fifth CPC definition, isolated posts are posts which are having no feeder post and no promotional avenues. Once, it is pleaded that the applicant was working on an isolated post, he cannot claim promotion, particularly when he has already obtained the advantage of ACP scheme, which is given when there is no promotional avenue, and particularly when one may be working on an isolated post. The applicant would not appear to oppose the relief asked for by the 3rd respondent in OA No.2144/2007, nor would challenge the order passed by this Tribunal in any higher judicial forum.
7. The applicant has not chosen to file rejoinder to any of the counter replies filed on behalf of respondents.
8. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. In the context of the objection raised by the 3rd respondent that the issue involved in the present case is covered by the decision of this Tribunal in OA No.2144/2007 which is an inter partes decision, which has attained finality having not been challenged, it would be appropriate to deal with the same in the first instance. Surely, if the plea raised by the 3rd respondent is accepted, there would be no need to go into the controversy as raised by the parties. We have gone through the judgment recorded by this Tribunal in OA No.2144/2007. At the very outset, the Tribunal has referred to a decision of the Honble Supreme Court in S. B. Bhattacharjee v S. D. Majumdar [2008 (1) SCC (L&S) 21] for the proposition of law that the right to be considered for promotion in an equitable and fair manner is a fundamental right. It is mentioned in the same very para that insofar as operation of the rules is concerned, it is trite that when an arena in administrative exigency pertaining to the condition of service is occupied by statutory rules framed under the proviso to Article 309 of the Constitution, any administrative instructions cannot override its effect, and it is only the statutory rule which has to prevail. In the next para, the Tribunal has cited case law wherein it was held that unless statutory rules are amended, no policy decision on administrative side would have the effect to amend the statutory rules, and that even the draft rules cannot replace the statutory rules. This law, however, has been taken note of in the context of the plea raised by Shri Yadav, 3rd respondent, that consideration for promotion as Director (IPM) was being denied to him on the ground that DOP&T OM dated 25.5.1998 issued in wake of recommendations of the Fifth CPC recommendations had changed the criteria of qualifying service for promotion to the said post from three to five years. If the changed criteria was to be considered, the 3rd respondent might not be eligible, but if the eligibility criteria as provided under statutory rules is considered, he would be eligible for promotion on the post of Director (IPM). We may refer to the plea to the effect raised by the 3rd respondent, as recorded by the Tribunal. The same reads as follows:
In the light of the above trite law applicant has sought consideration for promotion as Director, Integrated Pest Management (IPM), which has been denied to him on the ground that DOP&T OM dated 25.5.1998 issued in the wake of recommendations of the V CPC has changed the criteria of qualifying service for the post of Director (IPM) from three to five years. As such, applicant who has completed the qualifying service only on 11.5.2003 shall be considered for the recruitment year 2009-10 as for determining eligibility the cut off date is 1.2.2009. The operative part of the order contained in paras 7 and 8 reads as follows:
7. Insofar as DOP&T OM dated 25.5.1998 is concerned, if eligibility conditions are changed then those revised conditions should have immediately brought in the statutory rules by way of amendment. Having failed to amend the Recruitment Rules, the Recruitment Rules in vogue framed under the proviso of Article 309 of the Constitution of India which prescribe for the post of Director (IPM) qualifying service 10 years shall hold the field till superseded by an amendment, which is to be carried. Applicant, who was eligible as per the requisite criteria as on 11.5.2006, admittedly, the vacancy had arisen on retirement of incumbent of the post, non-consideration of the case of the applicant is not apt in law. Justification tendered in the reply is also against the law laid down by the Apex Court.
8. For the reasons given in the foregoing paragraphs, OA is allowed. Respondents are directed to consider the case of the applicant for promotion to the post of Director (IPM) as per the existing Recruitment Rules within a period of three months from the date of receipt of this order. No costs. What clearly emerges from the pleadings of the parties and the judgment recorded by the Tribunal in the OA referred to above is that in consideration of recommendations made by the Fifth CPC, statutory rules of 1991 had to undergo some changes. What we are concerned with, however, is only with regard to two amendments which have been brought about in the statutory rules. One amendment that was to be brought about in the rules is with regard to eligibility criteria for promotion to the post of Director (IPM). Under statutory rules, one had to serve on the feeder post for a period of three years. Vide DOP&T OM dated 25.5.1998, which was issued in wake of recommendations of the Fifth CPC, the eligibility criteria was to be five years instead of three years. The other amendment that was to be brought about in the statutory rules pertained to clubbing of four posts into one. The four posts, which were in the same pay scale, that were clubbed were of Joint Director (Entomology), Deputy Director (Entomology), Entomologist (Insecticides) and Joint Director (Bioassay). They were re-designated as Joint Director (Entomology). All these posts were re-designated as Joint Director (Entomology). This was done vide order dated 26.11.2002. Surely, if the applicant is considered to be occupying the re-designated post since 2002, he would have the eligibility criteria for consideration for promotion on the post of Director (IPM), but if the eligibility of the applicant has to be considered only from the date when the amendment in the rules came about, surely and admittedly, he would not answer the eligibility criteria.
9. On facts, there may be some variation in the present case from the one decided earlier by this Tribunal as referred to above, but on law there would be no difference whatsoever. The difference on facts is that whereas, there was an order dated 25.5.1998 enhancing the eligibility criteria for promotion to the post of Director (IPM) in the OA filed by the 3rd respondent, in the present case, it is order dated 26.11.2002 clubbing four posts and re-designating the same as Joint Director (Entomology). The same position in law confronts this Tribunal as was involved in OA No.2144/2007. Before we may refer to the case law on the issue as has been taken into consideration by this Tribunal while deciding the OA filed by the 3rd respondent as well, we may only mention that it is not in dispute that insofar as the statutory rules of 1991 are concerned, only Joint Director (Plant Pathology) and Joint Director (Entomology) with three years regular service in the grade were eligible for consideration for the post of Director (IPM). The applicant, as per the statutory rules, was never in the feeder post of Director (IPM). He was Deputy Director (Entomology). It is the positive pleading of the 3rd respondent, not denied at any stage, that although the post of Deputy Director (Entomology) was in the pay scale of Rs.10200-15200, but it was an isolated post of Deputy Director (Entomology) in Hyderabad in the pay scale of Rs.12000-16500, and the applicant was appointed against that isolated post on his choice, and although there is no ACP Scheme in Group A in cadre, but being posted against an isolated post, the applicant applied for grant of benefits of ACP Scheme and on his demand, he was granted the benefits of the said Scheme in the grade of Rs.14300-18300. The pleading of the 3rd respondent that an isolated post would not have either a feeder or promotional post, as per definition of isolated post, is also not in dispute. We may, however, not go into the issue as to whether the applicant, who was only Deputy Director (Entomology) as against the posts of Joint Director (Entomology) and Joint Director (Plant Pathology), which may appear to be higher posts, and further that there was no promotional avenue available to the applicant, for which reason he was granted ACP, but the fact remains that clubbing of four posts as mentioned above, which includes the post of the applicant as well, came about in 2002 by an administrative order, which could not be given effect to till such time the statutory rules could be amended.
10. The Tribunal in OA No.2144/2007 while holding that the case of the 3rd respondent for the of Director (IPM) had to be considered as per rules in existence and the orders/instructions issued which have not been incorporated in the rules by way of amendment cannot be taken into consideration, relied upon the judgment of Honble Supreme Court as referred to therein, like Syed. T. A. Naqushbande v State of J&K [(2003) 9 SCC 592], and judgment of the High Court of Calcutta in Lalin Kumar Mahto v State of West Bengal [1999 (1) SLR 452]. Further, it is too well settled a proposition of law, and reference in that connection be made to the judgment of the Honble Supreme Court in Y. V. Rangaiah & others v V. J. Srinivasa Rao & another [1983 (1) SLR 789 (SC)], that when a vacancy may arise, the position in rule as obtainable then would apply to determine the criteria for promotion or appointment, as the case may be. If there would have been change in law, obviously irrespective of the inter partes judgment in OA No.2144/2007, the same could be taken into consideration, as in that event it could well be held that the law on which the Tribunal based its decision in OA No.2144/2007 would not apply.
11. Shri Mahavir Singh, learned Sr. Advocate representing the applicant, has indeed cited some judicial precedents, which, in our view, would have no bearing whatsoever in the controversy involved in the present case. However, in all fairness to him, we may make a reference of the same. The learned counsel relied upon five judicial precedents rendered by the Honble Supreme Court in Sita Ram Jivyabhai Gavali v Ramjibhai Potiyabhai Mahala & Others [(1987) 2 SCC 262]; Constitution Bench judgment in Sant Ram Sharma v State of Rajasthan & Another [AIR 1967 SC 1910]; Union of India v K. P. Joseph & Others [(1973) 1 SCC 194]; Guman Singh v State of Rajasthan & Others [(1971) 2 SCC 452]; and NBCC v S. Raghunathan & Others [(1998) 7 SCC 66]. In Sita Ram Jivyabhai Gavali (supra) it has been held that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a rule made under the proviso of Article 309 of the Constitution. Sant Ram Sharma (supra) has no parity with the facts of the case in hand as it is for an entirely different proposition of law. In K. P. Joseph (supra) no such point as involved in the present case was involved. In Guman Singh (supra) it was held that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. This proposition of law has nothing at all to do with the controversy and the issues involved in the present case.
12. For the reasons as mentioned above, finding no merit in the present Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/