Central Administrative Tribunal - Delhi
Sujata Gupta vs The Secretary on 18 August, 2009
Central Administrative Tribunal Principal Bench OA No.902/2008 MA No.759/2008 MA No.174/2008 New Delhi, this the 18th day of August, 2009 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) 1. Sujata Gupta W/o Pawan Gupta 214, IInd Floor Vinobapuri Lajpat Nagar-II, New Delhi 110 024. 2. Kiran Malik W/o Anil Malik 101, Priyadarshini Vihar, Bhama Shah Marg, Delhi 110 009. 3. Rina Gossain W/o Prem Gossain Flat No.40 Uttri Pitampura, Delhi. 4. Dalchand S/o Ram Chand H. No.6, Samman Bazar, Jangpura Bhogal, New Delhi 110 014. . Applicants. (By Advocate : Shri O. P. Gehlaut with Shri Deepak Sharma) versus 1. The Secretary Department of Revenue, Government of India, North Block, New Delhi 110 001. 2. The Chairman, Central Board of Direct Taxes (CBDT), North Block, New Delhi 110 001. 3. The Director General of Income-Tax (System) E-2,A.R.A. Centre Gr. Floor, Jhandewalan Extn. New Delhi 110 055. 4. Union Public Service Commission through Secretary, Shahjahan Road, New Delhi 110 001. 5. Shri Jayanta Barua S/o Shri K. R. Barua R/o 148/F1, Sector-6 Vaishali, Ghaziabad. 6. Anita Verma W/o Ved Prakash 4436/B5&6 Vasant Kunj, New Delhi. 7. Ajay Kumar S/o Shri Shankar Lal R/o L-2, 59-A, DDA Flats Kalkaji, New Delhi. 8. Arti Agarwal H-203, Vikas Puri, New Delhi-18. Respondents. Respondents No.5 to 8 are working as AD (Systems) in the office of CIT (CO), East Block-II, Level-IV, Vivekanand Marg, R. K. Puram, New Delhi. (By Advocate : Shri R. N. Singh for Respondent No.1 to 3. Shri Rajinder Nischal for Respondent No.4. Shri K. Venkataraman for Respondent No.5 to 8.) : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
The grievance of the Applicants is that they have been deprived of their promotion to the post of Assistant Director (Systems) by the merger of Posts vide impugned notification dated 4.4.2008 (Annexure-A1). Aggrieved by the said notification, they have filed the present OA, seeking the following:-
(i) The Honble Tribunal may be pleased to quash Rule 4 of the Recruitment Rules dated 4.4.2008 G.S.R. 263 (E) (Annexure-A1), letter dated 18.8.1994 (Annexure-A2) & Column 12 of Rule 3 of Recruitment Rules dated 27.7.2001 [Assistant Director (Systems)].
Direct the Respondents to consider the applicants for promotion to the post of Assistant Director (Systems) as they had been doing hitherto fore.
Direct the Respondents to treat the applicants en-bloc senior to Data processing Assistants.
Any other or further relief the Honble Court may deem fit in the interest of justice.
2. At the admission stage, notice was issued to the Respondents on 1.5.2008 and with regard to interim relief prayed it was ordered that Promotions that may be made pursuant to the DPC which is scheduled for 5.5.2008 shall be subject to decision of this OA. Respondents No.1 to 3 filed their written reply on 18.7.2008 to which the Applicants submitted their Rejoinder on 10.09.2008.
3. MA No.1554 of 2008 was filed on 17.09.2008 by third party for their impleadment as Party Respondents in the OA. After hearing the arguments of the relevant parties, it was ordered on 7.11.2008 allowing the MA No.1554/2008. In the result, the petitioners of the said MA were added as Respondent No.5 to 8 in the OA.
4. In the meantime, Respondent No.4 filed the written submissions on 7.11.2008. The Private Respondents No.5 to 8 submitted a common counter reply on 02.12.2008. The Applicants submitted their Rejoinder to intervener-Respondents on 27.1.2009. We directed the parties to bring the relevant Recruitment Rules (RRs) more specifically those concerning PACO and DPA-A issued from 1995 to 2003 for our perusal. We finally heard the rival parties on 3.6.2009.
5.1 Brief facts of the case would reveal that the Applicants were initially appointed as Data Entry Operators (DEO). Subsequently, they were appointed as Programme Assistants/Console Operators (PACO, for short), Group-B non gazetted in the pay scale of Rs.1640-2900 (revised to Rs.5500-9000) in the year 1998-99 in the Department of Income Tax/CBDT under the Recruitment Rules notified on 1.6.1990 (Annxure-A5). On the other hand, the Private Respondents were appointed as Data Processing Assistants Grade A (DPA-A in short) in the pay scale of Rs.1660-2660 in Group-C Non-Gazetted.
5.2 The case set up by the Applicants is that there is no RR whatsoever for the post of DPA-A and the appointments have been done in 1995 in the absence of any statutory rules. They were not required to possess the same qualification as required for the recruitment of PACO. The essential educational qualification in their case is Graduate with diploma/Certificate in computer application. As per the Recruitment Rules notified on 25.5.1990 (Annexure-A4) PACO was the feeder cadre to the post of Programmer Grade A gazetted in the then pay scale of Rs.2200-4000. PACO with 5 years of service experience was eligible for promotion to the post of Programmer. By a notification dated 16/19 August 1999 (AnnexureA-6) inter alia the post of Programmer was redesignated as Assistant Director (Systems) with scale of Pay of Rs.8000-13500. Under Article 309 of the Constitution of India, the Directorate of Income Tax (Systems) Joint Director (Systems) Deputy Director (Systems) and Assistant Director (Systems) Recruitment Rules, 2001 was notified on 27.7.2001 (Annexure-A3). Consequent to the judgments of Honble High Court of Chennai and Bangalore, Hyderabad and Calcutta Benches of this Tribunal, 7 PACO were appointed notionally to officiate on regular basis in the post of Programmer [Assistant Director (Systems)] (in short AD (Systems) vide the order dated 26.2.2008 (Annexure-A8).
5.3 They have further pleaded that prior to the promulgation of the impugned RRs dated 4.4.2008 (Annexure-A1) the PACO were eligible to be promoted as Programmer in the pre-revised scale of Rs.2200-4000 under the RRs pertaining to Deputy Director Computer Manager, Assistant Director System Analyst and Programmer published vide GSR.360 dated 25.5.1990 (Annexure-A4). According to the Applicants, by virtue of re-designation of posts PACOs were eligible to be promoted for the post of Assistant Director (Systems) in the scale of Rs.8,000-13,500. The posts stated in the RRs were re-designated vide notification dated 10.8.1999 as under (Annexure-A6):
From To (i) Deputy Director/Computer Manager Joint Director (Systems) (Rs.12,000-16,500) (Rs.12,000-16,500) (ii) Assistant Director/Systems Analyst Deputy Director (Systems) (Rs.10,000-15,200) (Rs.10,000-15,200) (iii) Programmer Assistant Director (Systems) (Rs.8,000-13,500) (Rs.8,000-13,500)
5.4 In OA No.925/2002 between Dalchand and 3 others versus Union of India and Others decided by this Tribunal on 22.5.2003 (It is noted that the Applicants in the OA No.925/2002 are the same in the current OA), the Applicants agitated before this Tribunal contesting their grievances that they were not considered by the official Respondents for promotion to the post of Programme Assistants/Console Operators in accordance with the existing Recruitment Rules. On the other hand, the Official Respondents have issued the orders dated 23.10.2001 stating that all posts of Data Entry Operators Grade-D stand merged in the cadre of DPA Grade-A. According to the Applicants, there was no notified Recruitment Rules in 1995/1996 and thus, they challenged the appointment of the Private Respondents which took place through direct recruitments under 1995 Rules (not approved by UPSC and not notified in the Gazette) and demanded to be considered for promotion as Programme Assistants. The Tribunal having perused the files of the Respondents noted that 1995 Rules were not published in the official gazette. Further it did not show that the said Rules were approved by the UPSC or published under Article 309 of the Constitution of India. Thus, the new posts on restructuring or the merger could not have come into effect without the finalization of the Recruitment Rules as per the instructions dated 25.11.1993. In this context, the Tribunal relied on the ratio in the case of Y. V. Rangaiah versus J. S. Rao (1983 (3) SCC, 284) which lays down the ratio that vacancies occurring prior to the amended rules have to be filled up under the old rules and thus, it was observed by the Tribunal that the Respondents could not have resorted to following the 1995 Rules which was not notified following the due procedure. After the orders were passed by the Tribunal in OA No.925/2002 on 22.05.2003, one Shri S. Karthik who was not impleaded as Private Respondent in OA No.925/2002, submitted the Review Application before the Tribunal to review the judgment of this Tribunal in the said OA. While dismissing the RA, the Tribunal in the interest of justice, not to unsettle the settled position protected the appointments under the un-notified 1995 RRs since such appointments were made long back in the year 1995. The Tribunal also authorized official Respondents to issue valid Rules in which those recruitment, their service would be protected. The recruits of 1995 were to be treated on ad hoc officiation or any decision to be taken by the Government.
5.5 In the meantime, 2 officials working in DPA-A and DPA-B filed an OA (OA No.2583/2003) decided on 23.10.2003 (Pages 139-142) sought directions to notify 1995 Rules on the basis of the decision of this Tribunal in RA No.188/2003 in OA N.925/2002. This Tribunal, taking note that it was a matter to be decided administratively as to when the particular Recruitment Rule should be notified or not, relief claimed by them was not granted. But the Tribunal directed Chairman, CBDT to consider their representation and pass an appropriate order in accordance with law.
5.6 Five DPA-B employees working in the Directorate of Income Tax (Systems) moved this Tribunal in OA No.2412/2002 challenging the promotion of 5 others to the grade of Assistant Director of Systems under 2001 RRs. This Tribunal noted that the Private Respondents in the said OA were promoted as Programmer with retrospective date of 1993 under Rule 1989 and the said post was re-designated as Assistant Director (Systems) much after that as per 2001 Rules. The OA was dismissed in its order dated 21.9.2006.
5.7 In the Honble High Court of Madras, Mrinmai Bal, DPA-B filed a Writ Petition (WP No.23089/2004) against the order of this Tribunal Madras Bench in OA No.892/2003 decided on 15.7.2004. The Honble High Court vide its judgment dated 12.10.2006 directed the Respondent-Government to consider the petitioner for promotion to the post of Assistant Director (Systems) under 2001 Rules. The Private Respondents in the preset OA, being similarly placed as Mrinmai Bal represented to promote them to the post of Assistant Director (Systems). They were promoted with effect from 23.6.2008 subject to the outcome in the present OA. Thus, the OA is before this Tribunal for adjudication.
6.1 Shri O. P. Gehlaut, the Learned Counsel for the Applicants, took us through the background of the case and contended that PACO were recruited as per Rules whereas the Private Respondents were appointed under the 1995 Rules which were not approved by the Competent Authority and notified. Further, he highlighted that while Applicants were regular, the Private Respondents, as per the Tribunals order in RA No.188/2003 in OA No.925/2002 (Pages 128-138) were declared and protected as ad hoc-officiation. The contentions put forward by Shri Gehlaut, brought out the differences between the Applicants and Private Respondents in 3 areas (a) status, (b) Pay scales and (c) qualifications. His contentions were that Applicants were superior to the Private Respondents in those 3 norms viz., they were in Group B whereas Private Respondents were in Group-C; their entry was due to higher qualification compared to the Respondent No.5 to 8; and they were getting higher scale of pay than the Private Respondents. In this background, he argued that (i) the Rule 4 of the Recruitment Rules dated 4.4.2008, letter dated 18.8.1994 and Column 12 of Rule 3 of the Recruitment Rules dated 27.7.2001 should be quashed and set aside; (ii) the Applicants enbloc to be declared senior to DPAs, and (iii) the Applicants should be considered for promotion to the post of Assistant Director (Systems). He laid his reliance in support of his contentions on Sachidananda Mishra versus Government of Orissa and Others [2004 SCC (8) 608]; R. N. Nanjundappa versus T. Thimmaiah [ 1972 SCC (1) 409] and K. C. Gupta versus Lt. Governor of Delhi [1994 Supp (3) SCC 408].
6.2 One of the contentions raised by the Applicants relates to the issue that lower and higher grades were merged in the restructuring of the cadres, as a result of which, the incumbents in the higher grade were made to suffer. In this regard, Learned Counsel for the Applicants relied on the judgment of Calcutta High Court in the case of State of West Bengal vs. West Bengal Fishery Extension Officers Association decided on 23.02.2000 [ATJ 2001(1) 95]. In the said judgment Honble High Court relied on the judgment of Honble Apex Court in the case of Union of India versus Anil Kumar and Others (1999 (5) SCC 743) and it was held that where lower grade and higher grade Posts were merged in one cadre on the higher pay scale, the period of service in the lower grade would not count for the purpose of seniority in the new cadre. Thus, Shri Gehlaut contended that the ratio emerged from these judgments revealed that whenever such integration of the cadres would take place, in order to solve the question of seniority between two merged cadres the factors like mode of recruitment, the higher responsibility discharged by the incumbents, their pay scales, etc. should be kept in mind by the concerned authority.
7.1 Shri Rajinder Nischal, Learned Counsel representing the Union Public Service Commission (UPSC) stated that the role of the UPSC in framing of the Recruitment Rules had all along been advisory in nature and the ultimate decision was taken by the Ministry concerned.
7.2 Shri R. N. Singh, the Learned Counsel for the Respondents No.1 to 3 contended that the Applicants though challenged the seniority of the Private Respondents, but they did not implead them as necessary parties. He submitted that appointment of DPA-A in Group-B was not declared as invalid by this Tribunal and to the contrary the Tribunal protected them and granted liberty to pass appropriate orders. His contention was that even in the absence of Recruitment Rules, the executives were empowered to make appointment on the basis of the draft rules to meet the exigencies. He contended that in the Recruitment Rules-2008, they were brought to the stream by the initial Constitution. He also pleaded that the Honble High Court having passed judgment dated 12.10.2006 in WP No.23089/2004 filed by DPA-Group B officials to consider them for the post of Assistant Director (Systems), the Applicants did not challenge the said judgment in the higher judicial fora, on the contrary, they raised the issue before this Tribunal. Shri Singh also brought to our notice that by virtue of Recruitment Rule of 2008, the Applicants had also been brought in DPA-A. His another contention was that the Applicants did not challenge 1994 order and Recruitment Rules 2001 in many legal battles they raised in the past. As such agitating now is barred by Constructive Resjudicata. In support of his contentions he relied on the judgment of Honble Apex Court in P. U. Joshi and Others versus Accountant General, Ahmedabad and others [1990 (2) SCC 707] and Union of India and others versus Basudeba Dora and Others decided on 19.12.2002 [(2003) 2 SCC 632] 7.3 Shri K. Venkataraman, Learned Counsel appearing for Respondent No.5 to 8 contended that Private Respondents were appointed directly to DPA Grade B in pay scale of Rs.2000-3200 (pre-revised) in 1996 as per Recruitment Rules 1995. He contended that they were wrongly shown as Group-C though they were actually in Group-B. He submitted that on the other hand, the Applicants were initially appointed as Data Entry Operators (DEO) and were promoted as PACO with effect from 1.10.1998. Shri Venkataraman fairly stated that due to the orders passed by this Tribunal in OA No.952/2002 and RA No.188/2003 in OA No.952/2002 and OA No.2583/2003, the new Recruitment Rules of 2008 were notified.
7.4 Shri Singh, Learned Counsel for the Respondents relied on various case laws to state that the powers exercised under Article 309 of the Constitution of India to frame Rules is the legislative power. This power is exercised by the President or the Governor of the State as the case may be. The Courts and the Tribunals cannot issue a mandate to the Government to frame Rules in a manner since the powers under Article 309 vest with the Government. In case the Courts and Tribunals issued any direction, this would amount to usurping the powers and functions assigned to the Executive under the Constitution. Thus, the Honble Supreme Court has held that Court cannot assume itself a supervisory role over the rule making powers of the executive under Article 309 of the Constitution of India. In this regard, Learned Counsel for the Respondents placed his reliance on the case between Mallikarjuna Rao and Others versus State of Andhra Pradesh and Others [(1990) 2 SCC 707].
8. Having heard Shri O. P. Gehlaut assisted by Shri Deepak Sharma, Learned Counsels for the Applicant, Shri R. N. Singh, Sr. Central Government Counsel appearing on behalf of Respondents No.1 to 3, Shri Rajinder Nishcal, Learned Counsel for Respondent No.4 and Shri K. Venkataramani, Learned Counsel for Respondents No.5 to 8; we also perused the pleadings. We have also gone through the judgments relied upon by the rival parties in support of their contentions. However, we have also gone through inter alia the following judgments relevant directly to the issues being adjudicated. (i) OA No.925/2002 decided on 22.05.2003, (ii) RA No.188/2003 in OA No.925/2002 decided on 3.10.2003, (iii) OA No.2583/2003 decided on 23.10.2003, (iv) OA No.2412/2002 decided on 21.9.2006, (v) WP No.23089/2004 Honble High Court decided on 12.10.2008. It is proper for us to record here that we also referred to the relevant Rules (Notified/Not notified).
9. The Applicants have raised main issue of challenging part of the Recruitment Rules of 2001 and also of 2008. Before we examine the part of each Rule to know whether those are legally sustainable or not, it is appropriate for us to delineate the contours of the settled legal position about the Tribunals powers to interfere with regard to the vires of the provisions in the delegated legislations namely Rules framed under Article 309 of the Constitution of India. The settled legal position is that Courts and the Tribunals should not abrogate the powers of the legislature in the matters of legislation enacted by the legislature or the Rules framed by the Executives under the delegated legislation under Article 309 of the Constitution of India. It is the Government which has the full power to regulate the service conditions of its employees. The rule making power vests with the Government to lay down the method of recruitment, promotion, classification of posts, grouping/merger of posts and to regulate their service conditions. The rules so made by the government are subject to Article 14 of the Constitution of India. It is trite that Rules have the import of statutory nature and unless there are feasible manifestation of arbitrariness and identifiable irrationality, this Tribunal should not upset the Rules framed by the Executives. In this context, our views are fortified with the decisions of the Honble Supreme Court of India in the case of Sanjay Singh vs. Uttar Pradesh Public Service Commission [2007 (1) SCC 870]. We also further rely on the judgment in Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat [2008 -5- SCC 33] decided on 14th March 2008 by Honourable Supreme Court where it was held that:-
A piece of delegated legislation is also statutory in character and the only limitation on it is that it should not violate the provisions of the parent statute or of the Constitution. In our opinion, the impugned resolutions of the Corporation do not violate the parent statute or any constitutional provisions. Further Honble Apex Court recently held in Govt of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi, [JT 2008(2) 8 SC 639] that :-
The Court should exercise judicial restraint while judging the constitutional validity of statutes. In our opinion, the same principle also applies when judging the constitutional validity of delegated legislation and here also there should be judicial restraint. There is a presumption in favour of the constitutionality of statutes as well as delegated legislation, and it is only when there is a clear violation of a constitutional provision (or of the parent statute, in the case of delegated legislation) beyond reasonable doubt that the Court should declare it to be unconstitutional.
10. In the backdrop of the settled legal position, we note that the official Respondents have framed Recruitment Rules dated 4.4.2008 in the context of 1995 Recruitment Rules not notified and ultimately it was held not valid in law by this Tribunal in OA No.925/2002 decided on 22.05.2003. Further, the Respondents had appointed some DPA Grade-A and B employees strictly following the provisions of the said Recruitment Rules of 1995. It is noted that since one of those who were recruited in the RR of 1995, were not impleaded as parties in the OA No.925/2002, filed Review Application (RA No.188/2003) in the said OA, which was decided by this Tribunal on 3.10.2003. We, therefore, take extracts of the Orders passed by this Tribunal in OA No.925/2002 and also RA No.188/2003. Since the decisions of this Tribunal was not challenged in the higher fora, the Orders in the OA No.925/2002 and RA No.188/2003 have reached finality.
11. The Para 10 and 11 of OA No.925/2002 decided on 22.05.2003 read as follows:-
10Even if the new rules were to be followed, they would have taken a prospective effect. The fact that this Tribunal had taken note of restructuring in the case of B.R. Biswas will not have any effect on the merits of the present case in which respondents have denied consideration of the applicants who are eligible for promotion to the posts of Programme Assistants/Console Operators under the 1990 Rules which have not been superceded by any rules notified by following a due procedure of law. The case law referred to by learned counsel of applicants is squarely applicable to the facts and circumstances of the present case and respondents cannot be allowed to deny the benefit of the old rules to the applicants in the teeth of the case law discussed above.
11. Having regard to the above discussion and reasons stated above, OA is allowed. Annexure A-1 dated 23.10.2001 is quashed and set aside. Respondents are directed to consider the applicants for promotion as Programme Assistant/Console Operator on the basis of the 1990 Rules which existed at the time of occurrence of the vacancy in the cadre with effect from due date and to promote them as such if found fit by the DPC with consequential benefits. 1995 Rules are declared in-effective having not been issued and published as required under the related law and instructions.
12. Para 19 and 20 of the RA No.188/2003 in OA No.925/2002 decided on 3.10.2003 are extracted as follows :
19. The contention putforth that the applicant having accepted the promotion under Grade D and DEO cadre has become extinct, 1990 rules which had been superseded cannot be followed to consider the case of the applicant in OA cannot be countenanced. Once the 1995 rules are not legally effective and non-existent the earlier rules of 1990 relating to promotion to PACO which were duly notified and issued under due process of law and are not declared ultra vires hold the field and would be operative till the recruitment rules without DPA grade A are validly notified and come into being after due process of law till then the vacancies, which had arisen admittedly in 1988, of PACO are to be filled as per the old recruitment rules in the light of the settled position of law and particularly in the light of a decision of the Apex Court in Y.R. Rangaiah vs. J.S. Rao, 1983 (3) SCC 284. We do not find any error apparent on the face of the record or discovery of a new material which even after due diligence could not be produced by the contesting parties, the review cannot be used as a mode to re-argue the matter. Our view is fortified by the following decisions:
Chandra Kanta & Anr. vs. Sheik Habib AIR 1975 SC 1500 K. Ajit Babu & Ors. vs. Union of India & Ors. 1998 (1) SLJ 85 (SC) Meera Bhanja vs. Nirmala Kumari Chaudhuary, AIR 1995 SCC 455 Subhsh vs. State of Maharashtra SC SLJ 2002 (1) 28
20. However, we find that though the appointment of review applicant was made in pursuance of a notification but the recruitment rules for DPA grade A having non-existent and not valid in law, the applicant has no indefeasible right to claim any appointment under the rules. However, as the appointment has been made long back in 1995 in the interest of justice and not to unsettle the settle position and the fact that the review applicant is not at fault, his appointment and continuance is not disturbed. However, his interest would be safeguarded when the recruitment rules 1995 are validly and legally issued, to treat the aforesaid period on adhoc officiation or any decision to this regard taken by the Government. With these observations, we do not find any merit in the RA, which is accordingly dismissed. No costs.
13. This Tribunal while deciding RA No.188/2003 in OA No.925/2002 have specifically granted two options to the official Respondents while protecting/safeguarding the interest of the employees recruited under the Recruitment Rules 1995. The options are (a) the Recruitment Rules 1995 could be validly and legally issued after the approval of the Competent Authority and appropriate notification as per law and (b) the Tribunal has also given option to the official Respondents to adopt any decision to this regard taken by the Government. The Recruitment Rules of 2008 is the adoption of the second option given to the Government. The Counsel for Respondents was contending that the Government have taken all factors into consideration while framing the Recruitment Rules 2008. Rule 4 of RR of 2008 has been challenged by the Applicants.
14. For appropriate appreciation of issues to be adjudicated, we take extract of the Rule 4 of the RR 2008 which has been assailed by the Applicant and it reads as follows :-
Rule 4 of the Recruitment Rules dated 4.4.2008 GSR 263 (E) Anenxure-A/1.
4. Initial Constitution-(1) All Data Processing Assistant Grade A (appointed by the Department during the period November, 1995 to May, 2003)/ existing Programme Assistant/Console Operator working on regular basis on the date of notification of the rules shall be deemed to have been appointed as Data Processing Assistant Grade A in accordance with the provisions of these rules and the previous regular services rendered by them shall be counted for all purposes including seniority.
(2) All Data Processing Assistant Grade B (appointed by the Departments during the period November, 1995 to May, 2003) on regular basis on the date of notification of the rules shall be deemed to have been appointed as Data Processing Assistant Grade B in accordance with the provisions of these rules and the previous regular services rendered by them shall be counted for all purposes including seniority.
15. During the argument, we got the impression that PACO had the fear that they would loose seniority if the PACO and DPA Grade-A come together under the initial constitution and subsequently they might loose out in getting their promotion to the post of Assistant Director (Systems). We find from the Rule 4 that the initial constitution has been done to safeguard the interest of those DPA-A & B recruited between 1995 to 2003. We find that the Orders of this Tribunal have been complied with by appropriately incorporating the Rule 4 in the RR 2008. Thus, the recruitments done under the unnotified Rule of 1995 have been properly reflected and legitimized in the initial constitution Clause of the Recruitment Rules of 2008. This does not spell out the seniority issue. As such, the seniority issue between (i) the PACOs entering the DPA Grade-A by promotion and (ii) directly recruited as DPA Grade-A and B need to be addressed by the official Respondents as per law. Therefore, in our considered view, we do not find any illegality in the action of the Official Respondents framing RR 2008 and more specifically the Rule 4 on the initial constitution.
16. Another issue raised by the Applicants is that while merging PACO posts by redesignating them as DPA A, the Respondents have put them into a lower scale (Rs.1600-2600) whereas they have been drawing higher pay in a different and higher scale (Rs.1640-2900). In case of PACOs (88 posts existing in 1988), the RR 1990 is relevant. We find that the RR 1990 prescribes scale of pay of Rs.1640-2600-2900 classifying the same under Group-B Non-Gazetted and method of recruitment is by promotion from the feeder category of DEO with 10 years of regular service in the grade. The Applicants, therefore, have challenged the CBDT letter dated 18.8.1994 in this OA.
17. Before we go into further analysis of the issue, we would like to take the extract of the Letter F.No.A-11319/27/89-AD VII dated 18th August 1994 (Annesure-A2), which reads as follows :
F.No.-11019/27/89-AD.VII Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes New Delhi 18th August 1994 All Chief Commissioners of Income Tax/ All Director Generals of Income Tax/ Commissioner of Income Tax, Bhubaneshwar, Nagpur and Shillong.
Sub : Re-structuring the Cadre of Programme Assistants/Console Operators in the Income Tax Department-reg.
Sir, I am directed to state that the question of restructuring the cadre of Programme Assistants/Console Operators (present Scale Rs.1640-2900) in the Income Tax Department, in the light of the Ministry of Finance, Department of Expenditure O.M. No.F.7(1)/IC/86(44) dated 11.9.89 has been under consideration with the Board and it has now been decided to restructure the cadre of Programme Assistants/Console Operators in the following grades:-
Data Processing Assistance Gr.A-GroupC post.
(Rs.1600-2660) Data Processing Assistant Gr.B-Group B post (Rs.2000-3200)
2. The revised structure of Data Processing Assistant Gr.A and Data Processing Assistant Gr.B while be operative w.e.f. 11.9.1989 in accordance with the Ministry of Finance, Department of Expenditure O.M. No.F.7(1)/IC/86(44) DATED 12.1.90. The existing Programme Assistants/Console Operators will continue to draw pay in the scale of Rs.1640-2900 as personal to them and redesignated as Data Processing Assistant Gr.A till they are promoted to the post of Data Processing Assistant Gr.B.
3. The charge-wise allocation of posts of Data Processing Assistants of Dr. A/Gr B on the basis of the sanctioned strength, is given in Annexure-1.
Necessary recruitment rules of Data Processing Assistants Gr. A will be circulated separately. The DOP&T have not yet framed model Recruitment Rules for Data Processing Assistants Gr B and the rule for this grade will be issued in due course.
Yours faithfully, Sd/-
(D. M. L. MALHOTRA) Deputy Secretary to the Govt. of India.
18. It is proper to analyse this issue in the background of decision taken by the Finance Ministry which are applicable across the Departments/Ministries in rationalizing pay scale of EDP employees. The OM No.F.7(1)/IC/86(44) dated 11.9.1989 (Annexure A/7) issued by the Ministry of Finance on the subject of Rationalization of Pay Scales of Electronic Data Processing Posts into following 2 Groups:
I. Data Entry Operators (DEO)
1. DEO-A Rs.1150-1500 Entry grade for Higher Secondary
2. DEO-B Rs.1350-2200 Entry grade for Graduates
3. DEO-C Rs.1400-2300 Promotional Grade
4. DEO-D Rs.1600-2660 Promotional Grade
5. DEO-E Rs.2000-3500 Promotional Grade II. Data Processing/Programming Staff
1. DPA-A Rs.1600-2600 Entry grade for Graduates with Diploma/certificate in Computer Application.
2. DPA-B Rs.2000-3200 Promotional Grade
3. Programmer Rs.2375-3500 Direct entry+promotion from DPA Grade-B
4. Senior Rs.3000-4500 Promotional Grade Programmer
19. It is worthwhile to note that the Respondent CBDT in its letter dated 18.8.1994 (Annexure A/2) complying with the decision of the Ministry of Finance dated 11.9.1989, conveyed that the PACO cadre was ordered to be restructured to 2 grades viz. (i) DPA-A Group C post (Rs.1600-2600) and (ii) DPA-B Group B post (Rs.2000-3200) and directed that The revised structure of Data Processing Assistant Gr.A and Data Processing Assistant-Gr.B while be operative with 11.9.1989 in accordance with the Ministry of Finance, Department of Expenditure, O.M. No.F 7 (1)/IC/86(44) dated 12.1.1990, the existing Programme Assistants/Console Operators will continue to draw pay in the scale of Rs.1640-2900 as personal to them and redesignated Data Processing Assistant Gr.A till they are promoted to the post of Data Processing Assistant Gr.B. In the letter dated 18.8.1994, the CBDT protected the pay scale of those PACO drawing in a different scale (Rs.1640-2900) till their promotion to DPA B took place in pay scale of Rs.2000-3200. In our considered opinion, the Official Respondents while restructuring the EDP cadre have protected the interest of PACO and, therefore, their action cannot be termed as arbitrary. We, therefore, do not find merit in the views of the Applicants in assailing the letter dated 18.8.1994.
20. We now come to the next issue of the Applicants challenging the provisions in Column 12 of Item 3 in the Schedule of Recruitment Rules dated 27.7.2001 [Assistant Director (Systems) (Annexure A/3)]. The post of Assistant Director (Systems) (73 posts in 2001) are filled up by Selection-cum-Seniority. In case of recruitment by promotion/deputation/absorption the feeder grades from which promotion/deputation/absorption to be made is given in column 12 as follows :-
(12) Promotion:
Data Processing Assistant Grade B with 5 years of service in the grade failing which combined regular service of 8 years in the grade of Data Processing Assistant Grade A and with a minimum of 2 years regular service in the grade of Data Processing Assistant Grade B.
Note: Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service.
Deputation:
Officers under the Central Government:
(i) Holding analogous posts on a regular basis; or
(ii) with 2 years regular service in posts in the scale of Rs.6500-10500 of equivalent; or
(iii) with 8 years regular service in posts in the scale of Rs.5500-9000 or equivalent; or (B) Possessing the educational qualifications and experience prescribed for direct recruits under column 8.
The departmental officers in the feeder category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. (Period of deputation including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organisation/department of the Central Government shall ordinarily not to exceed 4 years). The maximum age limit for appointment by deputation shall not be exceeding 56 years as on the closing date of receipt of applications.
21. Prior to the issue of RR-2001, the RR 1989 also provided the promotion avenue to the post of Assistant Director/Systems Analyst. The RR 1989 also provided for the post of Assistant Director/Systems Analyst (19 posts subject to variation) in the pay scale of Rs.3000-4500 which is selection post and for promotion the feeder category is Programmer with 5 years of regular service in the grade. The RR 1989 also envisages selection of Programmer for 52 posts in the pay scale of Rs.2200-4000 with the provision of 50% for promotion and 50% for direct recruitment-in case of promotion the feeder category is PACO with 5 years of regular service in the grade.
22. The difference between the 2 RRs (RR 1990 and RR 2001) is only on the feeder category. In case of RR 1989, the feeder category was Programmer whereas in case of RR 2001, the feeder category provides 2 options for promotion to AD (Systems) viz. (i) DPA-B with 5 years of service or (ii) DPA-A with 8 years of service and minimum of 2 years of regular service in DPA-B. In the RR 2001, the RR of 1989 has been superceded. Ten years is reasonably good period when lot of development has taken place in the EDP Systems. Government must keep pace with the growth and development of EDP taking place outside the Government. To attract appropriate talents the RRs of EDP manpower should also change. Looking from this angle and from the settled legal position, we do not find any wrong has been done by the Official Respondents in notifying the statutory RR of 2001.
23. The RR 2001 also became an issue for adjudication by Honble High Court of Madras in the Writ Petition No.23089/2004 where the petitioner, having been recruited under unnotified RR of 1995 to the post of DPA-B prayed for a direction to the Official Respondents to consider the petitioner for promotion to the post of AD(Systems) under RR 2001. Honble High Court passed its judgment on 12.10.2006 as follows:-
Therefore, we dispose of this Writ Petition, with direction to the respondents to consider the case of the petitioner for promotion to the post of Assistant Director (systems) as per the Directorate of Income Tax (Systems) and Joint Director (Systems) Recruitment Rule 2001 published in GSR 412 dated 27.7.2001 published by the Ministry of Finance (Department of Revenue) Union of India, in Government Gazette dated 4.8.2001, within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected WPMP is closed.
24. Shri Mrinmay Bal, Petitioner in the said Writ was one of 14 DPA-B who were appointed to officiate in the grade of AD (Systems) in the pay scale of Rs.8000-13500 vide Order No.EDP-P-4/2008, subject to the outcome of the present OA No.902/2008. We note that the said judgment has reached finality since none of the parties have appealed against the judgment. It is also noted that the vires of the RR 2001 was not challenged in the said Writ, nor there was any observation adverse to the vires of the RR 2001 by Honble High Court. We, therefore, come to the conclusion that the grounds raised by the Applicants against the validity of the RR do not hold any merit.
25. Two more associated reliefs sought for are (a) to treat the Applicants en bloc senior to DPAs and (b) to direct Respondents to consider the Applicants for promotion to the post of Assistant Director (Systems). In the preceding paragraphs, we have upheld the RR 2001 and RR 2008 besides declaring the letter dated 18.8.1994 as valid in law. We find that the Applicants having belonged to PACO and Private Respondents belonging to DPA A/B grades, they come within the ambit of initial constitution spelt out in Rule 4 of the RR 2008. Thus, it is the responsibility of the executive to draw up a provisional seniority list, invite objections, pass orders on each of the objections as per law within a period of 3 months. Thereafter, the details of those who come within the zone of consideration for promotion to the vacant posts of AD(Systems) needs to gathered, the DPC convened and orders on its recommendations passed by the Competent Authority. This exercise shall be completed within a period of 3 months from the date of issue of final seniority list. Respondent Nos.2 and 3 are directed to take follow up action on our above directions.
26. Having considered the total facts and circumstances of the case and our analysis on each of the prayers, we come to the considered conclusion that Prayer No.(i) does not have merit and hence rejected and we have issued directions on the other prayers. In the result, the Original application is disposed of in above terms leaving the respective parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
/pj/