Central Administrative Tribunal - Delhi
Shri K.C.Meena vs Union Of India on 13 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2295/2012
MA No. 1867/2012
Order reserved on: 19th July, 2013
Order pronounced on: 13th August, 2013
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K.Bhardwaj, Member (J)
Shri K.C.Meena
Son of Shri S.L.Meena
Quarter No.443, Sector-IV
R.K.Puram, New Delhi-110022
Presently working as Under Secretary
(Dy. Land and Development Officer)
In the Ministry of Urban Development
Nirman Bhawan
New Delhi-110001.
Applicant
(By Advocate: Shri J.M.Bari with Ms. Meenakshi Bari)
Versus
1. Union of India
Through Secretary,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
North Block, New Delhi-110001.
2. Secretary, Government of India,
Ministry of Defence,
South Block, New Delhi-110001.
3. Union Public Service Commission,
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi-110001.
4. Secretary, Government of India,
Ministry of Urban Development
Land and Development Office,
Nirman Bhawan, New Delhi-110001.
Respondent
(By Advocate: Sh. Krishan Kumar)
ORDER
By Honble Shri A.K.Bhardwaj, Member (J) MA No. 1867/2012 In the MA for condonation of delay, the applicant has explained that having come to know about the irregularities in preparation in the impugned select list and his appointment, he made representation dated 27.10.2009 addressed to the Joint Secretary (Estt.), Ministry of Defence, South Block, New Delhi. According to him, when no action was taken in the said representation, he made an application under RTI Act, 2005 on 4.12.2009 whereafter he received certain information vide communication dated 20.1.2010 issued by respondent No.3. According to him only after collecting the necessary information or documents he could file the present OA. The respondents have opposed the application only on the ground that in view of the judgment of Honble Supreme Court in D.C.S.Negi vs. Union of India, this Tribunal should not admit an application unless the same is made within the time limit specified in Clauses (a) & (b) under Section 21 (1) or 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. A careful perusal of the said order reflects that an application can be admitted by this Tribunal where sufficient cause is shown for not filing the same within the prescribed period. In the present case, we are satisfied that the reasons given in the application for condonation of delay are sufficient for not approaching the Tribunal within the prescribed period of limitation. For the reasons stated in the MA, same is allowed and the delay in filing the OA is condoned.
OA No.2295/2012The applicant joined the service as a ST candidate in Ministry of Urban Development as Assistant. He was appointed as regular Section officer in the CSS in select list of Section Officer in the year 1991. The DPC convened by the UPSC in July 2009 recommended inclusion of his name in the select list of the Under Secretary (Grade I of CSS) for the year 2003 at Sl. No.875. The list was issued by the DOPT vide office memorandum dated 25.8.2009. Consequent upon inclusion of their names in the select list of Grade I of CSS (Under Secretary) for the year 2003 (ibid) in terms of notification No.A-32013/1/2007-D(Est.I/Gp.I) dated 5.10.2009 (page 36 to 38 of the paper book), 55 CSS officers including the applicant of the Ministry of Defence were promoted to the Grade-I of CSS (Under Secretary) on regular basis. In the said notification the name of the applicant was placed at Sl. No.55. In the present OA filed by the applicant he has questioned the said OM dated 25.8.2009 and notification dated 5.10.2009 saliently on the following grounds:
(i) Once in terms of OM No.8.2.2002 the promotion is to be regulated on the basis of seniority subject to fitness (on satisfying the bench mark), the failure of the respondents to amend the relevant regulations in terms of the OM are of no consequence and in assessing suitability of the applicant, the DPC ought to have followed the OM and not the Central Secretariat Service (Promotion to Grade-I and Selection Grade) Regulations, 1964.
(ii) In recommending the candidates for inclusion in the impugned select list the DPC ought to have followed the guidelines contained in OM dated 8.2.2002 and not the regulations of 1964.
(iii) The Central Secretariat Service Regulation 1964 was amended by the Central Secretariat Service (Promotion Grade and Selection Grade) Amendment Regulations, 1965 w.e.f. 13.2.2006.
(iv) The stand of the respondents that the amendment Regulations 2005 will apply prospectively is misconceived.
(v) The respondents ought to have not kept the implementation of OM No.35034/7/97-Estt(D) dated 8.2.2002 in abeyance for a long period of almost 4 years.
(vi) In preparing the select list the DPC ought to have followed the principle of seniority-cum-merit and not merit-cum-seniority.
2. In sum and substance, the contention of the applicant is that in considering him for his promotion to Grade-I of Central Secretariat Service (Under Secretary), the DPC ought to have followed the OM dated 8.2.2002 and not the Central Secretariat Service (Promotion to Grade-I and Selection Grade) Regulations, 1964.
3. In the counter reply filed on behalf of the respondents, it is explained that one Shri A.D.Roy, who happened to be senior to the applicant and was not included in the select list for the year 2003 had filed an OA No.1614/2010 before this Tribunal which was disposed of in terms of the order dated 18.5.2010 with a direction to DOPT to consider the representation submitted by him and pass cogent detailed and speaking order on the same. Having examined his representation the department issued the recent order dated 20.10.2010 which was challenged by Shri A.D.Roy in OA-4233/2010 and the said OA was dismissed in terms of the order dated 10.5.2011. It is also the stand of the respondents that the view taken by this Tribunal in order dated 10.5.2011 passed in OA-4233/2010 has been reiterated in OA-2081/2011 filed by Shri Sunil Garg.
4. Learned counsel for applicant handed over a list of 7 judgments/orders of Honble Supreme Court/High Court and this Tribunal viz.:
(1) K M Bindra vs. Union of India, (1973) 1 SER LR 928 (Delhi) decided on 26.2.1973 by Delhi High Court (2) Dule Singh vs. Municipal Council And Ors. Decided on 22 march, 1977 by Rajasthan High Court (3) Union of India or Ors vs. Somasumdram Viswanath & Ors; AIR 1988 SC 2255 (4) Smt. Rohini Srivastava vs. Director, Pension Director decided on 03.08.2004 by Allahabad High Court (5) Central Secretariat Service.. vs. Union of India or Ors.; 2006(3) SLJ 235 (CAT Delhi); decided on 11.11.2005 by CAT, New Delhi (6) B.L. Sinha vs. Union of India & Ors. ; decided on 01.02.2007 by CAT, New Delhi (7) Sureksha Luthra vs. The Registrar General, Delhi High Court; 2011(II) AD Delhi 1; decided on 17.01.2011 by
5. The sole issue arises to be determined by us in the present OA is whether an OM can have overriding effect over the statutory rules and whether any amendment in the rules unless specifically provided for can have retrospective application. In one of the aforementioned judgmenst cited by the applicant Sureksha Luthra vs. The Registrar General, Delhi High Court (supra), decided on 17.1.2011, it has been viewed that if there is a conflict between the executive instructions and the rules made under proviso to Article 309, the latter will prevail and if there is a conflict between the rules made under the proviso to Article 309 and the law made by the appropriate legislature, the law made by the appropriate legislature prevails.
6. Thus, the said judgment relied upon by the applicant itself opposes the contention of the applicant, i.e., the OM dated 8.2.2002 needs to be given precedence over the Central Secretariat Service (Promotion to Grade-I and Selection Grade) Regulations, 1964. It is stare decises that any amendment to rules/policy decision unless provided otherwise by the amending authority would have prospective application. The issue has been dealt with in detail by this Tribunal in Anuradha Malik vs. Commissioner, KVS, OA-1793/2012. Relevant excerpt of the said order reads as under:
9. The Union Parliament as also State Legislatures have plenary powers of legislation within the field of legislation committed to them and subject to certain constitutional restrictions, they can legislate prospectively as well as retrospectively. Nevertheless, it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule against retrospective construction is general where the object of the statute is to affect vested rights or to impose new burden or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only (nova constitutio futuris formam imponere debet non praeteritis). In the words of Lord Blanesburg, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Every statute, which takes away or impairs vested rights acquired under existing law, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already passed, must be presumed to be not to have a retrospective effect (Lopes, L.J). However, it is not necessary that an express provision be made to make a statute retrospective. The presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. The rule against retrospective construction is not applicable to a statute, merely because a part of requisites for its action is drawn from a time antecedent to its passing. If it was not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending act may not be considered retrospective merely because it applies also to those to whom pre-amended act was applicable, if the amended act has operation from the date of its amendment and not from an anterior date. The popular test to be adopted in application of rule against retrospective construction is whether it adversely affects the vested right. In certain cases, a distinction is drawn between an existing right and a vested right and it is said that the rule against retrospective construction is applied only to save vested right and not existing right. For the purpose of application of rule against retrospective construction, the statutes may be classified as:
(i) Statutes dealing with procedure, Statues regulating succession, Statutes regulating transfers and contracts, Statutes of limitation, Fiscal statutes, Penal statutes, Statutes prescribing posterior disqualification on past conduct,
Statutes conferring prospective benefit on antecedent facts: Remedial statutes, Declaratory statutes, Statutes regulating appeals, Statutes affecting finality of orders, Pending proceedings.
10. In the present case, we are concerned with the guidelines dealing with the procedure in transfer of teachers (upto PGTs) and others upto Assistant. In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. As stated by Lord Denning, the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence or the effect which the courts give to evidence. If a new act affects the matter of procedure only, then prima facie, it applies to all actions pending as well as future. No person has a vested right in any course of procedure.
7. Since the issue raised by the applicant has already been dealt with by this Tribunal in the OA referred to by the respondents in their counter reply, the same need not be delved with into in detail again. For easy reference relevant excerpt of the order passed in OA-4233/2010 is extracted herein below:-
7. The case of the respondents, on the other hand, is that the service of the applicant is governed by the statutory rules and regulations already referred to hereinabove. Regulations in terms talk of supersession of those who are good by very good, and those who are very good by those who are outstanding. Relevant regulations 5(3) to 5(7) of the Regulations of 1964, reads as follows:
(3) The field of selection shall be determined by the Selection Committee by taking the required number of persons from the single list drawn up under clause (2), in the order of their inclusion in that list.
(4) The Selection Committee shall classify such of the officers included in the field of selection as are considered fit for appointment to Grade I as outstanding, very good and good, on the basis of merit.
(5) The recommendations of the Selection committee, together with the upto date confidential records of the concerned officers and such other information as may be relevant, shall be forwarded to the Commission for their advice.
(6) Subject to the orders of Government, the recommendations of the Commission as regards suitability and classification of the concerned officer shall be accepted.
(7) The Select List shall be prepared by including the required number of names first from amongst the officers finally classified as outstanding then from amongst those similarly classified as very good and thereafter from amongst those similarly classified as good. The order of names inter se within each category shall be the order in which the names are arranged in the single list prepared under clause (2). The Select List so prepared shall be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions. The benchmark for inclusion in the select List was good and continues to be so, but as mentioned above, those with high service credentials and gradings would outsmart and thus supersede those with lesser gradings in their ACRs. It has been the consistent law, be it the Central Administrative Tribunal, or the High Courts in the country, or the Honble Supreme Court, that such reports which may be good and which may not exclude an employee from consideration for promotion, need not be communicated. These judgments still stand the test of time. A significant development, however, took place in 2002 when the Government in the Department of Personnel & Training came out with the instructions that the benchmark for promotion would be very good consistently for the last five years, and anyone who may not be having very good grading even in one year out of five, would not be promoted. Earlier to the instructions aforesaid, a person with good record or grading as may reflect from his ACRs, was to be considered for promotion, and, therefore, such reports which were good, it has been consistently held, may not be conveyed. The revision in the instructions of no supersession and consistent very good benchmark in all the ACRs under consideration brought about a sea change. We may demonstrate. Earlier to the instructions issued in 2002, if a Government employee may have four outstanding ACRs and one good ACR, which were under consideration, he would normally be promoted. Now after the instructions of the year 2002, an employee with even four outstanding ACRs and one good out of five, would not be even in the zone of consideration. It is in consideration of this significant development that the law has now evolved that even such reports which are good but would be definitely adverse as taking an employee out of the zone of consideration, shall have to be communicated. The first decision in this connection came to be recorded by a Full Bench of five Honble Vice-Chairmen/Members of this Tribunal in the matter of Ashok Kumar Aneja v Union of India & others [OA No.24 of 2007 decided on 7.5.2008]. On the heels of the judgment aforesaid, the Honble Supreme Court in Dev Dutt v Union of India & others [(2008) 8 SCC 725] and Abhijit Ghosh Dastidar v Union of India & others [Civil Appeal No.6227 of 2008, decided on 22.10.2008], held that all such reports which may be good but below benchmark for promotion, shall have to be communicated. We may specifically mention that the Tribunal while holding so has not over-ruled its earlier Full Bench judgment on the issue wherein it has been clearly held that the good reports need not be communicated. The Honble Supreme Court in its judgments in Dev Dutt and Abjijit Ghosh Dastidar (supra) has also not over-ruled its earlier judgments holding that reports which may be good need not be communicated. There was no need to do so as the judgments now containing the mandate that the all good but below benchmark reports have to be communicated, have come about only because of change in instructions where no supersession is to be made and all those who may have consistently very good grading, which is the benchmark for promotion, in all the ACRs under consideration, have to be promoted as per their seniority. In the case in hand, at the time when the case of the applicant came for consideration for inclusion in the Select List of 2003, regulations 5 (3) to (7) were in position. The applicant with two good and three very good reports was indeed considered, but was superseded by those who had better credentials of very good or outstanding. It may be recalled that not only the applicant, but seven other persons equally situate, senior to the applicant, were also found unfit because their grading was good, whereas others who may be junior to them, had very good or outstanding gradings. The instructions of 2002 would not replace the statutory rules or regulations. The change in the Regulations as regards giving precedence to those who are outstanding over those who are very good, and to those who are very good over those who are good came about by virtue of amendment brought about in the Regulations vide notification dated 13.2.2006. It is only after the notification has come about that it may be debatable as to whether it would be incumbent upon the respondents to convey to the employees such reports which may be only good. It was not incumbent at all to convey good report of the applicant at the time when his case came for consideration for inclusion in the Select List of 2003. This is the basic reason given in the impugned order dated 20.10.2010 rejecting the representation of the applicant. It is a detailed and speaking order and we find no flaw in the same.
8. For the reasons as mentioned above, finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
8. The view taken in the aforementioned OA was reiterated in OA-2081/2011 on 4.12.2012 (Sunil Garg vs. Union of India). For easy reference the relevant excerpt of the order is extracted herein below:
13. Thus, in our view the amended regulation of 2006 will not be applicable retrospectively for drawing up a Select List for the year 2003. The amended regulation will have prospective applicability for the preparation of Select List.
14. We may advert to the next issue. The ground taken by the respondent was that amendment in the 1964 Regulations was carried out only w.e.f. 13.02.2006, therefore, the vacancies which have arisen prior to 13.02.2006 are to be filled up by the unamended Regulations of 1964 by following the ratio in the Y. V. Rangaiahs case. But, Shri Behera, learned counsel for the applicant, would submit that there was no universal law that vacancies were to be filled up by the law existing on the date when the vacancy arose. He referred to the law set by Honble Supreme Court in the case of Deepak Aggarwal versus State of Uttar Pradesh [(2011) 6 SCC 725] and more specifically referred to the para 26 which is reproduced below:-
26. We are also unable to accept the submissions of Dr. Dhawan that the conscious decision taken herein is not grounded on the relevant facts. A perusal of the Counter Affidavit filed by the respondent herein shows that the recruitment of the appellant No.1 has been made purely with the objective of looking after the technical work pertaining to pharmacies and industrial units. Therefore, the requisite qualification for the post is Degree in Chemical Engineering. Appellant No.2 has been recruited for compilation, analysis and maintenance of statistical data of the Excise Department. The basic qualification for the post of Statistical Officer is Graduation in Statistics. It appears that the two categories of posts have been eliminated as the incumbents on the said posts do not have any administrative experience. The decision was taken clearly in public interest. Since the decision has been taken after taking into consideration the view points of both the sides, it can not be said to be arbitrary or based on irrelevant considerations. We also do not find any merit in the submission of Dr. Dhawan that the amendment has been given a retroactive operation as the vacancies which arose prior to the amendment are sought to be filled under the amended rules.
15. The learned counsel for the respondents argued the applicability of un-amended regulation mainly on two grounds. Firstly, the OM dated 08.02.2002 being an administrative instruction could not supercede the 1964 Regulations. Therefore, till the Regulations were amended on 13.02.2006, the unamended Regulations were to be followed. Secondly, the amendment in the regulations was carried out w.e.f. 13.02.2006, therefore, the vacancies which had arisen prior to 13.02.2006 were to be filled up by the amended regulations of 1964 by following the ratio in the Y. V. Rangaiah versus J. Sreenivasa Rao reported in (1983) 3 SCC 284. The respondents contended that since the DPC, which met on 3rd August to 7th August, 2009 had rightly followed the unamended Regulations of 1964, there was nothing wrong in the same. Learned Counsel for the applicant would contend that the officers in the feeder grade would be assessed only with reference to a benchmark introduced in the OM dated 08.02.2002 with clear stipulation in para 5 that the same would come into effect from 08.02.2002 and the Para 6 stipulated to amend the service rules to incorporate the provisions of the OM and the power to do so was delegated to the Ministries/Departments. In the instant case the authority of OM dated 08.02.2002 as well as the cadre controlling authority of the CSS is the DOP&T. We have carefully considered the rival contentions and note that the Regulations 1964 have been amended only in the year 2006. Hence, the amended regulations cannot have retrospective effect as there is no such provision in the amendment. The un-amended regulations existing in the year 2003 was, in our views, properly used to prepare the Select List for 2003. In this context, we draw our support from Honble Apex Court decision in Y.V. Rangaiahs case. The relevant para of the judgment reads thus:-
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewise basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. [Emphasis added]
16. Though the judgment of Honble Supreme Court in Deepak Aggarwals case (supra) is the latest one, the judgment of Honble Apex Court in Y. V. Rangaiahs case (supra) holds the field. Even Honble Supreme Court has also referred in the Deepak Aggarwals case its judgment in Y. V. Rangaiahs case inter alia stating that its applicability will be in the same facts and circumstances of the case. The judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The said rule provided for annual preparation of a panel for the eligible candidates in the month of September. The statutory duty cast on the State was to be properly exercised every year. So also in the present case, the duty is cast on the respondents to prepare annual Select List of Grade-I CSS officers for the Grade-I of CSS as per Regulation 5(1) at least once every year and on the 1st July of the year. Therefore, the judgment of Honble Supreme Court in Y. V. Rangaiahs case (supra) fully covers the controversy in the present Original Application. Though the respondents for administrative reasons could not draw up the Select Panel for the year 2003 and the same could be done in the year 2009, the statutory duty is cast on the respondents to draw up the Select List for the year 2003. Subsequent amendments pursuant to the DoP&T O.M. dated 08.02.2002 incorporated by amending the CSS Regulations of 1964 in the year 2006 would not support the case of the applicant. It is also noted that belated drawal of Select List was due to the litigations pending before various courts and as per the interim directions of the Honble Supreme Court, ad hoc appointments were given to the concerned officers.
17. In view of the legally settled position that the rules existing as per CSS Regulations, 1964 to draw the Select Panel for the year 2003 for Grade-I of CSS, the un-amended Regulations would be applicable and the respondents have correctly applied the un-amended Regulations whereby the procedure of assessing the officers in the declining scale as Outstanding, Very Good and Good was prepared. The applicant having been assessed as Good and there being number of candidates who have been assessed as Very Good, the applicant could not have been considered for promotion and inclusion in the Select List of 2003 for the post of Under Secretary (Grade-I of CSS). In our considered opinion, the respondents have properly acted to draw the Select Panel. The law set by Honble Supreme Court in Y. V. Rangaiahs case also supports the principles and criteria adopted by the respondents. Thus, no interference is called for on this ground from the Tribunal.
18. We may advert to another issue raised by the learned counsel for the applicant, which relates to the downgrading of the ACRs of the applicant. His contention is that the officers assessed as Very Good having been selected and the applicant getting grading of Good was ignored, the below benchmark assessment should have been communicated to the applicant for his representation. In this context, learned counsel for the applicant has referred to the law set by Honble Supreme Court in the matter of Dev Dutts case (supra) to say that such below benchmark assessment should have been communicated to the applicant. There is clear distinction between the below benchmark grading to be communicated to the applicant for his ACRs and the assessment done by the competent Selection Committee/DPC. In case of below benchmark of ACRs, the ratio set in Dev Dutts case is applicable, but the present case is not of below benchmark case of the applicants ACRs. On the other hand, in the present case no adverse remarks have been given to the applicant. He has been assessed as Good by the DPC which is also one of the acceptable norms as per the guidelines existing then. The DPC has followed the norms and applied its discretion which cannot be examined by this Tribunal. Since the applicant meets the benchmark of Good and ACRs are not adverse, there was no need to communicate his assessment (Good) as he was meeting the benchmark but there were other candidates who have been assessed as Very Good and above by which they have marched over the applicant. On this count also, the applicant does not convince us seeking our interference in the matter.
19. Looking into the totality of facts and circumstances of the case and guided by the law set by the Honble Supreme Court in many judgments referred to herein, more specifically the ratio decidendi in Y. V. Rangaiahs case (supra), we are of the view that there are no grounds under which the Tribunal can interfere in the matter and issue any directions to the respondents. Accordingly, the applicant has failed to convince us on his grounds.
20. Resultantly, the Original Application being devoid of merits is dismissed. There will be no order as to costs.
9. We do not find any reason to take a view different from the one taken by this Tribunal in the aforementioned application. Following the said orders we dismiss the OA. No costs.
( A.K.Bhardwaj ) ( Sudhir Kumar )
Member (J) Member (A)
sd