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Mr. Shekhar Agarwal, Member (A) The applicants joined Intelligence Bureau as ACIO-II/WT during 1987-89. According to them, they were eligible for promotion to the next grade of ACIO- I/WT after rendering 05 years of service as per prevalent Recruitment Rules. However, the same was granted to them after a delay of 13 years w.e.f.

5 OA-860/2014 17.06.2005. Thereafter, their next promotion to the rank of DCIO/Tech-WT was granted to them w.e.f. 01.07.2011. According to the applicants the respondents erred in granting this promotion inasmuch as they had clubbed DPCs for the vacancy years 2004-2005 and 2005-2006. The respondents had also ignored the fact that the promotion of the applicants was delayed due to their own inaction whereas persons coming from other streams, who were otherwise junior to the applicants going by the date of joining as ACIO-II, were promoted much earlier. Nevertheless, the applicants joined their post in the rank of DCIO/Tech-WT on 01.07.2011. The applicants have further claimed that their next promotion to the rank of AD/Tech as per the Recruitment Rules of 2010 was due from 01.07.2013. This is because the Recruitment Rules provided that residency period at the level of DCIO/Tech-WT for all streams for promotion to AD/Tech was 05 years regular service in the grade of DCIO-Tech failing which officers having combined regular service of 08 years in the grades of DCIO-Tech and ACIO-I with atleast 02 years regular service as DCIO-Tech were also to be considered. The contention of the applicants is that under "failing which" clause they would have become eligible for consideration on completion of 02 years service as DCIO/Tech-WT on 01.07.2013. However, the respondents amended the Recruitment Rules again w.e.f. 09.12.2013 and deleted the "failing which" clause thereby rendering them ineligible for promotion till they complete 05 years service as DCIO/Tech-WT. The applicants made several representations to the respondents for ante dating their delayed promotion as well as considering them for next promotion to the level of AD/Tech under the Recruitment Rules of 2010. Since no satisfactory response was received, they have approached this Tribunal seeking the following relief:-

(b) That the date of promotion for Assistant Director/Technical for the applicants be reckoned from 1st April 2012 correcting all errors, administrative mismanagement, infirm policies, lapses and laxities of the Department in the garb of Confidentially as well as to bring in parity with junior officers of Technical cadre who stood promoted as AD/Tech w.e.f.

1st April 2012 taking advantage of faster interim promotions to ACIO-I/Tech and DCIO-Tech/Tech. As merging is taking place at AD/Tech no further disparity, infirmity and injustice should be meted out to the applicants.

2. During the course of the arguments, learned counsel for the applicants stated that she was only pressing her prayer for promotion as AD/Tech under Recruitment Rules of 2010, which contained the "failing which" clause.

3. The official respondents in their reply have stated that as per Recruitment Rules in existence prior to 20.07.2004 90% of the posts of ACIO-I(WT) were to be filled by promotion and remaining 5% each by deputation and direct recruitment failing which by promotion. However, as per new Recruitment Rules, 7 OA-860/2014 which came into force w.e.f. 20.07.2004 direct recruitment quota was increased to 35% and promotion quota was reduced to 65%. Thus, the excess incumbency under promotion quota needed to be neutralized. The applicants were considered for promotion during DPC year 2004-2005 against the anticipated vacancies. To avoid delay, DPC for the year 2005-2006 was also convened along with DPC for the year 2004-2005 on 04.03.2005 and even though the vacancies under promotion quota became available in December, 2005, the applicants were promoted in June, 2005 itself against available vacancies of other quotas as a welfare measure. As regards the allegation of applicants that DPC was delayed for 10 years during the period 1996-2006, they have stated that DPC was last held in the year 1998-1999. Subsequently, for 04 years, this DPC could not be convened as the post of ATO was abolished and a new hierarchy comprising of DCIO/Tech, AD/Tech, JDD/Tech etc. above the existing post of ACIO-I/WT was created. Thereafter, new Recruitment Rules for all these posts were notified only on 06.02.2004. The DPCs could be convened only after notification of the new rules after protracted correspondence with MHA/DoPT & UPSC. Meanwhile ad hoc promotions were extended to the stagnating officers to compensate them monetarily. Further, in terms of Recruitment Rules for the rank of DCIO/Tech, 05 years of regular service in the grade of ACIO-I/Tech was required to be considered for promotion as DCIO/Tech. However, these Recruitment Rules were amended on 14.12.2010 whereby the residency period was reduced from 05 years to 03 years which made the applicants immediately eligible for promotion. Accordingly, a DPC was convened on 08.06.2011 and the applicants were granted promotion in July, 2011. Thus, there was no delay in granting them promotion as DCIO/Tech. The official respondents have admitted that the Recruitment Rules were again amended in 2013 to delete "failing which" clause provided in the old Recruitment Rules for promotion to the 8 OA-860/2014 post of Ad/Tech. This they have, however, submitted was done to provide a level playing field between direct recruit officers and promotees. The official respondents have further submitted that as per the new Recruitment Rules, the applicants will become eligible for next promotion only after completing 05 years service in July, 2016 in the vacancy year 2017-2018.

4. The private respondents No. 30, 32 to 36, who are direct recruits to the post of DCIO/Tech have also filed their reply in which they have stated that at the time of initiation of their recruitment process, the Recruitment Rules, 2003 were in vogue, which provided for 25% of the posts of DC IO/Tech to be filled by direct recruitment whereas the remaining 75% were to be filled by promotion from the cadre of ACIO-I/Tech. According to them, the initiation of their recruitment was commenced in 2007 and the process was completed in 2010 with the appointment of the present respondents. They have submitted that the applicants herein do not belong to the same cadre and there cannot be any comparison of seniority between them. Moreover, it is also an admitted position that the applicants are holding the post of DCIO/Tech-WT whereas they are holding the post of DCIO/Tech. The two cadres are different and the question of inter-se seniority is unsustainable as the Rules do not provide for any such determination. The merger of all cadres now takes place only at the level of AD/Tech. Further, they have stated that notwithstanding the claims of the applicants, they would be eligible for promotion to the post of AD/Tech as their juniors have already been promoted. They have also claimed that the present application is hopelessly barred by limitation as the relief claimed by the applicants was stale and in grant of the same, various 3rd party rights would be adversely affected. The respondents have further stated that the settled proposition of law was that what cannot be done directly cannot also be done 9 OA-860/2014 indirectly. Thus, the applicants without challenging the Recruitment Rules of 2013 were indirectly seeking that relief by asking for promotion under the Recruitment Rules of 2010.