Central Administrative Tribunal - Delhi
Mrs. Garima Singh W/O Vivek Bhardwaj vs Union Of India Through on 9 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. No.3278 of 2010 M.A. Nos.278/2011, 432/2011; with O.A. No.4284 of 2010, M.A. No.214/2011; O.A. No.4285/2010; O.A. No.382/2011; O.A. No.384/2011; O.A. No.403/2011; O.A. No.4282/2010; O.A. No.4283/2010; O.A. No.4286/2010 This the 9th day of May, 2011 FULL BENCH HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) O.A. No.3278/2010 Mrs. Garima Singh W/o Vivek Bhardwaj, R/o Flat No.D-4, 44, Ironside Road, Kolkata-700019, working at DVC as Deputy Director, Under Secretary of Government of India, at Ultadanga, Kolkata. Applicant ( By Shri R. Venkataramani, Sr. Advocate and with him Shri V. S. R. Krishna, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, Shahjahan Road, New Delhi-110001. 3. Secretary, Department of Expenditure, Government of India, Ministry of Finance, North Block, New Delhi-110001. 4. T. S. Negi, Under Secretary, ST Commission, Loknayak Bhawan, Khan Market, New Delhi-110001. 5. Lalit Chauhan, Under Secretary, Food and Public Distribution, Krishi Bhawan, New Delhi-110001. 6. J. N. Basumatory, Under Secretary, UPSC, Dholpur House, Shahjahan Road, New Delhi-110001. 7. S. S. Rana, Under Secretary, MOIA, Akbar Bhawan, New Delhi-110001. 8. Mukesh Bhardwaj, Under Secretary, Department of Fertilizer, Shastri Bhawan, New Delhi-110001. 9. K. M. Saidharan, Under Secretary, UPSC, Dholpur House, New Delhi-110001. 10. R. C. Rajput, Under Secretary, UPSC, Dholpur House, New Delhi-110001. 11. Smt. Neelam Vohra, Under Secretary (Administration), DEA, Ministry of Finance, North Block, New Delhi-110001. 12. S. K. Ghildiyal, Under Secretary (Administration), DEA, Ministry of Finance, North Block, New Delhi-110001. 13. Ms. Anita Tipra, Under Secretary, Department of Animal Husbandry and Fisheries, Ministry of Agriculture, Krishi Bhawan, New Delhi-110001. 14. Smt. Meetali Ghosh, Under Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi-110001. 15. R. S. Punia, Under Secretary, Ministry of women and Child Development, Shastri Bhawan, New Delhi-110001. 16. Arun Gaur, Under Secretary, Ministry of Shipping, Transport Bhawan, Sansad Marg, New Delhi-110001. 17. G. B. Upadhyay, Under Secretary, Department of Land Resources, Ministry of Rural Development, Nirman Bhawan Annexe Building, New Delhi-110001. 18. Arun Kumar Dhawan, Under Secretary (Internal Finance), Ministry of Finance, DEA, North Block, New Delhi-110001. 19. Sushma Kataria, Under Secretary (Department of Revenue), Ministry of Finance, North Block, New Delhi-110001. 20. A. K. Cashyap, Under Secretary, CS Division, DoPT, Lok Nayak Bhawan, Khan Market, New Delhi-110003. 21. Dr. Reena Sethi, Under Secretary, Department of Personnel & Training, Lok Nayak Bhawan, Khan Market, New Delhi-110003. 22. Dalip Kapur, Under Secretary (MI), DEA, Ministry of Finance, North Block, New Delhi-110001. 23. K. B. Subramaniam, Under Secretary (Vigilance), Ministry of Consumer Affairs, Krishi Bhawan, New Delhi-110001. 24. Debashis Pal, Under Secretary, Ministry of Shipping, Transport Bhawan, New Delhi-110001. 25. S. K. Sahoo, Under Secretary, Ministry of Shipping, Transport Bhawan, Sansad Marg, New Delhi-110001. 26. A. M. Vijayan, Under Secretary, Ministry of Shipping, Transport Bhawan, Sansad Marg, new Delhi-110001. 27. Kamal Bose, Under Secretary, Ministry of Power, Shram Shakti Bhawan, Maulana Azad Road, New Delhi-110001. 28. P. K. Ravi, Under Secretary, Department of Personnel & Training, North Block, New Delhi-110001. 29. J. B. Sharma, Under Secretary, Ministry of Home Affairs, North Block, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondents 1 & 3; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC; Shri Rajinder Nischal and Shri R. N. Singh for Private Respondents, & Shri J. B. Sharma, applicant in person ) O.A. No.4284/2010 Syed Ekram Rizvi S/o Sohail Ahmed, Under Secretary, Department of Telecommunication, room No.511, Sanchar Bhawan, New Delhi-110001. Applicant ( By Shri R. Venkataramani, Sr. Advocate and with him Shri V. S. R. Krishna, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.4285/2010 Shersha S/o C. M. Sheik Mohiddin, Under Secretary, Ministry of Labour & Employment, Shram Shakti Bhawan, New Delhi-110001. Applicant ( By Shri R. Venkataramani, Sr. Advocate and with him Shri V. S. R. Krishna, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.382/2011 Atya Nand S/o Ram Ekbal Vishwakarma, Under Secretary, Ministry of Information & Broadcasting, Room No.116, Shastri Bhawan, New Delhi-110015. Applicant ( By Shri R. Venkataramani, Sr. Advocate and with him Shri V. S. R. Krishna, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.384/2011 Sanjay Kumar S/o Gopal Prasad, Under Secretary, Department of Revenue, Room No.32-B, North Block, New Delhi-110001. Applicant ( By Shri R. Venkataramani, Sr. Advocate and with him Shri V. S. R. Krishna, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.403/2011 Arvind Kumar S/o R. P. Jaiswal, Under Secretary, Department of Revenue, Room No.259-B, North Block, New Delhi-110001. Applicant ( By Shri R. Venkataramani, Sr. Advocate and with him Shri V. S. R. Krishna, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.4282/2010 Anant Kishore Saran S/o L.K.Saran, Under Secretary, Ministry of Youth Affairs & Sports, Room No.102, C Wing, Shastri Bhawan, New Delhi-110001. Applicant ( By Shri Keshav Kaushik, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.4283/2010 Sandeep Kumar Gupta S/o Arun Gupta, Under Secretary, Ministry of Coal, Room No.G-21, Shastri Bhawan, New Delhi-110001. Applicant ( By Shri Keshav Kaushik, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha for Respondent 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O.A. No.4286/2010 Soumya Chattopadhyay S/o Rabiranjan Chattopadhyay Under Secretary, Ministry of Finance, Room No.272A, North Block, New Delhi-110001. Applicant ( By Shri Keshav Kaushik, Advocate) Versus 1. Union of India through Secretary, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi-110001. Respondents ( By Shri R. V. Sinha, Shri R. N. Singh for Respondents 1; Ms. Bindra Rana with Ms. Meenu Sharma for Respondent No.2 UPSC, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Mrs. Garima Singh, applicant in Original Application No.3278 of 2010, is a direct recruit Section Officer belonging to Central Secretariat Service (hereinafter to be referred as CSS) through Civil Services Examination conducted by Union Public Service Commission. Pitted against her as respondents are Section Officers who came to occupy the said post by way of promotion. There has been a long drawn litigation between direct recruit and promotee Section Officers who vied against each other for seniority, which litigation ended on 9th May, 1997, when the Apex Court in the matter of Surjit Singh & others v Union of India & others (Civil appeal No.3641-48 of 1997) directed interpolation of direct recruit Section Officers of various years in between the non-direct recruits. When the chapter as regards inter se seniority between the direct recruit and promotee Section Officers was closed, the direct recruits and promotees would not have anticipated that another serious litigation is awaiting them in the wings, which would engulf the whole cadre of Section Officers. Whereas, the first litigation culminating into the order of the Supreme Court, as mentioned above, was as regards inter se seniority on the post of Section Officers, the one manifested by the present litigation is as regards precedence in the matter of promotion to the next higher post of Under Secretary.
2. This litigation has its roots in the Cabinet decision of October, 2003 vide which the approved permanent strength of the cadre of Section Officers was increased to 1400. For this increase in the strength necessary notification was to be issued separately to become effective, as per the decision of the Cabinet itself. The notification manifesting increase in the cadre strength came about on 27.2.2009. The official respondents would take the increased strength of the cadre from 2003 and make promotions for the vacancy year 2003 onwards. The applicant, by the time the increase in cadre strength aforesaid came about, was marginally short of the eligibility criteria, which, as per statutory rules, is eight years of service as Section Officer. The applicant being a 1996 batch officer would have the eligibility criteria in the year 2004 or 2005. Before we may make an elaborate mention of the pleadings, we may shortly cull out the basic contention raised in support of the plea that the applicant being senior despite not having the requisite qualifying service of eight years on the post of Section Officer, has to be considered along with her juniors. It is urged, in the first instance, that the Government through the Department of Personnel & Training (DOP&T), which is the nodal Ministry in all service matters as pertaining to Central Government employees, has issued memorandums from time to time, catering for the situation as the one in hand. It is spoken through the memorandums to be referred hereinafter, that where a senior may not have the eligibility criteria, but his or her juniors are being promoted, the eligibility criteria shall have to be relaxed. It is urged that these memos have to be read as part of the rules. Another contention raised on behalf of the applicant is that when the notification increasing the strength in the cadre came about in 2009, she was having far more number of years of service put on the post of Section Officer, and was admittedly answering the eligibility criteria. It is the case of the applicant that the Cabinet decision even though, might have been taken in October, 2003, it would be effective only from 2009 when the notification in that regard came to be issued, and that being so, the applicant would be eligible. To the contention, as mentioned above, the other limb is that if the respondents have to make promotions for the vacancy year 2003, the same cannot include promotions from the increased strength of the cadre. The third contention is that the memorandums, if may not be read as part of the rules or with the rules, would, in any case, be general directions across the board for relaxation in eligibility criteria of service. The fourth, but equally significant contention raised is that when there were sufficient and adequate grounds in existence for exempting the eligibility criteria for which ample powers exist in the statutory rules, in consideration of the entire material, the respondents proceeded in a right direction to give relaxation in rules to the applicant and other equally situate employees, and all notings and the orders made in that regard on official files were reversed by simply observing that relaxation in rules would lead to unnecessary litigation. It is urged that once, grounds justifying relaxation were in existence, it could not be overturned on the ground of anticipated litigation.
3. The respondents would join issues with the applicant on all the contentions as noted above.
4. The questions debated before us are of some significance. The Tribunal, being the court of original or primary jurisdiction, it would be appropriate to refer to the pleadings in sufficient details. Before we may, however, do that, we may mention that this Original Application came to be filed before the Tribunal in its Calcutta Bench on 19.12.2009. While making mention of the main contentions raised in the Application, the Honble Members then seized of the matter, vide order dated 23.12.2009, restrained the respondents from giving any consequential order in respect of the select list of Grade-I for the year 2003. During pendency of the OA, some impleadment applications were allowed and number of promotee Section Officers were arrayed as party respondents. The interim directions, as mentioned above were modified to the effect that the official respondents were set at liberty to promote those officers whose names figured in the select list of 2003 and who were senior to the applicants as per seniority. The order passed by the Tribunal was, however, to abide by the final order to be passed in the OA. For non-obedience of the orders dated 23.12.2009, a contempt petition also came to be filed, in which notices were issued. Reply on behalf of the respondents 1 to 3 also came to be filed when the matter was before the Bench at Calcutta. When proceedings stood so, an application came to be filed by the respondents seeking transfer of the OA to the Principal Bench at Delhi on variety of grounds. The said application, after notice, was allowed by one of us (V. K. Bali, Chairman) vide orders dated 10th September, 2010. Against the order aforesaid, the applicant Garima Singh filed WP(C) No.8267/2010 before the High Court of Delhi, which was dismissed vide orders dated 10.12.2010. The matter was being heard by a Division Bench and arguments in the matter were heard from time to time. However, vide order dated 7.3.2011, the matter was referred to a larger Bench for the reasons recorded in the said order. While, however, referring the matter to the larger Bench, the interim directions given by the Calcutta Bench were further modified to say that the respondents would be at liberty to promote persons to the post of Under Secretary, but the same would be subject to decision of the OA. Applicant and the last six persons in the select list in tune with seniority were, however, not to be promoted. The respondents, it was further ordered, would in all promotion orders specifically mention that their promotion would be subject to final outcome of the present OA, so that the applicant need not implead every promoted person as party respondent. It was, however, left open to the persons so promoted to address their arguments, impleaded or not. During pendency of the present OA before this Tribunal, five other OAs bearing Nos.4284/2010, 4285/2010, 382/2011, 384/2011 and 403/2011 also came to be filed, which have been ordered to be listed for hearing along with the present OA. Three more OAs bearing Nos.4282/2010, 4283/2010 and 4286/2010 also came to be filed during pendency of the OA filed by Garima Singh, wherein short replies have been filed by the respondents. These matters were being adjourned from time to time. However, when the same came up for hearing on 22.3.2011 before the Division Bench, by which time the judgment in Garima Singhs case had already been reserved, the same were reserved for judgment, and it was directed that the judgment in the same would be pronounced with Garima Singhs case. It is for that reason that we were informed by the counsel representing the applicant in Garima Singhs case that six direct recruits have filed OAs, we have granted a limited stay of non-promotion of six junior most promotee Section Officers. The pleadings in the main OA filed by Garima Singh are complete. The Tribunal thought that there would be no necessity to complete pleadings in other cases, as the learned counsel representing the parties were ad idem that the issue involved in all the matters is exactly the same and there would be no need to have response of the respondents in all the cases. That being so, while permitting, however, every counsel representing the parties in all the cases to address arguments, in order to save on time, no response of the respondents was sought in other OAs. By this common order, we propose to dispose of all the nine Original Applications, as has also been suggested by the learned counsel representing the parties.
5. Challenge in the OA filed by Garima Singh under Section 19 of the Administrative Tribunals Act, 1985 is to the decision of Department of Personnel & Training, the 1st respondent herein, communicated vide office memorandum dated 25.8.2009 relating to the Select List for the year 2003 of the officers of the Central Secretariat Service (CSS) for appointment to Grade-I (Under Secretary) of the Service by incorporating the newly created posts in the panel of Under Secretaries of 2003, which had not come into existence on 1.7.2003 and which were not included in the Approved Permanent Strength (APS) of the Grade-I as on 1.7.2003. The case of the applicant is that in fact these posts were notified on 27.2.2009 vide gazette notification following a decision of the Cabinet of October, 2003, and that by arbitrarily increasing the number of vacancies the 1st and 2nd respondents have included junior officers in the Section Officers grade of the CSS and excluded the applicant in the Select List of Grade-I for the year 2003, ignoring the recommendations of the Committee of Secretaries (CoS) headed by the Cabinet Secretary dated 10.9.2003 to resolve the direct recruit CSS officers seniority in the light of court judgments and based on the principles of equity to avoid possible litigation, and also the Minister of State (Personnel)s decision to grant relaxation of eligibility condition to the direct recruit CSS officers. Following prayers have been made in the OA:
a) Quash the select list of Under Secretaries of 2003 issued by Respondent No.1 in gross violation of substantive Rules governing the CSS.
b) Call the records relating to the relaxation of the eligibility condition for the 1995 and 1996 batch of Direct Recruit Officers, whereby the applicants batch of officers was considered for relaxation and quash the subsequent decision of the Respondent No.1 not to grant relaxation in the eligibility condition.
c) Quash the consequential decision of Respondent No.2 not to consider the name of the applicant in the Select List of Grade 1 for the year 2003, on the ground that the eligibility condition for promotion to the Selection Grade was not met by the applicant.
d) Quash the proposal of the Respondent No.1 relating to finalization of the Select List of Grade 1 for the year 2003 whereby the applicants name though forwarded to the Respondent No.2, were not subsequently considered for relaxation of the service condition.
e) Direct the Respondent No.1 to implement the case of one time relaxation as has been done in other services of the Government of India in order to keep the Common Seniority List (CSL) intact.
f) In the alternative, this Honble tribunal may be pleased to consider the applicant and other similarly situated Direct Recruit Officers be placed in the Select List of Grade 1 for the year 2003, in which their juniors had been placed by relaxing the eligibility criteria, as provided for in the CSS Rules and along with OM No.AB.14017/12/88-ESTT(RR) dated 25.03.1996 with all consequential benefits including promotion to higher grade be given to the Applicant and where necessary, the Respondent No.1 may be directed to create the requisite number of supernumerary posts at appropriate level to accommodate the applicant and other similarly placed Direct Recruit Officers.
g) Pass such other or further order as this Honble Court may deem fit and proper in the facts and circumstances of the case.
6. The applicant, as mentioned above, belongs to Central Secretariat Service (CSS). She was recruited through Civil Services Examination, 1996 conducted by Union Public Service Commission, the 2nd respondent, and joined the service on 6.7.1998 as a Section Officer. She was promoted as Under Secretary (Grade-I of CSS) on ad hoc basis with effect from 11.7.2005 vide office memorandum dated 13.7.2005. A common seniority list of Section Officers was prepared in 1997 after a long drawn litigation and was finalized under the directions of the Honble Supreme Court in the case of Surjit Singh & others (supra) decided on 9.5.1997, whereby the direct recruit Section Officers of various years were interpolated in between non-direct recruit Section Officers. The applicant was assigned seniority in the common seniority list at number 4636A. Copy of the said seniority list has been placed on records as annexure A-2 (colly.). It is the case of the applicant that despite being senior in the common seniority list, she has been denied promotion, while junior officers, i.e., promotees, from the list up to number 5180, in case of general category candidates, have been promoted to the next higher grade of Under Secretary. It is further her case that as per Central Secretariat Recruitment Rules, 1962 (hereinafter to be referred as the Rules of 1962), Select List means the select list prepared in accordance with the regulations made under sub-rule (4) of rule 11 or rule 12, as the case may be. In accordance with sub-rule (4) of rule 12 of the Rules aforesaid, the Ministry of Home Affairs made the Central Secretariat Service (Promotion to Grade I and Selection Grade) Regulations, 1964 (hereinafter to be referred as the Regulations of 1964), which lays down the detailed procedure for preparation of Select List. Regulation 5(1) of the said Regulations stipulates that a fresh select list for Grade-I shall be prepared at least once a year, if on the 1st July of the year the number of officers already included in the select list for that grade, is below the strength fixed under Regulation 3(1), i.e., the sanctioned strength of the grade. The strength of the select list is to be fixed by the 1st respondent from time to time. It is the case of the applicant that there was no notified cadre strength of Grade-I (Under Secretary) in the CSS prior to 27.2.2009. There was, however, a concept of approved permanent strength (APS) in the Grade-I as on 1st July of every year. In the instant case, APS of Grade-I as on 1st July, 2003 was 579 as reported by the 1st respondent to the Union Cabinet in the proposal for cadre restructuring of CSS, which got approval of the Cabinet on 3rd October, 2003. After the cadre restructuring, the sanctioned strength in the Grade-I became 1400 with effect from 27.2.2009 vide gazette notification following a decision of the Cabinet in October, 2003. It is further the case of the applicant that it would be inappropriate, illegal, arbitrary and unfair to incorporate the vacancies created in 2009 in the select list of 2003. The applicant makes mention of a note of Secretary (Personnel) dated 14.11.2008, which states that as on 30.6.2003 there were 429 regular Under Secretaries in place. It is the case of the applicant that even if it were to be argued that the decision of the Cabinet came into effect on the day the Cabinet approved it, the posts created by the decision of the Cabinet in October, 2003 could not be included in the APS of the Under Secretaries as on 1.7.2003, i.e., three months earlier, and, therefore, the posts created by the Cabinet in October, 2003 could not be taken into calculation for purposes of preparation of the select list of 2003, which is to be prepared on the first day of July every year as per the Rules of 1962. The 1st respondent while preparing the select list for Grade-I of CSS for the year 2003, it is further the case of the applicant, violated the Rules of 1962 and 2009, as also the procedure, principles and instructions on the subject. The select list for Grade-I of CSS of 2003 has to be prepared with reference to the APS on 1st July, 2003 as per the Rules of 1962. The APS of Grade-I as on 1st July, 2003 was 579, and, therefore, the select list for 2003 could not be more than the APS, assuming that all the posts in the grade were vacant on that day. In this case as on 1st July, 2003 there were 429 regular Under Secretaries (Grade-I officers) in position as per the notes recorded by Secretary, DOP&T on 14.11.2008 for preparation of select list for Grade-I for the year 2003, as may be made out from the noting on file obtained by the applicant under the Right to Information Act. The applicant pleads that besides wrongly calculating the number of vacancies for select list for 2003, the 1st respondent has also violated the decision of the Committee of Secretaries in the Cabinet Note for cadre restructuring of CSS in para 24(vi), which states, the concern expressed regarding seniority of DR Section Officers might be suitably resolved in the light of court judgment and principle of equity to avoid any possible litigation. The 1st respondent, it is pleaded, completely overlooked and blatantly ignored the decision of the Cabinet while preparing the panel of 2003, and further that due to faulty preparation of the select list for the year 2003, junior officers as per common seniority list of 1997 prepared on the basis of the direction of the Supreme Court and upgraded from time to time, have been included in the select list for Under Secretaries in 2003 ahead of the seniors, and that the inclusion of juniors in the select list ahead of seniors in the select list would be in violation of the DOP&T guidelines/instructions dated 18.3.1988, 9.7.1989 and 25.3.1996. The 1st respondent through OM dated 19.7.1989 drew attention of all the Ministries and Departments to the relevant part of the instructions dated 18.3.1988 and directed them to take necessary action for amendment of recruitment rules urgently wherever this had not been done, in order to ensure that seniors who might have joined later due to various reasons were not overlooked for promotion. Accordingly, all the services of the Central Government have included this provision in their recruitment rules. Copies of the Indian Civil Accounts Service and the Indian Economic Service incorporating the aforesaid directive of the 1st respondent have been placed on records as Annexure A-4 (colly.). The applicant pleads that considering that eight years of service in the grade of Section Officer is necessary to become eligible for Under Secretary, the direct recruit batches of 1995 and 1996 onwards in the feeder grade have been denied to be included in the select list panel of Under Secretary, while their juniors in the common seniority list of Section Officers are being considered for promotion. This situation has arisen due to violation of the Rules of 1962 and retrospective application of CSS Rules, 2009 by the 1st respondent. Normally, the direct recruits of 1995 and 1996 would have been eligible for promotion to the grade of Under Secretary in 2004 and 2005 respectively, and had the 1st respondent followed the rules of 1962 and Regulations of 1964, there would not have been a situation where junior officers would have been included in the panel of 2003. That being so, there would have been no demand for invoking the relaxation provision as issued by the 1st respondent from time to time. In October, 2003, a major restructuring of CSS cadre was done as a result of which about 821 new posts were created in the grade of Under Secretary. It is the case of the applicant that the 1st respondent wrongly determined the vacancies for preparation of the select list of 2003 as 914 by arbitrarily and illegally including the new creation of posts in the Under Secretary grade, which came into effect vide gazette notification dated 27.2.2009, following the decision of the Cabinet in October, 2003. The large size of the select list panel for the year 2003 is stated to be a resultant effect of a hypothetical calculation done by the 1st respondent, having no legal basis, without proper justification, done in a purely mechanical manner. The applicant states that it is a case of deliberate attempt of the 1st respondent to deny promotion to the applicant, which would be established by the fact that the respondents have accounted a newly created post that was non-existent on 1.7.2003 and as such, the decision of the respondent would be discriminatory, arbitrary, unlawful and unjust. In any case, it is pleaded, the direct recruit CSS officers of the exam years 1995 and 1996 have been denied promotion on the ground that they have not yet completed eight years of regular service as on 1.7.2003, with the end result that the direct recruit CSS officers who are senior in the common seniority list as compared to their juniors, have not been considered and included in the select list for the year 2003 on the ground of want of eight years regular service, and due to such wrong and arbitrary decision of the 1st respondent, the applicant has suffered an irreparable loss inasmuch as, the direct recruit CSS officers of 1995 and 1996 have become juniors to about 700 and 500 officers respectively, who were in the feeder grade. As regards the relaxation, it is pleaded that the 1st respondent while considering the same as regards eligibility criteria for direct recruit officers as a one time measure, has admitted that the senior-junior clause is followed across various services in Government of India and is even implemented at other levels of CSS. The applicant gives example of Deputy Secretary and Director levels, and in that behalf pleads that in the case of the applicant, the respondents have failed to apply this well accepted norm while dealing with the case of direct recruit officers of 1995 and 1996 batches. The 1st respondent is also said to have admitted that DOP&T has consistently adopted the policy of allowing relaxation up to two years service as qualifying service in the case of promotions in all services. Same view has been taken by the Honble Supreme Court while disposing of a civil writ in the case of Ms. Sadhana Khanna v Union of India in the year 2007, whereby the decision of the Tribunal dated 24.9.1999 in OA No.1271/1993 was upheld. The 1st respondent is stated to have further admitted vide a note at page 24/N of file No.5/16/2007-CS.I that the DOP&T has constantly adopted the policy of allowing relaxation up to two years of service as qualifying service in case of promotion in all services of the Government of India even after 1997, and accordingly considered it as fit, deserving and an appropriate case to grant up to two years relaxation in qualifying service to those direct recruit officers who have not yet competed their eligibility condition of eight years of service, so as to make them fit for consideration for the select list of Grade-I of CSS for the year 2003. Not applying the accepted norms of relaxation of eligibility condition is stated to be unreasonable, arbitrary and discriminatory. It is also the case of the applicant that the Minister of State had directed that the select list should be prepared as per seniority, i.e., common seniority list, which was prepared under the direction of the Honble Supreme Court, and yet the select list of the year 2003 has been finalized in ignorance of the said directions. The 1st respondent had obtained vigilance clearance in respect of the applicant from the Ministry of Agriculture before sending the proposal to UPSC, but her name has not been included in the select list of 2003. The respondent was earlier considering the name of the applicant for inclusion in the select list of 2003, and vide OM dated 4.9.2003 required the direct recruit officers up to 1996 batch to submit the ACR dossiers and other documents/information for preparation of panel for the year 2003. the applicant accordingly, completed the ACR dossiers and other documents/information as per the requirement. Subsequently, the 1st respondent directed the AVD branch of DOP&T to obtain vigilance clearance of the applicant for inclusion in the select list of Under Secretaries for the year 2003. Thereafter, the AVD branch vide OM dated 12.2.2009 obtained vigilance clearance from the Ministry of the applicant, which was also made available to the 1st respondent. The applicant complied with all required formalities for being considered for inclusion in the select list of 2003, but to her utter surprise and dismay, her name was excluded by the respondent without assigning any reason whatsoever. The applicant thereafter sent representations through the association, and when the same brought no tangible results, present Original Application for the reliefs already indicated above came to be filed.
7. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their reply, hotly contested the cause of the applicant. Some replies by private respondents have also been filed. There shall, however, be no need to make a mention of the pleadings made therein, as nothing specifically therefrom has been urged during the course of arguments. We may thus make a mention of the reply filed on behalf of official respondents. The reply on behalf of respondents 1 and 3 has been filed through Under Secretary in the Department of Personnel & Training. While giving the factual background of the case, it has been pleaded that with a view to ameliorating the service conditions of CSS officers and relieving them from years of stagnation, the Government constituted a Committee on cadre restructuring of CSS in 2001 under the chairmanship of the Additional Secretary (Pension). Joint Secretary (Pers.), Department of Expenditure and Joint Secretary (Estt.), DOP&T, were members, and Director (CS) was member-secretary of the said Committee. The Committee after series of deliberations in various meetings and after hearing the stake holders of the CSS, i.e., various associations, prepared a report. The Committee examined the cadre restructuring of CSS considering the stagnation in all the feeder grades, the overall cadre perspective and strength of CSS, and submitted its report to the Government in 2002. DOP&T after series of deliberations and in consultation with Finance Ministry, prepared a Cabinet note inter alia to fix grade-wise strength of CSS. Before the Cabinet note was placed before the Union Cabinet, it had been referred to a Committee of Secretaries, which considered the various aspects of the proposal. Based on the recommendations of the Committee on cadre restructuring of CSS and various suggestions of the Committee of Secretaries, the Government took a decision with the approval of the Union Cabinet in October, 2003 inter alia to fix the sanctioned strength of different grades of the Service. After fixation of the strength of different grades by the Union Cabinet in October, 2003, consequential action for preparing select lists for the years 2003 onwards for different grades had been taken from time to time from October, 2003 to date, which included regular promotions to the grade of Deputy Secretary on the basis of select list of Deputy Secretaries for the year 2003, wherein vacancies for the said select list have been calculated at 105 based on the sanctioned strength of the grade at 330. It is pleaded that it cannot be contended that the posts have come into existence on notification of CSS Rules, 2009. The CSS Rules, 1962 are said to be applicable for the select list 2003 in the grades of CSS. After reproducing the definition of approved service, as per rule 2 of the Rules of 1962, and the eligibility criteria for promotion as mentioned in rule 12, it is pleaded that the direct recruit Section Officers of the CSS would be eligible for promotion to Grade-I (Under Secretary) of the CSS after eight years from the first day of July of the year following the year in which the examination for direct recruitment was held. It is pleaded that the applicant was recruited through Civil Services Examination in the year 1996, and her eligibility for the promotion from Section Officers grade to Grade-I (Under Secretary) would start from 1st July, 1997, and thus, as per her eligibility for promotion to the post grade of Under Secretary, she would be considered for the select list 2005. Mention is then of the earlier litigation between the direct recruits and promotees culminating into the orders passed by the Honble Supreme Court. It is pleaded that after the seniority was settled, the pending select lists of Grade-I of CSS from 1987 onwards up to 2002 were issued, and in preparing these select lists, no relaxation has ever been granted due to implementation of the judgment of the Supreme Court in Smt. R. Prabha Devi v Union of India. It is pleaded that earlier the direct recruit Section Officers had challenged the Governments decision to increase the number of years from six years to eight years for their eligibility for promotion to the posts of Under Secretary of CSS. The challenge was repelled by the Honble Supreme Court in the case of R. Prabha Devi (supra). On 18.3.1988, as reiterated on 19.7.1989, in order to ensure that seniors who might have joined later due to various reasons are not overlooked in the matter of promotion, it was laid down that the recruitment rules for various posts/services should prescribe a note to the effect that when juniors who have completed the eligibility period are considered for promotion, seniors would also be considered irrespective of whether they have completed the requisite service, provided that they have completed the probation period. This, it is stated, was, however, applicable to such posts/services as might not lay down any instructions about crucial date with reference to which eligibility of the employees in the feeder cadre should be determined for the purpose of promotion through DPCs. It is pleaded that in the case of Grade-I of CSS, the eligibility of different categories of Section Officers has specifically been laid down as already mentioned above, and as such these instructions are not to be applied in the CSS. It is stated that it was duly clarified vide DOP&T OM No.AB-14017/12/97-Estt.(RR) dated 24.9.1997 (Annexure R-I), and that even though the applicant has mentioned about the guidelines of 19.7.1999 and 25.3.1996, yet has nefariously suppressed the guidelines contained in OM dated 24.9.1997. It is pleaded that no exception or differential treatment has been made in respect of the select list of Under Secretaries for 2003, and the same principles which have been followed while making the select lists of 1987 to 2002 of even 2004 to 2008 have been uniformly followed in respect of the select list for 2003, and further that no relaxation, as sought for by the applicant, would be admissible, which has especially not been given to avoid unnecessary litigation, as would be clear from the MoS (Personnel and Pension)s letter dated 14.12.2009 addressed to Chief Minister of Mizoram, copy whereof has been placed on records as Annexure R-II. The select lists in the grades of CSS are prepared in pursuance of the guidelines issued by DOP&T for DPC vide OM dated 10.4.1989, as mentioned from time to time. The DPC guidelines at para 4.1 of the OM aforesaid as amended from time to time provide for the manner of calculation of the vacancies, which would be uniformly applicable to all grades of the CSS. All the select lists from Assistants to the Senior Selection Grade (Director) of the CSS have already been issued for the select list year 2003. The select list for the year 2003 starts from 1.7.2003 and ends at 30.6.2004 and all the vacancies arising during this period, it is pleaded, were taken into account for the select lists of different grades. The contention of the applicant on calculation of vacancies for the select list 2003 for Grade-I of CSS (Under Secretary), it is stated, is based on misconception, conjectures and surmises. To sum up, it has been averred as follows:
(i) Additional posts inter-alia in Grade I of CSS were created in October 2003 which period falls in the Select List for the year 2003.
(ii) Uniform practice of not granting any relaxation for preparing SL of Grade I of CSS has been followed from 1987 to date including the one for 2003. Moreover, the relaxation cannot be sought as a matter of right.
(iii) The Honble Supreme Court in the case of Grade I of CSS had laid down that eligibility overrides seniority.
(iv) The applicant is holding an ex-cadre post at Kolkata and no cadre post/duty post of CSS is located at Kolkata. Moreover, all the Respondents and more than 800 officers of Grade I of CSS are stationed at New Delhi and hence, Honble CAT Kolkata has no jurisdiction over the matter.
(k) In view of the above the applicant has made an incorrect case based on conjectures and surmise with misleading points, de hors the records. As such the instant OA 1864 of 2009 is liable to be summarily dismissed with costs. [[ While replying on merits of the controversy as per corresponding pleadings set up in various paras of the OA, it has been inter alia averred that the plea raised by the applicant that vacancies created in October 2003 would not fall in the 2003 select list, is not correct. It is pleaded that for inclusion in the select list of Grade-I of CSS, eight years regular service in the grade of Section Officer is the essential requirement, and that no Section Officer with less than eight years regular service in the grade would be eligible for inclusion in the select list of Grade-I of CSS, and this principles has been followed uniformly even prior to 2003 and after 2003 and even in preparing the select list of Grade-I for the year 2003. The recommendations of the Committee of Secretaries, it is stated, have no relation to the instant case. Insofar as, seniority of direct recruit Section Officers is concerned, the DOP&T is said to have followed the common seniority list as issued on 3.12.1997 in compliance with the orders of the Honble Supreme Court. Insofar as, ad hoc promotion of the applicant is concerned, it is pleaded that the ad hoc promotions in Grade-I of the Service were made on the basis of eligibility-cum-seniority, subject to fitness, and that the applicant became eligible to hold the post of Under Secretary on 1.7.2005. It is further pleaded that many of her juniors in the common seniority list were promoted as Under Secretary in different lots first on in situ basis in 1999, and later on ad hoc basis in September, 2004 and February, 2005, all prior to 1.7.2005, but the applicant would not agitate the matter knowing fully well about her being ineligible prior to 1.7.2005, and that the ad hoc promotions inter alia in September, 2004, February, 2005 and July, 2005 became possible only because posts of Under Secretary had become available in October, 2003, and not in February, 2009, as claimed by the applicant, and thus the applicant having already availed the benefit of additional posts of Under Secretary cannot now claim that these came into existence on 20.2.2009. As regards the strength fixed in Regulation 3(1), prior to 2003, the vacancies were worked out on the basis of authorized permanent strength of Grade I of CSS. However, in October, 2003 the strength of Grade I was fixed at 1400. This creation of fresh posts in Grade I falls during the period from 1.7.2003 to 30.6.2004 and, therefore, is to be reckoned for the select list of Grade-I for the year 2003. It is denied that prior to 27.2.2009 there was no notified cadre strength of Grade-I of CSS. It is pleaded that the cadre strength of Grade-I of CSS was fixed at 1400 with the approval of the Union Cabinet on 3.10.2003 which was duly notified on 27.10.2003. It is further pleaded that the applicant is trying to confuse the issue by referring to the note of Secretary (P) of 14.11.2008. It is pleaded that admittedly the posts created by the decision of the Cabinet in October, 2003 came into effect from the day the Cabinet approved it. The DPC guidelines in para 4.1 of OM dated 10.4.1989 as amended from time to time contain the method of calculation of vacancies, which, it is pleaded, would be uniformly applicable to all the grades of CSS, and that ideally the select list of a year should be in a position as on 1st day of July of that year, yet the period of the select list is up to the 30th June of the following year, and that, therefore, the posts created in October, 2003 would fall for the select list of Grade-I of CSS for 2003 and have been correctly taken into account for that select list as per DPC guidelines at para 4.1 of the OM aforesaid. The CSS Rules, 2009, it is pleaded, have not been applied for preparing the select list of Grade-I of CSS for 2003 because these cannot be applied retrospectively, and the select list for 2003 has been prepared on the same principles which were applied to the select lists of earlier years up to 2002. The sanctioned strength of Grade-I of CSS was fixed at 1400 in October, 2003 and the vacancies for the said select list have been calculated on that basis. It is pleaded that due to protracted litigation in the past, the select lists in the grade of Deputy Secretary or Under Secretary of CSS had been in arrears, and that 105 regular promotions to the grade of Deputy Secretary were made taking into account the sanctioned strength of Deputy Secretaries as 330, which was fixed by the same Cabinet decision in October, 2003, which fixed the sanctioned strength of Under Secretaries at 1400, and thus, the additional posts of Under Secretaries became available in October, 2003 and not in February, 2009, as claimed by the applicant. It is further pleaded that the applicant did not possess as on 1.7.2003 eight years regular service in the grade and hence, was not included in the select list for 2003, and thus inclusion of eligible officers and exclusion of ineligible officers while preparing 2003 select list would not amount to violation of guidelines of the DOP&T. It is once again stated that the applicant while quoting the DOP&T OM dated 25.3.1996 has deliberately omitted the mention of a subsequent order of the said Department contained in OM dated 24.9.1997, wherein attributing to the same judgment of the Honble Supreme Court in the case of R. Prabha Devi (supra) the following has been clarified:
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility conditions prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority cannot be substituted for eligibility nor it can override in the matter of promotion to the next higher posts. Insofar as, DOP&T guidelines dated 18.3.1988 are concerned, it is the case of the respondents that the same were laid down to take care of the situation where seniors due to reasons beyond their control, joined subsequent to their juniors and hence might be short of qualifying service for promotion to the next higher grade, and that in the case of direct recruit Section Officers of CSS, the guidelines/regulations clearly state that their qualifying service will start from 1st July of the year subsequent to the year of their examination, and as such the guidelines referred to by the applicant would not apply to Grade-I of CSS. As regards the plea of the applicant based on discrimination, it is pleaded that Annexure A-5 would indicate that after long deliberations it was decided not to grant any relaxation for the sake of uniformity. It is pleaded that relaxation cannot be claimed as a matter of right, and the respondents have avoided grant of any relaxation as no such relaxation has ever been granted from 1987 to date and giving of relaxation to 1995 and 1996 batch of direct recruits would have generated similar demands from Section Officers of earlier batches, and hence would have opened Pandoras box. The judgment of the Honble Supreme Court in Ms. Sadhna Khanna (supra) is said to be not applicable in the present case. The case of Ms. Sadhna Khanna, it is pleaded, was for promotion from Assistant to Section Officer. For promotion from Assistant to Section Officer the date of actual joining has a bearing and it is possible that a senior direct recruit Assistant may be short of requisite service vis-`-vis his/her junior by virtue of joining late. Such an eventuality is not possible in the case of Section Officers for promotion to Grade-I of CSS wherein for different categories of Section Officers, specific dates from which approved service will start, have been laid down in CSS Rules. Insofar as, promotion of Section Officers to Grade-I of CSS is concerned, it is pleaded that the matter was duly deliberated by the Honble Supreme Court in the case of R. Prabha devi (supra). As regards the notes in the file referred to by the applicant in the matter of relaxation of rules, it is pleaded that the applicant has referred to a particular portion of the notes from file and has deliberately excluded mentioning the final decision in the matter, and that in fact, the decision for not granting relaxation in eligibility was taken on the basis of past experience of prolonged litigation between promotee direct recruit officers of CSS over seniority related issues, which had resulted in a complete impasse in CSS promotions for over 15 years. The final decision was that no relaxation was permissible. The allegations of mala fide have been denied. It is stated that there is no denial of equal protection. Judgment of the Supreme Court in R. Prabha Devis case has once again, been relied upon to state that eligibility overrides seniority. As regards obtaining vigilance clearance, it is stated that obtaining vigilance clearance is only a preparatory action; eligibility is of prime importance and the applicant is not eligible for inclusion in Under Secretary select list for 2003.
8. When the matter came up for hearing before us on 20.1.2011, it was urged on behalf of the applicant that the Government of India, Ministry of Personnel, PG and Pensions vide letter dated 6.4.2009 addressed to UPSC had sent a copy of the eligibility list for the year 2003 as annexure-II, and that list included the names of all direct recruits irrespective of the fact as to whether they fulfilled the eligibility criteria of eight years or not. The learned counsel sought adjournment to file an affidavit in tune with the plea raised by him, as noted above. The matter was adjourned enabling the applicant to file an affidavit. An application has been filed on behalf of the applicant wherein it is inter alia pleaded that vide letter dated 6.4.2006 issued by DOP&T addressed to UPSC, the name of the applicant was also sent as an eligible candidate for consideration for promotion to Grade-I of CSS, and that it was done on the basis of DP&T OMs itself which stipulate consideration of seniors when their juniors who have completed eligibility service are considered, and further that for some inexplicable reasons the name of the applicant along with other direct recruit officers has been omitted in the final consideration by the DPC either by UPSC or some other agency. It is then pleaded that letter dated 6.4.2009 would show that the name of the applicant is reflected at serial number 358, with seniority number CSL 4636-A over and above her junior officers, and that in the like manner, the names of other direct recruits who are similarly placed like the applicant, and are senior to her in the seniority list, also find place in the said eligibility list. It is further pleaded that after issue of the DOP&T letter dated 6.4.2009, the applicant is not aware as to the circumstances leading to non-consideration of her case for promotion for the select list of the year 2003, even though in terms of the requisite DOP&T OMs and seniority list, she is eligible for being considered for promotion, and that non-consideration of her case, even though her name was forwarded as an eligible officer, would be arbitrary and discriminatory. Reply to the misc. application aforesaid has been filed by the official respondents. It is stated therein that the applicant has annexed letter dated 6.4.2009, which would show her name but she has failed to appreciate that in the seventh column, approved service from has been mentioned in clear terms and that in her case the approved service would start from 1.7.1997 only. It is further pleaded that the applicant has already been included in the select list of grade-I of the CSS for the year 2005, vide DOP&T OM dated 7.1.2010. It is denied that the list initially sent to UPSC vide letter dated 6.4.2009 was prepared based on any of DOP&T OM or by granting relaxation in any provision of the rules concerning approved service, and that in fact, the general list depicting seniority and approved service in respect of individual Section Officers in the zone of promotion was prepared and sent to UPSC. However, after sending the proposal of the select list of 2003 for Under Secretary grade, UPSC responded that the eligibility list be drawn in accordance with rule 12(2) of the Rules of 1962, vide para 1(viii) of their letter dated 13.5.2009. accordingly, a revised eligibility list was prepared strictly in terms of rule 12(2) read with rule 2(c) of the Rules of 1962 and forwarded to UPSC vide letter dated 22.5.2009, which excluded the names of direct recruit section Officers who were not eligible for inclusion in the select list 2003 for want of eight years approved service. Thus, the list forwarded vide letter dated 22.5.2009 was the final list considered by the UPSC for DPC.
9. When this matter came up for hearing before us on 22.2.2011, we passed the following order:
Substantial arguments have been heard. Even the arguments advanced on behalf of the applicant have been concluded but in the process of arguments on behalf of the respondents, these matters had to be adjourned, as one matter in a special Division Bench has to be taken up at 2.00 p.m. Reply to MA No.278/2011 on behalf of the Government has already been filed, but the nature of controversy would require the reply from UPSC as well. Let the reply be filed even on the date fixed but an advance copy shall be given to the counsel opposite in advance.
List the matters for hearing on 28.2.2011. Pursuant to the order aforesaid, UPSC has entered appearance and filed its reply, wherein, in addition to the factual position as pertaining to UPSC, the allegation of the applicant that the select list of 2003 has not been drawn properly has been denied. Her contention that certain senior Section Officers (direct recruit) of CSS should have been considered at par with their juniors by relaxing the eligibility condition of eight years regular service under rule 12 of the Rules of 1962, is stated to be incorrect, because the eligibility has been decided after taking the provisions of CSS rules and Regulations into consideration, and that relaxation in eligibility criteria is not resorted to where there are plentiful eligible officers in the feeder grade. There are no comments as regards various OMs adverted to above relied upon by the applicant in support of her case.
10. The applicant has filed rejoinder to the written statement filed on behalf of respondents 1 and 3, wherein it is inter alia pleaded that CSS Rules, 2009 came into force on 27.2.2009. The said Rules repealed the Rules of 1962. The impugned promotion order dated 28.5.2009 was prepared under rule 12(2) of the Rules of 1962. It is pleaded that having regard to such a position, no legal right has accrued in favour of the selected candidates (promotees) and the entire action in choosing those candidates on the basis of the repealed Rules would be void. In the instant case, it is pleaded, the approved permanent strength in the Grade-I as on 1.7.2003 was 579 as reported by the 1st respondent to the Union Cabinet in the proposal for cadre restructuring of CSS, which got approval of the Cabinet on 3.10.2003, and after the cadre restructuring, the sanctioned strength in the Grade-I became 1400 with effect from 27.2.2009 vide gazette notification of even date, following the decision of the Cabinet of October, 2003. Vide OM dated 25.8.2009, the 1st respondent issued select list for the year 2003 of the officers of CSS for appointment to Grade-I (Under Secretary) of the Service. The vacancies in Grade-I of 2003 select list have been filled up by promotion of Section Officers following rule 12(2) of the Rules of 1962. The procedure for panel preparation has been laid down in the Regulations of 1964. The field of selection shall ordinarily be extended to three times the number of officers to be included in the select list [regulation 3(2)]. The plea raised by the respondents that 1400 vacancies of Under Secretaries were created in October, 2003 on the basis of approval of the Cabinet to be included in the select list of Grade-I of CSS of the year 2003 does not hold good in view of the fact that in view of rule 5 of the Rules of 2009 the authorized cadre strength of Grade-I of Under Secretary is 1400, and such figure, although approved by the Cabinet as early as in October, 2003, has been notified vide Gazette notification dated 27.2.2009, and, therefore, under any circumstances, the said cadre strength of 1400 could not have been taken into account by the respondent for the purpose of calculating the vacancy position as on 1.7.2003. The respondents, it is pleaded, could not have passed the impugned order on the basis of the Rules of 1962, which would be dead rules, calculating the vacancy position as 1400, which was notified vide the Rules of 2009. The allegation that the applicant has nefariously suppressed guidelines dated 24.9.1997 is denied. It is also pleaded that on February 11/12, 2009, the 1st respondent issued an office memorandum to various cadres including the Ministry of Agriculture and Co-operation seeking vigilance clearance of the officers whose names figured in the zone of consideration and who were likely to be included in the select list of 2003. The aforesaid list included, amongst others, the name of the applicant. Similar memorandum was issued to other Ministries/Departments seeking vigilance clearance in respect of eligible officers including direct recruit officers of 1995-96 batches. On a perusal of the said OM dated 11.2.2009, it is the case of the applicant, it would be clear that the applicant is an eligible candidate according to the 1st respondent for being included in the select list of 2003, inasmuch as, it has been clearly stated that her name figured in the zone of consideration. It is pleaded that the respondent with mala fide intention has deliberately excluded the name of the applicant and similar other direct recruit officers of 1995-96 batches in the impugned office memorandum dated 22.8.2009.
11. We have heard Shri R. Venkataramani, Sr. Advocate, representing the applicant, and Shri R. V. Sinha, counsel representing respondents 1 and 3, assisted by a galaxy of lawyers, and with their assistance examined the records of the case. We may mention at the very outset the reason why this matter had to be referred to a larger Bench. We bodily lift our order dated 7.3.2011 constituting the Full Bench, which reads as follows:
Garima Singh filed OA No.1864/2009 in the Calcutta Bench being aggrieved and affected by the decision of the DOP&T, 1st respondent arrayed in the OA, communicated vide OM dated 25.8.2009 relating to the Select List for the year 2003 of officers of the Central Secretariat Service (CSS) for appointment to Grade-I (Under Secretary) of the Service by incorporating the newly created posts in the panel of Under Secretaries of 2003, which had not come into existence on 1.7.2003 and which were not included in the approved permanent strength (APS) of the Grade-I as on 1.7.2003. It is the case of the applicant that these posts were notified on 27.2.2009 vide gazette notification following a decision of the Cabinet in October, 2003, and by arbitrarily increasing the number of vacancies the 1st and 2nd respondents have included junior officers in the Section Officer grade of the Service and excluded the applicant in the Select List of Grade-I for the year 2003, ignoring the recommendations of the Committee of Secretaries (COS) headed by the Cabinet Secretary dated 10.9.2003 to resolve the direct recruit CSS officers seniority in the light of court judgments and based on the principles of equity to avoid possible litigation, and also the Minister of State (Personnel)s decision to grant relaxation of eligibility condition to the direct recruit CSS officers.
The Calcutta Bench vide order dated 23.12.2009 stayed the operation of the Select List for the year 2003, which was modified vide orders dated 26.03.2010. The said order reads as under:-
We have given this matter our careful consideration. It has been argued by counsel for the official respondents, the UPSC and the Private Respondents that the entire middle level machinery in the Govt. had been brought to a halt as a result of the interim order. It has not been denied by counsel for the applicant in O.A. (and respondent in the two MAs) that there are persons in the select list of 2003 who are senior to the applicant. Therefore, considering the above and in the conspectus of facts and on balance the interim order is modified to the effect that the official respondents would be at liberty to promote those officers whose names figured in the select list of 2003 and who are senior to the applicant as per seniority list.
The above promotion order will, however, abide by the final order of this Tribunal in O.A. 1864/2009. Put up O.A. 1864 of 2009 on 28/4/2010. M.A. 117/2010 and M.A. 104/2010 are disposed of. Substantial arguments have been heard in this case. During the course of arguments, Mr. Singh, counsel defending the respondents, has drawn our attention to judgment of this Tribunal in the matter of Dr. A.R. Goyal & Ors. V/s. Union of India & Ors. (OA No.2274/2001 and other connected OAs decided by a common order dated 02.05.2003). It is stated by learned counsel for the State that the matter herein would be covered against the applicant by the judgment aforesaid which has since been confirmed by Honble High Court of Delhi in WP(C) No.3269/2003 and other connected matters decided on 03.07.2009.
Mr. Krishna, counsel representing the applicants, on the other hand, would contend that the issues raised in this case were not subject matter of the decision by the coordinate Bench of this Tribunal in OA No.2274/2001 and of the Honble High Court of Delhi in WP(C) No.3269/2003. It is urged that the present cases are based on OMs dated 18.03.1988, 23.10.1989, 25.03.1996 and 24.09.1997 on the basis of which the Government in most of the services has amended the rules. It is the applicants service and some of the other services where on the dint of the OMs aforesaid, amendments in the rules have not yet been carried out. Mr. Krishna would also contend that the OMs referred to above are being applied by the Courts and Tribunals in granting the desired reliefs and in support thereof he would rely upon judgment of this Tribunal in the matter of Smt. Sadhna Khanna vs. Union of India & Ors. (OA No. 1271/1993 decided on 24.09.1999) against which SLP filed before the Honble Supreme Court has since already been dismissed vide judgment dated 14.12.2007. The other judgment of the Tribunal relied upon by Mr. Krishna covering the point in favour the applicant is stated to be in the matter of Narender Kumar & Prabhat Verma & Ors. vs. Union of India & Ors. (OA Nos.2279/1995 and 2218/1995 decided on 13.01.2000), who were belonging to the service known as I.O.F.S. By virtue of OM dated 25.03.1996, it is stated that even though an employee may not be eligible under the service rules for promotion to the post of Under Secretary but is otherwise senior to those who may be eligible then the eligibility period is to be reduced to half.
It is not in dispute that the OMs relied upon by counsel for the applicants were not the subject matter of adjudication by the Tribunal in OA No. 2274/2001 which judgment has since been confirmed by the High Court of Delhi.
Having heard learned counsel for the parties, we are of the view that even though it may be permissible in law for us to deal with the question raised by learned counsel for the applicants based on OMs mentioned above and it would be even permissible to take a view in favour of the applicants, but the judicial propriety demands that once a coordinate Bench of this Tribunal has given a decision on the issue in question, it will be better to refer these cases to a Larger Bench. We so order. The Principal Registrar of this Tribunal shall obtain order on administrative side from one of us (V.K. Bali, Chairman) today itself for constituting a Full Bench for hearing these matters on 15.03.2011.
At this stage, Mr. Singh, counsel defending the respondents, vehemently contends that there needs to be a modification of the stay order as hundreds of promotions have been stalled creating a virtual chaos in the Government. He further contends, on instructions, that the select list of 2003 consists of 881 persons and because of the interim stay granted and modified by the Calcutta Bench of this Tribunal, roughly only 271 persons have been promoted.
Having heard learned counsel for the parties on the question of interim direction, we are of the view that the applicants cannot ask for stalling promotions of persons more than their numbers which, in all the OAs are only six. Even though every endeavour shall be made to dispose of all these cases by Full Bench as expeditiously as possible but it is a well known fact that such matters cannot be decided in a hurry as well.
In totality of facts and circumstances of the case, we modify the interim order passed by the Calcutta Bench to the effect that the respondents would not make promotion commensurate to the number of applicants, who, as mentioned above, are six. That being so, we order that let the respondents promote persons to the post of Under Secretary but the same shall be subject to decision of these Applications and the last six persons in the select list in tune with seniority shall not be promoted. The respondents shall in all promotion orders, that may be passed by them, specifically mention that their promotions shall be subject to final outcome of the present Applications so that the applicants need not implead every promoted persons as party respondents. It shall, however, be open for the persons so promoted to address their arguments whether impleaded or not. The service conditions of the parties to the litigation are governed by the Central Secretariat Service Rules, 1962. Relevant provisions of the Rules aforesaid touching upon the controversy in issue would need a necessary mention. Authorized cadre strength and cadre, in view of clauses (d) and (e) of rule 2 of the said Rules, has been defined as follows:
(d) authorised cadre strength in relation to a cadre, means the strength of duty posts in that cadre against which regular appointments may be made;
(e) cadre means the group of posts in the Grade of Section Officer and Assistant in any of the Ministries or Offices specified in column (2) of the First Schedule and in all the Offices specified against such Ministry or Office in column (3) of that schedule; The authorised cadre strength, in view of provisions contained in rule 6, shall be such as may be determined, from time to time, by the Central Government. Initial constitution of each cadre, in view of rule 8, is the permanent and temporary officers of the Section Officers Grade and the Assistants Grade in cadre on the appointed day, which is to be determined by the Central government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions. Rule 12 as regards recruitment to Selection Grade and Grade I, insofar as the same is relevant, reads as follows:
(2) Vacancies in Grade I shall be filled by promotion of regular officers of the Section Officers' Grade who have rendered not less than eight years approved service in that Grade and of regular officers of Grade A and (B) merged of the Central Secretariat Stenographers Service who have rendered not less than eight years approved service in that grade and are included in the Select List for Grade I of the Service prepared under sub-rule (4).
(3) For the purpose of sub-rules (1) and (2) a Select List for the Selection Grade and Grade I shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select Lists shall be such as may be prescribed by regulations made by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions.
Provided that the regulations relating to the procedure for preparing and revising the Select List for Grade 1 shall be framed in consultation with the Commission and such Select List shall also be prepared in consultation with them. Every direct recruit to the Section Officers or the Assistants Grade, in view of provisions contained in rule 15, is to be initially appointed on probation, which is to be of two years. A probationer, as per rule 16, shall be eligible for confirmation in the Grade when he has passed the prescribed tests and has completed his probation to the satisfaction of the appointing authority, and until a probationer is confirmed under rule 16 or is discharged or reverted under rule 17, he shall continue to have the status of a probationer. The Central government has power to relax any of the provisions of the Rules, in view of rule 25(a), which reads as follows:
(a) Power to relax.- Where the Central Government in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and in consultation with the commission, relax any of the provisions of these rules with respect to any class or category of persons or posts. The issue as regards entitlement of a direct recruit Section Officer for his/her promotion to the post of Under Secretary, even though he may be senior to a promotee Section Officer, when he/she may not have the requisite eligibility of experience of eight years on the post of Section Officer, has been subject matter of debate and decisions by this Tribunal and the Honble Supreme Court. On a pure and simple question that when a directly recruited Section Officer may not have the eligibility, which, as mentioned above, is eight years for promotion to the post of Under Secretary, irrespective of he/she being senior to the promotee, it could not be disputed that the judicial precedents are against the cause as set up by the applicants. If the matter was, therefore, to rest at that only, present case, on the first contention raised by the applicants, as noted above, would have no substance and on that issue the applicants would not have semblance of success. However, as the entitlement of the Section Officers for consideration for promotion on the post of Under Secretary, irrespective of their not having the eligibility criteria as mentioned in rule 12 of the Rules of 1962, is based on the OMs issued from time to time, to be referred to hereinafter, and the plea raised by the counsel representing the applicant that such OMs have to be read as part of the rules or with the rules, was not even a question debated, least adjudicated, it is admitted at all ends that the Tribunal would not be bound to simply follow such judicial precedents. The situation being as mentioned above, it would be appropriate to straightway refer to the OMs relied upon by the applicant, but before we may do that, we may refer to the judicial precedents relied upon by the respondents, which cover the controversy, sans the OMs relied upon by the applicant. The first judicial precedent in line is that of the Honble Supreme Court in R. Prabha Devi & others v Government of India & others [(1988) 2 SCC 233]. The matter first came up before the Tribunal, and it is against the order of the Tribunal that an appeal came to be filed before the Honble Supreme Court. The original applicants/appellants before the Supreme Court had filed Applications under Section 19 of the Act of 1985 challenging the vires of the third proviso to sub-rule (2) of rule 12 of the Rules of 1962, as amended by notification dated 29.12.1984, prescribing eight years of approved service as Section Officer as condition of eligibility for being considered for promotion to Grade-I post in CSS. The applicants were direct recruit Section Officers through examination conducted by UPSC. They had been appointed in substantive vacancies of Section Officers in accordance with the quota reserved for direct recruits. The inter se seniority of the direct recruits and the promotees was fixed in accordance with the quota and rota systems. We may not be concerned with all the amendments. Suffice it may, however, to say that the condition of eligibility as introduced vide notification dated 29.12.1984 was questioned before this Tribunal, but the Applications filed in that behalf were dismissed holding that neither the amendment of February, 1978 nor the amendment of December, 1984 made in the proviso to sub-rule (2) of rule 12 of the Rules of 1962 would be discriminatory or arbitrary or unreasonable so as to be declared ultra vires Articles 14 and 16 of the Constitution. The amended rule of December, 1984 was held to be valid, just and equitable and that no exception could be had to that. Aggrieved, the applicants filed appeals on special leave before the Apex Court, where it was urged that the impugned amendment made in the third proviso to sub-rule (2) of rule 12 purported to entrench upon the prospects of the directly recruited Section Officers for being considered for promotion to Grade-I inasmuch as, they had been left out of the zone of consideration, while their juniors, i.e., the promotee Section Officers, were eligible for being considered for promotion to Grade-I. The condition of eligibility, it was urged, would have no nexus to suitability for promotion to the post and as such this is in violation of the equality clause in Article 16 of the Constitution of India. Seniority of direct recruits entitled them for consideration for promotion to the higher post while their juniors, i.e., promotee Section Officers were being considered for promotion to the higher post. The contentions as raised on behalf of the appellants, as noted above, were repelled. We may reproduce the observations made on that behalf. The same read, thus:
This does not mean that the direct recruits who are senior to the promotees are entitled to be considered for promotion to a higher post even though they do not fulfil the eligibility qualification specified in the rule framed by the rule-making authority. The rule-making authority by the amendment made in 1984 has brought in an uniform eligibility qualification of eight years approved service to be rendered by the Section Officers both promotees and direct recruits before coming within the zone of consideration for promotion to Grade I. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. The rule in question which prescribes a uniform period of qualified service cannot be said to be arbitrary or unjust violative of article 14 or 16 of the Constitution. It has been rightly held by the Tribunal. The judgment in R. Prabha Devi (supra) was rendered on March 8, 1988.
12. The other judicial precedent relied upon by the respondents which covers the issue, is of this Tribunal, which has since been confirmed by the High Court of Delhi in WP ) No.3269/2003 & 3912/2003 in the matter of R. K. Ojha & others, decided on 3.7.2009. The facts of the said case reveal that after a long pending dispute, the seniority was finalized after the decision of the Supreme Court in R. Prabha Devis case (supra). Because of pendency of the said dispute, promotion on regular basis to the grade of Under Secretary could not be made for number of years. During pendency of the dispute, OM dated 4.12.1991 came to be issued pursuant to the interim directions issued by the Supreme Court for filling up all the vacancies that existed as on that date. However, ad hoc promotions were made to the higher post. After preparation of the common seniority list, the official respondents, for purpose of undertaking the exercise of regular promotions to the post of Under Secretary, prepared year-wise eligibility lists from 1987 onwards, and on that basis referred the matter to UPSC for considering the cases of eligible persons for promotions. The petitioners before the High Court were direct recruits who had joined as Section Officers in the year 1984. They could complete eight years of service only in the year 1992 and were thus not included in the eligibility lists prepared for the years 1987, 1988, 1989 and 1990. They challenged their non inclusion in the select lists on the only ground that they were seniors and could not be ignored. The Tribunal vide its judgment dated 2.5.2003 dismissed the OAs filed by the direct recruit Section Officers. It was held that they would have no locus standi to challenge the promotions made by the UPSC as they were not eligible. Reliance was placed upon the judgment of the Supreme Court in R. Prabha Devi (supra) in repelling the contention raised on behalf of the applicants. This judgment has been upheld by the High Court primarily for the reasons given by the Tribunal. Before the High Court, it appears, some other issues, which were wholly unconnected to the controversy in issue, were also raised, and on such issues as well the decision went against the petitioners. The writ petition was dismissed vide order dated 3.7.2009. Once again, we may reiterate that the applicants in support of their plea had not even referred to the OMs now relied upon by the applicants in present case. We shall refer in details the judgment of the Tribunal, which has since been confirmed by the Supreme Court, when on similar controversy where the concerned OMs which were pressed into service culminated in favour of direct recruits, upon which reliance was placed by the applicants, and that became an added reason to refer the matter to the larger Bench. Before we may advert to such judgments, it would be more appropriate to refer to the OMs relied upon by the applicants in support of their plea that when senior persons are available, irrespective of their not fulfilling the eligibility criteria as prescribed in rule 12 of the Rules of 1962, they would have a right of consideration for promotion to the post of Under Secretary.
13. The Government of India, Ministry of Personnel, Public Grievances & Pensions (DOP&T), issued OM dated 18.3.1988 with the subject, Revision of guidelines for framing/amendment/ relaxation of recruitment rules issued on 22.5.1979. It appears that the basic OM on the subject mentioned above came into being on 22.5.1979. Subsequent to memorandum dated 22.5.1979, number of orders and clarifications were issued on the subject, which necessitated reviewing and consolidating the instructions in the form of Guidelines on framing/amendment/relaxation of recruitment rules. Such consolidated guidelines were annexed with the memorandum dated 18.3.1988. In para 3.1.2 of Part-III of the said memorandum with the caption Consideration of seniors, it is mentioned as follows:
It may so happen that in some cases of promotion, the senior officers would not have completed the required service whereas the juniors would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, a suitable Note may be inserted in the recruitment rules so that the seniors who have completed the probation period, are also considered where the juniors who have completed the requisite service are being considered. These guidelines, it appears, came on the heels of the judgment recorded by the Honble Supreme Court in R. Prabha Devis case (supra), which was pronounced on 8.3.1988. Thereafter, another memorandum dated 19.7.1989 with the caption Eligibility of officers to be considered for promotion by DPC fixing of crucial date of , came to be issued. The said OM reads as follows:
The undersigned is directed to say that where the recruitment rules lay down promotion as one of the methods of recruitment some period of service in the feeder grade is generally prescribed as one of the conditions of eligibility for the purpose of promotion. There are, however, no instructions about the crucial date with reference to which eligibility of Government servants in the feeder cadre should be determined for the purpose of promotion through Departmental Promotion Committees. The matter has been under consideration in this Department and it has now been decided that while holding DPCs during a year, the crucial dates for determining the eligibility of Officers for promotion would be prescribed as under:-
1st July of the year in cases where ACRs are written calendar year-wise; and 1st October of the year where ACRs are written financial year-wise.
2. The crucial dates indicated above would be applicable to only such services and posts for which Statutory Service Rules do not prescribe a crucial date.
3. These instructions will come into force with immediate effect.
4. In this connection, attention is also invited to para 3.1.2 of this Departments O.M. No.AB-14017/12/87-Estt (RR) dated 18th March, 1988 in which all Ministries/Departments etc. had been requested to insert a note in the recruitment rules for various posts to the effect that when juniors who have completed the eligibility period are considered for promotion, that seniors would also be considered irrespective of whether they have completed the requisite service provided they have completed the probation period. In order to ensure that seniors who might have joined later due to various reasons are not overlooked for promotion, necessary action for amendment of recruitment rules may please be taken urgently wherever this has not been done by now.
5. These instructions may please be brought to the notice of all concerned including attached and subordinate offices for guidance and compliance. Guidelines issued vide OM dated 18.3.1988 cover so many fields, inclusive of where a junior is being considered when senior may not have the requisite eligibility criteria. A separate memorandum exclusively dealing with and catering for the situation as mentioned above, came to be issued on 23.10.1989 by the DOP&T, which reads as follows:
Subject: Consideration of seniors who have not completed the qualifying service for promotion in cases where the juniors who have completed the requisite service are being considered.
The undersigned is directed to refer to para 3.1.2 of Part-III in this Departments O.M. No.AB-14017/12/87-Estt.(R.) dated 18th March, 1988 wherein it was suggested that a suitable Note may be inserted in the recruitment rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered.
2. It has been brought to the notice of this Department that in spite of the instructions referred to above, the proposed Note has not been incorporated in the recruitment rules of a number of posts. This has led to difficulties at the time of making promotions when the seniors had either to be left out or relaxation of recruitment rules had to be resorted to on each occasion. In order to avoid a situation of this kind, it is requested that all the Ministries/Departments may kindly examine their recruitment rules and insert a Note as referred to above wherever it is considered necessary. Vide memorandum dated 25.3.1996, again issued by the DOP&T, a revision came about in the guidelines for framing/amendment/ relaxation of recruitment rules as regards consideration of seniors in cases where juniors are considered. While referring to para 3.1.2 of Part-II of OM dated 18.3.1988, mention came to be made of the judgment of the Honble Supreme Court in R. Prabha Devi (supra) and that of this Tribunal dated 11.2.1986, and OM of even number dated 23.10.1989, and it was decided to amend para 3.1.2 of OM dated 18.3.1988, and accordingly, the last sentence of para 3.1.2 was to be amended as under:
To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules:
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. In para 3 of the OM aforesaid, it has been mentioned that the administrative Ministries/Departments are also empowered to amend all the service rules/recruitment rules to incorporate the note as mentioned above. Whereas, earlier a senior had to be considered for promotion when juniors were being considered and promoted, irrespective of the shortage in the eligibility criteria by any number of years, vide OM dated 25.3.1996 it was stipulated that seniors were also to 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, but the condition was that they ought to have completed the probation period successfully.
14. The OMs aforesaid, it may be recalled, it is the case of the applicant, have to be read with the rules or as part of the rules. It is urged that the controversy as regards reading such OMs with the rules stands clinched by the judgment of this Tribunal, which has since been confirmed by the Honble Supreme Court. This Tribunal dealt with a similar question in OA No.1271/1993 in the matter of Smt. Sadhana Khanna v Union of India, decided on 24.9.1999. The facts of the case aforesaid reveal that the applicant therein had impugned OM dated 28.5.1993 containing names of Assistants coming within the zone of consideration for being brought on to the select list of Section Officers for the year 1991 against seniority quota. The applicant was not included in the select list as she had not completed eight years requisite service for promotion to Section Officer grade as on 1.7.1991. The eligibility was to be as on 1st of July of the year for which the panel was to be prepared, which would have been 1.7.1991 in the case of the applicant. It was the case of the applicant that there was no provision in the rules/instructions which required her to be eligible as on 1st July of the year concerned. It was pleaded that although she was senior as per the seniority list, she was offered the post of Assistant after 1.7.1983. It was also urged that to meet such a situation DOP&T had issued OM dated 19.7.1989, where juniors who may have completed the eligibility period are considered for promotion, their seniors should also be considered, irrespective of whether the seniors had completed the requisite period of service, and for this purpose, all Ministries/Departments had been called upon to insert a note in the recruitment rules to various posts by way of amendment to those rules, and that had the respondents acted in accordance with the OM aforesaid, the applicant would have also been considered along with her juniors. The applicant urged that she could not be penalized for failure of the respondents to amend the recruitment rules in accordance with the OM dated 19.7.1989. Per contra, the respondents relied upon the relevant recruitment rules as also the judgment of the Honble Supreme Court in R. Prabha Devi (supra) to emphasize that when qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment, and seniority in a particular cadre does not entitle an employee to a higher post unless he/she fulfills the eligibility condition prescribed in the relevant rules. On the rival contentions of the learned counsel representing the parties, as noted above, the Tribunal observed as follows:
5. We have considered the matter carefully. It is to meet just such situation as noticed above, that DOP&T issued its OM dated 19.7.89, soon after the pronouncement of the judgment by the Apex Court in Prabha Devis case (supra), such that where juniors who had completed the eligibility condition were considered for promotion, then seniors were also to be considered, even if they had not completed the eligibility period. There is merit in the stand of applicant that this OM dated 19.7.89 issued by DOP&T which is the nodal ministry in regard to service matters of Central Govt. employees, calling upon all Ministries/Deptt. to insert a Note to the above effect, was in the nature of a direction and the aforesaid OM has to be read along with the RRs and applicant cannot be penalized for non-consideration of her case for promotion along with her juniors, merely because respondents did not insert the aforesaid note in the RRs. In this connection, Shri Gupta has invited our attention to the Honble Supreme Courts judgment in Balakrishnan Vs. Delhi Admn. 1989 (6) SLR 35 in which it has been held:
In service there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will have demoralizing effect in the service apart from being contrary to Article 16(1) of the Constitution. The OA was allowed with the direction to the respondents that the case of the applicant should be considered for promotion as Section Officer from the date her immediate junior was promoted. This order came to be challenged by the Union of India before the Supreme Court. Findings recorded by the Tribunal have been mentioned in para 9 of the judgment of the Honble Supreme Court, as follows:
9. The Tribunal allowed the O.A. by its order dated 24.9.1999. In the said O.A. it was held that the Department of Personnel and Training had issued an Office Memorandum dated 19.7.1989 soon after the decision of this Court in R. Prabha Devi and others vs. Government of India through Secretary, Ministry of Personnel and Training, Administrative Reforms and others 1988(2) SCC 233 stating that where the junior had completed the eligibility requirement of promotion then their seniors will also be considered even if they have not completed the eligibility period. [ In para 10 it is mentioned that the writ petition had been filed before the Delhi High Court against the order of the Tribunal, which was dismissed. In the first para of the judgment also, it is mentioned that the appeal had been filed against the judgment of the Delhi High Court dated 21.3.2000 in CWP No.1311 of 2000. We have, however, not been made available the judgment of the High Court. In para 11 the order of the Tribunal came to be upheld on two grounds, first being that once the respondent Sadhana Khanna was offered appointment vide letter dated 5.7.1983, which would be after 1.7.1983, from which the eligibility was to be counted, it was the department which was to be blamed for sending the letter offering appointment after 1.7.1983. It was also mentioned that in fact, some of the candidates who were junior to the respondent were issued letters offering appointment prior to 1.7.1983, and, therefore, it was the department which was to be blamed for this. The second reason for confirming the orders of the Tribunal and the High Court reads as follows:
Moreover, in view of the Office memorandum of the Department of Personnel and Training dated 18.3.1988 and 19.7.1989 the respondent was also to be considered, otherwise a very incongruous situation would arise namely that the junior will be considered for promotion but the senior will not.
15. The respondents while joining issues with the applicant on the contentions as noted above, would raise four-fold submissions. It is first urged by them that even though, the applicant has referred to OMs as mentioned above, but she has nefariously suppressed the guidelines contained in OM dated 24.9.1997. This has been repeated and reiterated by asserting in the pleadings that the applicant while quoting the DOP&T OM dated 25.3.1996 has deliberately omitted the mention of the subsequent OM dated 24.9.1997, wherein while referring to the judgment of the Supreme Court in R. Prabha Devis case (supra), a clarification has been given. During the course of arguments, it is even suggested that the OM dated 24.9.1997 which is in tune with the judgment of the Supreme Court in R. Prabha Devis case, would supersede the OMs relied upon by the applicant. The other plea raised on behalf of the respondents is that as the OMs relied upon by the applicant would take care of a situation where service rules as regards the date from which qualifying eligibility service is to be counted, has not been provided. In the case in hand, it is stated, that as per statutory rules qualifying service would start from the1st of July of the year subsequent to the year of examination in which the direct recruit may have appeared, and, therefore, the OMs would not be applicable. Yet another plea raised on behalf of the respondents is that the OMs relied upon by the applicant would take care of a situation where seniors due to reasons beyond their control joined subsequent to juniors, and in that manner may be falling short of the qualifying service for promotion to the next higher post. The last plea raised on behalf of the respondents based upon law is that the OMs relied upon by the applicant are, at the most, guidelines or instructions, and cannot supersede the statutory rules, and, therefore, till such time the instructions or guidelines may be incorporated in the statutory rules by way of amendment, the same would be of no meaning and consequence.
16. Insofar as, the last contention of the respondents based upon law is concerned, we may deal with the same later. However, insofar as the other three contentions raised on behalf of the respondents, as enumerated above are concerned, we are of the view that the same cannot be accepted. In fact, there is a complete fallacy in the contentions raised by the learned counsel representing the respondents in that behalf. Insofar as the first plea of the respondents that the OMs relied upon by the applicant stand clarified or superseded by OM dated 24.9.1997 in view of the judgment of the Honble Supreme Court in R. Prabha Devi (supra) is concerned, we may mention that, in our considered view, the OM dated 24.9.1997 is in fact reiteration of the OMs relied upon by the applicant. We may reproduce OM dated 24.9.1997 in verbatim. The same reds as follows:
Subject: Consideration of seniors in cases where juniors are considered revision of guidelines for framing/amendment/ relaxation of Recruitment/ Services Rules clarification regarding.
The undersigned is directed to refer to this Departments Office Memorandum of even number dated March 25, 1996 on the above-mentioned subject. The question whether the benefit of shortfall in qualifying service should be applicable to promotees also was under consideration in consultation with the Union Public Service Commission. The matter has since been decided and it is clarified that the Note to be incorporated in the relevant Recruitment Rules/Service Rules is for maintaining the seniority in an Organized Service/Post as far as possible. Thus the invocation of this provision can be at the entry level or even at a higher level and would apply in cases of both direct recruits and promotees, who are included in the Eligibility List as distinct from Seniority List.
2. It is further clarified that in its judgment of March 8, 1988 in the case of R. Prabhadevi and others vs Union of India and others the Supreme Court has specifically held as follows:-
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post.
3. Ministry of Finance etc. are, therefore, requested to take a conscious decision to amend the relevant Recruitment Rules/Service Rules where such a provision has not been incorporated in the light of the foregoing clarification(s). This would help in the maintenance of proper cadre management and obviate the need for seeking relaxation of Recruitment Rules/Service Rules. The first para of the OM reproduced above refers to OM dated 25.3.1996, and it is specifically stated therein that in consultation with UPSC, it has been decided and clarified that the Note to be incorporated in the relevant recruitment rules/service rules is for maintaining the seniority in an organized service/post as far as possible, and thus the invocation of this provision can be at the entry level or even at a higher level, and would apply in cases of both direct recruits and promotees, who are included in the eligibility list as distinct from seniority list. Para 2 quotes the relevant part of the judgment of the Supreme Court in the case of R. Prabhadevi (supra). In para 3, after quoting from the judgment of the Apex Court, it has been mentioned that the Ministry of Finance etc. are requested to take a conscious decision to amend the relevant recruitment rules/service rules where such a provision has not been incorporated in the light of the foregoing clarification(s). The clarification, if at all, is only as regards applicability of seniority rule at entry as also at higher levels, as applicable to both direct recruits and promotees. The respondents would, however, take the observations of the Supreme Court as change in earlier OMs, and on that basis characterize the applicants conduct as nefarious and deliberate concealment of facts. We have no hesitation whatsoever in straightway rejecting the plea of the respondents that the OM dated 24.9.1997 had set at naught the earlier OMs relied upon by the applicant. All the OMs as may appear from the judgment of the Tribunal in Sadhana Khanna (supra) as also OM dated 24.9.1997 itself relied upon by the respondents, would rather manifest that it is because of the judgment of the Supreme Court taking the view as mentioned therein that the respondents felt the necessity of protecting the seniors. In para 2 of the instructions dated 24.9.1997, the relevant observations made by the Honble Supreme Court in R. Prabha Devis case have been extracted verbatim from para 15 of the judgment, after the sentence, When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Para 3 of the instructions dated 24.9.1997 requires the Ministry of Finance etc. to take a conscious decision to amend the relevant recruitment rules, which would help in maintenance of proper cadre management and obviate the need for seeking relaxation of the rules. Pursuant to all the OMs referred to above, it appears that the Note came to be incorporated in many services. The applicant gives illustration as regards such amendment brought about in the recruitment rules of Indian Revenue Service Rules and Indian Ordnance Factories Service Rules. This assertion of the applicant is not denied. It may be recalled that initial instructions dated 18.3.1988 came into being immediately after the decision of the Apex Court in R. Prabha Devis case (supra). As has been noted in the order of the Tribunal in the case of Sadhana Khanna (supra), confirmed by the Supreme Court, the necessity to bring about the OM came only because of the judgment in R. Prabha Devi. We are distressed to note that even though the stand of DOP&T at least has throughout been that the OMs have been issued with a view to protect seniority and to overcome the view taken by the Supreme Court in R. Prabha Devis case, a stand is now being taken that these instructions have been clarified or superseded. We would hereinafter, while dealing with the case as regards exemption of the eligibility criteria taken by the respondents themselves and deliberated upon for number of years, make a mention that these OMs were always taken as balancing and protecting seniority in view of the judgment of the Supreme Court in R. Prabha Devi, and yet a volte face has been made now simply with a view to defend the cause of the respondents. We may only mention that there can be play on law, but facts are sacrosanct. It does not augur well for the Government to shift from its consistent stand simply with a view to defend a cause in a court of law, like an obdurate ordinary litigant.
17. The distinction made by the respondents as regards applicability based upon there being provision or otherwise as regards the date from which the eligibility is to reckon, is equally devoid of merit. The respondents would appear to have raised the contention aforesaid taking cue from the instructions dated 19.7.1989. The effort of the respondents is to link the first three paras of the said instructions with the fourth. The first three paras indeed talk of a situation where there are no instructions as regards the crucial date for reckoning the eligibility period. In that event, guidelines have been given as to how the same is to be reckoned. It is then said that the dates so determined sans rules as regards the date of reckoning of eligibility period, the rules will prevail. The third para is only that the said instructions would come in force with immediate effect. Insofar as, the fourth para is concerned, it is totally unconnected with the first three paras. It may be recalled that the original instructions came into being vide guidelines dated 18.3.1988. By virtue of para 3.1.2 of part-II of the said OM, in para 4 of the instructions dated 19.7.1989, it is clearly mentioned that it is in connection with para 3.1.2 of the OM dated 18.3.1988. Para 4 of the instructions dated 19.7.1989 is absolutely independent and wholly unconnected with the earlier part of the instructions contained therein. Para 3.1.2 of instructions of 1988 exclusively deals with relaxation in rules as regards the period of eligibility, and yet the respondents would like to read para 4 in continuation of paras 1, 2 and 3. Further, the respondents would raise this plea taking cue from the contention raised by the applicant before this Tribunal in Sadhana Khanna (supra). It was urged before the Tribunal that there were no rules from where the respondents were trying to work out the reckoning the eligibility from the 1st July of the year following the year of examination. The plea raised in that behalf was not gone into, but what appears to us is that it is on that basis only that it was stated that the instructions would operate differently where there is no time mentioned for reckoning of the eligibility criteria, as compared to where it has been mentioned. The respondents appear to be oblivious of the fact that both the services, i.e., one involved in the case of Sadhana Khanna (supra) and the one in the present case, are governed by the Rules of 1962, and the approved service as defined in rule 2(2)(c)(i) is as follows:
(c) approved service in relation to any Grade means
(i) in respect of an officer recruited directly to that grade, period or periods of regular service rendered in that grade, including period or periods of absence during which he would have held a post on regular basis in that grade but for his being on leave or otherwise not being available to hold such post, from the first day of July of the year, following the year in which the examination for direct recruitment was held. Insofar as thus, direct recruits are concerned, be it on the post of Assistants or Section Officers, the approved service is to count from the first day of July of the year following the year in which examination for direct recruitment was held. Even otherwise, in our view, exemption from eligibility as regards a senior when his juniors are to be promoted is wholly unconnected with the reckoning of eligibility.
18. On a pure and simple question of law, the respondents endeavour to show that instructions/guidelines/OMs have no statutory character, and unless such instructions etc. may not have been incorporated by way of amendment in the statutory rules, the same would be of no meaning and consequence. The respondents have a plethora of case law to cite in support of their contention as mentioned above. We may make a mention of some judicial precedents relied upon by the respondents on that behalf. In T. N. Housing Board v N. Balasubramanium & others [(2004) 6 SCC 85], it was held that executive instructions providing that where feeder categories carried different pay scales and no quota was fixed for promotion, then persons in higher pay scales should be given preference, and that executive instructions could not be applied to give preference to Chief Head Draftsmen/Head Draftsmen with less than the prescribed minimum length of service over eligible Junior Engineers. Briefly, the facts of the case are that under provisions of T.N. State Housing Board Regulations framed under T. N. State Housing Board Act, 1961, 25% of the posts of Assistant Executive Engineers in the Housing Board were to be filled up from amongst Junior Engineers with minimum of ten years of service, and Chief Head Draftsman/Head Draftsman with minimum of fifteen years of service. Panel for such promotions was prepared in which names of the respondent-Draftsmen were not included due to lack of requisite length of service. The High Court held that the executive order dated 13.10.1984 would be applicable and directed the Board to create supernumerary posts to promote the respondents as Assistant Executive Engineers. Referring to regulation 28 of the Regulations, the said executive order provided that where no quota was fixed for feeder categories carrying different pay scales, persons in higher pay scale were to be given preference. The order of the High Court was challenged in the Supreme Court which held that for Junior Engineers and Draftsmen, eligibility criteria had been laid down in the Regulations. Admittedly, the said eligibility criteria was mandatory in nature and the validity thereof had not been questioned. It was held that once, the eligibility criteria was considered to be a pre-requisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable, and that once, it was held that relying on the basis of the executive instructions in terms of regulation 28(a), the Draftsmen who had been getting higher salary were to be given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose, which consequence would lead to an absurdity, and, therefore, the executive instructions could not be given effect to. In R. S. Sharad & another v Union of ndia & others [WP(C) No.2178 of 1996, decided on 8.5.2008, reported as 152 (2008) Delhi Law Times 427 (DB)], a Division Bench of the High Court of Delhi held that administrative instructions issued by the Government could not supersede the rules unless the instructions are incorporated in the rules. There would be no need to refer to all the judgments relied upon by the respondents, as there cannot be any dispute that the executive instructions, particularly when the same may be against the rules, cannot be applied; the same have to be ignored. In the case in hand, however, we are of the considered view that the judgments referred to above and others which have been relied upon by the respondents, may not be applicable. DOP&T OMs dated 18.3.1988, 19.7.1989, 25.3.1996 and 24.9.1997 can well be considered as if issued by the executive of the Union in the legislative powers conferred upon it by Article 73 of the Constitution. They deal with uncovered issues, i.e., a situation where a junior may be considered for promotion over and above his seniors, and where a senior may not have the eligibility criteria. Such a situation is not covered under the Rules of 1962. The OMs may not specifically make a mention of Article 73, but it is too well settled a proposition of law that non-mentioning of the provision or making mention of wrong provision would not make any difference. The real test is that there should be a power to do what has been done by the legislature or the executive. There is a mandate in the OMs that all cadre controlling authorities should insert a Note in the respective recruitment rules to the effect that whenever a junior who has completed the requisite eligibility service is considered for promotion, then all his seniors should also be considered. The directive issued by the DOP&T has admittedly been complied with by many cadre controlling authorities by inserting the Note in the respective recruitment rules, and wherever such Note has not been incorporated, the Government has been freely making resort to exemption or relaxation in the rules as regards eligibility. While dealing with the subject of relaxation involved in the present case, we will make a detailed mention as regards the consistent stand of the Government in that regard. At this stage, we may only refer to the note dated 14.11.2008 available on records, wherein it is clearly recorded that DOP&T has been adopting a consistent policy of allowing up to a maximum of two years relaxation in qualifying service in promotions in all services, and that UPSC too has been accepting this from time to time in accordance with DOP&T OM dated 25.3.1996. It has also been mentioned that OM dated 24.9.1997 has been issued by way of clarification on the basis of judgment of the Apex Court in R. Prabhadevis case (supra), and that from a perusal of the judgment of the Supreme Court and OM aforesaid, it would be clear that it is neither a direction of the Supreme Court nor the intent of the DOP&T to supersede its earlier circular dated 25.3.1996, and that in fact, DOP&T has consistently adopted the policy of allowing relaxation of up to two years of service as qualifying service in case of promotions in all services. The applicant has indeed brought on record rules of at least two services where the note as ordained above in the OMs aforesaid has been inserted. The applicant has also brought on record some orders giving relaxation in rules as regards eligibility where juniors were to supersede seniors. Article 73 of the Constitution reads as follows:
73. (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws; and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution. Perusal or provisions contained in Article 73 would manifest that the power of the Union shall extend to matters with respect to which Parliament has power to make laws. By virtue of clause (1)(a), the executive power is co-extensive with the legislative power of the Union Parliament. It has been held by the Supreme Court that under the Constitution the functions of the executive are not confined to the execution of laws made by the legislature already in existence. Articles 73 and 162 indicate that the powers of executive of the Union and of a State are co-extensive with the legislative power of the Union and of a State, as the case may be. While the executive cannot act against the provisions of a law, it does not follow that in order to enable the executive to function relating to a particular subject, there must be a law already in existence, authorizing such action. Reference in this connection may be made to judgments of the Honble Supreme Court in Naraindas Indurkhya v State of Madhya Pradesh & others [AIR 1974 SC 1232] and M/s Bishamber Dayal Chandra Mohan, etc. v State of Uttar Pradesh & others [AIR 1982 SC 32]. Whereas, the first judgment deals with Article 162 of the Constitution, which is as regards the extent of executive power of State, the second judgment referred to above deals with Article 73, which is as regards the extent of executive power of the Union. In M/s Bishamber Dayal (supra) it has been held that the State in exercise of its executive power is charged with the duty and responsibility of carrying on the general administration of the State, and so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed, and further that if there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. This Tribunal in the matter of Sadhana Khanna (supra) has already held that the OMs which are directives, have to be read with the rules, and the judgment, as mentioned above, has been confirmed by the highest Court of the land. This Tribunal, in view of the very instructions subject matter of dispute which, it was held by the Tribunal, are to be read along with the recruitment rules, so confirmed by the Apex Court, may not have much choice but for to follow the said precedence. We may, however, give additional reasons as to why the instructions relied upon have to be read along with the rules. In addition to that these OMs are directives and even though Article 73 of the Constitution may not have been specifically mentioned, the same can be treated to have come into existence by powers exercised by the executive under Article 73, the first DOP&T OM dated 18.3.1988, it may be recalled, came into being immediately after the decision of the Honble Supreme Court in R. Prahadevis case (supra). The same came into being to take care of seniors so that they may not be superseded by their juniors because they were not having the requisite eligibility criteria provided under the rules. The said criteria vide OM dated 25.3.1996 is to be reduced only by two years. The Government has slept over the matter insofar as, the very department, i.e., DOP&T, which is the nodal agency for all Government employees, for a period of almost two decades. Meanwhile, as mentioned above, the Note came to be inserted in some other services, whereas in other services relaxation in rules has been given. In the circumstances as mentioned above, if, therefore, the applicant was to seek a writ in the nature of mandamus directing the respondents to insert the Note in the service rules, could there be any meaningful resistance to such a writ by the Government? We are conscious that to make laws is in the exclusive domain of the legislature, but the present case is not where the applicant may have sought directions to be issued to the Government to amend the rules. It would have been simple case to act upon the decision already taken by the Government so as to amend the rules. The decision to amend the rules having already been taken, the applicant would have been well within her right to seek a mandamus directing the respondents to insert the Note in the Rules of 1962. We may refer in that regard to a recent decision recorded by us in the matter of Dr. Balram Airan & others v All India Institute of Medical Sciences & others (OA No.1080 of 2009 decided on 24.9.2009). Brief facts of the said case reveal that there had been a long pending demand of the faculty members of AIIMS and other centrally-managed institutions to increase their age of retirement. Deliberations in that regard spanned over a considerable time resulted into a cabinet decision to increase the age of retirement of faculty members from 62 to 65 years. The directive of the Government would, however, be effective only if the regulations providing age of superannuation were to be amended. This exercise was to be gone into by the governing body of AIIMS. Despite the fact that the Cabinet had approved the increase in age of superannuation from 62 to 65 years on 5.6.2008, the Institute would not incorporate necessary amendment in its regulations. The faculty members became apprehensive that if necessary amendment was not brought about in the concerned regulations, they may have to quit on attaining the age of 62 years. The applicant in the case aforesaid, of course, made a grievance as regards a faculty member who was given extension in age before the Cabinet decision was taken to enhance the age of retirement, but he was joined by the association of doctors, who claimed a direction to be issued to the respondent Institute to forthwith amend the concerned regulations to provide retirement age at 65. The OA as regards the applicant who complained about extension in age of Dr. A. Sampath Kumar was found to be genuine. The grievance of the association that AIIMS was bound under law to bring about amendment in the regulations was also found to have merit and a direction in that regard came to be issued by us in our judgment dated 24.9.2009 to the AIIMS to incorporate the amendment in the regulations. The Government sought opinion on our judgment from the Solicitor General of India, who opined in tune with the decision taken by us. The said judgment has since been implemented. The amendment has been brought about retrospectively from the date when the Cabinet decision to increase the age of retirement of faculty members from 62 to 65 years. A single Bench of the Honble High Court of Delhi in G. S. Bhogal v Union of India [CW No.4227 of 1998 decided on 31.1.2000, reported as 84 (2000) DLT 313] held that when the Central Government had accepted the recommendation of enhancing age of retirement from 58 to 60 years, failure to amend the rules according to the recommendation would not make any difference, and there would be no discretion left in the Corporation but for to accept the recommendation, and the concerned employee would be entitled to continue in service till the age of 60 years. We may refer to the relevant observations made on that behalf. The same read, thus:
It is no doubt true that the rules of the Corporation have not yet been amended and in terms of paragraph 2 of the Office Memorandum the decision of the Central Government would not come into effect till the rules are amended. But, in my view, the Corporation was not entitled to keep the decision of the Central Government in abeyance by not amending its rules, although, the Office Memorandum had been received, by the respondent No.1 Corporation on 10th June, 1998, so as to deprive the petitioner of the benefits thereof. I am, therefore, inclined to agree with Mr. Gupta that having regard to the decision taken by the Central Government at a time when the petitioner was still in service, the petitioner should not be deprived of the benefit of the said decision of the Corporation merely because it had chosen not to amend its rules as per the directions contained in the Office Memorandum in question. In our view, if the applicant or other equally situate person were to seek a writ in the nature of mandamus directing the respondents to incorporate the Note mentioned in the OMs, as mentioned above, such a claim could not have been resisted by the Government. In the present case, there is an additional reason why such a claim could not be resisted by the Government, and the same is that incorporating the Note in the rules of other services by virtue of the same very OMs, giving relaxation in rules, and not doing so in the Rules of 1962, would have been a case of invidious discrimination, and thus violative of provisions contained in Article 14 of the Constitution. The directives contained in the OMs are applicable across the board, i.e., applicable to all services of the Government of India, and for that reason, have to be taken as if the legislation by the executive under Article 73 of the Constitution. Moreover, it is not open to the Government to say that they would apply the OMs as regards other services but as regards the Central Secretariat Service they would not do so, and rather take a decision that the same unless incorporated in the rules would be of no consequence. It is not, in our view, open to the Government to take such a stand in the peculiar facts and circumstances as have been fully detailed above. Last but not the least, the OMs cannot be treated as waste paper; they have to be given their meaning as incorporated therein.
19. We also find considerable merit in the two-fold contentions raised by the learned senior counsel Shri Venkataramani that the OMs, in any case, have to be taken as if relaxation in the eligibility criteria to the extent of two years and that after years of deliberations, relaxation came to be granted to the applicant but was withdrawn on wholly untenable grounds. While dealing with the two-fold contentions of the learned counsel representing the applicant as mentioned above, it may be recalled that in view of rule 25(a) of the Rules of 1962 relaxation as regards any provisions contained therein is permissible. The eligibility for promotion from the post of Section Officer to that of Under Secretary is eight years service, but there are ample powers by which the same can be relaxed. We may mention some salient features as regards the first issue and then refer to the record dealing with exemption in the very case, as per the original records made available to us. In service jurisprudence promotion may not be a fundamental right, but consideration of the same is indeed so. The applicant is admittedly senior to hundreds of promotees, who are to be considered for promotion in the select list now prepared by the respondents, whereas the applicant would not be so considered. It is in consideration of this fundamental right of seniors for consideration that the first OM dated 18.3.1988 came to be issued, as mentioned above, on the heels of the judgment passed by the Honble Supreme Court in the case of R. Prabha Devi (supra). The fact that various OMs came to be issued to take care of seniors in the matter of promotion in preference to their juniors, came to be noted by this Tribunal in Sadhana Khanna (supra), which fact was not denied at that stage, nor is even now in dispute. Of course, if the distinction sought to be made by the respondents on the OMs as adverted to earlier is not accepted, the respondents themselves recognized a fundamental right of seniors for consideration for promotion in precedence or preference to their juniors, while issuing OM dated 18.3.1988. The subject of the instructions aforesaid reads, Revision of guidelines for framing/amendment/ relaxation of recruitment rules issued on 22.5.1979. In para 3.1.2 under the caption Consideration of seniors, the situation that has arisen in the present case, has been mentioned. It is stated that it may so happen that in some cases of promotion, the senior officers would not have completed the required service, whereas their juniors would have completed the prescribed eligibility condition for promotion, and that in such cases, seniors will be left out from consideration for the higher post, and it is to avoid this situation that a suitable Note may be inserted in the recruitment rules so that seniors who have completed the probation period, are also considered where juniors who have completed the requisite service are being considered. The second memo is dated 19.7.1989, wherein mention is made of the earlier OM dated 18.3.1988 and the Ministries/Departments have been asked to comply with. The memo dated 23.10.1989 deals specifically with the subject of consideration of seniors who have not completed the qualifying service for promotion in cases where their juniors who have completed the requisite service are being considered. There is a lament in the OM aforesaid that in spite of instructions, the proposed note has not been incorporated in the recruitment rules for number of posts, which would either lead to leaving out the seniors or going for relaxation in the recruitment rules. In order to avoid such a situation, a request was made to incorporate the necessary note in the recruitment rules. The next memo is dated 25.3.1996, mention wherein came to be made of the judgment of the Supreme Court in R. Prabha Devis case (supra), and it was provided that to avoid such a situation, necessary note be inserted in the relevant recruitment rules. What exact note has to be inserted has been specified. All these memos have been issued by the DOP&T which is the nodal Ministry for all Central Government employees. It is the case of the applicant that in number of services, the note has since already been incorporated. Specific example of two services has been given, which, as mentioned above, is not in dispute. The OMs of DOP&T are directives as has also been opined by this Tribunal in Sadhana Khanna (supra) and have to be complied with. Despite the fact that years and years have rolled by, the DOP&T itself, while dealing with the employees directly in its department, has not inserted the note amending the rules. It is the case of the applicant and so mentioned in the OM dated 25.3.1996 as well, that the Government has been going for exemption in the eligibility in such cases where the note has not been inserted. It is also the case of the applicant that DOP&T has allowed this provision to be exercised in the case of other services, and in that regard, reliance has been placed upon a note of Under Secretary (RR), DOP&T dated 10.2.2004 in case of the Indian Statistical Service, which reads as follows:
The proposal of Ministry of Statistics and Programme Implementation for relaxing the qualifying service prescribed in the Service Rules for promotion to the JAG level in the cadre has earlier been examined in our notes on p.3 ante. Considering that a similar proposal had been considered and agreed to by this Department during the last recruitment year and such relaxation cannot be an annual feature, we had sought clarification whether there would be any need for such relaxation in future and if so to what extent. The Ministry have clarified that occasion for future relaxation is not likely to arise in near future.
2. The total number of vacancies anticipated during the recruitment year 2004-05 is about 25 after including thee carried forward vacancies of the recruitment year 2003-04. As per the existing seniority list, officers appearing at S.No.141 onwards are to be considered for promotion and these officers have completed 4 years and 5 months of regular service as on the cut off date of 1.1.04 against the prescribed period of 5 years. Relaxation proposals made during the last year were examined in notes on p.8-9 of the linked file. As may be seen therefrom we had agreed to the proposal relaxation in qualifying service not exceeding one year. This relaxation was in consideration of the fact that the officers waiting in the STS belonging to 1985-86 batches of the ISS and their promotion to STS had been considerably delayed. The justification that we kept in view are valid in the present relaxation proposal as well and as such as a special case, we may agree to similar relaxation not exceeding one year in favour of the feeder grade officers appearing in the seniority list at p.10-17/C. We may also advise the Ministry that no relaxation of this nature would be considered in future in this Department. The note aforesaid, it is stated, was approved. As against this, the respondents would only state that insofar as, the service in question is concerned, no relaxation was given at any time. We may only mention that there is a complete fallacy in the plea raised on behalf of the respondents, inasmuch as, the occasion to give relaxation came only after the OM in that regard was issued, and the same, as mentioned above, was issued immediately after the decision of the Honble Supreme Court in R. Prabha Devi (supra). The exercise to promote the Section Officers after the OM aforesaid, it appears, has come about for the first time, and, therefore, there was no question of giving any exemption earlier in point of time.
20. What clearly emerges is that if the OMs are not to be read as exemption under rule 25(a) of the Rules of 1962, although not so specifically stated, as surely they are applicable to all services under the Central Government, the fundamental right of a senior for even consideration for promotion would be thwarted. It would be a case of complete discrimination between Central Government employees of different departments. Note as regards consideration of seniors without their even having the eligibility period, has been inserted in number of services, including the Indian Revenue Service and the Indian Ordnance Factories Service. The exemptions have been granted to members of the Central government services in other departments. If, therefore, the OMs are not treated as exemptions to the limited period mentioned therein, which would be, as per the OM dated 25.3.1996, only two years, which is also subject to the incumbent having completed the probation successfully, it would be discrimination which is frowned upon by Article 14 of the Constitution of India. Thirdly, OM dated 25.3.1996 clearly states that if the note is not inserted, the matter may have to be taken up for exemption each time. Fourthly, as regards other services and in particular, the Indian Statistical Service, exemption has indeed been granted. Lastly, the circulars having been issued more than two decades ago, which are in nature of directives and cannot be treated as a dead inert affair or a waste paper. The Government, in any case, cannot be permitted to turn around and say that simply because its slackness, it has been unable to carry out the necessary amendments in the rules, and, therefore, the OMs shall not be binding upon it. Such a stand, particularly when the note envisaged under the OMs for amendment has been added in other services of the Government, cannot be countenanced. On one hand, the OMs having not been inserted in the rules, it may legally be submitted that the same would be of no use and consequence, whereas, on the other hand, the Government cannot be permitted to deny their existence, nor backtrack from it, particularly in the manner as mentioned above, when such note has been inserted in other service rules, and where not so inserted, the relaxation has been granted. The only harmonious way to reconcile this situation is to treat the OMs as relaxation. The OMs being directions across the board relating to all services under the Government of India, have to be treated as general directions and not as if orders passed under the rules relating to relaxation. Incidentally, in the present case, all parameters as contained in rule 25(a) of the Rules of 1962 dealing with relaxation in the Rules are met. The rule aforesaid empowers the Government to relax the provisions of the Rules in consultation with UPSC. We reserved these matters for judgment and while preparing the same, vide order dated 26.4.2011 we required the parties to clarify as to whether the OMs referred to above came into being in consultation with UPSC. In that regard, it is urged by the learned counsel representing the applicant that even though, copies of all OMs were sent to UPSC, but insofar as the OM dated 24.9.1997 is concerned, same came into being in consultation with UPSC, as is clearly recorded therein. This argument is not controverted during the course of arguments. The learned counsel would also contend that the word used in rule 25(a) is consultation and not concurrence. It is urged that consultation with UPSC, in any case, would not be mandatory, and for the contention aforesaid reliance has been placed upon the judgment of the Honble Supreme Court in State of Uttar Pradesh v Manbodhan Lal Srivastava [AIR 1957 SC 912], wherein it has been held that the provisions of Article 320 (3) (c) of the Constitution are not mandatory and non-compliance with those provisions would not afford cause of action to a civil servant in the court of law.
21. Having perused the official records, we are convinced that the Government was all through alive to the situation and seriously deliberated over the issue for number of years, and ultimately, agreed to give exemption, but in a matter of days, a converse decision is taken on wholly untenable grounds. It may be recalled that cadre restructuring came about by the Cabinet decision dated 28.10.2003. Despite that, the matter as regards preparation of select list of Grade-I (Under Secretary) of CSS for the year 2003 came to be taken in hand by the DOP&T on 28.8.2007. A Desk Officer prepared a note on the date aforesaid to the effect that before exact vacancies are determined in accordance with the formula, the Ministries/Departments be asked to furnish various information required in that regard. DO, CSI vide note dated 30.8.2007 required the US(D) to indicate the number of Under Secretaries of CSS promoted as Deputy Secretaries (Selection Grade) during the period 1.7.2003 to 30.6.2003, to determine the vacancies in the grade of Under Secretary for the select list year 2003. When the information required, as mentioned above, was being collected, a detailed note came to be made by the Desk Officer on 27.11.2007, relevant portion whereof reads as follows:
7. Due to a very thick size of the Select List for the year 2003, the Direct Recruit Section Officers of some batches will be in a very disadvantageous condition. For example, 1994 batch of Direct Recruited Section Officers will be completing 8 years of service in 2003. They will appear in the starting of the Eligibility List for the Select List 2003, being the senior-most in the Common Seniority List. However Direct Recruited Section Officers of subsequent batches i.e. 1995, 1996 may be in normal course eligible for being considered for conclusion in the Select List of 2004 & 2005 respectively when they will complete 8 years regular service in the Grade of Section Officer. As such in between 1994, Direct Recruit Section Officers and 1995 Direct Recruit Section Officers, there will be about 900 persons whereas in the past this number had been less than 100 and in some exceptional years it has crossed 100. Under these circumstances, Direct Recruit Section Officers of 1995, 1996 and subsequent years, will be unreasonably in disadvantageous condition and justice is required to be done with them by adopting a suitable method. It may be recalled that in the Note for Cabinet for re-structuring of CSS Cadre during 2003, the following observation had been made:-
Para 24(vi) the concern expressed regarding direct recruit Section Officers seniority might be suitably resolved in the light of Courts judgment and principles of equity to avoid possible litigation: while examining/resolving this issue, all relevant factors, including Courts judgments etc. will be taken into account.
8. From the Common Seniority List of Section Officers, it is found that Direct recruited Section Officers, belonging to 1995, 1996, 1997 & 1998 batches, are much senior and their juniors will be considered for inclusion of their names in the Select List of 2003, but these Direct Recruit Section Officers, who are senior in the CSL in the feeder Grade, will be left for want of 8 years of regular service as required under Rule 12(2) of the CSS Rules, 1962.
9. The Deptt. of Personnel & Training in its OM No.AB-14017/12/88-Estt.(RR) dated 25th March, 1996 while amending its earlier OM dated 18th March, 1988, have provided the following instructions:
To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules:
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. A copy of the aforesaid OM is placed at Flag C.
10. In accordance with the aforesaid instructions of the Government, a note was required to be inserted below Rule 12 (2) to the aforesaid effect but the same has not been done. However, in the absence of such note a conscious decision is required to be taken with the approval of the MOS(PP) to consider the names of Direct Recruit Section Officers of 1995 and 1996 batches, for inclusion in the Select List of Grade I of 2003, in relaxation of the rules since their juniors will be considered for such inclusion.
11. In view of the discussions in the preceding paragraphs, approval of the MOS (PP) is solicited on the following points:-
(i) Replacement of old formula with a new one as explained in para 5 of the notes above;
(ii) The size of the Select List of Grade I (Under Secretary) of the CS for the year 2003 will be 901; and
(iii) The names of Direct Recruited Section Officers belonging to 1995 & 1996 batches may be considered for inclusion in the Select List of 2003 in accordance with their seniority in the CSL, in relaxation of rule 12(2) of the CSS Rules, 1962 [refer paras 9 & 10 of notes above]. JS (AT&A) made the following note dated 29.11.2007 on the detailed proposal as mentioned above:
Pl. bring out the implication of the above option on DR with a self contained note. The same very Desk Officer vide his note dated 30.11.2007 added yet another dimension as regards the officers of 1997. Whereas, as regards direct recruits of the year 1995 and 1996, it was mentioned that the proposal for their inclusion in the select list of 2003 had already been examined, insofar as the direct recruits of 1997 are concerned, with regard to them relaxation in rules would be required in consultation with UPSC. It appears that it was opined by the Desk Officer that relaxation beyond two years may not be correct as that would result into heart burning amongst promoted officers. The matter was re-submitted for orders on points (i) to (iii) in para 11 of note dated 27.11.2007, as reproduced above. It was also mentioned that it would be for consideration whether relaxation beyond two years may be granted in the case of direct recruit officers of 1997 examination year. JS (AT&A) thereafter on 5.12.2007 made the following note:
2. We are required to prepare a panel for 2003 Select List of CSS Grade I (Under Secretaries) to fill up 901 vacancies of Under Secretaries. These huge vacancies have arisen due to a Cabinet decision of October 2003 on restructuring of CSS cadre, when the total number of CSS Under Secretaries have been pegged at 1400. These vacancies are, in fact, notional, as already directly recruited Section Officers of 1994 to 1998 batches and Section Officers promoted from the Assistant Grade belonging to 1984 till 1993 batches, are manning them as ad hoc Under Secretaries. The current exercise is to make these ad-hoc Under Secretaries as regular one.
3. In the Combined Seniority List (CSL) of Section Officers, directly recruited Section Officers are dotted at various positions along with the other categories (i.e. promoted) of Section Officers. As per the existing Recruitment Rules, 8 years of eligible services as Section Officers are required to become eligible for being promoted as Under Secretaries. If the panel is prepared with the present eligibility condition, the directly recruited Section Officers of 1995 examination year, who are otherwise senior in the CSL, will become junior by 900 positions, because intervening positions are filled by promoted officers. This is an exceptional situation.
5. In March 1996, DOPT issued a circular, which deals with this type of situations. It says that 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 2 years, whichever is less. The application of this circular in the extant case would partially mitigate the problems, as in the case of 1997 directly recruited Section Officers (about 10 officials) will not get the benefit of this Circular, and they would become juniors (by about 300 positions) in the Under Secretary levels, although they are senior at the level of Section Officers. If the DOPT Circular of 1996 is revised to give a relaxation of 3 years, this problem would be resolved. However, the relaxation beyond 2 years may be given to the CSS service only as no other services might have got creation of 800 odd posts at the level of Under Secretaries. There are in fact three more batches of directly recruited officers of Section Officers in the service, and with the relaxation, they will become eligiblein due course. Any proposal for such revision would, however, require concurrence of the Establishment Division and UPSC.
5. It is for consideration whether we will go in for revision of DOPT Circular of 1996, as stated in para 4. This note was submitted to Secretary (P), but before it may have been seen by him, following note came to be made by JS (AT&A) on 10.12.2007:
The issue was discussed with Secy (P) who desired that JS(E) may like to see the file before we put up the note to Secy (P). In particular, the legality of revision of 1996 circular as discussed in para 4 may be examined. We may discuss, if required. The matter then, it appears, came to be examined by Dir (E-I), Establishment Division and US (RR), who vide note dated 18.1.2008 primarily on the basis of the judgment of the Supreme Court in R. Prabha Devi (supra) mentioned that the CS Division may be advised not to press with the relaxation proposal. We find another detailed note dated 28.2.2008 disagreeing with the view of Dir (E) and US (RR). Relevant part of the same reads as follows:
Rule 12(2) of the CSS Rules, 1962 provides that Vacancies in Grade I shall be filled by promotion of regular officers of the Section Officers Grade who have rendered not less than 8 years approved service in that grade and are included in the Select List for Grade I of the service, prepared under sub-rule (3). In accordance with sub-rule (3) Select List of Grade I shall be prepared and may be revised from time to time as per procedure laid down in the regulations, made by the Central government. The Central Secretariat Service (Promotion to grade I and Selection Grade) Regulations, 1964 has been made, prescribing the procedure for preparation of the aforesaid Select List. Regulation 3 of the aforesaid Regulations provides that the strength of officers to be included in the Select List for Grade I shall be as determined from time to time by the Department of Personnel & Training. 7. It may be seen that due to re-structuring and fixation of cadre posts in various grades of the CSS the number of vacancies for the Select List 2003 has come to 901. In the past, the number of vacancies in a particular Select List Year has not been more than 100 and in very exceptional circumstances, it has gone beyond 100 but never went beyond 200. due to this extra ordinary circumstance, situation has arisen where the direct recruited Section Officers for the years 1995, 1996 & 1997 will be adversely affected since they are short of one year, two years and three years respectively of the approved 8 years service in the grade of Section Officer, therefore, in normal course, they may not be considered for inclusion in the Select List of 2003 whereas their much juniors will be considered for inclusion in the Select List. It is noted that the 1995 direct recruited Section Officers will be superseded by 800 of their juniors. Similarly, 1996 DR Section Officers will be superseded by 450 of their juniors, DR Section Officers of 1997 examination will be superseded by 216 of their juniors. Keeping in view the anomaly, a proposal for relaxation in the eligibility condition for these DR officers was sent to the Establishment Division of this Deptt. in the light of their instructions in OM dated 25th March, 1996. The Establishment Division have not agreed to the proposal citing their further OM dated 24.9.1997 vide their notes on page 10-11/N. However, in a recent judgment in Civil Appeal No.8208 of 2001 Union of India Vs. Smt. Sadhna Khanna, the Supreme Court of India has maintained the seniority and juniority clause in the matter of promotion. A copy of the judgment may be seen at pages 8-16/cor.
8. In the Senior Officers Meeting held in the chamber of Secretary (P) on 23.1.2008, the issue of preparation of Select List for the year 2003 was discussed wherein it was felt that due to large number of vacancies on account of re-structuring, the cadre management of such a large number of Under Secretaries in a particular year, will become unmanageable. It was decided in principle, to stagger the newly created posts into six Select Lists from the year 2003 to 2008. This aspect has been looked into carefully, keeping in view the instructions of the Govt. of India and the fact that in other grades of the CSS, the newly created posts have been calculated in the same Select List Year, it would seem to be an arbitrary action to stagger the vacancies in subsequent Select Lists. This may open the flood gate for litigation. Therefore, it may not be advisable to stagger the vacancies available on account of creation of posts during 2003 into subsequent Select List Years. Simultaneously, it will also be judicious to safeguard the seniority of the Direct Recruit Section Officers at least of the years 1995, 1996 and 1997 by invoking the provision of rule 25(a) of the CSS Rules, 1962. It may further be stated that the present seniority in the grade of Section Officer (Common Seniority List of Section Officers) was prepared under the direction/supervision of the Apex Court and any violation of the settled seniority may also tantamount to the contempt of the court.
9. Rule 25(a) of the CSS Rules, 1962 provides as below:-
Where the Central Government in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and in consultation with the commission, relax any of the provisions of these rules with respect to any class or category of persons or posts. The aforesaid provision of the rule has been provided to meet the extra-ordinary situation as the present one. In the interest of the administration and to maintain the seniority of some officers, as explained in the preceding paragraphs, it seems to be necessary and expedient to invoke the provision of the aforesaid rule for relaxation in rule 12(2) of the C.S.S. Rules, 1962 in respect of direct recruited Section Officers of 1995, 1996 and 1997 in the approved service for one year, two years and three years respectively, for their being considered for inclusion in the Select List of Grade I (U.S.) for the year 2003. By invoking the provision of this rule, the inter-se seniority of the Common Seniority List of Section Officers of CSS may be maintained. It seems to be the most judicious way to handle the situation. After a decision is taken by the Competent Authority in this regard, the UPSC may be consulted.
10. In view of the position explained in the preceding paragraphs, proposals in paragraphs 6 and 9 are submitted for kind perusal of the MoS(PP). This note appears to have been put up before the Deputy Secretary (CS-I), JS (AT&A), Secretary (P) and the Minister. The Minister has mentioned the matter to be discussed on 26.3.2008. Underneath the signatures of the Minister, it has been mentioned, Pl seek time from the Office of the MoS. It is not clear but it appears to us that meanwhile there were representations by both sections, i.e., direct recruits and the promotees, and may be, it is for that reason that time was sought from MoS. Available on records is yet another note made by Dr. S.K. Sarkar, Joint Secretary (AT&A) dated 28.4.2008 making mention of merits and demerits of the case. In para 7 of the note dated 28.4.2008 prepared by JS (AT&A), he has given three options and has stated the second option to be the best. Para 7 reads as follows:
7. The instant case calls for a solution that may perhaps be the second best. The following are the possible options:
Stick to CSS Rules/Regulations without any relaxation.
Relax the Rules/Regulations to take care of the senior-junior problems.
Stagger the US2003 by limiting its average size to 200, and allowing the remaining vacancies in the subsequent panels.
Each of the options has its own merits and demerits. These are discussed below:
Option 7(a) Merits:
1) Only non DR SOs (from 1984 till 1995) batch will be covered and only DR SOs of 1995 batch (four numbers) will be covered.
Demerits:
1) the DR SOs (1995 till 1998 batches) will become junior by about 700 and so on positions in the higher grade compared to their juniors in the feeder grade.
2) The officers thus being bypassed, will get promotion in the DS grade after abnormal delay of 7-8 years compared to their juniors in the feeder grade.
3) These officers might approach the legal forum for redressal of their grievances. This will upset all our efforts to update the panel preparation at various levels.
Option 7(b) Merits:
1) In the 8 years of eligibility condition is relaxed, by making it 5 years, then, the senior-junior issues will disappear.
2) Rule 25(a) of the CSS Rules permits such relaxation. Rule 25(a) says where the Central Government in the Ministry of Personnel, Public grievances and Pensions is of the opinion that it is necessary or expedient so to do, it may by order for reasons to be recorded in writing and in consultation with the commission, relax any of the provisions of these rules with respect to any class or category of persons or posts.
3) Both the Dr (1995 till 1998 batch) as well as non DR SOs (1984 till 1995 batch) will be considered for inclusion in the US 2003 panel, thus avoiding any senior-junior issue as discussed above.
4) The concern of the cabinet as indicated at para 5 would be addressed suitably.
Demerits
1) This could be an issue where we might face similar demands from the remaining DR SO of 1999 & 2000 batches. (Beyond 2000, there are no DR SOs). These batches are however very small, about 6.
2) there ill be a perception among the non DR SOs that the relaxation has been resorted t favour the DR SOs.
Option 7(c) Merits:
1) If the newly created vacancies during the restructuring of 2003 are equally distributed to all panels beyond 2003 (2003, 2004, 2005, 2006, 2007), it will be easier to manage the cadre in a better manner. Further, no senior will be superseded which is extremely detrimental to their service interest.
Demerits:
1) The non DR SOs of 1988 till 1995 will be financially loser, and hence they may protest.
2) The posts have been created in 2003. the association/members of the service may resort to agitation for filling up the vacancies in 2003 itself. Merits and demerits of all options have been mentioned. In ultimate analysis what has been recorded in para 8 is as follows:
8. On balance of the above options, it is for consideration whether we may take recourse to the option 7(b). This will mean taking advantage of the Rule 25(a) of the CSS Rules 1962, by relaxing the eligibility criteria from 8 years to 7 years, 6 years, and 5 years in respect of DR SOs of 1996, 1997 and 1998 batches respectively as one time measure to meet the extraordinary situation for filling up the 901 vacancies of Under Secretaries in the 2003 US panel. This is, however, subject to consultation with the UPSC. The matter then appears to have come before Secretary (P) who did not recommend relaxing the age requirement for directly recruited S.O.s of 1996 and 97 batches, and thus recommended for approval of option 7(a). We may only mention at this stage that there was no case of relaxing the age of direct recruits. The relaxation is only as regards eligibility. It is for that reason, it appears, that when the matter was discussed with the Minister, the note that came to be recorded required that the file be put up to him after the report of the CSS Cadre review committee was submitted. We may reproduce the note dated 24.6.2008, which reads as follows:
This issue was discussed by MoS(PP) with SS (Sdv). MoS(PP) desired that this file ay be put up to him after the report of the CSS Cadre Review Committee is submitted & approved. Few Associations are also of the same opinion. The next note dated 27.10.2008, reads as follows:
Discussed with JS (AT&A).
We need to prepare an overview of the whole process. As to what are the implications for the DR batches as well as the Promoted batches as well as DE batches. What are the kind of exemptions being sought? If exemptions are not given when will the DRs batches get the promotions.
After analyzing the whole picture a view needs to be taken quickly. Already a long time has elapsed. An attempt is now to be made to consider all the panels one after the other so that promotions as due to all can be expedited. A detailed note thereafter came to be prepared by JS (AT&A) dated 3.11.2008, paragraphs 9 and 10 whereof which are relevant, read as follows:
9. Under section 25(a) of the CSS rules, the government (DOPT) has the power to relax any provisions of the CSS Rules with respect to any class or category of persons or posts, if DOPT is of the opinion that it is necessary or expedient to do so. In such eventuality, the reasons have to be recorded and UPSC should be consulted.
10. Given paras 8 & 9, it is proposed to consider one time relaxation of eligibility criteria under Rules 12(20 of the CSS Rules in the case of promotion from SOs grade to the US grade only for the DR SOs during preparation of the US panel for 2003, 2004, 2005 & 2006. It is proposed to relax the eligibility criteria by two year. The extent of this relaxation is consistent with the DOPT circular of march 25, 1996. Even with this relaxation, 1998 batch of DR SOs as well as some non DR SOs (SQ/DE) will be adversely affected. Probably, this is the second best option available to us for resolving this complex issue. The matter then came before the Secretary (P) who on 14.11.2008, recorded the following note:
The CSS cadre was restructured with the approval of Cabinet in 2003. One of the decisions taken thereon was the creation of 1400 posts of Under Secretary. As on 30.6.2003, there were 429 regular Under Secretaries in position, as a result of which 971 vacancies were available for preparation of Select List of Grade-I of CSS for the year 2003.
2. The matter has been considered time and again and no formal decision in this regard has been taken so far. It appears that on account of different perceptions of direct recruit officers and promoted officers, the matter could not be resolved so far, although, more than 5 years have elapsed.
3. After keeping the overall view in perspective, it is imperative that this matter be resolved urgently. DOPT has been adopting a consistent policy of allowing up to a maximum of two years relaxation in qualifying service in promotions in all services. UPSC too has been accepting this from time to time in accordance with DOPTs OM No.AB-14017/12/89-Estt.(RR) dated 25th March, 1996.
4. A case has been made regarding non eligibility of relaxation of up to two years on the basis of O.M. issued by DOPT No AB-14017/12/97-Estt.(RR) dated 24th September, 1997. This circular has been issued as clarification on the basis of judgment of the Supreme Court in case of R. Prabhadevi & others vs. Union of India. From a perusal of the judgment of the Supreme Court and the O.M. issued by DOPT, it is clear that it is neither a direction of the Supreme Court, nor the intent of the DOPT to supersede the circular issued by DOPT vide their O.M. dated 25th March, 1996. In fact, DOPT has consistently adopted the policy of allowing relaxation of upto two years of service as qualifying service in case of promotions in all services.
5. Keeping the above in view, it would be appropriate that we may permit up to two years of relaxation in qualifying service to those officers who have not completed their eligibility period of 8 years of qualifying service for being fit for consideration for the Select List of Grade-I for the CSS for the year 2003.
6. It is also suggested that the panels for the years 2004, 2005, 2006, 2007 and 2008 be also prepared on the basis of the same principle accordingly.
7. After approval of MoS(PP) proposals as above will be submitted for consideration of the UPSC. It appears that thereafter the matter was discussed by the Secretary (P) with the MoS (PP) on 8.1.2009, when the following note came to be recorded:
This matter was discussed with MOS (PP) today. It was clarified that keeping in view the balance of convenience and respecting the principle of seniority it will be appropriate to go strictly by merit and seniority. Even after restructuring by the order of the Cabinet the matter of promotion of U.s. has been hanging fire only on the representations and counter representations from both Direct Recruits and Promoted officers. In the circumstances the appropriate course of action appears to be to adopt a uniform principle of going strictly by merit and approved seniority list.
For kind consideration and appropriate orders in the matter. The matter then came before the MoS (PP) on 4.2.2009, who made the following order:
I have heard the representatives of both the sides. After careful consideration, I agree with the Secretarys views. We are unable to gather as to why after the decision taken, as mentioned above, the matter again went before the JS #AT&A), who made the following note on 6.3.2009:
Reference to order of Secy (P)/Mos( PP) above.
2. While drawing up the SL 2003 for the US on the basis of merit and seniority, kind orders of Secy (P) are solicited whether a relaxation of eligibility criteria is to be extended to the Directly Recruited CSS officers in terms of DOPT circular of March 25, 1996. The matter was then put up before the Secretary (P) on the same very day, who made the following note:
From the notes on pre-page it is clear that merit would imply that the requisite qualifications are fulfilled. Thus it would be evident that only those cases fall within the ambit of the zone of consideration on merit who fulfil the requisite qualifications. The question of exemption in the qualifying requirement does not arise.
In view of the above, it is clear that the zone of consideration is to be computed from the seniority list last finalized and notified on merit on the basis of the officers who fulfil the requirements of qualifying service only.
Thus let the zone of consideration be firmed up, ACRs compiled and Vigilance clearance collated and reference be made to U.P.S.C. for holding D.P.C. on a priority basis. This matter bas already been inordinately delayed.
22. The final orders, it appears to us, were taken when the Minister of State agreed with the views of the Secretary after hearing the representatives of both sides. The decision as reflected in note of the Secretary would clearly manifest that keeping in view the balance of convenience and respecting the principle of seniority, it was appropriate to go strictly by merit and seniority. It was not to go by merit and eligibility as per rules. For reasons unknown, the matter after taking the final decision came before the JS (AT&A) and Secretary (P), who would interpret merit and eligibility and completely forget the word seniority. We may mention at this stage that promotion from the post of Section Officer to that of under Secretary is to go strictly by merit. In that regard, we may refer to Regulation 5 (4) to (7) of the Regulations of 1964, which read as follows:
(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. It is absolutely clear from the reading of regulations as reproduced above that a more meritorious candidate who is graded as outstanding would supersede one with credentials as very good even though, he may be junior. There was never a controversy as regards making selection of Section Officers on the post of Under Secretary on the basis of merit. The dispute was only as regards relaxing the eligibility by a period of two years as per OM dated 25.3.1996. It was for that reason that it was mentioned that it would be appropriate to go strictly by merit and seniority, keeping in view the balance of convenience and respecting the principle of seniority. It was further recorded in the note dated 8.1.2009 of Secretary (P) that in the circumstances the appropriate course of action would be to adopt a uniform principle of going strictly by merit and approved seniority list. There was no question of making a mention of approved seniority list if the condition of eligibility was not to be relaxed by two years, as envisaged in the OMs referred to above. The decision appears to have been changed on not only misinterpretation of the note dated 8.1.2009, agreed to by the Minister, but by deliberately changing it by substituting merit with eligibility. We are in agreement with the contention raised by the learned counsel representing the applicant that relaxation granted in the matter has been overturned on wholly untenable grounds. That apart, the correct procedure in overturning the relaxation by misinterpretation and by missing out on relevant observations made in the note dated 8.1.2009, is also irregular and cannot sustain. If the decision was to be changed, the matter had to be again put up before the Minister. It does not appear that the same was so done. Indeed, the concerned Minister wrote a letter to the Chief Minister of Mizoram on 14.12.2009 that the decision for not granting relaxation in eligibility was taken on the basis of past experience of prolonged litigation between promotee and direct recruit officers of CSS over seniority related issued, which had resulted in a complete impasse in CSS promotions for over fifteen years, and it was, therefore, necessary to avoid similar impasse on this issue. Inter se correspondence between the concerned Minister and the Chief Minister of a State is no substitute for putting the file before the Minister for his decision. We are conscious of the fact that if the note dated 8.1.2009 of the Secretary (P) may be in consonance with the decision taken by the Minister, there would have been no need to take the matter to the Minister again, whereas the decision taken by the Minister by agreeing with the Secretary was different, the one ultimately reflected in the note dated 8.1.2009 by the Secretary is different. On re-hearing the matter, as per interim order dated 26.4.2011, Shri R. N. Singh, learned counsel representing the respondents would contend that the Minister of State in the letter dated 14.12.2009 addressed to the Chief Minister, Mizoram, had clearly mentioned that the matter was examined at length in DOP&T and the associations of CSS officers were also heard, and after detailed consideration of the matter at the level of Secretary (Personnel), it was decided not to grant any relaxation in eligibility service of eight years as per the statutory CSS Rules. It is further stated that both the Secretary and the Minister were the same who had made the notes and the orders as reproduced above, and, therefore, the notes and orders should be interpreted so as to mean that no relaxation was to be granted. It is indeed true that in the letter aforesaid it has been mentioned that the matter was examined in the Department and after detailed consideration it was decided not to grant relaxation in eligibility service of eight years, but there no such orders on the file, at least till such time the decision already taken came to be changed in the way and manner fully detailed above. It is also true that the Secretary and the Minister were the same, but the orders do reflect exemption in eligibility service for a period of two years on cogent grounds, but the said decision came to be changed, which, as fully discussed above, would not sustain. Further, inter se correspondence between the Minister of State concerned and the Chief Minister of a State is no substitute of orders on the file. Equally untenable is the ground of not granting relaxation in the eligibility criteria to the applicant is that it would lead to litigation. Whatever might have been the decision, it would have led to litigation. In the very nature of things, either of the party would be aggrieved and would not leave the matter without clamouring for its rights. The fact that if direct recruits are not given relaxation in rules, the same would lead to litigation has been mentioned in various notes referred to above. Whatever might have been the decision of the Government, it would have led to litigation, with the only difference that if relaxation was to be given, it would be the promotees versus direct recruits, and if the relaxation was not to be given, it would be direct recruits versus promotees. Further, the Government is supposed to take a right decision and as to whether the same would lead to litigation or not, should be of no concern to the Government. The mere fact that the decision in giving relaxation in rules would lead to litigation is no good ground to refuse relaxation. If we were not to return a finding on the first issue earlier discussed by us in favour of the applicant of treating the OMs as if exemptions under rules, normally we would have directed the State to take up the matter with UPSC for its consultation in the matter of relaxation in the eligibility criteria, but there would be no need to do so now, in view of our finding that the OMs would partake the character of relaxation under the rules.
23. The last contention raised by the learned counsel representing the applicant appears to be attractive in the first blush, but when examined in details, it may not have much substance. It is no doubt true that the cadre restructuring came about by the decision of the Cabinet dated 28.10.2003, wherein it is mentioned that the restructured strength of CSS in various grades would be effective from 3.10.2003. It has, however, also been mentioned that necessary notification relating to amendments to the CSS Rules would be issued separately. This amendment was brought about vide notification dated 27.2.2009, when the Rules of 1962 were amended. Rule 6(1) of the Rules of 1962 states that the authorized permanent strength of the Selection Grade (Deputy Secretary); Grade I (Under Secretary); Section Officers and Assistants were mentioned in the Third Schedule. On restructuring of the cadre, it is the case of the applicants that the Schedule had to be amended. The Schedule that came into being by virtue of notification dated 27.2.2009 along with the amended rules would take effect from the said date, and if that be so, the applicant would be answering the eligibility criteria by far more years than required under the rules. We are not impressed with this plea, as perhaps it is not known to the applicant that the third Schedule was omitted by amendment in the Rules vide notification dated 24.2.1999. Rule 6 was amended as follows:
6. The authorized cadre strength of the service. (1) The authorized strength of various Grades shall be such as may be determined, from time to time, by the Central Government. When the order by the Cabinet came to be passed in October, 2003, the original rule 6 was not in existence. The amended rule does not talk of any schedule, which, as mentioned above, stood omitted. The cadre strength could be changed by way of an order by the Government. It is true that in the Cabinet decision of 2003 it has been mentioned that the restructuring of the cadre would be notified, but that, in view of rule 6, as it stands now, was surplusage and even though, therefore, notification might have been issued in 2009, the increased strength of the cadre shall be treated to have been increased when the order came to be passed by the Government.
24. In view of the discussion as made above, while allowing the main and the connected Original Applications, we would direct the respondents to prepare a fresh Select List for 2003 for promotion of Section Officers to the grade of Under Secretary by considering such of the direct recruits who may be short of eligibility service by up to two years as per the approved seniority list of Section Officers, and make promotions accordingly. We reiterate that the eligibility criteria as regards direct recruits shall be reduced only by a period of two years, and only such of the direct recruits would be benefited who may be falling short of the eligibility criteria by two years, and not others. Vide interim orders passed from time to time, as fully detailed above, the Government was permitted to make promotions as per the Select List prepared by it, but the last six candidates, it was ordered, would not be promoted. It was further ordered that in all promotion orders it would be mentioned that the same would be subject to outcome of the Original Applications. That being the position, no hearing shall now be involved in the case from those who might have already been promoted and who may, by virtue of the orders passed by us, may have to be reverted. The issue is hanging fire for a very long time and, therefore, we direct the exercise as ordained above to be done as expeditiously as possible, but not later than eight weeks from today. In the peculiar facts and circumstances of the case, costs of the litigation are made easy.
(Dr. Ramesh Chandra Panda) (L. K. Joshi) (V. K. Bali)
Member (A) Vice-Chairman (A) Chairman
/as/