Directorate Of Income Tax ... vs Dinesh Chander Pandey
2001 Latest Caselaw 1006 Del

JUDGMENT

Khan, J.

The respondents are clamouring for regularisation on the post of LDC but the petitioner wants them to appear in a selection examination to be conducted by SSC in accordance with the Directorate of Income Tax (Research Statistics Publication & Public Relations) Group C & D Recruitment Rules, 1999 (hereinafter referred to as the 'Recruitment Rules') vide orders dated 15-9-1993 and 21-9-1993. CAT has quashed these orders by impugned order dated 15-11-1999 and directed the petitioner to consider these respondents for regularisation of their service on the post of LDC in consultation with Staff Selection Commission after giving them necessary age relaxation. While doing so, the Tribunal has relied upon its earlier orders passed in OA Nos. 668, 1010, 914 of 1988, 985 of 1989 and 1153 of 1991 dated 12-4-1991 by placing reliance on a judgment of the Supreme Court.

2. Petitioners feel aggrieved with this and have filed this petition for setting aside CAT order and for requiring respondents-1 to 10 to go through the prescribed mode of promotion under rules for their substantive promotion on their services on the post of LDC.

2. Petitioners feel aggrieved with this and have filed this petition for setting aside CAT order and for requiring respondents-1 to 10 to go through the prescribed mode of promotion under rules for their substantive promotion on their services on the post of LDC.

3. Respondents-1 to 10 were first appointed as Group D employees in the Directorate of Income Tax and then regularised from 21-4-1981 to 24-1-1986. They were later promoted on the post of LDC on ad hoc basis from 1-9-1984 to 7-4-1986 by various orders which provided that the service rendered by them would not be counted toward their seniority on the promoted post and that they would be liable to be reverted to Group D posts and that their claim for regularisation would not be considered. They were, however, so promoted after being subjected to a typing and written test and continued to hold the post of LDC for as long as 15 to 16 years during which all of them are said to have passed their regularisation departmental tests.

3. Respondents-1 to 10 were first appointed as Group D employees in the Directorate of Income Tax and then regularised from 21-4-1981 to 24-1-1986. They were later promoted on the post of LDC on ad hoc basis from 1-9-1984 to 7-4-1986 by various orders which provided that the service rendered by them would not be counted toward their seniority on the promoted post and that they would be liable to be reverted to Group D posts and that their claim for regularisation would not be considered. They were, however, so promoted after being subjected to a typing and written test and continued to hold the post of LDC for as long as 15 to 16 years during which all of them are said to have passed their regularisation departmental tests.

4. Petitioners' primary grievance appears to be that CAT could not have ordered their regularisation on the post of LDC in derogation of the terms of their appointment and the relevant provisions of recruitment rules and also in view of the judgment of the Supreme Court in J. &K. Public Service Commission v. Dr. Narinder Mohan AIR 1994 SC 1808. It is pointed out that under the recruitment rules, 90 per cent posts of LDC wore to be filled up by direct recruitment through a selection to be made by the Staff Selection Commission and 10 per cent from Group D employees. It is submitted that being substantive Group D employees, they were eligible to be considered against 10 per cent posts of LDC only and that their regularisation, as ordered by the Tribunal could reflect on the prescribed quota and also infringe upon the rights of other eligible Group D employees.

4. Petitioners' primary grievance appears to be that CAT could not have ordered their regularisation on the post of LDC in derogation of the terms of their appointment and the relevant provisions of recruitment rules and also in view of the judgment of the Supreme Court in J. &K. Public Service Commission v. Dr. Narinder Mohan AIR 1994 SC 1808. It is pointed out that under the recruitment rules, 90 per cent posts of LDC wore to be filled up by direct recruitment through a selection to be made by the Staff Selection Commission and 10 per cent from Group D employees. It is submitted that being substantive Group D employees, they were eligible to be considered against 10 per cent posts of LDC only and that their regularisation, as ordered by the Tribunal could reflect on the prescribed quota and also infringe upon the rights of other eligible Group D employees.

5. The case of the respondents is that impugned CAT order could not be faulted as it was passed on the basis of the earlier orders passed by the Tribunal in identical OAs in reference to a judgment of the Supreme Court. They were required to be treated as a separate class because of having held the post for as long as 15/16 years and having qualified in the regularisation test, etc., and subjecting them to a fresh prescribed drill would be an empty formality.

5. The case of the respondents is that impugned CAT order could not be faulted as it was passed on the basis of the earlier orders passed by the Tribunal in identical OAs in reference to a judgment of the Supreme Court. They were required to be treated as a separate class because of having held the post for as long as 15/16 years and having qualified in the regularisation test, etc., and subjecting them to a fresh prescribed drill would be an empty formality.

6. There is no dispute with the legal position that where appointment to a post was required to be made in accordance with the mode prescribed under the recruitment rules, it could not be made through any other mode in exercise of executive power. Nor could rules be relaxed where relaxation power was not provided to regularise such appointment de hors the rules. It is also settled that the Tribunal could not direct regularisation of service of an appointee in such a situation.

6. There is no dispute with the legal position that where appointment to a post was required to be made in accordance with the mode prescribed under the recruitment rules, it could not be made through any other mode in exercise of executive power. Nor could rules be relaxed where relaxation power was not provided to regularise such appointment de hors the rules. It is also settled that the Tribunal could not direct regularisation of service of an appointee in such a situation.

7. All this is laid down in various Supreme Court judgments spearheaded by the judgment in Dr. Narender Mohan's case (supra). But it is also to be borne in mind that the Apex Court had directed regularisation of ad hoc appointments in several cases including that of Dr. A.K. Jain v. Union of India 1998 (1) SCR 335 and H.C. Puttaswamy v. Chief Justice of Karnataka High Court AIR 1991 SC 295, and where the Tribunal had followed such judgments, its orders required to be examined in a proper context.

7. All this is laid down in various Supreme Court judgments spearheaded by the judgment in Dr. Narender Mohan's case (supra). But it is also to be borne in mind that the Apex Court had directed regularisation of ad hoc appointments in several cases including that of Dr. A.K. Jain v. Union of India 1998 (1) SCR 335 and H.C. Puttaswamy v. Chief Justice of Karnataka High Court AIR 1991 SC 295, and where the Tribunal had followed such judgments, its orders required to be examined in a proper context.

8. Having noticed all that, the present controversy demanded resolution on its own peculiar facts. Though recruitment rules provided for appointment to the post of LDC by direct recruitment and promotion from Group D employees, respondents were appointed on ad hoc basis in administrative exigencies after due screening and tests, etc., and were allowed to hold the post for good 16 years. Their case for regularisation was also processed at one stage as could be evident from petitioner's letter dated 18-11-1998. To top it all, they satisfied all terms of eligibility under rules except for the age bar which some of them may have crossed during their long ad hoc tenure. They had also qualified in the requisite test/examination under rules and their only surviving requirement was that they were to be considered by the DPC against the 10 per cent promotion quota in which other contenders may have become eligible meanwhile.

8. Having noticed all that, the present controversy demanded resolution on its own peculiar facts. Though recruitment rules provided for appointment to the post of LDC by direct recruitment and promotion from Group D employees, respondents were appointed on ad hoc basis in administrative exigencies after due screening and tests, etc., and were allowed to hold the post for good 16 years. Their case for regularisation was also processed at one stage as could be evident from petitioner's letter dated 18-11-1998. To top it all, they satisfied all terms of eligibility under rules except for the age bar which some of them may have crossed during their long ad hoc tenure. They had also qualified in the requisite test/examination under rules and their only surviving requirement was that they were to be considered by the DPC against the 10 per cent promotion quota in which other contenders may have become eligible meanwhile.

9. We are also informed that recruitment rules provided for a power of relaxation under rule 5 and that the petitioner's only worry was that they would have limited number of posts available under promotion quota which could be consumed by petitioners leaving other eligible candidates high and dry.

9. We are also informed that recruitment rules provided for a power of relaxation under rule 5 and that the petitioner's only worry was that they would have limited number of posts available under promotion quota which could be consumed by petitioners leaving other eligible candidates high and dry.

10. Given regard to all this, we deem it just and appropriate to dispose of this petition by providing as under :

10. Given regard to all this, we deem it just and appropriate to dispose of this petition by providing as under :

The petitioner is directed to consider respondents 1 to 10 for substantive appointment/ promotion to the post of LDC subject to their eligibility under rules and after relaxing the age bar, if required, on the post of LDC against the available vacancies to be filled up from Group D posts for which they shall enjoy first right of absorption in view of their long ad hoc terms and pass appropriate orders. In case of any administrative hurdle, the petitioner shall be free to exercise power of relaxation under rule 5 to alter 10 per cent prescribed ratio for Group D posts as one-time exception. Meanwhile, status quo as on today shall be maintained in respect of respondents' service status till requisite orders are passed in this regard.