Directorate Of Income-Tax ... vs Dinesh Chander Pandey And Ors.
2001 Latest Caselaw 1032 Del

JUDGMENT

B.A. Khan, J.

1. The respondents are clamouring for regularisation on the post of LDC but petitioner wants them to appear in a selection examination to be conducted by S.S.C. in accordance with the Directorate of Income-Tax (Research Statics Publication & Public Relations) Group C & D Recruitment Rules, 1999 (hereinafter called 'Recruitment Rules') vide orders dated 15.9.93 and 21.9.93 CAT has quashed these orders by impugned order dated 15.11.99 and directed 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, Tribunal has relied upon its earlier orders passed in O.A. Nos. 668, 1010, 914/88, 985/89 and 1153/91 dated 12.4.91 by placing reliance on a judgment of the Supreme Court.

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

3. Respondents 1-10 were first appointed as Group-D employees in the Directorate of Income-Tax and then regularised from 21.4.81 to 24.1.86. They were later promoted on the post of LDC on ad hoc basis from 1.9.84 to 7.4.86 by various orders which provided that the service rendered by them would not be counted towards their seniority on the promoted post and that they would be liable to be, reverted to Group D post 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. Narinder Mohan, . It is pointed out that under the Recruitment Rules, 90% posts of LDC were to be filled up by direct recruitment through a selection to be made by the Staff Selection Commission and 10% from Group-D employees. It is submitted that being substantive Group-D employees, they were eligible to be considered against 10% posts of LDC only and that their regularisation, as ordered by Tribunal could reflect on the prescribed quota and also infringe upon the rights of other eligible Group-D employees.

5. The case of 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 O.As. in reference to a judgment of the Supreme Court. They 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 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 Narender Mohan's case. But it is also to be borne in mind that Apex Court had directed regularisation of ad hoc appointments in several cases including that of A.K. Jain v. Union of India, 1998 (1) SCR 335, and Puttaswamy's case , and where 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 wee 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 petitioners' letter dated 18.11.98. 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 the requisite test/examination under Rules and their only surviving requirement was that they were to be considered by the DPC against the 10% 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 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 off this petition by providing as under:

Petitioner is directed to consider R-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 Grade-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, petitioner shall be free to exercise power of relaxation under Rule 5 to alter 10% 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.