R.K. Tandon vs Cabinet Secretary, Cabinet ...
2006 Latest Caselaw 2179 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this writ petition assails the order dated 21.7.2006, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter Tribunal), whereby the petitioner's OA No. 1481/2005 was dismissed. Petitioner in the said OA had challenged order dated 16.3.2005 passed by respondent No. 2, Department of Personnel and Training (DoPT), whereby the Appointments Committee of the Cabinet (ACC), rejected the request of the petitioner for personal upgradation of the post of Member, Staff Selection Commission (SSC) held by him, to the rank and pay of Additional Secretary.

2. Petitioner prays in this writ petition for directions inter alia for quashing the order dated 21.7.2006 in OA No. 1481/2005 and communication dated 16.3.2005 of the DoPT conveying rejection by the ACC of the request for grant of in-situ promotion by personal upgradation of the post of Member, SSC. Petitioner seeks directions to be placed in the Additional Secretary's pay scale of Rs. 22400-24500 with effect from July 2001. He prays that his service as Member, SSC after the date of superannuation i.e. 31.1.2002 (A.N.) till 24.1.2004, when his tenure came to an end on attaining 62 years of age be treated in the grade of Additional Secretary on re-employment terms and all consequential benefits be paid to him.

3. The facts culminating in filing of the present petition may be noted:

Petitioner was a Central Secretariat Service (CCS) Officer with seniority as Direct Recruit Section Officer of 1964 IAS etc. Examination. Petitioner was appointed as Joint Secretary with effect from 1.7.1996. He was appointed as Member, SSC (a post of the level of Joint Secretary) for a period of five years with effect from forenoon of 30.03.2001 or till he was to attain the age of 62 years i.e. 24.1.2004 or until further orders, whichever event takes place at the earliest. Relevant extracts from notification dated 19.4.2001 is reproduced below:

The President is pleased to appoint Shri R.K. Tandon, CCS as Member in the Staff Selection Commission at New Delhi in the pay scale of Rs. 18,400-22,400/- for a period of five years with effect from the forenoon of 30.03.2001 or till he attains the age of 62 years, i.e. 24.1.2004 or until further orders, whichever event takes place the earliest.

2. His tenure as Member, SSC shall be on deputation basis until he attains the age of superannuation or retires voluntarily, as the case may be, and thereafter, for the balance period of his tenure, he shall be on re-employment terms as per the provisions of the recruitment rules for the post.

Petitioner superannuated on 31.01.2002 and also completed his tenure as Member, SSC on re-employment terms on 24.01.2004 after having attained the age of 62 years.

4. Petitioner was included in the panel for the grade of Additional Secretary, for the year 2000 from amongst officers from Central Secretariat Service (CCS) and other services, finalised in July 2001. Petitioner was the only one selected from amongst the officers belonging to CCS for empanellment as Additional Secretary. Inclusion in the panel was with the knowledge that the petitioner had just six-seven months left for superannuation. Petitioner made representations dated 8.8.2001 8.10.2001, 3.12.2001, 9.1.2002, 15.4.2002 and 1.10.2003 requesting for personal upgradation of the post of Member, SSC to accommodate him at the level of Additional Secretary. Vide order dated 29.10.2003 the Department of Personnel and Training turned down his request. Aggrieved by the said order, petitioner filed OA No. 3033/2003 before the Tribunal praying for in situ promotion to the grade of Additional Secretary and other consequential benefits like increments, pensionary benefits etc. Vide order dated 1.11.2004, the Tribunal allowed the OA and directed the respondents to place the case for in-situ promotion of the petitioner before the ACC for consideration.

5. The ACC considered the case of the petitioner and rejected it which was conveyed vide communication No. 39028/05/2005-Estt(B) dated 16.3.2005. Petitioner filed MA No. 1136/2005 praying for setting right the alleged wrong done to him by rejection of his claim. Tribunal directed the petitioner to file a fresh OA if he desires to challenge the fresh order/communication dated 16.3.2005. Petitioner accordingly filed OA No. 1481/2005. This OA was dismissed by the Tribunal on the ground that the petitioner at his own volition opted to go to SSC on deputation. He cannot claim to be entitled to in-situ promotion simply because he had been empanelled for the post of Additional Secretary. He cannot remain outside the cadre availing the benefit of the post i.e. additional service of two years, while at the same time claiming promotion to the cadre of additional secretary to which he may have had a claim had he remained in the cadre and retired at the age of sixty years.

6. Petitioner's submission in short is that once he has been empanelled by the respondents for Additional Secretary's grade for the year 2000, with the knowledge of the fact that he had only about six months service left to superannuate, when his name was included in the panel, grant of in situ promotion to him is a matter of right. His quality of merit and competence had already been endorsed by the ACC. Therefore when the proposal for personal upgradation of the post of Member, SSC was put up to the ACC on the directions of the Tribunal, the limited aspect, which was required to be gone into, was the petitioner's suitability for the post. As the empanellment and appointment as Member, SSC was with the approval of ACC, he had already been found suitable to hold the higher level post of Additional Secretary consequent to inclusion of his name in the panel, approval of the proposal for upgradation of the post of Member, SCC by the ACC should have been a mere formality. He submitted that in the past also, the post of Member SSC was held by officers of the level of Additional Secretary.

7. In rebuttal, the submission of the learned Counsel appearing for the respondents was that the petitioner has on his own volition gone on deputation to SCC as a Member. This was presumably to choose an extended service tenure, beyond the age of 60 years. Further, ACC has a right to consider the suitability of the empaneled officer. The posts of Additional Secretary/Special Secretary/ Secretary are selection posts and not promotional. Mere fact of empanelment does not confer an indefeasible right to be appointed on any particular post.

8. We have heard the petitioner as well as counsel for respondent and noted their respective contentions in the foregoing paras. We are of the view that the Tribunal has arrived at a correct conclusion. The Tribunal had gone through the original file of Cabinet Secretariat in which the representation of the petitioner was processed. The observation on consideration of the case of the petitioner for in-situ promotion, as per the directions of the Tribunal, is reproduced below:

On his empanellment for appointment to Additional Secretary level posts at the Centre in July 2001, Shri Tandon had only 6 months of balance service left, had he continued in Government. The Officer had applied for appointment in the Staff Selection Commission. This enabled him to continue serving till 62 years of age. When Shri Tandon got to know of his empanellment for appointment to Additional Secretary level posts, he did not specifically opt to return to avail of appointment as Additional Secretary to the Government, thereby preferring to continue in service till 62 years of age.

9. The above observation goes on to show that the case of the petitioner was duly considered by the ACC. The fact is that he himself chose to serve as Member, SSC for the extended tenure of two years. His not opting to return to his parent Department led to his losing out the opportunity to get selected as Additional Secretary. He chose to remain in service for the additional period of two years. Had he remained with the Government, he would have superannuated at the age of 60 years itself. In other words, the petitioner exercised his choice in favor of continuing in service for two more years rather than reverting to the Government to claim the grade of Additional Secretary and superannuate at 60 years. The above is a relevant factor taken into account in the decision making process.

10. Petitioner who appears in person contends that his working with Staff Selection Commission also constitutes working for the government, there was thus no question of his opting to return since promotion to the post of Additional Secretary was under the Central Staffing Scheme. He further submitted that while working in Staff Selection Commission, he was working under the provisions of Central Staffing Scheme.

11. Distinction in serving as Member, SSC and continuing with the parent Department is that as Member SSC, petitioner worked till the age of 62 years on re-employment terms, instead of superannuating at 60 years itself. Petitioner himself chose to accept the post of Member, SSC presumably in order to gain two more years of service. He cannot now say that he should also be given the benefit of the higher grade of additional secretary. Had he continued in the Government, he could have claimed in-situ promotion to the Additional Secretary's grade but he would have then superannuated at the age of 60 years itself. It is also an admitted position that petitioner did not opt for reversion to the government on coming to know about his empanellment for Additional Secretary's grade. Petitioner cannot be permitted to remain outside his cadre in order to avail the benefit of two additional years of service and at the same time claiming the benefit of the selection/promotion which would have been available for him had he remained in his cadre and superannuated at 60.

We see no ground for interference with the well reasoned order of the Tribunal.

The Writ Petition is accordingly dismissed.