Delhi High Court

Nishit Kumar Jain vs Union Of India & Ors on 7 July, 2011

Author: A.K.Sikri

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 [W.P. (C) 4545 OF 2000]

%                              JUDGMENT DELIVERED ON: 07.7.2011


NISHIT KUMAR JAIN                                 . . . PETITIONER
                              Through: Mr. Sarvesh Bisaria, Advocate
                                       with  Mr.    Prakash    Chandra
                                       Sharma, Advocate

                                   VERSUS

UNION OF INDIA & ORS                    . . .RESPONDENTS
                  Through: Mr. H.K. Gangwani, Advocate


CORAM :-

          HON'BLE MR. JUSTICE A.K. SIKRI
          HON'BLE MR. JUSTICE M.L. MEHTA

          1.         Whether Reporters of Local newspapers may be
                     allowed to see the Judgment?
          2.         To be referred to the Reporter or not?
          3.         Whether the Judgment should be reported in the
                     Digest?

A.K. SIKRI, J.

1. The petitioner herein is an employee in the Defence

Research and Development Organization (DRDO) which comes

under the Ministry of Defence. He joined as Scientist grade „B‟ in

DRDO w.e.f. 24th April, 1987. The petitioner was promoted as

Scientist grade „C‟ w.e.f. 1st July, 1993. Next promotion is to the

post of Scientist grade „D‟. These promotions are governed by the

recruitment rules called „Defence Research and Development

Service Rules, 1979‟. Rule 6 of these Rules deals with the method

of recruitment and, inter alia, stipulates the method of promotion

as well as direct recruitment. Rule 7 of the aforesaid Rules deals

with the initial constitution of service. We are here concerned with

Rule 8. Before the amendment to this Rule in 1996, the relevant

portion of the same read as under:-

"8. Future maintenance of the service:- (1) After the initial constitution of the Service has been completed by the appointment of officers in accordance with rule 7, vacancies shall be filed in the manner as hereinafter provided:-

(a)...........

(b)...........

2(a) Promotion from one grade to the next higher grade in the service shall be made under the Flexible Complementing Scheme from amongst the officers possessing the broad educational qualifications as given in Schedule III. Promotion upto the level of Scientist „F‟ shall be made on the basis of evaluation of confidential performance appraisal reports and assessment interview and for Scientist „F‟ to „G‟ on the basis of the evaluation of confidential performance appraisal reports and assessment by a Peer Committee. The internal Screening Committees constituted as specified in Schedule 1A and 1B, shall review the confidential performance appraisal reports of Scientists „B‟ on completion of minimum residency period of three years and of Scientists „C‟, „D‟ and „E‟ on completion of minimum residency period of four years and of Scientists „F‟ on completion of minimum residency period of five years as on 30th June of the year to which the assessment boards pertain. The Internal Screening Committees shall evolve its own criteria for deciding the eligibility of scientists for consideration by the Assessment Boards and award

average marks for the scientists, while deciding eligibility of scientists for assessment, the Internal Screening Committee shall follow the criteria enumerated below:-

(i) Internal Screening shall be based on not more than last five years‟ confidential performance appraisal reports in the grade and scientists securing less than 60% average marks in the confidential performance appraisal reports shall not be eligible for assessment.

(ii) Relaxation upto three months in the qualifying service for eligibility for assessment shall be given to direct recruits or promotes who join after 1st July for reasons beyond their control.

(iii) All kinds of leave availed except extra ordinary leave on personal grounds shall count as qualifying service for eligibility for promotion.

(iv) In case of permanent absorption of a scientists on deputation in the same grade in Defence Research and Development Service from other Scientific Departments where Flexible Complementing Scheme is applicable, the entire service of that scientist in the same grade including in the parent department shall be counted towards residency period. If an officer comes on deputation on a higher grade into the service and later permanently absorbed in the same grade in the service, the period spent on deputation shall be counted for residency period for consideration for promotion to next higher grade

(v) On regular appointment in the service of a scientist in continuation of adhoc appointment, the period of service rendered in adhoc capacity in the grade shall count towards residency period provided that the officer is selected for regular appointment at the first attempt.

(vi) Notwithstanding anything contained in these rules, a relaxation of one year in the minimum residency period can be granted to a scientist „C‟/‟D‟/‟E‟ provided that he earns consistently

90% and above marks in three successive confidential performance appraisal reports in the grade.

(vii) Notwithstanding anything contained in these rules, a relaxation of one year in the minimum residency period can be granted to a scientist „F‟ provided that he earns consistently 90% or above marks in four successive confidential performance appraisal reports in the grade.

(viii) Relaxation in the minimum prescribed residency period in terms of clauses 9vi) and (vii) above shall be limited to two times in the entire career of any scientist in the service.

This Rule introduces Flexible Complementing Scheme for

promotion from one grade to next higher grade in the service. The

necessary qualifications prescribed for such promotions are given

in Schedule-III. It further provides that promotion up to the level of

Scientist „F‟ shall be made on the basis of evaluation of

confidential performance appraisal reports and assessment in

future. For this purpose, the Internal Screening Committee is to be

constituted which is to review the confidential performance

appraisal reports of Scientists „B‟ on completion of minimum

residency period of three years and of Scientists „C‟, „D‟ and ‟E‟ on

completion of minimum residency period of four years and of

Scientists „F‟ on completion of minimum residency period of five

years. It is also stipulated that the Internal Screening Committee

would evolve its own criteria for deciding the eligibility of scientists

for consideration by the Assessment Boards. Clause (i) thereof

stipulated, at the relevant time that the Internal Screening would

be based on not more than last five years‟ confidential

performance appraisal reports in the grade and scientists securing

less than 60% average marks in the confidential performance

appraisal reports shall not be eligible for assessment. This rule

thus clearly stipulate 60% as the minimum marks which was

required to be obtained by the candidate in the confidential

performance appraisal reports on the basis of Internal Screening.

2. The aforesaid rule was framed by the President in exercise of

his power under proviso to Article 309 of the Constitution of India.

3. This Clause was amended by the President under proviso to

Article 309 of the Constitution of India. The substituted Clause (i),

after amendment, reads as under:-

"(1) In rule 8, sub-rule 2,-

(a) In clause (a), for sub clause (i), the following shall be substituted, namely:- "(i) Internal Screening shall be based on not more than last five years confidential appraisal reports in the grade. Scientists „B‟ and „C‟, Scientists „D‟ and Scientists „E‟ securing less than 60%, 65% & 70% marks on an average respectively, shall not be eligible for assessment.

It is clear that the criteria of 60% average marks which were

applicable for promotion to all levels was changed. Instead it was

the modified criteria provided for different marks average in

respect of different category of scientists. For scientist „B‟ and „C‟

it remained at 60% whereas for scientist „D‟ and „E‟ it was changed

to 65% and 70% per cent respectively. Since the petitioner was

Scientist „C‟ at that time aspiring for promotion to Scientist „D‟, in

his case the criteria remained the same namely securing not less

than 60% marks on an average.

4. It is thus clear that insofar as the petitioner is concerned, the

eligibility criteria fixed as per the rule is that the persons like the

petitioner who is Scientist ‟C‟ would not be eligible if they secure

less than 60% marks on an average on the basis of Internal

Screening. However, within two days of the publication of the

aforesaid Notification, the DRDO, Ministry of Defence issued

Circular dated 25th March, 1996 caption "Eligibility criteria and

methodology for promotion of scientists in DRDS cadre". In this

communication addressed to all the Directors of all the R& D Labs

& Establishments, the eligibility criteria for assessment for

promotion upto the level of Scientist „F‟ under DRDS was

provided as per details given in Appendix „A‟ to this letter. This

letter mentions that "the DRDS rules have been reviewed in

respect of rules and provisions governing the criteria and

methodology for promotion of scientists". Appendix „A‟

incorporates Table-I stipulating following eligibility criteria:-

"Eligibility Criteria for Assessment for promotion of Scientists under DRDS Scheme.

............................................................................................ Eligibility in 3 4 5 6 7 8 9 Years/Grades ............................................................................................

          B                 82   77    70    65    60      --   --
          C                 90   85    80    75    70      65   60
          D                 90   85    80    75    70      65   --
          E                 90   85    80    75    70      --   --

............................................................................................

NOTE: The marks indicated above are minimum marks to be obtained by the candidate averaged over maximum of previous five years."

For scientist „C‟ five years service is stipulated with 80%

minimum marks which is to be obtained by the candidate on an

average over maximum period of five years. When the turn of the

petitioner came for considering his candidature for promotion to

the Scientist „D‟, Internal Screening of the petitioner was done by

the Screening Committee alongwith others. The petitioner

secured 782 marks out of 1000 which would mean that the

percentage of marks secured by the petitioner was 78.2. Since it

was less than 80% as prescribed in letter dated 25th March, 1996,

the petitioner was not called for interview and thus was denied the

promotion to the post of Scientist „D‟. The petitioner felt

aggrieved by this act on the part of the respondent and filed O.A.

before the Tribunal. The petitioner, apart from others, raised

following two contentions in the said O.A.:-

(i) The eligibility criteria which was fixed by the statutory

rules framed under proviso to Article 309 of the

Constitution of India namely 60% marks was changed

by an administrative circular/communication dated

25th March, 1996 to the prejudice of the petitioner by

raising the bar to 80% as the eligibility criteria. He

thus contended that the statutory rules could not be

supplanted or amended by an administrative

instruction.

(ii) The Notification dated 8th March, 1986 vide which 60%

marks as eligibility criteria for assessment was

prescribed for Scientist „B‟ and „C‟, was published on

23rd March, 1996 and as per Rule 1 (2) thereof, this

amendment was to come into force on the date of its

publication in the official gazette. Likewise, the

communicated dated 25th March, 1996 could also be

enforced prospectively. On this premise, his submission

was that Screening Committee had taken into

consideration the confidential performance appraisal

reports of the petitioners pertaining to five years i.e.

1993 to 1997.

5. He thus argued that even it is presumed that the eligibility

criteria vide communication dated 25th March, 1996 was rightly

changed from 60% to 80%, the same was to be operated

prospectively and thus could not relate back to the year 1993 to

1995. To put it otherwise, his submission was that for the

purposes of eligibility, for the years 1993, 1994 and 1995, the

eligibility criteria to be taken was 60% and in respect of 1996 and

1997 it could be 80%. It was argued that in these two years, i.e.

1996 and 1997, the petitioner had secured 80% or above marks

and for the years 1993,1994, and 1995 he had secured more than

60% marks. He was thus eligible for consideration to the post of

Scientist „D‟ and should have been called for interview on this

ground as well.

6. The Tribunal has dismissed the O.A. of the petitioner vide

impugned orders dated 1st May, 2000. A perusal of the said

decision of the Tribunal would show that it has considered second

aspect of the matter namely the grant of retrospective effect

raised by the petitioner and has negatived that ground. There is

no consideration of the first ground of challenge raised in the O.A.

For this reason, in the writ petition, it is specifically stated that

though this ground was raised and argued, the same has not been

dealt with by the Tribunal. In any case, since it is a pure question

of law, we would like to deal with this argument.

7. We find force in this contention of the learned counsel for the

petitioner. It is clear from the narration of facts mentioned above

that the Defence Research and Development Service Rules are

promulgated in exercise of powers conferred by proviso to Article

309 of the Constitution of India and are thus statutory in nature.

These Rules were initially enforced vide Notification dated 30th

December, 1978 and amended from time to time. Insofar Rule- 8

(2a) (i) is concerned, which stipulates eligibility criteria, it was

amended again vide Notification dated 8th March, 1996 and

published in the official gazette on 23rd March, 1996. This

amendment, again, is carried out in exercise of powers conferred

by proviso to Article 309 of the Constitution of India. It clearly

stipulates the eligibility condition of securing 60%, 65% and 70%

marks for Scientist „B‟ „C‟ and Scientist „D‟ and „E‟ respectively on

the basis of last five years confidential performance appraisal

reports. Such eligibility criteria which are part of the statutory

rules, could not have been amended and/or altered by an

administrative decision and/or instructions. Letter dated 25th

March, 1996 modifies the aforesaid criteria, that too, to the

disadvantage of the petitioner in exercise of administrative

powers. It is well settled by catena of judgments of the Apex

Court that by an administrative instruction one cannot supplant or

amend the statutory rules including the following:-

                     (i)     Guman Singh Vs. State of Rajasthan &
                             Ors. 1971 (2) SCC 452 (Constitution
                             Bench)
                     (ii)    State of Punjab Vs. Madan Singh &
                             Ors. AIR 1972 SC 1429

(iii) State of Haryana Vs. Shamsher Jung, AIR 1972 SC 1546

(iv) S.N. Karkhanis & Ors. Vs. Union of India, AIR 1974 SC 2304 (Constitution Bench)

(v) D.K. Gupta & Ors Vs. MCD & Ors. 1979 (3) SLR 416

(vi) State of Maharashtra Vs. Chandrakanta, AIR 1981 SC 1990

(vii) Dr. Ms. Subhash Kaushal Vs. State of Punjab & Ors. 1982 (1) SLJ 684

(viii) K. Kuppuswamy & Anr. Vs. State of T.N. & Ors. 1998 (8) SCC 469

(ix) Dr. Rajinder Singh Vs. State of Punjab & Ors. 2001 (2) ATJ

8. Since the petition filed by the petitioner succeed on this

ground itself, it is not necessary to deal with the other contention

rested on the retrospective operation of the said rule. Accordingly

rule is made absolute. The impugned judgment dated 1st May,

2000 passed by the Central Administrative Tribunal is hereby set