Delhi High Court
Indian Foreign Service (B) ... vs Union Of India And Ors. on 29 January, 2014
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on January 10, 2014
Judgment Delivered on January 29, 2014
+ W.P.(C) 5348/2001
INDIAN FOREIGN SERVICE (B) GAZETTED
OFFICERS'ASSOCIATION, MEA, NEW DELHI & ORS.
..........Petitioners
Represented by: Mr.A.K.Behera, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Represented by: Ms.Meera Bhatia, Advocate for
R-1.
Ms.Jyoti Singh, Sr.Advocate with
Ms.Tinu Bajwa and Mr.Ashwarya
Sinha, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The challenge in this writ petition is to the order dated May 22,
2001 whereunder the Central Administrative Tribunal has dismissed OA
No.1777/1999 filed by the petitioners.
2. The issue which falls for consideration in this writ petition is
whether the Section Officers, are entitled to the relief of i.e. drawing the
eligibility list for promotion to the Grade-I posts of IFS(B), i.e. Under
Secretary by excluding the Private Secretary, with effect from 1999,
even though, the lateral entry of Private Secretary was stopped pursuant
to an amendment to the Rule 12 of 1964 Rules, on October 16, 2008?
3. The brief facts are that the members of the first petitioner herein
belong to the Integrated Grade-II and III Service of the General Cadre of
Indian Foreign Service, Branch 'B' [(hereinafter referred as IFS (B)],
which is governed by IFS(B) (Recruitment, Cadre, Seniority and
Promotion) Rules, 1964 [for short, Rules, 1964]. The IFS (B) consists of
the General Cadre, Stenographer Cadre and Cipher Sub-Cadre.
4. Pursuant to the recommendations of the IVth Central Pay
Commission, all posts of Senior Personal Assistants and Private
Secretaries were merged into a common pay scale of ` 650-1200 which
was the equivalent pay scale of Section Officers. The Rules, 1964 as
existed then contemplated through Rule 12 the post of Under Secretary
(Grade-I) to be filled by the Private Secretary and only half of the service
as Senior Personal Assistant and full service of the Private Secretary was
to be counted for eligibility. In view of this position, a Senior Personal
Assistant would reach in the promotion zone after 12 years as compared
to 8 years in the case of Section Officer. In view of the commonality of
pay scale, both the Cadres have become 8 years for reaching the
promotional zone.
5. The recruitment to Grade I of the General Cadre in terms of Rule
12 was as under:
(1) Subject to the provisions of sub-rule (2),
Vacancies in Grade I of the General Cadre shall be filled by
promotion of the permanent officers of the Integrated
Grades II and III of the General Cadre and of permanent
officers of the Selection Grade of the Stenographers‟ Cadre
who have worked as Section Officers in the Integrated
Grades II and III of the General Cadre for at least a period
of two years.
Provided that an officer of the Selection Grade of
Stenographers Cadre who has not worked in the Integrated
Grades II and III for the said period of two years shall also
be considered for promotion to the Grade I of the General
Cadre if he is otherwise eligible for such promotion and the
controlling authority, for reasons to be recorded in writing,
is satisfied that such officer had not worked in the
Integrated Grades II and III of the General Cadre owing to
exigencies of service.
(2) No person shall be eligible for promotion to
Grade I of the General Cadre unless he has rendered at
least eight (8) years‟ of approved service in his respective
Grade:
Provided that if any officer of the Integrated Grades
II and III of the General Cadre is considered for promotion
to Grade I of the General Cadre under this rule, all officers
senior to him in the Grade and belonging to the Schedules
Castes or the Schedules Tribes, who have rendered not less
than four years‟ of the approved service in the Grade, shall
also be considered for promotion.
(3) (a) Notwithstanding anything contained in sub-
rules (1) and (2) vacancies in Grade I decided to be filled
up from among members of the Scheduled Castes or the
Schedules Tribes, and for which eligible officers are not
available, shall be filled on the basis of results of a Limited
Departmental Competitive Examination held by the
Commission from time to time, in order of their merit.
(b) The Limited Departmental Examination, referred
to in clause (a) shall be held in accordance with the
regulations made by the Government of India in the
Ministry of External Affairs.
[Sub-rules (4), (5) & (6) omitted vide Gazette
(Extraordinary) Notification No. Q/CAD/792/1/95 dated
11th December, 1995]
(7) For the purpose of the rule, the Controlling
Authority in consultation with the Commission:-
i) Shall prepare a Select List for Grade I of the
General Cadre on the basis of merit from amongst officers
eligible for promotion under sub-rule (i) and
ii) may revise such Select List from time to time.
(8) The Select List referred to in sub-rule (7) shall be
prepared and revised in accordance with regulations made
in this behalf by the Controlling Authority in Consultation
with the Commission.
(9) Notwithstanding anything contained in sub-
rules(1) to (8), any vacancy in Grade I of the General Cadre
may, in exceptional cases and in public interest, be filled by
the Controlling Authority, in consultation with the
Commission, by transfer of any officer holding a permanent
Group „A‟ ex-cadre post in the Ministry of External Affairs.
(10) Seniority of an officer referred to in sub-rule (9)
in Grade I of the General Cadre shall be such as may be
determined by the Controlling Authority in consultation
with the Commission.
(11) Seniority of an officer referred to in sub-rule (9)
in Grade I of the General Cadre shall be such as may be
determined by the Controlling Authority in consultation
with the Commission.
6. The Rule 12 of Rules, 1964 as reflected above would reveal that
an officer of Selection Grade in the Stenographer Cadre, who had
worked in the Integrated Grade of II and III i.e. Section Officer for the
period of two years shall be considered for the promotion to Grade I of
the General Cadre, if he is otherwise eligible for such promotion and the
Controlling Authority for the reasons to be recorded in writing, is
satisfied that such officer had not worked in the Integrated Grade of II
and III of General Cadre owing to exigency of service.
7. In the year 1997, the Vth Central Pay Commission has made
recommendations in para 45.37 whereby it, inter alia, recommended that
lateral entry has been causing acute stagnation in the CSS Section
Officers' Cadre, the Private Secretaries should avail promotion in its
own line, the lateral entry be stopped. These recommendations of the
Pay Commission were universally made applicable to all the
departments/services including IFS (B).
8. The grievance of the petitioners before the Tribunal primarily was
that in view of the rules contemplating promotion to the post of Under
Secretary from the Stenographer Cadre, their actual time of promotion
has got deferred to several years and even after the Vth CPC
recommendations, which recommended promotion from the Private
Secretary in its own line, 59 Private Secretaries have been promoted as
Under Secretary out of the total cadre strength of 147 in the Ministry of
External Affairs at their cost.
9. For the sake of convenience, we reproduce the reliefs prayed for
by the petitioners in the original application:
"(a)Direct the respondents to implement the
recommendations of the 5th Central Pay Commission
contained in para 45.37 Clause (iv) in respect of the
stoppage of lateral entry of the Private Secretaries in
General Cadre Grade-I of IFS Branch-B.
(b) This Hon‟ble Tribunal may be further pleased to
declare the portion of Rule 12(i) from X-1 to X-2 in
Annexure-X which provides for lateral entry of
permanent officers of Stenographers Cadre in Grade-I of
general cadre and detailed above in para 5.25 of IFS(B)
as illegal, discriminatory and unconstitutional.
(c) Issue directions to the respondents not to include
Private Secretaries in IFS (Branch-B in future in the
select list for promotions to Grade-I of General Cadre of
IFS (Branch-B).
(d) Direct the respondents not to prepare interpolated list
of Private Secretaries and Section Officers of IFS
(Branch-B) general cadre for consideration of Officers to
the post of Under Secretary Grade-I of General Cadres
IFS (Branch-B); for the year 1998-99 onwards.
(e) Direct the parity of scale is not the criteria for
promotion to higher posts in a service.
(f) Direct the respondents to discontinue lateral entry of
Private Secretaries in Grade-I of General Cadres of IFS
(Branch-B)".
10. It was the case of the petitioners that the duties attached to the post
of Private Secretaries and Section Officers are absolutely distinct and
different and those of Section Officers are more onerous carrying more
responsibilities and as such, there cannot be any comparison between
them. It was stated in the original application that if this rule of
considering the Stenographers' cadre for promotion in Grade-I is not
stopped, then, there is a likelihood that the half of the total cadre strength
of the Under Secretaries would be occupied by the officers from the
Stenographers' Cadre. It was the case of the petitioners that the
government has not accepted the recommendations contained in Para
45.37 (iv) regarding stoppage of lateral entry of Private Secretary to the
cadre of Section Officer but, they would contend that the government
has accepted the recommendation relating to Private Secretaries,
whereby additional post of Principal Private Secretary and Sr. Principal
Private Secretary have been created. In other words, without stopping
the lateral entry to Grade-I of IFS (B), they have been given an option to
opt for Principal Private Secretary or Under Secretary, which is unfair
and unjust practice. The petitioners relied upon the Constitutional
Bench' Judgment of the Supreme Court reported as AIR 1973 SC 1088
Purushottam Lal & Ors. Vs. UOI & Anr. to contend that the non-
implementation of the report of the pay commission in respect of certain
post is violative of Article 14 and 16 of the Constitution of India. We
may only note that petitioners have challenged the vires of that portion
of Rule 12(1) to the extent it provides for lateral entry of permanent
officers of Stenographers' cadre in Grade-I of General Cadre as being
illegal and discriminatory and unconstitutional.
11. It was the case of the respondent No. 1/Ministry of External
Affairs that the Rule 12 of the Rules, 1964 provides promotion from
Stenographers' Cadre to Grade-I of IFS (B). They have contended that
the recommendations of the Vth Central Pay Commission which is a
recommendatory body only, it is for the government to accept it or not.
They would state that the recommendations of the IVth Central Pay
Commission was made in the year 1986 and the same had been
challenged only in the year 1999. Meaningfully read, the respondent No.
1 has justified the existence of the Rules. They would also contend that
this Rule governing lateral entry has been continuing for several years,
the said rule stood the test of time. The Rule had not affected the Cadre
strength of the Section Officers.
12. Further, the respondent has justified the non-implementation of the
recommendation of the Vth Central Pay Commission in para 45.34 on
the ground that the same was not effected/nor implemented in CSS cadre
also.
13. We note that the Stenographers' Association had also impleaded
itself before the Tribunal. They also take the similar pleas as has been
taken by the Ministry of External Affairs. That apart, they contend that
the Stenographers suffer from acute stagnation. They would also contend
that as a Private Secretary, they also perform equally onerous duties.
Further, they justify the recommendation of the Vth Central Pay
Commission, providing avenues like P.P.S. and Sr. P.P.S. by contending
that an officer of the Stenographers' Cadre can go only upto the level of
Sr. Principal Private Secretary, whereas an officer of General Cadre of
IFS(B) can go upto the level of Secretary in the Ministry. The
implementations of the recommendations have improved the
promotional avenues of the Stenographers' cadre, by giving an option for
promotion either to the Under Secretary grade or for Principal Private
Secretary. It was their case that they only occupy less than 50% post of
Under Secretary.
14. The Tribunal in the impugned order has dealt with all the
contentions raised in the following manner:
(i) As regards the merger of pay scale of Senior Personal
Assistant and Private Secretary and bringing it to the
equivalent pay scale of Section Officer had adversely
affected their promotional avenues as the actual time taken
for promotion to Grade-I as Under Secretary has become 15
years instead of 8 years, the Tribunal held that the Section
Officers have not challenged the rule for these long years and
once the decision of the Government has been implemented,
it would not be in the fitness of things and interest of service
to unsettle the settled position. That apart, it is belated claim
of the petitioners to challenge the merger on the basis of the
recommendations as the same would be barred by limitation
under Section 21 of the Administrative Tribunals Act, 1985.
(ii) In so far as the contention that despite Vth Central Pay
Commission recommending in Para 45.37 relating to Central
Secretariat Stenographers' Service which equally apply to
IFS(B) for discontinuance of lateral entry of Private
Secretaries to the grade of Under Secretaries and not
implementing the same, is without justification. Accepting a
part of the whole recommendations and not accepting the
discontinuance of lateral entry, is arbitrary. The Tribunal was
of the view that since the Government has not accepted the
recommendation for stopping of the lateral entry on the
ground there exist a statutory rule which permits lateral entry
of Private Secretaries into the IFS Grade-I and the same
would over-ride administrative instructions or decision of the
executive body like the Central Pay Commission. In support,
the Tribunal relied upon the judgment of the Supreme Court
in 1998 (2) SCC 162 Suryanarayan Sahu Vs. Council of
Scientific & Industrial Research, and distinguished the
judgment relied upon by the petitioner in Purushottam Lal‟s
case (supra) on facts inasmuch as in Purushottam Lal‟s case,
the recommendations were accepted with regard to certain
employees and same benefit was denied to the other set of
employees on the ground being violative of Article 14 and 16
of the Constitution of India.
(iii) Insofar as the contention of the petitioners that the lateral
entry has adversely affected their (SOs) promotional avenues
and the Private Secretaries have taken over a substantial
portion of their promotion quota for the post of Under
Secretary in Grade-I is concerned, the Tribunal held that the
promotion to the Grade of Under Secretary is considered
from interpolated list of eligible Section Officers and Private
Secretaries, in which the Section Officers of the particular
year are given preference over the Private Secretaries of the
same year in placement to the interpolated list. In other
words, the Tribunal was of the view that Section Officers are
given due regard in the matter of promotion. The Tribunal
was also of the view that it is not the case of the petitioners
that the Private Secretary who has been promoted to the post
of Under Secretary has been found to have discharged his
functions in a less efficient manner to come to a conclusion
that the Private Secretaries are not in a position to discharge
the responsibilities with expedience. The Tribunal also found
that there is no reduction in the cadre strength on the ground
that the posts are occupied by the Private Secretaries which
could have affected the promotional avenues of the Section
Officers for promotion to Grade-I of IFS (B). The Tribunal
held that the promotion is being affected under Rule 12 of the
Rules, 1964, which have been duly approved by the DOP&T
and the UPSC. The Tribunal was also of the view that the
Private Secretaries promoted as Under Secretaries constitute
only 28% as compared to Section Officers as Under
Secretaries i.e. 72%.
(iv) Insofar as the challenge of the petitioners to the portion
of Rule 12 of the Rules, 1964 which permits lateral entry to
Private Secretaries for their promotional avenues to Grade-I
is discriminatory is concerned, suffice would it be to say that
the Tribunal was of the view that the Rule was in existence
since 1964 and the action bringing Private Secretaries in
Grade-I has started in the year 1972-73 and the grievance has
been made in the year 1999, and therefore, the Tribunal has
no jurisdiction to go into the said aspect at this point of time.
15. Mr. A.K.Behera, the learned counsel for the petitioners has taken
us to the provisions of Rule 12 of the Rules, 1964 and made almost
similar submissions as advanced on behalf of the petitioners before the
Tribunal. The thrust of the argument of Mr. Behera was that because of
the Rule position, the officers belonging to Stenographers' grade had
occupied the maximum posts of the IFS (B) Grade-I which is arbitrary.
He has took us through the recommendations of the Vth Central Pay
Commission to highlight the recommendations of the Commission in
Para 45.37 wherein in para (iv), the Pay Commission, inter alia,
recommended that the lateral entry of Private Secretaries to the Grade of
Under Secretaries should be discontinued. He would further state that
even though the said recommendations was under the heading of Central
Secretariat Stenographers' Service, the same was made applicable to the
other services in terms of Para 45.38 which, inter alia, stated that since
the IFS Grade (B) Railway Board Stenographers' Service, Armed Forces
Headquarters' Stenographers' Services are structured on the lines of
Central Secretariat Stenographers' Service, the benefit of the
recommendations made in sub-para (i) to (vi) which included the
recommendations in para (iv), be extended to the members of the
service. Mr. Behera would state that unfortunately, this para (iv) was not
accepted by the government even though the recommendations in the
earlier paras (i) to (iii) were accepted way back in the year 1997. He
would state that it was only on October 16, 2008 when the
recommendations given in sub-para (iv) of para 45.37 have been
accepted by the Government whereby they have amended Rule 12 of the
Rules, 1964 by stopping the lateral entry to the Grade-I of IFS(B) from
the Stenographers' Cadre. He would submit that between the period, the
recommendations were made and the date when the amendment had
taken place in Rule 12, the petitioners continued to suffer and their
valuable rights had been taken away by continuing to promote the
officers from the Stenographers' Cadre at the cost of Section Officers.
Meaningfully read, he would state that the promotions which have been
made between the period 1999 to 2008, need to be set aside. He relies
upon the judgment of this Court in the case of (1996) 7 SCC 256
Purushottam Lal‟s case (supra), Joint Action Council of Service
Doctors‟ Organizations & Ors. Vs. Union of India & Anr., and 1987
(Suppl.) SCC 18 P. Parmeshwaran & Ors. Vs. Secretary to the
Government of India, in support of his case.
16. We may state here that the petitioners filed a CM No. 19212/2012
wherein, they, inter alia, sought a prayer that the respondent be directed
to prepare a fresh select-list for filling the post of Under Secretary which
is post of General Cadre from the year 1999 onward.
17. On the other hand, Ms. Meera Bhatia, Advocate appearing for the
respondent No. 1 would justify the actions on the basis of the reply filed
by the respondent No. 1 before the Tribunal and in this Court. Ms. Jyoti
Singh, Sr. Advocate representing the Stenographers'
Association/respondent No. 4 would contest the challenge of the
petitioners by stating that the challenge to the Rule 12 of the Rules,
1964 has been made after 35 years of its existence and the same is barred
by limitation. She would further submit that the recommendations of the
IVth Central Pay Commission are different from the Vth Central Pay
Commission. In any case, the government had already implemented the
resolution and recommendations to the extent that no justification exists
for maintaining a distinct Stenographers' Cadre in any government
office. She would justify the lateral entry of the officers of the
Stenographers' Cadre to the Grade-I of IFS (B). She would submit that
at no point of time, the provision of lateral entry of officers of the
Stenographers' Cadre had affected the chances of the promotion of the
Section Officers. She would submit that the Section Officers always had
more vacancies for their promotion to the post of Under Secretaries as
compared to the post of Private Secretary. In fact, according to her, there
was a stagnation in the post of Private Secretary. She tried to highlight
the disparity between the Section Officers and Private Secretaries. She
would state that lateral entry of Stenographers has stood the test of time
for over 35 years and the attempt of the petitioners to seek relief with
retrospective effect from the year 1999 is uncalled for. Moreso, Rule 12
provided Stenographer Cadre as a source for promotion to the post of
Under Secretary. She relied upon the judgment of the Supreme Court in
the case 1988 2 SCC 201 K.B. Subba Rao and Ors. Vs. Govt. of Andhra
Pradesh, to contend that the conditions cannot be altered with
retrospective effect to the disadvantage of a government servant.
18. We heard this matter on several occasions including on October
29, 2013 on which date we thought it fit to seek factual information as to
how many Private Secretaries earned promotion to the post of Under
Secretaries after August 18, 1999 till the year 2008. Similarly, how
many Section Officers earned promotion to the post of Under Secretaries
in the same period. Information was also asked as to how many Private
Secretaries and Sr. Private Secretaries earned promotion as Principal
Private Secretary and also how many Principal Private Secretaries earned
promotion to the post of Sr.Principal Private Secretaries, and how many
Under Secretaries earned promotion to the post of Deputy Secretary
during the said period. The affidavit filed by the respondent No. 1 gives
the following position:
(a) Number of Private Secretaries promoted as
Grade I of General Cadre of IFS 'B'
S. No. Recruitment year Total number of officers
1 1999-2000 Nil
2 2000-01 Nil
4 2002-03 Nil
5 2003-04 Nil
(b) Number of Section Officer promoted as Grade I
of General Cadre of IFS 'B'
S. No. Recruitment year Total number of officers
4 2002-03 Nil
(c) Number of Private Secretaries promoted as
Principal Private Secretary
S. No. Recruitment year Total number of officers
2 2000-01 Nil
(d) Number of Principal Private Secretaries
promoted as Senior Principal Private Secretary
S. No. Recruitment year Total number of officers
(d) Number of Under Secretaries promoted as
Deputy Secretary
S. No. Recruitment year Total number of officers
2. No. of officer promoted in different grade
after stoppage of lateral entry:
(a) Number of Private Secretaries promoted as
Grade I of General Cadre of IFS 'B'
S. No. Recruitment year Total number of officers
1 2008-09 Nil
2 2009-10 Nil
3 2010-11 Nil
4 2011-12 Nil
5 2012-13 Nil
6 2013-14 Nil
Total Nil
(b) Number of Section Officer promoted as
Grade I of General Cadre
S. No. Recruitment year Total number of officers
(c) Number of Private Secretaries promoted as
Principal Private Secretaries
S. No. Recruitment year Total number of officers
3 2010-11 Nil
(d) Number of Principal Private Secretaries
promoted to Senior Principal Private Secretaries
S. No. Recruitment year Total number of officers
(d) Number of Under Secretaries promoted to
Deputy Secretaries
S. No. Recruitment year Total number of officers
19. That apart, the respondent No. 1 has tried to justify the reasons for
not implementing the recommendations of the Para 45.37 (iv) in the
following manner:
"3. The argument that the MEA was lethargic in
timely implementation of the recommendations of the
5th CPC is baseless and without merit. MEA had
initiated action to implement the recommendations of
5th CPC on the stoppage of lateral entry of
Stenographers in the Grade I of IFS (B) (Under
Secretary) without any loss of time. As the IFS (B) is
broadly structure on the lines of the comparable
services in the Central Secretariat, which is controlled
by DoPT, a reference was sent to that department in
September, 1998 to ascertain the position on their side.
We were informed by DoPT that this issue is under
consideration of the Government of India and they had
not arrived at any decision. Therefore, in the absence
of any decision on the above issue, it was considered
administratively prudent to await outcome of the
exercise already under process in DoPT as a policy
matter. In this connection, MEA‟s reference to DoPT
and that Department‟s response of 30th December,
1998 respectively is placed at Annexure-I and
Annexure-II.
4. Before any decision could be arrived at, the CSS
Gazetted Officers‟ Association had filed a petition with
Hon‟ble CAT, Principal Bench, New Delhi in July,
2005, praying against the discontinuation of lateral
entry in the CSS. With this, the larger question of
stoppage of lateral entry also became subjudice and it
was only prudent for MEA to await the outcome of this
legal process before examining the matter further
based on its functional and other utility to the MEA.
5. Later on in April, 2008, the Hon‟ble CATT
dismissed the petition filed by the CSSS Gazetted
Officers‟ Association against the stoppage of lateral
entry. DOPT on their part had taken an administrative
decision to stop lateral entry with effect from February
2008 (Annexure III). These developments become an
important input in the MEA‟s examination of the matter
which eventually led to the stoppage of lateral entry in
MEA with effect from October 2008 (Annexure IV).
6. As is evident from the above facts, the MEA‟s
position was based on administrative prudence and
logic and was not the result of any lethargy in
implementing the decision of the 5th Pay Commission.
As stage earlier, while MEA is the cadre controlling
authority in respect of IFS „B‟ and is fully competent to
take decision with regard to such recommendation, it is
always prudent and advisable to avoid any significant
diversions and be in sync with the larger CSS Rules, on
which the IFS „B‟ is broadly modeled, keeping in view
with the post precedents.
7. For the sake of comparison and to understand the
implications of the relatable issues under
consideration, a demonstrative comparison of the
Schedule of Implementation of Pay Commission‟s
recommendations in MEA and CSS is as follows:
S. 5th Pay CSS approval MEA's
No. Commission approval
Recommendation
1. As per para 45.37 DOPT vide MEA vide
(1) "Officers order order no.
holding the post no.20/27/98- Q/CCP/576/1
of Additional CS-II dated 68/99 dated
th
Secretary or 25 January 24th February,
equivalent rank 1999 2000
may be provided approved approved
stenographic upgradation of upgradation of
assistance at the 58 posts of 22 posts of
level of Principal PPS to the PPS to the
Private Secretary level of Sr. level of Sr.
PPS PPS
(Annexure V) (Annexure
VI)
2. As per para 45.37 DOPT vide MEA vide G.S.
(1) "Lateral entry G.S. R. 64 (E) R. 738(E)
of Private dated 1st dated 16th
Secretaries to the February October 2008
grade of Under 2008 stopped vide gazette
Secretary should the lateral notification
be entry of stopped the
discontinued"* Personal lateral entry
Secretaries o of Personal
the post of Secretaries to
under the post of
Secretary Under
(Annexure Secretary/Gra
VII) de-I of IFS (B)
(Annexure
VIII)
20. It is noted that the petitioners as well as the Stenographers'
Association have filed their response to the additional affidavit.
21. Having heard the counsel for the parties, the only issue which now
needs to be adjudicated is whether the select list for filling the post of
Under Secretary i.e. Grade-I of the IFS (B) with effect from 1999 as
prayed for by the petitioners in the CM referred above is required to be
prepared or not.
22. We may only state here that this aspect was not raised before the
Tribunal for the reason when the OA was decided, the OM dated
October 16, 2008 was not issued. Since this is a development which has
taken place in the interregnum during the pendency of the writ petition,
we thought it fit to consider this issue also, rather than remanding the
matter back to the Tribunal. Having considered the rival submissions of
the counsel for the parties, what really falls for our consideration is that
whether a revised list need to be prepared for promotion to the post of
Under Secretary, Grade-I. For this, the primary intent of ours was to see
whether the non-amendment of Rule 12 of Rules, 1964 pursuant to the
recommendations of Vth Central Pay Commission was intentional
without any justification which has resulted in grave prejudice to them.
From the statistics which have been filed by the official respondents and
reflected above, it is noted here that number of Section Officers
promoted to the post of Under Secretary, Grade-I between the year 1999
to 2008 are 173 as compared to Private Secretaries promoted to Principal
Private Secretary, who are 75 in total. Similarly, we find that number of
Private Secretaries promoted the post of Under Secretaries between the
year 1999 to 2008 were only 53. In other words, the ratio of Section
Officers getting promoted to the post of Under Secretary was much
higher than the Private Secretaries getting promotion to the post of
Under Secretary. We do not see many promotions have been made from
the post of Private Secretaries to the Grade-I/Under Secretary which had
actually affected/delayed the promotion of Section Officers. To that
extent, no prejudice has been caused to the Section Officers. In fact, we
note with approval, the reasoning given by the Ministry for the delay that
has occurred in effecting the changes in the Recruitment Rules stopping
the lateral entry. The lateral entry in the CSS Cadre was also effected
only on February 01, 2008. The respondent No. 1/Ministry of External
Affairs, within no time, stopped the lateral entry immediately thereafter
on October 16, 2008.
23. The relief as sought for by the petitioners for redrawing of
eligibility list to the Grade-I of IFS (B) i.e. Under Secretary is totally
uncalled for and cannot be granted inasmuch as the same would be
contrary to the Rule position under Rule 12 of the Rules, 1964 and no
direction of this nature can be given against a Rule position. That apart,
it would create an administrative inconvenience by reviewing all the
promotions which have been effected between the period 1999 to 2008,
statistics of which has already been reflected above.
24. Insofar as the reliance placed by the learned counsel for the
petitioners on the judgment of the Supreme Court referred to above, the
same would not be applicable in the facts of this case. In Purushottam
Lal‟s case (supra), the Supreme Court was dealing with the case where
the recommendations of the Pay Commission have been implemented
with regard to some employees denying the benefit to other set of
employees. It is in this background the Supreme Court held that it is a
case of violation of Article 14 and 16 of the Constitution. In so far as the
judgment of the Supreme Court in P. Parmeshwaran‟s case (supra) is
concerned, the same is also on the same lines of Purushottam Lal‟s case
(supra). The Supreme Court has said that implementations of the Pay
Commission's recommendations should be the same for all categories of
employees. In the present case, the petitioners relied upon the
recommendations made in the Vth Central Pay Commission in the year
1996. It is noted that the original application was filed by the petitioners
only in the year 1999 seeking implementation of the recommendations in
Para 45.37 (clause iv). Even otherwise, it is seen that the respondents
had justification in not implementing the recommendations. In fact, this
Court also note that the recommendations primarily with regard to the
lateral entry in the Central Secretariat Stenographers' Service which
were also made applicable to IFS (B), the lateral entry was stopped only
in the month of February 2008. Immediately after that, even the lateral
entry in IFS Grade 'B' was stopped. Insofar as the judgment of the
Supreme Court in the case of Joint Action Council of Service Doctors‟
Organizations (supra) is concerned, the same would also have no
bearing insofar as the facts of this case are concerned, for the reason that
the Supreme Court has held that rejection of recommendations of the Pay
Commission' report by the government cannot be rejected without
cogent reasons. In this case, the lateral entry having been stopped in the
year 2008, no direction for reviewing the select list with effect from
1999 can be given.
25. To sum up, the petitioners by seeking redrawing of the select list
with effect from 1999 are in effect seeking amendment of Rule 12 of the
Rules, 1964 from a back date instead of October 16, 2008. Not only
that, they are seeking promotions on the basis of the amendment from a
back date. Such a relief cannot be granted. We only note for benefit the
judgment of the Supreme Court in AIR 1990 SC 405 P. Mahendran Vs.
State of Karnataka, wherein the Supreme Court in Para 5 and 7 held as
under:
"5. It is well-settled rule of construction that every statute
or statutory Rule is prospective unless it is expressly or by
necessary implication made to have retrospective effect.
Unless there are words in the statute or in the Rules
showing the intention to affect existing rights the Rule
must be held to be prospective. If a Rule is expressed in
language which is fairly capable of either interpretation
it ought to be construed as prospective only. In the
absence of any express provision or necessary
intendment the rule cannot be given retrospective effect
except in matter of procedure. The amending Rule of 1987
does not contain any express provision giving the
amendment retrospective effect nor there is anything
therein showing the necessary intendment for enforcing
the Rule with retrospective effect. Since the amending
Rule was not retrospective, it could not adversely affect
the right of those candidates who were qualified for
selection and appointment on the date they applied for
the post, moreover as the process of selection had already
commenced when the amending Rules came into force.
The amended Rule could not affect the existing rights of
those candidates who were being considered for selection
as they possessed the requisite qualifications prescribed
by the Rules before its amendment moreover construction
of amending Rules should be made in a reasonable
manner to avoid unnecessary hardship to those who have
no control over the subject matter.
6. X X X X X
7. In view of the above the appellants' selection and
appointment could not be held as illegal as the process of
selection had commenced in 1983 which had to be
completed in accordance with law as it stood at the
commencement of the selection. The amended Rule could
not be applied to invalidate the selection made by the
Commission. Strangely the Tribunal did not follow the
latest authority of this Court as laid down in Calton's case
(AIR 1983 SC 1143), on the ground that the view taken in
that case was contrary to the Constitution Bench decision
of this Court in State of Andhra Pradesh v. T.
Ramakrishna Rao, (1972) 2 SCC 830 : (AIR 1972 SC
2175). We have carefully considered the decision but we
do not find anything therein contrary to the view taken in
Calton's case".
26. In view of the above, we do not see any merit in the writ petition
and the same is dismissed with no order as to costs.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JANUARY 29, 2014
akb
