Delhi High Court
Shri Ravinder Kumar Jha And Ors. vs Union Of India And Ors. on 21 January, 2015
Author: S.Ravindra Bhat
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reservedon: 02.09.2014
Pronounced on: 21.01.2015
+ W.P.(C) 209/2013, C.M. NOS.439/2013, 10048/2013, 14089/2013,
2708/2014, 7494/2014, 7498/2014 & 10251-10253/2014
SHRI RAVINDER KUMAR JHA AND ORS...........Petitioners
Through: Ms. Jyoti Singh, Sr. Advocate with Sh.
Padma Kumar, Sh. Sameer Sharma and Sh.
Amandeep Joshi, Advocates.
Versus
UNION OF INDIA AND ORS.
Through: Sh. N. Nageshwar Rao, ASG with Sh.
Kirtiman Singh, CGSC with Sh. Waize Alinoor,
Advocates, for UOI.
Sh. M.K. Bhardwaj, Advocate, for Respondent
Nos. 3 to 37.
Sh. Sandeep. P. Aggarwal with Ms. Soumyaajit
Pani, Advocate, for impleaded respondents.
Sh. Amit Gupta, Advocate, for the applicants in
C.M. No.10251/2014.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
MR. JUSTICE S. RAVINDRA BHAT
%
1. The petitioners are aggrieved by an order of the Central
Administrative Tribunal (CAT) dated 27-09-2012 in OA 248/2012. The
W.P.(C) 209/2013 Page 1
present writ petitioners were impleaded as contesting respondents in those
proceedings before the CAT. The original applicants (referred to as "the
applicants") had filed the application, challenging the revision in seniority in
the cadre of Upper Division Clerks (UDC) in the Central Secretariat Clerical
Service (CSCS). By the impugned order, CAT accepted their contentions
and allowed the application.
Facts
of the case
2. The parties belong to the CSCS, and are governed by the CSCS Rules,
1962. CSCS consists of two cadres, i.e. Lower Division clerks (LDCs), and
Upper Division Clerks (UDCs), and a separate cadre Unit in respect of those
two grades of CSCS exists for each Central Government Ministry. The
select list for UDCs in each such cadre unit is determined by the Department
of Personnel & Training ("DoPT"). All LDCs who have completed eight
years approved service and possess the Benchmark "Good" in their Annual
Confidential Reports/Annual Performance Appraisal Reports
("ACRs/APARs") are eligible for promotion as UDCs on seniority-cum-
merit basis. The CSCS Recruitment Rules (RRs) also provides for
accelerated promotion to the UDCs' level. 75 % of UDCs vacancies are
filled up by way of Seniority-cum-Merit (i.e. "seniority quota"), and the
balance 25% UDC vacancies are filled up by way of a Limited Departmental
Competitive Examination ("LDCE"), the eligibility criteria for which is five
years of qualifying service, with no prescribed benchmark. LDCE is
governed by the CSCS (Upper Division Grade LDCE) Regulations, 1966
("LDCE Regulations"). LDCE promotees to the cadre of UDC do not have
to wait for three more years for their turn for promotion by virtue of
seniority-cum-merit quota (SQ) eligibility qualifying service, and can
W.P.(C) 209/2013 Page 2
"jump" the queue, to occupy 25% of the vacancies in the cadre of UDCs.
Those who do not appear in the LDCE tests, or are not successful in it, wait
out their turn to become UDCs by virtue of seniority against the 75%
seniority-cum-merit (SQ) quota for the recruitment to the UDCs grade, or
might choose to take their chance in the next two LDCE processes
conducted in between, after completion of their sixth and seventh years of
service.
3. There was, apparently, acute stagnation in the posts of Deputy
Secretary, Under Secretary, Section Officer and Assistants of Central
Secretariat Service (hereafter referred to as "CSS") of the Central
Government. To remove such stagnation in the cadres of CSS and CSCS,
the Government of India decided in the year 2001 to re-structure the cadre of
CSS, including its feeder cadre of CSCS. A Committee was constituted for
this purpose and it submitted its report in February, 2002. The
recommendations of the said Cadre Restructuring of CSS were considered
by the DoPT, and some of the recommendations were placed before the
Union Cabinet. The Cabinet approved these recommendations on
03.10.2003. Some of the recommendations approved by the Cabinet were (a)
the creation of 10 posts in the grade of Director; (b) fixation of cadre
strength of Deputy Secretary at 330 and Under Secretary at 1400 by creation
of 54 posts; (c) fixation of cadre strength of Section Officers to 3000 by
creating additional 1405 posts. No additional posts in the Assistants' grade
was created, as the percolation of vacancies in the Assistants' grade and
UDC grade from the additional posts created in higher posts was to remove
the stagnation in these grades as well. This was mentioned in the Cabinet
Note. Resultantly, an overall 1469 additional posts were created in 2003 in
W.P.(C) 209/2013 Page 3
CSS and thereafter, the sanctioned strength of various posts in CSS fixed as
on 03-10-2003 was as follows: (i) Director: 110; (ii) Dy. Director: 330; (iii)
Under Secretary 1400; (iv) Section Officer 3000 (v) Assistants 4904 (No
additional vacancies were created for this cadre).
4. The vacancies in the posts of Deputy Secretary, Under Secretary and
Section Officer, it is contended, were filled up against Select List year 2003
(Select List Year means a recruitment Year and runs from 1st July to 30th
June of the next year) and resulted in a chain of vacancies in the grade of
Assistants. These vacancies in Assistants' grade were also filled up against
the Select List year 2003, but after several years, in the following terms:
(a) The posts in Deputy Secretary were filled up in 2008 by O.M. No.
4/1/2007-CS.I (D) dated 26-12-2008, against Select List Year 2003.
(b)The posts in Under Secretary were filled up in 2009 by O.M. No. 5l16l/
2007-CS.l dated 25-08- 2009 against Select List Year 2003.
(c) The posts in Section Officer were filled up in 2006 and 2008 through
O.M. No. 5/25/2004-CS.I dated 05-06-2006 and 12-08-2008, against Select
List Year 2003.
(d)The posts in Assistant were filled up in 2009 through O.M. No. 7/3/2003-
CS.II dated 14-07- 2009 against select List Year 2003.
5. In terms of the Union Cabinet approval, the chain of vacancies,
arising out of the first Cadre Restructuring of CSS in the Assistants' grade
were to be filled up 50% by seniority and 50% by special LDCE. The
Central Government constituted a Committee to ascertain the exact
vacancies arising against the Select List year 2003 in the Assistants' Grade.
That Committee determined the figure to be 2151 (1469 chain of vacancies
percolated down from promotions in higher posts such as Director, Deputy
W.P.(C) 209/2013 Page 4
Secretary, Under Secretary and Section Officer and from 10% cut each year
by not filling total sanctioned strength 682 vacancies were restored). The
Committee therefore recommended the filling up all 2151 posts in the
Assistants' grade to remove acute stagnation in the grade of Upper Division
Clerk, as they were stagnating for more than 20 years. The recommendations
of the Committee were approved by the DoPT, and all these 2151 chain of
vacancies of Assistants' grade were filled up from eligible Upper Division
Clerks of CSCS in the year 2009 against Select List Year 2003. The next
step concerned the filling up of the said vacancies in the UDC cadre (after
promotion to the cadre of Assistants). Here, the 2151 vacancies were
notified by amendment of CSCS Rules on 08-11-2010. These vacancies
were made effective for UDC cadre from 03-10-2003. The Central
Government issued office Memorandum to fill these vacancies. The Central
Government also later issued a seniority list, calling for comments and
objections from the concerned officials, which sought to revise the seniority
in the cadre of UDCs by two different Memoranda- on 05-10-2010 (for the
selection year 2006) and on 20-10-2010 (for the selection year 1993-2005).
Proceedings before the CAT- the applicants' contentions
6. The applicants questioned the revision in seniority, contending that it
amounted to giving effect to retrospective seniority from the year in which
UDC vacancies accrued and from points in time when actually there were no
vacancies with there being no resultant promotions. The applicants relied on
the decisions of the Supreme Court in State of Bihar vs. Akhouri Sachindra
Nath : 1991 SCC (L&S) 1070, State of Bihar vs. Bateshwar Sharma 1997
(4) SCC 424 and State of Uttaranchal vs. Dinesh Kumar Sharma 2007 (1)
W.P.(C) 209/2013 Page 5
SCC 683, in which it was held that seniority cannot be given with
retrospective effect. They also relied on Uttaranchal Forest Rangers
Association (Direct Recruit) & Ors. vs. State of U.P. and Ors 2006 (10)
SCC 346. The Applicants argued that the date of occurrence of vacancies
could not therefore be relevant for the purpose of determining the seniority.
They contended that the Central Government mis-applied OMs dated 3.7.86,
4.11.92 and 3.3.2008. It was also contended that the ante-dated promotions
given with retrospective effect were inter alia, to the applicants' juniors,
who had actually appeared in and failed in the LDCE examinations held
from 2004 onwards. The applicants also relied on the fact that their seniority
had been finalized way back in 2005, and an order in respect of that was also
issued in that regard in 2011. The Central Government's action, declaring
that the said list was only a provisional seniority list- and not a final one-
was also questioned.
7. The applicants further argued before CAT that the presumption of
ante-dated availability of vacancies in the year 2003, the failure to consider
that when all the yearly identified vacancies in the UDCs grade of CSCS had
been consumed on a year to year basis, resulting in retrospective promotion
and seniority to certain persons, would be detrimental to their accrued rights,
i.e., incumbent UDCs promoted earlier on substantive basis. These entrants,
shown to be part of the cadre on the basis of having qualified the LDCE held
in various years since 2004 onwards, were likely to be promoted to the posts
of Assistants (which is the entry grade in CSS).
8. The applicants argued that they fulfilled the eligibility conditions for
appearing at the LDCE, and had appeared in the LDCE examinations held
during the years 2004 to 2009, and the Staff Selection Commission (SSC,
W.P.(C) 209/2013 Page 6
for short), which had conducted those examinations, had in the year-wise
select lists from the years 2004 to 2009 recommended 678 candidates for
appointment as UDCs against 25% LDCE quota, including their names.
Such being the case, they contended that the en-masse promotion of new
candidates, based on subsequent developments which occurred in 2009, in
the absence of authorization under the relevant rules, was illegal.
9. The applicants had lastly relied on Rule 11 of the CSCS Rules 1962
especially Rule 11 (3), read with its Third Schedule, and the CSCS
(Preparation of Common Seniority Lists) Regulation, 1971, arguing that
those included in the Select List constituted for promotion to the UDCs'
grade shall be senior to those included therein after such constitution of the
Select List, and that an official, if included in the Select List, if he refused to
be appointed to the UDC grade, for any reasons acceptable to the
Appointing Authority, shall lose his entitlement on the basis of that Select
List, and shall, on his subsequent appointment to the same UDC grade, at
any time thereafter, be placed immediately below/after the official who was
last appointed to that UDC grade from the Select List just prior to his own
appointment. Thus, submitted the applicants, the subsequent creation of
posts on account of an unrelated development could not result in a situation
where their settled seniority could be undone.
Contentions of the present Writ Petitioners
10. The present writ petitioners had originally not been made parties in
the proceedings before CAT; they sought impleadment- which was granted.
They contended to having entered CSCS through 85% quota of direct recruit
LDCs, through All India Competitive Examinations conducted by the SSC
in the various years from 1989 to 1996. They contended that, on the other
W.P.(C) 209/2013 Page 7
hand, the applicants entered CSCS in the LDC grade through the same 85%
quota of direct recruitment only later, in the years 1996-97. The petitioners
therefore submitted that they were never junior to the applicants in the cadre
of LDCs. The petitioners submitted that as entrants in the feeder grade of
LDCs only in the year 1996-97, the applicants were ineligible for induction
on seniority-cum-merit (SQ) basis for into the Select List of UDCs for the
year 2003, because in that year, they did not possess the requisite 8 years'
service in the feeder grade as LDCs, and none of them had qualified the
LDCE examination for the year 2003. The petitioners therefore, challenged
the locus standi of the applicants to maintain the proceedings before CAT.
The petitioners also relied on the events leading up to the Committee's
recommendations suggesting cadre restructuring of CSS, to remove
stagnation both in CSS and CSCS, and its report of February 2002; the
Union Cabinet's approval of the Committee's recommendations in 2003,
effective from July of 2003, as the Select List Year was from July, to the
June of next year. Consequent to this development, many additional posts of
Section Officers and Under Secretaries were created and filled up against the
CSS Select List Year 2003. The resultant vacancies in the CSS entry grade
of Assistants, which had percolated down from the Section Officers' grade,
had also been filled up then itself, against the CSS Select List of Assistants
in the Year 2003, by promoting officials from among the stagnating UDCs
of CSCS. The petitioners stated that the action of the official respondents, in
filling up the CSCS resultant vacancies- in the posts of UDCs from among
the eligible LDCs, in the Select List Year 2003 was proper.
Contentions of the Central Government before CAT
W.P.(C) 209/2013 Page 8
11. The position of the Central Government before the CAT was similar
to that of the writ petitioners in this case. It also submitted that the
administrative delay in processing promotional orders in respect of various
CSS and CSCS cadres was due to shifting from decentralized to centralized
cadre management in DoP&T, and further that effectuating the Committee
report took some time. It was submitted also that the applicants never
challenged the Central Government's policy or the Cabinet decision, dated
03.10.2003, nor did they have any right to challenge such policy decision
belatedly. It was further submitted that with the present decision, the LDCs
recruited up to Select List 1995 were to become eligible for seniority-cum-
merit based SQ quota promotions to UDCs' grade against the Select List
Year 2003, by virtue of their having completed 8 years of service as on that
date the fact is that such promotions were delayed, solely due to
administrative delays. If such promotions were made in the year 2003 itself,
before issuance of the Select List for the Year 2004 in the grade of UDCs,
there would not have been any controversy. The Central Government
justified the promotions due to the ante-dated restructuring of CSS Cadres
stating that it had become due in the year 2003 itself. The supervening delay
could not mean that what was justifiable is now not permissible under the
rules, on the ground that it is a retrospective promotion.
12. It was pointed out that all the vacancies of UDCs intimated against the
Select List year 2004 onwards were ad-hoc vacancies, and that the LDCE
for UDCs was conducted by the SSC against for the Select List Year 2004
onwards only for filling up of the ad-hoc vacancies, and since there is no
explicit provision under the CSCS Rules 1962 for according promotions
W.P.(C) 209/2013 Page 9
against the ad-hoc vacancies, the applicants'contentions that the resultant
CSCS vacancies, which have arisen out of the process of filling up of the
vacancies created in the CSS due to re-structuring of that Cadre, had been
fully or partially consumed against the Select Lists for the years from 2004
onwards, was untenable in law.
13. The Central Government relied on the fact that the extended CSS
Select List of Assistants' grade for 2003, for promotion of 2151 UDCs
against the restructured CSS Assistants' vacancies, was issued on
14.07.2009, along with the Select List of Assistants' grade for 2004 to 2006
also being issued on the same date. The 2151 UDC vacancies arising due to
restructuring of the CSS cadre, arose due to the creation of more number of
CSS posts in the hierarchy of CSS promotions in the year 2003, and not
against any 75% seniority-cum-merit (SQ) Quota vacancies, or against the
25% LDCE quota vacancies, available in the Select List year 2004 onwards.
It was contended this aspect could not be overlooked. It was pointed out that
out of such resultant 2151 UDC vacancies in terms of the rules prescribed
under the CSCS Rules, 1962, UDCs' Select List for the year 2003 was
proposed to be extended, and 25% of the extra UDCs vacancies, i.e. 538,
were proposed to be filled up by conducting a LDCE, and remaining 75%
vacancies of UDCs, i.e., 1623 vacancies were proposed to be filled through
seniority-cum-merit SQ quota. The official respondents had further justified
the Notification of the draft Common Seniority List of UDCs for Select List
Years 2003 to 2005 through OM dated 20.10.2011, and thereafter its
finalization through the impugned OM dated 16.12.2011. It was stated that
this revision was the result of the cadre restructuring in the CSS and it
W.P.(C) 209/2013 Page 10
further submitted that when on cadre restructuring of the CSS in the year
2009, effective from 2003, 2151 vacancies were caused in the grade of
Assistants, UDCs belonging to the Select List Years 1971 to 1992-93 were
promoted (in 2009) to the grade of Assistants, against the Select List Year
2003, and, thereby, it became imperative to take follow up action to fill up
the resultant 2151 vacancies in the grade of UDCs, in the ratio of 538 to
1623, effective in 2003 itself. It was also submitted that all the Petitioners
already had 8 years' approved service in the LDC grade in the year 2003,
and were, therefore, eligible for promotions against the Select List Year
2003 under 75% seniority-cum-merit SQ quota. It was submitted that like in
the cadre of Assistants (in CSS) in the cadre of UDCs, too, the posts were
reflected in amendments. For the case of UDCs, amendments to CSCS Rules
were made on 08-11-2010 (effective from 03-10-2003). The UDC cadre
stood increased by 2151 - from that date; the total cadre was 5377. This
development went unnoticed by CAT which erroneously presumed a lower
cadre strength. They were actually waiting for their promotions for more
than 21 years. It was submitted by them that the applicants tried to confuse
the issue at stake by wrongly quoting "resultant vacancies" as "unfilled
vacancies".
Findings and Observations of CAT
14. The CAT, based on its appreciation of the submissions of the parties
and the materials placed before it, concluded as follows:
"...the official respondents failed to appreciate that the whole
issue concerns two different services altogether, the Central
Secretariat Clerical Service (CSCS, in short) consisting of the
cadres of LDCs and UDCs, and the Central Secretariat Service
W.P.(C) 209/2013 Page 11
(CSS, in short), consisting of the cadres of Assistants/Section
Officers/Under Secretaries/Deputy Secretaries/Directors and
above. In none of notings on DoP&T files, the pleadings in this
case, or in the case-law cited by the learned counsels of the
official respondents as well as the Intervenor Private
Respondents, it has been held by any Court or Tribunal that the
juniority and seniority in a given lower Service would be
carried over to another higher service, even when the movement
is from one organized Service (CSCS) to another entirely
different organized service (CSS).
88. CSS is a different organized service altogether. The
appointment from UDCs, the highest pay scale of CSCS, to the
posts of Assistants, the entry level lowest cadre in the CSS, is
not automatic, and also the UDCs of CSCS do not constitute the
only feeder Cadre or source of recruitment for the CSS
Assistants' cadre. On incumbents moving from the CSCS
Service to CSS Service, their seniority of CSCS in the grade of
UDCs has no relevance for the purpose of determining seniority
in the grade of Assistants of CSS, since there are more than one
modes of entry into the Assistants_ grade of CSS, and a number
of factors get involved even in the process of induction of UDCs
of CSCS into Assistants_ cadre of CSS.
89. Therefore, an appointment of a person even on an ad-hoc
basis in the entry level Assistants_ grade of CSS, does not give
rise to any vested right in favour of another person, who is still
in the CSCS, who has till that date not yet entered the CSS
Assistants_ cadre, and still holds an appointment in substantive
capacity in another service, CSCS. Therefore, whether the
appointment of a person in the cadre of CSS Assistants_ cadre
is on ad-hoc basis or regular basis, it can have no effect
whatsoever on the promotional channels of any other persons
who are still in the LDCs_ or UDCs_ grades of the CSCS
cadre. The Articles 14 and 16 of the Constitution of India do not
provide for equality in the negative terms. Equality can only be
among equals, and pay parity can also only be sought against a
person who is equal.
W.P.(C) 209/2013 Page 12
90. In none of the cases cited by all the three sides, a case of
parity being provided when a person had left one organized
service, and moved to another service, has been considered by
either any Bench of this Tribunal, or by the Hon_ble High
Court of Delhi, or any other High Court, or by the Hon_ble
Apex Court. But the view being relied upon here has been
expressed by a concurrent Bench of this Principal Bench of this
Tribunal, in its judgment dated 10.05.2012 in OA
No.3984/2011, Rajender Mohan Saxena & Ors. Versus Union
of India & Ors., in which one of us was a Member of that
Bench.
91. Thus, while the restructuring of the CSS cadres in various
grades, by increasing or decreasing the number of sanctioned
posts in various grades of CSS, can have a fall out legal effect
and implication on the other lower cadres within the CSS, it
cannot have any legal effect on another Organized Service,
CSCS, even though it may have led to an administrative
eventuality of sudden vacation of a large number of posts in the
UDCs grade of CSCS cadre. The two services being separate
Organized Services altogether, while the creation of _X_
number of extra posts of Deputy Secretaries can lead to _X_
number of vacancies in the cadre of Under Secretaries, creation
of _Y_ number of new posts of Under Secretaries can lead to
the creation of _Y_ number of vacancies of Section Officers,
and creation of _Z_ number of posts of Section Officers can
lead to _Z_ number of posts being vacated in the Assistants_
cadre of CSS, it is held that no legal implication or effect can
flow from a re-organization of the CSS cadres, to another
Organized Service, i.e., CSCS.
92. Therefore, it is held that only an administrative effect or
eventuality of the sudden vacation of a number of UDCs_ posts
would follow, but no consequential legal implication can be
said to flow from/result from the reorganization or
restructuring of one Organized Service to another Organized
Service. Therefore, it is further held that the re-organization of
CSS cadre, which was given effect to in the year 2009, even
though it may have been deemed to have been given effect to
W.P.(C) 209/2013 Page 13
(for the purposes of the decision of the Cabinet regarding
restructuring of the CSS) in the year 2003, cannot result in any
follow up legal implication upon the structure and constitution
in that year 2003 of the other Organized Service of CSCS, in
which the vacancies of LDCs and UDCs have been in the
meanwhile continued to be notified all along, from year to year,
to the SSC, and the concerned identified UDCs_ posts have
been continued to be filled up 25% through the LDCE, and 75%
through seniority cum-merit (SQ) based promotions, year after
year from 2004 to 2009. This answers all the contentions raised
in this connection by all the three sides in the instant case."
The CAT also held as follows:
"..it is held that the presumption wrongly raised, that promotion
of 2151 UDCs, many of whom had long since been working on
ad-hoc basis as Assistants, and whose names had in-effect been
stopped being counted against the strength of UDCs by many
Cadre Controlling Authorities of the CSCS, will necessarily
have an effect of creating the exactly equal number of 2151
UDCs_ vacancies, is not acceptable, and as has been rightly
brought out in the DoP&T file notings itself, only 1707
resultant vacancies of UDCs have resulted for being filled up,
and these vacancies too have occurred only in 2009, which now
require to be filled up. Therefore, the contention of the
applicants that at least some (444, i.e., 2151-1707=444)
vacancies of UDCs had already been consumed while declaring
the yearly Select Lists between the years 2004 to 2009 merits
consideration and weightage. This discussion also answers the
issue raised by the Intervenor Private Respondents, which was
discussed at para 23 and 49/above, and by the applicants,
discussed at para 35 and 36/above."
It was also held that once a Select List is published under Rule 11 (3), and
seniority determined on its basis, that determination is unalterable, as it
crystallizes the rights of an official to a seniority slot or position. The fiction
created by the action of the Central Government in ostensibly treating
W.P.(C) 209/2013 Page 14
vacancies as having arisen in 2003, when in fact there were no vacancies
and promotions had been made on different dates and then assigning
notional seniority positions, was therefore unsupported in law.
Contentions of the Petitioner and the Union of India
15. The writ petitioners contend that the CAT fell into error of law in
holding that the applicants' seniority was affected by giving retrospective
effect to the rules. It was submitted that the petitioners' promotions were in
respect of the Select List for 2003, even though it was made much later.
This, submitted the petitioners, was because of the delay which occurred in
giving effect to the recommendations of the committee, which meant that
posts in the higher cadre had to be filled, after which the cadre of UDCs
could be said to have vacancies. Being UDCs who joined that cadre in 1995,
their turn for promotion in SQ arose in 2003, after completion of the
prescribed 8 year period. On the other hand, the applicants were entrants in
the feeder grade of LDCs only in the year 1996-97 and were ineligible for
induction on seniority-cum-merit (SQ) basis into the Select List of UDCs for
the year 2003. In that year, they did not possess the requisite 8 years' service
in the feeder grade as LDCs, and none of them had qualified the LDCE
examination for the year 2003.
16. It was also submitted that the applicants were ineligible to participate
in the LDCE quota for 2003 and could not therefore have articulated any
grievance against the petitioners. Furthermore, they became eligible for the
seniority quota promotions in the UDC cadre much later. Since they were
ineligible for SQ promotions for the year 2003, their grievance in the guise
of loss of seniority could not have been entertained and adjudicated upon by
the CAT.
W.P.(C) 209/2013 Page 15
17. It was submitted that the impugned order of the CAT amounts to
giving a premium on the administrative delay which occurred in filling the
chain vacancies. The petitioners stressed that the CAT was aware of the
Central Government's thinking that those eligible for SQ promotions to the
UDC cadre had a right to be considered for promotion as of 2003, and that
this would not amount to retrospective promotion, as was evident from its
noting noticed in Para 32 of the impugned order. It was submitted that there
can be no denial of the fact that even for the cadre of Assistants, a similar
exercise was carried out, in 2009 - after which the filling up of UDC
vacancies for 2003 was taken up.
18. Ms. Jyoti Singh, counsel for the petitioners, argued that the Union
cabinet approved the recommendations of Cadre Restructuring Committee
of CSS in the year 2003 and the policy decision of the Government went
unchallenged by the applicants. Their challenge to the resultant action of the
Government, which led to promotion of the petitioners, could therefore, not
have prevailed. All additional posts created in the grade of Director, Deputy
Secretary and additional posts created in the grade of Under-Secretary and
Section officer in the year 2003 had to be filled up in the select List Year
2003; a Recruitment Year based on Select List year- starts from July to June
of next year. So, the additional posts of Section Officer and Under Secretary
(in CSS) were filled up against the Select List year 2003. The resultant
vacancies in the grade of Assistant, which percolated down from Section
Officer Grade have also been filled up against select List year 2003 from
stagnating UDCs, though in 2009..
19. The promotion process in respect of CSS posts (i.e. Director to
Assistant) was unduly delayed due to administrative reasons. Delay also
W.P.(C) 209/2013 Page 16
occurred in filling up the resultant vacancies in the grade of UDC against the
Select year 2003. In the meantime, DoPT had issued promotions from LDC
grade to UDC grade against the normal vacancies for the Select List years
2004 to 2009. Furthermore LDCs recruited up-to Select List year l995 were
to become eligible for promotion to UDC grade against the select List year
2003. It was their promotions that were unduly delayed. Had that been made
in the year before issue of Select List year 2004 in the UDC grade, the
applicants could not have claimed any grievance; there would have been no
so called "retrospective promotion".
20. The Petitioners also rely on letter No.12/ 1/2011, dated 11.1.2012
(Annexure-PR-l to their reply before the CAT) to say that it clearly reflects
these facts and also the bona fide action of the official respondents inasmuch
as the letter clearly indicates that the official respondents took care of both
the categories, i.e., (i) to be considered against 75 % on seniority basis and
(ii) to be considered against 25 % through LDCE. In this view of the matter,
because the applicants were in not eligible for the select list year 2003 or
had not participated in the relevant LDCE for 2003 or are not intending
participate against LDCE for such quota even at this stage, they cannot say
that the persons who are meeting the eligibility condition as per rules, should
not be considered and promoted by the official respondents.
21. It was argued that the Petitioners who had over 21 years'approved
services in the LDC Grade for promotion against the Select List Year 2003
under 75 % seniority quota, actually awaited for more than 21 years for
inclusion of their name in select List 2003, as was done in the case of
Assistants to Directors of CSS against the resultant vacancies arising out of
CSS cadre restructuring. Counsel also submitted that the CAT omitted to
W.P.(C) 209/2013 Page 17
notice that the cadre restructuring exercise also meant the amendment to the
CSCS Rules of 1962 by the CSCS (Amendment) Rules, 1962 which had the
effect of increasing the cadre strength of UDCs and correspondingly, by
operation of the amended Rule 12, abolishing vacancies in the feeder grade
of LDCs. Rule 5 of the CSCS Rules, substituted by the 2010 amendment
read as follows:
"Authorised Permanent Strength and temporary strength of the
Service-
(1) The authorised permanent strength of the two grades of the
Service in each cadre as on 3rd October, 2003 shall be as
specified in the Second Schedule.
(2) After the 3rd October, 2003, the authorised
sanctioned strength of the two Grades in each cadre shall be
such as may from time to time be determined by the Central
Government from time to time."
The Second Schedule to the Amendment Rules listed the details of posts in
the UDC cadre, in various Ministries and Departments. The total number of
UDC cadre posts in 33 departments and Ministries was 5377. These clearly
established that the vacancies came into existence by operation of law, in
2010 when they arose after the amendment to the rules.
22. The Central Government states in its affidavit, and argues that
permission of the DoP&T to fill up the resultant cadre restructuring
vacancies of 2151 in the grade of UDCs was granted and action taken in
accordance with provisions contained in the Third Schedule of CSCS Rules,
1962 and no violation of the said rules has occurred. It is pointed out that
CAT, in its impugned order erred in assuming that the total authorized
W.P.(C) 209/2013 Page 18
permanent strength of UDCs was 2300 (as noticed in paragraphs 69,70,73
and 74 of the impugned order) whereas in accordance with the amended
CSCS rules 2010, the authorized strength in the grade of UDCs is 5377,
which was overlooked by CAT which wrongly concluded that 2151
vacancies could not be in existence when the authorized strength of UDCs
was only 2300. The Central Government relies on the Second Schedule to
the Central Secretariat Clerical Services (Amendment) Rules 2010 (GSR
901 (E)) dated 08-11-2010. The said Second Schedule is extracted below:
"(See sub-rule (1) of rule 5)
Authorised sanctioned strength of the two grades of the
Central Secretariat Clerical service in each cadre unit as
on 03.10.2003
SI Name of Sanctioned Sanctioned
No. Ministry/Department strength of strength of
Upper Lower
Division Division
Clerks of Clerks of
Central Central
Secretariat Secretariat
Clerical Clerical
Service as Service as
on on
3.10.2003 3.10.2003
operation
W.P.(C) 209/2013 Page 19
Forests
10 Expenditure 371 364
11 Fertilizers 51 54
12 Food and Public 83 82
Distribution
13 Health and Family 237 237
Welfare
14 Home Affairs 550 568
15 Industrial Policy and 244 237
Promotion
16 Information and 421 420
Broadcasting
17 Labour 164 164
18 Legal Affairs 62 63
19 Mines 29 30
20 Petroleum and Natural 27 27
Gas
21 Planning Commission 99 94
22 Posts 82 83
23 Power 163 163
24 Rural Development 54 53
25 Road Transport and 88 78
Highways
26 Science and Technology 71 70
27 Steel 31 32
28 Supply 255 254
29 Social Justice and 61 64
Empowerment
30 Telecommunication 212 217
31 UPSC 260 259
32 Urban Development 472 488
33 Water Resources 199 199
Total 5377 5397
23. The Central Government also states that the decisions taken with the
approval of Minister of State (Personnel) on 30.12.2011 were as follows:-
W.P.(C) 209/2013 Page 20
i) The vacancies caused in the grade of UDC as a result of promotion of
2151 UDCs to the grade of Assistants consequent upon cadre restructuring
of CSS will be filled up against the Select List year 2003.
ii) As per the extant Recruitment Rules in 2003, 75% of vacancies will
be filled up through Seniority Quota and 25% through LDCE quota. As such
out of 2151 vacancies in the grade of UDC in the extended Select List of
2003, a total of 1614 were to be filled up by SQ candidates and 537 by
LDCE qualified candidates in the proportion of 3:1.
iii) The seniority quota vacancies were to be filled up by eligible LDCs who
had completed 8 years of approved service as on 01.07.2003.
As for LDCE slots, candidates who had qualified the LDCE 2003 and their
ACR dossiers were called for by SSC but could not be recommended for
appointment due to non-availability of vacancies in the Select List year 2003
under LDCE mode, were to be first accommodated against the available
vacancies and for remaining slots, SSC will be requested to conduct Special
LDCE for the Select List year 2003 (extended) and all the LDCs who had
rendered 5 years of Service as on 01.07.2003 would be eligible to appear in
the examination.
24. It is argued that DoPT has the right to prepare and revise the Select
List from time to time in terms of Rule 2(hh) of CSCS Rules, 1962 (Rule
11(3) of CSCS Rules 1962) and Third Schedule to the CSCS Rules, 1962. In
fact, the applicants challenged O.M. No.20/53/2008-CS.11(B) Vol.11 dated
16L1 December 2011 on the basis of a common Seniority List issued by
O.M. No.20/53/2008-CS.Il dated 24-06-2011, which was modified by OM
dated 20-10-2011 as draft final seniority list. The Central Government also
W.P.(C) 209/2013 Page 21
argued that 2151 vacancies in the grade of UDCs occurred due to the filling
up of the 2151 vacancies in the Grade of Assistants against the UDCs of
2003 Select List consequent upon the cadre restructuring of Central
Secretariat Service in 2003. A decision was, therefore, taken with the
approval of competent authority to fill up those 2151 UDC vacancies against
Select List year 2003 in accordance with the ratio of 3:1 (3 candidates from
Seniority Quota and 1 candidate from Limited Departmental Examination
quota) as fixed under the Central Secretariat Clerical Service Rules, 1962.
Thus, out of the resultant 2151 vacancies in the grade of UDC, 25% of the
vacancies i.e. 538 are to be filled up through Limited Departmental
Competitive Examination as laid down in the CSCS Rules, 1962.
Contentions of the Applicants
25. Mr. M.K. Bhardwaj, learned counsel for the original applicants,
submitted that this court should not interfere with the order of the CAT. He
submitted that having promoted the applicants against the regular vacancies
for the year 2004 onwards and even assigned their seniority positions, the
Central Government could not have sought to retrospectively appoint the
petitioners in the guise of filling "chain vacancies". He relied upon an
official noting of the DoPT dated 02-12-2011 to the effect that vacancies in
the CSCS could not be filled in the same analogy as those in CSS. He relied
on the notings in the Central Government files which were considered by the
CAT. They are as follows
"It may be recalled that consequent upon Cadre re-structuring
of CSS in 2003, 2151 UDCs were promoted in the grade of
Assistant against the select list year 2003 (extended). The order
W.P.(C) 209/2013 Page 22
of promotion of 2151 UDCs to the grade of Assistants against
the select list year 2003 (extended) was issued vide this
Department's OM No.7/3/2003-CS-II dated 14th July 2009.
Though the orders were issued in the year 2009, the Cabinet
while approving the proposal for re-structuring of CSS in 2003,
had approved filling up of all these vacancies in the grades of
CSS against the select list year 2003.
2. Since 2151 UDCs were promoted to the grade of
Assistants against the select list year 2003 (extended),
representation from Associations and reference from
individuals were received to consider filling up of resultant
vacancies in the grade of UDC by eligible LDCs against the
select list year 2003 only, despite the fact that physical
vacancies in the grade of UDC had occurred in 2009.
Accordingly the matter was examined with reference to whether
the 2151 vacancies in the grade of UDC may be taken to the
Select List Year 2003 as was being done in all grades of CSS,
consequent upon Cadre Review of CSS 2003, as per rules in
vogue; or in 2009 i.e. when the UDCs physically vacated the
lien of the post, CSCS Rules provide for filling up of UDC posts
75% by SQ and 25% by LDCE. Since LDCE for the years 2003
to 2008 had already been held the issue of filling up of LDCE
vacancies also arose.
3. The matter was referred to Establishment Division of this
Department, who clarified that since the resultant vacancies
pertain to the year 2003, the vacancies in the grade of UDC
may be filled up against the Select List year 2003 which would
be as per prevailing CSCS Rules and procedures.
4. Subsequently, on the direction of the Hon'ble MOS(PP),
Addl. Secretary (S&V) met delegations represented by various
Associations on 9.9.2011 to discuss the issue. Since doubts were
raised regarding timing of the occurrence of the vacancies and
the matter was re-examined. It was considered whether these
vacancies may be filled up against the Select List Year 2009
since the UDCs physically vacated the lien of their post in the
year 2009.
W.P.(C) 209/2013 Page 23
5. The matter was again referred to Estt. Division who vide
their note on page 26/ante have observed that the proposal of
the CS Division to treat all the vacancies that occurred in UDC
Grade as vacancies for 2009 is not as per provisions of
statutory recruitment rules. Any approach to prepare the Select
List of UDC in a manner different from that being allowed for
other Grade(s) will have ramification for CSS/CSCS/CSSS
cadre(s) as a whole. As such Establishment did not agree to the
proposal of this Division and advised to take appropriate
administrative decision by relaxing Rule 24(1) of the Central
Secretariat Clerical Service Rules, 1962 if necessary, with the
approval of the competent authority for filling up these
vacancies against Select List year 2003.
6. The matter was again discussed in detail during a
meeting between JS(E) and JS(CS). It was concluded that these
vacancies should be treated a vacancies for Select List Year
2003 in accordance with extant Rules/Regulations and as has
been done in all other grades of CSS. It was also observed that
this decision is not likely to raise similar demands from CSSS
because the year of cadre restructuring is the parameter for
considering the creation of notional vacancy. The cadre
restructuring of CSSS has been done in the year 2010 and
promotions have accordingly been made. Hence this will not
give rise to demand in CSSS for having any benefit from the SL
year 2003 as being proposed to CSCS, which is based on the
Cadre Restructuring of CSS-2003.
7. As regards mode of filling up of vacancies, as per the
existing rules 75% have to be filled up through Seniority Quota
and 25% through LDCE quota. Hence, out of 2151 resultant
vacancies in the grade of UDC in the extended Select List of
2003, a total number of 1613 slots will be filled up by SQ
candidates, as has been done in all grades of CSS in
accordance with the Rule, Regulations and 538 by LDCE
qualified candidates in the ratio 3:1. As far as the seniority
quota is concerned those who are eligible and have completed 8
years of approved service as on 1.7.2003 would be considered
for promotion against the select list year 2003 (extended). As a
W.P.(C) 209/2013 Page 24
result all SQ candidates upto the Select List year 2007 may be
shifted to Select List year 2003.
7A. As for LDCE slots, since LDCE in the grade of UDC upto
the year 2009 has already been considered, it was felt that those
who had qualified LDCE in 2004 to 2008 should not be unfairly
disadvantaged and mode of filling up should be adhered to.
For this purpose, it is proposed that we may first consider
nominating the candidates who had qualified the LDCE 2003
and whose ACR dossiers were called for by SSC but could not
be recommended for appointment due to non-availability of
vacancies in the SL year 2003 under LDCE mode. For the
remaining slots, we may approach SSC with a request to
conduct a Special LDCE for the Select List year 2003
(extended) and all the LDCs who had rendered 5 years of
service as on 1.7.2003 would be eligible to appear in the
examination. Even though the proposed exercise may take
some time, we may be able to satisfy the majority of the demand
of the Associations.
8. In the past the proposal regarding number and mode of
filling up vacancies arising in Assistant Grade was approved by
MOS(PP). Since the present proposal is to fill up vacancies as
per Rules and Procedure approval of Hon'ble PM may not be
required and we may submit the proposal for approval of
MOS(PP). Accordingly the following proposal may be
submitted to MOS(PP) for approval through Establishment
Division :-
i) The vacancies caused in the grade of UDC as a
result of promotion of 2151 UDCs to the grade of
Assistants consequent upon cadre restructuring of
CSS will be filled up against the Select List year
2003.
ii) As per the extant RR in 2003, the vacancies will be
filled up by 75% through Seniority quota and 25%
through LDCE quota. As such out of 2151
vacancies in the grade of UDC in the extended
Select List of 2003, a total number of 1613 slots
will be filled up by SQ candidates and 538 by
W.P.(C) 209/2013 Page 25
LDCE qualified candidates in the proportion of
3:1.
iii) The seniority quota vacancies will be filled up by
eligible LDCs who have completed 8 years of
approved service as on 1.7.2003.
iv) As for LDCE slots, candidates who had qualified
the LDCE 2003 and their ACR dossiers were
called for by SSC but could not be recommended
for appointment due to non-availability of
vacancies in the SL year 2003 under LDCE mode,
will be first accommodated against the available
vacancies and for remaining slots, SSC will be
requested to conduct Special LDCE for the Select
List year 2003 (extended) and all the LDCs who
had rendered 5 years of Service as on 1.7.2003
would be eligible to appear in the examination.
Sd/-
(J. Minz)
Under Secretary (CS-II)
DS (CSII) - on leave
Director (CS-I) as link officer
JS (AT&A)
We had met on 13/12 and agreed."
26. It was argued that the decision of the Central Government to conduct
Special LDCE for the Select List year 2003(extended) and to promote them
against the Select List of 2003 is violative of Articles 14 and 16 of the
Constitution of India in as much as it resulted in shifting of the Select List
year 2004 onwards on account of promotion to the grade of UDCs against
the Select List Year 2003. This would create an anomaly and those
appointed as UDCs through LDCE for the Select List years 2004, 2005,
2006, 2007 & 2008 would be adversely affected because those now sought
W.P.(C) 209/2013 Page 26
to be promoted against the extended Select List year 2003 would be placed
senior to such earlier LDCE promotees in the seniority list of 2003. It is
submitted that for this reason the Government treated the finalized Common
Seniority List up to the year 2005 as draft and merely finalized the Common
Seniority List upto 2003. As a consequence, the Central Government
unsettled the Select List and seniority from the year 2004 onwards.
27. It was argued that the CAT consciously drew the distinction between
the benefit to be rendered to employees for purposes of promotion and for
the purpose of seniority in a grade. It was submitted that while the first
concerns eligibility for promotion to a higher post and the other concerns
seniority for being considered for promotion to a higher post. It was argued
that any rule or policy affecting the seniority of others was violative of
Article 14 and 16 of the Constitution and impermissible. Reliance was
placed on the judgment reported as State of Bihar v. Akhouri Sachindra
Nath, 1991 Supp (1) SCC 334 where it was held that:
"It is well settled that no person can be promoted with
retrospective effect from a date when he was not born in the
cadre so as to adversely affect others. It is well settled by
several decisions of this Court that amongst members of the
same grade seniority is reckoned from the date of their initial
entry into the service. In other words, seniority inter se amongst
the Assistant Engineers in Bihar Engineering Service, Class II
will be considered from the date of the length of service
rendered as Assistant Engineers. This being the position in law
respondents 6 to 23 cannot be made senior to respondents 1 to
5 by the impugned government orders as they entered into the
said service by promotion after respondents 1 to 5 were directly
recruited in the quota of direct recruits."
W.P.(C) 209/2013 Page 27
Likewise, the applicants relied on Uttaranchal Forest Rangers' Association
(Direct Recruit) v. State of U.P., (2006) 10 SCC 346 to the following effect:
"We are also of the view that no retrospective promotion or
seniority can be granted from a date when an employee has not
even been borne in the cadre so as to adversely affect the direct
recruits appointed validly in the meantime, as decided by this
Court in Keshav Chandra Joshi v. Union of India [1992 Supp
(1) SCC 272] held that when promotion is outside the quota,
seniority would be reckoned from the date of the vacancy within
the quota rendering the previous service fortuitous. The
previous promotion would be regular only from the date of the
vacancy within the quota and seniority shall be counted from
that date and not from the date of his earlier promotion or
subsequent confirmation. In order to do justice to the
promotees, it would not be proper to do injustice to the direct
recruits.."
Mr. Bhardwaj also argued that the mere existence of a vacancy is not
enough to enable an employee to claim seniority. The date of actual
appointment in accordance with the required procedure becomes important
in such a case. He relied on State of Uttaranchal v. Dinesh Kumar
Sharma,(2007) 1 SCC 683 and Nani Sha v. State of Arunachal
Pradesh, (2007) 15 SCC 406. Reliance was also placed on the judgment
reported as P. Sudhakar Rao v.U. Govinda Rao 2013 (8) SCC 693.
Analysis and Conclusions
28. Before analysing the facts and contentions, it would be first essential
to notice what the CAT's findings were in respect of the vacancy position.
The CAT observed as follows:
"...the total of the re-assessed year-wise UDC vacancy
positions as intimated yearly by the Cadre Controlling
W.P.(C) 209/2013 Page 28
Authorities to DoP&T totals up to 3204, while the persons
already actually promoted from the year 2003 to 2009 were
3627, it appears to us that it cannot be anybody's case that at
least some portion of the 2151 vacancies of UDCs, which have
arisen in 2009 as a result of the promotions of UDCs to
Assistants' Grade, have not actually been consumed and
subsumed in the promotions from LDCs' grade to UDCs' grade
already actually given over the years 2004 to 2009.
77. When the re-assessed vacancy position of UDCs of 3204
over the years is less than the actually filled up 3466 UDC
vacancies over the years 2004 to 2009, it is quite clear that the
33 Cadre Controlling Authorities of the as many CSCS cadres
had not seen eye to eye with the DoP&T about the
interpretation of what is a "post", and what is a "vacancy". It
appears that most of these 33 Cadre Controlling Authorities
have, after having given ad-hoc promotions to UDCs as
Assistants, and much before their substantive promotions
granted in 2009, already wrongly counted those UDC vacancies
as "vacant liens" also, and had reported them as "vacancies"
for the purpose of inclusion in the subsequent years' Select
Lists, even though the lien of the incumbents on those UDC
posts had not yet been vacated and extinguished, just because of
their ad hoc promotion as Assistants, and such UDCs gave up
their lien against their substantive posts of UDCs, and acquired
a lien against the Assistants' entry Grade cadre of CSS much
later, only in the year 2009.
78. However, since 2151 UDCs were so substantively promoted
to the grade of Assistants in the year 2009, against the Select
List year 2003 of Assistants' Cadre, and by then the Select Lists
of UDCs had been finalized upto the year 2006, and the Select
List under the LDCE conducted in 2007 for the posts under
25% selection quota for the year 2007 had also been finalized,
the relevant Staff Associations demanded for passing on the
benefit of the 2151 "resultant vacancies" in the grade of UDCs
also against the Select List Year 2003 itself. The DoP&T then
requested all the cadre units to revise the vacancy position in
W.P.(C) 209/2013 Page 29
the grade of UDCs from the Select List Year 2003 onwards,
which has led to the present O.A. being filed."
29. The CAT then went on to discuss an internal noting dated 01-03-2011
which stated that the Select List of SQ of UDCs for the years 2004, 2005
and 2006 had been finalized by the time the order for promotion of 2151
UDCs to the grade of Assistant for the Select List Year 2003 (extended)
were issued. Subsequently, the Select List of 2007 was also finalized. The
note stated that more than 600 officials had been appointed as UDC though
LDCE for the Select List years 2004, 2005, 2006, 2007 and 2008. The note
reasoned that "if the Select List of 2004, 2005 and 2006 are reviewed it may
lead to litigation by the UDCs who have qualified the UD grade LDCE for
the years 2004 to 2008 as their seniority would be adversely affected. We
have already received number of representations in this regard."
Considering that under the recruitment rules, vacancies in the grade of UDC
were to be filled up by 75% through seniority and 25% by LDCE quota,
relaxation of the rules were - it was stated in the note "be required for
deviating from the percentage of filling up of Limited Departmental
Examination and Seniority quota for the select list year 2003 onwards. It
would be difficult to justify the relaxation of Rules with retrospective effect
at this late stage." The other difficulty highlighted was that since the UDC
grade is decentralized and reservation roster too was maintained by
respective cadre units, they would experience difficulty in maintaining the
roster as the percentage between LDCE and SQ would change due to
shifting of some of the vacancies of the Select List year 2004 to 2009 to
Select List year 2003. The note further observed that
W.P.(C) 209/2013 Page 30
"(vi) As per the revised vacancy position, the LDCE Quota in
respect of Select List Year 2004 to 2008 would be more than
25% as the nomination against the LDCE vacancy up to the
year 2008 is already complete.
(vii) Select List vacancies of a particular year arise on account
of physical vacation of the posts by the incumbents due to
retirement/VRS/resignation/promotion etc. during the period of
the Select List Year i.e., 1st July to 30th June of that year. The
UDCs included in the Select List of Assistants for year 2003
(extended) had physically vacated their posts only after
14.07.2009 (date of issue of the extended Select List). 5. It may
be mentioned here that this Department has already completed
the process of promotion for the Select List year upto 2007.
Further the UDCs of LDCE for the Select List year 2008 have
also been nominated by this Department."
30. The note then went on to suggest the following courses of action:
"(i) As per the CSCS Rules, LDCs who have completed eight
years of approved service are eligible for promotion to be grade
of UDC. For the Select List year 2003, the LDCs upto Select
List year 1995 are eligible for promotion as UDCs.
(ii) As per the CSCS Rules, LDCs with five years of approved
service are eligible for appearing in the LDCE. Had the process
been completed timely, the LDCs who had qualified the LDCE
would have become eligible for promotion to the grade of UDC.
Hence we may consider those LDCs who had qualified the
LDCE upto Select List year 1995.
(iii) Since the promotion orders of 2151 UDCs as Assistants
were issued in July, 2009, we may consider the promotion of
LDCs as UDCs for the Select List year 2009 since the actual
vacancies became available only in the year 2009."
31. The CAT then discussed further:
W.P.(C) 209/2013 Page 31
"The view of the official, who suggested these options, however,
did not get appreciated and accepted, as is apparent from the
subsequent file notings. A subsequent suggestion was made on
17.03.2011 that 417 vacancies may be notified for filling up for
the Select List year 2008 in the seniority quota (SQ), which will
cover the LDCs of Select List Year 1993-1994 (part).
Thereafter, the zone of consideration of Select List Year 2009
would be issued, which would cover all the eligible LDCs upto
the select list year 2001, totaling to around 1200. However, the
subsequent noting dated 18.05.2011 discloses the total
disconnect between the 2151 promotions accorded on
14.07.2009 to the UDCs as Assistants, most of whom were
already working as ad-hoc Assistants, and the resultant UDCs_
vacancies. It is apparent from the file notings that the
substantive promotions of 2151 UDCs to the grade of Assistants
in 2009 had resulted in only 1707 vacancies of UDCs being
created for being filled up (and not 2151). This had happened
because the total strength of UDCs cadre had been 5148
earlier, and after upgradation of 1467 posts of UDCs to the
posts of Assistants, the sanctioned strength of UDCs had
initially come down to 3681, which, according to the Website,
appears to have been reduced to 2300 now. Also, the total
number of incumbents in the grade of LDCs, who could have
been considered eligible for promotion to the grade of UDCs
itself was only 1642, which is less than even the 1707 identified
vacancies, as had been reported earlier, after re-assessment,
and both these numbers 1642 and 1707 are much less than the
2151 LDCs now sought to be promoted as UDCs. Thus, it is
clear that number of 2151 LDCs are not at all available for
being promoted (since most of them have been already
promoted as UDCs in the interregnum)."
32. It would be evident that the basic premise which the CAT went by
was that after up-gradation of 1467 posts of UDCs to the posts of Assistants,
the sanctioned strength of UDCs had initially come down to 3681. Crucially,
the CAT assumed that this figure had further reduced:
W.P.(C) 209/2013 Page 32
"..which, according to the Website, appears to have been
reduced to 2300 now. Also, the total number of incumbents in
the grade of LDCs, who could have been considered eligible for
promotion to the grade of UDCs itself was only 1642, which is
less than even the 1707 identified vacancies, as had been
reported earlier, after re-assessment, and both these numbers
1642 and 1707 are much less than the 2151 LDCs now sought
to be promoted as UDCs."
This assumption, or factual premise was entirely erroneous. The notification
amending the CSCS Rules, in 2010, was dated 08-11-2010. It clearly
mentioned - in the Second Schedule that the total sanctioned strength was
5377. In the light of this fact, the entire matrix of calculations based on
which the impugned order was written, was without any foundation. Clearly,
CAT did not take into account the 2010 Amendment to the CSCS Rules,
1962. Its factual assumption therefore, that there could not have been 2151
vacancies, was erroneous. On 10-2-2011 one Shri Sushil Kumar had sought
replies to various queries, including the vacancy position. A comprehensive
reply was given on 04-03-2011 under the RTI Act. That is part of the record.
One of the queries posed was the break-up of regular vacancies after the
issuance of the extended list of Assistants on 14-07-2009, in the light of
inclusion of 2151 new posts in the UDC cadre. The year wise break up for
2003-09 was furnished; the aggregate vacancies worked out to 3204 for the
relative period. All these facts clearly reveal that the CAT's assumption that
there were no vacancies for the same period- based on its reading of the
rules (i.e that the total cadre strength of UDC was 2300) is unsustainable.
33. The second aspect on which the CAT's findings are erroneous is that
it overlooked the circumstance that the applicants were ineligible to be
W.P.(C) 209/2013 Page 33
considered for promotion when the present Petitioners were in fact
considered for Selection Year 2003. Their averment as regards appearing in
the LDCE is as follows:
"4.5 That as the applicants were fulfilling the eligibility
conditions for appearing in the limited departmental
competitive examination, therefore on receipt of information
about the examination, the applicants applied in accordance
with rules. The limited departmental competitive examination
for inclusion of Officers Including the applicants was held on
year 2004-2009. On the basis of aforesaid examination, the SSC
recommended 678 candidates for appointment as UDC
including the applicants in the Central Secretariat Clerical
Service in select list year 2004. The details of the applicants
date of promotion and their seniority position in the select list
of the relevant years is given herein in tabulated form."
Clearly, as between their claim (for promotion to UDC as of 2003) and that
of the Petitioners, the latter had a superior one. They could not be promoted
for want of vacancies; apparently they could not be promoted even later, for
want of vacancies. None of the applicants was promoted in the LDCE quota,
in 2003. They were otherwise ineligible for promotion. Consequently they
could not have claimed to be aggrieved by the consideration of the
Petitioners' case for SQ promotions, once the vacancies became available,
especially when the vacancies existed as of October 2003 by virtue of
operation of law.
The CAT's findings of impermissibility of retrospective seniority
34. The applicants had contended that all available vacancies in various
grades of CSCS as well as other grades had been filled up and consequently
the Central Government issued OM dated 14-11-2006 notifying all the
W.P.(C) 209/2013 Page 34
Ministries/ Departments that number of vacancies required to be filled up in
a given recruitment year through various modes of recruitment, prescribed
under the relevant rules should be assessed as accurately as possible with
due regard to the all relevant considerations. That OM was relied on to say
that all the available vacancies of UDC were utilized by promoting eligible
officers and unutilized vacancies were carried forward to the next year and
consumed. Now, this contention could not have been given much
importance, because the elaborate consultations in 2011 were preceded by
amendment to the rules with effect from 8th November 2010. That
amendment had the effect of increasing the cadre strength of the UDCs, with
effect from 3rd October, 2003. The resultant vacancies which fell to the SQ
share were 1618 and those which fell to LDCE quota were 538. These facts
had the effect of undermining the impugned findings. The court here notes
that the Applicants were not aggrieved by the amendment to the Rules
which increased the cadre strength; they did not challenge it. Moreover, the
retrospectivity accorded to the amendment too went unchallenged. In these
circumstances, it could not have been said that all vacancies had been
exhausted and that the vacancies arose only after 2009, when the Assistants
were actually promoted. Like in their case, the actual vacation of the posts -
coupled with operation of the amendment rules, with effect from 2003
meant that the vacancies in the cadre of UDCs existed at that relevant time,
i.e October 2003 and had to be based on a Select List to be drawn as of that
point in time. This necessarily meant that those eligible for the SQ as of that
date could be considered for the SQ vacancies and those eligible for the
LDCE quota vacancies (which arose over and above what was actually filled
in 2003) could be considered. For the same reason, the regularity of the
W.P.(C) 209/2013 Page 35
examinations for filling LDCE quota for the years 2005-2009 or the
promotions given on the basis of the SQ in 2007, did not mean that when
vacancies arose on account of the amendment to the rules (in December
2010, with effect from 03-10-2003) there was anything intrinsically wrong;
the situation altered considerably, paving the way for filling 2151 vacancies
for Select Year 2003. This was based upon the express intention to create
the vacancies from 2003; in turn it had to result in a consequential action
filling those vacancies from that date.
35. Uttaranchal Forest Rangers' Association (Direct Recruit) is an
authority for the proposition that no retrospective promotion or seniority can
be granted from a date when an employee has not even been borne in the
cadre so as to be adversely appointed validly in the meantime. The Supreme
Court had relied on K.C. Joshi & Ors vs Union of India, 1992 Suppl (1)
SCC 272 which ruled that promotions given outside the quota can result in
seniority (of such promotes) only from the date of the vacancy within their
quota arises; the intervening service being considered fortuitous. The Court
further relied on State of Bihar & Ors v. Akhouri Sachidananda Nath &
Ors,1991 Suppl. (1) SCC 334. All these were considered in P. Govinda Rao
(supra) which echoed and reiterated these observations, and stated that
retrospective seniority cannot be given to those not borne in the cadre over
the employees/officials appointed prior to them. Earlier too, in Pawan
Pratap Singh & others v Reevan Singh & Others (2011) 3 SCC 267 the
Supreme Court had culled out the principles which should be made
applicable in seniority in cadres where direct recruits and promotes join the
W.P.(C) 209/2013 Page 36
service from two separate channels of appointment/recruitment. The relevant
summation of the law in that decision is extracted below:
"(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry in a
particular service or the date of substantive appointment is the
safest criterion for fixing seniority inter se between one officer
or the other or between one group of officers and the other
recruited from different sources. Any departure there from in
the statutory rules, executive instructions or otherwise must be
consistent with the requirements of Articles 14 and 16 of the
Constitution.
xxx xxx xxx
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given retrospectively
unless it is so expressly provided by the relevant service rules. It
is so because seniority cannot be given on retrospective basis
when an employee has not even been borne in the cadre and by
doing so it may adversely affect the employees who have been
appointed validly in the meantime."
36. There can be no doubt that retrospective seniority cannot be given to a
promotee (or a direct recruit) so as to affect the seniority rights of an
existing member of a cadre. The question here is whether retrospective
seniority was accorded to the Petitioners in the manner that is impermissible.
If the applicants were promoted as UDCs for the period 2004-2007
according to their turn, after clearing the LDCE test, in respect of the 25%
quota provided under the Rules and if the petitioners were given
retrospective promotion on the basis of the restructuring report accepted by
the Union Cabinet, there is no doubt that such action would be legally
vulnerable. However, in the present instance, certain other features are
peculiar to this case. They are:
W.P.(C) 209/2013 Page 37
(1) The Union Cabinet approval led to increase in cadre strength of
UDCs: the cadre was increased by 2151 posts;
(2) The cadre strength increase was followed up by an amendment
to the CSCS Rules, on 08-11-2010.
(3) The amendment was given retrospective effect, as evident from
the following amended Rule 5:
"5. Authorized sanctioned strength .- (L) The authorized
sanctioned strength of the two grades of the service in each
cadre as on the 3rd October 2003, shall be as specified in the
Second Schedule.
(2) After the 3 October, 2003, the authorized sanctioned
strength of the two grades in each cadre shall be such as may
be determined by the Central Government from time to time.";
(4) The applicant/respondent did not challenge the amended rule,
or the retrospectivity given to it. The CAT also completely
overlooked this material aspect.
(5) The cadre strength, indicated in the Second Schedule to the
amended rules - of the UDCs- was 5377. This too went unnoticed by
the CAT, which erroneously assumed the figure to be 2300.
(6) In the case of Assistants' cadre, the 2151 posts were filled (by
the UDCs) by recourse to the power of relaxation, through an
extended panel dated 14-05-2009. The relaxation was indicated in the
reply to the query of the said Sushil Kumar, (query no. 8) where it
was indicated by the Central Government that "...2151 vacancies in
Assistant Grade were filled up through Seniority Quota of the Select
List of Assistant of CSS for the year 2003 (extended) by relaxing the
W.P.(C) 209/2013 Page 38
provisions of Rule 12 (2) (a) of the CSS Rules, 2009, by the competent
authority..."
(7) Although the 2151vacancies arose in 2009, the effect of the
retrospective rule was that they were deemed to have arisen w.e.f 03-
10-2003.
(8) The DoPT had indicated the mode of filling these vacancies in
the light of the new development, after extensive consultations - and
obtaining the approval of the concerned Union Minister, by Office
Memorandum dated 03-05-2012. The relevant extract of OM dated
03-05-2012 (No. 12/1/2011-CS.II (B)) issued by the DoPT is as
follows:
"OFFICE MEMORANDUM
**********************
Subject: Extension of Select List 2003 of UDCs of CSCS-reg.
The undersigned is directed to say that it has been decided, with
the approval of the Competent Authority, to extend the Select
List Year 2003 of UDCs by including the names of additional
2151 UDCs in the Select List Year 2003 against the vacancies
caused in the grade of UDCs for the Select List Year 2003
consequent upon promotion of 2151 UDCs to the Assistant
Grade subsequent to the Cadre Restructuring of OES.
Accordingly, it has been decided to extended List by filling up
2131 slots in the Select List Year 2003 (extended) in the
following manner:
(1) The 2131 slots will be filled up in accordance with CSCS
Rules/Regulations as applicable at that time by 75% through
Seniority Quota (SQ) and 25% through LDCE quota As such,
out of 215l vacancies in the grade of LJDC in the Select List of
2003 (Extended), a total number of 1614 slots will be filled q by
W.P.(C) 209/2013 Page 39
SQ candidates and 537 by LDCE qualified candidates in the
ratio of 3:1.
(ii) The seniority quota slots will be filled up by eligible LOCs
who had completed 5 years of approved service as on 01
.07.2003.
(iii) As for LDΠslots, candidates who had qualified the LOCE
2003 and their ACR dossiers were called for by SSC but could
not be recommended for appointment due to non-availability of
sufficient number of vacancies in the SL year 2003 under LDCE
mode, will be first accommodated against the available
vacancies and for remaining slots SSC will conduct Special
WCE fbi UDC for the Select List Year 2003 (extended) and all
the LDCs who had rendered five years of service as on
01.07.2003 would be eligible to appear in the Limited
Departmental Competitive Examination."
(9) The applicant/respondents' plea of their unjustified loss of
seniority was based on the assumption that all vacancies which had
been filled during the period 2005-2009 (in the LDCE quota for
UDCs) were regular. The argument therefore was that subsequent
vacancies which became available in 2009 could not be filled with
retrospective effect. This is apparent from their plea in the application:
"4.7 That it is relevant to note that all the available vacancies
in various grades of CSCS as well as other grades are filled
up, therefore the respondents issued OM dated 14.11.2006
bringing in the notice of all the Ministries/ Departments that
number of vacancies required to be filled up in a particular
recruitment year through various mode of recruitment, as
prescribed under the relevant rules should be assessed as
accurately as possible with due regard to the all relevant
considerations. From the aforesaid OM, it is evident that all
the available vacancies of UDC were utilized by promoting the
eligible officers. The unutilized vacancies were carry forward
W.P.(C) 209/2013 Page 40
to the next year and consume. Copy of said 0M is annexed as
Annexure A-6.
4.8 That thereafter, in the year 2005, 2006, 2007, 2008, 2009
the examinations were held and the all available vacancies in
the LDCE quota were consumed on the basis of said
examination. The seniority quota vacancies were also
consumed upto 2007 by holding year wise DPC. The details of
the vacancies consumed in the aforesaid years are given
herein below in tabulated form."
(10) The respondent/applicants' claim of being prejudiced hinged
entirely on the fact that the common seniority list was - in their
reckoning finalized on 24th June 2011. The developments which took
place in the meanwhile, i.e approval of the Committee report,
assimilation of 2151 vacancies after their inclusion in the cadre
strength, through an amendment, creation of those posts w.e.f 03-10-
2003, in effect inject fluidity to the entire process. Therefore, even
though the common seniority was declared as "final" in June 2011, it
could not be said that the applicant/respondents' rights had acquired a
settled character. This meant that the process of assimilation (of the
2151 UDC posts and their filling up) could have - and did- potentially
result in the review of that seniority list.
These peculiar features meant that the Central Government's eventual
decision in promoting the present Petitioners, with effect from the date the
vacancies arose in 2003, on the basis of their eligibility- since they were
entitled to be considered for UDC cadre that year, was not a "retrospective
promotion". It was the filling up of vacancies which were created with effect
from a date prior in point of time, and effectuating that decision (i.e post
W.P.(C) 209/2013 Page 41
creation with effect from a past date- the decision being unchallenged even
till date) by filling the posts from those eligible to be considered at that
relevant time. No exception can be taken to this course, additionally because
the OM of 03-05-2012 indicated a fair method of filling the posts, i.e in
accordance with rules, after accommodating those LDCE candidates who
could not be promoted for want of vacancies in 2003, and conducting review
DPC for SQ promotees on the one hand and a special LDCE for those who
could not avail that benefit for the intervening period.
37. There is yet another dimension to the controversy. The decisions
relied on by CAT and the applicants, to say that retrospective assignment of
seniority is arbitrary, dealt with cases where the two sources of recruitment
were by promotion and direct recruitment. In the present case, the CSCS
Rules applicable to the cadre of UDCs exclusively required - at the relevant
time, appointment only by promotion. Of this source (promotion) 75% was
to be seniority based (SQ) whereas the rest (25%) was to be on the basis of a
limited departmental examination (LDCE). For SQ, the minimum eligibility
prescribed was 8 years' service in the grade of LDC; for LDCE quota, the
candidate could compete if she or he had completed 5 years in the feeder
cadre (LDC). Concededly, the petitioners were senior to the applicants in the
LDC quota and were eligible to be considered for the UDC cadre in the
seniority quota. However, they could not be considered, because there were
no vacancies then. Even the applicants were promoted to the LDCE
vacancies subsequently. In these circumstances, when the sources of
recruitment were the same, i.e promotion, the only difference being the
method of promotion (seniority and limited departmental exam) the claim of
W.P.(C) 209/2013 Page 42
being adversely affected made by the applicants could not have been of the
same order as in the case of retrospectively promoted or regularized
promotees, who may not enter the cadre regularly.
38. For the foregoing reasons, it is held that the findings and reasons
given by the CAT in the impugned order are not sustainable. The impugned
order is consequently set aside. The writ petition is consequently allowed;
the applications are disposed of in the above terms. There shall be no order
as to costs, in the circumstances of the case.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
JANUARY 21, 2015
W.P.(C) 209/2013 Page 43
