Delhi High Court
Union Of India & Anr. vs The Defence Marine Engineering ... on 8 December, 2016
$~R-1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Dated: 8th December, 2016
+ W.P.(C) 244/2002
UNION OF INDIA & ANR. ..... Petitioners
Through : Mr. R.V. Sinha and Mr. A.S. Singh,
Advocates
versus
THE DEFENCE MARINE ENGINEERING TECHNICAL STAFF
WELFARE ASSOCIATION & ORS. ..... Respondents
Through : Mr. S.S. Sastry and Mr. Rishi
Manchanda, Advocates along with
Respondent no. 2/Mr. V.K. Chawla
+ W.P.(C) 7885/2007
UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF
DEFENCE ..... Petitioner
Through : Mr. Ruchir Mishra, Advocate
versus
SEWA SINGH ..... Respondent
Through : Mr. S.S. Sastry and Mr. Rishi
Manchanda, Advocates
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J (ORAL)
1. Both the writ petitions arise out of orders passed by the Central
Administrative Tribunal (in short „the Tribunal‟). In W.P. (C) 244/2002
an order dated 31.08.2001 passed by the Tribunal in OA 2403/2000 is
impugned; while in W.P. (C) 7885/2007 an order dated 15.05.2007 in
WP (C) Nos. 244/2002 & 7885/2007 Page 1 of 26
OA 1910/2005 is impugned. While deciding OA 1910/2005, by a short
order, the Tribunal held that the applicant was similarly circumstanced
with the applicants in OA 2403/2000, wherein the Tribunal had quashed
the panel for promotion to Junior Scientific Officer created as per the
new recruitment rules and directed the respondents to prepare a fresh
panel as per the unamended recruitment rules.
2. The counsel for the parties agree that the basic facts are the same. The
point of law which arises for consideration is also the same. Arguments
have been advanced in both the matters and with the consent of the
parties; both the matters are being decided by a common judgment.
3. For the sake of convenience, the facts of W.P. (C) 244/2002 are being
noticed.
4. The respondent no.1 is the Defence Marine Engineering Technical Staff
Welfare Association; while respondent no.2/Mr. V.K. Chawla, who at
the relevant time, was working as a Senior Technical Assistant (in short
„STA‟) as was the the respondent in W.P. (C) 7885/2007. The grievance
of the respondents before the Tribunal was that despite being eligible for
promotion to the post of Junior Scientific Officer (in short „JSO‟), the
petitioner herein did not hold a DPC between the period 1994 to 2000,
thus depriving the respondents of their lawful promotion from STA to
JSO. The common case of the parties is that promotion to the post of
JSO, which was a Group „B‟ Gazetted Post, was to be filled up by
promotion from the feeder cadres of Foremen („FM‟), Senior Scientific
Assistant („SSA‟), Senior Technical Assistant („STA‟), and Chief
Draughtsmen („CDM‟).
5. The submission of the respondents/ applicants before the Tribunal was
that as per the unamended Recruitment Rules notified on 02.02.1982, the
feeder categories for the post of JSO were Foremen/Senior Scientific
WP (C) Nos. 244/2002 & 7885/2007 Page 2 of 26
Assistant/Senior Technical Assistant/Chief Draughtsmen. Further, a 20
point roster was to be followed in the chronological order of Foremen,
SSA, STA and Chief Draughtsmen. Later, vide OM dated 16.06.1998,
on the recommendations of the Board of Arbitration, the petitioner
allowed 41% of STAs to be placed in the pay scale of Rs. 2375-3500
w.e.f. 01.01.1988 but, according to the respondents herein this was only
a placement and did not amount to promotion, as the benefit of FR 22 (1)
(a) was not extended. Later, upon the recommendations of the Fifth
Central Pay Commission, STAs in the higher pay grade have been re-
designated as „STA-I‟ and the remaining have been designated as „STA-
II‟. The petitioners had not held any DPC for the post of JSO from 1994
to 2000 which resulted in accumulation of vacancies. In 2000, vide SRO
84 dated 21.03.2000 and notified on 08.04.2000, i.e. the amended
Recruitment Rules, the promotion to the grade of JSO was from the
feeder cadres of Foreman/SSA/Chief Draughtsman/STA-I in the
respective disciplines. While preparing the panel all the vacancies were
clubbed and the panel has been formed on the basis of the amended
Recruitment Rules. While 15 STAs would have been empanelled as per
the old Rules, only 9 STAs were included as per the new Rules as now
only STA-I stood as a feeder cadre to the exclusion of the persons now
categorised as STA-II. It was also submitted that in the panel impugned,
STAs were placed en bloc junior to Foremen, Chief Draftsman and
SSAs, which is not permissible as per law. The submissions of the
respondents before the Tribunal were that the failure of the petitioners
herein to follow the old Recruitment Rules, including the 20-point roster,
fewer posts have been allotted to STAs. It was incumbent upon the
petitioners herein to follow the old Recruitment Rules as the new Rules
had no retrospective effect and vacancies occurred prior to the
WP (C) Nos. 244/2002 & 7885/2007 Page 3 of 26
amendment should have been filled as per the old Rules. It was also
submitted that administrative instructions, of the Department of
Personnel and Training, Government of India („DoPT‟) in the present
case, could not override the statutory rules. The respondents herein had
relied upon DoPT Instructions dated 10.03.1989; P. Mohan Reddy v.
E.A.A.A. Charles and Others, 2001 (2) Scale 105; and Y.V. Rangaiah
v. J. Sreenivasa Rao, AIR 1983 SC 852.
6. Before the Tribunal, the stand of Union of India/ petitioner was that after
01.01.1988, on the basis of the award of Board of Arbitration, 41% of
posts each in the grades of SSAs and Chief Draughtsmen („CDM‟) were
accorded higher revised pay scale of Rs. 2,375-3,500 and classified as
„SSA (HS)‟ and „CDM (HS)‟. As such, while Group „B‟ Gazetted
promotional post of JSO was in the Pay Scale of Rs. 2,000-3,500; in
May, 1994, few category of Foremen, SSA (HS) and CDM(HS) were
also placed in Group B Gazetted at a higher Pay Scale of Rs. 2,375-
3,500. The DoPT, being the nodal authority in matters of promotion,
advised the petitioners not to hold the DPC for promotion to the post of
JSO until rationalization of the cadre structure; which was attained on
implementation of the recommendations of the Fifth Pay Commission
whereby the post of JSO was fixed in the upgraded scale of Rs. 7500-
12000 instead of the normal replacement scale of Rs. 6500-10500. As
regards the cadre of STAs, the upgraded scale of Rs. 6500-10500 has
been accorded, instead of normal replacement scale of Rs. 5500-9000
w.e.f. 01.01.1996 and the cadre was restructured into two separate
grades of STA Grade-I and STA Grade-II. In June, 1998 41% of the
posts of STAs were granted higher scale of Rs. 2375-3500 (pre-revised)
retrospectively w.e.f. 01.01.1988 and classified as „STA-I‟. At this
stage, the DoPT was again consulted, which decided to defer the filling
WP (C) Nos. 244/2002 & 7885/2007 Page 4 of 26
up of cadre of post of JSO unless the relevant recruitment rules are
revised and amended. The petitioners relied upon OM dated 25.05.1998
issued by DoPT providing inter alia that in the case of posts granted
higher pay scale and not the equated revised scale, the existing
recruitment rules were not to be operated pending revision of the rules.
Thereafter, the Recruitment Rules were amended, vide SRO 84 dated
21.03.2000, which had come in effect from 08.04.2000. The DPC had
met for all the available vacancies of JSO as available on 31.03.2001 and
created the impugned panel. According to the petitioners 1982
recruitment rules for the post of JSO had become inoperative after May,
1994 and as such upon the advice of the DoPT, the DPC had not been
held from the year 1994 to 2000. After restructuring cadre of STAs in
terms of order dated 12.02.1998, the persons holding the erstwhile post
of STAs are now designated either as „STA-II‟ in the upgraded revised
Pay Scale of Rs. 6500-10500 or „STA-I‟ in the higher scale of Rs. 7450-
11500. The respondents, having accepted the said replacement, could
not contend that they have been adversely by the empanelment. The
clubbing of vacancies has taken place on revision of 1982 Recruitment
Rules. It was stated by the petitioners before the Tribunal that as per the
revised recruitment rules, it is the STA-I who along with Foremen, SSAs
and CDMs were eligible for promotion and there is an arrangement of a
single select panel with reference to their dates of regular appointment in
their respective feeder grade. As regards the applicability of the 20-point
roster, it was submitted that the same was vague and is no longer
applicable.
7. The Tribunal had accepted the contentions of the applicants/ respondents
herein and rejected the contention of the petitioners that the holding of
DPC were deferred owing to rationalization of the feeder cadres
WP (C) Nos. 244/2002 & 7885/2007 Page 5 of 26
observing that restructuring could not have taken away the right of the
applicants to be considered for promotion as per the old Rules. The
Tribunal quashed the panel and directed the creation of a fresh panel as
per the unamended Recruitment Rules and as per the 20-point roster for
the vacancies from 1994-2000. Being aggrieved by the order of the
Tribunal, W.P.(C) 244/2002 was filed. Rule DB was issued in the matter
on 17.01.2002; on the same date the operation of the impugned order
was also stayed.
8. Mr. Mishra, learned counsel for Union of India, submits that the
Tribunal has failed to take into consideration that on account of change
in circumstances, the 1982 Rules became inoperative and the promotions
could not have been carried out after May, 1994 as three out of the four
feeder posts, i.e. SSA (HS), CMD (HS) and Foremen, which were
initially Group „C‟ posts, were upgraded to Group „B‟ Gazetted.
Counsel further points out that on the basis of an award of the Board of
Arbitration, while the pay scale of the promotional post of JSO remained
static, i.e. Rs. 2000-3500, the pay of Foreman, SSA and CDM increased
to Rs. 2375-3500. The post of STA was not upgraded to Group „B‟
Gazetted post and remained as a Group „B‟ Non-gazetted post.
9. Elaborating his arguments further, Mr. Mishra contended that since FM,
SSA and CDM were upgraded to Group „B‟ Gazetted posts, they no
longer remained as feeder posts and thus, in case any promotion was
made out of the fourth remaining feeder post, i.e. STA, it would have led
to an imbalance because as per the Rules, upon promotion from the four
feeder posts a common seniority list is prepared and further as per the
20-point roster introduced in 1987, 11 posts for Foremen, 1 post for
SSA, 6 posts for STA and 2 posts for CDM were allotted. The counsel
contends that in 1994, the petitioner had written to the DoPT bringing to
WP (C) Nos. 244/2002 & 7885/2007 Page 6 of 26
their notice the anomaly which had occurred on account of award dated
01.01.1988. It is contended that while necessary action to amend the
relevant recruitment rules was accordingly initiated, a reference was
made to the UPSC to allow filling the vacant posts in the grade of JSO
by promotion in accordance with the proposed provisions of the
Recruitment Rules pending their formal notification. Counsel contends
that it was only after the implementation of the 5th Pay Commission, that
the cadre was rationalized. The counsel has placed strong reliance on a
communication dated 28.06.1999 issued by the Ministry of Defence,
Government of India to all the parent Departments in question, which
reads as under:
"PROMOTION TO THE GRADE OF JUNIOR SCIENTIFIC
OFFICER IN DGQA ORGANISATION
This Headquarters have of late been receiving a number of
representations from individuals employees as also the
Associations in regard to the delay in filling vacant posts in the
grade of JSO by promotion of the concerned employees. The
intent of this letter is to bring out for information of all
concerned the constraints in this regard and the efforts being
made by this Headquarters to resolve the matter.
2. In accordance with the existing recruitment rules for the post
of JSO, the promotion to the post is required to be made from
amongst the persons holding posts of Foreman, Senior Scientific
Assistant, Chief Draughtsman and Senior Technical Assistant
with three years regular service in the respective grades. The
pre-revised pay scale of the post of JSO was Rs.2000-3500
whereas the posts of FM and 41% posts each of SSA and CDM
(referred to as SSA(HS) and CDM(HS) respectively) were in a
higher segment of Rs.2375-3500 of the pay scale of the post of
JSO. Promotion to the grade of JSO were being made in
accordance with the provisions of the existing recruitment rules
till such time FM/SSA(HS)/CDM(HS) were Group „C‟ categories
and STA (Rs.1640-2900) a Group „B‟ Non-Gazetted post. In
1994, the classification of FM/ SSA(HS)/CDM(HS) was changed
WP (C) Nos. 244/2002 & 7885/2007 Page 7 of 26
to Group „B‟ Gazetted at par with that of their promotional
grade of JSO in view of which a ruling was given by DOP&T
that their promotion would no longer be permissible. As a result,
no promotions could be made in the grade of JSO after 1993.
3. On implementation of the recommendations of the Fifth
Central Pay Commission, now-
(a) The post of JSO is in the pay scale of Rs.7500-12000.
(b) The posts of FM/SSA(HS)/CDM(HS) are in the pay
scale of Rs.7450-11500.
(c) The cadre of STAs has been restructured whereby 41%
posts of the cadre have been granted the pay scale of Rs.7450-
11500 and designated as STA-I.
(d) The posts of SSA(HS) and CDM(HS) have been re-
designated as SSA and CDM respectively and are to form the
feeder, alongwith FM and STA-I for promotion to the grade of
JSO.
4. In the light of the aforesaid changes, it has been opined by
DOP&T that the post of JSO can still not be filled unless the
relevant recruitment rules are suitably framed/amended. While
necessary action to frame/amend the relevant recruitment rules
was accordingly initiated, a reference was made to the UPSC
(JSO being a Group „B‟ post) to allow filling the vacant posts in
the grade of JSO by promotion in accordance with the proposed
provisions of the amendments to RRs pending their formal
notification. The matter was pursued with the Commission by
holding discussions at the highest levels. The Commission,
however, brought out that it was imperative that
amendment/finalization of the recruitment rules of the feeder
grade posts is settled first.
5. The crux of the situation, therefore, is that promotions to the
grade of JSO are dependent on finalization of the recruitment
rules for the post as also its feeder categories. These are
accordingly being pursued vigorously. Although the matter is
being expedited at all the levels, the finalization of the
recruitment rules is expected to take some time as their framing
involved consultation with and concurrence of DOP&T , UPSC
and Law Ministry."
(Emphasis Supplied)
10. Mr. Mishra has also drawn our attention to a OM issued by the DoPT
dated 25.05.1998 with regard to the upgradation of posts, which reads as
WP (C) Nos. 244/2002 & 7885/2007 Page 8 of 26
under:
"Amendment to Service Rules/Recruitment Rules, consequent
on revision of pay scales as recommended by the V CPC
...
...
(iii) Where there is an upgradation of posts
In some cases the Fifth Pay Commission has recommended a
higher pay scale and not equated revised scale. Further, in
certain cases the recommendations of the Pay Commission are
subject to fulfilment of specific conditions, e.g., changes in
Recruitment Rules, restructuring of cadres, redistribution of
posts, etc. As per guidelines issued by the DoP&T, whenever it
has been decided to upgrade any post, action should be taken by
the Administrative Ministry/Department concerned to reframe
the Recruitment Rules therefor. As the eligibility criteria for
direct recruitment or promotion or deputation, etc., to the higher
post will be different from those prescribed for a post on a
comparatively lower scale, it will be necessary to review the
relevant columns of the existing Recruitment Rules for the post
for which an upgraded revised scale has been approved and to
prescribe age-limits, qualifications, experience and eligibility
service for promotion/deputation appropriate to the higher level.
Such revision should, however, be undertaken in respect of only
those pay scales which have already been approved by the
Government and notified or the eligibility as prescribed has
undergone a change. Pending revision of the Recruitment Rules
with reference to the pay scales as approved by the Government,
the existing rules for the lower pay scale may not be operated."
(Emphasis Supplied)
11. It is further contended by learned counsel for the petitioners that from
the period 1994 to 2000, the petitioners struggled to ensure that the
anomaly which had occurred was streamlined before the DPC could be
held. The explanation rendered as to why the DPC could not be held
between 1994 to 2000 as per the Recruitment Rules of 1982 which were
amended in 1987 and as can be culled out from the arguments addressed
and noticed hereinabove are as under:
12. Mr. Mishra submits that in 1994, the following developments took place:
(a) 41% SSA post carrying higher pay scale were categorized as Group-
„B‟ Gazetted post;
(b) 41% CDM post carrying higher pay scale were categorized as Group-
„B‟ Gazetted post;
(c) The post of Foreman was categorized as Group-B Gazetted post;
(d) As per the above categorization, the post of SSA, Foreman and CDM
ceased to be feeder post for JSO.
The above categorization was the reason due to which DPC could not be
conducted as per the Recruitment Rules of 1982 amended in 1987. As
three posts were categorized as Group „B‟ Gazetted post and only STA
remained a feeder post. This rendered the old Recruitment Rules
inoperative, dysfunctional and incapable of implementation, even for the
post of STA which was continued to be feeder post. Accordingly, DoPT
in the year 1994 itself advised for restructuring of the cadre in order to
rationalize the same. However, the cadre could be restructured only
after the implementation of the recommendations of the 5th Pay
Commission. The recommendations were implemented w.e.f.
01.01.1996, pursuant to which JSO post was upgraded to the pay scale of
Rs.7500-12000 and was Group „B‟ Gazetted post, whereas the four post
posts were placed as under:
(a) Foreman Group „B‟ Gaz Rs.7450-11500
(b) Sr. Scientific Assistant[SSA] Group „B‟ Gaz Rs.7450-11500
(c) Sr. Technical Assistant[STA] Group „B‟ NG Rs.7450-11500
(d) Chief Draftsman[CDM] Group „B‟ Gaz Rs.7450-11500
13. Learned counsel for the petitioners submits that after the implementation
of the recommendations of the 5th Pay Commission, all the Foreman post
were kept in Rs. 7450-11500, whereas only those posts of SSA which
carried higher pay scale were kept in the pay scale of Rs. 7450-11500
and the rest carrying lower pay scale were kept in Rs. 6500-10500 and
similar was the case for the post of CDM. Thereafter, the cadre was
restructured in the year 1998. Pursuant to restructuring, STA was
divided in two categories STA-I (Rs.7450-11500) and STA-II (Rs.6500-
10500). After restructuring of the cadre, the Recruitment Rules were
revised and implemented w.e.f. 08.04.2000. It is clear from the above
that categorization of feeder posts as Group „B‟ Gazetted posts, three
posts ceased to be feeder posts and restructuring of the cadre became
necessary due to which the Recruitment Rules of 1982, as amended in
1987, ceased to be workable; therefore, the DPC was not conducted and
it was conducted after the Recruitment Rules were revised. Accordingly
past accumulated vacancies, for the period during which the Recruitment
Rules were unworkable, dysfunctional and inoperative, were clubbed
with the vacancies of subsequent years and were accordingly filled in as
per the revised Recruitment Rules.
14. Learned counsel for the petitioner has also relied upon on a decision of
this Court, in which one of us (G.S. Sistani, J.) was a member, in the
case of Pradeep Kumar & Ors. v. Govt. of NCT of Delhi & Ors., 2016
SCC OnLine Del 4599 to submit that while accepting that there was
justification in the delay in holding the DPC, the entire law on the
subject was analysed and various judgments of the Supreme Court were
taken into consideration. Reliance is also placed on another judgment of
a coordinate bench of this Court in the case of Union of India & Anr. v.
K.L. Taneja and Anr, 2013 Lab IC 2108, more particularly para 21.
15. The sum and substance of the argument of Mr. Mishra is that the DPC
could not be conducted between 1994 to the year 2000 due to the
administrative reasons and the Rules being inoperative and not on
account of malice, much less legal malice or inaction on the part of the
Department. Attention of the Court is also drawn to the communication
dated 28.06.1999, more particularly paragraph 4, which has been
reproduced in paragraph 9 aforegoing to show that an attempt to hold the
DPC was repelled by the UPSC and DoPT.
16. Mr. Sastry, the learned counsel appearing for the respondents, and
Mr. Chawla who appears in person as well, have strongly opposed the
present writ petitions. It is contended that the petitioners have failed to
show any ground much less a cogent ground which requires interference
in proceedings under Article 226 of the Constitution of India. The
submissions made before the Tribunal and reproduced by us in
paragraph 5 aforegoing are reiterated. Learned counsel submits that the
petitioners were not restrained by either by the instructions of DoPT or
the UPSC from holding the DPCs. It is contended that merely because
after the award, there was change in the pay structure or after May, 1994
there was re-categorisation and three out of the four feeder post had
become Group „B‟ Gazetted post would not come in the way of the
promotion of the respondents. It is contended that it was not the pay of a
particular post, but the status attached to the post which was to be
considered by the petitioners. In case the DPC was held in the years
1994 to 2000, the Mr. Chawla/ respondent no. 2 in W.P. (C) 244/2002
and Mr. Sewa Singh/ respondent in W.P. (C) 7885/2007 would have
stood promoted. Accordingly, on account of the fact that DPC was not
conducted between 1994 and 2000, great prejudice has been caused to
the respondents as they have not been considered for promotion although
they were eligible for promotion and this was solely on account of delay
in action and non-application of mind by the petitioners.
17. Learned counsel for the respondents submits that although the petitioners
have relied upon a communication of the DoPT, but no such a
communication has been placed on record and thus, reliance on this
communication is misplaced; to which Mr. Mishra, learned counsel for
the petitioners submits that the Tribunal has taken note of this
communication and no such plea was raised before the Tribunal and it
should be rejected at this belated stage. Learned counsel for the
respondents has placed strong reliance on the decision of the Supreme
Court in the case of Y.V. Rangaiah and Others v. J. Sreenivasa Rao
and Others, AIR 1983 SC 852. Reliance is placed upon the case of
U.O.I. through Govt. of Pondicherry and Another v. V. Ramakrishnan
and Others, AIR 2005 SC 4295, more particularly paragraphs 26 and
28, which read as under:
"26. The Rules did not become inoperative only because the two
scales of pay of the Superintending Engineer and the Chief
Engineer became same in terms of revised pay scales. A rule
does not become inoperative only because UPSC says so. A rule
validly made even if it has become unworkable unless repealed
or replaced by another rule or amended, continues to be in force.
As regards scale of pay, the matter should have been referred to
the anomaly removal committee. In terms of the new rules, the
criteria prescribed under the old rules were modified. Thus, till
the new rules were given effect to, no promotion to the post of
Chief Engineer could be effected in derogation to the criteria
prescribed under the existing Rules.
...
28. Valid rules made under proviso appended to Article 309 of
the Constitution operate so long the said rules are not repealed
and replaced. The draft rules, therefore, could not form the basis
for grant of promotion, when Rules to the contrary are holding
the field. It can safely be assumed that the principle in Abraham
Jacob [(1998) 4 SCC 65 : 1998 SCC (L&S) 995] , Vimal
Kumari [(1998) 4 SCC 114 : 1998 SCC (L&S) 1018]
and Gujarat Kishan Mazdoor Panchayat [(2003) 4 SCC 712 :
2003 SCC (L&S) 565] that draft rules can be acted upon, will
apply where there are no rules governing the matter and where
recruitment is governed by departmental instructions or
executive orders under Article 162 of the Constitution."
(Emphasis Supplied)
18. Mr. Sastry submits that this judgment would apply to the facts of the
present case and contends that a rule does not become inoperative
merely because UPSC says so. He further contends that a rule validly
made, even if it has become unworkable, unless repealed or replaced by
another rule or amended, would continue to remain in force. He also
contends that the Supreme Court in the case of V. Ramakrishnan
(Supra) (paragraph 28) has held that valid rules would continue to
operate so long till the said rules are not repealed or replaced.
19. We have heard the learned counsel for the parties and considered their
rival submissions. The issue which arises for our consideration in the
present matter is whether the delay in holding DPCs for the post of JSO
until the revision of Recruitment Rules is sustainable in law?
20. It is no longer res integra that the department can postpone holding of
DPC, if there are cogent reasons to defer promotions and a conscious
decision is taken not actuated by mala fides or merely owing to
administrative lapses. The issue was exhaustively dealt in a recent
judgment of a coordinate bench of this Court, in which one of us (G.S.
Sistani, J.) was a member, in Pradeep Kumar (Supra), wherein it was
held as under:
"20. In view of the above, the short question which arises for our
consideration is whether the vacancies which arose in the year
2003 are to be filled up by the prevalent recruitment rules/ 1986
Rules or as per the new recruitment rules/ 2005 Rules made
applicable from 2006; especially when the new recruitment rules
are prospective in nature.
21. In Y.V. Rangaiah (Supra), the petitioners therein were
aggrived by the failure of the department to prepare a panel for
making appointments to the grade of Sub-Registrars Grade II by
transfer. There was no decision by the department to defer the
creation of a panel, the deprivation of promotion was due to
delay occassioned by the department. By the time, the panel was
created, the relevant rules had been amended, by which the
petitioners therein were no longer eligible for the post they
desired. The Supreme Court ordered that the vanancies which
had occurred prior to the amendment of the rules shall be
governed by the old rules only. The relevant part reads as
under:-
"9. Having heard the counsel for the parties, we find no force
in either of the two contentions. Under the old rules a panel
had to be prepared every year in September. Accordingly, a
panel should have been prepared in the year 1976 and
transfer or promotion to the post of Sub- Registrar Grade II
should have been made out of that panel. In that event the
petitioners in the two representation petitions who ranked
higher than Respondents 3 to 15 would not have been deprived
of their right of being considered for promotion. The
vacancies which occurred prior to the amended rules would
be governed by the old rules and not by the amended rules. It
is admitted by counsel for both the parties that henceforth
promotion to the post of Sub- Registrar Grade II will be
according to the new rules on the zonal basis and not on the
State-wide basis and, therefore, there was no question of
challenging the new rules. But the question is of filling the
vacancies that occurred prior to the amended rules. We have
not the slightest doubt that the posts which fell vacant prior to
the amended rules would be governed by the old rules and not
by the new rules.
(Emphasis added)
22. Thereafter, the Supreme Court in Shankarsan Dash (Supra)
held that qualified candidates have no right to be appointed
against vacanies and the State is under no legal duty to fill up the
vacancies when they occur or are notified. The State may take a
decision bona fidely not to fill up the vacancies. At the same time,
the Supreme Court had struck a cautionary note saying that the
same will not enable the State to act in an arbitrary manner. The
relevant part reads as under:
"7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of candidates
are found fit, the successful candidates acquire an indefeasible
right to be appointed which cannot be legitimately denied.
Ordinarily the notification merely amounts to an invitation to
qualified candidates to apply for recruitment and on their
selection they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the State is under no
legal duty to fill up all or any of the vacancies. However, it
does not mean that the State has the licence of acting in an
arbitrary manner. The decision not to fill up the vacancies has
to be taken bona fide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is bound to
respect the comparative merit of the candidates, as reflected at
the recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this
Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subash Chander Marwaha [(1974) 3
SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] ,
Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 :
1986 SCC (L&S) 759] , or Jatinder Kumar v. State of Punjab
[(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR
899] ."
(Emphasis added)
23. In State of Bihar and Ors. v. Md. Kalimuddin and Ors.,
[1996] 1 SCR 314, the Government of Bihar had taken a
conscious decision to defer the appointments of wait-listed
candidates until the decision to revise the policy in respect to
reservation was finalized. The Government had decided that
further appointments will only be made as per the revised rules.
The High Court had condemned the decision of the Government
by expressing a "serious doubt" in the objective of the policy of
the Government. The Supreme Court reversed the decision of the
High Court holding that since the Government decided to defer
appointments for proper reasons and there was no mala fide on
the part of the Government.
24. A Full Bench of the Supreme Court in Dr. Ramulu (Supra)
took into consideration all the ertswhile judgments, including
Y.V. Rangaiah (Supra) and held that if the department takes a
conscious policy decision to stop further promotion as per
existing rule and the same is backed by proper reasons, then the
eligible employees cannot claim as a right the preparation of a
panel as per the old rules. The relevant paragraphs read as
under:
"12. The same ratio was reiterated in Union of India v. K.V.
Vijeesh [(1996) 3 SCC 139 : 1996 SCC (L&S) 683] (SCC
paras 5 and 7). Thus, it could be seen that for reasons
germane to the decision, the Government is entitled to take a
decision not to fill up the existing vacancies as on the relevant
date. Shri H.S. Gururaja Rao, contends that this Court in Y.V.
Rangaiah v. J. Sreenivasa Rao [(1983) 3 SCC 284 : 1983 SCC
(L&S) 382] had held that the existing vacancies were required
to be filled up as per the law prior to the date of the amended
Rules. The mere fact that Rules came to be amended
subsequently does not empower the Government not to
consider the persons who were eligible prior to the date of
amendment. It is seen that the case related to the amendment
of the Rules. Prior to the amendment of the Rules two sources
were available for appointment as Sub- Registrar, namely,
UDCs and LDCs. Subsequently, Rules came to be amended
taking away the right of the LDCs for appointment as Sub-
Registrar. When the vacancies were not being filled up in
accordance with the existing Rules, this Court had pointed out
that prior to the amendment of the Rules, the vacancies were
existing and that the eligible candidates were required to be
considered in accordance with the prevailing Rules.
Therefore, the mere fact of subsequent amendment does not
take away the right to be considered in accordance with the
existing Rules. As a proposition of law, there is no dispute and
cannot be disputed. But the question is whether the ratio in
Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382]
would apply to the facts of this case. The Government therein
merely amended the Rules, applied the amended Rules without
taking any conscious decision not to fill up the existing
vacancies pending amendment of the Rules on the date the
new Rules came into force. It is true, as contended by Mr H.S.
Gururaja Rao, that this Court has followed the ratio therein in
many a decision and those cited by him are P. Ganeshwar Rao
v. State of A.P. [1988 Supp SCC 740 : 1989 SCC (L&S) 123 :
(1988) 8 ATC 957] , P. Mahendran v. State of Karnataka
[(1990) 1 SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC
727] , A.A. Calton v. Director of Education [(1983) 3 SCC 33
: 1983 SCC (L&S) 356] , N.T. Devin Katti v. Karnataka
Public Service Commission [(1990) 3 SCC 157 : 1990 SCC
(L&S) 446 : (1990) 14 ATC 688] , Ramesh Kumar Choudha v.
State of M.P. [(1996) 11 SCC 242 : (1996) 7 Scale 619] In
none of these decisions, a situation which has arisen in the
present case had come up for consideration. Even Rule 3 of
the General Rules is not of any help to the respondent for the
reason that Rule 3 contemplates making of an appointment in
accordance with the existing Rules.
...
15. Thus, we hold that the first respondent has not acquired
any vested right for being considered for promotion in
accordance with the repealed Rules in view of the policy
decision taken by the Government which we find is justifiable
on the material available from the record placed before us.
We hold that the Tribunal was not right and correct in
directing the Government to prepare and operate the panel for
promotion to the post of Assistant Directors of Animal
Husbandry Department in accordance with the repealed Rules
and to operate the same.
(Emphasis added)
25. After the pronouncement of the Supreme Court in Dr. Ramulu
(Supra), the law is well-settled that the Government may take a
conscious decision to not effect promotions to existing vacancies
as per the prevalent rules and wait until the revision/ amendment
to the rules is carried out. At the same time, such a decision must
be based upon proper reasoning and should not be actuated by
mala fide. In this regard, the the Supreme Court in the case of
Arun Kumar Aggarwal (Supra) observed as under:
"18. Per contra Dr. Dhawan contended that the vacancies
arose during 2000-01 under 1941 Rules and, therefore, these
should be filled up under the 1941 Rules. He further
contended that the vacancies so arisen under 1941 Rules be
filled up according to the instructions issued on 1.10.1999,
29.12.2000 and 25.9.2003. He further contended that there
was no conscious decision arrived at by the Government.
According to him, such conscious decision, if any, must be
based on deliberations. According to him, there was no such
deliberation. He further contended that the conscious decision
of the Government, if any, cannot unsettle the Rules.
...
20. While it is true that there appears to be no definite
decision arrived at based on deliberations, the intendment of
the authorities can be gathered from various background and
circumstances.
...
30. There is no quarrel over the proposition of law that
normal rule is that the vacancy prior to the new Rules would
be governed by the old Rules and not by the new Rules.
However, in the present case, we have already held that the
Government has taken conscious decision not to fill the
vacancy under the old Rules and that such decision has been
validly taken keeping in view the facts and circumstances of
the case.
...
38. We hold that the Government has taken a conscious
decision not to fill up the posts under the old 1941 Rules. The
impugned order of the High Court is set aside. We may at this
stage point out that the problem seems to have been
compounded by the inaction/casual approach of the
Government detrimental to public interest. The State
Government shall now fill up the vacant posts in accordance
with the 2004 Rules within a period of three months from
today. All the eligible candidates who satisfy the criteria laid
down under the 2004 Rules shall be considered. The entire
process of recommendation and appointment shall be
completed within three months from today."
(Emphasis added)
26. Further in the case of Deepak Agarwal (Supra), it has been
held as under:
"26. It is by now a settled proposition of law that a candidate
has the right to be considered in the light of the existing rules,
which implies the "rule in force" on the date the consideration
took place. There is no rule of universal or absolute
application that vacancies are to be filled invariably by the
law existing on the date when the vacancy arises. The
requirement of filling up old vacancies under the old rules is
interlinked with the candidate having acquired a right to be
considered for promotion. The right to be considered for
promotion accrues on the date of consideration of the eligible
candidates. Unless, of course, the applicable rule, as in Y.V.
Rangaiah case [(1983) 3 SCC 284 : 1983 SCC (L&S) 382]
lays down any particular time-frame, within which the
selection process is to be completed. In the present case,
consideration for promotion took place after the amendment
came into operation. Thus, it cannot be accepted that any
accrued or vested right of the appellants has been taken away
by the amendment."
(Emphasis added)
27. The law in this regard was summarized by this Court in
Commandant Shamsher Singh Malik (Supra) as under:
"25. From a conjoint reading of the afore-noted judicial
decisions, the legal principle which emerges is that the normal
rule is that the vacancy which had arisen prior to amendment
of the rules would be governed by the un- amended Rules and
not by the amended Rules unless the amending rule is made
retrospective in operation or a conscious decision is taken to
fill up existing vacancies as per the amended Rule."
(Emphasis added)
28. In view of the aforegoing, it is clear that law in this regard is
no longer res integra. The general rule is that vacancies
occurring should be filled up as per the prevalent recruitment
rules. The same is subject to two exceptions, i.e. when the rules
are under consideration for amendment or revision and the
authority has taken a conscious decision to defer further
promotions until the changes are carried out or that the
proposed new rules are to be made applicable retrospectively.
Further, the decision to defer promotions should not be actuated
by mala fides and must be based on proper reasons. Such a
reason may be gathered from the background and circumstances
in which the decision was taken. The right of an employee to be
considered for promotion accrues only on the date of
consideration of eligible candidates by the department and not
before or if the rules provide for a particular time-frame in which
the selection process is to be concluded. No right accrues to the
candidates upon the occurance of vacancies."
21. Another Division Bench of this Court in K.L. Taneja (Supra) had
summarized the law as under:
"21. The cornucopia of case law above noted brings out the
position:
(i) Service Jurisprudence does not recognize retrospective
promotion i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant
promotion from a retrospective date would be valid
because of a power existing to do so.
(iii) Since mala fides taints any exercise of power or an act
done, requiring the person wronged to be placed in the
position the person would find himself but for the mala fide
and tainted exercise of power or the act, promotion from a
retrospective date can be granted if delay in promotion is
found attributable to a mala fide act i.e. deliberately
delaying holding DPC, depriving eligible candidates the
right to be promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a
year and there is no taint of malice, no retrospective
promotion can be made."
(Emphasis Supplied)
22. The present case is to be decided on the touchstone of the law laid down
by the Apex Court. The facts of the present case are that the
respondents, at the relevant period, were working as STAs and were
eligible for promotions to the post of JSO as per the erstwhile
Recruitment Rules. The old Recruitment Rules, being Directorate
General of Inspection (DGI) Organisation (Junior Scientific Officer)
Recruitment Rules, 1982 as amended in 1987 (hereinafter „1982 Rules‟),
governed the promotion to the post of JSO. As per the Rules, the posts
of Foreman, SSA, STA and CDM were feeder posts for JSO. In 1987,
by means of an amendment, a 20-point roster was introduced, which
assigned 11 posts for Foremen, 1 post for SSA, 6 posts for STA and 2
posts for CDM.
23. Upon implementation of the recommendations of the 4th Pay
Commission w.e.f. 01.01.1986, the pay scale of Foreman was increased
to a higher pay than the promotional post of JSO itself. Thereafter, by
the implementation of the award of the Board of Arbitration, w.e.f.
01.01.1988, 41% of the posts of SSA and CDM were given accorded a
higher pay scale equivalent to that of the Foreman and higher than JSO.
The posts with higher pay scale of SSA and CDM were classified as
SSA (HS) and CDM (HS) respectively. In 1994, the posts of Foreman,
CDM (HS) and SSA (HS) were categorized as Group „B‟ Gazetted posts.
At the same time, it is pertinent to notice that the promotional post of
JSO was also a Group „B‟ Gazetted post and having lower pay scales
than the feeder posts of Foreman, CDM (HS) and SSA (HS). In this
background, the petitioners have contended that the three posts no longer
remained as feeder posts for the post of JSO and accordingly the 1982
Rules were rendered inoperative.
24. Thereafter, the cadres could be rationalized only after the
implementation of the recommendations of the 5th Pay Commission in
1998 w.e.f. 01.01.1996. After the implementation of the
recommendations, cadre was rationalized as the promotional post of JSO
was given a higher pay scale than the feeder posts. Further in June 1998,
pursuant to restructuring, the post of STA was also divided into STA-I
and STA-II on similar lines as division of 41% of SSA and CDMs on the
recommendation of Board of Arbitration.
25. The following table would render clarity:
01.01.1986 01.01.1988 01.01.1996
Post Before 1986 May 1994 June 1998
(4th CPC) (Award) (5th CPC)
650-1200 2000-3500 2000-3500 2000-3500 7500-12000 7500-12000
JSO
Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz
840-1040 2375-3500 2375-3500 2375-3500 7450-11500 7450-11500
FM
Grp „C‟ Gz Grp „C‟ Gz Grp „C‟ Gz Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz
2375-3500
2375-3500 7450-11500 7450-11500
550-900 1640-2900 Grp „C‟ Gz
SSA Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz
Grp „C‟ Gz Grp „C‟ Gz SSA (HS)
SSA (HS) SSA SSA
(41%)
01.01.1986 01.01.1988 01.01.1996
Post Before 1986 May 1994 June 1998
(4th CPC) (Award) (5th CPC)
6500-10500 6500-10500
1640-2900 1640-2900
Grp „C‟ Gz Grp „C‟ Gz
Grp „C‟ Gz Grp „C‟ Gz
SSA SSA
SSA SSA
Grade-I Grade-I
2375-3500
2375-3500 7450-11500 7450-11500
Grp „C‟ Gz
Grp „B‟ Gz Grp „B‟ Gz Grp „B‟ Gz
CDM (HS)
CDM (HS) CDM CDM
700-900 2000-3200 (41%)
CDM
Grp „C‟ Gz Grp „C‟ Gz 6500-10500 6500-10500
2000-3200 2000-3200
Grp „C‟ Gz Grp „C‟ Gz
Grp „C‟ Gz Grp „C‟ Gz
CDM CDM
CDM CDM
Grade-II Grade-II
7450-11500
Grp „B‟ Gz
STA-I
550-900 1640-2900 1640-2900 1640-2900 6500-10500
STA (41%)
Grp „B‟ NG Grp „B‟ NG Grp „B‟ NG Grp „B‟ NG Grp „B‟ NG
6500-10500
Grp „B‟ NG
STA-II
Key- Gz: Gazetted; NG: Non-gazetted; Grp: Group (Amounts in Rs.)
26. In order to justify the deferring promotions beyond rationalization in
1998, the learned counsel for the petitioners has relied upon an OM
dated 25.05.1998 issued by the DoPT and communication dated
28.06.1999 issued by the Ministry of Defence, Government of India as
reproduced by us in paragraphs 9 and 10 aforegoing. In our view, the
OM and communication clearly show that based on the opinion of the
DoPT, it was conscious decision on the part of the petitioners not to
effect promotions till the Recruitment Rules were revised.
27. Subsequently in the year 2000, the Recruitment Rules were revised and
notified vide SRO 84 dated 21.03.2000 and published on 08.04.2000
(hereinafter „2000 Rules‟). As per the 2000 Rules, the posts of Foreman,
SSA, CDM and STA-I remained feeder posts to the post of JSO. SSA
(Grade-I), CDM (Grade-II) and STA-II were no longer feeder posts to
the post of JSO. Further, a ratio was to be fixed between the disciplines
on the basis of relative strength of the feeder categories in each
discipline. Thereafter, the panel, impugned before the Tribunal, was
created as per the 2000 Rules.
28. In view of the aforegoing, we are of the view that there were valid and
cogent reasons for the petitioners not holding DPCs from 1994-2000.
29. In respect of the contention of the respondents in respect of the
communication of the UPSC not being on record; we note that the same
has been recorded by the Tribunal in its order and even otherwise, the
absence of the communication makes no difference as it has been held in
State of Punjab v. Arun Kumar Aggarwal, (2007) 10 SCC 402
(paragraph 20) and Pradeep Kumar (Supra) (paragraph 28) that reasons
may be gathered from the background and circumstances in which the
decision was taken. Even the judgment of the Apex Court upon Y.V.
Rangaiah (Supra) does not come to the aid of the respondents as, in that
case, the department had failed to take any decision at all and the delay
in promotions was owing to administrative lapses; this has also been
held by a Full Bench of the Supreme Court in Dr. Ramulu and Anr. v.
Dr. S. Suryaprakash Rao and Ors., (1997) 3 SCC 59.
30. The last contention of the respondents was that the 1982 Rules do not
become inoperative only because the UPSC says so. Mr. Sastry had
relied upon the decision of the Supreme Court in V. Ramakrishnan
(Supra). According to us, reliance upon the judgment of V.
Ramakrishnan (Supra) is misplaced as the Supreme Court was dealing
with a case wherein the services of one employee, deputed as Chief
Engineer, were terminated and another employee (R. Sundar Raju) was
promoted to the post on ad hoc basis as per the draft rules in derogation
of the erstwhile rules. Accordingly, the observations in paragraph 26
and 28 quoted by us in paragraph 17 aforegoing were in the background
wherein the Government had decided to promote one person in
derogation of the erstwhile recruitment rules and does not deal with a
scenario where no promotions are being affected pursuant to a conscious
decision. We may note the following observations therein:
"31. In terms of Article 16 of the Constitution, the employees
similarly situated cannot be discriminated. Employees having the
same qualification, thus, must be considered by a duly
constituted DPC consisting of the Chairman/Member, UPSC,
Chief Secretary and Secretary (Works). It is unfortunate that the
Government of Pondicherry instead and in place of asking UPSC
to constitute a DPC for consideration of the cases of all eligible
candidates, passed the order (vide letter dated 28-9-2005) on the
same day on which the new rules came into effect, requesting
UPSC to regularise the services of R. Sundar Raju as Chief
Engineer from the date of his ad hoc promotion. Such an act
betrays a lack of bona fides on the part of a State which is
required to be performed in a fair and reasonable manner. It
smacks of favouritism. Having regard to the unauthorised
purpose for which the action has been taken, the same would
attract the principle of malice in law. (See Punjab SEB
Ltd. v. Zora Singh [(2005) 6 SCC 776] .)"
(Emphasis Supplied)
31. In the present case, there is no allegation of mala fides and accordingly,
reliance of the counsel for the respondents on V. Ramakrishnan (Supra)
is misplaced.
32. In the light of the above discussion, we find that a conscious decision
was taken to defer promotions until revision of Recruitment Rules as the
1982 Rules had become inoperative. Accordingly, the present writ
petitions are allowed, the orders of the Tribunal are set-aside.
33. No costs.
G.S.SISTANI, J.
VINOD GOEL, J.
DECEMBER 08, 2016
//pst
