Delhi High Court
Biju P.K. And Anr. vs Union Of India & Ors. on 30 May, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 26.04.2016
Pronounced on : 30.05.2016
+ W.P.(C) 13/2015
MANOJ KASHYAP & ORS. ..... Petitioners
Through: Mr Deepak Verma and Mr R.P. Sharma,
Advocates
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Kirtiman Singh, CGSC with Mr
Pranav Agrawal and Mr Waize Ali Noor,
Advocates for UOI.
Mr. R.V. Sinha, Advocate for private
respondents.
+ W.P.(C) 2620/2015
BIJU P.K. AND ANR. ..... Petitioners
Through: Ms Usha Nandini and Mr Biju P. Raman,
Advocates
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Kirtiman Singh, CGSC with Mr
Pranav Agrawal and Mr Waize Ali Noor,
Advocates for UOI.
Mr. R.V. Sinha, Advocate for private
respondents.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J
1. OA No.148/2014 was filed by Assistant Registrars working on ad-
hoc basis in the Income-tax Appellate Tribunal, Mumbai (ITAT,
Mumbai). OA No.149/2014 was filed by Senior Hindi Translator
working at ITAT, Allahabad. The grievance of the applicants in OA
No.148/2014 was that by the letter under challenge dated 7 th March, 2013
existing vacancies in the post of Assistant Registrar were being filled by
way of promotion under the existing rules, namely, the Income-Tax
Appellate Tribunal (Class-I and Class-II posts) Recruitment (Amendment)
Rules, 1975 („1975 Rules‟ for short). The applicants in OA No.148/2014
were originally appointed on the post of Lower Division Clerk and
promoted to the post of Upper Division Clerk/ Head Clerk/ Assistants and
Superintendents. For convenience, we would in this appeal refer to them
as UDCs.
2. To their contrary, the Hindi Translator/ Senior Hindi Translators
sought enforcement of appointment to the post of Assistant Registrar, as
per the extant rules i.e. 1975 Rules and had filed OA No.149/2014 against
the inordinate delay in holding the Departmental Promotional Committee
(DPC for short) for consideration for promotion to the post of Assistant
Registrar. For the sake of convenience the applicants in OA No.149/2014
have been referred to as Translators.
3. As the issues involved in OA No.148/2014 filed at Mumbai and OA
No.149/2014 filed at Allahabad were connected and contradictory reliefs
were sought, they were transferred to the Principal Bench of the Tribunal
at New Delhi under Section 25 of the Central Administrative Tribunals
Act, 1985.
4. By the impugned common order dated 7.11.2014, OA No.148/2014
filed by the UDCs stands allowed and OA No.149/2014 filed by the
Translators has been dismissed. The Tribunal has directed the Union of
India and the President of ITAT, to ensure that the proposed amendments
to the 1975 Rules, if not carried out already, were carried out as early as
possible. Thereafter, the vacancies in the posts of Assistant Registrar
would be filled in accordance with the amended Rules as expeditiously as
possible. The President, ITAT would allow the UDCs to continue on ad
hoc basis at the post of Assistant Registrar till the said posts were filled on
regular basis in accordance with the amended Recruitment Rules.
5. The 1975 Rules were notified vide GSR 2326 dated 3rd July, 1975.
They have been enacted in exercise of power conferred by the proviso to
Article 309 of the Constitution. The relevant portion of the said Rule
relating to appointment / promotion to the post of Assistant Registrar
reads as under:
Name No. Classificati Scale Whethe Age limit Educational Whether
of post of on of pay r for direct and other age and
post selectio recruits qualification education
s n post s required qualificati
of non- for direct on
selectio recruits prescribed
n post for direct
recruits
will apply
in the case
of
promotees.
Assista 23 General Rs.650 Selectio 40 years Essential:- NO.
nt Central -30- n (Relaxable
Registr Services 740- for i) Degree in
ar (II) 35- Governme Law of
Gazetted. 810, nt Servant recognized
EB, - University or
40- equivalent.
1000-
ii) 3 years
Eb-40-
administrativ
e experience
in a
responsible
capacity in a
government
or Semi
government
organization
or
commercial
concerned of
repute.
(Qualificatio
ns relaxable
at
commission'
s discretion
in case of a
candidate
otherwise
well
qualified)
Desirable
Knowledge
of
government
rules and
regulations.
Period of Method of In case of recruitment by If DPC exists, Circumstances
probation Recruitment promotion/deputation/transfer, what is its in which the
if any whether by grades from which composition? U.P.S.C. is to
direct promotion/deputation/transfer be consulted in
recruitment to be made. making
or by recruitment.
promotion or
by
deputation,
transfer and
percentage
of the
vacancies to
be filled by
various
methods.
2 years 50% by Superintendent with three Class II Not
direct years regular service in the Departmental Applicable.
recruitment grade failing which Promotion
and 50% by Committee
promotion
failing which
6 years regular combined
by direct
service in the grades of
recruitment.
Superintendent and Asstt.
Superintendent failing which
Assistant Superintendent and
translators (Hindi/English)
with 6 years regular service in
the respective grades, failing
which
Assistant Superintendent with
10 years regular combined
service in the grades of
Assistant Superintendent
Head Clerk and Senior
Stenographer failing which
Head Cleark and Sr.
Stenographer with 10 years
regular service in the
respective grade.
6. Under the 1975 Rules, the post of the Assistant Registrar is to be
filled up 50% by direct recruitment and 50% by promotion, failing which
by direct recruitment. We are concerned with the posts to be filled up by
promotion. The essential qualifications prescribed in the case of direct
recruits is a degree in law from a recognized university or equivalent and
three years‟ administrative experience in a government or semi-
government organization or commercial concern of repute. Column 8 of
the 1975 Rules, however, states that educational qualifications prescribed
for direct recruits will not apply in the case of promotees. Qualifications
are relaxable at the Commission‟s, i.e. UPSC‟s, discretion, in case of a
candidate qualifying otherwise.
7. For promotion to the post of Assistant Registrar, a hierarchy has
been prescribed. Superintendents with three years regular service in the
grade are first in the hierarchy, and have to be considered first. Failing
which, Superintendents with six years combined regular service in the
grades of Superintendents and Assistant Superintendents have to be
considered. Failing which, Assistant Superintendents and Translators
(Hindi & English) with six years regular service in the respective grades
have to be considered at the third stage. Failing which, Assistant
Superintendents with ten years regular combined service in the grades of
Assistant Superintendents, Head Clerk, Senior Stenographers have to be
considered at the fourth stage. Failing which, at the fifth stage, Head
Clerk and Senior Stenographer with ten years regular service in the
respective grade have to be considered. The aforesaid stage-wise
hierarchical system is mandatory and has to be followed under the 1975
Rules. The words „failing which‟ are significant and postulate that only
when suitable, eligible candidates are not available, those placed in the
next Category in the hierarchy would be considered. Simultaneous
consideration of candidates in the lower hierarchy when employees are
available in the upper Category is not envisaged.
8. The translators, as noticed above, would fall in the third Category
and would be eligible in case the promotional post of Assistant Registrar
cannot be filled for lack of suitable or eligible candidates in the first or
second Category.
9. Recruitment for the post of „Translator‟ in the ITAT was governed
by the Income Tax Appellate Tribunal Translators (Hindi/English)
Recruitment Rules, 1972. These rules prescribed a minimum educational
qualification of a Law Degree from a recognized University with Hindi as
a subject at the degree level. However, as it was proving difficult to find
law graduates to fill these posts, the Ministry of Law and Justice,
Department of Legal Affairs amended these rules vide notification dated
13.09.2000 and the requirement of a degree of law was omitted. However,
the 1975 Rules remained un-amended and translators were not removed
from the list of posts eligible for promotion to the post of Assistant
Registrar.
10. In 2008, a three member „Committee‟ was formed by the ITAT on
the subject of holding a DPC (for short DPC) meeting for filling up the
vacancies of Assistant Registrar meant for promotion quota and, after due
deliberations, the committee proposed that "as far as appointments under
the promotion quota are concerned, the vacancies may be filled up under
the present Recruitment Rules. The vacancies have arisen in various
financial years from 2003-04 to 2008-09. Therefore, these promotions will
have to be made on the basis of existing Recruitment rules and a separate
DPC for each year will have to be held...."
11. The petitioners submit that this proposal was accepted and that a
decision was taken to convene the DPC for the post of Assistant Registrar
as per the 1975 Rules; that Respondent No. 2/ITAT sent a letter dated
03.03.2010 to Respondent No. 1/ Ministry of Law & Justice to this effect.
In reply, the Ministry sought information from the ITAT, for conducting
of the DPC. Instead of furnishing the information sought, ITAT sent a
proposal to Respondent No.1 for the amendment of the 1975 Rules to the
extent that the post of Hindi translators is removed as a feeder Category
for promotion to the post of Assistant Registrar on the ground that the
requirement of a Law degree was no longer applicable for them and that
other avenues of promotion had been made available to them. However, a
decision was taken resulting in the petitioners filling the vacant posts of
Assistant Registrars on an ad-hoc basis. Later, after consultation with
Respondent No. 3/ Department of Personnel & Training, Respondent No.
1/Ministry of Law & Justice conveyed its decision to the ITAT vide letter
dated 07.03.2013 that all existing vacancies for the post of Assistant
Registrar would be filled up through promotion under the provisions of
the 1975 Rules. The relevant portion of the letter dated 07.03.2013 has
been reproduced hereunder:
2. This Department had also requested DoPT to
furnish their considered views as to whether any
amendments to the Recruitment Rules shall apply
retrospectively or prospectively. Department of
Personnel & Training have stated that any
amendments in Recruitment Rules are given effect
only prospectively, except in rare cases. Therefore,
the existing vacancies of Assistant Registrar will be
filled up through promotion under the existing
provisions of the Recruitment Rules.
3. ITAT is accordingly requested to furnish DPC
proposal for promotion to the post of Assistant
Registrar, considering the following eligibility
criteria, as mentioned in column No. 11 of the
Income Tax Appellate Tribunal (Class I and Class II
posts) Recruitment Rules, 1975:-
(i) Superintendents with 3 years regular
service in the grade; failing which
(ii) Superintendents with 6 years regular
combined service in the grades of
Superintendent and Assistant Superintendent
(Now re-designated as Office
Superintendent); failing which
(iii) Assistant Superintendent and translators
(Hindi/English) [Now re-designated as Senior
Hindi Translators] with 6 years regular
service in the respective grades; failing which
(iv) Assistant Superintendent with 10 years
regular combined service in the grades of
Assistant Superintendent, Head Clerk and
Senior Stenographer; failing which
(v) Head Clerk with 10 years regular
service.
4. ITAT is also requested to furnish Draft
Recruitment Rules suggesting necessary
amendments in the Income Tax Appellate Tribunal
(Class I and Class II posts) Recruitment Rules,
1975, as per the instruction issued after 6th Pay
Commission by the DoPT vide its O.M. dated
24.03.2009."
12. The Court would note that in their joint reply to the OA, the
official respondents have admitted that as per the un-amended 1975
Rules, the petitioners would be entitled to be appointed as Assistant
Registrars as has already been advised to them by the Ministry of Law &
Justice vide order dated 07.03.2013. The relevant portion of the counter-
reply filed on behalf of respondent nos.1 and 2 viz. Ministry of Law and
Justice and the ITAT reads as under:
"...Since existing Recruitment Rules provide Hindi
Translators to be considered for promotion, the issue of
double channel of promotion is not true as the
Recruitment Rules for the promotion to the post of
Hindi Officer/Assistant Director (O.L.) is still not
finalized by the Ministry and therefore, this ground of
the applicant has no force."
13. The aforesaid conclusion was arrived at by the Ministry of Law
and Justice while examining the DPC proposal to consider promotions to
the post of Assistant Registrar in the ITAT which is annexed at page 206
of the paper book. It reads as under:
".... Sub: DPC proposal to consider promotion to the
post of Assistant Registrar in the Income Tax
Appellate Tribunal on promotion basis - reg.
Under consideration is a proposal received from the
Income Tax Appellate Tribunal for convening the
meeting of DPC to consider promotion to the posts of
Assistant Registrars in the ITAT against promotion
quota. The same may kindly be perused at Page 151-
155/ Corrs. ITAT was also requested to review the
ACRs of the eligible officers in terms of DoPT‟s OM
No. 21011/1/2010-Estt.A dated 13th April, 2010 (page
52/Corrs.), the reply to which have been received vide
letter dated 17.08.2010 (page 55/Corr.).
2. There are at present 38 sanctioned posts of Assistant
Registrars in the ITAT. As per the Income Tax
Appellate Tribunal (Class I and Class II posts)
Recruitment Rules, 1975 (Page 11-18/Corrs.), 50% of
the posts of Assistant Registrars are to be filled up by
direct recruitment and 50% by promotion failing which
by direct recruitment.
3. Total sanctioned strength of the cadre of Assistant
Registrars in the ITAT is 38, divided between Direct
Recruits and Promotees in 50% share each. Thus
promotion quota is 19 posts, which has further been sub-
divided community wise as under:
Unreserved - 16 (sixteen)
Schedule Caste - 02 (Two)
Schedule Tribe - 01 (One)
Total - 19 (Nineteen)
4. As per the Recruitment Rules for the post of Assistant
Registrar, ITAT, the eligibility criteria for promotion to
the post of Assistant Registrar is as under:
(i) Superintendents with 3 years regular service in the
grade; failing which
(ii) Superintendents with 5 years regular combined
service in the grades of Superintendent and Assistant
Superintendent (now re-designated as Office
Superintendent); failing which
(iii) Assistant Superintendent and translators
(Hindi/English) [Now re-designated as Senior Hindi
Translators] with 6 years regular service in the respective
grades; failing which
(iv) Assistant Superintendent with 10 years regular
combined service in the grades of Assistant
Superintendent, Head Clerk and Senior Stenographer;
failing which
(v) Head Clerk with 10 years regular service.
The officers in the lower grades are required to be
considered only which the officers in the higher grade
are not suitable/ eligible for promotion to the post..."
The Ministry took into account that:
"...7. The zone of consideration for the available 12
vacancies is 24. The following officials are now eligible
for promotion to the post of Assistant Registrar as per
the various eligibility criteria prescribed in the
Recruitment Rules for this post notified on 31st July,
1975 and may be reported to the DPC as under:
Category Eligibility Criteria as per Name of Date when
Recruitment Rules Official became
eligible for
promotion
Category Superintendents with 3 None N.A.
I years regular service in the
grade
Category Superintendents with 6 None N.A.
II years regular combined
service in the grades of
Superintendent and
Assistant Superintendent:
(Now re-designated as
Office Superintendent)
Category Assistant Superintendent 1. Kumari 23.08.2007
III and Translators (Hindi/ Rajni, P.G. Sr.
English) [Now re- Hindi
designated as Senior Hindi Translator
Translators] with 6 years 2. Manoj 1.10.2007
regular service in the Kashyap, Sr.
respective grades Hindi
Translator
3. Biju P.K. 11.10.2007
(OBC), Sr.
Hindi
Translator
4. Anupama 03.12.2007
Verma (SC) Sr.
Hindi
Translator
5. Manish 27.12.2007
Kumar Bhoi
(OBC), Sr.
Hindi
Translator
6. Madhuraj 11.09.2009
Singh
Narwaria, Sr.
Hindi
Translator
Category Assistant Superintendent 1. S.K. Rai, 02.03.2008
4 with 10 years regular Supdt.
combined service in the 2. G.B. Dhuri, 09.05.2010
grades of Assistant Supdt.
Superintendent, Head Clerk 3. D. K. 19.06.2010
and Senior Stenographer; Srivastava,
failing which Supdt.
4. A.K. 19.06.2010
Sharma, Office
Superintendent
5. M.S. Pal, 23.07.2011
Office
Superintendent
Category Head Clerk with 10 years None NA
5 regular service
No other candidate is eligible (as on 01.11.2011) as
the names of officials retired/ having below benchmark
grading, even after review, have been excluded.
8. The ITAT has proposed to exclude Senior Hindi
Translators from consideration on the plea that
Recruitment Rules for the post of Assistant Registrar are
proposed to revised. This is not possible at this stage as
all Recruitment Rules are prospective only and vacancies
occurred are to be filled with existing Recruitment
Rules, in which no change has been approved/ notified
so far....."
14. The proposal for filling up the posts shows that out of the five
feeder cadres, except for categories 1 & 2, the other three categories
were to be considered sequentially in the DPC exercise. In categories 1
and 2 no one was eligible for consideration. Strangely, the candidates in
Category-III were not proposed to be considered although they had a
higher educational degree - of graduation, whereas those in Category -
IV were proposed to be considered although they were not graduates but
only matriculates. The minimum recruitment qualification for Head
Clerk, Senior Stenographer, Assistant Superintendent is only 10 years
regular combined service in the grades of Assistant Superintendent,
Head Clerk and Senior Stenographer whereas qualification service for
Hindi Translator is 6 years regular service in that grade although they
have a much higher educational qualification, i.e., of graduation. It is
apparent that there was an emergent need to man the posts of Assistant
Registrars. Therefore, it would be in the interest of the ITAT to appoint
from the eligible persons to the posts of Assistant Registrars. Seeking to
exclude Senior Hindi Translators simply because there was a proposal
pending for many years to amend the Rules cannot come in the way of
the Senior Hindi Translators being considered by the DPC for promotion
to the post of Assistant Registrar. The right of the respondents not to fill
up the posts is unexceptionable. However, to fill the posts by ad hoc
appointments from persons in Category IV, while declining the same to
those Category III is contrary to the mandate of the extant Rules which
mandate that Category IV employees would be considered only if a
Category III employee cannot be promoted. Hence breach of the
prescribed hierarchy and sequence for consideration for promotion is not
only illegal and arbitrary, it is also discriminatory and falls foul of
Articles 14 and 16 of the Constitution. Therefore, whenever the said
proposed amendments are notified, they would be, applicable only from
the date of the notification, unless the new rules are retrospective.
Meanwhile, the vacancies which have arisen for the year 2003 will have
to be filled up as per the extant rules. Apropos the currently vacant posts
of Assistant Registrars, starting from the year 2003 onwards they would
need to consider all eligible candidates under the 1975 Rules, including
Senior Hindi Translators. Indeed, in the note dated 01.11.2011 it has
been recorded as under:
"The ITAT has proposed to exclude Senior
Hindi Translators from consideration on the
plea that Recruitment Rules for the post of
Assistant Registrar are proposed to revised.
This is not possible at this stage as all
Recruitment Rules are prospective only and
vacancies occurred are to be filled with
existing Recruitment Rules, in which no
change has been approved/notified so far."
15. A reading of paragraph 14 reflects and it is accepted that no one
from Category I and II was eligible for being considered for the post of
Assistant Registrar under the 1975 Rules. Interestingly, paragraph 11
records that Translators (Hindi / English) with six years‟ regular service in
the regular grade were eligible. Similarly, about five persons in Category
IV i.e. Assistant Superintendents with ten years regular combined service
in the grades of Assistant Superintendents, Head Clerk and Senior
Stenographers were also eligible. However, Category IV employees
would only be considered in case Category III employees are not selected
and appointed as Assistant Registrar i.e. even after such consideration
their remain some vacancies.
16. The question of filling up the post of Assistant Registrar is different
from filling up posts from Category IV employees on an ad hoc basis after
by-passing and ignoring the claim of Category III employees, who are
eligible for consideration. Any attempt to do so, would fall foul of the
Statutory Rules i.e. 1975 Rules and would be contrary to Articles 14 and
16 of the Constitution. It is apparent that there was an emergent and
necessary need to man the post of Assistant Registrar, but the official
respondents acted in an illegal manner by making ad-hoc appointments of
Category IV employees who were not eligible for consideration for
promotion, as there were Category III employees with six years regular
service available in the grade. The official respondent had the option not
to fill up the post, though such action could also be challenged, but they
cannot fill up the posts contrary to the extant rules in the hope that the
1975 Rules would undergo an amendment.
17. Normally, amendments to Recruitment Rules are not retrospective.
Vacant posts prior to the amendment would be governed by the earlier
rules and posts that fall vacant post the amendment would be governed by
the new rules. When we apply the said principle to the vacant posts of
Assistant Registrar starting from the year 2003, we cannot ignore the
claim of the eligible Translators to be considered under the 1975 Rules.
Indeed this position in law was understood as per the internal note dated
1st November, 2011 prepared by Department of Legal Affairs, Ministry of
Law and Justice.
18. We, therefore, have no hesitation in issuing the writ of certiorari
and setting aside the direction of the Tribunal to the official respondents
to first amend the Rules and thereafter fill-up the posts of Assistant
Registrars as per the amended Rules. The facts of the present case show
an unusual and peculiar situation. The Translators in Category-III, who
were eligible for consideration for promotion under 50% promotion quota,
were ignored and regular DPCs were not convened. At the same time, the
official respondents were confronted with a situation where they required
the posts of Assistant Registrar to be occupied, and had given ad hoc
promotions to those in Category-IV, obviously without holding of the
regular DPCs or following the procedure in the recruitment rules. In fact,
those in Category-IV could not have been considered and were ineligible
for promotion or even ad hoc promotion as long as there were eligible
candidates in Category-III, i.e., Translators. In this situation, the argument
that the official respondents were entitled and cannot be directed to not
fill-up vacant posts of Assistant Registrar under the 50% promotion quota
cannot be countenanced and has to be rejected. The conduct of the official
respondents beyond doubt and debate establishes that the posts of
Assistant Registrars were required to be filled-up, as indeed they were by
ineligible candidates, albeit on an ad hoc basis. The right to not fill-up
vacant posts, which we believe is not an absolute and unquestionable
right, would not curtail and prevent us from passing this order in the
aforesaid situation. In the given facts, we deem it proper and appropriate
to issue the writ of mandamus and directions to the official respondents to
consider the eligible Translators including Senior Hindi Translators for
promotion to the post of Assistant Registrar, by holding a DPC in
accordance with law. The said DPC will fill-up the posts of Assistant
Registrar as per the extant recruitment rules, i.e., 1975 Rules. The year-
wise vacancies will be ascertained and those eligible and within the zone
of consideration will be considered as per the extant 1975 Rules.
19. As the promotions have not taken place in accordance with law
since 2003 onwards, we deem it appropriate to direct that regular DPC be
convened within a period of six months from the date of receipt of a copy
of this order by the official respondents.
20. With the aforesaid observations and directions, the present writ
petitions are disposed-off. In the facts of the case, there will be no order as
to costs.
NAJMI WAZIRI, J
SANJIV KHANNA, J
MAY 30, 2016
