Union Of India And Anr. vs Jai Singh & Anr.
2017 Latest Caselaw 3271 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                     Reserved on: 02.05.2017
                                                       Decided on: 14.07.2017


+      W.P.(C) 11660/2015 and C.M. No. 30977/2015

       UNION OF INDIA AND ANR.                                .... Petitioners
                          Through:     Mr. Ruchir Mishra and Mr. Mukesh Kr
                                       Tiwari, Advocates.
                          Versus


       JAI SINGH & ANR.                              ..... Respondents

Through: Ms Harvinder Oberoi, Adv.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE DEEPA SHARMA

HON'BLE MS. JUSTICE DEEPA SHARMA

1. Vide the present writ petition, the petitioners have challenged the order

of the Central Administrative Tribunal dated 01.11.2013, passed in the

Original Application No. 1845/2012 filed by Jai Singh, the respondent No.1.

2. The brief facts of the case are that Shri Jai Singh was appointed

initially by the Staff Selection Commission in NSSO (FOD) under

Directorate of Statistics with effect from 05.03.1984 in the pay scale of 380-

WP(C) No.11660/2015 Page 1 640 revised to Rs.5000-8000 in 05th Pay Commission. On the formulation of

the Subordinate Statistical Service (SSS) on the basis of 05 th Pay

Commission, the respondent was absorbed/appointed in the Statistical

Investigator Grade-III in the pay scale of Rs.5500-9000 with effect from

01.04.2004. The SSS initially had following four tier of grades:-

(i) Statistical Investigator Grade I (Non Functional)

(ii) Statistical Investigator Grade II (Functional)

(iii) Statistical Investigator Grade III (Non Functional)

(iv) Statistical Investigator Grade IV (Functional)

3. The rules were notified with effect from 12.02.2002 governing the

service. The method of recruitment to SI Grade I was by promotion from SI

Grade-II with two year regular service while promotion to SI Grade-II was (i)

50% by direct recruitment through examination conducted by UPSC and (ii)

50% by promotion from SI Grade III with 3 years regular service. The total

sanction strength of Group D post (SI Grade-I and SI Grade-II) was 1536 out

of which 1075 posts were in SI Grade II and 461 in SI Grade I. Upon

recommendation of 06th Pay Commission and its acceptance vide Office

Memorandum dated 05.09.2008, the services of SSS were restructured. As a

result of restructuring, all the Grade I and Grade II Statistical Investigators in

WP(C) No.11660/2015 Page 2 pre revised scales of Rs.7450-11500 and Rs.6500-10500 respectively and

holding such posts as on 01.01.2006 were placed in the revised pay

band/scale of Rs.9300-34800 (PB-II) Plus Grade Pay of Rs.4600/- and re-

designated as Statistical Investigator Grade-I. As a result of this, the old SI

Grade-II and I were merged and became SI Grade-I and earlier SI Grade-III

and SI Grade IV were merged and re-designated as SI Grade-II. After the

merger as on 01.11.2008, the vacancy position in SI Grade-I and Grade II are

as under:-

Sanction Post In Position Vacancy

Post merger the petitioners vide office order dated 30.01.2009

promoted 520 SI Grade-II officers of SSS to SI Grade-I in PB-2 with Grade

Pay of Rs. 4600/- on ad hoc basis which included the respondent as well

whose name appeared at serial No. 283 against seniority number 284.

4. The new recruitment rules were proposed, wherein it was

recommended that the vacancies of SI Grade-I to be filled through promotion,

70% by seniority and 30% by holding Limited Departmental Competitive

Examination (LDCE) to the extent of 50% and 50% by direct recruitment as

WP(C) No.11660/2015 Page 3 per old Recruitment Rules (RRs). Pending approval and notification of the

proposed RRs, the ad hoc promotees in SI Grade I were granted benefit of

MACP vide order dated 19.02.2010 and 13.11.2009. The RRs were, however,

not finalized and the respondent No.1 filed the original application. He sought

directions directing the petitioners herein to frame the RRs expeditiously or

within a time bound frame, and also to regularize his appointment from the

date of ad hoc promotion, i.e., 30.01.2009. The said prayers of the respondent

No.1 were granted by the Tribunal. Since during the pendency of the OA, the

RRs were finalized, it was so noted by the Tribunal in its order. As regards

the relief sought by the respondent No.1 for regularization of his ad hoc

promotion, the Tribunal issued the following directions:-

"5. With the issuance of notification of the amended Recruitment Rules, the prayer made in clause 8 (A) of the Original Application stands granted to the applicant and only left out grievance is that he is not yet considered for regularization with effect from the date of his ad hoc promotion, i.e., 30.1.2009. It is settled position of law that a post need to be filled up in accordance with the Recruitment Rules in vogue at the time of occurrence of vacancy......

6. When the respondents had 524 vacant posts of Statistical Investigator Grade I since 12.11.2008, they could have processed to fill up the same in accordance with the Recruitment Rules in vogue...

8. In the existing circumstances, the direction, we can take, is that if the ad hoc promotion of the applicant made in

WP(C) No.11660/2015 Page 4 terms of O.M. No.12011/2/2010-SSS dated 30.1.2012 was made after following the procedure prescribed in the Recruitment Rules in vogue, then he would be deemed regular promotee from the date of his ad hoc promotion, otherwise the respondents would convene a regular DPC within four weeks from the date of receipt of a copy of this order and consider him for his regular promotion. In case the meeting of the DPC is delayed for any reason and held after retirement of the applicant, he would not be denied regular promotion on the ground that the retired government servants are though considered for promotion but are not given actual promotion and in the event of being found fit, he would be entitled to his regular promotion from the date of expiry of four weeks from the date of receipt of a copy of this order."

5. The challenge to the aforesaid directions by the petitioners is promised

on the submission that the respondent No.1 was duly apprised, when

promoted, that his promotion was purely on temporary basis and a stopgap

arrangement and could be withdrawn/cancelled at any time without assigning

any reasons, and that it did not bestow on him any claim for regular

appointment and his ad hoc services would not be counted for the purpose of

seniority in that grade and for eligibility for promotion, etc. The respondent,

well aware of these conditions enumerated in the letter of his ad hoc

promotion, accepted his promotion and, so now is estopped from seeking

regularization from the date of ad hoc promotion. It is further submitted that

the Tribunal has erred in not appreciating that on restructuring of the cadre

WP(C) No.11660/2015 Page 5 with effect from 01.01.2006, old RRs of 2002 became obsolete and were not

operative and the petitioners could not have acted under it. Even the DoPT in

its reply letter to the petitioner-seeking clarification, so advised. The posts,

therefore, had to be filled as per the new RRs which were in the process of

finalization. It is further submitted that there was no material on record to

show that the vacancies in SI Grade-I as on 01.11.2008 could be held to be

belonging to the period when old RRs were in vogue, therefore, the Tribunal

has erred in issuing such directions. It is further contended that the vacancies

had arisen because of restructuring and, therefore, could not have been

regularized by applying old RRs. It is further contended that since the first

MACP in grade pay of Rs.4600/- in PB-2 and 2nd MACP in grade pay of

Rs.4800/- in PB-2 has been granted to the respondent with effect from

01.09.2008, he has not suffered any financial loss. It is further submitted that

the said order is not tenable and is liable to be set aside.

6. We have heard the arguments of the learned counsels for the parties.

The order dated 16.12.2015 shows that the petitioners confined their case

only in respect of the directions of the Tribunal "if the ad hoc promotion of

the applicant made in terms of O.M. No.12011/2/2010-SSS dated 30.1.2012

was made after following the procedure prescribed in the Recruitment Rules

WP(C) No.11660/2015 Page 6 in vogue, then he would be deemed regular promotee from the date of his ad

hoc promotion...."

7. During the hearing before this Court, the petitioners argued that the

said ad hoc promotion with effect from 30.01.2009 was purely a temporary

measure and stop gap arrangement which could be withdrawn/cancelled at

any time without assigning any reason and that the said promotion had not

conferred any right of regular appointment to the respondent. It was further

contended that such a direction of the Tribunal would amount to granting

regular promotion to the respondent on the basis of the old RRs which were

not in operation after merger, and there were no vacancies. It is argued that

after the restructuring of the services and merger of several grades, the old

RRs of 2002 had become obsolete and thus were not governing the service

conditions of respondent No.1 and no regular promotion could be done under

old RRs of 2002. However, due to exigencies of service and since as a result

of merger, several posts in SI Grade-I were lying vacant, the ad hoc

promotions were done and at the time of such promotion, the respondent and

all others were duly informed that their promotion was purely temporary and

ad hoc and no rights of regular appointment to the post had accrued to them.

As per the DoPT guidelines, ad hoc promotions were initially considered for

WP(C) No.11660/2015 Page 7 one year by the CCA. However, keeping in view the exigency of work and

other factors, it were extended with the approval of DoPT from time to time

and the revised orders were issued. The opinion of DoPT for regular

appointment to these posts was also sought, however, the DoPT advised that

since on restructuring of the service, the old RRs have become obsolete, the

regular promotions could not be done under old Rules and it was under these

circumstances that petitioner did not make any regular appointment to these

posts. The same contentions were raised by the petitioners before the Tribunal

as well, and the Tribunal had relied on the ratio laid down by the Supreme

Court in the case of Y.V. Rangaiah & others v. V.J. Sreenivasa Rao &

others, (1983) 3 SCC 284 and Sunil Kumar Mehra v. M.C.D. & Another

(W.P. (C) No.2059/2012) decided on 8.5.2013 by this Court, while rejecting

the arguments of the petitioners. The Supreme Court in Y.V. Rangaiah

(supra), has settled the proposition of law relating to the applicability of old

rules to the post available that time and held 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 the respondents Nos. 3 to 15 would not

WP(C) No.11660/2015 Page 8 have been deprived of their rights 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 Statewide 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 supplied)

8. As to the validity of old RRs on merger of posts, the Supreme Court in

Government of Pondicherry & Anr. vs V. Ramakrishnan, AIR 2005 SC

4295, has clearly held 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 the UPSC says so. A rule validly made even if it has become unworkable unless repealed or replaced by another rule or amended, continue to be in force."

27. In Dr. Rajinder Singh Vs. State of Punjab and Others [(2001) 5 SCC 482], this Court held:

"7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so

WP(C) No.11660/2015 Page 9 far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution."

28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates 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 is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) 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 of India."

(emphasis supplied)

9. It is thus, the settled proposition of law that the RRs which are rules

notified under proviso to Article 309 of the Constitution of India or under any

specific statute for post(s) cannot be held obsolete or non-operative unless so

notified under Article 309 of the Constitution of India. The RRs can either be

amended or nullified only by a valid notification. In this case, till the new

RRs were framed, the old RRs were operative and binding and petitioners

cannot take the plea that on restructuring of the cadre, the RRs governing the

parties had become obsolete. Thus, the old RRs of 2002 were operative and

WP(C) No.11660/2015 Page 10 binding upon the parties. It is also apparent that the petitioners wanted to

make the regular appointments to the posts on merger of cadres, but it did not

do so on the advice of DoPT, and, instead made ad hoc promotions.

10. The learned counsel for the petitioners has relied on the decisions in the

case Union of India and Anr. vs. The Defence Marine Engineering

Technical Staff Welfare Association and Ors. W.P.(C) No. 244/2002,

decided on 08.12.2016 of this Court, and also on the decision in Pradeep

Kumar and Ors. vs. Govt. of N.C.T. of Delhi & Ors. W.P.(C) No. 19087-

91/2006 and argued that in these cases this Court has taken the view that the

employer was not bound to fill the posts under the old RRs, and if he decides

not to fill the posts in terms of old RRs and decides to fill the posts under new

RRs, such decision of the employer cannot be said to be mala fide or tainted.

It is argued that the petitioners have also acted bona fidely by not making any

regular appointments to the post under 2002 RRs pending finalization of the

new RRs and hence the directions of the Tribunal are against the law.

It is apparent that the decisions in these two cases were given on

different sets of facts. In both these cases, the employer had taken the

conscious decision of not filling the post till the finalization of the RRs and

no promotions were made under old RRs. The Supreme Court in the case of

WP(C) No.11660/2015 Page 11 Dr. Ramulu and Anr. v. Dr. S. Suryaprakash Rao and Ors., (1997) 3 SCC

59, has laid the proposition of law that where 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. This, however,

is not the situation in this case. The petitioners did not take any conscious

decision of not making any promotion under old RRs. Rather, they had made

the ad hoc promotions. The Supreme Court has further reiterated the

principle in the case of State of Punjab and Ors. vs. Arun Kumar Aggarwal

and Ors., (2007) 10 SCC 402 and observed as under:-

"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."

(Emphasis added)

11. Also, in the case of Commandant Shamsher Singh Malik v. Union of

India and Ors., ILR (2011) Supp. (4) Delhi 822, the Court has held 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

WP(C) No.11660/2015 Page 12 unamended 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)

12. The Court in the case of Pradeep Kumar and Ors.(supra) has

summarized the case law:

"28........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...."

13. In the present case, the petitioners have taken conscious decision to

promote the respondent and several others on the existing post as per old RRs

by issuing an ad hoc promotion orders. The promotion as well as the terms

and conditions of the employment of the respondent and others continued to

be governed under the old RRs of 2002 till replaced by new RRs. Also, if the

argument of the petitioner is accepted that there were no operative RRs after

merger of posts as per 6th Pay Commission, it would mean, there were no RRs

WP(C) No.11660/2015 Page 13 governing the parties and thus a vacuum existed, which cannot be filled.

Thus, the contention of the petitioners has no merit. Also, RRs 2002 contains

deeming provision. Note of Rule 12 reads as under:-

"Note:

For the purposes of these rules, "Regular basis" means (1) where a person is appointed in accordance with the procedure laid down in sub-rule (2) against a regular vacancy, then he shall be deemed to have been appointed to any grade or post on a regular basis."

These rules defines appointment on regular basis and includes the

employees who were:-

       (i)      Appointed against a regular vacancy

       (ii)     Appointed as per procedure in sub-rule (2)

14. If the appointment made fulfills these two conditions, the appointment

so made is considered to have been made on regular basis. It is immaterial if

it is given the nomenclature of ad hoc, temporary or otherwise. We, in the

light of above, find that the direction of the Tribunal to consider the ad hoc

promotion of the respondent, if made, after following the procedure

prescribed in the RRs in vogue, as regular promotion from the date of his ad

hoc promotion, to be in consonance with the RRs governing the parties. The

WP(C) No.11660/2015 Page 14 petitioners, therefore, have failed to point out any illegality in the order of the

Tribunal.

15. The petition has no merit and the same is dismissed.

DEEPA SHARMA (JUDGE)

VIPIN SANGHI (JUDGE)

JULY 14, 2017 BG

WP(C) No.11660/2015 Page 15