Delhi High Court
Patanjali Sharma vs Union Of India & Ors. on 18 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.2979/2013 & CM Nos.5629/2013 & 5632/2013
+ Reserved on: 4th September, 2017
Date of Decision: 18th September, 2017
PATANJALI SHARMA ..... Petitioner
Through: Mr.Shanker Raju, Advocate with
Mr.Nilansh Gaur, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr.Sanjeev Narula, CGSC with
Ms.Anumita Chandra, Advocate
for R-1.
Mr.Naresh Kaushik, Advocate
with Mr.Devik Singh & Ms.Anjali
Sharma Advocates for R-2.
Mr.A.P. Singh, Advocate for
Mr.A.K. Behera, Advocate for
R-64.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
JUDGMENT
REKHA PALLI, J
WP(C) No.2979/2013
1. The present writ petition assails the order dated 16.12.2011
passed by the Central Administrative Tribunal, Principal Bench,
New Delhi in OA No.3310/2009 whereby the Tribunal has vide
its common order, dismissed the OA filed by the Petitioner along
with OA No.3294/2009 filed by another similarly placed person.
The Petitioner had preferred the said OA, challenging the non-
consideration of Grade 'A' and 'B' (merged) Stenographers of
Central Secretariat Stenographers Service (hereinafter referred to
as 'CSSS') for promotion to the post of Grade-I (Under
Secretary) of the Central Secretariat Services (hereinafter referred
to as 'CSS') during the years 2003 to 2007.
2. The facts relevant for the adjudication of the present
petition are, that the Petitioner had joined the Central
Government as a Stenographer Grade 'C' (Personal Assistant) in
the Department of Personnel and Training on the basis of
Stenographer Grade 'C' Examination 1995 conducted by the
UPSC. The Petitioner thereafter, appeared for the Section
Officers/Stenographers Grade 'A' and 'B' (merged) Limited
Departmental Competitive Examination 1991 and competed for
the posts of both Section Officer as well as of Stenographer
Grade 'A' and 'B' (merged). The Petitioner was, however,
unable to qualify for the post of Section Officer and could qualify
for the post of Stenographer Grade 'A' and 'B' (merged), which
he, accordingly joined and thus he belongs to the 1991 select list
of Stenographers Grade 'A' and 'B' (merged).
3. The CSS and CSSS are two different services, having
qualitative differences in terms of nature of work, duties,
responsibilities and method of recruitment at different levels.
While the CSS was constituted for ensuring continuity in policy
administration in the Central Secretariat, the CSSS is meant for
providing stenographic and secretarial assistance to the officers
in the Central Secretariat and give them support in discharge of
their duties. The promotional hierarchy of both the services is as
under:-
CSS CSSS
Assistant Group-'B' Steno. Grade 'D' Group 'C'
Section Group-'B' Steno. Grade 'C' (PA) Group 'B'
Officer (Gazetted)
Grade-I Group-'A' Steno. Grade 'A' & 'B' Group 'B'
(Under (Gazetted) (Merged) (PS) (Gazetted)
Secretary)
Selection -do- Principal Private Group 'A'
Grade Secretary (PPS) (Gazetted)
(Deputy
Secretary) (Introduced w.e.f.
01.01.1996).
Sr. -do- Senior Principal -do-
Selection Private Secretary (Sr.
Grade PPS) (Introduced w.e.f.
(Director) 01.01.1996).
Principal Staff -do-
Officer(PSO)
(Introduced w.e.f.
01.01.2006).
4. The Petitioner who was in 2003 working on the post of
Stenographer Grade A & B(merged) in the CSSS, was desirous
of induction in the CSS by way of promotion to Grade I of the
CSS. However neither the Petitioner nor any other Stenographer
Grade A & B (merged) from the CSSS was considered for
placement in the Select List for promotion to the Grade I of the
CSS. Feeling aggrieved by his non-consideration and non-
placement in the select list for promotion to the Grade-I (Under
Secretary) of the CSS for the vacancies arising during the period
2003 to 2007, the Petitioner made representations seeking
consideration for promotion to Grade-I(Under Secretary) in the
CSS and upon rejection of his representations on the ground that,
having not worked as Section Officer for 2 years he was not
eligible for promotion to Grade I in the CSS, he preferred the
instant OA before the Tribunal wherein he sought the following
reliefs:-
"8.1 To call for the records of this case.
8.2 Declare the applicants/regular officers of Grades A
and B (merged) of the CSSS to be eligible to be considered
for promotion to the post of Under Secretary against the
vacancies for the years 2003 to 2007, in accordance with
Rule 12 (2) & (3) of CSS Rules, 1962 and CSS (Promotion to
Grade I and Selection Grade) Regulations, 1964 in force for
the vacancies and consistent with Articles 14 and 16 of the
Constitution of India.
8.3 Declare the action of Respondent No.1 to deny the
right of the applicants to be considered for promotion to
the post of Under Secretary against the vacancies arisen
for the years 2003 to 2007 and that of the first and the
second Respondents to prepare Select List Panel of Grade I
for the year 2003 from common Seniority List of Section
Officers as discriminatory, arbitrary and violative of
Articles 14 and 16 of the Constitution of India.
8.4 Direct the Respondent No.1 to consider preparation
of the 'single list' of "eligible officers"/Eligibility List
comprising the names of Section Officers and the
applicants/regular officers of Grades A and B (merged) of
the Central Secretariat Stenographers' Service as the
feeders grade for promotion to Grade I (Under Secretary),
in accordance with Rule 12 (2) & (3) of CSS Rules, 1962 and
CSS (Promotion to Grade I and Selection Grade)
Regulations, 1964 in force for the vacancies for the years
2003 to 2007.
8.5 Direct the Respondent No.1&2 to consider inclusion
of names of the Section Officers and the applicants and
other regular officers of Grades A and B (merged) of the
CSSS in the Select List panels of Grade I (Under Secretary)
of the CSS for the years 2003 to 2007, in accordance with
provisions of Rule 12 (2) & (3) of CSS Rules, 1962 and CSS
(Promotion to Grade I and Selection Grade) Regulations,
1964 in force for the vacancies and consistent with
provisions of Articles 14 and 16 of the Constitution with all
consequential service benefits and to determine the
seniority of the applicants.
8.6 Direct the Respondent No.1 to consider inclusion of
names of the applicants for the mandatory Level 'D'
training programme, as envisaged for the Section Officers,
before promotion to the post of Under Secretary.
8.7 Cost of the application may be awarded in favour of
the applicants and against the answering Respondents.
8.8 Any other relief, as deemed fit, may also be
awarded in favour of the petitioners and against the
respondents in the interest of justice."
5. Before the Tribunal, the case set up by the Petitioner was
that in accordance with the Central Secretariat Services Rules,
1962 as amended on 24.02.1999(hereinafter referred to as Rules),
the official Respondents were enjoined to prepare a select list for
promotion to Grade I of the CSS, by including all eligible
officers both from the Stenographers Grade 'A' and 'B' (merged)
in the CSSS and the Section Officers in the CSS. The
Respondent Authorities had, however failed to prepare a proper
list, as while preparing the select list, they had included only the
CSS officers and deliberately excluded all the eligible CSSS
officers, on the ground that they did not have two years
experience on the post of Section Officer in the CSS. According
to the Petitioner, the requirement of working for two years as a
Section Officer, as being a pre-condition for eligibility for
promotion to Grade-I, stood abolished after the amendment of
Rule 12 (2) carried out pursuant to notification dated 24.02.1999.
The basic plea of the Petitioner before the Tribunal, thus was,
that Rule 10 had become redundant after the amendment
notification dated 24.02.1999 and under the amended Rule 12(2)
there was no requirement for the Petitioner's cadre to have
worked as a Section Officer for at least a period of two years, for
being eligible to be placed in the select list for promotion to
Grade-I (Under Secretary) of CSS. The alternate plea of the
Petitioner before the Tribunal was that since even otherwise, it
was an admitted fact that the Respondents did not post any
Stenographers Grade A & B (merged) from the CSSS to work as
Section Officer, the member of the CSSS could not be denied
their entitlement to be promoted as Grade-I (Under Secretary)
because of the failure on the part of the Respondents in deputing
the eligible Stenographers Grade A & B (merged) to work as
Section Officer.
6. The Respondents-both official and private while opposing
the OA, contended before the Tribunal, that only those officers of
Grade 'A' and 'B' (merged) of the CSSS who had served as
Section Officer, constituted the feeder cadre of Grade-I (Under
Secretary) of the CSS and since the Petitioner had never worked
as a Section Officer, he was not eligible for being considered for
inclusion in the select list of Grade-I. It was also brought to the
notice of the Tribunal that vide notification dated 01.02.2008 the
Government had altogether stopped the lateral entry of CSSS
officers to any grade of CSS and thus it was contended that both
the services were now totally separate.
7. The Tribunal vide its impugned order, has dismissed the
OA, by holding that as per the Rules, it was necessary for
Stenographer Grade A & B(merged) (Private Secretaries) from
the CSSS to have two years experience as a Section Officer in
order to become eligible to be promoted as Grade-I (Under
Secretary) in the CSS. The Tribunal held that till 01.02.2008, the
Private Secretaries coming from CSSS were eligible for lateral
entry at the Section Officers level of CSS, and there was no
provision for implantation of Private Secretaries (Stenographers
Grade A & B (merged)) directly to the promotional posts of
Under Secretary in the CSS. While dismissing the OA, the
Tribunal also took note of the fact that pursuant to the
notification of 2008, the link for lateral entry of officers of the
CSSS to the CSS was completely snapped and both the services
i.e. CSSS ad CSS became completely distinct, with specific
promotional avenues for officers belonging to these cadres,
without any provision for lateral entry of the CSSS officers to
any post in the CSS.
8. Aggrieved by the dismissal of his OA, the Petitioner has
preferred the present petition.
9. Before us, Mr.Shanker Raju, Advocate arguing for the
petitioner has raised three contentions and even though they are
similar to the ones raised before the Tribunal, we propose to deal
with each of them separately. The core issue however, which
needs to be determined in the present case, is as to whether it was
mandatory for officers of the CSSS with the requisite 8 years
service in their Grade, to have 2 years experience of working as a
Section Officer, before being placed in the select list for Grade-I
of the CSS, which list was used as the base for promotion to
Grade I (Under Secretary) in the CSS.
10. The first and foremost plea raised by Mr.Shanker Raju,
learned counsel for the Petitioner is that recruitment to Grade I
(Under Secretary) of the CSS was regulated only by Rule 12(2)
of the CSS Rules 1962. He contends that Rule 10, on which
reliance had been placed by the Tribunal to dismiss the OA, was
not at all relevant for determining the eligibility of officers of the
CSSS for being placed in the select list for promotion to the post
of Grade I in the CSS. According to him it is only Rule 12(2) of
the CSS Rules which regulated the recruitment to Grade I (Under
Secretary), and only Rule 12(2) of the CSS could form the basis
for preparation of the Select Lists for the years 2003-2007. As
per the learned counsel, once the provisions of sub-rule (2) of
Rule 12 were clear and unambiguous, the Respondents could not
be allowed to rely on Rule 10 or Regulation 5(2)(a) to determine
the eligibility of the CSSS officers for being placed in the select
list of Grade I of the CSS.
11. The second plea raised by Mr. Shankar Raju is that, even if
the requirement to be posted as Section Officers before
consideration for promotion to Grade I of the CSS, is considered
mandatory, the onus to fulfill any such requirement was squarely
on the Cadre Controlling Authority and the Petitioner could not
be penalised for the default committed by the official
Respondents. He submits that Respondent No.1 and 2 having
failed to appoint Petitioner and other similarly placed officer as
Section Officer for 2 years, cannot now deprive the Petitioner and
other Stenographer Grade A & B(merged) in different
Ministries/Departments of their right to be placed in the Select
List of Grade I of the CSS.
The submission of Mr. Raju, thus is that once posting of
employees of the CSSS was the prerogative of the Respondents,
Petitioner and other CSSS officers could not be deprived of their
valuable right to earn promotion to the post of Under Secretary
(Grade I) in CSS on account of the Respondent's inaction to post
them as Section Officer.
12. The third and last submission of the learned counsel for the
Petitioner is that, in any event, once the Respondents failed to
discharge their obligation to post the Petitioner and other
similarly placed officers of the CSSS, as Section Officer in the
CSS, they ought to have exercised their discretion to invoke the
exigency clause by placing them in the Select List by relaxing the
requirement of having two years experience in the post of Section
Officer. He contends that once the lapse in not posting the
Petitioner and other CSSS officers as a Section Officer, was that
of the Respondents, they ought to have taken recourse to the
exigency clause, to ensure that the interest of the, otherwise
eligible, CSSS officer is safeguarded.
13. On the other hand, Mr. Sanjeev Narula, the learned counsel
for the Respondent no.1 while supporting the impugned order
submits that the Petitioner who belongs to the CSSS, cannot
claim promotion to Grade I in the CSS, as he has admittedly not
put in even a single day of service in any of the grades of CSS.
He submits that a combined reading of Rule 10 and 12(2) of the
CSS Rules clearly shows that the requirement of working as a
Section Officer for Stenographer Grade A & B (merged)
belonging to CSSS was a pre-condition for promotion to the
Grade I of CSS, which always existed. He submits that this
mandatory requirement flows from Rule 10 and Regulation
5(2)(a) and the same has not changed in any manner after the
amendment of Rule 12(2) on 24.02.1999.
14. While reiterating that the two services CSS and CSSS are
entirely different and independent of each other, learned counsel
has further submitted that based on the recommendations of the
Vth CPC and an expert Committee of officers, the Government of
India-with the approval of the Union Cabinet, had taken a
decision in July 2005 itself, for immediate stoppage of lateral
entry of CSSS officers in the Grade I (Under Secretary) of the
CSS. Mr. Narula has further drawn our attention to the fact that,
even otherwise, the Petitioner has adequate promotional
opportunities in his own service(CSSS) and he is eligible for
earning promotion up to the post of Principal Staff Officer
(equivalent to Director of CSS). He further points out that in
2010 itself, the Petitioner stood promoted to the post of Principal
Private Secretary, which is a Group 'A' gazetted post and,
therefore, submits that the writ petition deserves to be dismissed.
15. We have heard learned counsel for the parties, examined
the impugned order as well as the Central Secretariat Service
Rules, and the Central Secretariat Service (Promotion to Grade I
and selection Grade) Regulations 1964.
16. Before we proceed further, it would be apt to set out the
relevant provisions of the Central Secretariat Service Rules, 1962
(the 'Rules') which deal with the controversy in the present case.
The relevant rules, as they stood at the time of accrual of
vacancies of Grade I in the CSS from 2003 to 2007 with which
we are concerned, read as under:-
2(e) "cadre" means the group of posts in the Grades of Section
Officer and Assistant in any of the Ministries or Offices specified
in column (2) of the First Schedule and in all the Offices specified
against such Ministry or Office in column (3) of that Schedule;
(g) "cadre officer" in relation to the Section Officers' Grade
or the Assistants' Grade means a member of the Service of
the Section Officers' Grade or Assistants' Grade, as the case
may be, and includes a temporary officer approved for long
term appointment to that Grade;
(j) "duty post" in relation to any Grade means a permanent or
temporary post of that Grade and shall, in relation to Grade I and
the Section Officers' Grade, include the posts specified in column
(2) and (3) respectively of the Second Schedule in respect of the
offices specified in column (1) of that Schedule;
(q) "Select List" in relation to the Selection Grade and Grade
I or the Section Officers' Grade and the Assistants' Grade
means the Select List prepared in accordance with the
regulations made under sub-rule (4) of the rule 12 or under
the regulations contained in the Fourth Schedule, as the
case may be;
(r) "Service" means the Central Secretariat Service;
3. Composition of the Service.- (1) There shall be four grades in the
Service classified as follows, namely:-
Grade Classifications
(i) Selection Grade (Deputy
Secretary to the Central Civil Service
Govt. of India or Group A Ministerial
equivalent
(ii) Grade I (Under Secretary
to the Govt. of India
or equivalent)
(iii) Section Officers' Grade Central Civil Service
(iv) Assistant's Grade Group B Ministerial
7. Exclusion of duty posts from the cadre.- Except in the
case of the Selection Grade or Grade I of the Service, any
duty post in a Grade may be declared by the cadre
authority, with the concurrence of the Central
Government in the Department of Personnel and Training
in the Ministry of Personnel, Public Grievances and
Pensions to be excluded from the Cadre -
(i) if such post is required, for the time being, to be
filled by the appointment of persons possessing special
or technical qualifications or experience; or
(ii) if it is necessary, for the time being, to fill such post
by a person other than a cadre officer of the
appropriate Grade.
and the post shall remain excluded from the cadre so long
as such declaration remains in force.
10. Duty posts to be held by cadre officers.- Every duty post
in a cadre shall, unless declared to be excluded from the
cadre under rule 7, or held in abeyance for any reasons, be
held by a cadre officer of the appropriate Grade.
#
Provided that, subject to such instructions as the
Department of Personnel and Training in the Ministry of
Personnel, Public Grievances and Pensions may, from time
to time issue, officers of Grade A of the corresponding
Cadre of the Central Secretariat Stenographers' Service,
who have rendered not less than two years' service in that
Grade may be posted to duty posts in the Section Officers'
grade and officers of grade C Stenographers' of the
corresponding Cadre of the Central Secretariat
Stenographers' Service who have rendered not less than
five years service in that grade may be posted to duty posts
in the Assistant's Grade, the period of such appointment in
either case being limited to two years. Officers of the
corresponding cadre of the Central Secretariat
Stenographers' Service so appointed to duty posts in the
Section Officers' and Assistants' Grade shall continue to
draw the grade pay admissible to them in that service from
time to time.
12. Recruitment to Selection Grade and Grade I.- (1)
Vacancies in the Selection Grade shall be filled by promotion of
regular officers of Grade I who have rendered not less than five
years' approved service in that Grade and are included in the
Select List for the Selection Grade prepared under sub-rule (4).
(2) Vacancies in Grade I shall be filled by promotion of
regular officers of the Section Officers' Grade who have
rendered not less than eight years' approved service in that
Grade and of regular officers of Grade A and B(merged) of the
Central Secretariat Stenographers' Service who have rendered
not less than eight years' approved service in that grade and
are included in the Select List for Grade I of the Service,
prepared under sub-rule (4).
(3) For the purpose of sub-rules (1) and (2) a Select List for
the Selection Grade and Grade I shall be prepared and may be
revised from time to time. The procedure for preparing and
revising the Select Lists shall be such as may be prescribed by
regulations made by the Central Government in
the $Department of Personnel and Training in the Ministry of
Personnel, Public Grievances and Pensions.
Provided that the regulations relating to the procedure
for preparing and revising the Select List for Grade 1 shall be
framed in consultation with the Commission and such Select
List shall also be prepared in consultation with them.
(4) Notwithstanding anything contained in sub-rules (1) and
(2), any person eligible to be considered for promotion to the
Selection Grade under sub-rule (1) or to Grade-I under sub-rule
(2) may be appointed to officiate in a temporary vacancy for a
period not exceeding three months, in the Selection Grade or
Grade I, as the case may be, if an officer included in the Select
List for the relevant Grade is not available or cannot for any
reason be appointed to such vacancy:
Provided that the aforesaid period of three months
mentioned above, may in exceptional cases and with the
approval of the Department of Personnel and Training in the
Ministry of Personnel, Public Grievances and Pensions be
extended to six months in public interest."
17. It may also be relevant to refer to Rule 12(2) as it stood
prior to the amendment effected on 24.02.1999, which read
as under:-
12(2) "Vacancies in Grade I shall be filled by promotion of
permanent officers of the Section Officers" Grade who have
rendered not less than ten years" approved service in that
Grade and of permanent officers of the Selection Grade of
the Central Secretariat Stenographers Service who have
rendered not less than ten years' approved service in that
Grade and have worked as Section Officers for at least a
period of two years in accordance with the proviso to rule 10
and are included in the Select List for Grade I of the Service
prepared under sub-rule (4):
Provided that an officer of the Selection Grade of the Central
Secretariat Stenographers Service who has not worked as a
Section Officer for the said period of two years shall also be
considered for promotion to Grade I if he is otherwise eligible for
such promotion and the Central Government in the Ministry of
Home Affairs, for reasons to be recorded in writing, are satisfied
that such a person was not appointed to the Section Officers'
Grade in the exigencies of service.
Note- In the case of officers of the Selection Grade of the Central
Secretariat Stenographers Service appointed at the initial
constitution of that service, approved service shall also include
the approved service rendered by them in Grade I of the Central
Secretariat Stenographers Service prior to their appointment to
the Selection Grade of that service. Similarly, in the case of
Grade I Stenographers appointed to the Section Officers' Grade
after the appointed day who finally opt to continue in the
Section Officers' Grade after the coming into force of the Central
Secretariat Stenographers Service Rules, 1969, approved service
shall also include the approved service rendered by them in
Grade I of the Central Secretariat Stenographers Service prior to
their appointment to the Section Officers' Grade:"
18. At this stage, it is also necessary to refer to Regulations
2(f) & 5(2)(a) of the Central Secretarial Service (Promotion to
Grade-I and Selection Grade) Regulations, 1964 hereinafter
referred to as the Regulations. The same read as under:-
"2(f) "Select List" means the list of eligible officers
considered fit for appointment to Grade I or the Selection
Grade, as the case may be, and prepared in accordance
with regulations.
5. Preparation of the Select List
(1) xxxxx
(2) The names of all such eligible officers shall be
arranged in a single list by the Department of Personnel
and Training in the Ministry of Personnel, Public
Grievances and Pensions in the following order:
(a) Officers appointed to the Section Officer's
Grade in a regular capacity before the appointed
day, Officers of the erstwhile Grade I of the Central
Secretariat Stenographers Service appointed to the
Section Officers Grade against the Stenographers
Quota before the appointed day, and Officers of the
erstwhile Grade I of the Central Secretariat
Stenographers Service regularly appointed to the
Section Officers Grade against the Stenographers
Quota in any cadre after the appointed day but
before the commencement of the Central
Secretariat Stenographers Service Rules, 1969, who
rank senior to any of the officers appointed
regularly to the Section Officers Grade before the
appointed day, arranged in the order of their
seniority in that Grade."
19. As per Rule 12(2), there were two feeder categories
for promotion to the Grade-I (Under Secretary) of CSS i.e. (i)
Section Officers of CSS and (ii) Stenographers Grade 'A' and
'B' (merged) of CSSS. The Officers belonging to
Stenographers Grade 'A' and 'B' (merged) of the CSSS were
eligible for consideration for promotion to the post of Grade-I
(Under Secretary) of CSS. However, the said consideration was
subject to those officers fulfilling the criteria prescribed in the
other Rules and Regulations, to which we would be referring in
some detail hereinafter. Rule 10, which deals with filling up of
all duty posts, prescribes that every duty post of the CSS should
be held by a cadre officer of CSS, unless, it was declared as
excluded by the Cadre Controlling Authority with the
concurrence Department of Personnel & Training. The proviso
to Rule 10 further provides that officers of Grade 'A' of the
corresponding cadre of the CSSS , who have rendered not less
than 2 years service in that Grade, may be posted to duty posts
in the Section Officer grade and the period of such appointment
would be limited to two years. Thus, while Rule 10 and its
proviso make a provision for posting of Stenographers Grade
'A' and 'B' (merged) of the CSSS as Section Officers in the
CSS for a period of two years, it is Rule 12 which deals with
recruitment to Grade-I from amongst eligible officers who are
included in the select list of Grade-I.
20. A conjoint reading of the above Rules shows that inclusion
in the select list is a pre-condition for being considered for
promotion to Grade-I in the CSS. The eligibility for inclusion in
the select list for Grade-I of the CSS-both for the cadre officers
of the CSS and Officers of the CSSS, is spelt out by way of
Regulation 5(2)(a) which, in turn, provides that both regular
Section Officer of CSS and Stenographer Grade A & B
(merged) from CSSS appointed as Section Officer would be
included in the Select List.
21. Pertinently, this provision for inclusion of lateral entry of
Stenographers Grade 'A' and 'B' (merged) of the CSSS in
Grade-I(Under-Secretary) to the CSS, was altogether removed
by issuance of notification dated 01.02.2008. Vide this
notification, the official Respondents have, by amending the
CSS Rules, removed the Officers of the CSSS cadre from the
feeder category for promotion to the post of Grade-I(Under-
Secretary) in the CSS. Thus, the period which is relevant for
purposes of adjudication of the present petition is between 2003
to 2007 as the Petitioner has claimed his stake to the vacancies
in Grade-I (Under Secretary) of this period, as it is the common
case of the parties that after 01.02.2008, employees in the CSSS
are not eligible for being absorbed in the CSS in any grade.
22. The first and foremost rule, dealing with the issue arising
in the present case, according to us, is Rule 10. This rule
clarifies the position that all duty posts in the CSS can be
occupied only by cadre officers. However, there is a proviso in
the said rule which permits posting of Grade A officers of the
CSSS to be appointed to the duty posts in the Section Officers
Grade of the CSS. This rules thus clearly prescribes that
normally the duty posts of CSS shall be held by CSS officers
only, but by way of a special proviso, Stenographers Grade A &
B (merged) can be posted as Section Officers only for a limited
period of 2 years, so as to make them eligible for consideration
for promotion to the rank of Grade I ( Under Secretary) in the
CSS. A careful perusal of Rule 10, including proviso thereto,
shows that the purpose of this proviso is to ensure that CSSS
officers are able to gain the experience in the grade of Section
Officer of CSS, which would then make them eligible for
further promotion to the post of Under Secretary i.e. Grade I in
the CSS.
23. Since much emphasis has been laid by the learned counsel
for the Petitioner on the amendment of Rule 12(2) in the year
1999, in support of his plea that the requirement of being posted
as Section Officer for 2 years before being considered for
further promotion stood abolished after the amendment, it
would be appropriate to compare the amended and un-amended
provision of Rule 12 dealing with Recruitment to Selection
Grade and Grade I in a tabular form, as set out herein below:-
Rule 12 (2, 3 & 4) prior Amendment in Rule 12
to amendment: (2 & 3) in the year
1999:
(2) Vacancies in Grade-I shall be (2) Vacancies in Grade-I shall
filled by promotion of regular be filled by promotion of
officers of the Section Officers' regular officers of the Section
Grade who have rendered not Officers' grade who have
less than eight years' approved rendered not less than eight
service in that Grade and of years' approve service in that
regular officers of Grade A and B Grade and of regular officers of
(merged) of the Central Grade A and B (merged of the
Secretariat Stenographers' Central Secretariat
Service who have rendered not Stenographers' Service who
less than eight years' approved have rendered not less than
service in that Grade and are eight yearsapproved service in
included in the Select List for that Grade and are included in
Grade I of the Service prepared the Select List for Grade I of
under sub-rule(4). the Service prepared under sub-
Provided that no person included rule(3).
in a later Select List shall be
eligible to be appointed to the (3) For the purpose of sub-
Grade until all officers included rules (1) and (2) a Select List
in an earlier Select List have been for the Selection Grade and
appointed. Grade shall be prepared and
may be revised from time to
Provided further that if any time. The procedure for
person appointed to the Section preparing and revising the
Officers' Grade before the Select Lists shall be such as
appointed day is considered for may be prescribed by
promotion to Grade-I under this regulations made by the Central
sub-rule, all persons senior to Government in the Department
him in that Grade before that day of Personnel and Training in
shall also be so considered the Ministry of Personnel,
notwithstanding that they may Public Grievances and
not have rendered ten years' Pensions.
approved service in that Grade :
Provided that the regulations
Provided further that an officer of relating to the procedure for
Grade I of the Central Secretariat preparing and revising the
Stenographers Service appointed Select List for Grade-I shall be
to the Section Officers' Grade framed in consultation with the
against the Stenographers' quota Commission and such Select
before the appointed day who List shall also be prepared in
ranks senior to any of the consultation with them.
permanent Section Officers
eligible to be considered for
promotion to Grade I of the
Central Secretariat Service under
the second proviso shall also be
eligible to be considered for such
promotion notwithstanding that
he may not have been
substantively appointed to the
Section Officers' Grade.
(3) Substantive appointments to
the Selection Grade shall be
made in order of seniority of
temporary officers of the
respective Grade except when,
for reasons to be recorded in
writing, a person is not
considered fit for such
appointment in his turn.
(4) For the purpose of sub-rules
(1) and (2) a Select List for the
Selection Grade and Grade I shall
be prepared and may be revised
from time to time. The
procedure for preparing and
revising the Select Lists shall be
such as may be prescribed by
regulations made by the Central
Government in the Department of
Personnel and Training in the
Ministry of Personnel, Public
Grievances and Pensions.
Provided that the regulations
relating to the procedure for
preparing and revising the Select
List for Grade I shall be framed
in consultation with the
Commission and such Select List
shall also be prepared in
consultation with them.
We have carefully examined both the amended and un-amended
rules and on comparison of the same, we are unable to agree
with the contention of the Petitioner that the requirement of two
years service as a Section Officer for the CSSS officers stood
abolished after the amendment of Rule 12 (2) in 1999.
24. Pertinently even when Rule12(2) was amended in the year
1999, Rule 10 as it stood, continued to exist in the statute book;
similarly Regulation 5 (2)(a) also continued to exist. The
inevitable conclusion thus is that there was no change in the
eligibility criteria for being placed in the Select List of eligible
officers considered fit for appointment to Grade I. No particular
Rule can be read in isolation. The rules have to be read as a
whole, and given effect to on their wholesome reading. A
conjoint reading of the aforesaid provisions of Rule 10 and
12(2), both amended and un-amended, show that before an
officer of the CSSS can be considered for recruitment to Grade I
of CSS, he has to meet the eligibility prescribed in Rule 10 and,
thus, there is no merit in the submission of the learned counsel
for the Petitioner that once Rule 12(2) stood amended in the
year 1999, the earlier Rule 10 or Regulation 5(2)(a) had become
redundant and officers of the CSSS could be straightaway
inducted in the CSS at the level of Under Secretary without
acquiring the experience of 2 years as a Section Officer in CSS.
25. There is yet another reason as to why we are of the view,
that this mandatory requirement of having 2 years experience as
a Section Officer was not removed. The two services i.e. the
CSS and the CSSS have very different roles to play in the
administration and, therefore, there appears to be a rationale to
insist that Stenographers from the CSSS cadre should first gain
experience as a Supervisory Officer in the post of Section
Officer before being considered for the higher responsibility of
an Under Secretary, who unlike the officers of CSSS, is
expected to take various independent decisions from time to
time. Another factor, which is relevant and on which emphasis
has been laid by the learned counsel for the Respondents, is that
even though the Cadre Controlling Authority for both the
services is the same, but both the services are completely
different and have their own distinct channels of promotion. It
is undisputed that the normal channel of promotion for a Section
Officer in the CSS cadre is the Under Secretary i.e. Grade I,
while the normal channel for promotion for Stenographers
Grade A & B (merged) in CSSS is the post of Principal Private
Secretary which post is in the grade equivalent to the Under
Secretary grade of the CSS. Pertinently, Section Officers in the
CSS cadre could not have crossed over to the CSSS cadre.
26. As noticed above, even though till 01.02.2008 there was a
provision for one-way lateral entry of CSSS officers into the
CSS, but the Union Cabinet had after considering all relevant
factors including the recommendation of the VTH Central Pay
Commission and of the Expert Committee as well as keeping in
view the parallel structure of both the services, taken a decision
by issuance of O.M dated 27/29.7.2005 to stop lateral entry of
members of the CSSS into Grade I of CSS, which was
subsequently notified in the gazette by way of notification dated
01.02.2008. This subsequent development, whereby the entry
of CSSS into the CSS had been totally stopped, goes a long way
to show that the intent of the CSS Rules, was not to give an
additional promotional channel to the officers of CSSS, unless
they gained experience of working for two years in the entry
level post of the CSS i.e. as Section Officer. The provisions for
lateral entry of CSSS officers into the CSS by way of Rules 10
and 12, was only meant to be used as an enabling provision,
whereby, whenever the Cadre Controlling Authority felt the
need, it could induct CSSS officers in the CSS after ensuring
that they have the requisite experience of 2 years as Section
Officers.
27. We are of the view, that Rule 10 and 12 which were only
enabling provisions gave a discretion to the Cadre Controlling
Authority, to induct eligible CSSS officers in the CSS, if the
need so arose. We are, thus, unable to agree with the
submission of the learned counsel for the Petitioner, that the
Respondents having not posted the Petitioner and other Officers
of the CSSS as Section Officers, they cannot take benefit of
their own fault to deprive the Petitioner and other CSSS officers
of their right to be considered for promotion on the ground that
they do not have the requisite experience of having worked as
Section Officer for 2 years. Pertinently, the Petitioner never
appears to have raised the issue of his not being posted as a
Section Officer in the CSS, and did not seek any judicial remedy
in that regard. Only now, the Petitioner is claiming the right to
be considered as eligible for being placed in the select list for
consideration for promotion as Under Secretary Grade I by
grant of a relaxation to dispense with the requirement of two
years experience as Section Officer.
28. The third submission of Mr. Shanker Raju, the learned
counsel for the Petitioner, to the effect that the Respondents
should have exercised their discretion and granted relaxation
from the mandatory requirement of 2 years experience as
Section Officer to the CSSS officers, so as to make them
eligible for being placed in the Select List for promotion to
Grade I of the CSS, is equally without any merit. The record
shows that it has been the consistent stand of the Respondents,
that there was always availability of adequate number of eligible
Section Officers in the CSS cadre who could be considered for
promotion to the post of Under Secretary and for whom this was
the only and natural channel of promotion. In fact, the
Respondents emphasized on the fact that there is a stagnation in
the CSS cadre and, therefore, the Cadre Controlling Authority
never deemed it appropriate to either post CSSS officers as
Section Officers, or to consider officers of CSSS for induction
into the CSS cadre.
29. We also find force in the submission of the learned counsel
for the Respondent, that the creation of services cadre structure,
prescription of eligibility criteria and channels of promotion
etc., are policy matters, in which it would not be appropriate for
the Courts to interfere. We are of the view that once the Cadre
Controlling Authority has decided not to induct any CSSS
officer in the CSS cadre for valid & justifiable reasons, their
action cannot be faulted and there is no reason for this Court to
hold that the Respondents ought to have posted the Petitioner
and other similarly placed persons as Section Officer in the
CSS, or to have considered them for promotion to the post of
Grade I (Under Secretary) in the CSS.
30. In this regard, we may refer to the decision of the
Supreme Court in Tamil Nadu Electricity Board & Another v.
Tamil Nadu Electricity Board Thozhilalar Aykkiya Sangam
(2008) 3 SCC 359. In this case, the Supreme Court was
examining the power of the Board to divert the promotional
channel from administrative posts to technical posts. The
Supreme Court held that it was for the Board to decide as to
who will be suitable for a particular post, and as to what should
be the channel of promotion for such post. In para 10 of the
decision, the Supreme Court observed as follows:-
"This is a policy decision taken by the Board and it has been
incorporated in service regulation. Therefore, the candidates
were recruited on the post of Helper possessing this
qualification, their channel of promotion is only to technical
post and there cannot be any doubt about it. This was a
categorical policy decision taken by the Board and therefore,
the channel of promotion of these persons now will be only to
the technical post and not to the administrative post.
Therefore, this provision which has been made in the service
condition cannot be said to be discriminatory or arbitrary or
violative under Article 19(1)(g) in any manner. This is a policy
decision of the Board and it is the Board who has to decide
that who will be suitable for the post and what should be the
channel of promotion for such post. It is not for the incumbent
serving as a Helper to insist that the Board should amend the
Regulation which suits him. It is the prerogative of the Board
to decide that what shall be the channel of promotion for
technical and for non technical persons. In this case the Board
has decided on a rational basis that the channel of promotion
of technical persons will be on technical side and not on the
administrative side."
In fact the judgment in the case of S.B. Mathur & Ors. V.
Chief Justice of Delhi High Court & Ors., 1989 Supp (1)
SCC 34 on which reliance has been placed by the learned
counsel for the Petitioner, also fortifies our aforesaid
conclusion. In para 13 of S.B. Mathur (supra), the
Supreme Court observed as under:-
The view which we have taken, as set out earlier, finds
support from the decision of this Court in V.T. Khanzode v.
Reserve Bank of India, rendered by a Bench comprising
three learned Judges of this Court. In that case, by
Administrative Circular No. 8 dated January 7,1978 the
Reserve Bank of India stated that it had decided to
combine the seniority list of all officers on the basis of their
total length of service (including officiating service ) in
Group I (Section A), Group II and Group III. The seniority of
all officers in each of the three Groups was to be combined
with effect from May 22, 1974 on the basis of their total
length of service, including officiating service, in the grade
in which they were then posted on a regular basis. The
Circular introduced combined seniority with retrospective
effect from May 22, 1974 (the date of an earlier
Administrative Circular No. 15) as it was "fair and
equitable to the officers as a class". The effect of this
decision was that the groupwise system of seniority which
was in existence in the bank for more than 27 years stood
substituted by a combined seniority for officers in the
aforesaid grades with retrospective effect. This adversely
affected the existing seniority of many officers, particularly
those in Group I. The validity of this Administrative Circular
was challenged. This Court held that the said
Administrative Circular No. 8 and the draft combined
seniority list prepared pursuant to it did not violate the
rights of the petitioners under Articles 14 and 16 of the
Constitution. Whether there should be a combined
seniority in different cadres or groups is a matter of policy
which does not attract the applicability of the equality
clause. The Court pointed out that the past events showed
that the various departments of the Reserve Bank of India
were grouped and regrouped from time to time. Such
adjustments in the administrative affairs of the bank were
a necessary sequel to the growings demand of new
situations which are bound to arise in any developing
economy. The court pointed out further that no scheme
governing service matters can be foolproof and some
section or the other of employees is bound to feel
aggrieved on the score of its expectations being falsified or
remaining to be fulfilled. Arbitrariness, irrationality,
perversity and mala fides will of course render any scheme
unconstitutional but the fact that the scheme does not
satisfy the expectations of every employees is not evidence
of these. This decision clearly leads to a conclusion that
grouping and regrouping of different categories of
employees is inevitable in a large organisation with a view
of meeting changing situations and needs of a live
organisation. Merely because the chances of promotion of
some employees are adversely affected by such grouping
or regrouping, that does not lead to a conclusion that it is
against the law. We may point out that in the case before
us, there is no contention urged before us that the
equating of posts or the combined seniority list was
promoted by any mala fides. We fail to see how the
combined seniority list or the treating of the said posts as
equal status posts can be said to be arbitrary in the
absence of any material and, particularly, in view of the
fact that the learned Chief Justice and the learned Judges
of the Delhi High Court considered the facts and took the
view that it was necessary in order to provide for transfers
from one department to another and to provide adequate
promotional opportunities to various sections of the
employees of the Delhi High Court.
31. In these circumstances, we are unable to find any
justification for directing the Respondents to consider
induction of the CSSS officers in the CSS, and that too in
the face of the admitted position that none of them has
ever worked as a Section Officer and gained the requisite
experience. We find no infirmity in the order of the
Tribunal. The present writ petition has no merit and is
dismissed without any order as to costs.
CM Nos.5629/2013 & 5632/2013
In view of the writ petition having been dismissed these
applications do not survive for adjudication and are
dismissed as infructuous.
(REKHA PALLI)
JUDGE
(VIPIN SANGHI)
JUDGE
September 18, 2017
gm/saurabh
