CWP No.4274-CAT of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4274-CAT of 2008 Date of decision: 10.02.2011 N.S. Kaundal and Ors. … Petitioners Versus Union of India and Ors. … Respondents ***** CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE T.P.S. MANN 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Arun Walia, Advocate, for the petitioners. ***** M.M. KUMAR, J. 1. A short question raised in the instant petition filed by unsuccessful original applicant is whether he is entitled to be considered for promotion to a vacancy on the post of Grade-V for CLS w.e.f. October, 1987 as against his actual date of promotion given to him in the year 1991. The petitioners have challenged the order dated 01.06.2007 (P-3) passed by the Chandigarh Bench of Central Administrative Tribunal holding that all the posts/vacancies belonged to direct quota and there was no post belonging to promotee quota. 2. Some undisputed facts may first be noticed. The post of Grade-V of CLS used to be governed by the Labour Enforcement Officer (Central) Recruitment Rules, 1958 (for brevity the ‘1958 Rules’). According to the aforesaid rules, the mode of recruitment was 100% by direct recruitment. However, in 1997 new rules were enforced which are known as Central Labour Service Rules, 1987 (for brevity the ‘1987 Rules’). According to the 1987 Rules, there was quota provided for direct recruitment to the extent of 2/3rd vacancies for the post of Grade-V of CLS. It also provided 1/3rd quota, which was required to CWP No.4274-CAT of 2008 -2- be filled up by promotion. In Para 9 of the judgment, the Tribunal has recorded numerous findings with regard to the availability of posts/vacancies after the promulgation of Rules 1987, which read as under: - “From the facts narrated above, it clearly transpires that there were 58 posts prior to introduction of Rules of 1987. 69 posts became available or fell vacant after introduction of Rules of 1987. In this context, the first question then arises is as to whether the vacancies that occurred prior to introduction of Rules of 1987 would be governed by the Rules of 1958 or that the method prescribed in the Rules of 1987 would govern the recruitment. This Tribunal is of the considered view that such vacancies which had occurred prior to introduction of Rules of 1987 had to be filled up by method prescribed under rules of 1958 which were in existence at that stage. Under the Rules of 1958, there was no method of recruitment by way of promotion. All vacancies i.e. 100% were to be filled up by way of direct recruitment. It was for the first time that on introduction of Rules of 1987, the applicant came to be vested with the right to occupy the post by way of promotion. By virtue of Rules of 1958, he could not have been promoted at all. It is settled proposition of law that such vacancies as may occur prior to introduction of the amended Rules shall be filled up in accordance with unamended rules. Reference in this regard be made to judgment of Hon’ble Supreme Court in Y.V. Rangaiah and others v. J. Sreenivasa Rao and Others, 1983 SCC (L&S) 382. CWP No.4274-CAT of 2008 -3- 10. It is significant to mention that process of recruitment of vacant posts was started prior to the introduction of the Rules of 1987 and further that the matter was referred to UPSC and it had opined that such vacancies that became vacant prior to the Rules of 1987 shall have to be filled up by the method provided under the Rules of 1958.” The Tribunal has dealt with the argument that Rule 6 and 7 of the 1987 Rules provided that the applicant and his counter-parts would constitute initial service and that being so all vacancy that may fall vacant were required to be filled by the method provided under Rule 7 of 1987 Rules. It is appropriate to mention that Rule 7 provided for filling up all vacancies by allocating 1/3rd quota to the promotees and 2/3rd to the direct recruitment. Rejecting the aforesaid argument, the Tribunal observed that Rules 1958 were repealed and the existing departmental candidates holding Group A posts in various Grades on regular basis on the date of commencement of the Rules were deemed to be appointed to the corresponding post and the Grade of the service in a substantive or officiating capacity as the case may be. The service came into being for the first time on introduction of the 1987 Rules. Accordingly, Rule 7 has to operate with regard to future maintenance of service as the very heading of the rule suggests. The method of recruitment as given in Rule 7 is required to be adhered to in respect the post that may fall vacant after introduction of Rules 1987. The Tribunal also rejected the argument of the petitioner that quota meant for promotees has not been filled up as only 2 promotions have been made even though there were a number of vacancies that occurred after introduction of Rules 1987. Referring to the minutes of meeting of D.P.C. held on 04.12.1991 and 05.12.1991, the Tribunal observed that the minutes would depict the manner in which the vacancies that have CWP No.4274-CAT of 2008 -4- occurred after 1987 have been filled up. The minutes of the aforesaid meeting of D.P.C. are as under: - “The Committee considered the question of selection of officers for officiating promotion to the grade V of Central Labour Service in the Ministry of Labour. The following is the year-wise break up of vacancies: - Grade from which Year Gen. SC ST Total Promotion is to be Made ----------------------------------------------------------------------- Labour Enforcement 1987 1 1 - 2 Office. 1988 7 1 1 9 1989 5 1 1 7 Welfare Administrator 1987 1 - - 1 1988 1 1 - 2 1989 1 - - 1” In accordance with the aforesaid factual position, the Tribunal held on the basis of Annexure R-3 that 22 vacancies in the quota of promotees came to be occupied by granting promotion to the officer from the feeder cadre which would represent 1/3rd quota out of total vacancy of 69 which have occurred after the promulgation of Rules 1987. Mr. Arun Walia, learned counsel for the petitioner has made only one submission before us. According to the learned counsel, the 1987 Rules did not have any Saving Clause which might extend the benefit of 1958 Rules in respect of the vacancies that have been filled up after enforcement of those Rules on 03.02.1987. In that regard learned counsel has placed reliance on Rule 14 and 17 to argue that Saving is confined to relaxation of age limit and other concession required to be provided for the persons belonging to the Scheduled Castes and Scheduled Tribes, Ex-servicemen and other Sub-categories of persons in accordance with the order issued by the Government from time to time in that CWP No.4274-CAT of 2008 -5- regard. Referring to Rule 17, learned counsel has pointed out that the Rule maker has only repealed the Statutory rule known as the Assistant Labour Commissioner (Central) Recruitment Rules, 1958 and has not saved any action taken under those rules. In respect of the submission, learned counsel has placed reliance on Paras 37 and 40 of the judgment of Hon’ble the Supreme Court in the case of Kolhapur Canesugar Works Ltd. vs. Union of India and Ors. 2000(2) SCC 536 to argue that the vacancies which were available on 03.02.1987 must be filled up in accordance with 1987 Rules and not in accordance with 1958 Rules. No one has put appearance for the respondent. Having heard the learned counsel, we are of the considered view that the instant petition is devoid of merit and thus is liable to be dismissed. It has come on record that 1958 Rules were repealed by the newly enacted 1987 Rules. According to 1987 Rules only 1/3rd vacancies in Grade-V of the CLS are to be filled up by promotion and 2/3rd are to be filled up by direct recruitment. The feeder cadre for promotion is Labour Enforcement Officer (Central) and Welfare Administrator having 3 years of regular service. They are to share 1/3rd quota in the ratio of 83.33% and 16.67%, respectively. The petitioner-applicant staked his claim on the basis of newly enacted 1987 Rules for grant of 1/3rd quota in respect of 46 vacancies of Grade-V of CLS which were filled up in September, 1987 by direct recruitment. The aforesaid claim was made on the basis that by virtue of Rules 6 and 7 of 1987 Rules, the vacancies whether occurring prior or after the date of enforcement of the Rules 1987 have to be governed by the provisions of Rule 7 of 1987. It was alleged that 46 vacancies in Grade-V of CLS were filled up by direct recruitment method after 03.02.1987 when the Rules were promulgated and no departmental promotion has been made. The aforesaid stand of the petitioner-applicant was found to be false because the respondent have categorically asserted that a requisition for 46 vacancies as on 9th April, 1988 was CWP No.4274-CAT of 2008 -6- sent to UPSC for appointment by direct recruitment method. Subsequently, for 23 vacancies which have fallen vacant upto December, 1989 during the recruitment process, the UPSC was requested on 05.07.1989 to add those vacancies to the original proposal of 46 posts. The total vacancies required to be filled were 69. 55 candidates were recommended for appointment to Grade-V of CLS by UPSC vide letter dated 05.09.1990 and 25.04.1991. The Commission recommended 6 candidates. Accordingly, a penal of 61 candidates was recommended. Thereafter, for 22 vacancies falling to the share of promotion quota, a DPC proposal was sent to UPSC on 31.10.1990 and the petitioner-applicant duly considered and recommended by UPSC vide letter dated 31.01.1992 against the vacancy pertaining to the recruitment year of 1988. The Tribunal in Para 9 has recorded categorical finding that out of 69 posts which became available after the enforcement of 1987 Rules, have been filled up in accordance with the quota provided for direct recruitment and promotees. However, the Tribunal has also categorically held that the vacancies which have occurred prior to the enforcement of those Rules, have to be filled up in accordance with the Old Rules and in that regard reliance has been placed on the observation made by Hon’ble the Supreme Court Y.V. Rangaiah and others vs. J. Sreenivasa Rao and Others 1983 SCC (L&S) 382. Therefore, we do not find any legal infirmity in the view taken by the Tribunal. The argument of Mr. Walia, learned counsel for the petitioner- applicant is devoid of merit because a perusal of Rule 17 of 1987 Rules would show that there is saving clause, which reads as under: - “17. Repeal and Saving (1) The following rules, in so far as they relate to posts to which these rules apply, are hereby repealed: CWP No.4274-CAT of 2008 -7- (i) to (iv) x x x x (v) The Assistant Labour Commissioner (Central) Recruitment Rules, 1958; (vi) to (vii) x x x x (2) Notwithstanding such repeal, anything done or any action taken under the said rules, shall be deemed to have been done or taken under the corresponding provisions of these rules.” A perusal of the aforesaid provision would show that by Sub Rule 1 of Rule 17, the feeder cadre of Assistant Labour Commissioner (Central) Recruitment Rules, 1958 was repealed and by Sub Rule 2 non obstente clause has been incorporated stating that beside such repeal anything done or any action taken under the 1958 Rules was deemed to have been done or taken under the corresponding provisions of those Rules. Once the provision has been made saving of the action taken under the 1958 Rules then it does not lie in the mouth of the petitioner-applicant to argue that there is no saving clause in the 1987 Rules. The reliance of the learned counsel on Para 37 of the judgment of Hon’ble the Supreme Court in Kolhapur Canesugar Works Ltd. (supra) is wholly misplaced because it proceeds on the assumption that there was no Ssving clause. Likewise, the argument raised by placing reliance on the observation in Para 40 also suffers from the same legal malady and we have no hesitation to reject the same. Accordingly, this petition fails and the same is dismissed. ( M.M. KUMAR ) JUDGE FEBRUARY 10, 2011 ( T.P.S. MANN) rajan JUDGE