C.W.P.No.5215-CAT of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.5215-CAT of 2003. Date of Decision : May 07, 2008 Balraj Singh and others .....Petitioners versus Dr.Ashok Khemka, I.A.S., and others .....Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present : Shri Rajiv Atma Ram, Senior Advocate with Shri B.N.S.Sharma, Advocate for the petitioners. Shri Ashwani Talwar, Advocate for respondent No.1. Shri Gurpreet Singh, Advocate for respondent Nos.2 & 3. Shri Ajay Gupta, Senior DAG, Haryana for respondent No.4. Shri K.K.Gupta, Advocate, for proforma respondents. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT HEMANT GUPTA, J. This order shall dispose of Civil Writ Petition No.5215-CAT of 2003, filed by the members of the Indian Administrative Service, promoted from the State Civil Services (hereinafter referred to as the 'Promotees'), and the Civil Writ Petition No.12536-CAT of 2003, filed by the Union of India against the order dated 10.3.2003, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the 'Tribunal'), on an Original Application filed by respondent C.W.P.No.5215-CAT of 2003 2 No.1 herein, i.e., a Direct Recruit to the Indian Administrative Service, Haryana Cadre (hereinafter referred to as the 'Direct Recruit'). The brief facts, out of which the present writ petitions arise, are that the Direct Recruit-Dr.Ashok Khemka (an Indian Administrative Officer of 1991 Batch) filed an application under Section 19 of the Administrative Tribunals Act, 1985 before the learned Tribunal, challenging the assignment of the years of 1990 and 1991 as the years of allotment to the Promotees impleaded in the Original Application. The challenge in the Original Application is that in terms of Rule 3 (3) (ii) of the Indian Administrative Service (Regulation of Seniority) Rules, 1987, as amended on 31.12.1997 (hereinafter referred to as the 'Seniority Rules'), the year of allotment in terms of the length of service is to be reckoned with reference “to the year in which the Selection Committee held its meeting”, whereas, the same has been determined with reference to the year for which the Selection Committee made its recommendation. In other words, the dispute is whether the year of allotment is to be determined with reference to the year in which the Selection Committee held its meeting or with reference to the vacancies for the year in which the Selection Committee held its meeting. Before we advert to the respective contentions of the parties, the undisputed facts culled out from the pleadings and/or from the documents produced on record by the State Government or the Central Government, are that there were four vacancies for appointment of Indian Administrative Service in the year 1994-95, meant for filling up the same from the State Civil Services, by promotion. The meeting of the Selection C.W.P.No.5215-CAT of 2003 3 Committee was not held for the select list for the year 1994-95, therefore, the four vacancies of the year 1994-95 were clubbed with the 9 vacancies of the year 1995-96. Similarly, 9 vacancies for the year 1996-97 were available to be filled up from amongst the State Civil Services. In the meeting of the Selection Committee, held on 23/24.10.1999, the Committee considered the members of the State Civil Services to fill up such vacancies in the Indian Administrative Service. The Union Public Service Commission made recommendations for appointments to the posts of Indian Administrative Service for the vacancies for the years 1995-96 vide Notification dated 27.12.1999 and for the year 1996-97 vide Notification dated 28.12.1999. On the basis of such recommendations notified, 12 officers were appointed for the select list of the year 1995-96 and 9 officers for the select list of the year 1996-97 vide separate notifications of 21st January, 2000. Vide subsequent order dated 24.1.2001, the year of allotment to the members of the State Civil Services was assigned the years 1990, 1991, 1992 or 1993, as the case may be. The assignment of year of allotment of 1990 and 1991 was objected to by the Direct Recruit vide his representations. The representation of the Direct Recruit regarding fixation of the seniority of the State Civil Services Officer was declined. Aggrieved against the decision of the Central Government, the Direct Recruit invoked the jurisdiction of the learned Tribunal. The learned Tribunal, vide its order dated 10.3.2002, Annexure P-9, has allowed the Original Application and directed the Department of Personnel and Training, Government of India, to undertake the exercise afresh and re-determine the year of allotment and seniority of the promotee officers in the light of the provisions of Rule 3 (3) C.W.P.No.5215-CAT of 2003 4 (ii) of the Regulations of Seniority Rules, as amended on 31.12.1997, as per the law, within the period of 4 months. The learned Tribunal has held that the year of allotment has to be determined with reference to the year in which the Selection Committee held its meeting and not with reference to the year of the availability of vacancies. Another fact, which is required to be noticed is that one Shri C.L. Lakhanpal, who is junior to Shri Balraj Singh, petitioner No.1 and Shri Anand Sharma, petitioner No.2, has been assigned the year 1990 as the year of allotment on the basis of the select list of the year 1995-96. Said C.L.Lakhanpal earlier invoked the jurisdiction of the learned Tribunal claiming the he became eligible for promotion to the Indian Administrative Service in the year 1987, but could not be selected for one reason or the other. The meeting of the Selection Committee was to be held in March, 1996 for consideration of the Officers for the vacancies of the years 1994- 95 and 1995-96. But, before the meeting could be convened, one Shri S.P.Gupta, of the State Civil Services, filed an Original Application before the learned Tribunal and obtained the interim order, Annexure P-1, on 21.3.1996. The Selection Committee did not held its meeting as scheduled. Ultimately, Shri S.P.Gupta withdrew the said Original Application. Shri C.L.Lakhanpal, prayed that he is to retire on 30.9.1998 and if the Selection Committee does not convene its meeting, his valuable right will be extinguished. The Original Application filed by Shri Lakhanpal was dismissed by the learned Tribunal on 9.9.1998, but the writ petition filed by him was allowed on 23.11.1998. It was held that even though Shri Lakhanpal has retired from service, but this cannot be a ground for refusing C.W.P.No.5215-CAT of 2003 5 to consider his claim. The right to be considered has accrued in the year 1994-95. The claim of Shri Lakhanpal was directed to be considered with effect from the due date for each of the years viz. 1994-95, 1995-96 and so on. After the order was passed by this Court, there was an order of stay by the Hon'ble Supreme Court. But later on, opportunity was given to the respondents to proceed with the selection process for the years 1995-96 and 1996-97. The select list for such years was prepared and the candidates were appointed. Shri Lakhanpal was appointed subsequently vide notification dated 22.2.2000 as per the select list of 1995-96 and was assigned seniority below Shri Anand Sharma, petitioner No.2 and above Mrs. Satwanti Ahlawat, petitioner No.3, with 1990 as the year of allotment vide letter dated 29.2.2000. The appointment to the posts of Indian Administrative Service, by promotion, is regulated with the Indian Administrative Service (Appointment by promotion) Regulations, 1955 (hereinafter referred to as the 'Regulations'). In terms of Regulation 3 of the aforesaid Regulations, a Committee is to be constituted for selection of the candidates for appointment to the Indian Administrative Service by promotion. The said Committee is required to meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service as are held by the Committee to be suitable for promotion to the Service as prescribed by Regulation-5. The list shall not be more than twice the number of the substantive vacancies anticipated in the course of the period of twelve months. The Regulation further contemplates that a member of the State Civil Service, who has attained the age of 54 years on the first day of C.W.P.No.5215-CAT of 2003 6 January of the year in which the Committee meets, shall be considered by the Committee, if he is eligible for consideration on the first day of January of the year or any of the years immediately preceding the year in which such meeting is held. The relevant extract from the said Regulations reads as under:- “5. Preparation of a list of Suitable Officers: - (1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list, in the posts available for them under rule 9 of the Recruitment Rules or 5 per cent of the Senior posts shown against items 1 and 2 of the cadre scheduled of each State or group of States, whichever is greater.” xx xx xx (3) The Committee shall not consider the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year in which it meets: Provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the Committee, shall be considered for inclusion in the fresh list, to be prepared by the Committee even if he has in the meanwhile attained the age of 54 years. C.W.P.No.5215-CAT of 2003 7 Provided further that a member of the State Civil Service who has attained the age of fifty four years on the first day of January of the year in which the Committee meets shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years. xx xx xx (6) The list so prepared shall be reviewed and revised every year.” The said Regulation contemplates the yearly meeting of the Selection committee to prepare the list of the members of the State Civil Service considered suitable for promotion to the Indian Administrative Service. After appointment to the Indian Administrative Service, the seniority is required to be determined after determining the year of allotment in terms of Rule 3 of the aforesaid Seniority Rules. The Promotee Officer, as it appears from Rule 3 (3) (ii) of the aforesaid Seniority Rules, means an Officer appointed to the Indian Administrative Service in accordance with the provisions of the Regulations. Rule 3 (3) (ii), as it exists after its amendment on 18.1.1988, reads as under:- “ Rule 3 (3) (ii) The year of allotment of a promotee officer shall be determined in the following manner:- (a) For the service rendered by him in the State Civil Service upto twelve years, in the rank not below that of a Deputy Collector or C.W.P.No.5215-CAT of 2003 8 equivalent, he shall be given a weightage of four year towards fixation of the year allotment; (b) he shall also be given a weightage of one year for year completed three years of service beyond the period of twelve years, referred to in sub-clause (a), subject to a maximum weightage of five years. In this calculation, fractions are to be ignored. (c) The weightage mentioned in sub-clause (b) shall be calculated with effect from the year in which the officer is appointed to the service. Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list or appointed to the service on the basis of an earlier select list.” Shri Gurpreet Singh, learned counsel representing the Central Government, has produced the office noting purposing to amend the Service Rules, which led to amendment in the year 1997. The genesis of proposal for amendment of the Rules, in the office noting reads as under:- “Presently, the weightage for year of allotment is computed on the basis of date of appointment of each officer to the Service. Year of allotment (YOA) is always computed and fixed with reference to the Calendar year in which an officer is promoted. Hitherto, an officer appointed to the Service on the recommendation of the State Government in the previous calendar year prior to 31st December, they all used to enjoy an advantage over another officer from the same C.W.P.No.5215-CAT of 2003 9 select list who is appointed in the succeeding calendar year after January, even though the vacancy meant for him might have occurred in the previous year. Hence, in the proposed amendment a uniform date (i.e.) 31st December of the year prior to the year in which the meeting of the Selection Committee was held has been suggested since the Select List is prepared for vacancies as on the first day of January. Further, the reference year shall also be the year of the meeting of the Selection Committee. In the proposed revised scheme of the Promotion/Selection Regulations, appointments are made to the existing vacancies as on the 1st day of January of any year. The dates of approval to the Select List would be different for different cadres. Hence, appointments would also be on different dates. In order to have a uniformity for the officer appointed by promotion/selection, a common reference date forming the basis for determining the seniority would be imperative. The proposed method being independent of the date of appointment, would enable fixation of seniority provisionally included officers appointed later to their name being made unconditional in the Select List in the normal manner in the order in which names are arranged in the Select List.” On the basis of aforesaid noting, the Rule 3 (3) (ii) of the Seniority Rules was amended on 31.12.1997 which came into force w.e.f. 1.1.1998. The amended Rule 3 (3) (ii) reads as under:- “The year of allotment of a promotee officer shall be determined with reference “to the year in C.W.P.No.5215-CAT of 2003 10 which the meeting of the Committee to make selection” (Emphasis supplied), to prepare the select list on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Civil Service not below the rank of a Deputy Collector or equivalent, upto the 31st day of December of the year immediately before the year in which meeting of the Committee to make selection was held to prepare the select list on the basis of which he was appointed to the Service, in the following manner:- xx xx xx.” Simultaneously, the Promotion Regulations were also amended vide Notification dated 31.12.1997. Clause 2 (l) was inserted defining “year” to mean the period commencing on the first day of January and ending on the 31st day of December of the same year. Regulation 5 (1) was substituted, wherein the number of substantive vacancies was contemplated to be as existing on the first day of January of the year in which the meeting is held. The amended Regulation 5(1) reads as under:- “(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is C.W.P.No.5215-CAT of 2003 11 held, in the posts available for them under rule 9 of the recruitment rules. The date and venue of the meeting of the Committee to make the Selection shall be determined by the Commission: Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when, xx xx xx xx.” Later, in the year 2000, it was noticed that by virtue of the amendment carried out in the year 1997, the completed years of the State Civil Service were to be determined upto 31st day of the year preceding the year in which the Selection Committee meets. The weightage for the completed years of service was to be reckoned in the year in which the meeting of the Selection Committee held, regardless to the actual date of appointment. It was noticed that in terms of the Rule as amended on 31.12.1997, if the Selection Committee meets in the current year to prepare the select list for a year prior to the said year, the seniority would be determined with reference to the current year and not the year in which he is considered for appointment to the All India Civil Services. This interpretation of the Rule was found to be depressing the seniority of the Officers, so appointed. It is also against the legal intents of the Rules and against the judgment of the Hon'ble Supreme Court in “Devendra Narayan Singh Versus State of Bihar, (1996) 11 SCC-342'. The relevant extract from the office note dated 29.6.2000 reads as under:- “It is proposed that along the lines of the proposed amendment to the Promotion Regulations, the Seniority Rules should also be amended to this limited extent. This would be C.W.P.No.5215-CAT of 2003 12 essential for fixation of seniority of officers appointed to the All India Services from Select Lists prepared for previous years and for the year wise Select List prepared by a single Selection Committee in terms of the provisions outlined in Regulation 5 of the Promotion Regulations. In terms of the position obtaining under the present rules, as amended on 31.12.1997, even if the Selection Committee meets in the current year to prepare a select list for any prior year, the seniority of the officer so included in the Select List, would be determined with reference to the current year and not the year for which he was considered for appointment to the All India Service. This interpretation of the rule would not only go towards depressing the seniority of the officer so appointed, but is also against the legal intent of the rule and would be against the considered opinion of the Apex Court in its judgment in the case of Devendra Narayan Singh Versus State of Bihar, (1996) 11 SCC 342. Reversing the decision of CAT, Patna Bench in the case of D.N.Singh Versus UOI (1996) 2 SLJ (CAT)-322 (Pat.), the Supreme Court interpreted the Rule 3 (3) (b) of the IPS (Regulations of Seniority) Rules, 1954 as read with Regulations 5, 3 and 9 (1) of the IPS (Appointment by Promotion), Regulations 1955, and has categorically held that the year of allotment of those who were included in said year select list, has to be determined on the basis that they were in the select list of that year though factually the list may have been prepared and approved subsequently. C.W.P.No.5215-CAT of 2003 13 4. In light of the above, an amendment to the Seniority Rules providing for the words “the year for which” instead of the words “the year in which” is essential. However, any amendment to the All India Service Rules has to be undertaken after due consultation with the State Governments as well as the Ministry of Home Affairs and the Ministry of Environment & Forests, which are the Cadre Controlling Authority for IPS and IFS respectively.” On the basis of the process initiated on the said note, Rule 3 (3) (ii) was amended vide Notification dated 30.8.2005. The year of allotment was to be determined with reference to the year for which the meeting of the Selection Committee to make the selection, was held. The amended Rule 3 (3) (ii) reads as under:- “The year of allotment of a promotee officer shall be determined “with reference to the year for which the meeting of the Committee” (Emphasis supplied) to make selection, to prepare the select list on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Civil Service not below the rank of a Deputy Collector or equivalent, upto the 31st day of December of the year immediately before the year for which meeting of the Committee to make selection was held to prepare the select list on the basis of which he was appointed to the Service, in the following manner:- xx xx xx.” C.W.P.No.5215-CAT of 2003 14 Still further, vide Notification dated 25.7.2000, proviso in Sub Regulation (1) of Regulation 5 was substituted, but for the purpose of present writ petition, the said substitution is not material. The learned Tribunal vide order dated 10.3.2003, Annexure P-9, found that it is indubitable that the provisions of Rule 3 (3) (ii) of the Regulations of the Seniority Rules, as amended on 31.12.1997, are decisive of the matter. It was found that Rule, prior to amendment on 31.12.1997, led to manifest absurdities and generated uncalled for litigation. It did not explicitly define any referential year with respect to which the year of allotment of a Promotee Officer was to be determined as per the specified formula. It was held that the provisions of the Rule, as amended on 31.12.1997, are clear explicit and unambiguous and that there is hardly any scope of construction or interpretation of the said Rule. It was held that plain meaning of the provisions is that the referential year for the purpose of determining the year of allotment is that year in which the meeting of the Committee to make selection had taken place. Referring to the judgment of C.L.Lakhanpal's case, it was held that what was canvassed, considered and decided in the petition of Shri Lakhanpal, has to be confined or restricted to his case only and the directions of the High Court are not of universal application. It was held that the decision of the High Court does not give a licence or authority to the Government of India to contravene the provisions of the Rule 3 (3) (ii) in respect of other Promotee Officers as no mandamus can be issued by a Court to violate the law. Still further, it was found that Shri Lakhanpal has already retired and his promotion to the Indian Administrative Service is only a formality. Still further, the vacancy against C.W.P.No.5215-CAT of 2003 15 which Shri Lakhanpal was to be considered even notionally prior to 1.1.1998, whereas, the Seniority Rule was amended on 31.12.1997 and therefore, the case of Shri Lakhanpal is to be governed by the provisions as they stood prior to the amendment. The learned Tribunal also held that the Promotee Officers had vested right only for consideration of their case against the vacancies of such year on account of having fallen within the zone of consideration, but certainly no right was vested in them to claim the appointment against the said vacancies. It was held that on the date of selection as well as the appointment, the Seniority Rules, as amended on 31.12.1997, were applicable and, therefore, it is not the case where the amended provisions of the Rules are being applied retrospectively. For the reasons, inter-alia, mentioned above, the learned Tribunal found that the