Case: S.S. Moghe and Others Vs. Union of India and Others

The petitioners case is that shortly after the formation of the ARC in 1963 the petitioners were directly recruited to the said department on a regular basis during the period between 1963 and 1966 in the category of Assistant Central Intelligence officers Grade II, (which has since been redesignated as Deputy Field officers (Tech.) (for short DFO) under the impugned Rules while respondents Nos. 8 to 67 are officers whose services have been borrowed on deputation to the ARC from some departments of Central Government and from the Police Cadre of State Governments. The petitioners contend that by virtue of their regular appointments in the ARC, they were, as of right, entitled to be promoted to the higher posts of Assistant Central Intelligence officer, Grade-I-now called the Field officer (Tech.)-Deputy Central Intelligence officer (Tech.)/Assistant Technical officer subject only to the right of the Department to supersede those found unsuitable for such promotions. However, instead of promoting the petitioners to the vacancies that arose in such higher categories of posts, the Department filled up those vacancies by granting promotions to the deputationists. thereby illegally denying to the petitioners the opportunities legitimately due to them for promotion in the Department. It is contended by the petitioners that the deputationists were occupying the posts in the Department only on ad hoc basis and such ad hoc appointees who were having the benefit of lien in their parent departments and were getting promotions in those departments had no claim whatever to seniority or promotions in the borrowing Department, namely, the ARC. On this basis the petitioners have raised a .. challenge in this writ petition against the legality of the various promotions given to respondents Nos. 8 to 67 in the year 1968 anddraft combined seniority list of Assistant Central Intelligence officers Grade-II (Tech.) working in the ARC was published in March 1971 (Annexure A), wherein the officers on deputation as well as those who are directly recruited in the ARC had all been included and the seniority of the deputationists had been fixed by taking into account the total length of service put in by them in the rank of ACIO in their parent departments as well as in the ARC. According to the petitioners, the said list had been prepared in violation of the principle that the same period of service of a Government servant cannot be legally considered twice over for service benefits in two Departments, namely, the parent department and the borrowingWrit Petition-Civil Writ Petition No. 1020 of 1971- was filed in the Delhi High Court by three of the present petitioners complaining against the promotions given to the deputationists and challenging the validity of the combined seniority list published by the Department in 1971. During the pendency of that writ petition the impugned seniority list of 1971 was substituted by two separate lists-one consisting of the direct recruits and the other consisting of deputationists. Thereupon. the writ petition before the Delhi High Court was got amended by the petitioners therein by incorporating objections against the new seniority lists published by the Department.

Reasoning: Though a decision was taken by the Government in 1971 to make the ARC a permanent department, and steps to frame rules were also immediately initiat ed, the draft rules could be finalised after intensive examination by various concerned Ministries only by April 1976 when the Rules were promulgated. The allegation made by the petitioners that the promulgation of the rules was deliberatel y delayed in order to confer an undue advantage on the deputationists who were granted promotions to the higher grades in the meantime, has been categorically denied by the first respondent in itse delay in promulgation of the rules was due to the fact that because of the special features of the Department and the sensitive nature of the functions to be discharged by it, various circumstances and factors had to be taken into account before the draft rules were finally clear ed by the several Ministriesfirst respondent has stated in thecounter- affidavit thatequal treatment had been meted out to the direct recruits and the deputationists in the matter of promotion/appointment from the g rade ofo that of ATO. The allegation of the petitioners that the DPC had fixed the crucial date for eligibility for promotion from the category ofto the grade of ATO in an arbitrary manner so as to exclude the petitioners from consideration, has f) been denied by the first respondent and it is averred that the crucial date was determined by the DPC on each occasion by taking into consideration the number of vacancies likely to be available for promotion/selection and the number of persons who could reasonably be considered for such promotions/selection. It is pointed out by tile first respondent that when deputationists were selected by the DPC, they were appointed to the higher posts on deputation and it was not a process of promotion as wrongly contended by theis admitted that during the period when the ARC was functioning as a temporary Department. some of the deputationists who were initially appointed as (Tech.) were subsequently appointed to high er posts on deputation basis but the first respondent submits that there could be no valid objection to such appointments, as they had all been made in the public interest and in accordance with the general instructions on the subject. Refer ring to the provisions contained in Rule 5(3) of the impugned Rules regarding the exercise of option by officers willing to be absorbed on permanent basis in the ARC, it is submitted in thethat the said provision was equally applicab le to direct recruits as well as the erstwhile deputationists. Since the temporary appointments of the direct recruits in the post of) did not confer on them any right of confirmation and the ARC (Technical) Service was altogethe r a new service, the first respondent states that the petitioners were rightly asked to exercise their option in terms of Rule 6(3).Dealing with the attack levelled by the petitioners against the validity of Rule 6(6), it is pointed out i n thethat the spirit and content of the rule is that persons who were holding higher posts on the crucial date and were considered suitable for permanent appointment in the said posts but could not be appointed substantively to suc h posts for want of vacancies, may be given permanent posts in the owner grade. It is pointed out in thecounter- affidavit thatthe said rule was applicable to direct recruits as well as to the deputationists and that, as a matter of fact, s ome of the petitioners got the benefit of this rule inasmuch as they were appointed substantively in the grade of DFO(T) with effect from April 26, 1976, while they are holding posts of Fo(T) on the said date. The charge of discrimination levell ed by the petitioners is, therefore, denied by the first respondent as being devoid of anyreference to the grievance put forward by the petitioners that they were denied an opportunity to represent their case before the Screening Committee, it is submitted by the first respondent that under the scheme of the impugned Rules, the Screening Committee was not expected to entertain any representations from any quarter and, in fact, no representations were received. The Committee had acted strictly in accordance with the provisions contained in the Rules in determining the suitability of the persons concerned for absorption in the new Department and the principles of natural justice have no applicability in such a context. The allegation of mala fides put forward by the petitioners has been stoutly denied by the first respondent. After the seniority list was prepared by the Screening Committee in accordance with the provisions contain ed in Rule 6(2) read with Rule 7 of the impugned Rules, certain formalities had to be gone through before orders regarding substantive appointments of the officers to the various grades could be issued. It was only after the issue of substant ive appointment orders to persons who had opted for absorption into the service, that the Department could publish the seniority list. The formalities aforementioned included obtaining the options from all the employees, getting the approval of the parent departments of the erstwhile deputationists for their permanent absorption in the ARC Service, medical examination of employees, etc. It was on account of the delay involved for completing the said procedure that the seniority lis t could be finally published only on November 6, 1978. Theproceeds to state that promotions in the Department were effected in the meantime strictly on the basis of the seniority list of officers recommended for absorption which the Screening Committee had prepared. It is further pleaded by the first respondent that no illegality whatever was involved in adopting the principle of reckoning the seniority in a particular post on the basis of total length of contin uous service put in by the concerned officers in the particular grade in the ARC or in the equivalent grade in the parent department. The said rule was framed keeping in view the special requirements of the new Department. If the deputationists had not been given the benefit of the service put in by them in the equivalent grade in their parent departments, they would have all opted for their reversion to their parent departments and that would have resulted incomplete dislocation of the functioning in the ARC. The first respondent states that lin formulating or applying the seniority rule there has not been any arbitrary discrimination as between direct recruits and deputationists and hence neither the rules nor the seniority list can be said to be violative of Articles 14 and 16 of thewith the contention put forward by the petitioners on the basis of article 26 of the Civil Service Regulations, it is submitted by the first respondent that the said article, which deals with appointments by transfer "in accordance with a provision in the Recruitment Rules providing for such transfers" had no applicability at all in the matter of ta king persons on deputation to the ARC when it was a purely temporary Department which had no Recruitment Rules. The subsequent absorption of such deputationists and other categories of employees has been done strictly in accordance w ith the provisions contained in the impugned Rules which are statutory in origin. In the absence of any Recruitment Rules, there was no legal bar whatever preventing the competent authority from borrowing persons from other departments on deputation basis to man the various posts in the ARC during the period prior to the introduction of the impugned Rules with effect from April 26, 1976. The former deputationists had occupied a larger percentage of the higher posts during the aforesaid period because they had put in more years of service in different grades and had much greater experience in carrying out the functions which were of a highly specialised nature when compared to the direct recruits whose induction in the ARC star ted only fromvit filed on behalf ofrespondents 13, 16, 22 etc., they have put forward more or less the same contentions in defence of the writ petition as have been taken by the firstthe averments contained in counter-affidavit of the first respondent and the documents produced before us, it is seen that .. the Aviation Research Centre was a temporary and ad hoc organisation set up late in 1962, on an emergency basis, when the country was threatened with the Chinese aggression for carrying out the work of collecting intelligence by the use of highly sophisticated techniques. For manning this Task Force, persons with experience in the specialised nature of the work were tak en on deputation basis from different sources, such as the intelligence Bureau, the Departments of Defence Science, Wireless Panning and Coordination, the Directorate General of Civil Aviation and the Police of different States and they were grouped together to form the ARC. Subsequently, to supplement the man power, some persons were also directly recruited to the organisation on a purely ad hoc basis. The ARC organisation was initially treated as an extension of the intelligence Bureau . In February 1965, it was brought under the control of the Director General of Security. The administrative control over the organisation which was originally vested in the Ministry of External Affairs and later with the Prime Ministers Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for continuance of the temporary organisation was accorded by the Government from year to year till the year 1971 when decision was taken by the Government to make the ARC a p ermanent Department. But, the finalisation of the principles to be adopted for constitution of the new permanent Department took considerable time and it was only on April 26, 1976 that the President of India promulgated the Aviation Research Centre (Technical) Service Rules providing for the constitution of a new service to be known as Aviation Research Centre (Technical) Service and laying down the principles regulating the method of recruitment to the various posts in the said Service. Till 1976, there was no regularly constituted cadre of posts in the temporary ARC organisation and there were also no rules or even executive orders laying down any principles regulating the method of appointment to the various posts in t he6 of the impugned Rules deals with the initial constitution of the new ARC permanentthe petitioners are shown to have been appointed to the cadre of ACIO-Il on the aforementioned conditions, it is difficult to see how they can successfully contend that they had been regularly appointed to the ARC with effect from the dates of their initial recruitment. They were holding merely ad hoc appointments which did not confer on them any entitlement for permanent absorption in the posts if and when the posts were made permanent. The basic premise on which the petitioners have sought to build up their case of arbitrariness and discriminations, namely, that the petitioners had all been initially recruited directly to the ARC on a regular basis while the deputationists were holding posts only on ad hoc basis, i s thus seen to be contrary to facts. The correct position which obtained as on the date of the promulgation of the impugned Rules was that the petitioners as well as the deputationists were all working in the temporary ARC organisation only o n a purely ad hoc basis. It is against this factual background that we have to examine the contentions put forward by the petitioners in support of the challenge levelled by them against the impugned Rules as well as against the seniority list of 1968 and the various promotions given to respondents Nos. 8 to 67.At this stage, it will be convenient to first dispose of the contentions urged by the petitioners, against the validity of the promotions given to respondents Nos. 8 to 67 du ring the period between 1968 and 1975. In our opinion, the challenge raised by the petitioners against those promotions is liable to be rejected on the preliminary ground that it is most highly belated. No valid explanation is forthcoming from the petitioners as to why they did not approach this Court within a reasonable time after those promotions were made, in case they really did feel aggrieved by the said action of the Department. This writ petition has been filed only in the year 1979, a nd after such a long lapse of time the petitioners cannot be permitted to assail before this Court the promotions that were effected during the years 1968 to 1975. A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny himthe High Court by its judgment dated April 7, 1972 dismissed that writ petition on the ground that it was premature inasmuch as it had been submitted before it by the counsel for the Union of India that all the existing arrangements in t he ARC were purely ad hoc and that service rules would be framed shortly, the High Court has recorded clear findings in the judgment that the principle adopted for the preparation of the combined seniority-list of 1971 could not be said to have violated Articles 14 to 16 of the Constitution and that it had not been shown by the writ petitioners in that case that the impugned promotions had been effected in violation of any "statutory rules, constitutional or statutory limitations or ev en administrative instructions" .If the petitioners were dissatisfied with the aforementioned findings entered by the Delhi High Court, one should have expected then to approach this Court at least soon after that decision was rendered by that High Court in April 1972-we are not suggesting that the findings of the High Court operate as res judicata against the petitioners in these proceedings. There is no satisfactory explanation forthcoming from the petitioners as to why no action at all was taken by them to challenge the validity of the impugned promotions given to respondents Nos. 8 to 67 from 1968 onwards for a period of nearly seven years subsequent to the aforesaid pronouncement by the Delhi Highapart from what has been stated above on the aspect of laches, on the merits also we do not find any substance in the contentions urged by the petitioners against the legality of the promotions granted to respondents Nos. 8 to 67 during the period between 1968 and 1975. At that time, as already, noticed, the ARC was a H purely temporary organisation which was being continued on a year to year basis. There was no regular cadre of posts in the said organisation, nor were there any rules governing the mode of recruitment etc. All the appointments made in the organisation, whether of direct recruits like the petitioners or of deputationists like respondents Nos. 8 to 67, had been made only on an ad hoc basis. Since there was no regularly constituted service, the principles contained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs (Annexure C), on which strong reliance was placed by the petitioners, could have no application at all to the temporary ARC organisation. It is clear from a reading of the said Memorandum (Annexure C) that its provisions will get attracted only in relation to Government servants appointed to the Central Services.During the period aforementioned, the ARC was just a Task Force set up on an ad hoc and experimental basis for the purpose of carrying out certain functions of a highly specialised and sensitive nature. Quite naturally, the personnel required for manning the organisation had to be picked and grouped together in the manner best suited to effectuate the object and purpose underlying the creation of the organisation. So long as there was no regular cadre and hierarchy of posts and no rules laying d own the mode of appointment/promotion to those posts it was perfectly open to the Government to fill up the posts by securing the services of persons who, in its opinion, were, by virtue. Of their experience and qualifications, best suited for being entrusted with the specialised kinds of functions attached to the various posts. We have already seen that the petitioners had been appointed as ACIOs-II(DFOs) only on a temporary and ad hoc basis. Such appointments did not confer on the m any rights even to the posts of DFos. It had also been categorically made clear to them in the letters containing the offers of appointment that such appointments will not confer on them any right to the permanently absorbed in the p ost if and when it was made permanent. There was also not even any executive order or administrative instruction declaring the post of DFo as the feeder category for appointment to the higher posts. In such circumstances, it has to be he ld that the petitioners had no legal right or claim for being appointed by promotion to the higher posts of ACIO-I (FO), ATO,our opinion, the aforesaid principle laid down hl rule 6(2) for determination of inter se seniority was quite reasonable and fair and it did not involve any arbitrary or unfair discrimination against the petitioners. The attack levelled by the petitioners against the sai d provision contained in sub-rule (2) will, therefore, stand repelled.In the light of what we have stated above, the provision contained in rule 7 that the seniority of persons appointed on permanent basis in each grade at the initial constitution of the service shall be in the order in which they are shown in the relevant list prepared by the Screening Committee in accordance with provisions of Rule 6 has also to be upheld as perfectly valid andsee no substance at all in the challenge raised by the petitioners against Rule 8 of the impugned rules and the provisions of Schedule II. Under the said rule, the appointing authority is empowered to fill up every post remaining unfilled immediately after the initial constitution of the various grades in the service as well as every vacancy that subsequently arises by making appointments on promotion, deputation/transfer, re- employment after retirement or direct recruitment, in accordance with the provisions contained in Schedule II. At the time of constituting a new service and laying down the mode of appointment to the various posts, it was fully within the powers of the President of India to prescribe the methods by which vacancies arising in the different categories of posts in the department should be filled up and this is precisely what has been done as per rule 8 and the provisions of Schedule II. The petitioners have not been able to make out that the provisions of Rule 8 and Schedule II are tainted by illegality of anynext point urged by the petitioners is that the Screening Committee had acted in violation of the principles of natural justice in as much as it had not afforded to the petitioners an opportunity to make their representations before the Committee. The function entrusted to the Committee was to adjudge the suitability of person who were holding posts in the different grade s in the temporary ARC organisation for permanent appointment in the newly constituted ARC (Technical) Service on the basis of the records relating to their past performance in ARC organisation, etc. We do not see how the prin ciples of natural justice can get attracted in such a context. The law does not cast any obligation on a Committee discharging such a function to invite representations from the persons in the eligible categories and consider those representations while adjudging their suitability for appointment into the new service. Hence we do not find any substance in the argument advanced on behalf of the petitioners that there was a violation of principles of natural justice by the Screening Committee.The petitioners have put forward a further plea that the promulgation of the impugned rules was deliberately delayed till April 1976 with a view to confer an unfair advantage on the deputationists, several of whom were granted promotions to higher posts during the v period between 1971 when the decision to make the department permanent was taken and April 26, 1976 when the impugned rules were finally issued. We find it stated in the counter-filed on behalf ofthe first respondent that the draft rules were prepared by the Directorate of ARC and submitted to the Government in 1972 itself, but, on a detailed scrutiny being made, it was found that the said draft required substantial modifica tion in several respects. Revised rules were, therefore, drafted and submitted to the government late in 1974. The first respondent has submitted that the time taken in finalising the rules was due to the fact that intensive examinati on of all the relevant aspects had to be done by various concerned Ministries before the draft rules could be finally approved and issued. We are inclined to accept the explanation offered by the first respondent for the delay in promulgation of the Rules, and we hold that the plea of mala fides put forward by the petitioners is notthe promotions given to the deputationists as well as to the direct recruits during the period between 1968 and 1976 had been effected only on a purely ad hoc basis. Even though temporary in character, those promotions had been made only on the basis of the recommendations made by the Departmental Promotion Committee which had effected the selections by applying uniform an d relevant considerations, such as length of service in the lower grade and over-all experience and performance. It is stated in thewhile making such promotions for appointments to higher posts, no deputationists with lesser years of service vis-a-vis direct recruits had been given ad hoc appointment to any higher post. The first respondent has submitted that in making the promotions aforementioned, the authorities concerned were actuated only by consideratio ns of the best interests of the department and the maintenance of a higher standard of efficiency in its function and there was no intention whatever to confer any advantage to the deputationists or to discriminate against the direct recruits. We do not find any ground for not accepting as correct and true the aforesaid submissions made on behalf of the first respondent. Accordingly we hold that in granting promotions to the deputationists during the period between 1971 and 1975 respondents 1 to S were not actuated by any intention to confer an unfair advantage on the deputationists.Another argument advanced on behalf of the petitioners was that at the time of their initial appointment in the ARC, they had be en given high expectations regarding their promotional prospects from the post of DFO, and that by bringing in large number of deputationists and fitting them into the higher posts, the Government had illegally gone back on the promise held ou t to the petitioners. We see no merit in this contention. As already noticed, in the letters sent to the petitioners offering appointment to the category of AClO- II (DFO), it had been made abundantly clear that their appointments would be purely temporary and ad hoc in nature and would not confer on them any claim for permanent absorption even in the post of DFo. No subsequent representation is shown to have been made to the petitioners by the Department at any time prior to 1976 hold ing out any prospects of Department permanent absorption in service or promotions to higher grades. The petitioners continued to function in the ARC organisation only on ad hoc basis till the rules were promulgated and they were absorbed into the new ARC (Technical) Service at the stage of its initial constitution on the basis of the provisions contained in Rules 3 and 6. It is significant to note in this context that it was only after the petitioners had seen the impugned rules and h ad gained full knowledge of the provisions contained therein relating to absorption and seniority in the department, that they opted for absorption in the service in accordance with those rules and it was on the basis of the options s o exercised by them that they were appointed in the hew constituteddo not also see any merit in the argument put forward on behalf of the petitioners that sub-rule (6) of Rule 6 of the impugned Rules enables the Screening Committee to absorb in a lower grade such of th e deputationists who were found unsuitable to be absorbed in the higher posts which they were holding as on April 26, 1976. Firstly, this is not a provision applicable only to the erstwhile deputationists. On the other hand, the sub-rule itse lf makes it very clear that its provisions apply equally to all the persons who are eligible for absorption in the service under sub-rule (1) irrespective of whether they are deputationists or direct recruits. Sub-rule (6) comes into operation when a person in the eligible category holding a post in a higher grade on the appointed day, who has been found suitable for permanent appointment in such higher grade cannot, however, be absorbed in the said grade on account of non-availability o a vacancy therein. What the sub-rule lays down is that in such eventuality the Screening Committee may recommend such a person for permanent appointment in a lower grade and thereby retain his services in the new Department. We fail to s ee how this provision can be said to infringe any of the fundamental rights of the petitioners.Lastly, it was contended on behalf of the petitioners that in preparing the impugned seniority list dated November 6, 1978, the principles laid down in Rule 6 (3) and Rule 7 have not been correctly observed, and that by reason of the deviation from those principles, the promotional prospects of some of the petitioners have been adversely affected. No concrete instance of any such deviation from the principles set out in Rule 6 (3) and Rule 7 has been brought to our notice. All the same, we think it necessary to observe that this Court expects that the provisions of Rule 6 (3) and Rule 7 will be strictly conformed to, both in letter as well a s in spirit, by respondents Nos. I to 7, and that in case it is found on examination that the ranking assigned to any of the petitioners in the impugned seniority list dated November 6, 1978 is not consistent with the principles laid down in the aforementioned rule, necessary action should be immediately taken to rectify the said defect, and if the promotional chances of any of the petitioners have been adversely affected by reason of such defect in the seniority list, such promotions should also be reviewed after following the requisite procedure. We direct that the petitioners may bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in Rule 6 (3) and Rule 7 resulting in incorrect assignment of seniority and rank to them by submitting representations before the first respondent within a period of six weeks from today. In case any such representations are received, they will be duly examined by the first respondent and appropriate orders will be passed thereon in the manner indicated above as expeditiously as possible.