UNION OF INDIA AND ORS.

K.B. RAJORIA

MARCH 28, :fOOO

[M. JAGANNADHA RAO AND MRS. RUM PAL, JI.]

Service Law :

Public Works Department (Director General of Works) Recruitment Rules, 1986:

Schedule-Notes ( 1) and (2 )-DPT' s O.M. No. 22011105186 Estt., Dated 10.4.1989-Notional promotion-Counting the period as 'Qualifying service' for further promotion-Promotion to the post of Director General (Works)- Requirement of two years regular service as Additional Director General (Works)-Held, in the case of the officer granted notional promotion as Additional Director General (Works), his appointment being regular to the post, the said period would be counted 9s qualifying service .for further promotion to the post of Director General (Works)-ln such a case actual service for the prescribed period is not required.

Locus Standi-Public Works Department-Promotion to the post of Director General (Works )-Requirement of two years service as Additional Director General (Works)-Officer notionally promoted to the post of Additional Director General considered for promotion-Another officer.filing an application before Central Administrative Tribunal claiming consideration on the ground that he also ought to have been granted notional promotion as Additional Director General, and, therefore he should have also been considered- Held, the officer has no locus standi since he was not granted national promotion as Additional Director General.

Words and Phrases :

'Service', 'regular service'-Meaning of.

The Schedule to the Central Public Works Department (Director General of Works) Recruitment Rules, 1986 provided that the post of Director General (Works), a selection post, could be filled up by promotion amongst, inter alia, Additional Directors General (Works) with two years

regular service. Appellant No. 4, who had been granted on 10.6.1998 notional promotion to the post of Additional Director General (Works) with effect from 22.2.1975, was considered for the post of Director General in January 1999. Respondent No. 1 filed an application before the Central Administrative Tribunal claiming that he was also eligible to be considered for the post of Director General, since the post of Additional Director had fallen vacant on 1.5.1995 and he should have been given notional promotion as Additional Director General w.e.f. 1.5.1995. The Tribunal dismissed the application. The.respondent filed a writ petition before the High Court, which held that on the cut-off date, i.e.1.7.1997 neither the respondent nor appellant No. 4 was eligible for promotion since 'regular service' in the Rules meant 'actual service' and that the fiction of notional sernce could ' not amount to two years experience necessary under the Rules. The High Court held that notional seniority granted to appellant. No. 4 was no substitute for requirement of two years' regular service as Additional Director General (Works). Aggrieved, the Union of India and others filed D the present appeal.

Allowing the appeal, the Court

HELD : 1.1. The High Court erred in construing the words 'regular service in the grade' as actual physical service. The word "regular'' does not mean "actual". The question the High Court should have considered was whether the appointment of appellant No. 4 as Additional Director General (Works) was regular and in accordance with the Rules or was it irregUiar in the sense that it was contrary to any principle of law. It is nobody's case that the notional promotion granted to appellant No. 4 was 'irregular'. By giving him notional promotion as Additional Director Gen eral w.e.f. 22.2.1995, he was in fact regularly appointed to the post on that date. [617-C; F-G; 618-A-B]

K. Madhavan v. Union of India, [1987) 4 SCC 566, relied on.

1.2. The High Court erred in equating the works 'regular service' G with 'actual experience'. Appellant No. 4 was admittedly superseded by his junior on 22.2.1995, and, therefore, later he was granted notional promotion as AdditionaJ Director General (Works) w.e.f. 22.2.1995. In terms of the provisions of para 18.4.3 of the Office Memorandum No. 220W05tS6 Estt. D dated 10.4.1989, he was entitled to count the period from 22.2.1995 H as the period of qualifying service for the purpose of further promotion to

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the post of Director General. Further, Note (1) to the Schedule to the A Central Public Works Department (Director General of Works) Recruitment Rules, 1986 leaves no room for doubt that the word "service" means "qualifying service" and Note 2 makes it clear that in case of supers.ession

actual service for the prescribed period is not required. [619-G; B; F]

Union of India and Others v. M. Bhaskar and Others, [1996] 4 SCC 416, B Distinguished.

2.1. The High Court erred in not dismissing the writ petition of the respondent on the ground of his obvious lack of locus standi as he had never been granted notional promotion. His case was built on hypothetical situations and his position could not reasonably be equated with that of appellant No. 4. [617-BJ

2.2. Besides, the concession of the respondent before the Tribunal that he was not challenging the eligibility of appellant No. 4 to be considered for promotion was overlooked by the High Court. [617-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2272 of 2000.

From the Judgment and Order dated 7.9.99 of the Delhi High Court in C.W. No. 3283 of 1999.

Altaf Ahmad, Additional Solicitor General, Raju Ramachandran, Ms. B.

Sunita Rao, S.N. Terdol, Anis Ahmad Khan, ArunK. Sinha and Rakesh Singh for the appearing parties.

The Judgment of the Court was delivered by

RUMA PAL, J. Leave granted.

The undisputed facts of this case are that the appellant No. 4 was notionally promoted to the post of Additional Director General (Works) of the Public Works Department with effect from 22nd February, 1995. The notional promotion was given by an order dated 10th June, 1998 in terms of instructions contained in the DPT's O.M. No.22011/05/86 Estt. D, dated 10th April, 1989 as amended from time to time. In the meanwhile on 1st July 1997, the post of Director General,(Works) CPWD fell vacant. The mode of selection to the post has been laid down in the Central Public Works Department (Director General of Works) Recruitment Rules, 1986, which were amended on 23rd March 1992 by the Central Public Works Department (Director

General of Works) Recruitment (Amendment) Rules, 1992. The amendment came into force on 4th April 1992. The Schedule to the Rules ( referred to hereinafter as the said Schedule) provides that the post of Director General (Works) is a selection post to be filled up by promotion from amongst, interalia, 'Additional Director General (Works) with two years' regular service in the grade'.

Since Krishnamoorti had been granted notional promotion to the post of Additional Director General on 10.6.98 w.e.f. 22nd February 1995, his name was considered for the post of Director General when the Departmental Promotion Committee met in January, 1999.

Shri K.B. Rajoria ( the Respondent No.1 before us) filed an application before the Central Administrative Tribunal claiming that he was also eligible to be .considered for the post of Director General. According to Rajoria, if the Departmental Promotion Committee had been held in 1995- 96, he could have been appointed to the post of Additional Director General which had fallen vacant on 1.5.1995. His case was that he too should have been given notional promotion with effect from 1.5.95 in which case he would have also been eligible for promotion to the post of Director General. Rajoria claimed that he had been unfairly discriminated against because only Krishnamoorti was being considered for the post of Director General. It was however made clear before the Tribunal that Rajoria was not challenging the eligibility of Krishnamoorti to be considered but was only seeking consideration of his own case along with Krishnamoorti for the post of Director General.

The Tribunal dismissed the respondent No. 1 's application on 12th May

1999. The 'respondent No. 1 challenged the decision of the Tribunal before the High Court under Article 226 of the Constitution.

The High Court held that neither the respondent no.1 nor Krishnamoorti were eligible on the cut off date i.e. 1st July, 1997 for promotion to the post of Director General. According to the High Court the words 'regular service' in the Rules means actual service and that the fiction of notional promotion could not amount to the two years' experience necessary under the Rules. The High Court was of the view that the notional seniority granted to Krishnamoorti by the order dated 10th June 1998 was no substitute for the requirement of two years' regular service as Additional Director General (Works) which had been laid down in the relevant rules as the eligibility criteria for promotion to the post of Director General (Works).

In our view, the High Court's decision cannot be sustained. First, the A concession of Rajoria before the Tribunal that he was not challenging the eligibility of Krishnamoorti to be considered for promotion was overlooked.

Second, the High Court erred in not dismissing the writ petition on the ground of the obvious lack of locus standi in Rajoria who had never been granted notional promotion because the DPC was not in fact held for reasons which the High Court felt were unavoidable. Rajoria's case was built on hypothetical situations, and his position could not reasonably be equated with that of Krishnamoorti.

Third, the High Court erred in construing the words 'regular service C in the grade' as actual physical service. If that were so, then an ad hoc appointee who actually serves in the post could also claim to be qualified to be considered for the post of Director General. The High Court itself held that "ad hoc service rendered by any of the parties would not count towards eligibility".

Finally, while considering the definition of the word 'regular' in the " Concise Oxford Dictionary, Ninth Edition, the High Court noted that it meant:

"(1) conforming to a rule or principle, systematic; (2) harmonious, symmetrical; (3) acting or done or recurring uniformly or calculably in time or manner, habitual, constant, orderly; ( 4) conforming to a standard of etiquette or procedure, correct, according to convention; (5) properly con.stituted or qualified, not defective or amateur, pursuing an occupation as one's main pursuit."

The word "regular" therefore does not mean "actual" and the first question the High Court should have considered was whether the appointment of Krishnamoorti was regular and in accordance with the Rules or was it irregular in the sense that it was contrary to any principle of law?

The decision which is somewhat apposite is the case of K. Madhavan

v. Union of India, (1987] 4 SCC 566 where the eligibility requirement was eight years in the grade 'on a regular basis'. In that case it was held :

In our view, therefore, the expression 'on a regular basis' would mean

the appointment to the post on a regular basis in contradistinction to H

appointment on ad hoc or stopgap. or purely temporary basis."

It is nobody's case that the notional promotion granted to Krishnamoorti was 'irregular'. By giving him notional promotion as Additional Director General With effect from 22.2.95, Krishnamoorti was in fact regularly appointed to the post on that date'.

The next question which should have beeri considered-was the mg of the word 'service' in the light of the relevant rules.

The Office Memorcmdum referred to in the order dated 10th June, 1998 and in terms of which notional promotion was granted to Krishnamoorti contains several provisions of which one is relevant for our purposes:

"18.4.3. If the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior-most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under F.R. at th"; stage it would have reached, had he been promoted; from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in the order in which his name, on review, has been placed in the select list by DPC. If in any such case a minimum period of qualifying service is prescribed for promotion to higher grade, the period from which an officer placed below the officer concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for promotion to the next higher grade"

Analysed these instructions provide:

(i) For the immediate promotion of a person who has been superseded.

(ii) Upon such promotion his pay should be fixed at the stage at which it would have reached had he been promoted from the date that the junior officer was promoted.

(iii) The seniority of such notionally promoted officer would be determined according to the select list prepared by the DPC if a minimum period is prescribed.

U.O.l. v. K.B. RAJORIA [RUMA PAL, J.] 619 .

(iv) For the further promotion of such notionally promoted officer, his eligibility would be calculated as including the period from which the junior officer was promoted.

Krishnamoorti was admittedly superseded by Shri S.R. Goyal, a junior officer on 22nd February, 1995, when S, R. Goyal was promoted to the post of Additional Director General (Works). In terms of the provisions of para 18.4.3, Krishnamoorti was entitled to count the period from 22.2.95 as the period of qualifying service for the purpose of further promotion to the post of- Director General.

The distinction drawn by the High Court between the word 'service' used in the eligibility criteria in this case and the words 'qualifying service' in para 18.4.3 is specious. The Notes to the eligibility criteria as set out in the said schedule fortify this view. Notes I and 2 to the said schedule clarify the position with regard to the calculation of " two years regular service in the grade".

"(l) The eligibility list for promotion shall be prepared with reference . to the date of completion by the officers of the prescribed qualifying service in the respective grades/posts.

(2) If a junior with the requisite years of service is considered, the senior will also be considered notwithstanding the fact that he does not possess the requisite years of service."

(Emphasis added)

~ Note I leaves no room for doubt that the word "service" means "qualifying service", and Note 2 makes it clear that in case of supersession actual service for the prescribed period is not required. This is in keeping with para 18.4.3 of the O.M. quoted earlier. As the notional date of promotion of Krishnamoorti was 22.2.95 he was eligible to be considered for the post of Director General in 1999.

In the context of this case, the High Court erred in equating the words 'regular service' with 'actual experience' relying on the decision in Union of India and others v. M. Bhaskar and Others, [1996].4 SCC 416. In that case the eligibility criteria expressly was of "completion of 2 years' experience in Grade II." The case is therefore entirely distinguishable.

The notional promotion was given to Krishnamoorti to right the wrong that had been done to him by his supersession on 22nd February, 1995. If Krishnamoorti is denied the right to be considered for promotion to the post of Director General on the basis of i.uch notional promotion, particularly when the relevant provisions so provide, it would result in perpetuating the wrong done to him. That is exactly what the High Court has done.

We, therefore, allow the appeal and set aside the impugned order of the High Court, in so far as the finding regarding Krishnamoorti was concerned.

There will be no order as to costs.

R.P.

Appeal allowed.