Mrs. Garima Singh, applicant in Original Application No.3278 of 2010, is a direct recruit Section Officer belonging to Central Secretariat Service (hereinafter to be referred as CSS) through Civil Services Examination conducted by Union Public Service Commission. Pitted against her as respondents are Section Officers who came to occupy the said post by way of promotion. There has been a long drawn litigation between direct recruit and promotee Section Officers who vied against each other for seniority, which litigation ended on 9th May, 1997, when the Apex Court in the matter of Surjit Singh & others v Union of India & others (Civil appeal No.3641-48 of 1997) directed interpolation of direct recruit Section Officers of various years in between the non-direct recruits. When the chapter as regards inter se seniority between the direct recruit and promotee Section Officers was closed, the direct recruits and promotees would not have anticipated that another serious litigation is awaiting them in the wings, which would engulf the whole cadre of Section Officers. Whereas, the first litigation culminating into the order of the Supreme Court, as mentioned above, was as regards inter se seniority on the post of Section Officers, the one manifested by the present litigation is as regards precedence in the matter of promotion to the next higher post of Under Secretary.

2. This litigation has its roots in the Cabinet decision of October, 2003 vide which the approved permanent strength of the cadre of Section Officers was increased to 1400. For this increase in the strength necessary notification was to be issued separately to become effective, as per the decision of the Cabinet itself. The notification manifesting increase in the cadre strength came about on 27.2.2009. The official respondents would take the increased strength of the cadre from 2003 and make promotions for the vacancy year 2003 onwards. The applicant, by the time the increase in cadre strength aforesaid came about, was marginally short of the eligibility criteria, which, as per statutory rules, is eight years of service as Section Officer. The applicant being a 1996 batch officer would have the eligibility criteria in the year 2004 or 2005. Before we may make an elaborate mention of the pleadings, we may shortly cull out the basic contention raised in support of the plea that the applicant being senior despite not having the requisite qualifying service of eight years on the post of Section Officer, has to be considered along with her juniors. It is urged, in the first instance, that the Government through the Department of Personnel & Training (DOP&T), which is the nodal Ministry in all service matters as pertaining to Central Government employees, has issued memorandums from time to time, catering for the situation as the one in hand. It is spoken through the memorandums to be referred hereinafter, that where a senior may not have the eligibility criteria, but his or her juniors are being promoted, the eligibility criteria shall have to be relaxed. It is urged that these memos have to be read as part of the rules. Another contention raised on behalf of the applicant is that when the notification increasing the strength in the cadre came about in 2009, she was having far more number of years of service put on the post of Section Officer, and was admittedly answering the eligibility criteria. It is the case of the applicant that the Cabinet decision even though, might have been taken in October, 2003, it would be effective only from 2009 when the notification in that regard came to be issued, and that being so, the applicant would be eligible. To the contention, as mentioned above, the other limb is that if the respondents have to make promotions for the vacancy year 2003, the same cannot include promotions from the increased strength of the cadre. The third contention is that the memorandums, if may not be read as part of the rules or with the rules, would, in any case, be general directions across the board for relaxation in eligibility criteria of service. The fourth, but equally significant contention raised is that when there were sufficient and adequate grounds in existence for exempting the eligibility criteria for which ample powers exist in the statutory rules, in consideration of the entire material, the respondents proceeded in a right direction to give relaxation in rules to the applicant and other equally situate employees, and all notings and the orders made in that regard on official files were reversed by simply observing that relaxation in rules would lead to unnecessary litigation. It is urged that once, grounds justifying relaxation were in existence, it could not be overturned on the ground of anticipated litigation.

3. The respondents would join issues with the applicant on all the contentions as noted above.

4. The questions debated before us are of some significance. The Tribunal, being the court of original or primary jurisdiction, it would be appropriate to refer to the pleadings in sufficient details. Before we may, however, do that, we may mention that this Original Application came to be filed before the Tribunal in its Calcutta Bench on 19.12.2009. While making mention of the main contentions raised in the Application, the Honble Members then seized of the matter, vide order dated 23.12.2009, restrained the respondents from giving any consequential order in respect of the select list of Grade-I for the year 2003. During pendency of the OA, some impleadment applications were allowed and number of promotee Section Officers were arrayed as party respondents. The interim directions, as mentioned above were modified to the effect that the official respondents were set at liberty to promote those officers whose names figured in the select list of 2003 and who were senior to the applicants as per seniority. The order passed by the Tribunal was, however, to abide by the final order to be passed in the OA. For non-obedience of the orders dated 23.12.2009, a contempt petition also came to be filed, in which notices were issued. Reply on behalf of the respondents 1 to 3 also came to be filed when the matter was before the Bench at Calcutta. When proceedings stood so, an application came to be filed by the respondents seeking transfer of the OA to the Principal Bench at Delhi on variety of grounds. The said application, after notice, was allowed by one of us (V. K. Bali, Chairman) vide orders dated 10th September, 2010. Against the order aforesaid, the applicant Garima Singh filed WP(C) No.8267/2010 before the High Court of Delhi, which was dismissed vide orders dated 10.12.2010. The matter was being heard by a Division Bench and arguments in the matter were heard from time to time. However, vide order dated 7.3.2011, the matter was referred to a larger Bench for the reasons recorded in the said order. While, however, referring the matter to the larger Bench, the interim directions given by the Calcutta Bench were further modified to say that the respondents would be at liberty to promote persons to the post of Under Secretary, but the same would be subject to decision of the OA. Applicant and the last six persons in the select list in tune with seniority were, however, not to be promoted. The respondents, it was further ordered, would in all promotion orders specifically mention that their promotion would be subject to final outcome of the present OA, so that the applicant need not implead every promoted person as party respondent. It was, however, left open to the persons so promoted to address their arguments, impleaded or not. During pendency of the present OA before this Tribunal, five other OAs bearing Nos.4284/2010, 4285/2010, 382/2011, 384/2011 and 403/2011 also came to be filed, which have been ordered to be listed for hearing along with the present OA. Three more OAs bearing Nos.4282/2010, 4283/2010 and 4286/2010 also came to be filed during pendency of the OA filed by Garima Singh, wherein short replies have been filed by the respondents. These matters were being adjourned from time to time. However, when the same came up for hearing on 22.3.2011 before the Division Bench, by which time the judgment in Garima Singhs case had already been reserved, the same were reserved for judgment, and it was directed that the judgment in the same would be pronounced with Garima Singhs case. It is for that reason that we were informed by the counsel representing the applicant in Garima Singhs case that six direct recruits have filed OAs, we have granted a limited stay of non-promotion of six junior most promotee Section Officers. The pleadings in the main OA filed by Garima Singh are complete. The Tribunal thought that there would be no necessity to complete pleadings in other cases, as the learned counsel representing the parties were ad idem that the issue involved in all the matters is exactly the same and there would be no need to have response of the respondents in all the cases. That being so, while permitting, however, every counsel representing the parties in all the cases to address arguments, in order to save on time, no response of the respondents was sought in other OAs. By this common order, we propose to dispose of all the nine Original Applications, as has also been suggested by the learned counsel representing the parties.

5. Challenge in the OA filed by Garima Singh under Section 19 of the Administrative Tribunals Act, 1985 is to the decision of Department of Personnel & Training, the 1st respondent herein, communicated vide office memorandum dated 25.8.2009 relating to the Select List for the year 2003 of the officers of the Central Secretariat Service (CSS) for appointment to Grade-I (Under Secretary) of the Service by incorporating the newly created posts in the panel of Under Secretaries of 2003, which had not come into existence on 1.7.2003 and which were not included in the Approved Permanent Strength (APS) of the Grade-I as on 1.7.2003. The case of the applicant is that in fact these posts were notified on 27.2.2009 vide gazette notification following a decision of the Cabinet of October, 2003, and that by arbitrarily increasing the number of vacancies the 1st and 2nd respondents have included junior officers in the Section Officers grade of the CSS and excluded the applicant in the Select List of Grade-I for the year 2003, ignoring the recommendations of the Committee of Secretaries (CoS) headed by the Cabinet Secretary dated 10.9.2003 to resolve the direct recruit CSS officers seniority in the light of court judgments and based on the principles of equity to avoid possible litigation, and also the Minister of State (Personnel)s decision to grant relaxation of eligibility condition to the direct recruit CSS officers. Following prayers have been made in the OA:

6. The applicant, as mentioned above, belongs to Central Secretariat Service (CSS). She was recruited through Civil Services Examination, 1996 conducted by Union Public Service Commission, the 2nd respondent, and joined the service on 6.7.1998 as a Section Officer. She was promoted as Under Secretary (Grade-I of CSS) on ad hoc basis with effect from 11.7.2005 vide office memorandum dated 13.7.2005. A common seniority list of Section Officers was prepared in 1997 after a long drawn litigation and was finalized under the directions of the Honble Supreme Court in the case of Surjit Singh & others (supra) decided on 9.5.1997, whereby the direct recruit Section Officers of various years were interpolated in between non-direct recruit Section Officers. The applicant was assigned seniority in the common seniority list at number 4636A. Copy of the said seniority list has been placed on records as annexure A-2 (colly.). It is the case of the applicant that despite being senior in the common seniority list, she has been denied promotion, while junior officers, i.e., promotees, from the list up to number 5180, in case of general category candidates, have been promoted to the next higher grade of Under Secretary. It is further her case that as per Central Secretariat Recruitment Rules, 1962 (hereinafter to be referred as the Rules of 1962), Select List means the select list prepared in accordance with the regulations made under sub-rule (4) of rule 11 or rule 12, as the case may be. In accordance with sub-rule (4) of rule 12 of the Rules aforesaid, the Ministry of Home Affairs made the Central Secretariat Service (Promotion to Grade I and Selection Grade) Regulations, 1964 (hereinafter to be referred as the Regulations of 1964), which lays down the detailed procedure for preparation of Select List. Regulation 5(1) of the said Regulations stipulates that a fresh select list for Grade-I shall be prepared at least once a year, if on the 1st July of the year the number of officers already included in the select list for that grade, is below the strength fixed under Regulation 3(1) , i.e., the sanctioned strength of the grade. The strength of the select list is to be fixed by the 1st respondent from time to time. It is the case of the applicant that there was no notified cadre strength of Grade-I (Under Secretary) in the CSS prior to 27.2.2009. There was, however, a concept of approved permanent strength (APS) in the Grade-I as on 1st July of every year. In the instant case, APS of Grade-I as on 1st July, 2003 was 579 as reported by the 1st respondent to the Union Cabinet in the proposal for cadre restructuring of CSS, which got approval of the Cabinet on 3rd October, 2003. After the cadre restructuring, the sanctioned strength in the Grade-I became 1400 with effect from 27.2.2009 vide gazette notification following a decision of the Cabinet in October, 2003. It is further the case of the applicant that it would be inappropriate, illegal, arbitrary and unfair to incorporate the vacancies created in 2009 in the select list of 2003. The applicant makes mention of a note of Secretary (Personnel) dated 14.11.2008, which states that as on 30.6.2003 there were 429 regular Under Secretaries in place. It is the case of the applicant that even if it were to be argued that the decision of the Cabinet came into effect on the day the Cabinet approved it, the posts created by the decision of the Cabinet in October, 2003 could not be included in the APS of the Under Secretaries as on 1.7.2003, i.e., three months earlier, and, therefore, the posts created by the Cabinet in October, 2003 could not be taken into calculation for purposes of preparation of the select list of 2003, which is to be prepared on the first day of July every year as per the Rules of 1962. The 1st respondent while preparing the select list for Grade-I of CSS for the year 2003, it is further the case of the applicant, violated the Rules of 1962 and 2009, as also the procedure, principles and instructions on the subject. The select list for Grade-I of CSS of 2003 has to be prepared with reference to the APS on 1st July, 2003 as per the Rules of 1962. The APS of Grade-I as on 1st July, 2003 was 579, and, therefore, the select list for 2003 could not be more than the APS, assuming that all the posts in the grade were vacant on that day. In this case as on 1st July, 2003 there were 429 regular Under Secretaries (Grade-I officers) in position as per the notes recorded by Secretary, DOP&T on 14.11.2008 for preparation of select list for Grade-I for the year 2003, as may be made out from the noting on file obtained by the applicant under the Right to Information Act . The applicant pleads that besides wrongly calculating the number of vacancies for select list for 2003, the 1st respondent has also violated the decision of the Committee of Secretaries in the Cabinet Note for cadre restructuring of CSS in para 24(vi), which states, the concern expressed regarding seniority of DR Section Officers might be suitably resolved in the light of court judgment and principle of equity to avoid any possible litigation. The 1st respondent, it is pleaded, completely overlooked and blatantly ignored the decision of the Cabinet while preparing the panel of 2003, and further that due to faulty preparation of the select list for the year 2003, junior officers as per common seniority list of 1997 prepared on the basis of the direction of the Supreme Court and upgraded from time to time, have been included in the select list for Under Secretaries in 2003 ahead of the seniors, and that the inclusion of juniors in the select list ahead of seniors in the select list would be in violation of the DOP&T guidelines/instructions dated 18.3.1988, 9.7.1989 and 25.3.1996. The 1st respondent through OM dated 19.7.1989 drew attention of all the Ministries and Departments to the relevant part of the instructions dated 18.3.1988 and directed them to take necessary action for amendment of recruitment rules urgently wherever this had not been done, in order to ensure that seniors who might have joined later due to various reasons were not overlooked for promotion. Accordingly, all the services of the Central Government have included this provision in their recruitment rules. Copies of the Indian Civil Accounts Service and the Indian Economic Service incorporating the aforesaid directive of the 1st respondent have been placed on records as Annexure A-4 (colly.). The applicant pleads that considering that eight years of service in the grade of Section Officer is necessary to become eligible for Under Secretary, the direct recruit batches of 1995 and 1996 onwards in the feeder grade have been denied to be included in the select list panel of Under Secretary, while their juniors in the common seniority list of Section Officers are being considered for promotion. This situation has arisen due to violation of the Rules of 1962 and retrospective application of CSS Rules, 2009 by the 1st respondent. Normally, the direct recruits of 1995 and 1996 would have been eligible for promotion to the grade of Under Secretary in 2004 and 2005 respectively, and had the 1st respondent followed the rules of 1962 and Regulations of 1964, there would not have been a situation where junior officers would have been included in the panel of 2003. That being so, there would have been no demand for invoking the relaxation provision as issued by the 1st respondent from time to time. In October, 2003, a major restructuring of CSS cadre was done as a result of which about 821 new posts were created in the grade of Under Secretary. It is the case of the applicant that the 1st respondent wrongly determined the vacancies for preparation of the select list of 2003 as 914 by arbitrarily and illegally including the new creation of posts in the Under Secretary grade, which came into effect vide gazette notification dated 27.2.2009, following the decision of the Cabinet in October, 2003. The large size of the select list panel for the year 2003 is stated to be a resultant effect of a hypothetical calculation done by the 1st respondent, having no legal basis, without proper justification, done in a purely mechanical manner. The applicant states that it is a case of deliberate attempt of the 1st respondent to deny promotion to the applicant, which would be established by the fact that the respondents have accounted a newly created post that was non-existent on 1.7.2003 and as such, the decision of the respondent would be discriminatory, arbitrary, unlawful and unjust. In any case, it is pleaded, the direct recruit CSS officers of the exam years 1995 and 1996 have been denied promotion on the ground that they have not yet completed eight years of regular service as on 1.7.2003, with the end result that the direct recruit CSS officers who are senior in the common seniority list as compared to their juniors, have not been considered and included in the select list for the year 2003 on the ground of want of eight years regular service, and due to such wrong and arbitrary decision of the 1st respondent, the applicant has suffered an irreparable loss inasmuch as, the direct recruit CSS officers of 1995 and 1996 have become juniors to about 700 and 500 officers respectively, who were in the feeder grade. As regards the relaxation, it is pleaded that the 1st respondent while considering the same as regards eligibility criteria for direct recruit officers as a one time measure, has admitted that the senior-junior clause is followed across various services in Government of India and is even implemented at other levels of CSS. The applicant gives example of Deputy Secretary and Director levels, and in that behalf pleads that in the case of the applicant, the respondents have failed to apply this well accepted norm while dealing with the case of direct recruit officers of 1995 and 1996 batches. The 1st respondent is also said to have admitted that DOP&T has consistently adopted the policy of allowing relaxation up to two years service as qualifying service in the case of promotions in all services. Same view has been taken by the Honble Supreme Court while disposing of a civil writ in the case of Ms. Sadhana Khanna v Union of India in the year 2007, whereby the decision of the Tribunal dated 24.9.1999 in OA No.1271/1993 was upheld. The 1st respondent is stated to have further admitted vide a note at page 24/N of file No.5/16/2007-CS.I that the DOP&T has constantly adopted the policy of allowing relaxation up to two years of service as qualifying service in case of promotion in all services of the Government of India even after 1997, and accordingly considered it as fit, deserving and an appropriate case to grant up to two years relaxation in qualifying service to those direct recruit officers who have not yet competed their eligibility condition of eight years of service, so as to make them fit for consideration for the select list of Grade-I of CSS for the year 2003. Not applying the accepted norms of relaxation of eligibility condition is stated to be unreasonable, arbitrary and discriminatory. It is also the case of the applicant that the Minister of State had directed that the select list should be prepared as per seniority, i.e., common seniority list, which was prepared under the direction of the Honble Supreme Court, and yet the select list of the year 2003 has been finalized in ignorance of the said directions. The 1st respondent had obtained vigilance clearance in respect of the applicant from the Ministry of Agriculture before sending the proposal to UPSC, but her name has not been included in the select list of 2003. The respondent was earlier considering the name of the applicant for inclusion in the select list of 2003, and vide OM dated 4.9.2003 required the direct recruit officers up to 1996 batch to submit the ACR dossiers and other documents/information for preparation of panel for the year 2003. the applicant accordingly, completed the ACR dossiers and other documents/information as per the requirement. Subsequently, the 1st respondent directed the AVD branch of DOP&T to obtain vigilance clearance of the applicant for inclusion in the select list of Under Secretaries for the year 2003. Thereafter, the AVD branch vide OM dated 12.2.2009 obtained vigilance clearance from the Ministry of the applicant, which was also made available to the 1st respondent. The applicant complied with all required formalities for being considered for inclusion in the select list of 2003, but to her utter surprise and dismay, her name was excluded by the respondent without assigning any reason whatsoever. The applicant thereafter sent representations through the association, and when the same brought no tangible results, present Original Application for the reliefs already indicated above came to be filed.

7. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their reply, hotly contested the cause of the applicant. Some replies by private respondents have also been filed. There shall, however, be no need to make a mention of the pleadings made therein, as nothing specifically therefrom has been urged during the course of arguments. We may thus make a mention of the reply filed on behalf of official respondents. The reply on behalf of respondents 1 and 3 has been filed through Under Secretary in the Department of Personnel & Training. While giving the factual background of the case, it has been pleaded that with a view to ameliorating the service conditions of CSS officers and relieving them from years of stagnation, the Government constituted a Committee on cadre restructuring of CSS in 2001 under the chairmanship of the Additional Secretary (Pension). Joint Secretary (Pers.), Department of Expenditure and Joint Secretary (Estt.), DOP&T, were members, and Director (CS) was member-secretary of the said Committee. The Committee after series of deliberations in various meetings and after hearing the stake holders of the CSS, i.e., various associations, prepared a report. The Committee examined the cadre restructuring of CSS considering the stagnation in all the feeder grades, the overall cadre perspective and strength of CSS, and submitted its report to the Government in 2002. DOP&T after series of deliberations and in consultation with Finance Ministry, prepared a Cabinet note inter alia to fix grade-wise strength of CSS. Before the Cabinet note was placed before the Union Cabinet, it had been referred to a Committee of Secretaries, which considered the various aspects of the proposal. Based on the recommendations of the Committee on cadre restructuring of CSS and various suggestions of the Committee of Secretaries, the Government took a decision with the approval of the Union Cabinet in October, 2003 inter alia to fix the sanctioned strength of different grades of the Service. After fixation of the strength of different grades by the Union Cabinet in October, 2003, consequential action for preparing select lists for the years 2003 onwards for different grades had been taken from time to time from October, 2003 to date, which included regular promotions to the grade of Deputy Secretary on the basis of select list of Deputy Secretaries for the year 2003, wherein vacancies for the said select list have been calculated at 105 based on the sanctioned strength of the grade at 330. It is pleaded that it cannot be contended that the posts have come into existence on notification of CSS Rules, 2009. The CSS Rules, 1962 are said to be applicable for the select list 2003 in the grades of CSS. After reproducing the definition of approved service, as per rule 2 of the Rules of 1962, and the eligibility criteria for promotion as mentioned in rule 12, it is pleaded that the direct recruit Section Officers of the CSS would be eligible for promotion to Grade-I (Under Secretary) of the CSS after eight years from the first day of July of the year following the year in which the examination for direct recruitment was held. It is pleaded that the applicant was recruited through Civil Services Examination in the year 1996, and her eligibility for the promotion from Section Officers grade to Grade-I (Under Secretary) would start from 1st July, 1997, and thus, as per her eligibility for promotion to the post grade of Under Secretary, she would be considered for the select list 2005. Mention is then of the earlier litigation between the direct recruits and promotees culminating into the orders passed by the Honble Supreme Court. It is pleaded that after the seniority was settled, the pending select lists of Grade-I of CSS from 1987 onwards up to 2002 were issued, and in preparing these select lists, no relaxation has ever been granted due to implementation of the judgment of the Supreme Court in Smt. R. Prabha Devi v Union of India . It is pleaded that earlier the direct recruit Section Officers had challenged the Governments decision to increase the number of years from six years to eight years for their eligibility for promotion to the posts of Under Secretary of CSS. The challenge was repelled by the Honble Supreme Court in the case of R. Prabha Devi (supra). On 18.3.1988, as reiterated on 19.7.1989, in order to ensure that seniors who might have joined later due to various reasons are not overlooked in the matter of promotion, it was laid down that the recruitment rules for various posts/services should prescribe a note to the effect that when juniors who have completed the eligibility period are considered for promotion, seniors would also be considered irrespective of whether they have completed the requisite service, provided that they have completed the probation period. This, it is stated, was, however, applicable to such posts/services as might not lay down any instructions about crucial date with reference to which eligibility of the employees in the feeder cadre should be determined for the purpose of promotion through DPCs. It is pleaded that in the case of Grade-I of CSS, the eligibility of different categories of Section Officers has specifically been laid down as already mentioned above, and as such these instructions are not to be applied in the CSS. It is stated that it was duly clarified vide DOP&T OM No.AB-14017/12/97-Estt.(RR) dated 24.9.1997 (Annexure R-I), and that even though the applicant has mentioned about the guidelines of 19.7.1999 and 25.3.1996, yet has nefariously suppressed the guidelines contained in OM dated 24.9.1997. It is pleaded that no exception or differential treatment has been made in respect of the select list of Under Secretaries for 2003, and the same principles which have been followed while making the select lists of 1987 to 2002 of even 2004 to 2008 have been uniformly followed in respect of the select list for 2003, and further that no relaxation, as sought for by the applicant, would be admissible, which has especially not been given to avoid unnecessary litigation, as would be clear from the MoS (Personnel and Pension)s letter dated 14.12.2009 addressed to Chief Minister of Mizoram, copy whereof has been placed on records as Annexure R-II. The select lists in the grades of CSS are prepared in pursuance of the guidelines issued by DOP&T for DPC vide OM dated 10.4.1989, as mentioned from time to time. The DPC guidelines at para 4.1 of the OM aforesaid as amended from time to time provide for the manner of calculation of the vacancies, which would be uniformly applicable to all grades of the CSS. All the select lists from Assistants to the Senior Selection Grade (Director) of the CSS have already been issued for the select list year 2003. The select list for the year 2003 starts from 1.7.2003 and ends at 30.6.2004 and all the vacancies arising during this period, it is pleaded, were taken into account for the select lists of different grades. The contention of the applicant on calculation of vacancies for the select list 2003 for Grade-I of CSS (Under Secretary), it is stated, is based on misconception, conjectures and surmises. To sum up, it has been averred as follows:

8. When the matter came up for hearing before us on 20.1.2011, it was urged on behalf of the applicant that the Government of India, Ministry of Personnel, PG and Pensions vide letter dated 6.4.2009 addressed to UPSC had sent a copy of the eligibility list for the year 2003 as annexure-II, and that list included the names of all direct recruits irrespective of the fact as to whether they fulfilled the eligibility criteria of eight years or not. The learned counsel sought adjournment to file an affidavit in tune with the plea raised by him, as noted above. The matter was adjourned enabling the applicant to file an affidavit. An application has been filed on behalf of the applicant wherein it is inter alia pleaded that vide letter dated 6.4.2006 issued by DOP&T addressed to UPSC, the name of the applicant was also sent as an eligible candidate for consideration for promotion to Grade-I of CSS, and that it was done on the basis of DP&T OMs itself which stipulate consideration of seniors when their juniors who have completed eligibility service are considered, and further that for some inexplicable reasons the name of the applicant along with other direct recruit officers has been omitted in the final consideration by the DPC either by UPSC or some other agency. It is then pleaded that letter dated 6.4.2009 would show that the name of the applicant is reflected at serial number 358, with seniority number CSL 4636-A over and above her junior officers, and that in the like manner, the names of other direct recruits who are similarly placed like the applicant, and are senior to her in the seniority list, also find place in the said eligibility list. It is further pleaded that after issue of the DOP&T letter dated 6.4.2009, the applicant is not aware as to the circumstances leading to non-consideration of her case for promotion for the select list of the year 2003, even though in terms of the requisite DOP&T OMs and seniority list, she is eligible for being considered for promotion, and that non-consideration of her case, even though her name was forwarded as an eligible officer, would be arbitrary and discriminatory. Reply to the misc. application aforesaid has been filed by the official respondents. It is stated therein that the applicant has annexed letter dated 6.4.2009, which would show her name but she has failed to appreciate that in the seventh column, approved service from has been mentioned in clear terms and that in her case the approved service would start from 1.7.1997 only. It is further pleaded that the applicant has already been included in the select list of grade-I of the CSS for the year 2005, vide DOP&T OM dated 7.1.2010. It is denied that the list initially sent to UPSC vide letter dated 6.4.2009 was prepared based on any of DOP&T OM or by granting relaxation in any provision of the rules concerning approved service, and that in fact, the general list depicting seniority and approved service in respect of individual Section Officers in the zone of promotion was prepared and sent to UPSC. However, after sending the proposal of the select list of 2003 for Under Secretary grade, UPSC responded that the eligibility list be drawn in accordance with rule 12(2) of the Rules of 1962, vide para 1(viii) of their letter dated 13.5.2009. accordingly, a revised eligibility list was prepared strictly in terms of rule 12(2) read with rule 2(c) of the Rules of 1962 and forwarded to UPSC vide letter dated 22.5.2009, which excluded the names of direct recruit section Officers who were not eligible for inclusion in the select list 2003 for want of eight years approved service. Thus, the list forwarded vide letter dated 22.5.2009 was the final list considered by the UPSC for DPC.

9. When this matter came up for hearing before us on 22.2.2011, we passed the following order:

10. The applicant has filed rejoinder to the written statement filed on behalf of respondents 1 and 3, wherein it is inter alia pleaded that CSS Rules, 2009 came into force on 27.2.2009. The said Rules repealed the Rules of 1962. The impugned promotion order dated 28.5.2009 was prepared under rule 12(2) of the Rules of 1962. It is pleaded that having regard to such a position, no legal right has accrued in favour of the selected candidates (promotees) and the entire action in choosing those candidates on the basis of the repealed Rules would be void. In the instant case, it is pleaded, the approved permanent strength in the Grade-I as on 1.7.2003 was 579 as reported by the 1st respondent to the Union Cabinet in the proposal for cadre restructuring of CSS, which got approval of the Cabinet on 3.10.2003, and after the cadre restructuring, the sanctioned strength in the Grade-I became 1400 with effect from 27.2.2009 vide gazette notification of even date, following the decision of the Cabinet of October, 2003. Vide OM dated 25.8.2009, the 1st respondent issued select list for the year 2003 of the officers of CSS for appointment to Grade-I (Under Secretary) of the Service. The vacancies in Grade-I of 2003 select list have been filled up by promotion of Section Officers following rule 12(2) of the Rules of 1962. The procedure for panel preparation has been laid down in the Regulations of 1964. The field of selection shall ordinarily be extended to three times the number of officers to be included in the select list [regulation 3(2)]. The plea raised by the respondents that 1400 vacancies of Under Secretaries were created in October, 2003 on the basis of approval of the Cabinet to be included in the select list of Grade-I of CSS of the year 2003 does not hold good in view of the fact that in view of rule 5 of the Rules of 2009 the authorized cadre strength of Grade-I of Under Secretary is 1400, and such figure, although approved by the Cabinet as early as in October, 2003, has been notified vide Gazette notification dated 27.2.2009, and, therefore, under any circumstances, the said cadre strength of 1400 could not have been taken into account by the respondent for the purpose of calculating the vacancy position as on 1.7.2003. The respondents, it is pleaded, could not have passed the impugned order on the basis of the Rules of 1962, which would be dead rules, calculating the vacancy position as 1400, which was notified vide the Rules of 2009. The allegation that the applicant has nefariously suppressed guidelines dated 24.9.1997 is denied. It is also pleaded that on February 11/12, 2009, the 1st respondent issued an office memorandum to various cadres including the Ministry of Agriculture and Co-operation seeking vigilance clearance of the officers whose names figured in the zone of consideration and who were likely to be included in the select list of 2003. The aforesaid list included, amongst others, the name of the applicant. Similar memorandum was issued to other Ministries/Departments seeking vigilance clearance in respect of eligible officers including direct recruit officers of 1995-96 batches. On a perusal of the said OM dated 11.2.2009, it is the case of the applicant, it would be clear that the applicant is an eligible candidate according to the 1st respondent for being included in the select list of 2003, inasmuch as, it has been clearly stated that her name figured in the zone of consideration. It is pleaded that the respondent with mala fide intention has deliberately excluded the name of the applicant and similar other direct recruit officers of 1995-96 batches in the impugned office memorandum dated 22.8.2009.

11. We have heard Shri R. Venkataramani, Sr. Advocate, representing the applicant, and Shri R. V. Sinha, counsel representing respondents 1 and 3, assisted by a galaxy of lawyers, and with their assistance examined the records of the case. We may mention at the very outset the reason why this matter had to be referred to a larger Bench. We bodily lift our order dated 7.3.2011 constituting the Full Bench, which reads as follows:

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. Every direct recruit to the Section Officers or the Assistants Grade, in view of provisions contained in rule 15, is to be initially appointed on probation, which is to be of two years. A probationer, as per rule 16, shall be eligible for confirmation in the Grade when he has passed the prescribed tests and has completed his probation to the satisfaction of the appointing authority, and until a probationer is confirmed under rule 16 or is discharged or reverted under rule 17, he shall continue to have the status of a probationer. The Central government has power to relax any of the provisions of the Rules, in view of rule 25(a), which reads as follows:

12. The other judicial precedent relied upon by the respondents which covers the issue, is of this Tribunal, which has since been confirmed by the High Court of Delhi in WP ) No.3269/2003 & 3912/2003 in the matter of R. K. Ojha & others, decided on 3.7.2009. The facts of the said case reveal that after a long pending dispute, the seniority was finalized after the decision of the Supreme Court in R. Prabha Devis case (supra). Because of pendency of the said dispute, promotion on regular basis to the grade of Under Secretary could not be made for number of years. During pendency of the dispute, OM dated 4.12.1991 came to be issued pursuant to the interim directions issued by the Supreme Court for filling up all the vacancies that existed as on that date. However, ad hoc promotions were made to the higher post. After preparation of the common seniority list, the official respondents, for purpose of undertaking the exercise of regular promotions to the post of Under Secretary, prepared year-wise eligibility lists from 1987 onwards, and on that basis referred the matter to UPSC for considering the cases of eligible persons for promotions. The petitioners before the High Court were direct recruits who had joined as Section Officers in the year 1984. They could complete eight years of service only in the year 1992 and were thus not included in the eligibility lists prepared for the years 1987, 1988, 1989 and 1990. They challenged their non inclusion in the select lists on the only ground that they were seniors and could not be ignored. The Tribunal vide its judgment dated 2.5.2003 dismissed the OAs filed by the direct recruit Section Officers. It was held that they would have no locus standi to challenge the promotions made by the UPSC as they were not eligible. Reliance was placed upon the judgment of the Supreme Court in R. Prabha Devi (supra) in repelling the contention raised on behalf of the applicants. This judgment has been upheld by the High Court primarily for the reasons given by the Tribunal. Before the High Court, it appears, some other issues, which were wholly unconnected to the controversy in issue, were also raised, and on such issues as well the decision went against the petitioners. The writ petition was dismissed vide order dated 3.7.2009. Once again, we may reiterate that the applicants in support of their plea had not even referred to the OMs now relied upon by the applicants in present case. We shall refer in details the judgment of the Tribunal, which has since been confirmed by the Supreme Court, when on similar controversy where the concerned OMs which were pressed into service culminated in favour of direct recruits, upon which reliance was placed by the applicants, and that became an added reason to refer the matter to the larger Bench. Before we may advert to such judgments, it would be more appropriate to refer to the OMs relied upon by the applicants in support of their plea that when senior persons are available, irrespective of their not fulfilling the eligibility criteria as prescribed in rule 12 of the Rules of 1962, they would have a right of consideration for promotion to the post of Under Secretary.

13. The Government of India, Ministry of Personnel, Public Grievances & Pensions (DOP&T), issued OM dated 18.3.1988 with the subject, Revision of guidelines for framing/amendment/ relaxation of recruitment rules issued on 22.5.1979. It appears that the basic OM on the subject mentioned above came into being on 22.5.1979. Subsequent to memorandum dated 22.5.1979, number of orders and clarifications were issued on the subject, which necessitated reviewing and consolidating the instructions in the form of Guidelines on framing/amendment/relaxation of recruitment rules. Such consolidated guidelines were annexed with the memorandum dated 18.3.1988. In para 3.1.2 of Part-III of the said memorandum with the caption Consideration of seniors, it is mentioned as follows:

14. The OMs aforesaid, it may be recalled, it is the case of the applicant, have to be read with the rules or as part of the rules. It is urged that the controversy as regards reading such OMs with the rules stands clinched by the judgment of this Tribunal, which has since been confirmed by the Honble Supreme Court. This Tribunal dealt with a similar question in OA No.1271/1993 in the matter of Smt. Sadhana Khanna v Union of India , decided on 24.9.1999. The facts of the case aforesaid reveal that the applicant therein had impugned OM dated 28.5.1993 containing names of Assistants coming within the zone of consideration for being brought on to the select list of Section Officers for the year 1991 against seniority quota. The applicant was not included in the select list as she had not completed eight years requisite service for promotion to Section Officer grade as on 1.7.1991. The eligibility was to be as on 1st of July of the year for which the panel was to be prepared, which would have been 1.7.1991 in the case of the applicant. It was the case of the applicant that there was no provision in the rules/instructions which required her to be eligible as on 1st July of the year concerned. It was pleaded that although she was senior as per the seniority list, she was offered the post of Assistant after 1.7.1983. It was also urged that to meet such a situation DOP&T had issued OM dated 19.7.1989, where juniors who may have completed the eligibility period are considered for promotion, their seniors should also be considered, irrespective of whether the seniors had completed the requisite period of service, and for this purpose, all Ministries/Departments had been called upon to insert a note in the recruitment rules to various posts by way of amendment to those rules, and that had the respondents acted in accordance with the OM aforesaid, the applicant would have also been considered along with her juniors. The applicant urged that she could not be penalized for failure of the respondents to amend the recruitment rules in accordance with the OM dated 19.7.1989. Per contra, the respondents relied upon the relevant recruitment rules as also the judgment of the Honble Supreme Court in R. Prabha Devi (supra) to emphasize that when qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment, and seniority in a particular cadre does not entitle an employee to a higher post unless he/she fulfills the eligibility condition prescribed in the relevant rules. On the rival contentions of the learned counsel representing the parties, as noted above, the Tribunal observed as follows:

15. The respondents while joining issues with the applicant on the contentions as noted above, would raise four-fold submissions. It is first urged by them that even though, the applicant has referred to OMs as mentioned above, but she has nefariously suppressed the guidelines contained in OM dated 24.9.1997. This has been repeated and reiterated by asserting in the pleadings that the applicant while quoting the DOP&T OM dated 25.3.1996 has deliberately omitted the mention of the subsequent OM dated 24.9.1997, wherein while referring to the judgment of the Supreme Court in R. Prabha Devis case (supra), a clarification has been given. During the course of arguments, it is even suggested that the OM dated 24.9.1997 which is in tune with the judgment of the Supreme Court in R. Prabha Devis case, would supersede the OMs relied upon by the applicant. The other plea raised on behalf of the respondents is that as the OMs relied upon by the applicant would take care of a situation where service rules as regards the date from which qualifying eligibility service is to be counted, has not been provided. In the case in hand, it is stated, that as per statutory rules qualifying service would start from the1st of July of the year subsequent to the year of examination in which the direct recruit may have appeared, and, therefore, the OMs would not be applicable. Yet another plea raised on behalf of the respondents is that the OMs relied upon by the applicant would take care of a situation where seniors due to reasons beyond their control joined subsequent to juniors, and in that manner may be falling short of the qualifying service for promotion to the next higher post. The last plea raised on behalf of the respondents based upon law is that the OMs relied upon by the applicant are, at the most, guidelines or instructions, and cannot supersede the statutory rules, and, therefore, till such time the instructions or guidelines may be incorporated in the statutory rules by way of amendment, the same would be of no meaning and consequence.

16. Insofar as, the last contention of the respondents based upon law is concerned, we may deal with the same later. However, insofar as the other three contentions raised on behalf of the respondents, as enumerated above are concerned, we are of the view that the same cannot be accepted. In fact, there is a complete fallacy in the contentions raised by the learned counsel representing the respondents in that behalf. Insofar as the first plea of the respondents that the OMs relied upon by the applicant stand clarified or superseded by OM dated 24.9.1997 in view of the judgment of the Honble Supreme Court in R. Prabha Devi (supra) is concerned, we may mention that, in our considered view, the OM dated 24.9.1997 is in fact reiteration of the OMs relied upon by the applicant. We may reproduce OM dated 24.9.1997 in verbatim. The same reds as follows:

17. The distinction made by the respondents as regards applicability based upon there being provision or otherwise as regards the date from which the eligibility is to reckon, is equally devoid of merit. The respondents would appear to have raised the contention aforesaid taking cue from the instructions dated 19.7.1989. The effort of the respondents is to link the first three paras of the said instructions with the fourth. The first three paras indeed talk of a situation where there are no instructions as regards the crucial date for reckoning the eligibility period. In that event, guidelines have been given as to how the same is to be reckoned. It is then said that the dates so determined sans rules as regards the date of reckoning of eligibility period, the rules will prevail. The third para is only that the said instructions would come in force with immediate effect. Insofar as, the fourth para is concerned, it is totally unconnected with the first three paras. It may be recalled that the original instructions came into being vide guidelines dated 18.3.1988. By virtue of para 3.1.2 of part-II of the said OM, in para 4 of the instructions dated 19.7.1989, it is clearly mentioned that it is in connection with para 3.1.2 of the OM dated 18.3.1988. Para 4 of the instructions dated 19.7.1989 is absolutely independent and wholly unconnected with the earlier part of the instructions contained therein. Para 3.1.2 of instructions of 1988 exclusively deals with relaxation in rules as regards the period of eligibility, and yet the respondents would like to read para 4 in continuation of paras 1, 2 and 3. Further, the respondents would raise this plea taking cue from the contention raised by the applicant before this Tribunal in Sadhana Khanna (supra). It was urged before the Tribunal that there were no rules from where the respondents were trying to work out the reckoning the eligibility from the 1st July of the year following the year of examination. The plea raised in that behalf was not gone into, but what appears to us is that it is on that basis only that it was stated that the instructions would operate differently where there is no time mentioned for reckoning of the eligibility criteria, as compared to where it has been mentioned. The respondents appear to be oblivious of the fact that both the services, i.e., one involved in the case of Sadhana Khanna (supra) and the one in the present case, are governed by the Rules of 1962, and the approved service as defined in rule 2(2)(c)(i) is as follows:

18. On a pure and simple question of law, the respondents endeavour to show that instructions/guidelines/OMs have no statutory character, and unless such instructions etc. may not have been incorporated by way of amendment in the statutory rules, the same would be of no meaning and consequence. The respondents have a plethora of case law to cite in support of their contention as mentioned above. We may make a mention of some judicial precedents relied upon by the respondents on that behalf. In T. N. Housing Board v N. Balasubramanium & others [(2004) 6 SCC 85], it was held that executive instructions providing that where feeder categories carried different pay scales and no quota was fixed for promotion, then persons in higher pay scales should be given preference, and that executive instructions could not be applied to give preference to Chief Head Draftsmen/Head Draftsmen with less than the prescribed minimum length of service over eligible Junior Engineers. Briefly, the facts of the case are that under provisions of T.N. State Housing Board Regulations framed under T. N. State Housing Board Act, 1961, 25% of the posts of Assistant Executive Engineers in the Housing Board were to be filled up from amongst Junior Engineers with minimum of ten years of service, and Chief Head Draftsman/Head Draftsman with minimum of fifteen years of service. Panel for such promotions was prepared in which names of the respondent-Draftsmen were not included due to lack of requisite length of service. The High Court held that the executive order dated 13.10.1984 would be applicable and directed the Board to create supernumerary posts to promote the respondents as Assistant Executive Engineers. Referring to regulation 28 of the Regulations, the said executive order provided that where no quota was fixed for feeder categories carrying different pay scales, persons in higher pay scale were to be given preference. The order of the High Court was challenged in the Supreme Court which held that for Junior Engineers and Draftsmen, eligibility criteria had been laid down in the Regulations. Admittedly, the said eligibility criteria was mandatory in nature and the validity thereof had not been questioned. It was held that once, the eligibility criteria was considered to be a pre-requisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable, and that once, it was held that relying on the basis of the executive instructions in terms of regulation 28(a), the Draftsmen who had been getting higher salary were to be given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose, which consequence would lead to an absurdity, and, therefore, the executive instructions could not be given effect to. In R. S. Sharad & another v Union of ndia & others [WP(C) No.2178 of 1996, decided on 8.5.2008, reported as 152 (2008) Delhi Law Times 427 (DB)], a Division Bench of the High Court of Delhi held that administrative instructions issued by the Government could not supersede the rules unless the instructions are incorporated in the rules. There would be no need to refer to all the judgments relied upon by the respondents, as there cannot be any dispute that the executive instructions, particularly when the same may be against the rules, cannot be applied; the same have to be ignored. In the case in hand, however, we are of the considered view that the judgments referred to above and others which have been relied upon by the respondents, may not be applicable. DOP&T OMs dated 18.3.1988, 19.7.1989, 25.3.1996 and 24.9.1997 can well be considered as if issued by the executive of the Union in the legislative powers conferred upon it by Article 73 of the Constitution. They deal with uncovered issues, i.e., a situation where a junior may be considered for promotion over and above his seniors, and where a senior may not have the eligibility criteria. Such a situation is not covered under the Rules of 1962. The OMs may not specifically make a mention of Article 73 , but it is too well settled a proposition of law that non-mentioning of the provision or making mention of wrong provision would not make any difference. The real test is that there should be a power to do what has been done by the legislature or the executive. There is a mandate in the OMs that all cadre controlling authorities should insert a Note in the respective recruitment rules to the effect that whenever a junior who has completed the requisite eligibility service is considered for promotion, then all his seniors should also be considered. The directive issued by the DOP&T has admittedly been complied with by many cadre controlling authorities by inserting the Note in the respective recruitment rules, and wherever such Note has not been incorporated, the Government has been freely making resort to exemption or relaxation in the rules as regards eligibility. While dealing with the subject of relaxation involved in the present case, we will make a detailed mention as regards the consistent stand of the Government in that regard. At this stage, we may only refer to the note dated 14.11.2008 available on records, wherein it is clearly recorded that DOP&T has been adopting a consistent policy of allowing up to a maximum of two years relaxation in qualifying service in promotions in all services, and that UPSC too has been accepting this from time to time in accordance with DOP&T OM dated 25.3.1996. It has also been mentioned that OM dated 24.9.1997 has been issued by way of clarification on the basis of judgment of the Apex Court in R. Prabhadevis case (supra), and that from a perusal of the judgment of the Supreme Court and OM aforesaid, it would be clear that it is neither a direction of the Supreme Court nor the intent of the DOP&T to supersede its earlier circular dated 25.3.1996, and that in fact, DOP&T has consistently adopted the policy of allowing relaxation of up to two years of service as qualifying service in case of promotions in all services. The applicant has indeed brought on record rules of at least two services where the note as ordained above in the OMs aforesaid has been inserted. The applicant has also brought on record some orders giving relaxation in rules as regards eligibility where juniors were to supersede seniors. Article 73 of the Constitution reads as follows:

19. We also find considerable merit in the two-fold contentions raised by the learned senior counsel Shri Venkataramani that the OMs, in any case, have to be taken as if relaxation in the eligibility criteria to the extent of two years and that after years of deliberations, relaxation came to be granted to the applicant but was withdrawn on wholly untenable grounds. While dealing with the two-fold contentions of the learned counsel representing the applicant as mentioned above, it may be recalled that in view of rule 25(a) of the Rules of 1962 relaxation as regards any provisions contained therein is permissible. The eligibility for promotion from the post of Section Officer to that of Under Secretary is eight years service, but there are ample powers by which the same can be relaxed. We may mention some salient features as regards the first issue and then refer to the record dealing with exemption in the very case, as per the original records made available to us. In service jurisprudence promotion may not be a fundamental right, but consideration of the same is indeed so. The applicant is admittedly senior to hundreds of promotees, who are to be considered for promotion in the select list now prepared by the respondents, whereas the applicant would not be so considered. It is in consideration of this fundamental right of seniors for consideration that the first OM dated 18.3.1988 came to be issued, as mentioned above, on the heels of the judgment passed by the Honble Supreme Court in the case of R. Prabha Devi (supra). The fact that various OMs came to be issued to take care of seniors in the matter of promotion in preference to their juniors, came to be noted by this Tribunal in Sadhana Khanna (supra), which fact was not denied at that stage, nor is even now in dispute. Of course, if the distinction sought to be made by the respondents on the OMs as adverted to earlier is not accepted, the respondents themselves recognized a fundamental right of seniors for consideration for promotion in precedence or preference to their juniors, while issuing OM dated 18.3.1988. The subject of the instructions aforesaid reads, Revision of guidelines for framing/amendment/ relaxation of recruitment rules issued on 22.5.1979. In para 3.1.2 under the caption Consideration of seniors, the situation that has arisen in the present case, has been mentioned. It is stated that it may so happen that in some cases of promotion, the senior officers would not have completed the required service, whereas their juniors would have completed the prescribed eligibility condition for promotion, and that in such cases, seniors will be left out from consideration for the higher post, and it is to avoid this situation that a suitable Note may be inserted in the recruitment rules so that seniors who have completed the probation period, are also considered where juniors who have completed the requisite service are being considered. The second memo is dated 19.7.1989, wherein mention is made of the earlier OM dated 18.3.1988 and the Ministries/Departments have been asked to comply with. The memo dated 23.10.1989 deals specifically with the subject of consideration of seniors who have not completed the qualifying service for promotion in cases where their juniors who have completed the requisite service are being considered. There is a lament in the OM aforesaid that in spite of instructions, the proposed note has not been incorporated in the recruitment rules for number of posts, which would either lead to leaving out the seniors or going for relaxation in the recruitment rules. In order to avoid such a situation, a request was made to incorporate the necessary note in the recruitment rules. The next memo is dated 25.3.1996, mention wherein came to be made of the judgment of the Supreme Court in R. Prabha Devis case (supra), and it was provided that to avoid such a situation, necessary note be inserted in the relevant recruitment rules. What exact note has to be inserted has been specified. All these memos have been issued by the DOP&T which is the nodal Ministry for all Central Government employees. It is the case of the applicant that in number of services, the note has since already been incorporated. Specific example of two services has been given, which, as mentioned above, is not in dispute. The OMs of DOP&T are directives as has also been opined by this Tribunal in Sadhana Khanna (supra) and have to be complied with. Despite the fact that years and years have rolled by, the DOP&T itself, while dealing with the employees directly in its department, has not inserted the note amending the rules. It is the case of the applicant and so mentioned in the OM dated 25.3.1996 as well, that the Government has been going for exemption in the eligibility in such cases where the note has not been inserted. It is also the case of the applicant that DOP&T has allowed this provision to be exercised in the case of other services, and in that regard, reliance has been placed upon a note of Under Secretary (RR), DOP&T dated 10.2.2004 in case of the Indian Statistical Service, which reads as follows:

20. What clearly emerges is that if the OMs are not to be read as exemption under rule 25(a) of the Rules of 1962, although not so specifically stated, as surely they are applicable to all services under the Central Government, the fundamental right of a senior for even consideration for promotion would be thwarted. It would be a case of complete discrimination between Central Government employees of different departments. Note as regards consideration of seniors without their even having the eligibility period, has been inserted in number of services, including the Indian Revenue Service and the Indian Ordnance Factories Service. The exemptions have been granted to members of the Central government services in other departments. If, therefore, the OMs are not treated as exemptions to the limited period mentioned therein, which would be, as per the OM dated 25.3.1996, only two years, which is also subject to the incumbent having completed the probation successfully, it would be discrimination which is frowned upon by Article 14 of the Constitution of India. Thirdly, OM dated 25.3.1996 clearly states that if the note is not inserted, the matter may have to be taken up for exemption each time. Fourthly, as regards other services and in particular, the Indian Statistical Service, exemption has indeed been granted. Lastly, the circulars having been issued more than two decades ago, which are in nature of directives and cannot be treated as a dead inert affair or a waste paper. The Government, in any case, cannot be permitted to turn around and say that simply because its slackness, it has been unable to carry out the necessary amendments in the rules, and, therefore, the OMs shall not be binding upon it. Such a stand, particularly when the note envisaged under the OMs for amendment has been added in other services of the Government, cannot be countenanced. On one hand, the OMs having not been inserted in the rules, it may legally be submitted that the same would be of no use and consequence, whereas, on the other hand, the Government cannot be permitted to deny their existence, nor backtrack from it, particularly in the manner as mentioned above, when such note has been inserted in other service rules, and where not so inserted, the relaxation has been granted. The only harmonious way to reconcile this situation is to treat the OMs as relaxation. The OMs being directions across the board relating to all services under the Government of India, have to be treated as general directions and not as if orders passed under the rules relating to relaxation. Incidentally, in the present case, all parameters as contained in rule 25(a) of the Rules of 1962 dealing with relaxation in the Rules are met. The rule aforesaid empowers the Government to relax the provisions of the Rules in consultation with UPSC. We reserved these matters for judgment and while preparing the same, vide order dated 26.4.2011 we required the parties to clarify as to whether the OMs referred to above came into being in consultation with UPSC. In that regard, it is urged by the learned counsel representing the applicant that even though, copies of all OMs were sent to UPSC, but insofar as the OM dated 24.9.1997 is concerned, same came into being in consultation with UPSC, as is clearly recorded therein. This argument is not controverted during the course of arguments. The learned counsel would also contend that the word used in rule 25(a) is consultation and not concurrence. It is urged that consultation with UPSC, in any case, would not be mandatory, and for the contention aforesaid reliance has been placed upon the judgment of the Honble Supreme Court in State of Uttar Pradesh v Manbodhan Lal Srivastava [AIR 1957 SC 912], wherein it has been held that the provisions of Article 320 (3) (c) of the Constitution are not mandatory and non-compliance with those provisions would not afford cause of action to a civil servant in the court of law.

21. Having perused the official records, we are convinced that the Government was all through alive to the situation and seriously deliberated over the issue for number of years, and ultimately, agreed to give exemption, but in a matter of days, a converse decision is taken on wholly untenable grounds. It may be recalled that cadre restructuring came about by the Cabinet decision dated 28.10.2003. Despite that, the matter as regards preparation of select list of Grade-I (Under Secretary) of CSS for the year 2003 came to be taken in hand by the DOP&T on 28.8.2007. A Desk Officer prepared a note on the date aforesaid to the effect that before exact vacancies are determined in accordance with the formula, the Ministries/Departments be asked to furnish various information required in that regard. DO, CSI vide note dated 30.8.2007 required the US(D) to indicate the number of Under Secretaries of CSS promoted as Deputy Secretaries (Selection Grade) during the period 1.7.2003 to 30.6.2003, to determine the vacancies in the grade of Under Secretary for the select list year 2003. When the information required, as mentioned above, was being collected, a detailed note came to be made by the Desk Officer on 27.11.2007, relevant portion whereof reads as follows:

Option 7(b) Merits:

Option 7(c) Merits:

22. The final orders, it appears to us, were taken when the Minister of State agreed with the views of the Secretary after hearing the representatives of both sides. The decision as reflected in note of the Secretary would clearly manifest that keeping in view the balance of convenience and respecting the principle of seniority, it was appropriate to go strictly by merit and seniority. It was not to go by merit and eligibility as per rules. For reasons unknown, the matter after taking the final decision came before the JS (AT&A) and Secretary (P), who would interpret merit and eligibility and completely forget the word seniority. We may mention at this stage that promotion from the post of Section Officer to that of under Secretary is to go strictly by merit. In that regard, we may refer to Regulation 5 (4) to (7) of the Regulations of 1964, which read as follows:

23. The last contention raised by the learned counsel representing the applicant appears to be attractive in the first blush, but when examined in details, it may not have much substance. It is no doubt true that the cadre restructuring came about by the decision of the Cabinet dated 28.10.2003, wherein it is mentioned that the restructured strength of CSS in various grades would be effective from 3.10.2003. It has, however, also been mentioned that necessary notification relating to amendments to the CSS Rules would be issued separately. This amendment was brought about vide notification dated 27.2.2009, when the Rules of 1962 were amended. Rule 6(1) of the Rules of 1962 states that the authorized permanent strength of the Selection Grade (Deputy Secretary); Grade I (Under Secretary); Section Officers and Assistants were mentioned in the Third Schedule. On restructuring of the cadre, it is the case of the applicants that the Schedule had to be amended. The Schedule that came into being by virtue of notification dated 27.2.2009 along with the amended rules would take effect from the said date, and if that be so, the applicant would be answering the eligibility criteria by far more years than required under the rules. We are not impressed with this plea, as perhaps it is not known to the applicant that the third Schedule was omitted by amendment in the Rules vide notification dated 24.2.1999. Rule 6 was amended as follows:

24. In view of the discussion as made above, while allowing the main and the connected Original Applications, we would direct the respondents to prepare a fresh Select List for 2003 for promotion of Section Officers to the grade of Under Secretary by considering such of the direct recruits who may be short of eligibility service by up to two years as per the approved seniority list of Section Officers, and make promotions accordingly. We reiterate that the eligibility criteria as regards direct recruits shall be reduced only by a period of two years, and only such of the direct recruits would be benefited who may be falling short of the eligibility criteria by two years, and not others. Vide interim orders passed from time to time, as fully detailed above, the Government was permitted to make promotions as per the Select List prepared by it, but the last six candidates, it was ordered, would not be promoted. It was further ordered that in all promotion orders it would be mentioned that the same would be subject to outcome of the Original Applications. That being the position, no hearing shall now be involved in the case from those who might have already been promoted and who may, by virtue of the orders passed by us, may have to be reverted. The issue is hanging fire for a very long time and, therefore, we direct the exercise as ordained above to be done as expeditiously as possible, but not later than eight weeks from today. In the peculiar facts and circumstances of the case, costs of the litigation are made easy.