1. Dispute regarding validity of promotion quota deviation for clerks under Section 5-D(7)(a) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. (Para 2 )
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1996 Supreme(SC) 1062
1996(7) Supreme 175
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Union of India & Ors. -Appellants
versus
Vinod Kumar & Ors. -Respondents
Civil Appeal No. 9817 of 1996
(Arising out of SLP (C) No. 9374/96)
Decided on 15-7-1996
Counsel for the Parties :
For the Appellants : R.V. Reddy, Sr. Advocate, C.V.S. Rao, T.C. Sharma, Advocates.
For the Respondents : Ms. Meera Agrwal, R.C. Mishra, Advocates.
Important Points
The Court held that where a statute mandates prior approval from the Central Government for departing from recruitment rules, ex post facto approval is legally invalid and cannot substitute for the required prior approval.
Subject
Administrative Law - Delegated Legislation
Act Referred
Headnote
Employees Provident Fund and Miscellaneous Provisions Act, 1952-Section 5D(7)(a)-Deviation from rule of granting promotion of 50% of the quota giving two years additional benefit to Upper Division Clerks-Prior approval of Central Government was mandatory which was not taken-Ex-post facto approval was not an approval in eye of law-Tribunal was right to hold approval not valid and directed appellant to issue notification afresh for recruitment in accordance with rules. (Para 2)
Legal Category Hierarchy
Table of Contents
2. Whether deviation from promotion rules is valid when prior government approval was absent but ex post facto approval was obtained. (Para 2 )
3. The statutory proviso mandates prior approval for rule departures, rendering ex post facto approval legally invalid. (Para 2 )
4. Statutory requirements for prior approval cannot be satisfied by ex post facto approval. (Para 2 )
5. Appeal dismissed; order for fresh recruitment notification in accordance with rules upheld. (Para 3 )
6. How are recruitment and service conditions determined for officers of the Central Board under Section 5-D(7)(a) of the Employees Provident Fund Act?
They are specified by the Central Board in accordance with the rules and orders applicable to Central Government employees drawing corresponding scales of pay. (Para 2 )
7. Under what condition can the Central Board depart from the rules applicable to Central Government employees?
The Central Board may depart from such rules or orders provided it obtains the prior approval of the Central Government. (Para 2 )
8. Is ex post facto approval sufficient to validate a departure from rules when the statute mandates prior approval?
No, where the language of the statutory proviso requires prior approval, ex post facto approval is not valid in the eye of the law. (Para 2 )
ORDER
Delay condoned.
2. Leave granted.
We have heard the learned counsel.
The only short question is whether the deviation from rule of granting promotion of 50% of the quota giving 2 years additional benefit to the Upper Division Clerks is valid in law ? Sub-section (7)(a) of Section 5-D of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 provides method of recruitment as under :
"7(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner, Assistant Provident Fund Commissioner and other officers and employees of the Central Board shall be such as may be specified by the Central Board in accordance with the Rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay.
Provided that where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government."
Under the proviso, where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters enumerated above it is mandatory that it should obtain prior approval of the Central Government. Admittedly, prior approval was not obtained. On the other hand, ex post facto approval was obtained but in the teeth of the language of the proviso ex post facto approval is not an approval in the eye of law. Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept at large and directed the appellant to issue notification afresh for recruitment in accordance with rules. We do not find any legality (sic illegality) in the order.
3. The appeal is accordingly dismissed. No costs.
Appeal dismissed.
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Paralle Citations of other Journals :
Union of India & Ors. v. Vinod Kumar & Ors., 1996(7) Supreme 175
00027
