1998 Supreme(SC) 1038

1998(7) Supreme 492
Supreme Court of India
(From CAT, Bombay)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Chandraprakash Madhavrao Dadwa & Ors. -Appellants
versus
Union of India & Ors. -Respondents
Review Petition (Civil) No. 2096 of 1995
In
Civil Appeal No. 5008 of 1998
(Arising out of SLP (C) No. 16646 of 1995)
With
IA No. 1 in SLP (C) No. 19257 of 1995
Decided on 25-9-1998
Counsel for the Parties :
For the Appellants : Ms. Shyamla Pappu, Sr. Advocate, M.R. Krishna­murthi, Pramod K. Sharma, Ashok K. Mahajan, Advocates.
For the Respondents : P.P. Malhotra, Sr. Advocates, Ashok Kr. Srivas­tava, L.K. Gupta, S.N. Terdol, Advocates.

Important Point
Where at the time of recruitment for the post of Data Processing Assistant appellants qualified for the posts and were appointed and later con­firmed in such post, redesignating them to the lower grade of Data Entry operator on the ground of subsequent change in essential quali­fication amounted to violation of Articles 14, 16 and 311 of the Constitution of India.

Headnote:Constitution of India-Arts. 14, 16 and 311-NSSO (Data Processing Division and Survey, Design and Research Division) Data Pro­cessing Assistant) Rules, 1977-Redesig­nation of post to lower grade - Vali­di­ty of - Appellants directly recruited to post of Data Processing As­sistants in 1977 or thereafter and confirmed in such post in 1986-Subsequent slight change in qualification for post of Data Processing Assistants-Appel­lants redesignated as Data Entry opera­tors-Challenge on ground that action amounted to reversion to an entry grade below Data Pro­cessing Assistants to which they were re­cruited-Whether sustainable-Appellants satisfied qualification meant for post of Data Pro­cessing Assistants at time of recruitment-Change in qualification could be made so far as future recruitment and could not affect those who were already recruited-Imposing changed qualifi­cation re­trospectively would violate Articles 14 and 16 of Constitu­tion-Plea that appellants do not possess certain skills attributed to post of Data Processing officers cannot be ground to shift them from Data Processing stream to which they were recruited to other stream Data Entry-Change in essential qualification made in 1990 or 1998 or additional functions now requir­ed to be performed by appellants could not retrospectively affect initial recruitment-Removing appellants from their confirmed post of Data Processing Assistants even offend on Article 311 of Constitution-Order redesignating appellants set aside.

       Held : So far as the NSSO was concerned right from 1974-1977, there was a definite and clear demarcation of the Data Entry stream and the Data operation stream. In the present case, the 48 appellants who were recruited as Data Processing Assistants were also confirmed as such by orders dated 25/28-8-1989 as per Annexure B to the review application with effect from 4.8.89. The appellants did satisfy the qualifications meant for these posts at the time of recruitment and were recruited accordingly. It might be that the Dr. Seshagiri Committee and the 11.9.89 order of the government and the Model Rules of 13.2.90 made slight changes in the qualifications, namely, that apart from Degree, they should have a certificate/ diploma in Computer application or knowledge in certain computers pro­cesses to be subjected to a test, at the stage of re­cruitment. In our view, such a change in qualifications could be made so far as future recruitment was concerned and could not affect those who were already recruited. To now say that the appellants did not have the Diploma/ certificate or had not been recruited on the basis of tests would, in our opinion, amount to imposing these qualifications with retrospective effect and such an action, even if made by rules, would be arbitrary. If made retrospective, and if the earlier recruit­ment or confirmations in posts were to be disturbed, that would also be arbitrary. These would clearly violate Arts. 14 and 16 of the Constitution of India. In the affidavit of the Union of India filed in the review peti­tion, it was stated that in the functions of Data Processing Assist­ants referred to in the proceedings of the department of Statistics dated 29.6.90 and in the enclosure No. 12018/1/96 dated 16.3.98, there were at least 7 functions which were in addition to the functions to be performed by those who were now redesignated as Data Entry opera­tors Grade B. Assuming it to be so, the mere fact that certain addi­tional functions were to be performed by the Data Processing Assist­ants is no defence for lifting them from their confirmed posts and shifting them into the Data Entry stream. More importantly, the appellants could not be said to be merely performing Data Entry work from 1977 or thereafter upto 2.7.90. We have shown that there were a large number of posts in NSSO to which recruitment could be made under 1973 Rules for Data Entry Work viz. Computer, Machine operator & Punch Key operators. Assuming that the appellants who were recruited as Data Processing Assistants were also entrusted with certain Data Entry work, that would not mean that the appellants who were recruited as Data Processing Assistants were recruited for Data Entry work only. Such a contention, if accepted, would result in the obliteration of the distinction in recruitment under the 1973 Rules and recruitment under the 1977 Rules. Such a view cannot, therefore, be accepted. The Dr. Seshagiri Committee was clear that the new qualifications now suggested should not be made applicable to existing employees. The order of the Finance Department dated 11.9.89 also stated that the existing Rules have to be kept in mind. The Vth Pay Commission also suggested a review of the designations. This was not done properly. It is no doubt true that in the Data Entry stream, there are now several grades A, B, C, D, E (grade I to V); it is true that though grade IV in same scale of Rs. 1350-2200 is made applicable to Data Processing Assistants, there are also two higher grades in scales of Rs. 1440-2300/ 1600-2600 and Rs. 2000-3200. But it is no satisfaction to the appellants that as Data Entry opera­tors in Rs. 1350-2200 scale they can get promotion from stage to stage, upto the grade in the scale of Rs. 2000-3200. The fact remains that the scale can be reached only after passing through two other grades. The affidavit of the Union of India dated 6.6.97 repeatedly men­tions that it has become necessary to redesignate the appellants (i.e. Data Processing Assistants) as Data Entry operators inasmuch as the appellants do not possess certain skills attributed to the posts of Data Processing officers for performing the various additional func­tions required of them. It is stated that in addition list of func­tions of Data Entry operators grade B, the new Data Processing Assist­ants under the 2.7.90 order are required to perform 7 other functions which are assigned to the date Processing orders in the function now listed in the orders DOS/EDP/90 dated 26.9.90 as well as the function referred to in the enclosure to the order No. 12018/1/96-Ann. IV dated 6.3.98. Assuming that some functions now expressed in the orders dated 2.7.90 or 16.3.98 are, according to the Union of India, not capable of being performed by the appellants that does not mean that they can be shifted from the Data Pro­cessing stream to which they have been recruited in 1977 or thereafter--and in which posts they have been confirmed in 1989--to the other stream of Data Entry. In fact, removing them from their confirmed posts of Data Process­ing Assistants might in law even offend Article 311 of the Constitu­tion of India. To put it in a nutshell, the charge in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmations. (Para 48)

       Further held : For all the above reasons, the impugned orders dated 2.7.90, 16.3.98 and all other orders which have the effect of redesignating the appellants ---who were recruited as Data Processing Assistants - as Data Entry operators in the scale of 1350-2200 (or 1400-2300 by con­cession of counsel) are arbitrary and illegal, ultra-vires and are declared violative of Articles 14 and 16 of the Constitution of India. The appellants are declared entitled to the designation of Data Proc­essing Assistants grade III (also called earlier as Gr. B) in the scale of Rs. 1600-2660 with effect from 1.1.1986, the date when the IV Pay Commission scales came into force. The appellants are also entitled to the scale of Rs. 5000-8000 with effect from 1.1.96 in view of the government orders passed in connection with the Vth Pay Commission recommendations. (Para 50)