1. Challenge to Draft Recruitment Rules and ad hoc promotions to a supervisory post before the Central Administrative Tribunal. (Para 2 , 4 , 5 )
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1999 Supreme(SC) 1405
SUPREME COURT OF INDIA
S.P.Kurdukar : S.S.M.Quadri : V.N.Khare
Alphonse Cazlingarayar
Versus
Inspector General Of Police
Case No. : 16827 of 1996
Date of Decision : 12/1/99
A judicial finding that recruitment rules are unconstitutional is premature if those rules are still in draft form and have not been formally approved by the competent authority.
Headnote:(A) Service Law - Recruitment Rules - Validity of Draft Rules - A finding that Draft Recruitment Rules are unconstitutional is premature if the government has not approved the said rules and they remain only as drafts. (Para 6)
(B) Promotions - Ad hoc and temporary nature - Promotions that are purely temporary and ad hoc do not count for seniority in the cadre. (Para 4)
Facts of the case:
An application was filed before a tribunal seeking a declaration that the Draft Recruitment Rules for a supervisory post were illegal and unconstitutional, and requesting promotion with consequential benefits. The tribunal ruled in favor of the applicant, setting aside the Draft Rules. Persons who had received ad hoc promotions appealed the decision.
Findings of Court:
The finding of the tribunal that the Draft Rules were unconstitutional was premature as the rules had not been approved by the appropriate authority and remained only as drafts.
Issues: Whether a tribunal can set aside Draft Recruitment Rules as unconstitutional before they have been approved by the competent authority.
Ratio Decidendi: Since the rules in question were merely drafts and had not been approved by the government, any judicial finding regarding their constitutionality is premature. The authority to approve or frame fresh rules rests with the government, and until such approval, promotions remain ad hoc.
Result: OA dismissed as premature.
Legal Category Hierarchy
Table of Contents
2. Applicant sought declaration of Draft Recruitment Rules as unconstitutional and requested promotion over ad hoc appointees. (Para 2 )
3. The court found the Tribunal's ruling on unconstitutionality premature as the rules were not approved and the promotions were purely ad hoc. (Para 4 , 5 , 6 )
4. A finding of unconstitutionality regarding draft rules is premature if the rules have not yet been approved by the appropriate authority. (Para 6 )
5. Tribunal's finding on unconstitutionality set aside; original application dismissed as premature; ad hoc promotions undisturbed. (Para 6 , 7 )
6. Can draft recruitment rules be challenged as unconstitutional before they are approved?
No, a finding that draft rules are unconstitutional is premature if the government has not yet approved them and they remain merely as drafts. (Para 6 )
7. Does ad hoc service count toward seniority in a cadre?
Ad hoc service rendered in a cadre does not count for seniority in that cadre above a claimant seeking regular promotion. (Para 4 )
8. Can refusal to accept service be treated as valid service?
Yes, if a party sought to be served refuses to accept the service, the court may treat such refusal as good service. (Para 1 )
(1) RESPONDENT 3, who was sought to be served refused to accept the service. This be treated as good service.
(2) RESPONDENT 3 filed OA No. 1908 of 1993 before the Central Administrative Tribunal, Madras Bench seeking declaration and certain other reliefs namely that the Draft Recruitment Rules pertaining to the post of Radio Supervisor (Operations) Grade I were illegal and unconstitutional; to set aside the order of the second respondent in OA dated 14-8-1993 appointing Respondents 3 to 5 therein as Radio Supervisors (Operations) Grade I; to direct Respondents 1 and 2 to promote him (the applicant in OA) as Radio Supervisor (Operations) Grade I with effect from 14-8-1993 with all consequential benefits.
(3) THE present appellants were not the parties before the Central Administrative Tribunal (for short CAT). Since the Tribunal has rendered verdict in favour of the applicant in OA they have filed this civil appeal with leave of the Court.
(4) IT is common premise that the appointments/promotions of the appellants before us and other similarly situated persons were purely on ad hoc and temporary basis. The very impugned order itself states:
"PROMOTIONS of Respondents 3 to 5 inasmuch as they are only termed as purely temporary and ad hoc, may stand unless it be necessary to terminate the deputation of the juniormost among them in the post of Radio Supervisor (Operations) Grade I in order to make room for promotion of the applicant. The ad hoc service that they have rendered as Radio Supervisor (Operations) shall not count for seniority in the said cadre above the applicant."
(5) FROM the very nature of the promotion orders it is clear that these are ad hoc and purely on temporary basis.
(6) NONE of the counsel appearing before us were able to tell the Court as to whether these Draft Rules were approved by the appropriate authority. The Tribunal has set aside the Draft Rules as being unconstitutional. This finding in our opinion was totally uncalled for being premature since the Government had not approved the Draft Rules and they remained only Draft Rules. This finding is set aside. Pending approval thereof it appears that Respondents 3 to 5 before the Tribunal were given ad hoc promotions. Without disturbing such ad hoc promotions, we only state that it is for the Government/appropriate authority to consider as to whether the Draft Rules be approved or not or to frame fresh rules. In this view of the matter question of granting promotion to the applicant in OA would not arise. OA No. 1908 of 1993 to stand dismissed being premature.
(7) THE appeal to stand disposed of in the above terms. In the circumstances, there shall be no order as to costs.
