IMPORTANT POINT
Where a particular rule governed service conditions, mandate of the Rule could not be ignored in absence of a challenge and without striking it down.

Headnote:SERVICE LAW - Promotion - Central Ground Water Board (Scientific Group ‘A’ Posts) Recruitment Rules, 1995 - Rule 7(2)(b) - Promotion to post of Scientist Grade ‘C’ - Rule provided that deputationists for promotion to the post of Grade ‘C’ required 8 years experience as Jr. Hydrologists on regular basis whereas departmental candidates must have completed 5 years regular service in Grade ‘B’ in scale of Rs. 2200-4000 - Respondents were working as Jr. Geologist (Scientists Grade ‘B’) - Their case for consideration for promotion to post of Scientist Grade ‘C’ was declined on ground that they had not completed 5 years as Scientists Grade ‘B’ - Tribunal found that respondents were discriminated as they had completed experience equivalent to deputationists candidates and directed appellant to consider respondents for promotion - Appeal - Whether Rules governing service conditions could be brushed aside without challenging the Rules and mandate of the Rules could be ignored in absence of challenge and without striking them down? No - Impugned order was liable to be set aside.
       Held : The Tribunal was of the view that the eligibility condition that promotion to the post of Scientist Grade C for departmental candidates can be made only after completion of 5 years regular service in the scale of Rs. 2200-4000, whereas for candidates on deputation, the condition of 8 years service in the scale of Rs. 2000-3500 for promotion to Grade C posts in the scale of Rs. 3000-4500 is discriminatory between the departmental candidates and deputationists. According to the Tribunal, therefore, two sets of candidates having the same qualifications seeking promotion to the same Grade cannot be required to fulfill different eligibility criteria in terms of length of service in a particular grade merely on the ground that one set of candidates are departmental candidates and the other set of candidates are deputationists. The Tribunal was further of the opinion that the rules that apply to the deputationists should also apply to the departmental candidates, if otherwise, the qualifications are the same. On the basis of the above view, the Tribunal allowed the petition and directed the respondents (appellants herein) to consider the promotion of the applicants to the rank of Scientists Grade C from the date they completed 8 years of service in the pre-revised scale of Rs. 2000-3500, albeit without striking down the Rules. The core question posed for determination is as to whether the particular Rules governing service conditions could be brushed aside without challenging the Rules and the mandate of the Rules could be ignored in the absence of a challenge and without striking them down?(Paras 4 and 5)
       The mandate of the Rule, as noticed above, clearly shows that the deputationists for promotion to the post of Grade C required 8 years experience as Jr. Hydrologists on a regular basis whereas departmental candidates must have completed 5 years regular service in Grade B in the scale of Rs. 2200-4000. We have been taken through the entire petition filed by the respondents herein before the Tribunal. There is not even a whisper of challenging the Rules as discriminatory or ultra-vires, much less Rule 7(2)(b) of the Rules. (Paras 7 and 8)
       It was, therefore, clearly an admitted case of the respondents by themselves that they had not worked for 5 years as Scientists B, which is the mandate of the Rules and, therefore, the Tribunal transgressed its jurisdiction granting the relief to the respondents dehors the mandate of the Rules. It is now settled principle of law that no mandamus can be issued which would be contrary to the Act and the Rules.(Para 10)
       In the result, the order dated 30.10.2002 passed by the Tribunal in OA 422/2002 and the order of the Division Bench of the High Court dated 22.8.2003 in passed in CWP No. 13192 of 2003 are hereby set aside.(Para 13)
       (ii) PRECEDENT - A decision which is contrary to law and rules cannot become a precedent.(Para 12)

JUDGMENT

H.K. Sema, J. - The challenge in these appeals is to the orders dated 22.8.2003 and 27.2.2004 passed by the Division Bench of the High Court affirming the order dated 30.10.2002 passed by the Central Administrative Tribunal (CAT) allowing the petition of the respondents.

2. Briefly stated, the facts are as follows:

The respondents were working as Junior Hydro-Geologist, Junior Geophysicist Chemists and Hydro-Meteorologists (Scientists Grade B). Their cases for consideration for promotion to the posts of Scientists Grade C were declined on the ground that the departmental candidate should have put in at least 5 years as Scientists Grade B in the scale of Rs. 2200-4000 in accordance with Rule 7 (2)(b) read with column 12 of Central Ground Water Board (Scientific Group A Posts) Recruitment Rules, 1995 (hereinafter the Rules). We will deal with the Rules later at an appropriate time.

3. The grievance raised before the Tribunal was that the deputationists with 8 years of experience in the scale of Rs. 2000-3500 were allowed to be promoted as Scientists Grade C in the scale of Rs. 3000-4500 whereas in the case of the departmental candidates working in the scale of Rs. 2200-4000 it was made mandatory for putting in regular 5 years service in Grade B for promotion to Grade C and it is, therefore, discriminatory. It was also claimed that although the respondents have not completed 5 years of service in Grade B in the scale of Rs. 2200-4000, they have already completed 8 years of service in the scale of Rs. 2000-3500 and, therefore, they are entitled to be promoted to Grade C posts in the scale of Rs. 3000-4500, as in the case of deputationists.

4. The Tribunal was of the view that the eligibility condition that promotion to the post of Scientist Grade C for departmental candidates can be made only after completion of 5 years regular service in the scale of Rs. 2200-4000, whereas for candidates on deputation, the condition of 8 years service in the scale of Rs. 2000-3500 for promotion to Grade C posts in the scale of Rs. 3000-4500 is discriminatory between the departmental candidates and deputationists. According to the Tribunal, therefore, two sets of candidates having the same qualifications seeking promotion to the same Grade cannot be required to fulfill different eligibility criteria in terms of length of service in a particular grade merely on the ground that one set of candidates are departmental candidates and the other set of candidates are deputationists. The Tribunal was further of the opinion that the rules that apply to the deputationists should also apply to the departmental candidates, if otherwise, the qualifications are the same. On the basis of the above view, the Tribunal allowed the petition and directed the respondents (appellants herein) to consider the promotion of the applicants to the rank of Scientists Grade C from the date they completed 8 years of service in the pre-revised scale of Rs. 2000-3500, albeit without striking down the Rules.

5. The core question posed for determination is as to whether the particular Rules governing service conditions could be brushed aside without challenging the Rules and the mandate of the Rules could be ignored in the absence of a challenge and without striking them down?

6. Rule 7 (2)(b) of the Rules, which is relevant for the present purposes reads as under:

"Rule 7 (2)(b): The departmental officers who have rendered in the respective grade the requisite regular service specified in column (12) of the Schedule may be recommended by the Board of Assessment comprising the officers specified in column (13) of the Schedule for promotion to the next higher grade. While evaluating the suitability of the officers for promotion, the Assessment Board shall take into consideration their qualifications, performance, merit and seniority. The selection shall be on the basis of confidential reports and interview. However, the Assessment Board, may at their discretion, consi

Click Here to Read the rest of this document

2006 Supreme(SC) 1123

IMPORTANT POINTWhere a particular rule governed service conditions, mandate of the Rule could not be ignored in absence of a challenge and without striking it down.

Cases Referred (2)

IMPORTANT POINT
Where a particular rule governed service conditions, mandate of the Rule could not be ignored in absence of a challenge and without striking it down.