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SUPREME COURT OF INDIA
DALVEER BHANDARI, H.L. GOKHALE, JJ.
Union of India – Appellant
Versus
Sukesh Kumar Nayak – Respondent
Civil Appeal No. 231 of 2005
Decided On : 25-11-2010
Challenged validity of Cabinet Secretariat Order - Respondent was directly recruited as Assistant – Employment and Service - It may be pertinent to mention here that Union of India took policy decision in January to transfer the administrative control of Special Service Bureau and Chief Inspectors of Armaments from Cabinet Secretariat to Ministry of Home Affairs vide Cabinet Secretariat Order and merged ministerial staff of Chief Inspectorate of Armaments with that of Special Service Bureau – Held, Court laid down that when different cadres are merged certain principles have to be borne in mind - These principles were enunciated in case of State of Maharashtra and Another and have been approved subsequently in case of and they are reproduced as under - In Court has laid down principle that mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to change in conditions of service - Right to be considered for promotion is term of service but mere chances of promotion are not - In instant case even according to appellant chances of promotion have in fact been increased - Counsel appearing for respondent has not been able to make out that his case falls in any of the four criteria which have been laid down in the case - In this view of matter court are constrained to set aside impugned judgment Tribunal as well as judgment passed by High Court of Delhi in Civil Petition – Consequently appeal is allowed - Original application filed by respondent stands dismissed - In facts and circumstances of case court direct parties to bear their own costs - Appeal dismissed
JUDGMENT :
DALVEER BHANDARI, J.
1. This appeal is directed against the judgment and order dated 6.11.2003 passed by the High Court of Delhi in Civil Writ No. 3000 of 2003. Brief facts which are necessary to dispose of this appeal are recapitulated as under.
2. The Directorate General of Security (for short ‘DGS’) under Cabinet Secretariat had four units:
(1) (2) (3) (4)
Special Service Bureau (SSB) Aviation Research Centre (ARC) Special Frontier Force (SFF) Chief Inspectorate of Armament (CIOA)
These four units had a common and combined DGS (Secretarial) Service with inter se seniority and the inter unit transfer liability having 4 cadres:
(1) Secretarial
(2) Ministerial
(3) Accounts
(4) Stenographers
3. The respondent was directly recruited as Assistant in the year 1995 in the Special Service Bureau. In 1996, he requested for his transfer to another unit Aviation Research Centre but he could not be transferred for administrative reasons.
4. It may be pertinent to mention here that the Union of India took a policy decision in January, 2001, to transfer the administrative control of the Special Service Bureau and the Chief Inspectors of Armaments from the Cabinet Secretariat to the Ministry of Home Affairs vide Cabinet Secretariat Order No. 1/2/2001-EA-1 dated 15.1.2001 and merged the ministerial staff of the Chief Inspectorate of Armaments with that of Special Service Bureau. As a consequence of transfer of Special Service Bureau and the Chief Inspectorate of Armaments, two units of the Cabinet Secretariat were transferred to the Ministry of Home Affairs, vide Cabinet Secretariat Order No. I/2/201-EA-1-3483-A, dated 23.8.2001.
5. The office of Directorate General of Security (Secretarial) Service was trifurcated into:
(ii) Aviation Research Centre (Secretarial) Service.
(iii) Special Frontier Force (Secretarial) Service.
6. The Secretarial/Ministerial Staff of the Directorate General of Security (Secretarial) Service was apportioned on “AS IS WHERE IS” basis with the approval of the Directorate General of Security (Secretarial), Home Secretary and the Cabinet Secretary and the incumbents of the appointed posts were made to continue in their respective units on “AS IS WHERE IS” basis at the time of trifurcation on 23.1.2001.
7. The respondent challenged the validity of the Cabinet Secretariat Order dated 23.8.2001 and the Special Service Bureau Directorate's order dated 21.12.2001 containing the trifurcation orders of the Directorate General of Security (Secretarial) Service before the Central Administrative Tribunal, Principal Bench, New Delhi.
8. The order was assailed on the ground that the said orders did not provide opportunity to the staff of the erstwhile Directorate General of Security (Secretarial) Service to exercise option for choosing an organisation of their choice out of the three organisations.
9. According to the respondent, allocating staff to other units in the cadre on the basis of “AS IS WHERE IS” is arbitrary and violative of Article 14 and 16 of the Constitution. The respondent prayed that the aforesaid orders dated 23.08.2001 and 21.12.2001 be quashed.
10. The respondent also prayed that the appellant Union of India be directed to provide an opportunity to the incumbents of the erstwhile Directorate General of Security (Secretarial) Service to opt any of these trifurcated services in a fair and just manner.
11. The Central Administrative Tribunal (“Tribunal” for short) by its order dated 13.11.2002 allowed the original application filed by the respondent and held that the order dated 9.9.1993 by which the joint cadre has been done away with is clearly violative of the rights of the respondent under Article 16 of the Constitution.
12. The Tribunal also observed that once a joint cadre is created under the orders of a competent authority, it can only be dismembered if the fundamental rights of the public servants are not infringed. The T
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