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2017 Supreme(Del) 4098
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, REKHA PALLI, JJ.
Union of India & Ors. – Petitioners
Versus
Shyam Sunder Sharma & Ors. – Respondents
W.P.(C) 2482 of 2016 and C.M. No.10670 of 2016
Decided On : 25-09-2017
For the Petitioners:Mr. Arun Bhardwaj & Mr. Nikhil Bhardwaj, Advocates along with Mr.Neeraj Gautam, ACIO-1/G
For the Respondents:Ms. Madhumita Kothari, Advocate
The eligibility for promotion has to be examined as per the existing Recruitment Rules, and seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules.
Headnote:
Promotion - Union of India - Recruitment Rules 2010, Recruitment Rules 2013 - The court held that the amendment in the Recruitment Rules was carried out by the petitioner in complete disregard of the DoP&T circular dated 25.03.1996, and in particular, Clause 3.1.3 thereof. The court held that the said clause provides that whenever eligibility service for promotion prescribed in the existing Rules was being enhanced, a note should invariably be inserted in the Recruitment Rules to the effect that eligibility service shall continue to be the same for persons holding feeder post on regular basis on the date of Notification of the revised Rules.
Fact of the Case:
The respondents were promoted as Deputy Central Intelligence Officer (DCIO/Tech-WT) in the Intelligence Bureau with effect from 01.07.2011 from the post of Assistant Central Intelligence Officer (ACIO/Tech-WT). The next promotional post is that of Assistant Director/Technical (AD/Tech). The post of AD/Tech. – under the RRs framed vide notification dated 14.12.2010, could be filled by promotion, failing which by deputation (including short-term contract). For promotion to the post of AD/Tech., the RRs, insofar as they are relevant, lay down the following eligibility criteria.
Finding of the Court:
The court found that the respondents were not fulfilling the eligibility criteria for promotion as per RRs 2013 and were not entitled to seek a direction that their case for promotion for the vacancy year 2014-15 should be considered by applying the earlier RRs which stood superseded on 09.12.2013.
Issues: The main issue was whether the amendment in the Recruitment Rules was carried out in disregard of the DoP&T circular dated 25.03.1996, and in particular, Clause 3.1.3 thereof.
Ratio Decidendi: The court held that the clause provides that whenever eligibility service for promotion prescribed in the existing Rules was being enhanced, a note should invariably be inserted in the Recruitment Rules to the effect that eligibility service shall continue to be the same for persons holding feeder post on regular basis on the date of Notification of the revised Rules.
Final Decision: The impugned order was set aside and the writ petition was allowed with no order as to costs.
VIPIN SANGHI, J.
1. The petitioner-Union of India assails the order dated 27.11.2015 passed by the Central Administrative Tribunal (CAT/Tribunal) in O.A. No.860/2014. The Tribunal has allowed the said Original Application and directed the petitioner to consider promoting the respondent/applicants – serving as Deputy Central Intelligence Officers (DCIO/Tech-WT) (hereinafter referred to as DCIO) since 01.11.2011, to the post of AD/Tech. for the vacancy year 2014-15, and later years, after taking into account the DoP&T instructions contained in O.M. No.AB-14017/12/88-Estt.(RR) dated 25.03.1996 along with the Recruitment Rules (RRs) for the post of AD/Tech. of the year 2013.
2. The respondents were promoted as Deputy Central Intelligence Officer (DCIO/Tech-WT) in the Intelligence Bureau with effect from 01.07.2011 from the post of Assistant Central Intelligence Officer (ACIO/Tech-WT) (hereinafter referred to as ACIO). The next promotional post is that of Assistant Director/Technical (hereinafter referred to as AD/Tech). The post of AD/Tech. – under the RRs framed vide notification dated 14.12.2010, could be filled by promotion, failing which by deputation (including short-term contract). For promotion to the post of AD/Tech., the RRs, insofar as they are relevant, lay down the following eligibility criteria:
“Promotion:
Deputy Central Intelligence Officer (Tech Wireless Telegraphy or Tech-Technical or Tech-Workshop or Tech-Draftsman or Tech-Overseer) in the Pay Band Rs.15600-39100 with grade pay Rs.5400 with five years regular service in the grade failing which Deputy Central Intelligence Officer (Tech) from the streams of Wireless Telegraphy or Technical or Workshop or Draftsman or Overseer with combined regular service of eight years in the grades of Deputy Central Intelligence Officer (Technical) and Assistant Central Intelligence Officer Grade-I (in the streams of Wireless Telegraphy or Technical or Workshop or Draftsman or Overseer) and possessing two years regular service as Deputy Central Intelligence Officer (Tech.).
Note 1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors shall also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have completed such qualifying or eligibility service.” (emphasis supplied)
3. From the above, it would be seen that for promotion to the post of AD/Tech., a DCIOs with 5 years regular service in the grade is considered eligible. However, if the DCIO does not have 5 years regular service in the grade, he could still be considered eligible for consideration for promotion as AD/Tech., if he has rendered 2 years regular service as DCIO, and has a combined regular service of 8 years in the grades of DCIO and ACIO – which is the feeder grade for the post of DCIO. This alternate eligibility clause is hereinafter referred to as the “failing which” clause.
4. The respondents having been promoted as DCIO on 01.07.2011, acquired 2 years experience in the grade of DCIO on 01.07.2013. Thus, under the “failing which” clause, they claim to have became eligible for promotion as AD/Tech. on 01.07.2013, since they had a combined 8 years service in the grade of ACIO and DCIO on the said date, in the next promotion process.
5. The petitioners amended the RRs for the post of AD/Tech., vide memorandum dated 09.12.2013. The post of AD/Tech. even under the amended RRs could be filled by “promotion failing which by deputation (including short-term contract)”. The eligibility for promotion was, however, modified. The relevant eligibility condition for promotion reads as follows:
“Promotion:
Deputy Central Intelligence Officer (Technical), Deputy Central Intelligence Officer (Tech-Wireless Tel
