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2024 Supreme(Online)(CAT) 16737
CENTRAL ADMINISTRATIVE TRIBUNAL
Suresh Kumar Batra, Judicial Member, Rashmi Saxena Sahni, Administrative Member
Balbir Singh – Appellant
Versus
Union of India – Respondent
ORIGINAL APPLICATION NO.209/2021
For the Appellants/Petitioners: Sh. Abhimanyu Batish
For the Respondents: Sh. Mukesh Kaushik, Sh. B.B. Sharma, Sh. Sanjay Goyal, Sr. CGSC, Sh. Aseem Rai
Encadrement of post into new cadre without superseding original recruitment rules does not extinguish promotion rights of eligible candidates under subsisting rules; timely DPC mandatory to avoid discrimination.
Headnote:(A) Administrative Tribunals Act, 1985 - Section 19 - Punjab Home Guards and Civil Defence Service Rules (Class II), 1988 - Deputy Superintendent of Police, Police Department Union Territory of Chandigarh Recruitment Rules, 2021 - Promotion - Post of District Commandant Home Guards - Applicant eligible for promotion under 1988 Rules since 2017 - Post abolished, recreated, then encadred in DSP cadre under 2021 Rules excluding Home Guards feeder cadre - No supersession of 1988 Rules qua the post - Delay in holding DPC despite eligibility and reminders - Encadrement without amending 1988 Rules not valid - Extinguishment of promotion avenue violates Articles 14 and 16 - Government competent to frame rules but cannot deprive eligible candidates of consideration under subsisting rules - DPC to be held as per 1988 Rules for vacancy year 2020 within eight weeks. (Paras 14-22)
(B) Service Law - Promotion - Right to be considered - Mere eligibility does not confer indefeasible right to promotion but delay in DPC and subsequent encadrement without filling existing vacancy under old rules discriminatory - Chances of promotion not mere expectancy but opportunity to be considered as per rules in force when vacancy arose, if rules not expressly superseded. (Paras 11, 16, 19)
Facts of the case:
Applicant, working as Company Commander Home Guards, sought promotion to recreated post of District Commandant under 1988 Rules after completing required service. Despite recommendations and reminders from 2020, no DPC held; post encadred in DSP cadre via 2021 notification, blocking Home Guards promotion avenue.
Findings of Court:
1988 Rules continue to govern as not superseded; encadrement does not extinguish promotion rights under original rules - One-time direction for DPC as per 1988 Rules for 2020 vacancy.
Issues: Whether applicant entitled to consideration for promotion under 1988 Rules despite encadrement under 2021 Rules; validity of delay in DPC and impact on service conditions.
Ratio Decidendi: Subsisting recruitment rules apply to vacancies arising prior to amendment unless expressly superseded; failure to hold timely DPC followed by encadrement without addressing eligible candidates violates equality and opportunity under Articles 14 and 16.
Result: Original Application partly allowed.
| Table of Content |
|---|
| 1. applicant's service history and promotion eligibility under 1988 rules. (Para 1 , 2 , 3) |
| 2. government's power to frame rules; no indefeasible promotion right. (Para 4 , 5 , 13) |
| 3. upsc's advisory role in recruitment rules amendment process. (Para 6 , 7 , 8) |
| 4. delay in dpc and post abolition despite applicant's eligibility. (Para 11 , 14 , 15) |
| 5. encadrement violates articles 14/16; 1988 rules subsist. (Para 16 , 18 , 19 , 20 , 21) |
| 6. vacancies governed by rules at consideration time; rangaiah overruled. (Para 17 , 22) |
| 7. oa partly allowed; direct dpc under 1988 rules. (Para 23) |
ORDER
PER: RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicant on 25.02.2021 under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
“8(2) That respondents be direct to hold the Departmental Promotion Committee and appoint the applicant, to the post of District Commander Home Guards and direct the respondents to pay other consequential benefits to the applicant.
(3) That the impugned order A-1 may kindly be set aside or quashed and the respondents may kindly be directed to the post of District Commandant Home Guards and along with all other consequential orders.”
2. Facts of the case are that the applicant was appointed as a Hawaldar Instructor Home Guards by the respondents on 01.10.1999. He was promoted to the post of Platoon Commander on 05.05.2006 and thereafter promoted to the post of Company Commander Home Guards, Chandigarh (Annexure A-2 and A-3 Colly). The applicant is working as a Company Commander in Home Guards Chandigarh since 01.11.2012 and has completed his 8 years of service as a Company Commander. Vide letter dated 25.03.2020 (Annexure A-5), the post of District Commandant has been created in Home Guards Department Chandigarh by the Ministry of Home Affairs, New Delhi. The applicant has completed five years of minimum required service for promotion to the post of District Commandant. The name of the applicant Balbir Singh has been recommended by respondent No.2 for the promotion to the post of District Commandant Home Guards to the Administration (Annexure A-7). A reminder reference has been issued on 09.10.2020 through the office of Principal Secretary Home Chandigarh Administration to the Commandant General Home Guard- cum Director General of Police of Union Territory of Chandigarh with the request to send the action taken report, regarding the appointment of an officer on the post of District Commandant Home Guard (DCHG) to the Administration, immediately. The applicant moved a representation (through proper channel) to the Commandant General Home Guard-cum Director General of Police U.T Chandigarh, with a request for promotion to the post of District Commandant since the applicant has completed 5 years of service as minimum required for promotion to the post of District Commandant under the Rule (Annexure A-8).
3. Respondent no.1 vide a notification dated 21.01.2021 (A-1), in the Gazette of India amended the Rules regulating the method of recruitment to the post of Deputy Superintendent of Police, UT, Chandigarh, excluding the post of District Commandant in Home Guard Department from the Cadre, hence the District Commandant Home Guards is now an Ex-Cadre Post. The applicant has stated that as per Punjab Home Guards and Civil Defence Service Rules (class II), 1988 (hereinafter Rules 1988) as applicable to Chandigarh Home Guards vide Chandigarh Administration Notification No.14012/2/88-CH dated 13.01.1992, he was eligible for promotion to the post of District Commandant, Home Guards, Chandigarh. The applicant has further stated that vide the impugned notification dated 21.01.2021, the respondents took away the post of District Commandant in Home Guard Department from the cadre and en-cadred it in the cadre of Deputy Superintendent of Police (DSP), Chandigarh.
4. Respondents No.1, 3 and 4 have filed written statement dated 02.09.2021 stating therein that A
