Absorption effective from SAS exam passing date; res judicata bars retrospective claims altering prior adjudication.

O R D E R

PER: DR. SANJIV KUMAR, MEMBER (A)

This Original Application is filed under Section 19 of the Administrative Tribunals Act 1985, claiming the following reliefs:

“(i) Quash the communication DGA/SWR/01/Admn/PC/RBN/2023-24/3244 dated 20.03.2024 (Annexure-A9) issued by the second Respondent as unconstitutional and against rules

(ii) Direct the Respondents to order for the deemed absorption of the applicant in the post of Assistant Audit Officer from 15.10.2007 in the office of the second respondent and to fix his pay in the promoted post from date of deemed absorption with all consequential benefits and

(iii) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.”

2. The reliefs are claimed based on the following grounds:

1. As per Recruitment Rule, there is no need to pass SAS (Railway Audit) for absorption. The applicant had already passed the SAS (Civil Audit) exam in December 2006 itself, and the Recruitment Rule for Assistant Audit Officer clearly states that for Deputation/Absorption, the Officers under the Cadre Controlling Authority in the Indian Audit and Accounts Department or in any Organised Accounts Cadre under the Government of India who has passed the EY C BA A N T GALORE Subordinate Accounts Service or Subordinate Audit Service Examination under other Cadre Controlling Authority in the Indian Audit and Accounts equivalent examination in any Organised Accounts Cadre under the Government of India are eligible and the same has been quoted by this Hon'ble Tribunal in Para 3 of their order dated 28-02-2018 (Annexure-A4).

2. The Allahabad High Court judgment in Vijay Singh And Ors vs State Of Uttar Pradesh And Ors. on 28 July, 2004. categorically states that. Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. (Vide State of U. P.and Ors. v. Babu Ram Upadhyaya AIR 1961 SC 751; and State of Tamil Nadu v. Mis Hind Stone etc., AIR 1981 SC 711).

3. THE HIGH COURT OF HIMACHAL PRADESH in CWP No.49 of 2017 decided on 06.11.2023 held:

18) We are of the opinion that such a contention would run contrary to the principle of law laid down in para 47 (A) of the Direct Recruits case 91 supra) referred to by the Tribunal which categorically held that once an incumbent is appointed to a post according to Rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation and also that such a contention would be contrary to the Office Memorandum dated November 1992 issued by the Ministry of Personnel (DOPT) Government of India, SHAINSHAINEY VIJU reiterating the above principle.

19) Admittedly, the Recruitment Rules of 1989 are promulgated by His Excellency the President of India in exercise of powers under Article 148(5) of the Constitution of India and these rules do not provide that for promotion to the post of Audit Officer the period of regular service would be counted only after the successful completion of probation period or the date when an incumbent Assistant Audit Officer would pass the prescribed examination.

20) The Tribunal in our opinion, has rightly held that the petitioners did not have any power to issue the standing orders such as Paras 5.6.2 and 5.6.6 which are inconsistent with Recruitment Rules, 1989 and also contrary to the principles of law laid in the Direct Recruits cas