Union of India & Ors Vs. S.K. Saigal
& Ors  Insc 804 (15 November 2006)
& P.K.Balasubramanyan H.K.Sema,J
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.
stated, the facts are as follows:
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.
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.
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.
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? Rule 7 (2)(b) of the Rules, which is
relevant for the present purposes reads as under:
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, consider in
absentia the candidature of such officer who is unable to present himself for
the interview. The Assessment Board shall draw up a list of officers who are
assessed as fit for promotion to the next higher grade. In so far as persons undergoing
training in India or abroad (under F.R. 51) are concerned, they shall be
promoted to the next higher grade with effect from the date they would have
been so promoted had they not proceeded on training subject to the following
conditions being fulfilled:-
The period of such training is treated as duty under F.R. 9(6)(b).
They have been approved for promotion to the next higher grade.
All their seniors, except those regarded as unfit for promotion to the
particular grade, available have been promoted to that grade." Further
Column 12 reads:
Junior Hydrologist with 8 years' service in the grade rendered after
appointment therein on a regular basis.
Scientist 'B' with 5 years regular service in the grade.
on deputation: (including short-term contract): Officers under the
Central/State Governments Universities/ Recognised Research Institutions Public
Sector Undertakings/ Statutory or Autonomous Organisations:-
holding analogous posts on a regular basis, or
5 years' regular service in post in the scale of Rs. 2200-4000 or equivalent;
8 years' regular service in posts in the scale of Rs. 2000-3500 or equivalent;
the educational qualification and experience prescribed for direct recruits
under column (8).
departmental officers in the feeder grade who are in the direct line of
promotion will not be eligible for consideration for appointment on deputation.
Similarly, deputationists shall not be eligible for consideration for
appointment by promotion).
of deputation including period of deputation in another ex-cadre post held
immediately preceding this appointment in the same or some other organization/
department of the Central Government shall not exceed 3 years).
maximum age-limit for appointment by transfer on deputation shall not be
exceeding 56 years as on the closing date of receipt of applications." 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.
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.
in paragraph 4, clause (v), the petitioners (respondents herein) stated as
That petitioners as Scientists-B have not completed 5 years regular service.
Petitioners have not worked for 5 years on analogous posts on regular basis.
Petitioners have also not served 5 years on regular basis in the post of scale
of Rs. 2200-4000. However, petitioners have definitely worked for over 8 years
on regular basis in the post in the scale of Rs. 2000-4000 can definitely be
treated as equivalent to regular service in the post in the scale of
2000-3500." 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
now settled principle of law that no mandamus can be issued which would be
contrary to the Act and the Rules. See State of U.P. v. Harish Chandra (1996) 9 SCC 309; Union of India v.
Association for Democratic Reforms and Anr. (2002) 5 SCC 294.
Swarup, learned counsel appearing for the respondents contended that the deputationists
and the departmental candidates have formed one class of the officers and,
therefore, it would be impermissible to create any class within the class under
the Rules. In this connection he referred to the decision of this Court in S.G.
Jaisinghani v. Union of India and Ors. 1967 (2) SCR 703. This contention would
be of no help to the respondents in the absence of challenge to the vires of
counsel for the respondents also referred to the various decisions of the
Rajasthan High Court in which similar questions had been raised and the relief
was granted by the High Court and the High Court orders were implemented.
to him, taking note of the line of the decisions of the Rajasthan High Court,
the order impugned passed by the High Court in the present case may not be
disturbed. We are not at all impressed by such submissions. Such orders, if
any, passed dehors the rules will not bind us, not withstanding the orders
being implemented. Those orders are also under challenge in appeals that are
transferred to this Court in T.P (C) Nos. 197 to 220 and pending. Moreover,
illegal decisions cannot be allowed to be perpetuated. A decision which is
contrary to law and rules does not form a precedent. A decision becomes a
precedent when it decides the law in accordance with the Act and the Rules.
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. The OA No. 422/2002, filed by the
respondents, stands dismissed. The appeals are allowed. No costs.