P.U.
Joshi & Ors Vs. The Accountant General, Ahmedabad, & Ors [2002] Insc
569 (19 December 2002)
Doraiswamy
Raju & Shivaraj V. Patil D. Raju, J.
Appeal (civil) 10983 of 1996
Civil
Appeal No.4679 of 1996 has been filed by the appellants herein, who lost in
their application filed before the Central Administrative Tribunal, Ahmedabad
Bench, in O.A. No.162 of 1989, which came to be dismissed by an order dated
10.8.1994. Since their application for review in R.A.No.31 of 1994 also came to
be dismissed by an order dated 12.10.1994, Civil Appeal No.4680 of 1996 has
also been filed.
The
various cadres of establishment in Indian Audit and Accounts Department
relating to the office of the Accountant Generals in the States were bifurcated
and restructured w.e.f. 1.3.1984 into
(i)
Accountant General (Accounts and Entitlement) and
(ii)
Accountant General (Audit). So far as the State of Gujarat is concerned, the combined office
of the Accountant General, which had its main office at Ahmedabad with a Branch
at Rajkot, was bifurcated into two separate
offices, A.G. (Audit) at Ahmedabad/Rajkot and office of the A.G. (A & E) at
Rajkot/Ahmedabad. Prior to the said bifurcation, the combined office, among
other categories, had in the Supervisory Cadres
(a)
Section Officers (those who were promoted after passing Subordinate Accounts
Services Examination) subsequently known as "Section Officers Grade
Examination",
(b)
Supervisors (those who were promoted on seniority-cum-rejection of unfit basis
without passing SAS/SOG Examination; and
(c)
Selection Grade Section Officers/Selection Grade Supervisors (appointed subject
to fulfillment of eligibility criteria Section Officers and Supervisors were
promoted to this category on their fulfilling the required criteria of passing
the examination and putting in the required service). Supervisors were
appointed only in cases of non-availability of qualified Section Officers to
man the supervisory posts and they were subject to reversion if adequate number
of Section Officers were available. Further, the Section Officers were
considered senior to Supervisors and the promotion channel to the higher post
of Accounts Officers was open to Section Officers only and not to Supervisors.
After restructuring of the Department w.e.f. 1.3.1984, so far as the A.G. (A
& E) offices are concerned, these class of officers were categorized into
(i)
Section Officers (SOGE qualified hands - pre-revised scale Rs.500-900/-);
(ii)
Supervisors (unqualified hands - pre-revised scale Rs.500- 900); and
(iii)
Selection Grade Section Officers Selection Grade Supervisors whose pre-revised
scale was Rs.775-1000. So far as A.G. (Audit) offices are concerned, as per the
restructured pattern it had Section Officers 20% (SOGE qualified hands with
pre-revised scale of Rs.500-900) and Assistant Audit Officers - 80% (higher
post, SOGE qualified hands with pre-revised scale Rs.775-1000). Since in the
newly constituted Audit Offices w.e.f. 1.3.1984, there was no cadre of
Supervisors in the Audit Wing, the existing staff of Supervisors were not
allowed to switch over to the Audit Office. In view of the above, option was
given to such of those who desired to get reverted to Audit Offices, in which
case they would be required to be reverted as Special Grade Auditors and then
switched over to the Audit Offices from that cadre. Though free option was
given to all the members of combined offices to remain either in the A & E
Offices or to go over to the Audit Offices, the appellants in the above two
appeals, who were in the combined establishment, had chosen to remain with A
& E Office.
While
matter stood thus, when the Fourth Central Pay Commission's recommendations
were made and accepted by the Government of India w.e.f. 1.1.1986, the
"Selection Grade" was abolished from all non-gazetted cadre in all
the Departments of Government of India all over India, including the Department of IA & AD. The orders in
this regard were issued by the Government of India on 13.9.1986 and from that
date the Selection Grade was abolished. As a result of which, the Supervisory
set up in A & E Office and Audit remained from 13.9.1986 as follows :-
"A & E Offices Audit Office
(i)
Section Officers (i) Section Officers (SOGE qualified hands) 20% (SOGE
qualified hands) (Revised pay-scale (Revised pay-scale Rs.1640-2900 w.e.f.
1.1.86) Rs.1640-2900 w.e.f 1.1.86)
(ii)
Supervisors Asstt. Audit Officers (Unqualified hands) 80% (SOGE qualified
hands) (Revised pay-scale (Revised pay-scale Rs.1640-2900 w.e.f. 1.1.86). Rs.2000-3200
w.e.f. 1.1.86)."
As
part of the Scheme of implementation of the Fourth Central Pay Commission's
recommendations and bringing the pay-scales of cadres of A & E Offices and
Audit Office at par with each other, the Government of India issued orders of upgradation
of posts of Section Officers in A & E Offices w.e.f. 1.4.1987 and
accordingly the office of the Comptroller and Auditor General of India, New
Delhi, by its proceedings dated 17.8.1987 upgraded 80% of posts of Section
Officers into Assistants Accounts Officers cadre w.e.f. 1.4.1987. In consultation
with the Comptroller and Auditor General of India and in exercise of powers
conferred under Article 148 of the Constitution of India, the President of
India made the IA & AD (Assistant Accounts Officers) Recruitment Rules,
1989 applicable w.e.f. 1.4.1987, as a consequence of which the set up of the
Supervisory Cadre for A & E Offices w.e.f. 1.4.1987 stood as follows :-
"(i)
Section Officers 20% Pay-scale Rs.1640-2900 (SOGE qualified hands)
(ii) Asstt.
Accounts Officers 80% Pay-scale Rs.2000-3200 (SOGE qualified hands having 3
years regular service in the grade)
(iii)
Supervisors Pay-scale Rs.1640-2900 (unqualified hands to the extent (i) &
(ii) are not applicable)"
Since
the pay-scales were to be brought on par in both the offices with eligibility
criteria on the same lines and inasmuch as there was no cadre of Supervisors in
Audit Stream but only the cadres of Section Officers/Assistant Audit Officers
cadre of qualified hands alone existed, the criteria of passing SOG Examination
to get into the pay-scale of Assistant Accounts Officers (i.e., Rs.2000-3000 in
the revised pay-scales) and for promotion to Assistant Accounts Officers was
prescribed by the Comptroller and Auditor General of India in terms of the
directions issued by the Government of India under their letter dated
12.6.1987. As and when the selection grade was abolished w.e.f. 1.1.1986, then
the existing Selection Grade Supervisors, who were already holding the higher
scale of post identical to Assistant Accounts Officers cadre, were allowed to
continue in that scale treating their pay as "personal pay" to them.
The grievance of the appellants, who are Supervisors in the office of A &
E, had been that since pay-scales of Supervisors and S.Os. are identical and
duties and responsibilities of Supervisors/S.Os./A.A.Os. are similar, they
should also be given promotion to
(i)
S.G. Supervisors posts in the pay-scale of Rs.2000-3200 or
(ii) promotion
to Assistant Accounts Officers in the pay-scale of Rs.2000-3200. In staking
such claims, according to the Department, the appellants ignored the fact that
the selection grade posts no longer exist in any Department all over India w.e.f.
1.1.1986 when the revised pay-scales came into force and no exception could be
made in respect of IA & AD Department alone and that in the absence of any
scheme for promotion of Supervisors to the cadre of Assistant Accounts
Officers, the only course open to the appellants was to take SOG Examination to
get promoted as Section Officers and thereafter as Assistant Accounts Officers
on fulfillment of the required eligibility criteria in terms of the Recruitment
Rules, as per which any one to become eligible to the post of Assistant
Accounts Officer should pass the Section Officers Grade Examination and possess
three years service in the grade and that, therefore, the Supervisors, who have
not even passed the Section Officers Grade Examination, are not eligible for
consideration for promotion as Assistant Accounts Officers or for being placed
in the scale of pay of A.A.Os.
The
claim of the appellants, based on denial of equality of opportunity and equal
protection, was rejected by the Tribunal, both in the order dated 10.8.1994 and
subsequently in the order dated 12.10.1994. It may be incidentally pointed out
at this stage that similar claims were projected by persons similarly placed
before the Central Administrative Tribunal, Chandigarh Bench, in O.A. No.561/HP/89
and O.A. No.1017/HP/91 and the said Tribunal also by its decision dated
9.9.1993 rejected a similar challenge. Yet another claim projected before the
Central Administrative Tribunal, Principal Bench, New Delhi, in Registration
O.A.No.1502/88 and this Bench of the Central Administrative Tribunal also
rejected the claim of the applicants therein.
While
that be the position, similar claims projected by some of the aggrieved persons
before the Central Administrative Tribunal, Bench at Cuttack in the State of Orissa,
in O.A. No. 144/81 came to be allowed on the ground that since the directions
issued by the Government envisaged a common seniority list of Section Officers
and Supervisors performing identical nature of duties, there was no
justification to thereafter discriminate them for purposes of promotion or
pay-scales and consequently directed the Department to grant promotion
considering their seniority inter se if they are otherwise suitable on the date
on which they are entitled to be promoted, with further directions relating to
their entitlement to promotional monetary benefits and other benefits flowing from
such promotions, setting out also a time limit within which such orders have to
be implemented. It is against this judgment of the Cuttack Bench of the Central
Administrative Tribunal that Civil Appeal No.10983 of 1996 came to be filed, by
the Union of India and the Department concerned.
Heard
the learned counsel on either side. The stand on behalf of the
appellants-private parties is that their service rights are to be governed by
the rules relating to their service as on the date of bifurcation on 1.3.1984
and that the rules and the service conditions cannot be altered to their
detriment by the subsequent rules. It is also contended that the appellants,
working as Supervisors, are also performing duties that are discharged by the
Assistant Accounts Officers and they would, therefore, be entitled to the scale
of pay of Rs.2000-3200 of A.A.Os. (earlier SG Supervisors) on the principle of
`equal pay for equal work'. The denial of promotional prospects to the category
of Supervisors, like the appellants, is also challenged on the ground of
arbitrariness and hostile discrimination. Lastly, it was contended that before
bifurcation though it was assured that the pay structure for the Accounts and
Entitlement offices would be the same as the one before bifurcation and the
existing promotional prospects and selection grade will be applicable mutatis
mutandis, it was not actually adhered to after bifurcation and for this reason
also, relief as prayed for ought to be granted. Inspiration was sought to be
drawn, based on the reasoning of the Cuttack Bench of the CAT, which order is
the subject-matter of challenge in the appeal filed by the Union of India and
others.
Per
contra, on behalf of the Union of India and the Department concerned, it is
contended that in the light of the statutory rules made after bifurcation,
governing the recruitment to the posts of Assistant Accounts Officers, one
should pass the Section Officers Grade Examination and possess three years
experience in the grade as Section Officers and inasmuch as the appellants and
persons similarly placed in other States have not got qualified themselves by
passing the SOG Examination, they are ineligible to be considered for promotion
as A.A.Os. It is also contended that in the teeth of the rules made under Article
148 of the Constitution of India by the President of India in consultation with
the CAG of India duly published on 11.3.1989 effective from 1.4.1987, no
reliance can be placed on administrative instructions issued by the Authority
of CAG to assert any claim of rights in derogation of the statutory rules. The
appellants and persons similarly placed, who opted to remain in the Accounts
and Entitlement stream, had to conform to the relevant rules applicable and
that even as per the instructions relied upon by the appellants themselves,
they could not assert successfully their claims. It is contended further for
the respondent-Department that the right of the Government to bifurcate
departments and suitably restructure them in the interests of better administration
and in order to ensure greater efficiency is unquestionable and as long as the
appellants do not conform to the revised pattern and satisfy the requirement of
the statutory rules governing the service conditions, no grievance of denial of
equal opportunity or discrimination could be made, for and on behalf of the
appellants. So far as the promotional prospects are concerned, it is contended
that even Supervisors, whose pay-scale is identical to Section Officers having
more than three years of regular service in the cadre of Supervisors, cannot
automatically claim for being promoted as A.A.Os. and it is only when they
qualify in the SGO Examination they become eligible for consideration and
promotion. In challenging the decision of the Cuttack Bench of the CAT, it is
strenuously contended that constitution, frame and reconstitution and
restructuring of departments, creation and abolition of posts therein are
matters of policy depending upon administrative exigencies and exclusively
within the discretion of the Government and as such the same could neither be
challenged nor the Tribunal could substitute its views to that of the
Government, as to how it should be. As to the reasoning based upon the common
seniority list, it is contended for the Department that such common seniority
list of Supervisors and Section Officers was prepared only for the limited
purpose and for the period to facilitate the grant of non-functional selection
grade and that inasmuch as Supervisors do not really belong to the category of
Section Officers.
We
have carefully considered the submissions made on behalf of both parties.
Questions relating to the constitution, pattern, nomenclature of posts, cadres,
categories, their creation/abolition, prescription of qualifications and other
conditions of service including avenues of promotions and criteria to be
fulfilled for such promotions pertain to the field of Policy and within the
exclusive discretion and jurisdiction of the State, subject, of course, to the
limitations or restrictions envisaged in the Constitution of India and it is
not for the Statutory Tribunals, at any rate, to direct the Government to have
a particular method of recruitment or eligibility criteria or avenues of
promotion or impose itself by substituting its views for that of the State.
Similarly, it is well open and within the competency of the State to change the
rules relating to a service and alter or amend and vary by addition/substruction
the qualifications, eligibility criteria and other conditions of service
including avenues of promotion, from time to time, as the administrative
exigencies may need or necessitate. Likewise, the State by appropriate rules is
entitled to amalgamate departments or bifurcate departments into more and
constitute different categories of posts or cadres by undertaking further
classification, bifurcation or amalgamation as well as reconstitute and
restructure the pattern and cadres/categories of service, as may be required
from time to time by abolishing existing cadres/posts and creating new
cadres/posts.
There
is no right in any employee of the State to claim that rules governing
conditions of his service should be forever the same as the one when he entered
service for all purposes and except for ensuring or safeguarding rights or
benefits already earned, acquired or accrued at a particular point of time, a
Government servant has no right to challenge the authority of the State to
amend, alter and bring into force new rules relating to even an existing
service.
So far
as the grievances of the appellants and private parties-respondents in the
above cases are concerned, they have no sound or valid basis in law.
Before
even bifurcation on 1.3.1984, the posts of Supervisors, Selection Grade
Supervisors as well as Section Officers and Selection Grade Section Officers
existed separately. Section Officers were considered senior to Supervisors and
promotion to higher posts of Accounts Officers was open to Section Officers
only and not to Supervisors. After bifurcation, since there was no cadre of
Supervisors in the Audit Offices, the question of accommodating them in the
Audit Offices as Supervisors did not arise. With the implementation of the
recommendations of the Fourth Central Pay Commission, 'Selection Grades' were
abolished from all non-gazetted cadres in all Departments of Government of
India all over the country, including the Department of IA & AD. As
observed by the Bench of the CAT at Cuttack which held in favour of the private parties on some other ground, it
will be too late in the day to put the clock back by claiming to resurrect the
abolished selection grade which was found to be already non- functional, too.
As noticed supra, the supervisory cadre for A & E offices w.e.f. 1.4.1987
came to consist of
(a)
Section Officers 20% (SOGE qualified hands);
(b)
Assistant Accounts Officers 80% (SOGE qualified hands with further experience
of three years regular service in the grade) and
(c)
Supervisors (unqualified hands to the extent whenever clauses (a) and (b) were
not available only. As noticed earlier, a Supervisor (unqualified) has to
undertake SOG Examination to be promoted as Section Officers and thereafter
only get promoted as A.A.O. Merely because the pay-scales were similarly
granted to these unqualified Supervisors on par with Section Officers alone
apparently due to alteration and restructuring in the set up of offices those
Supervisors, who had not even passed the SOG Examination, therefore, could
neither be appointed on promotion as Section Officers nor could claim equal
status with the SOG Examination qualified persons to straightaway get promoted
as A.A.Os., to which the feeder category is only Section Officers and not
Supervisors. It is necessary to notice here that Supervisors even earlier could
not have been promoted to the higher post of Accounts Officers. In addition to
it, the other criteria of three years regular service as Section Officer,
before becoming eligible for consideration to be appointed as A.A.Os. on
promotion also must be satisfied.
The Cuttack
Bench of the CAT, which decided the matter and which decision is challenged by
the Department in Civil Appeal No.10983 of 1996, committed a grave error in
taking it for granted equality in status and grade persons like the private
parties-respondents on par with Section Officers with higher qualifications
merely because a common seniority list was prepared ignoring the fact that it
was not for purposes of further promotion but for the limited purpose of giving
only the benefit of non-functional selection grade.
Consequently,
as long as the appellants in Civil Appeal Nos.4679-4680 of 1996 and respondents
in Civil Appeal No.10983 of 1996 have not acquired the qualification of passing
the SOG Examination and got promoted to the post of Section Officers and put in
three years regular service as such, which alone constituted the feeder
category for further promotion as A.A.Os., there is no scope for according
promotion to them despite the fact that there may be vacancies available in the
A.A.Os. The Tribunal, which passed the order, which is the subject-matter of
challenge in Civil Appeal No.10983 of 1996, was not right in directing the
promotion to them in derogation of the statutory rules under which they are
ineligible for any such promotion.
The
plea based on the denial of equal opportunity and equal protection of laws has
rightly been rejected in the light of the principles laid down by this Court in
the decisions noticed by the Bench of the Tribunal, which rendered the decision
in respect of the appellants, who serve in the State of Gujarat. Likewise, it was impermissible for
the Bench of the Tribunal at Cuttack to have further directed to give the
promotional monetary benefits and other benefits flowing from such promotion
when they will not be entitled to any such relief under the statutory rules,
which the Tribunal itself could not, on its own, either bypass or alter or give
a go-by too or direct the department to ignore and contravene.
For
all the reasons stated above, Civil Appeal Nos.4679-4680 of 1996 shall stand
dismissed. Civil Appeal No.10983 of 1996 filed by the Union of India and others
shall stand allowed and consequently the order passed in O.A. No.144 of 1991
shall stand set aside. There will be no order as to costs.
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