Union of India & Anr. Vs. Narendra
Singh [2007] Insc 1289 (13
December 2007)
C.K.
Thakker & J.M. Panchal
ARISING
OUT OF SPECIAL LEAVE PETITION (C) NO. 2041 OF 2005 C.K. THAKKER, J.
1.
Leave granted.
2. The
present appeal is directed against the order dated May 12, 2000 passed by the Central Administrative Tribunal, Jabalpur, Camp Indore (Tribunal for short) in
Original Application No. 76 of 1997 and confirmed by the Division Bench of High
Court of Madhya Pradesh, Jabalpur (Indore Bench) on August 26, 2004 in Writ Petition No. 1329 of 2000.
3.
Brief facts of the case are that the respondent herein was working as
Accountant in the Office of the Accountant General, Madhya Pradesh, Branch
Office, Bhopal. By an order dated January 1, 1990, he was mistakenly promoted as
Senior Accountant (Functional).
After
about four years, the Department realized that the promotion given to the
respondent was erroneous and he was not eligible to be promoted. The mistake
was, therefore, sought to be corrected. A notice under Rule 31-A of the
Fundamental Rules, 1922 was issued to the respondent informing him that he
could not have been promoted as Senior Accountant as he had not passed
Departmental Examination of Accountants as required by law. He was, hence,
asked to show cause why the promotion given to him erroneously should not be
cancelled. By a reply dated February 16, 1994,
the respondent contended that he was eligible and qualified for getting
promotion and accordingly he was promoted. He also asserted that he was performing
his functions and discharging his duties efficiently and there was no occasion
to revert him. According to him, there was no need to clear Departmental
Examination for Accountants and the notice was required to be discharged.
4.
After considering the reply submitted by the respondent, the Principal
Accountant General, vide his order dated March 29, 1994, cancelled the promotion. The
respondent challenged the cancellation of promotion by filing Original
Application No. 275 of 1994 in the Tribunal. The Tribunal, on March 12, 1996, allowed the petition and directed
the Authorities to reconsider the case of the respondent.
5. In
compliance with the order passed by the Tribunal, the appellant considered the
case of the respondent and rejected his prayer.
Accordingly,
by an order dated June
24, 1996, the
promotion was cancelled.
6. The
respondent again challenged the order of reversion by approaching the Tribunal
and the Tribunal allowed the petition. The order was confirmed by the High
Court. The said decision is challenged in the present appeal by the Union of
India and the Accountant General.
7.
Notice was issued and keeping in view the fact that the respondent was due to
retire shortly, the Registry was directed to place the matter for final hearing
which was placed before us on December 5, 2007.
8. We
have heard learned counsel for the parties.
9.
Learned counsel for the appellants submitted that the action taken by the
appellant could not be said to be illegal, unlawful or otherwise improper. He stated
that the respondent was not qualified to be promoted as Senior Accountant as he
had not passed the relevant examination required by law. It was due to mistake
on the part of the Department that he was promoted in spite of his
ineligibility. The said mistake was, therefore, corrected after issuing notice
calling upon the respondent to show cause why the mistake should not be
corrected. It was submitted that as per the direction issued by the Tribunal,
the case of the respondent was considered and the Department rejected the
prayer. The action of the appellant which was in consonance with law could not
have been set aside by the Tribunal.
By
interfering with the said action, the Tribunal had committed an error of law.
The High Court confirmed that order. Both the orders, therefore, are liable to
be set aside.
10.
Learned counsel for the respondent, on the other hand, supported the order
passed by the Tribunal and affirmed by the High Court.
According
to him, the respondent was not required to pas any examination. He had
sufficient experience. All those factors were considered by the Department when
he was promoted as Senior Accountant. There is no allegation that the
respondent had concealed facts or by playing fraud, got the promotion.
Even
if it is assumed that there was mistake on the part of the Department, the
respondent should not suffer. It was further urged that in earlier litigation,
directions were issued by the Tribunal, but they had not been complied with.
The Comptroller and Auditor General of India ought to have relaxed the condition as to passing of examination.
Moreover, the Tribunal has merely directed to consider the case of the
respondent and there was no illegality in it.
The
High Court, therefore, rightly did not interfere with the said order. Finally,
it was submitted that the respondent was promoted on January 1, 1990 and thus he has completed about
seventeen years of service on the promoted post. He will be retiring within a
few days i.e. after the office hours of December 31, 2007. Hence, even if this Court holds
that his promotion was not strictly legal, the Court may not interfere with the
said order and allow him to continue on that post for few days more.
11.
Having heard learned counsel for the parties, in our opinion, the appeal
deserves to be partly allowed. So far as the promotion of the respondent is
concerned, it is not in dispute that he was promoted as Senior Accountant
(Functional) on January
1, 1990. It is not the
allegation of the appellant that the respondent had obtained such promotion by
concealing fact or by playing fraud.
12. At
the same time, however, in our opinion, the learned counsel for the appellants
is right in submitting that the respondent was not eligible and qualified to be
promoted to the post of Senior Accountant. In this connection, he invited our
attention to Article 148 of the Constitution. Clause (1) of the said Article
declares that there shall be a Comptroller and Auditor-General of India who shall be appointed by the
President by warrant under his hand and seal. Clause (5) deals with staff of
Comptroller and Auditor-General of India and reads thus:
(5)
Subject to the provisions of this Constitution and of any law made by
Parliament, the conditions of service of persons serving in the Indian Audit
and Accounts Department and the administrative powers of the Comptroller and
Auditor-General shall be such as may be prescribed by rules made by the
President after consultation with the Comptroller and Auditor- General.
13. In
exercise of the power under Clause (5) of Article 148, the President, after
consultation with the Comptroller and Auditor General of India, framed rules
known as The Indian Audit and Accounts Department (Senior Accountant)
Recruitment Rules, 1988 (hereinafter referred to as the Rules).
Rule 3 provides for method of recruitment, age limit, qualifications, etc. of
Senior Accountants and reads as under;
3.
Method of recruitment, age limit, qualifications etc. The method of
recruitment, age limit, qualifications and other matters relating to the said
post shall be as specified in columns 5 to 14 of the said schedule.
14.
The Schedule to the Rule expressly states that a person may be appointed as
Senior Accountant by promotion, failing which by transfer on
deputation (Column 11). Column 12 is material and relevant part reads
thus:
12. In
case of recruitment by promotion / deputation / transfer, grades from which
promotion/ deputation/transfer to be made :
Promotion:
On
seniority basis, subject to rejection or unfit from among Accountants in the
grade of Rs.1200-2040, with three years regular service in the grade
having passed the departmental examination for Accountants. (emphasis supplied)
15.
Bare reading of Rule 3 with Schedule thereof makes certain things clear. Firstly,
the Rules are framed by the President of India in consultation with the
Comptroller and Auditor General of India in exercise of power under Clause (5) of Article 148 of the
Constitution. The Rules are thus statutory in nature. Secondly, the Rules
provide for mode of appointment to the post of Senior Accountant by promotion,
failing which by transfer on deputation.
Thirdly,
promotion is based on seniority subject to rejection or unfit from
among Accountants, generally known as negative test. Fourthly, an
Accountant must have three years regular service. Finally, such Accountant must
have passed Departmental Examination for Accountants.
16. It
is not the case of the respondent that he had passed the Departmental
Examination for Accountants.
It is,
thus clear that the respondent was not qualified for promotion to the post of
Senior Accountant under the Rules.
17.
The respondent, however, urged that even if it is held that passing of
Departmental Examination was necessary, the Authorities ought to have relaxed
the rule by exercising power under Rule 5. A grievance was also made that the
direction of the Tribunal in earlier case had not been complied with and the
prayer of the respondent was rejected mechanically.
18. We
are unable to agree with the submission of the learned counsel. Rule 5 confers
discretionary power on the Comptroller and Auditor General of India to relax the provisions of the
Rules. It is relevant and may be reproduced:
5.
Power to relax.Where the Comptroller and Auditor General of India is of the
opinion that it is expedient or necessary so to do, he may by order and for
reasons to be recorded in writing, relax any of the provisions of these rules
with respect to any class or category of persons.
19.
Reading of the order dated June 24, 1996,
passed by the Deputy Accountant General (Administration), Gwalior, makes it clear that the Deputy
Accountant General considered Rule 5 and observed that he did not find any
valid reason/ground to relax Recruitment Rules in view of the facts mentioned
in the order. It was inter alia observed that Rule 5 conferred power on the
Comptroller and Auditor General of India to relax the Rules, if he is of the opinion that it is expedient or
necessary so to do by recording reasons in writing. But he proceeded to state
that such power should be exercised with respect to any class or category
of persons. Normally, the power should be invoked if eligible candidates
are not available for promotion or for similar valid grounds/reasons. The
power, however, should not be exercised to perpetuate a mistake. Since the
respondent did not fulfill the condition of Recruitment Rules and a large
number of Accountants who had passed Departmental Examination were available
and awaiting promotion, it would be against their interests to deprive them of
promotion and to continue the respondent who had not passed the examination.
20. In
our considered opinion, the reasons recorded by the Deputy Accountant- General
were in conformity with the Statutory Rules. The Tribunal, therefore, should
not have interfered with the well reasoned order passed by the Deputy
Accountant-General. The Tribunal, while dealing with this aspect, observed;
The
reasons given for not according relaxation to the applicant is that the power
to relax is generally to be invoked only in respect of class or category of
persons and is resorted to only in cases when eligible persons are not
available for consideration for promotion or for any valid reasons/grounds, and
the power in not conferred to perpetuates a mistake. We do not think that the
grounds taken for rejection of the case of the applicant are valid. This Court
has specifically directed with certain observation to consider the case of the
applicant for relaxation under the powers vested under rule 5 and the
respondent were duty bound to consider it in accordance with the order of this
Tribunal.
21. We
are unable to persuade ourselves as to how the Authorities did not carry out
the order in letter and spirit as contended by the learned counsel for the
respondent.
We are
also unable to agree with the Tribunal that the reasons recorded for rejection
of the case of the respondent were not valid. On the contrary, in our
judgment, the Deputy Accountant General was right in keeping in view relevant
considerations, such as, the power should be exercised with respect to any
class or category of persons, normally there should not be any
relaxation in Recruitment Rules unless the eligible and qualified candidates
are not available; relaxation should not be exercised to perpetuate mistake; a
large number of Accountants who are eligible and qualified but they could not
be appointed only because of non- availability of sufficient vacancies.
22. In
this connection, it may be profitable to refer to a decision of this Court in Keshav
Chandra Joshi & Ors. v. Union of India
& Ors., (1992) Supp (1) SCC 272 where this Court was called upon to
consider the ambit and scope of relaxation- clause in Recruitment Rules. Rule
27 of the U.P. Forest Service Rules, 1952 invested in the Government power of
relaxation which read thus:
Where
the Governor is satisfied that the operation of any rule regarding 'the
conditions of service' of the members of the service causes undue hardship in
any particular case, he may, in consultation with the Commission,
notwithstanding anything contained in the rules applicable to the case, by
order dispense with or relax the requirements of that rule to such extent and
subject to such conditions as he may consider necessary for dealing with the
case in a just and equitable manner.
23.
The Court held that such power should be exercised to the extent as may be
necessary to ensure satisfactory working or removing hardship in just and
equitable manner but the Government cannot consciously and deliberately deviate
from the Rules exercising the power of relaxation.
24.
Interpreting the relaxation-clause and the power of the Governor, this Court
observed;
Satisfaction
of the Governor that the operation of the rules regarding the conditions of
service would cause undue hardship in a particular case or cases and the need
to relieve hardship and to cause just and equitable results is a pre-condition.
Even otherwise the court cannot substitute its satisfaction for the
satisfaction of the Governor in exercise of the power of deemed
relaxation.
25.
The counsel for the respondent, no doubt, submitted that in the impugned order,
the Tribunal merely directed the authorities to consider the case of the
respondent for relaxation of Rules and no grievance could be made by the
appellants.
26. We
are unable to uphold the contention. Para
6 of the order issued by the Tribunal is explicitly clear. It reads thus:
6.
In view of aforesaid discussions, we feel that this is fit case for according
relaxation under Rule 5.
Accordingly,
this O.A. is disposed of with a direction to the respondents to consider the
case of the applicant for promotion to the post of Senior Accountant by
relaxing the condition of qualifying in the examination and if found suitable,
promote him to the post of Senior Accountant within a period of three months
from the date of receipt of this order, subject to availability of vacancy. In
case the said vacancy is not available, he shall be promoted immediately after
the vacancy is made available.
However,
in case there are persons who are senior to the applicant and who have already
qualified the examination of Senior Accountant, the case of the applicant shall
be considered immediately after the promotion of such persons or such persons
are promoted. (emphasis supplied)
27.
Plain reading of the above direction leaves no room for doubt that the Tribunal
concluded that it was a fit case for according relaxation under
Rule 5. Moreover, the Tribunal directed the appellants to promote the
respondent, if found suitable, within the stipulated period. The Tribunal
further stated that if there is no vacancy, the respondent should be promoted
after the vacancy is available. There is, therefore, no doubt that the question
as to relaxation of rule was finally decided and the directions were
to be carried out by the Authorities on the basis of such conclusion. It,
therefore, cannot be said that direction was limited to consideration
of the case of the respondent and to take an appropriate decision in accordance
with law.
28. It
is true that the mistake was of the Department and the respondent was promoted
though he was not eligible and qualified. But, we cannot countenance the
submission of the respondent that the mistake cannot be corrected. Mistakes are
mistakes and they can always be corrected by following due process of law. In
Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan &
Ors., (1997) 6 SCC 766, it was held that if erroneous promotion is given by
wrongly interpreting the rules, the employer cannot be prevented from applying
the rules rightly and in correcting the mistake. It may cause hardship to the
employees but a court of law cannot ignore Statutory Rules.
29. As
observed by us, Statutory Rules provide for passing of Departmental Examination
and the Authorities were right in not relaxing the said condition and no fault
can be found with the Authorities in insisting for the requirement of law. In
the circumstances, the action of the Authorities of correcting the mistake cannot
be faulted.
30.
True it is that before such an action is taken and a person is actually
reverted, he must be given an opportunity to show cause why the proposed action
should not be taken. He may be able to satisfy the Authorities that there was
no such mistake. But even otherwise, principles of natural justice and fair
play require giving of such opportunity to him. But as observed earlier, in the
instance case, in accordance with Rule 31-A of the Fundamental Rules, notice
was issued to the respondent- employee, explanation was sought and thereafter
the order was passed. The said order, in our considered view, was just, proper
and in consonance with law and it ought not to have been set aside by the
Tribunal or by the High Court. To that extent, therefore, the orders impugned
in this appeal deserve to be set aside.
31.
The last prayer on behalf of respondent, however, needs to be sympathetically
considered. The respondent is holding the post of Senior Accountant
(Functional) since last seventeen years. He is on the verge of retirement, so
much so, that only few days have remained. He will be reaching at the age of
superannuation by the end of this month i.e. December 31, 2007. In our view,
therefore, it would not be appropriate now to revert the respondent to the post
of Accountant for very short period. We, therefore, direct the appellants to
continue the respondent as Senior Accountant (Functional) till he reaches the
age of superannuation i.e. upto December 31, 2007. At the same time, we hold
that since the action of the Authorities was in accordance with Statutory
Rules, an order passed by the Deputy Accountant-General canceling promotion of
the respondent and reverting him to his substantive post of Accountant was
legal and valid and the respondent could not have been promoted as Senior
Accountant, he would be deemed to have retired as Accountant and not as Senior
Accountant (Functional) and his pensionary and retiral benefits would be fixed
accordingly by treating him as Accountant all throughout.
32.
For the foregoing reasons, the appeal is partly allowed. Though the respondent
is allowed to continue on the post of Senior Accountant (Functional) till he
reaches the age of retirement i.e. December 31, 2007 and salary paid to him in
that capacity will not be recovered, his retiral benefits will be fixed not as
Senior Accountant (Functional) but as Accountant. In the facts and
circumstances of case, there shall be no order as to costs.
Back
Pages: 1 2
