ORDER
M. Ramachandran, J. (Vice Chairman)
1. The applicants belong to the Indian Foreign Service and for the purpose of this case, it may only be relevant to note that all of them were promoted in the senior scale effective from 20.07.2004 by an order dated 31.03.2005. By an office memorandum dated 25.04.2005, they were given `year of allotment’ as July, 1996. Rule 15 of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion), Rules, 1961 (hereinafter referred to as `the Rules’) deals with issue of seniority. In the case of Indian Foreign Service Branch `B’, it is provided that a promoted officer will get the year of allotment determined as per the rules but not earlier than the eight years preceding the date of actual promotion. The grievance highlighted in the O.A is that in spite of their promotability and ignoring the circumstance that vacancies were available all through from 1999 to 2003, there was undue delay in the holding of DPC and resultantly they were given promotion only belatedly. The plea is that they should not have been put to suffer because of this circumstance about which they had no control. In other words, the claim put in is that they should be given a year of allotment according to their date of empanelling, taking into consideration the vacancies for each panel year in the light of seniority list of Grade-I of IFS (B) officers.
2. The presence of Rule 15 (4) (ii) of the Rules, referred to earlier, might have stood in their way as an allotment year beyond eight years would not have been possible to be extended on any persons. Therefore, the principal relief prayed for was to declare the second proviso to Rule 15 (4) (ii) of the Rules as ultra vires, and consequently to direct the Department to take steps to antedate the year of allotment. The actual date of promotion, according to the applicant, should have been understood as the date on which the promotion could have been brought about.
3. The respondents had opposed the application. According to them, the convening of the DPC was delayed not for any laches on the part of the Government. It had also been submitted that the second proviso to Rule 15 (4) (ii) was valid and only for the reason that it was inconvenient to the applicants; it could not have been upset as it had governed the situations over several decades. According to the respondents, the claims were not on any sound basis. It was not conceded that the applicants had been subjected to any hostile discrimination. Nor they had been picked up for any disadvantageous treatment. In support of their contentions, respondents had also relied on a decision of the Principal Bench of the Tribunal in M.P. Gavai v. Union of India (OA 1117/1997) where the validity of the rules had been upheld.
4. But when the issue directly came up afresh in these proceedings, a Division Bench, however, was of the view that the interpretation would have spelt in an unfavourable treatment to individuals. The Bench was of the opinion that the matter could be referred to a Full Bench. The issue framed was as following:
Whether second proviso to Rule 15 (4) (ii) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion), Rules, 1961 is ultra vires as it omits a situation from its ambit where the actual promotion would, inter alia, include the cases of delayed promotion for want of holding DPCs and also the notional and deemed promotion ordered by the Court or Tribunal to be reckoned as actual promotion for the purposes of assignment of year of allotment in Indian Foreign Service.
By the opinion rendered on 06.09.2007, the Full Bench declared that the answer to the reference is to be in the negative. Second proviso to Rule 15 (4) (ii) of the Rules was held as intra vires. However, the Original Application was to be examined individually in each case by the Division Bench keeping in view of the facts and circumstances and other implications, and particular situations. The matter has come up before us for such examination.
5. We had opportunity to hear Mr. Jamshed Bey. He had made available to us a Memorandum issued by the Ministry of External Affairs dated 10.10.2006 showing revised select list of officers for promotion to the senior scale. He points out that because of the delayed promotions, the applicants stand to lose vis-a-vis officers, who had come on direct recruitment, in Stream `A’ . Counsel had also adverted to the decision reported as K. Madhavan and Anr. v. Union of India and Ors. as well as Nirmal Chandra Bhattacharjee and Ors. v. Union of India and Ors. (1991 Supp. (2) SCC 363). Apart from the above, individual claims had not been urged, as all the applicants had been cleared by DPC, promoted and were situated identically vis-`-vis claims as highlighted in these proceedings.
6. We hardly find any circumstance to advert to Madhvan’s case (cited supra). It had come to be passed, where there was an arbitrary/mala fide postponement of DPC meetings resulting in denial of chances of possible earlier promotion. Nirmal Chandra (cited supra) also dealt with a similar situation, and the Court had observed that an employee should not be made to suffer for the delay in promotion. No prejudice was to fall on him, from situations on which he had no control. We also find that the impact of the said judgments already had been examined by the Full Bench. Readvertence thereto, therefore, is not called for.
7. We have to remind ourselves that the applicants were obviously aware of the difficult position that was there because of the presence of Rule 15 (4) (ii) of the Rules. It was because of the said precise circumstance that they had chosen to challenge the vires of the rules. They have to reconcile to the situation that such challenge has been repelled. The rule is to operate with full vigour. As observed by the Hon’ble Supreme Court, in A.K. Bhatnagar v. Union of India 1991 (1) SCC 545, when rules framed under Article 309 govern the field, the Government may not be entitled to sideline such rules, nor it will be proper on the part of the Tribunal to suggest that the presence of the rules, could be overlooked, in an effort, albeit with intention to render relief, as the applicants understood. It will be plainly inadmissible. The office memorandum, which advises the applicant that their allotment year is considered as July, 1996, therefore, cannot be upset, as it rests on the authority of rules.
8. In fact, in view of the above legal position, practically no further discussions at all might be necessary, but we may also note that the delay, which had occasioned, was not because the Government had been guilty of laches. Grade-I of IFS Branch `B’ is the feeder grade for induction/promotion to senior scale of IFS. The post is to be filled up in consultation with the UPSC. Selection is from among officers of Grade-I, who have completed not less than three years of service in that Grade. The counter reply shows that in implementation of the orders passed by the Administrative Tribunal in OA 567/99, Sanjay Vyas and Ors.Vs. Union of India and Ors.decided on 10.01.2001, seniority list of Grade-I officers were to be revised. The panels for the years 1983 to 1998 for promotion to Grade-I of IFS (B) as recommended by the earlier DPCs required to be reviewed. The review DPC recommended panels for the period. A list had been drawn on 09.12.2002. Without completing the finalization of Grade-I officers final review of the promotion to senior scale from 1997 to 1999 was not possible. Review DPCs for promotion to IFS were held in March/May, 2004. This was the reason why DPC to consider promotions to vacancies, which arose from the year 1999 onwards, could be held only by July, 2004. A correct and upto-date seniority list was mandatorily to be available. The pending proceedings, therefore, had unwittingly delayed such process.
9. We find that the relevant circumstances have been adequately explained. As pointed out by Mr. Bhardwaj appearing for the respondents, it was not a case where the applicants were deliberately subjected to discrimination. Accommodation as possible within the parameters of the rules had been given to them and the delay that might have been there, with reference to their promotions, was unavoidable but this itself did not give them any cause of action for a relief of antedating their year of allotment.
10. We find that respondents have come up with proper explanation and there cannot be any suggestion that there has been any amount of arbitrariness involved. Resultantly, the OA is dismissed. There will be no order as to costs.