ORDER
Mukesh Kumar Gupta, Member (J)
1. Validity of Notification dated 22.12.2005, of the Ministry of Home Affairs, whereby earlier DPCs proceedings were reviewed and applicant’s position, appointed by promotion to Junior Administrative Grade (for short JAG) of NCT of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Service (hereinafter referred to as the ‘DANICS’) has been changed to his detriment, is challenged in the present O.A. Direction is sought to respondents to restore his position in the JAG as reflected under Notification dated 9.8.1996. Further prayer made is to quash proceedings of Selection Committee, for promotion by induction to IAS against the vacancies for 2004 and consequently direction to respondents to hold review DPC with consequential benefits. Declaration is also sought that respondent No. 5 and other similarly situated officials should not have been included in the zone of consideration by review DPC, whose recommendations culminated in impugned Notification dated 22.12.2005.
2. The factual matrix is as under:
3. Applicant was appointed in Delhi Andaman Nicobar Islands Civil Service (hereinafter referred to as the ‘DANICS’) as a direct recruit based on combined Civil Services Examination, 1980. Initially he was appointed to Grade-II and joined on 15.6.1982, promoted to Grade-I w.e.f. April, 1985. Thereafter he was granted next promotional avenue available to him i.e., grade of JAG vide order dated 9.11.1993, against vacancies of the year 1991, and his name figured at Serial No. 9 just below Smt. Alka Dewan and above Shri Rajinder Singh. Apparently, such DPC proceedings were reviewed and fresh Notification dated 9.8.1996 was issued wherein he was shown against Serial No. 79 below Smt. Alka Dewan. However his date of appointment to JAG and year of vacancy remained the same. Though position held by Shri Rajinder Singh has undergone change. He continued to remain in the said position till impugned Notification dated 22.12.2005 was issued.
4. Grievance of applicant is that aforesaid notification is illegal, arbitrary and unjust and suffers on account of various irregularities committed by review DPC. Though copy of aforesaid notification had not been supplied to him but somehow he obtained copy of same. Perusal of said notification reveals that it is based upon review of earlier proceedings held on 3rd and 4th July, 1996 and also because of directions issued by this Tribunal in O.A. 581/ 1997-AK. Chaturvedi and Ors. v. UOI and Ors. decided on 14.11.2003.
5. Mr. A.K. Behera, learned Counsel appearing for applicant, during the course of oral hearing basically raised 4 independent contentions, namely:
A–CONSTITUTION OF DPC
Composition of review DPC held in the year 2005 was totally different than what had been prescribed under the DANICS rules at the relevant point of time. The vacancies against which he and other similarly situated persons were considered earlier pertained to the year ‘1986 to 1993’. The composition of DPC, as per rules in vogue for JAG of DANICS at the relevant point of time was as follows:
(i) Chairman or Member of the Union Public Service Commission – Chairman
(ii) An officer in the Ministry of Home Affairs not below the rank of Joint Secretary to the Government of India.
(iii) Chief Secretary, Government of National Capital Territory of Delhi
(iv) Chief Secretary, Andaman and Nicobar Islands or any Officer in the Ministry of Home Affairs not below the rank of Joint Secretary.
Proceedings of review DPC carried during the year 2005, which culminated in impugned Notification dated 22.12.2005 did not include Chief Secretary, Govt. of NCT of Delhi as a Member of DPC. It was contended that he was not even intimated about such review of original DPC held in 1996. Thus composition of review DPC being contrary to what has been prescribed under the statutory rules is null and void. Further, that Lakshadweep Civil Service, had been merged with the DANICS in the year 1996 vide notification issued by Ministry of Home Affairs on 31.1.1996, and the said rules are known as Delhi Andaman and Nicobar Islands, Lakshadweep Daman and Diu and Dadra and Nagar Haveli Civil Services Rules, 1996. Thus, respondent No. 5 and other similarly situated officers who were not even the Members of DANICS prior to said date, were included within the zone of consideration and therefore, granting JAG to them by impugned notification from an earlier date is, illegal and arbitrary. Learned Counsel vehemently contended that as per settled law, the rules which were in vogue, when the said vacancies arose, ought to have been followed. In other words, as the vacancies which were filled vide Notification dated 9.8.1996 pertained to year 1986 to 1993, the aforesaid rules, 1996 could not have been applied at all. Furthermore, the said rules of 1996 are not retrospective in nature. Strong reliance was placed on , Y. V. Rangaiah and Ors v. J. Sreenivasa Rao and Ors.; , N.T. Devin Kutti and Ors. v. Karanataka Public Service Commission and Ors. and , Sunder Lal v. Union of India and Ors., Y.V. Rangaiah (supra) was taken note and approved in the later judgment of Devin Kutti. The ratio laid down vide Para 9 of Y.V. Rangaiah’s case (supra) reads as under:
Having heard the Counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade-II should have been made out of that panel. In that event, the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by Counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade-II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
(Emphasis supplied)
It was further contended that what is prescribed under the RRs is a mandate and its variance and breach is fatal to entire proceedings.
6. Our attention was drawn to the reply filed by official respondents as well as by UPSC. UPSC in its reply Paras 6.4.1 and 6.4.2 in unequivocable term stated that for preparing the panels of 1986 to 1993 and for considering and reckoning eligibility of officers in the zone, the relevant provisions of the Recruitment Rules prevailing during the respective years were applied. The contents of reply paras read thus:
as some of the posts included in the composition of the DPC mentioned in the extent Recruitment Rules might have ceased to exist or nomenclature revised with the passage of time, the Commission as a matter of uniform practice convenes the RDPC/DPC for the previous years as per the composition indicated in the current Recruitment Rules applicable on the date of holding of the RDPC/DPC. This practice is uniformly applied by the Commission for convening the RDPC/DPC of all cadres/services under the Central Govt. At the time of holding the Review DPC in May and August, 2005, the DANIL, DD and DNH Civil Service Recruitment Rules, 2003 were prevalent and for promotion to JAG of the Service, the composition of the review DPC was as under:
(i) Chairman/Member of the UPSC -- Chairman (ii) Chief Secretary, Govt. of A and N Islands -- Member (iii) Administrator, Lakshadweep -- Member (iv) Administrator, Daman and Diu and DNH -- Member (v) Secretary (Services), Govt. of NCT of Delhi -- Member (vi) Joint Secretary (UT), MHA -- Member 6.4.2. As such the Chief Secretary to the Govt. of NCT of Delhi was not a Member of the review DPC held on 5th May and 5th August, 2005. The contention of the applicant that the Chief Secretary, Govt. of Delhi was not included as member of the review DPC is thus baseless in view of the revised composition of DPC mentioned in the Recruitment Rules as amended in 2003. (Emphasis supplied)
7. With reference to above, Mr. A.K. Behera, learned Counsel strongly contended that neither the rules of 1996 nor rules of 2003 are retrospective in operation and therefore, the same could not have been applied for vacancies of the year 1986-1993. Learned Counsel maintained that on this account alone, as admitted by the respondents and noted herein above, impugned Notification dated 22.12.2005 deserves to be quashed and set aside.
B–SCOPE OF REVIEW DEPARTMENTAL PROMOTION COMMITTEE.
Drawing our attention to Part-VI, DOPT O.M. dated 10.4.1989 printed on pages 112-114 of Swamy’s Compilation on Seniority and Promotion, 2004 edition, dealing with Review DPCs, particularly Para 18.2. which states that: “a review DPC should consider only those persons who were eligible as on date of meeting of original DPC. That is, persons who became eligible on a subsequent date should not be considered”, it was contended that since respondent No. 5 had not been a Member of DANICS prior to the year 1996 as he was a Member of Laskshadweep Civil Service, he was not eligible for vacancies of the years 1986-1993, or on the date when original DPC had taken place, which culminated in order dated 9.11.1993, vide which applicant was granted JAG. Because of inclusion or merger of Lakshadweep Civil Service with the DANICS some time in 1996, not only the number of posts became higher but even the zone of consideration was enlarged. The actual zone of consideration or increased number of posts, which was on the extra-ordinary situation, did not warrant review DPC. It was further contended that officials considered by the Review DPC on such merger were granted JAG with retrospective effect displacing the officials like the applicant, which is illegal, arbitrary and void abinitio. Our attention was also drawn to reply Para 4 of counter affidavit filed by respondents 1-2. As per said reply para following additional discrepancies/procedural omissions were noticed in the proceedings of review DPC held in July 1996, which reads thus:
(i) In addition to Shri U.K. Worah, three other officers, viz., S/Shri A.S. Khullar, R.M. Pillai and Surayash Prakash were not eligible to be considered against the vacancies pertaining to the year 1987;
(ii) Shri P.C. Misra was included in the eligibility list for the year 1989 at SI. No. 2 below the name of Shri F.S. Riazuddin and above the name of Shri S.N. Srivastava, although by virtue of his seniority in Selection Grade of DANICS, his name should have figured below the name of Shri G.G. Saxena and above the name of Shri V.C. Pandey in the said eligibility list of 1989; and
(iii) The eligibility list for the year 1989 consisted of 45 officers for filling up 15 vacancies, although according to the Govt. instructions in force with effect from 10.4.1989 the zone of consideration should have consisted of only 34 officers, as the original DPC meetings were held on 11th and 13th April and 2nd May, 1989.
(Emphasis supplied)
Elaborating with reference to above alleged discrepancies/procedural omissions, Mr. Behera, learned Counsel pointed out that this Tribunal vide order dated 14.11.2003 in O. A. 581/1997 A.K. Chaturvedi and Ors. v. UOI and Ors. vide Para 15 observed that on perusal of records it transpired that Shri U.K. Worah:
did not have 12 years of combined regular service in Grade-I and Grade-II at the relevant time. This becomes apparent from the fact that the said respondent had joined service only on 1.6.1976. He could not be considered for vacancies occurring in the year 1987 because at that time he did not have the required number of years of service. To this extent, there appears to be an inadvertent mistake that has occurred in the matter.
8. Resultantly, the said O.A. was partly allowed. It was directed that keeping in view the fact that respondent No. 3 therein i.e., U.K. Worah did not have necessary qualifying years of service to his credit, the claim of the applicants (who were four in number), namely, S/Shri A.K. Chaturvedi, J.P. Rai, R.D. Srivastava and S.N. Srivastava be reconsidered. Learned Counsel pointed out that 3 other officers who had been considered by the review DPC, viz., S/Shri A.S. Khullar, R.M. Pillai and Surayash Prakash were neither parties in aforesaid O.A. nor had judicial orders against them and therefore, how and why, their cases were considered by said review DPC, is a matter which remains totally unexplained. As far as P.C. Mishra is concerned, it was stated that he remained eligible for vacancies of 1989 and only difference would be that his name would not figure below Shri F.S. Riazuddin but below Shri G.G. Saxena and above Shri V.S. Pandey. This fact alone would not change the zone of consideration etc.
C–NUMBER OF VACANCIES.
This is basic issue and fundamental grievance. With reference to irregularities/ discrepancies as noted above particularly No. (iii) learned Counsel contended that as per eligibility for the year 1989, the zone of consideration should have been 45 officers for filling up 15 vacancies, which had been reduced to 34 without any cause, justification and reasons. Our attention was drawn to the DOP and TO.M. dated 12.10.1990 on the subject of zone of consideration for promotion by selection-revised instructions. As per Para 2 of the said O.M., the existing zone of consideration was modified. Prior to the said notification, the criteria for determining zone of consideration had been as:
—————————————————————————–
No of vacancies No. of officers to be considered 1 5 2 8 3 10 4 Three times the number of vacancies ----------------------------------------------------------------------------- And after amendment in the zone of consideration vide O.M. dated 12.10.1990, it reads: ----------------------------------------------------------------------------- No of vacancies No. of officers to be considered 1 5s 2 8 3 10 4 10 + twice the number of vacancies in excess of three vacancies. -----------------------------------------------------------------------------
As per said O.M. such instructions were to take effect from 1.11.1990. In this backdrop, it was vehemently contended that reduction in the zone of consideration from 45 to 34 particularly when vacancies were for the year 1989, i.e., prior to the said year, the respondents action and justification for holding review DPC is ex-facie absurd and baseless. It zone of consideration was three times of number of vacancies, then for 15 vacancies it was rightly determined as 45. The zone of consideration 10 + twice the number of vacancies in excess of three vacancies, was to become operational from 1.11.1990, and based on such mandate zone of consideration for 15 vacancies would come to 34. Learned Counsel contended that zone of consideration for the year 1989 vacancies cannot be determined based on O.M. dated 12.10.90, which was to take effect from 1.11.1990. As such there is total non-application of mind on the part of concerned authority in following O.M. dated 12.10.90 for the vacancies of earlier year i.e., 1989.
D–ANNUAL CONFIDENTIAL REPORTS
It is contended that he believed that by the review DPC he was considered against the vacancies for the year 1992. His split ACRs for the year 1991-92 were given a perverse interpretation. For the said year, ACR was recorded in two parts- the first one for a period of 7 months, wherein though Reporting Officer had graded him ‘Very Good’, but Reviewing Officer graded him ‘Excellent’. The term ‘Excellent’ should have been treated as synonymous with the term ‘outstanding’. The 2nd ACR for a period of 5 months was graded as ‘Outstanding’ both by reporting as well as Reviewing Officers. Contention raised is that review DPC treated both the ACRs as ‘Very Good’, though he should have been graded as ‘Outstanding’. Drawing our attention to respondents 1-2 reply, on this aspect learned Counsel pointed out that specific averment made to this effect has not been disputed. Similar stand has been taken by UPSC. However, it was stated that as per Para 6.2.1 of the DOP and T O.M. dated 10.4.1989, regarding guidelines for DPCs, the DPC is not guided merely by the overall grading, if any, recorded in CRs but makes its own assessment on the basis of entries reflected in the CRs.
9. Further contention raised was made that serious prejudice has been caused to him as the review DPC took into consideration the comparative chart prepared for “earlier” and the “review panel”, copy of which was annexed as Annexure A-4, and so on described vide Para 4.11 of O.A.. Neither this aspect nor the factual comparative chart prepared by the respondents had been controverted by the respondents. Learned Counsel also pointed out that Selection Committee meeting was held on 12.1.2006 for induction of DANICS officers into IAS cadre and necessary orders were issued during the pendency of present O.A. Vide order dated 18.1.2006, this Tribunal had directed that any appointment made during the pendency of this O.A. shall abide by the result of present O.A. Furthermore, applicant name has not been included in the said order. In view of the fact that applicant position was depressed by 14 slots vide impugned Notification dated 22.12.2005, it deserves to be quashed and set aside and respondents be directed to review the proceedings of Selection Committee held on 12.1.2006 for induction of DANICS into IAS.
10. Mr. R.N. Singh, learned Counsel appearing for respondents 1-2 vehemently contended that applicant stated that he had not been served copy of impugned Notification dated 22.12.2005, as narrated vide Para-1, then how he instituted present O.A. Moreover, he filed representation, details of which were not provided to us, and without waiting for its reply present O.A. was filed, which is thus premature. With regard to Annexure A-4 comparative chart for the “earlier” and “review panel”, it was stated that the same is not a document and it was wrong on his part to verify it as true copy, as neither he had seen, nor served such a document. In reply, it was stated that RRs of DANICS, initially notified in 1971 were amended from time to time. The said rules were subsequently extended to UTs of Lakshadweep Daman and Diu, Dadra and Nagar Haveli vide Delhi Andaman and Nicobar Islands and Daman and Diu, Dadra and Nagar Haveli Civil Services Rules, 1996. The service was renamed as NCT of Delhi Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Havali Civil Service, The Rules were last amended in August, 2003. The JAG in pay scale of Rs. 3700-5000 (pre-revised) was introduced in the service w.e.f. 1.1.1986. Selection Committee in its meetings held on 11/13th April and 2.5.1989 prepared the panels for the years 1986,1987 and 1989 for appointment to JAG of DANICS. Subsequently review Selection Committee was held on 8.11.1991 to consider the officers who had retired/expired/resigned/appointed to IAS between the period 1.1.1986 to 11.4.1989. Once again, meeting of the Selection Committee was held on 10.9.1993 for preparing the panels for the year 1990 to 1993. In view of the directions of Tribunal dated 17.9.1987, the seniority of feeder grade i.e., Grade-I of DASS was revised and consequent thereto, the seniority of DANICS officers was also revised on 6.9.1994 (as on 1.1.1984). Accordingly a meeting of the review Selection Committee was held on 3rd and 4th July, 1996, which reviewed the year-wise panels of JAG officers for the years 1986 to 1993. S/Shri A.K. Chaturvedi, J.P. Rai, R.D. Srivastava and S.N. Sharma filed an O.A. 581/1997 before the Tribunal and contended that S/Shri U.K. Worah and R. Raghuraman, junior to them were granted JAG over looking their just claim. Initially the said O.A. was dismissed, which was challenged before the Hon’ble High Court vide C.W.P. 6738/2000. The matter was remitted back for a fresh consideration. Subsequently the said O.A. was disposed of vide order dated 14.11.2003 with certain directions. We have already noted the observations made in said O.A. herein above.
11. It was further stated that on examination of directions of this Tribunal. They noticed additional discrepancies/ omissions in the review DPC proceedings July 1996, as well as review DPC held on 15.2.2001 to consider Shri Madhukar in compliance of order dated 26.7.2000 in O.A. 2647/1999, Smt. S.K.P. Sodhi in compliance of order dated 30.2.2000 in O.A. 169.1995, and also to consider the cases of S/Shri P.R. Krishna Narayana and E.P. Attakoya Thangal in compliance of order dated 29.5.2002 in O.A. 298/2002 passed by the Ernakulam Bench of this Tribunal. Therefore, comprehensive proposal was sent to UPSC for convening a meeting of review DPC, which was held on 5.8.2005 and the panels prepared by it were accepted by the Government and said impugned notification was issued on 22.12.2005. S/Shri P.R. Krishna Narayana, E.P. Attakoya Thangal, B.S. Panwar, T. Balakrishanan, K. Ashokan and V.K. Gupta, were inducted into DANICS after extension of the service to UT of Lakshadweep and Daman and Diu and Dadra and Nagar Haveli, and their seniority were fixed as per Rule 6 (2) of DANICS Rules, 1996 and were also to be considered for JAG. Shri E.P. Attakoya Thangal, respondent No. 5 was assigned seniority below the last promotee officer of 1978. Ernakulam Bench of this Tribunal in its order dated 29.5.2002 in O.A. 298/2002 had directed to give all consequential benefits to S/Shri P.R. Krishna Narayana and E.P. Attakoya Thangal consequent on their induction to Grade II of the service. Both the officers were appointed to Grade-I w.e.f. 19.1.1984 and their names were placed below A.K. Acharya and above S.N. Chatterjee in pursuance to directions issued by the Ernakulam Bench in C.P. 68/2002 in O.A. 298/2002, vide order dated 27.1.2003. A proposal was sent to UPSC to convene a meeting of review DPC for their appointment to JAG, which was held on 23.4.2003. Therefore, the review DPC held on 5.8.2005 included their names in the zone of consideration for promotion to JAG for the year 1989, and Shri Thangal was included in the panel of 1989. Shri P.R. Krishna Narayana could not figure in any of the panel for the years 1987-1993 due to his lower grade. Vide their reply Para 12, it was stated that assessment made by DPC constituted under the provisions of statutory RRs is not open for scrutiny as held by Hon’ble Supreme Court. Reliance was made to Nutan Arvind (Smt.) v. UOI and Ors. , Dalpat Abasaheb Solunke v. B.S. Mahajan , State of Madhya Pradesh v. Shri Kant Chaphekar, and Smt. Anil Katiyar v. UOI and Ors. 1997(1) SLJ 145 (SC) : 1997(1) SLR 153. It was further clarified that applicant could not be considered by the review DPC for the vacancies pertaining to the year 1991 due to change in his seniority position. Respondent No. 5 was inducted into the service and assigned seniority below the last promotee officer of 1978, was appointed to Grade-I (Selection Grade) w.e.f. 19.1.1984 vide order dated 25.2.2003 and appointed to JAG w.e.f. 17.5.1989 vide order dated 13.5.2003.
12. Mr. R.N. Singh, learned Counsel appearing for respondents 1-2, during oral hearing, maintained the stand taken in the reply, as noted hereinabove. It was forcefully submitted that orders dated 25.2.2003 and 13.5.2003 vide which respondent No. 5 was granted Grade-I (Selection Grade) and JAG retrospectively from an earlier date have not been questioned by the applicant, in any proceedings. Therefore, indirectly, he cannot be allowed to attack the same vide the present O.A. We may note that the copies of said orders have not been produced or annexed with their reply. Further, respondent No. 5 is deemed to be DANICS officer w.e.f. 16.9.1978. Learned Counsel further contended that no junior to him has been inducted into IAS cadre pursuant to Selection Committee meeting held on 12.1.2006.
13. Respondent No. 3 (UPSC) filed separate reply, and more or less took the same stand as of respondents 1-2. However, it was added that as per Para 6.2.1 of DOP and TO.M. dated 10.4.1989, regarding guidelines for DPCs the DPC is not guided merely by the overall grading, if any, recorded in the CRs, but makes its own gradation under various parameters or attributes. Matter relating to assessment made by the Selection Committee, is not open to judicial review.
14. Mr. J.B. Mudgil, appearing for respondent No. 3 contended that inclusion of Secretary (Services) in place of Chief Secretary in the review DPC was justified. It was urged that uniform practice was followed by the UPSC for convening such review DPC. No allegation of malafides have been made. There is no challenge to RRs, therefore, applicant is not entitled to any relief.
15. We also heard, Mr. P.P. Khurana, learned senior Counsel along with Mr. A.N. Sabri Counsel for respondents 6 to 12, who were impleaded vide order dated 4.4.2006, stated that reply is not necessary to be filed on their behalf as all of them except Ms. S.K.P. Sodhi were senior to applicant even in the order dated 9.8.1996. Applicant only seeks restoration of his position as reflected in the said order.
16. We have heard learned Counsel for the parties and perused the pleadings and material on record very carefully and minutely. As far as first contention regarding constitution of review DPC is concerned, it is well settled law that the vacancies which occurred prior to amended rules were to be governed by the old rules and not by the amended rules as held by the Apex Court in Y. V. Rangaiah and reiterated in Devin Kutt’s case (supra). The composition of DPC is normally prescribed under statutory rules. We do not find justification in the reasoning advanced by the UPSC that while convening review DPC the Commission follows a matter of “uniform practice” and convenes such review DPCs as per the composition indicated in the latest RRs. We are amazed that a constitution body is not respecting the law laid down by the Apex Court, which is binding on all parties, including UPSC under Article 141 of the Constitution of India. Further, justification in not including Chief Secretary, Govt. of NCT of Delhi as Member of Review DPC on the ground that some of the posts included in the composition of DPC might have ceased to exist or nomenclature revised with the passage of time, is far from truth and figment of imagination. As far as the present case is concerned, we observe that UPSC has shown scant respect to settled law and such casual approach is not expected in a society governed by the rule of law. Recently, Hon’ble Supreme Court in T.N. Godavarman Thirumulpad v. Ashok Khot and Anr. , observed that ‘in our democratic polity under the Constitution based on the concept of ‘rule of law’ which we have adopted and given to ourselves and which serves as an aorta in the anatomy of our democratic system, “THE LAW IS SUPREME”. It was also observed therein that: “any country or society professing the rule of law as its basic feature or characteristic does not distinguish between high or low, weak or mighty.”
17. There is a vast difference between Secretary (Services) and Chief Secretary. Chief Secretary is the head of services in the State, while Secretary is only a senior officer. Under such circumstances these two officials could not be equated, though both of them may be Members of a particular service. We find justification in the applicant’s contention that composition of DPC as provided under the statutory rules, cannot be breached for which reliance was placed on Sunder Lal’s case as noted (supra). In the said judgment, the State statutory rules prescribed constitution of a Departmental Promotion Committee as of:
(i) Chairman/Member, UPSC Chairman
(ii) Secretary, Legislative Department,
M/o Law and Justice Member
(iii) Additional Secretary, Official Languages
Wing, Legislative Department, M/o Law and Justice Member
DOPandT O.M. dated 10.4.1989 vide Para 2.7 required that in Group-A and Group-B services/posts if none of the officers included in DPC as per the composition given in the recruitment rules is an SC or ST officer, it would be in order to co-opt a member belonging to SC or ST if available within the Ministry/department. If no such officer is available within the Ministry/department, he may be taken from another Ministry/department. Despite this unambiguous provisions the Union while holding DPC for various Groups ‘A’ and ‘B’ posts co-opted 4th member from SC Community outside Ministry/department. Before the Tribunal, it was pointed out that the addition of the 4th member was not necessary in view of the fact that the Secretary, Legislative Department himself was belonging to a Scheduled Caste and there was no necessity of co-opting for the 4th member. The Tribunal came to conclusion that the constitution of a Departmental Promotion Committee was against the statutory rules framed under Article 309 of the Constitution, which view has been upheld by the Hon’ble Supreme Court holding that DOP and TO.M. dated 10.4.1989 specifically provided that officer from such community be opted “if none of the officers included in DPC as per the composition given in the recruitment rules is an SC or ST officer”. Since admitted facts were that Secretary, Legislative Department was belonging to SC community, addition of 4th member was found to be unjustified.
18. Hon’ble Supreme Court in A.K. Bhatnagar and Ors. v. Vo1 and Ors. , observed that once rules are framed by the Government, their action in respect of matters covered by rules should be regulated by the rules which are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. The Hon’ble Court further observed that very often Government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules and also expected that the Government both at Centre and State would take note of such law and refrain from acting in a manner not contemplated by their own rules. On bestowing careful consideration to this aspect of the matter, we observe that in present case, the statutory rules framed on the subject are solemn, having binding affect, but have been breached with impunity without any justification. The ratio laid down in the aforesaid judgment, in our considered view has been violated though the Apex Court expected from the Government and other agencies to take note of law declared on the said subject and not to act in a manner not contemplated by their own rules. The mistake committed and the law violated on this aspect cannot be taken lightly.
19. As far as scope of review DPC is concerned, Para 18.2 of DOP and TO.M. dated 10.4.1989, in our considered view, in clear terms provides that the review DPC should consider only those who were eligible as on date of the original DPC. It is not in dispute that Lakshadweep Civil Service had not part of DANICS till the year 1996. The vacancies which were filled vide order dated 9.11.1993 were for the years 1986-1993. Similarly it is not in dispute that respondent No. 5 had not been a Member of DANICS at the relevant point of time. Merely because the Members of Lakshadweep Civil Service became part and parcel of D ANICS in view of Notification dated 31.1.1996, it would not be a valid ground and good reason to consider him by the review DPC of 2005. We may note that the said rules of 1996 were to come into operation from the date when the rules were published in the official Gazette. Despite our query raised to the learned Counsel for respondents, neither copy of the Gazette notification was produced nor we are informed about the date on which such rules were published in the Gazette of India. In any case the date of such rules being Gazetted cannot be anterior to 31.1.1996. As far as contention that it was only U.K. Worah who at the best was ineligible in year 1987, having not completed required 12 years of service is concerned, directions issued by this Tribunal were in respect of applicants in O.A. 581/1997 only. We have already noticed that there were only 4 applicants in the said O.A., who at best ought to have been considered pursuant to order passed by this Tribunal on 14.11.2003. Respondents contention that there were similarly placed persons who were ineligible i.e. S/Shri A.S. Khullar, R.M. Pillai and Surayash Prakash included in the zone of consideration could not have been used against the applicant. It is not in dispute that aforesaid 3 officials were neither the parties in the said O.A. nor they had any judicial order against them. As far as P.C. Mishra is concerned, only change was in his placement, neither in the zone of consideration nor in eligibility in the given year. On this account also the justification placed by the respondents to convene review DPC is misconceived and unwarranted.
20. Respondents’ further contention is that for 15 vacancies zone of consideration had to be 34 and therefore, it necessitated review. In our considered opinion, it is highly misconceived, arbitrary, unjust and unwarranted for the simple reason that the said zone of consideration had been amended by the DOPT O.M. dated 12.10.1990 which was to take effect from 1.11.1990. In other words, for vacancies of the year 1989 the said O.M. had no relevance at all. It is not in dispute that the zone of consideration for 15 vacancies was changed by respondents vide O.M. dated 12.10.1990 while the vacancies pertained to the year 1989. In this view of the matter, we record our serious concern as to how amended O.M., which, in fact, had not seen light of the day in 1989, could have been applied particularly when it was not retrospective in operation.
21. Similarly it is not in dispute that applicant’s ACRs for the year 1991-92 had been in 2 parts, namely for 7 months and 5 months, respectively. The grading awarded by the Reviewing Officer ‘excellent’ could not have been regarded as ‘very good’ particularly when it was not synonymous with the said term. Respondents contention that the DOP and T O.M. dated 10.4.1989 in Para 6.2.1 lays down guidelines for DPC stating that DPC is not guided merely by the over all grading recorded in the ACR and therefore, they were justified to Grade him as ‘very good’ for the said ACR year without clarifying any more on this aspect, cannot be accepted. It is also not in dispute that the applicant has been relegated by as many as 14 places in the impugned notification. It is also not in dispute that earlier he was assigned the seniority against the vacancy for the year 1991 which has been changed to the year 1993, without issuing any show cause notice.
22. Taking a cumulative view of the matter, we find that the reasons advanced and the alleged discrepancies noted by the respondents necessitating to hold review DPC are thus not tenable in law and cannot be accepted. Accordingly we have no hesitation to quash the impugned notification holding that there was total non-application of mind on the part of respondents, particularly respondents 1-3 in conducting such proceedings. Consequently Notification dated 22.10.2005 is quashed and set aside with all consequential benefits. Accordingly, if the applicant comes within the zone of consideration for induction of DANICS officers to IAS, for which purposes Screening Committee meeting was held on 12.1.2006, he shall be considered, holding review of such proceedings and if selected, appointment etc., would be regulated in terms of recommendations so made by it. This exercise shall be completed within a period of three months from the date of communication of this order.
23. O.A. is thus allowed.