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CASE NO.: Appeal (civil)  2600-2601 of 2005

PETITIONER: Union of India & Ors

RESPONDENT: S.K. Saigal & Ors.

DATE OF JUDGMENT: 15/11/2006

BENCH: H.K.SEMA & P.K.BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

H.K.SEMA,J

       The 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.           Briefly stated, the facts are as follows:

       The 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.          The 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.           The 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

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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.          The 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: "Rule 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:-

(i)     The period of such training is treated as duty  under F.R. 9(6)(b). (ii)    They have been approved for promotion to the  next higher grade. (iii)   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:

"For Hydrology Discipline: Promotion: Junior Hydrologist with 8 years’ service  in the grade rendered after appointment therein on  a regular basis.

For other disciplines: Promotion: Scientist ’B’ with 5 years regular service  in the grade.

Transfer on deputation: (including short-term  contract):  Officers under the Central/State

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Governments Universities/ Recognised Research  Institutions Public Sector Undertakings/ Statutory  or Autonomous Organisations:-

(a)     (i) holding analogous posts on a regular basis,     or (ii) with 5 years’ regular service in post in the  scale of Rs. 2200-4000 or equivalent; or (iii)   with 8 years’ regular service in posts in the  scale of Rs. 2000-3500 or equivalent; and

(b)     Possessing the educational qualification and  experience prescribed for direct recruits under  column (8).  

(The 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).  

(Period 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).  

The 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.         We 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.           Similarly, in paragraph 4, clause (v), the petitioners  (respondents herein) stated as under: "(v.) 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 Rules.   It is 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.

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       Mr. Manoj 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 the Rules.           Learned 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.   According 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.            In the 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.