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Vipin Sanghi, J.—The issue that arises for consideration in the present writ petition is, whether the promotion to vacancies which have arisen prior to coming into force of the amended Recruitment Rules are to be governed by the unamended Recruitment Rules or by the amended Recruitment Rules? The Central Administrative Tribunal, Principal Bench, New Delhi (for short ''The Tribunal'') has taken the view that such vacancies would be filled with application of the unamended Recruitment Rules.
Petitioners herein, who were respondents before the Tribunal are aggrieved by the said decision of the Tribunal, and have preferred the present writ petition under article 226 of the Constitution of India to challenge the order of the Tribunal dated 8th February, 2006 passed in OA No. 1917/2005 filed by the respondents before us.
Respondents, who are nine in number, are employed as Lab. Assistants/Observers (a Group ''D'' post in the pay scale of Rs. 975-1540) with the petitioner. At the relevant time, the India Meteorological Department (Group ''C'' and Group ''D'' posts) Recruitment Rules, 1987, as amended by India Meteorological Department (Group ''C'' and Group ''D'' posts) Recruitment (Amendment) Rules, 1995 were in vogue. Under the said Rules, 10% of the vacancies in the post of Senior Observer (a Group ''C'' post in the pay scale of Rs. 1320-2040) were filled by Lab. Assistants/Observers having at least 5 years regular service.
Petitioners claim to have rendered regular service for 5 years or more as Lab Assistants/Observers and to have become eligible for being considered for promotion to the post of Senior Observer between 1999 and 2002. The 5th Central Pay Commission Report, which was accepted by the Government of India, trifurcated the cadre of Lab. Assistants into three cadres of: (i) Lab. Assistant Grade III (in the pay scale of Rs. 3200-85-4900), (ii) Lab. Assistant Grade II (in the pay scale of Rs. 4000-100-6000), and (iii) Lab. Assistant Grade I (in the pay scale of Rs. 4500-125-7000). The Senior Observers were given the replacement scale of Rs. 4000-6000, which was upgraded to Rs. 5000-8000. The Commission also recommended that the post of Senior Observer be filled entirely by Direct Recruitment i.e. to the extent of 100%. This obviously meant that the Lab. Assistant/Observers would loose the chance to seek promotion to the post of Senior Observer which they were entitled to under the Recruitment Rules of 1987, as amended in 1995 referred to above.
To implement the changes as contained in the 5th CPC Report, it was essential that the relevant Recruitment Rules were amended. While the aforesaid statutory Recruitment Rules of 1987, as amended in 1995 were still in force, the Department of Personnel & Training (DOP&T), in the Ministry of Personnel, Public Grievances and Pension issued OM dated 25th May, 1998 bearing No. AB-14017/2/97/Estt-RR.
Para iii, 4 & 5 of the said OM being relevant are reproduced herein-below:
(iii) Where there is an up gradation of posts
In some cases the Fifth Pay Commission has recommended a higher Pay scale and not equated revised scale. Further, in certain cases the recommendations of the Pay Commission are subject to fulfillment of specific conditions e.g. changes in Recruitment Rules, restructuring of cadres, redistribution of posts etc. As per guidelines issued by the DOP&T, whenever it has been decided to upgrade any post action should be taken by the Administrative Ministry/Department concerned to reframe the Recruitment Rules therefor "As the eligibility criteria for direct recruitment or promotion or deputation, etc to the higher post will be different from those prescribed for a post on a comparatively lower scale, it will be necessary to review the relevant columns of the existing Recruitment Rules for the post for which an upgraded revised scale has been approved and to prescribe age limits, qualifications, experience and eligibility service for promotion/deputation appropriate to the higher level. Such revision should, however, be undertaken in respect of only those pay scales which have already been approved by the government and notified or the eligibility as prescribed has undergone a change. Pending revision of the Recruitment Rules with reference to the pay scale as approved by the Government, the existing rules for the lower pay scale may not be operated.
(emphasis supplied).
The Recruitment Rules/Service Rules are of statutory nature. Therefore, the changes brought out by other relevant instructions have to be incorporated in the Recruitment Rules/Service Rules by suitable amendments so that necessary steps like holding of DPC etc are taken to fill the posts carrying the revised scales, particularly merged scales, on regular basis. All the ministries/Departments are, therefore requested to effect necessary amendments to the Recruitment Rules/Service Rules notified by them after following the normal procedure of furnishing proposals to the Department of Personnel and Training and the UPSC in the format (Annexure-III) prescribed in the general guidelines on recruitment rules circulated vide the DOP&T O.M. No. 14017/12/87-Estt(RR) dated on the 18th March, 1998 and also in consultation with the Legislative Department.
In view of the urgency for amending the Recruitment Rules/Service Rules on the above lines, it is expected that Ministries/Departments would complete the review in this regard and furnish necessary amendment proposals to the Department of Personnel and Training/the Union Public Service Commission in the case of Group ''A'' and ''B'' posts within two months from the date of issue of this Office Memorandum. Simultaneously, they will, no doubt, be taking similar action for amending the recruitment rules for Group ''C'' and ''D'' posts, which is within their competence under the delegated powers.
Following the aforesaid OM, the petitioner did not fill up the vacancies in the cadre of Senior Observer from amongst the eligible Lab. Assistants/Observers, in contemplation of amending the Recruitment Rules to comply with the recommendations of the 5th Central Pay Commission. A substantial number of vacancies in the post of Senior Observer came into existence due to promotions effected from the post of Senior Observer to the post of Scientific Assistants. Two such orders of promotion dated 23rd August, 2002 and 30th June, 2003 in respect of 108 and 34 Senior Observers/Draftsman respectively have been placed on record.
In exercise of its powers under Article 309 of the Constitution of India, the Government framed new rules, called the Ministry of Science and Technology (India Meteorological Department) Senior Observer Recruitment Rules, 2003 on 17th July, 2003 superceding the India Meteorological Department (Group ''C'' and Group ''D'' posts), Recruitment Rules, 1987. By virtue of these rules, the only method of recruitment to the post of Senior Observer as prescribed was by direct recruitment. The petitioner, thereafter, issued an order dated 5th April, 2005 which stated that the respondents were being appointed as Lab Assistants Grade II (in the pay scale 4000-100-6000) from the post of Lab Assistants Grade III. The respondents being aggrieved by their being denied consideration for promotion to the post of Senior Observer approached the Tribunal complaining about the failure of the petitioner in making promotion to the post of Senior Observer despite there being a large number of vacancies from 1999 onwards and merely promoting them as Lab Assistant Grade II vide order dated 5th April, 2005.
As noticed above, the Tribunal allowed the Original Application by setting aside the order dated 5th April, 2005 promoting the applicants/respondents herein from the post of Laboratory Assistant, Grade III to Lab Assistant Grade II and directed the petitioner to convene a review DPC and consider the case of the applicants year wise, for the vacancies and in terms of the Recruitment Rules that were in existence prior to the Rules framed in 2003 and consider their cases with reference to the date of their eligibility for promotion to the post of Senior Observers and pass appropriate orders within four months from receipt of the order.
Before us, the petitioner is assailing the order of the Tribunal by placing reliance on O.M. dated 25th May, 1998 which stated that the existing Recruitment Rules be not operated, pending the revision of the Recruitment Rules. It is further contended by learned counsel for the petitioner that the respondents had no vested right to be considered immediately when the vacancy arose in the promotional post.
We are not impressed with either of the arguments of learned counsel for the petitioner. By issuing the O.M. dated 25th May, 1998 instructing that "Pending revision of the Recruitment Rules with reference to the pay scale as approved by the government, the existing rules for the lower pay scale may not be operated", the then prevalent Recruitment Rules could not have been overriden. The Rules of 1987 as amended in 1995 are statutory in character, having been framed under Article 309 of the Constitution of India. Executive instruction in the shape of an Office Memorandum cannot supercede or override the Rules. We many only refer to Dr. Rajinder Singh Vs. The State of Punjab and Others, , wherein the Hon''ble Supreme Court has observed:
The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution.
It would be seen from the language of O.M. dated 25th May, 1998, that the new Recruitment Rules were required to be drawn up without any delay and in a matter of months. The petitioner took its own sweet time and brought the new Rules into force only in July 2003. Had the Rules been amended in 1998 or even in early 1999, the present situation, which has seen the respondents stagnate, could have been avoided.
It is settled position in law, and the same has been rightly noticed by the Tribunal, that vacancies which occur prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. The Tribunal has quoted from para 9 of the judgment of the Hon''ble Supreme Court in B.L. Gupta and Another Vs. M.C.D., , and we would like to do the same as well. The relevant extract from this decision reads:
When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, . In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, , P. Ganeshwar Rao and Others Vs. State of Andhra Pradesh and Others, and A.A. Calton Vs. Director of Education and Another, , it was held by this Court that the vacancies which had occurred prior to the amendment of the rules would be governed by the old rules and not by the amended Rules.
We also agree with the distinction drawn by the Tribunal between a case, where there are no existing Recruitment Rules and only draft rules exist and which are operated upon to make the recruitments, and, a case like the present where statutory rules are in existence and the amendment to those existing rules is in a draft stage. While in the former case, the draft rules could be validly operated, in the latter case, the pre-existing statutory rules could not be overriden by draft amendment rules.
It is true that the respondents have no right to be considered for promotion as soon as a vacancy arises. At the same time, it is also settled law, and there are administrative instructions to that effect as noticed by the Tribunal, which stipulate that the aspect of promotion should be dealt with expeditiously. In any event, the claim of the respondents is not based on the said principle. It is, as noticed above, based on the rule stated in B.L. Gupta (supra). Whenever the vacancies may be filled, the said rule would apply. We see no infirmity with the well reasoned order of the Tribunal and therefore decline to interfere with the same. Dismissed.