Union of India (UOI) and Others vs K.B. Rajoria

Ruma Pal, J.—Leave granted. The undisputed facts are that the Appellant No. 4 was , ly promoted to the post of Director General (Works) Works Department with effect February, 1995. The notica was given by an order dated 1998 in terms of instruction the DPT''s O.M. No. 22011/06 dated 10th April, 1989 as time to time.

In the meanwhile on 1st July 1997, the post of Director General, (Works) CPWD fell vacant. The mode of selection to the post has been laid down in the Central Public Works Department (Director General of Works) Recruitment Rules, 1986, which were amended on 23rd March 1992 by the Central Public Works Department (Director General of Works) Recruitment (Amendment) Rules, 1992. The amendment came into force on 4th April 1992. The Schedule to the Rules (referred to hereinafter as the said Schedule) provides that the post of Director General (Works) is a selection post to be filled up by promotion from amongst, inter-alia, ''Additional Director General (Works) with two years'' regular service in the grade.

Since Krishnamoorti had been granted notional promotion to the post of Additional Director General on 10.6.98 w.e.f 22nd February 1995, his name was considered for the post of Director General when the Departmental Promotion Committee met in January, 1999.

Shri K.B. Rajoria (the Respondent No. 1 before us) filed an application before the Central Administrative Tribunal claiming that he was also eligible to be considered for the post of Director General. According to Rajoria, if the Department Promotion Committee had been held in 1995-96, he could have been appointed to the post of Additional Director General which had fallen vacant on 1.5.1995. His case was that he too should have been given notional promotion with effect from 1.5.95 in which case he would have also been eligible for promotion to the post of Director General. Rajoria claimed that he had been unfairly discriminated against because only Krishnamoorti was being considered for the post of Director General. It was however made clear before the Tribunal that Rajoria was not challenging the eligibility of Krishnamoorti to be considered but was only seeking consideration of his own case along with Krishnamoorti for the post of Director General.

The Tribunal dismissed the Respondent No. 1''s application on 12th May 1999. The Respondent No. 1 challenged the decision of the Tribunal before the High Court under Article 226 of the Constitution.

The High Court held that neither the Respondent No. 1 nor Krishnamoorti were eligible on the cut off date i.e. 1st July, 1997 for promotion to the post of Director General. According to the High Court the words ''regular service'' in the Rules means actual service and that the fiction of notional promotion could not amount to the two years'' experience necessary under the Rules. The High Court was of the view that the notional seniority to Krishnamoorti by the order dated 10th June 1998 was no substitute for the requirement of two years, regular service as Additional Director General (Works) which had been laid down in the relevant rules as the eligibility criteria for promotion to the post of Director General (Works).

In our view, the High Court''s decision cannot be sustained. First, the concession of Rajoria before the Tribunal that he was not challenging the eligibility of Krishnamoorti to be considered for promotion was overlooked.

Second, the High Court erred in not dismissing the writ petition on the ground of the obvious lack of locus standi in Rajoria who had never been granted notional promotion because the DPC was not in tact held for reasons which the High Court felt were unavoidable. Rajoria''s case was built on hypothetical situations, and his position could not reasonably be equated with that of Krishnamoorti.

Third, the High Court erred in construing the words ''regular service in the grade'' as actual physical service. If that were so, then an ad hoc appointee who actually serves in the post could also claim to be qualified to be considered for the post of Director General. The High Court itself held that "ad hoc service rendered by any of the parties would not count towards eligibility".

Finally, while considering the definition of the word ''regular'' in the Concise Oxford Dictionary, Ninth Edition, the High Court noted that it meant:

(1) conforming to a rule or principle, systematic; (2) harmonious, symmetrical; (3) acting or done or recurring uniformly or calculably in time or manner, habitual, constant, orderly; (4) conforming to a standard of etiquette or procedure, correct, according to convention; (5) properly constituted or qualified, not defective or amateur, pursuing an occupation as one''s main pursuit.

The word "regular" therefore does not mean "actual" and the first question the High Court should have considered was whether the appointment of Krishnamoorti was regular and in accordance with the Rules or was it irregular in the sense that it was contrary to any principle of law?

The decision which is somewhat apposite is the case of K. Madhavan V. Union of India 1987 (4) SCC 566 where the eligibility requirement was eight years in the grade ''on a regular basis''. In that case it was held:

In our view, therefore, the expression ''on a regular basis'' would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc of purely temporary basis.

It is nobody''s case tional promotion granted to was ''irregular''. By giving promotion as Additional Direct. with effect from 22.2.95 Krish was in fact regularly appointed on that date.

The next question which have been considered was of the word ''service'' in the relevant rules.

The Office Memorandi to in the order dated 10th June in terms of which notional pro granted to Krishnamoorti coptar provisions of which one is reley purposes:

18.4.3. If the officers place to the officer concerned promoted, he should be pro immediately and if there is the junior-most person official higher grade should be rever commodate him. On promotion should be fixed under F R at it would have reached, had promoted from the date the mediately below him was purpo no arrears would be admissions seniority of the officer would mined in the order in which on review, has been placed select list by DPC. If in any a minimum period of qualifying is prescribed for promotion . grade, the period from which placed below the officer concerned the select list was promoted higher grade, should be towards the qualifying period for the purpose of determi eligibility for promotion to higher grade.

Analysed these instructions

(i) For the immediate pro a person who has been supe

(ii) Upon such promotion his pay should be fixed at the stage at which it would have reached had he been promoted from the date that the junior officer was promoted.

(iii) The seniority of such nationally promoted officer would be determined according to the select list prepared by the DPC if a minimum period is prescribed.

(iv) For the further promotion of Such notoinally promoted officer, his eligibility would be calculated as including the period from which the junior officer was promoted.

Krishnamoorti was admittedly super- by Shri S.R. Goyal, a junior officer on 22nd February, 1995, when S.R. was promoted to the post of Additional Director General (Works), in terms of the provisions of para 18.4.3, Krishnamoorti was entitled to count the period from 22 2.95 as the period of qualifying service the purpose of further promotion to the post of Director General.

The distinction drawn by the High Court between the word ''service'' used in the eligibility criteria in this case and the words ''qualifying service'' in para 18.4.3 is specious. The Notes to the eligibility criteria as set out in the said schedule fortify this view. Notes 1 and 2 to the said schedule clarify the position with regard of the calculation of "two years regular service in the grade".

(1) The eligibility list for promotion shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grades/posts.

(2) If a junior with the requisite years of service is considered, the senior will also be considered notwithstanding the fact that he does not possess the requisite years of service.

(emphasis added)

Note I leaves no room for doubt that the word "service" means "qualifying service", and Note 2 makes it clear that in case of supersession actual service for the prescribed period is not required. This is in keeping with para 18.4.3 of the O.M. quoted earlier. As the notional date of promotion of Krishnamoorti was 22.2.95 he was eligible to be considered for the post of Director General in 1999.

In the context of this case, the High Court erred in equating the words ''regular service'' with ''actual experience'' relying on the decision in Union of India and others V. M. Bhaskar and Others 1996 (4) SCC 416. In that case the eligibility criteria expressly was of "completion of 2 years'' experience in Grade II" The case is therefore entirely distinguishable.

The national promotion was given to Krishnamoorti to right the wrong that had been done to him by his supersession on 22nd February, 1995. If Krishnamoorti is denied the right to be considered for promotion to the post of Director General on the basis of such notional promotion, particularly when the relevant provisions so provide, it would result in perpetuating the wrong done to him. That is exactly what the High Court has done. We, therefore, allow the appeal and set aside the impugned order of the High Court, in so far as the finding regarding Krishnamoorti was concerned.

There will be no order as to costs.