Judgment:
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22. 05.2015 + REVIEW PET.561/2014, 567/2014, 8/2015 IN W.P. (C) 7370/2010 UNION OF INDIA & ANR ..... Petitioners versus SUDHANSHU KUMAR KHARE & ORS ..... Respondents REVIEW PET.560/2014, 566/2014, 9/2015, C.M. Nos.20614, 20830/2014 IN W.P. (C) 7371/2010 BHUPINDER KUMAR & ORS. ..... Petitioners versus UNION OF INDIA & ORS. ..... Respondents Appearance: Mr. Ruchir Mishra, CGSC with Mr. Vikram Jetely, Mr. Mukesh Kumar Tiwari, Ms. Kritika and Ms. Astha, Advocates for UOI. Mr. Tarun Sharma with Ms. Boudh Prabha, Advocates for petitioners in W.P.(C)7371/2010 and for respondent nos.14,33,41, 47, 73 & 84 in W.P. (C)7370/2010. Mr. Siddharth Luthra, Sr. Advocate with Ms.Supriya Juneja and Mr. Viraj Gandhi, Advocates for review petitioner in Review Pet.560-561/2014. Mr. Naresh Kaushik with Ms. Amita Kalkal Chaudhary and Ms. Aditi Gupta, Advocates for UPSC. Mr. Sudhanshu Kumar Khare, Review petitioner in person. CORAM: HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J.
(OPEN COURT) Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 1 1. Heard counsel for the parties with consent.
2. The petitioner seeks review of the judgment of this Court pronounced on 17.11.2014 in W.P.(C)7370/2010 preferred by the Union of India and other connected matters, i.e., W.P.(C)7371/2010 & CM Nos.8140 & 8169/2014 filed therein. The writ petition had impugned the correctness of the view expressed by the Principal Bench of the Central Administrative Tribunal (“C.A.T.”
) in OA12812000 dated 1.7.2010. The question which engaged the attention of the C.A.T. and later this Court was the inter se seniority of promotees and direct recruits in the Central Bureau of Investigation (“C.B.I.”
). For this purpose, the C.A.T.-. as well as this Court had to examine the Special Police Establishment (Executive Staff) Recruitment Rules, 1963 and certain other rules made and brought into force from time to time including the Special Police Establishment (Executive Staff) Amendment Rules, 1972; amendments made on 31.03.1987 and the amendments made in 1997. The CAT had rendered findings accepting the direct recruits‟ contentions that in the absence of any power to relax, the placement of the direct recruits en bloc junior to the promotees and the filling up of posts created without applying the quota rota rule was unsupportable in law. The promotees and Union of India had, therefore, approached this Court in the two writ petition.
3. The CBI had published a seniority list of Deputy Superintendent of Police (DSPs) on 6.8.1999 as on 1.1.1999. This was impugned by the direct recruits who had joined the cadre sometime between 1996 & 1998, as against 20% quota. The Rules Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 2 of 1987 required the cadre of DSPs to be filled inter alia in the ratio of 50% by transfer, 30% by promotion and 20% by direct recruitment. The grievance of the direct recruit DSPs was that promotions had been made without nexus to the quota prescribed. As part of this submission, the direct recruits had contended that the creation of several posts and their diversion for the purposes of filling through promotion was contrary to rules. It was also argued by the direct recruits that in the absence of any express power to relax the conditions prescribed by the rule making authority (unlike in the 1996 Rules which contains such prescription), the Union of India was powerless and had to follow the dictat of the rules. In other words, it was the positive case of the direct recruits that the Union could not have deviated from the Rules in the rigid application of quota rota rules for determining seniority. The CAT initially rejected the direct recruits‟ application but was later called upon to undertake a detailed scrutiny, which it did after remand through the order impugned in the writ petitions before this Court.
4. Various contentions were made by the parties; these were in respect of, firstly, the power of the Union Government to relax the conditions stipulated by the Rules; secondly, the creation and diversion of a large number of posts and thirdly, that the exact number of direct recruit posts were under-reported leading to adverse consequences that ultimately ruled upon the direct recruits‟ seniority and the erroneous placement of the direct recruits en bloc junior to the promotees of subsequent years.
5. The Court by its judgment dated 17.11.2014 dealt with all the Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 3 contentions of the parties and rendered findings against the direct recruits. In the course of its reasoning, the Court had relied upon the ruling of the Supreme Court in Union of India v. N.R. Parmar, (2012) 13 SCC340 By that judgment, the Supreme Court had the occasion to consider and elaborately discuss the effect of various extant Circulars or Office Memoranda, i.e., OM dated 22.12.1959; 7.2.1986, 3.7.1986 and 3.3.2008. By the final judgment, the Court after appreciating the ratio in Parmar (supra) was of the opinion that no fault could be found with the seniority list questioned by the direct recruits. It, therefore, reversed the CAT‟s decision.
6. In this review proceeding, the direct recruits contend that the judgment sought to be reviewed facially discloses an error, in that, the Court even while applying the OM of 3.7.1986, especially paragraphs 2.4.2 and 2.4.4, completely overlooked the fact that the clarification issued on 3.3.2008 was held to be unconstitutional and directed to be set aside in Parmar (supra). It was contended that the result of the declarations in Parmar (supra) would be that direct recruits would have to be necessarily interspersed together with promotees appointed to the cadre of DSPs, atleast from the point of time that they were entitled to the posts having regard to the recruitment years when the advertisements were issued. To say so, the direct recruits pointed out and placed reliance upon the Notifications issued by the Union Public Service Commission („UPSC‟) on 24.12.1994, 14.12.1996 and 09.12.1995. It is submitted that the Union of India through the appropriate Departments and nodal Ministries had duly intimated the exact number of vacancies beforehand which led to the advertisement Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 4 being issued for the combined services examination which ultimately culminated into their appointment to the cadre as direct recruit DSPs.
7. Learned counsel for the Union of India and the promotees urged that the review sought is not called for. It is submitted that the clarification issued by the Central Government on 4.3.2014 by its OM, explaining the effect of the declaration in Parmar’s case (supra), is applicable only prospectively but not in this case where the seniority had been settled. It was urged that the operative directions in the judgment of this Court dated 17.11.2014 should not in any manner be disturbed. It was also highlighted that having lost on all substantial aspects such as the absence of power to relax, alleged illegal diversion of newly created posts to the quota of promotees etc, the direct recruits cannot now seek the relief which they never claimed.
8. It is apparent from Parmar’s case (supra) that the Supreme Court had clearly ruled the inapplicability of the clarification contained in the OM dated 3.3.2008. Equally it is apparent from the final judgment dated 17.11.2014 that this clarification/declaration about the inapplicability of 3.3.2008 OM escaped the notice of the Court when it finally upheld the seniority, in the manner that it did in the judgment. The effect of Parmar (supra) is that the clarification through the OM of 3.3.2008 with respect to paragraphs 2.4.2 and 2.4.4 of the OM of 3.7.1986 no longer hold the field. In other words, those two provisions of the OM of 3.7.1986 had to be applied in their own terms. The effect of these conditions can be summarised in two points. First, paragraph 2.4.2 mandates that in the event of the Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 5 number of promotees exceeding those direct recruits - both sources relatable to their respective quota - the first rule would be to rotate the vacancies to the extent of availability of either source. This is elaborated upon by way of an illustration or an example in the very same condition, i.e., paragraph 2.4.2. The second rule - important for the purpose of this proceeding - is spelt out in paragraph 2.4.4 which is that under-reporting or suppressing of vacancies would be frowned upon and that promotees could be treated as regular “only to the extent to which direct recruit vacancies are reported to recruitment authorities on the basis of the quotas prescribed in the relevant recruitment rules”. A joint application of paragraph 2.4.2 and 2.4.4 would mean that to the extent of filling up of available personnel of either source in the cadre, the rotation of vacancies according to Rules, is mandatory. While working out such rotation, the question of reporting is relevant to ascertaining as to when the vacancies were notified to the recruitment agency - in this case the UPSC. Whereever officers from one source are not available to the extent of what is provided in their quota, the recruits/promotees “left over” have to be bunched together to the extent they are promoted/appointed, at the end in the available slots.
9. If the above understanding were to be appropriately given effect to, in the given circumstances of the case, the sequitur would be that from the date or time when direct recruit vacancies were notified by the recruitment agency, i.e., the UPSC, the quota would get fixed to the extent they were ultimately filled, for the purposes of reckoning seniority. Having ascertained that position, the mandate of paragraph Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 6 2.4.2 would have to be worked out and the rotation of vacancies in the seniority list in question dated 6.8.1999 would have to be necessarily made.
10. In the light of the above discussion, the Review Petitions have to succeed and are allowed to the limited extent indicated in the preceding paragraph. The Union of India is hereby directed to undertake the review to the extent indicated and give effect to the quota rule embodied through the 1987 amendment so as to rotate the vacancies available for the period 1994-95, 1995-96 and 1996-97 onwards as between the two sources duly interpolating them.
11. It is clarified that no adverse impact by way of reversion or recovery of pay, pension or allowances would be given effect as a result of the directions contained in the present order. Equally, consequential benefits wherever admissible would also be given to the direct recruits concerned.
12. The Review Petitions are partly allowed in the above terms. S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) MAY22 2015 /vikas/ Review Pet. Nos.561, 567/14, 8/2015, 560, 566/14 & 9/15 Page 7