1. Validity of Regulation 4 of the Central Secretariat Service Section Officers' Grade/Stenographers Grade 'B' (Limited Departmental Competitive Examinations) Regulations, 1964 is questioned in the present O.A., besides seeking a declaration that Grade 'C Stenographers of Central Secretariat Stenographers' Service (hereinafter referred as CSSS) are not eligible for appearing in the Central Secretariat Service Section Officers Grade (Limited Departmental Competitive Examination) with all consequential benefits.
2. Applicant No. 1 is an Association of directly recruited Assistant in the Central Secretariat Service, while applicant Nos. 2 to 5, members of Applicant No. 1 Association, were recruited as Assistants during the years 1990-1994. The basic grievance is that the Regulation 4 of 1964 Regulations travels beyond the 1962 Rules and the said regulation being a subordinate Regulation under the 1962 Rules, could not travel beyond the parent Rules of 1962. The Central Secretariat Service Rules, 1962 were framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution, while the Central Secretariat Service Section Officers' Grade (Limited Departmental Competitive Examination) Regulations, 1964 were framed in pursuance of the provisions of sub-para (2) of Paragraph 2 of the Fourth Schedule to CSS Rules, 1962.
The 1962 Rules did not either explicitly or implicitly provide for entry of Grade 'C Stenographers into Section Officers' grade of Central Secretariat Service. The Grade 'C Stenographers of CSSS have been made eligible in the Limited Departmental Competitive Examination for promotion as Section Officers in contravention of 1962 Rules. The inclusion of Stenographers Grade 'C in the 1964 Regulation is hit by substantive ultra vires and is not sustainable in the eyes of law besides being violative of Articles 14 and 16 of the Constitution of India.
Misc. Application No 1246 of 2005 has been allowed under Rule 4(5)(b) of the C.A.T. (Procedure) Rules, 1987 for joining together in the present O.A. Since there is no objection to this aspect, the said M.A.is allowed.
3. The respondents contested the claim laid and raised two preliminary objections, namely, that the O.A. is not maintainable being time barred and also because of non-joinder of necessary parties who are going to be affected. On merits, it is contended that the Central Secretariat Service (hereinafter referred as CSS) is one of the three Secretariat Services, other two being Central Secretariat Stenographers Service (hereinafter referred to as "CSSS") and Central Secretariat Clerical Service (hereinafter referred to as "CSCS"). Presently, CSS consists of the following five grades: S. No. Grade Scale of Pay ____________________________________________________________________________________ (i) Senior Selection Grade (Director) Group'A'** Rs. 14300-18300 (ii) Selection Grade (Deputy Secretary) Group 'A' Rs. 12000-16500 (iii) Grade-I (Under Secretary) Group'A' Rs. 10000-15200 (iv) Section Officer Group'B'(Gazetted) Rs. 6500-10500 (v) Assistant Group'B'(Non-Gazetted) Rs. 5500-9000 ____________________________________________________________________________________ **Introduced consequent upon cadre restructuring of CSS vide Order dated 28th October, 2003.
4. While the grades of Director, Deputy Secretary and Under Secretary are centralized, the other two grades, namely, Section Officer and Assistants are decentralized into 33 cadres comprising one or more Ministries/Departments as mentioned in the rules, namely, Rule 5 of the CSS Rules, 1962. The mode of recruitment/promotion to the post of Section Officer, as per the Rule is 20% by direct recruitment from Civil Services Examination conducted by the UPSC, 40% by promotion quota on the basis of seniority-cum-fitness from Assistants' grade of CSS and remaining 40% based on Limited Departmental Competitive Examination conducted by the UPSC from Assistants of CSS and Stenographers Grade 'C of CSSS. It is further stated that consequent to the cadre restructuring of CSS vide order dt. 28th October, 2003, the mode of recruitment/promotion to the post of Section Officers of CSS is as under:________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 5. The zone of promotion is specified by the nodal Ministry, i.e.
Department of Personnel and the cadre authorities are requested to send list of eligible Assistants covered under the zone thus fixed for inclusion in the said list. The Assistants covered in the zone and found fit by the Departmental Promotion Committees are promoted against the existing seniority quota vacancies in the respective cadres and the unadjusted/remaining Assistants arc included in a Central Panel in the order in which they figure in the SCSL of Assistants prepared for the purpose of promotion in accordance with Regulation 3 of the Central Secretariat Service (Preparation of Common Seniority List) Regulations, 1970. Rule 13 of the CSS Rules, 1962 prescribe the procedure for recruitment to the Section Officers' and Assistants' Grade.
6. The Fourth Schedule of the CSS Rules, 1962 provides for constitution and maintenance of the Select Lists for the Section Officer grade of CSS. It provides that addition to the Select Lists for Section Officer Grade, in any cadre, shall be made in such numbers as the cadre authority may determine from time to time keeping in view the existing and anticipated regular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified in Regulations 2(1)(a) and 2(1)(b). While Regulation 2(1)(a) provides for inclusion of officers of Assistant Grade in the Grade of S.O. who have rendered not less than 8 years' approved service in that grade and are within the range of seniority, subject to rejection of the unfit.
While Regulation 2(1)(b) provides for inclusion of persons selected on the basis of result of the LDCE held by the UPSC from time to time in the order of their merit. Regulation 2(2) provides for the rules for holding the LDCE which is further determined by the CSS SOs' Grade/Stenographers' Grade 'B' (Limited Departmental Competitive Examinations) Regulations, 1964 as laid down under the provisions of the Fourth Schedule to the CSS Rules. As per the aforesaid Regulations, any permanent or temporary officer of the Assistants Grade of the CSS or Grade 'C of the Central Secretariat Stenographers' Service who, on the crucial date, satisfies the prescribed conditions is eligible to appear in the LDC Examination for promotion to the grade of Section Officer.
It is further stated that Regulations, 1964 framed under the authority of the CSS Rules, 1962 stand to supplement the rules with no intention of overriding the same. The Committee on Cadre Restructuring of CSS, which submitted its report in February 2002, examined the issue of stoppage of lateral entry of Stenographers into CSS, in detail. The Committee recommended for stoppage of lateral entry of Stenographers of CSSS into CSS both at the level of Section Officer as well as Under Secretary. However, the Government deferred a final decision in the matter and decided to constitute a 'Group of Officers' for cadre restructuring of CSSS. On the basis of the recommendations of the 'Group of Officers', the Government had considered the same and, inter-alia, the following decisions were taken vide order dated 27.07.2005: Sub. Lateral entry of Stenographers belonging to CSSS in the Grades of Section Officer and Under Secretary of CSS. The Government had set up a 'Group of Officers' on Cadre Structure of Central Secretariat Stenographers Service (CSSS), in October, 2003. The Group submitted its report in February, 2004. The Report of the 'Group' has been considered by the Government and inter alia the following decisions have been taken; (i) To discontinue the lateral entry of CSSS officers into Central Secretarial Service (CSS) at the level of Under Secretary of CSS. (ii) To allow only those Stenographer Grade 'C who are graduates to participate in the Limited Departmental Competitive Examination for the Section Officer's Grade of CSS. 2. Necessary notification relating to amendment to the CSS Rules will be issued Since the CSS Rules are statutory in nature, the Regulations made thereunder have the same statutory force. The provision of lateral entry of Stenographer 'C in the SOs' Grade LDCE is in accordance with the statutory CSS Rules, 1962 and the applicants' allegation is totally unfounded and baseless.
7. The applicants while submitting a detailed rejoinder controverted the plea raised by the respondents and reiterated the submissions made in the OA.8. We have heard the learned Counsel for the parties at length and perused the pleadings carefully.
9. To appreciate the controversy in question, it would be expedient to notice the relevant portion of the 1962 Rules, and 1964 Regulations framed thereunder, which reads as under: THE CENTRAL SECRETARIAT SERVICE SECTION OFFICERS' GRADE/STENOGRAPHERS' GRADE 'B' (LIMITED DEPARTMENTAL COMPETITIVE EXAMINATIONS) REGULATIONS, 1964 4. Conditions of Eligibility-Any permanent or temporary officer of the Assistants' Grade of the Central Secretariat Service or of Grade C of the Central Secretariat Stenographers' Service who, on the crucial date, satisfies following conditions, shall be eligible to appear at the examination: In exercise of the powers conferred by the proviso to Article 309 of the Constitution and all other powers enabling him in this behalf the President hereby makes the following rules, namely:xxx xxx xxx (e) "cadre" means the group of posts in the Grades of Section Officer and Assistant in any of the Ministries or Offices specified in Column (2) of the First Schedule and in all the Offices specified against such Ministry or Office in Column (3) of that Schedule;xxx xxx xxx (g) "Cadre officer' in relation to the Section Officers' Grade or the Assistants' Grade means a member of the Service of the Section Officers' Grade or Assistants' Grade, as the case may be, and includes a temporary officer approved for long term appointment to that Grade; (hh) "Common seniority list" in relation to any Grade means the seniority list of officers of that Grade serving in all the cadres specified in the First Schedule as on the appointed day and revised from time to time in accordance with the regulations to be framed in this behalf by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions; (j) "duty post' in relation to any Grade means a permanent or temporary post of that Grade and shall, in relation to Grade I and the Section Officers' Grade, include the posts specified in Column (2) and (3) respectively of the Second Schedule in respect of the offices specified in Column (1) of that Schedule; (k) "Grade" means any of the Grades specified in Rule 3;(l)-(o) xxx xxx xxx (oo) "range of seniority" in relation to any grade means the range specified by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions in the common seniority list for that grade for additions to Select List or for temporary promotions, as the case may be;xxx xxx xxx (q) "Select List" in relation to the Selection Grade and Grade I or the Section Officers' Grade and the Assistants' Grade means the Select List prepared in accordance with the regulations made under Sub-rule (4) of the Rule 12 or under the regulations contained in the Fourth Schedule, as the case may be; xxx xxx xxx 3. Commission of the Service--(1) There shall be four grades in the Service classified as follows, namely: (i) Selection Grade (Deputy Secretary Central Civil Service Group to the Govt. of India or equivalent) 'A' Ministerial 10. Duty posts to be held by cadre officers---Every duty post in a cadre shall, unless declared to be excluded from the cadre under Rule 7, or held in abeyance for any reasons, be held by a cadre officer of the appropriate Grade.
Provided that, subject to such instructions as the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions may, from time to time issue, officers of Grade A of the corresponding Cadre of the Central Secretariat Stenographers' Service, who have rendered not less than two years' service in that Grade may be posted to duty posts in the Section Officers' grade and officers of Grade C Stenographers' of the corresponding Cadre of the Central Secretariat Stenographers' Service who have rendered not less than five years service in that grade may be posted to duty posts in the Assistant's Grade, the period of such appointment in earlier case being limited to two years. Officers of the corresponding cadre of the Central Secretariat Stenographers' Service so appointed to duty posts in the Section Officers' and Assistants' Grade shall continue to draw the grade pay admissible to them in that service from time to time.xxx xxx xxx 13. Recruitment to the Section Officers' and the Assistants' Grade--(1) Section Officers Grade--Twenty per cent of the regular vacancies in the Section Officers' Grade in any cadre shall be filled by direct recruitment on the basis of the result of a competitive examination held by the Commission for this purpose, from time to time. The remaining vacancies shall be filled by appointment of persons included in the Select List for the Section Officers' Grade. Such appointments shall be made in the order of seniority in the Select List except when for reasons be recorded in writing, a person is not considered fit for such appointment on his turn: Provided that if sufficient number of candidates are not available for filling up the vacancies in a cadre in any recruitment years, either by direct recruitment or by appointment of persons included in the Select List for Section Officers' Grade, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the next recruitment year; Provided further that no such unfilled vacancies shall be carried forward for more than two recruitment year beyond the year to which the recruitment relates, where after the vacancies if any, still remaining unfilled belonging to one mode of recruitment shall be transferred as additional vacancies for the other mode of recruitment.
(2) Temporary vacancies in the Section Officers' Grade in any cadre shall be filled by the appointment of persons, included or approved for inclusion in the Select List for the Section Officers' Grade in that cadre and any vacancies remaining unfilled thereafter shall be filled from among the officers of the Assistant Grade who have rendered not less than 8 years approved service in the grade and are within the range of seniority, on the basis of seniority subject to the rejection of the unfit: Provided that where an officer of the grade of Assistant is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned.
Provided further that if officers within the range of seniority are not available in a cadre for promotion, the appointment shall be made/ram a panel, furnished by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions of such officers serving in the other cadres.
(5) For the purpose of Sub-rules (1) and (2) a Select List for the Section Officers' Grade shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule.xxx xxx xxx (8) For the purpose of Sub-rule (6) a Select List for the Assistants' Grade shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule.
23. Regulations.--The Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions may make regulations, not inconsistent with these rules to provide for all matters for which provision is necessary or expedient, for the purpose of giving effect to these rules.
Regulations for the constitution and maintenance of the Select Lists for the Section Officers' and Assistants' Grade the Central Secretarial Service.
1. Constitution.--Officers borne on the Regular Temporary Establishment of the respective Grades immediately before the appointed day and allotted to a cadre under Rule 8 shall form the Select List for the concerned Grade for cadre, on such date.
2. Maintenance-(1) Additions to the Select List for the Section Officers' Grade in any cadre shall be made in such numbers as the cadre authority may determine from time to time keeping in view the existing and anticipated regular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified below, namely: (a) Officers of the Assistants' Grade in that grade who have rendered not less than eight years' approved service in that Grade and the within the range of seniority, in the order of their seniority, subject to the rejection of the unfit: Provided that where an officer of the Assistants' Grade is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned.
Second Proviso omitted vide Notification No. 21/14/97-CS.I dated 8th March, 1999.
(b) Persons selected on the results of the limited departmental competitive examinations, held by the Commission, from time to time, in the order of their merit.
(2) The rules for the limited departmental competitive examinations referred to in Clause (1) above shall be determined by regulations made by the department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions and the allotment of candidates from the results of these examinations to the various cadre shall also be made by the Department.
10. Before we proceed on merits, we wish to dispose of the two preliminary objections raised by the respondents. As far as impleadment of officials of Grade C, Central Secretariat Stenographers' Service is concerned, we find no cogent reasons and justification to countenance such contention as the law laid down on the subject is that necessary parties are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may noted that in the present O.A., the relief is sought only against the Union of India and the Ministry/Department concerned and not against any particular individual nor any seniority or appointment is claimed against any individual. At the best, the officials belonging to Grade C stenographers of CSSS are proper parties and not necessary parties and, therefore, their non-joinder would not be fatal to the present O.A. At this stage, we may note the observations of the Hon'ble Supreme Court in (1974) Vol. 4 SCC 335 The General Manager, South Central Railway, Secundrabad and Anr. v. A.V.R. Siddhantti and Ors., which read as under: 15. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition.
The said law has been reiterated in the 1983(3) SCC 601 : 1983(1) SLJ 564 (SC), A. Janardhana v. Union of India and Ors., 36. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant....However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to CM., South Central Railway, Secundrabadw. A. V.R. Siddhanti. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this Court observed that SCC para 15, p. 341 : SCC (L&S) p. 296 the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority to Government servants is assailed. In such proceedings, the necessary parties to be impleaded arc those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court.
To the similar effect, observations were made in 1992 Suppl 2 SCC 351, State of Himachal Pradesh and Anr. v. Kailash ChandMahajan and Ors. The aforcsaidlaw quarely applies in the facts and circumstances of the present case and therefore, we overrule such contention.
11. As far as the objection regarding limitation is concerned, it is necessary to point out that merely because there has been a long delay in challenging the validity of such Rules, cannot be a ground for negativing such challenge if it is otherwise well founded. If a rule made by rule-making authority is outside the scope of its power, it is void and it is not at all relevant that its validity has not been question for a long period of time. The Hon'ble Supreme Court in the case of Lohia Machines Ltd. and Anr. v. Union of India and Ors., (1985) 2 SCC 197 had observed as under: 13. But before we proceed to consider this question of interpretation, it is necessary to point out that at least so far as exclusion of all borrowed moneys including long-term borrowings from computation of the 'capital employed' is concerned, the position which prevailed right from April 1, 1949 to March 31, 1968 for a period of 19 years was that all borrowed moneys due from the assessee were excluded in computing the 'capital employed' and no one challenged such exclusion as being in conflict with either Section 15-C or Section 84. It is undoubtedly true that merely because for a long period of 19 years, the validity of the exclusion of borrowed moneys in computing the capital employed was not challenged, that cannot be a ground for negativing such challenge if it is otherwise well founded. It is settled law that acquiescence in an earlier exercise of rule-making power which was beyond the jurisdiction of the rule-making authority cannot make such exercise of rule-making power or a similar exercise of rule-making power at a subsequent date, valid. If a rule made by a rule-making authority is outside the scope of its power, it is void and it is not at all relevant that its validity has not been questioned for a long period of time; if a rule is void it remains void whether it has been acquiesced in or not. Vide Property Articles Trade Association v. A.G. for Canada, A.G.for Australia v. Queen.Shanti Devi v. State of U.P. and Ors., it was held as follows: 15. It is clear that a statutory duty is cast on the Collector to keep Section 154 in mind at the stage of confirmation of sale. If it is an objection as to non-application of mind to a provision statutorily relevant at the stage of confirmation, the objection cannot be treated as an objection relating to the irregularity or mistake at or before the stage of sale. That is why Rule 285-K will not come in the way.Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. 1997(7) SCALE 786 has dealt with a question of statute being justified when enacted but becoming arbitrary and unreasonable by passage of time.
Relying upon the earlier decision of the Supreme Court in State of Madhya Pradesh v. Bhopal Sugar Industries,Narotam Kishore Dev Varma and Ors. v. Union of India and Anr. (1994) 7 SCR 55; H.H. Shri Gwamiji ofShriAdmar Mutt, Etc. v. The Commissioner, Hindu Religious & Charitable Endowments Department and Ors., (1980) 1 SCR 368; Bhaiyalal Shukla v. State of Madhya Pradesh (1962) Suppl. 2 SCR 257; Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 3 SCC 386; and Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors.
The aforesaid decision clearly recognize and establish that a Statute which when enacted was justified may, with the passage of time, become arbitrary and unreasonable.
In View of the law noticed hereinabove, we over rule the objections raised by the respondents regarding delay in challenging the said rules.
13. On merits, Mr. A.K. Behra, learned Counsel for the applicants strenuously urged that the statutory Rules framed under the proviso to Article 309, namely, the Central Secretariat Service Rules, 1962 since did not explicitly or implicitly make the Grade 'C Stenographers of Central Secretariat Service Stenographers' Service eligible or feeder category for promotion to Assistants' grade, the Regulations framed under the aforesaid Rule cannot make them eligible and a feeder grade.
What is not provided under the statutory Rules cannot be supplemented by framing Regulations, which are in the nature of administrative guidelines. It is further contended that the law is well settled that the Government cannot amend or substitute statutory rules by administrative instructions, but if the rules are silent on a particular point, the Government can fill the gaps and supplement the rules by issuing instructions not inconsistent with the rules. It was further contended that Rule 23 of the aforesaid Rules, 1962 provides and confers a power upon the Department of Personnel and Training to make regulations, "not inconsistent with these rules" for the purpose of giving effect to the provisions of the said Rules. It was further urged that a perusal of Rule 10 would show that the Duty posts has to be held by the Cadre Officer, and Grade C stenographer could not hold the said post except for a short period of two years and that too subject to the conditions/instructions to be issued by the Department of Personnel and Training. As per Rule 13 of the Rules, the vacancies could be filled by appointment of persons included in the Select List.
Rule 13 nowhere makes Grade 'C Stenographers either eligible for promotion or treat them as feeder category. Regulations, 1964 which were framed under sub-para (2) of Para2 of Fourth Schedule of Rule 1962 is limited in scope as the said Para 2 confers a power upon the Department of Personnel to frame rules only "for the Limited Departmental Competitive Examinations" and not for prescribing eligibility. The posts which are not made eligible for promotion or feeder category under the 1962 Rules could not be made either feeder grade or eligible for Limited Departmental Competitive Examination.
14. It is vehemently contended that the respondents have clearly exceeded the parameter of the power conferred upon it in the matter by sub-para (2) of Para 2 of Fourth Schedule of 1962 Rules. Reliance was placed on 1994 Supp(3) SCC 340 : 1995(1) SLJ 68 (SC) T. Sham v. Union of India and Anr. to support the above contention. It would be expedient, at this stage, to notice Para 19 of the said judgment, which reads as under: Para 19. There can be no dispute that Rule 8(2) of the IAS Recruitment Rules empowers the Central Government to make regulations for selection of persons of outstanding ability and merit from among non-State Civil Service Officers of every State for appointment to the Indian Administrative Service. But what needs to be seen in the said context is, whether the Central Government which had in its IAS Selection Regulations permitted selection for appointment to the Indian Administrative Service, persons of outstanding ability and merit only from among non-State Civil Service Class I officers, if by enlarging such selection basis under Regulation 2 of the IAS Second Amendment Regulations by permitting selection for appointment to the Indian Administrative Service, persons from among non-State Civil Service Class II officers, had out stepped the parameters fixed therefor by the IAS Recruitment Rules. The IAS Recruitment Rules, as is specifically pointed out by us already, envisage selection for appointment to Indian Administrative Service, from non-State Civil Service officers who held posts comparable in importance and responsibility to that of the posts of Deputy Collectors and above in State Civil Service, that is from non-State Civil Service Class I officers and not from non-State Civil Service officers and not from non-State Civil Service officers who held posts of Assistant Regional Transport Officers or Senior Inspector of Motor Vehicles in Transport Department of a State, which were far inferior to that of the posts of Deputy Collectors in State Civil Service, such as, posts of Tehsildars or Deputy Tehsildars. If that be so, it cannot admit of any doubt that the Central Government which had made Regulation 2 of the IAS Second Amendment Regulations to make eligible for selection and appointment to the Indian Administrative Service from non-State Civil Service Class II officers, has done so clearly exceeding the parameters or authority conferred upon it in the matter by Rule 8 (2) of the IAS Recruitment Rules, itself. This circumstance and factual reality in itself is sufficient to expose and demolish the myth that non-State Civil Service Class II officers were brought into the pool of non-State Civil Service officers by the IAS Second Amendment Regulations by classifying them as officers belonging to common class along with non-State Civil Service Class I officers, for achieving the object of the IAS Recruitment Rules-- the object of selecting the officers of outstanding ability and merit for appointment to Indian Administrative Service. Even otherwise, when in the service set-up of non-State Civil Service Class II officers are unequals when compared with non-S tate Civil Service Class I officers, in important matters such as nature of posts held by them, duties and responsibilities to be discharged by them in such posts, scales of pay carried by such posts, it is difficult to comprehend how they can be put in a common class for judging their comparative ability and merit in their respective job performances in the context of their suitability for appointment to the Indian Administrative Service. What has been done by the IAS Second Amendment Regulations, if could be illustrated, is the same as pooling together a Senior Collector in State Civil Service and a Deputy Tahsildar in State Civil Service and make them a common class State Civil Service officers and ask the State Government to recommend the cases of either of them for appointment to Indian Administrative Service. No doubt, doing of such a thing by the Central Government appears to have been attempted, although later on, fortunately, given up obviously realizing that such thing if done could have the effect of demoralizing Class I officers in State Civil Service, since the same was bound to go against the accepted notions that it is only senior State Civil Service officers who could be considered for appointment to Indian Administrative Service and not officers in the lower rung. Hence, the classification of officers brought about by Regulation 2 of the IAS Second Amendment Regulations, is ex facie arbitrary, unreasonable and discriminatory and violates Articles 14 and 16 of the Constitution. Again Rule 6 of the IAS Recruitment Rules, when by making it clear that initial appointments to be made to Indian Administrative Service from both officers of State Civil and non-State Civil Service on senior time-scale of pay and not junior time-scale of pay on whichpersons directly recruited for that service would be appointed, demonstrates unequivocally that Class I officers, in State Civil Service and in non-State Civil Service already in senior scales of pay or in closer scales of pay and not Class II officers in State Civil Service and in non-State Civil Service, drawing salaries falling below junior scales of pay, classification done under Regulation 2 of the IAS Second Amendment Regulations to provide eligibility to non-State Civil Service Class I officers cannot but be arbitrary and unreasonable, as would attract the inhibition of Articles 14 and 16 of the Constitution.
15. Our attention was also drawn to Para 13 of the observation of the Hon' ble Supreme Court in the case of S.L. Sachdev and Anr. v. Union of Indian and Ors. 1981 SCC (L&S) 24 : 1981(1) SLJ 115 (SC), which reads as under: Government cannot issue a direction which in substance and effect, is inconsistent with the Rules or amounts to an amendment of the Rules made by the President under Article 309. The Recruitment Rules only provide for a classification on the basis of the length of service in the new Organization. Any directive, which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. In the present case the Government directive introduced an amendment to the Rules by prescribing one more test for determining whether UDCs drawn from the Audit Offices are eligible for promotion to the Selection Grade/Head Clerks Cadre.
16. Mr. A.K. Behra, learned Counsel also pointed out that the issue regarding lateral entry of CSSS Grade 'C to CSS has been considered by the Parliamentary Standing Committee of Ministry of Home Affairs and in its Eighty-Third Report, which was presented toRajyaSabhaon 19th December, 2001 as well as laid on the table of Lok Sabha on the said date, it was observed therein that the channels of promotion of CSS Assistants and Grade 'C Stenographers being different from each other, only CSS Assistants should be allowed to compete in the LDCE for CSS Section Officers. The relevant extract from the said report reads as under: 9.16 The V Central Pay Commission, having due regard to the fact that there is acute stagnation in the CSS at the level of Section Officer and Under Secretary to the grades of Under Secretary and Deputy Secretary as also the improved promotional prospects of Central Secretariat Stenographer Service (CSSS) Officers, in their own line, feels that a review of the existing promotion in terms of which CSSS Officers are allowed lateral entry into CSS is overdue.
The V Central Pay Commission accordingly has recommended at Para 45.37 (iv) that lateral entry of Private Secretaries to the grade of under Secretary should be discontinued.
9.17 The Committee is of the view that the V Pay Commission has made a commendable recombination to improve the service condition of the CSS. But the Ministry has so far not implemented the above recommendation of the Pay Commission. This Committee notes the grievance of the CSS Assistants as pointed out by CSS Forum with regard to their limited opportunity of promotion to Section Officers grade through Limited Departmental Competitive Examination (LDCE) to which Steno Grade 'C are not only allowed to compete with the CSS Assistant for promotion to Section Officer grade, but also allowed to compete with fellow Grade 'C Stenos in the Limited Departmental Competitive Examination for promotion to Private Secretary Grade.
The Committee is, therefore, of the view that this is an unfair against the CSS Assistants. The Steno Grade 'C officers are apparently enjoying double advantage of promotion in their own cadre as well as in Section Officers grade at the cost of CSS Assistants.
The channels of promotion for CSS Assistant and Grade 'C Stenographers are different from each other. As the promotional prospects for Grade 'C Stenos have improved over the years in their own cadre and as they are enjoying the opportunity to compete in the Examination for promotion to Private Secretary Grade, the Committee is of the considered view that only CSS Assistants shall be allowed to compete in the LDCE for CSS Section Officers. The provisions which allow the Steno Grade 'C to compete in Limited Departmental Competitive Examination for promotion to CSS Section Officer may be deleted from the Rules.
17. It was further urged that despite the aforesaid specific, categorical and unambiguous recommendation made by the Parliamentary Standing Committee, the respondents in its executive power, instead of taking a broader and fair view, made an attempt to circumvent the said recommendations by issuing administrative order dated 27.07.2005 and diluted the said recommendations to the extent that only those Stenographer Grade 'C who are graduate should be allowed to participate in the LDCE for the Section Officer's Grade of CSS. The aforesaid order reads as under: Sub: Lateral entry of Stenographers belonging to CSSS in the Grades of Section Officer and Under Secretary of CSS. The Government had set up a 'Group of Officers' on Cadre Structure of Central Secretariat Stenographers Service (CSSS), in October, 2003. The Group submitted its report in February, 2004. The Report of the 'Group' has been considered by the Government and inter alia the following decisions have been taken; (i) To discontinue the lateral entry of CSSS officers into Central Secretariat Service (CSS) at the level of Under Secretary of CSS. (ii) To allow only those Stenographer Grade 'C who are graduates to participate in the Limited Departmental Competitive Examination for the Section Officer's Grade of CSS. 2. Necessary notification relating to amendment to the CSS Rules will be issued.
18. We may also note the fact that the law on challenge to rule is well settled in the following judgments which read as under:In Nedurimilli Janardhana Reddy v. Progressive Democratic Students' Union and Ors. (1994) 6 SCC 506, the Hon'ble Supreme Court observed that: 4...Any exercise of such power will be a fraud upon the statute apart from rendering such rules as ultra vires the Act....
5. The Rules in question, as the preface thereof shows, are purported to be made in exercise of the powers conferred by Sections 20 and 21 read with Section 99 of the AC....
8. A survey of the provisions of the Act relating to the status, powers and functions of the Competent Authority and of the provisions of the Rules shows that the Rules are not, as indeed they cannot be, made to supplant the provisions of the Act but to supplement them and they have to be read as such....
9. Thus read, it is obvious that in the absence of the Competent Authority which is to be constituted under the Act and not under the Rules, no private educational institution could be established after the commencement of the Act. Hence the reliance placed by the State Government on the rules in question to justify the action of inviting applications for grating permission to establish educational institutions, is not well merited....It is not necessary for us to analyze the provisions of the Act and the Rules any further since according to us in view of what is pointed out above the whole exercise undertaken by the State Government in the present case for sanctioning the establishment of the educational institutions in the absence of the Constitution of the Competent Authority was invalid from its inception. On this short ground, the writ petitions were entitled to succeed.In General Officer Commanding-in-Chief and Anr. v. Dr. Subhash Chandra Yadav and Anr. (1988) 2 SCC 351 : 1988(3) SLJ 91 (SC), the Hon'ble Court observed as follows: 14. This contention is unsound. It is well settled that rules framed under the provisions of a statute from part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule.
If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though Sub-section (2) of Section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of Sub-section (2) of Section 281, any rule framed under the Cantonments Act has to fulfill the two conditions mentioned above for their validity. The observation of this Court in Jestamani Gulabrai Dholkia\. Scindia Steam Navigation Company, relied upon by Mr. Aggarwal.
In Mohammad Yasin v. The Town Area Committee, Jalalabad and Anr. 1952 SCR 572 it was observed that: The bye-laws in question which imposed a charge on the wholesale dealer in the shape of prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the Committee and, therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Article 19(6) of the Constitution impose a restriction on the right conferred by Article 19(1)(g)....
In our opinion, the bye-laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immoveable properly vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the respondent Committee (Supreme Court Reports 581)Indian Council of Legal Aid and Advice and Ors. v. Bar Council of India and Anr., the Hon'ble Supreme Court had been dealing with the Advocates Act, 1961-Sections 49(1)(ah) and 24 dealing with the power of Bar Council of India to make rules prescribing conditions for right to practice It was held that it does not extend to lay down conditions which are applicable at pre-enrolment stage, Accordingly the Rule prescribing age-limit of 45 years for enrolment as advocates was held to be ultra vires Clause (ah) of Section 49(1), in the following words: 8. The newly added rule seeks to bar the entry of persons who have completed the age of 45 years on the date of application for enrolment as an advocate from being enrolled as such by the State Bar Council concerned. While Section 24 of the Act prescribes the minimum age for enrolment as twenty one years complete, there is no provision in the Act which can be said to prescribe the maximum age for entry into the profession. Since the Act is silent on this point the Bar Council of India was required to resort to its rule-making power. The rule made by the Bar Council of India under Section 49(1) of the Act are in seven parts, each part having its own chapters.
Part VI is entitled "Rules Governing Advocates" and the said part has three chapters. Chapter I sets out the restrictions on senior advocates and is relatable to Sections 16(3) and 49(1)(g) of the Act, Chapter II lays down the standards of professional conduct and etiquette and is relatable to Section 49(1)(c) read with the proviso thereto and Chapter III deals with "Conditions for right to practise" and is stated to be made in exercise of power under Clause (ah) of Sub-section (1) of Section 49 of the Act. The clause reads as under: (ah) the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a Court; On the plain language of the said clause it seems clear to us that under the said provisions of the Bar Council of India can lay down the conditions subject to which an advocate" shall have the right to practise. These conditions which the Bar Council of India can lay down are applicable to an Advocate, i. e., a person who has already been enrolled as an advocate by the State Bar Council concerned. The conditions which can be prescribed must apply at the post-enrolment stage since they are expected to relate to the right to practise.
They can, therefore, not operate at the pre-enrolment stage. By the impugned rule, the entry of those who have completed 45 years at the date of application for enrolment is sought to be barred. The rule clearly operates at the pre-enrolment stage and cannot, therefore, receive the shelter of Clause (ah) of Section 49(1) of the Act.
Under the said clause conditions applicable to an advocate touching his right to practice can be laid down, and if laid down he must exercise his right subject to those conditions. But the language of the said clause does not permit laying down of condition for entry into the profession. We have, therefore, no hesitation in coming to the conclusion that Clause (ah) of Section 49(1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate. The impugned rule is, therefore, ultra vires the said provision.
In (1991) 4 Supreme Court Cases 268, State of Karnataka and Ors. v. V.S. Narayanaswamy, the Hon'ble Supreme Court had been dealing with the statute providing for imposition of licence fee in respect of manufacture or sale of any excisable articles. Rule framed under the statute required payment of licence fee for premises where licenced shop is located. Holding Rule 8(1) of Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968, as ultra vires the Act-Karnataka Excise Act, 1965, Section 23 (d, it was observed that: Rule 8(1) has obviously gone beyond the enabling provision.. It may be possible for the legislature to make a statutory provisions for a licence fee for the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made.Laghu Udyog Bharti and Anr. v. Union of India and Ors., the Service Tax Rules, 1994- Rr. 2(d)(i) to (ix) & (xiii) to (x vi) were held to be ultra vires Section 65 of Finance Act, 1994 (as amended in 1997). It was observed thus: 7. A perusal of these provisions relating to the machinery of the levy and collection of service tax clearly shows that any action which is required to be taken is qua the assessee, namely, the person responsible for collecting the service tax which includes his agents.
8. Section 66, which is a charging section provides that the charge of tax at the rate of 5% is on the value of the taxable services, which are provided to any person by the persons responsible for collecting the service tax. Insofar as the clearing agents and the transporters are concerned, Section 66 has to be read with Section 65(41)(d), (j) and (m), according to which the taxable service is what, in the case of clearing and forwarding agents, is rendered to his client and in the case of goods transporter is rendered to its customer. The "person responsible for collecting the service tax", referred to in Section 66, has to be read with Section 65(28), which defines this expression to mean the person who is required to collect the service tax or to pay the same. It is clear from the reading of these provisions that according to the Finance Act the charge of tax is on the person who is responsible for collecting the service tax. It is he, who by virtue of the provisions of Section 65(5) is regarded as an assessee. He is the person who provides the service.
9. Section 68(I-A) is a special provision, which has been inserted by the Finance Act, 1997. According to Section 68(1) "every person who was providing the taxable service is the one who is required to collect the service tax at the rate specified in Section 66". With respect to the taxable services referred in Items (g) to (r) of Clause (41) of Section 65, Section 68 (1-A) provides that the service tax for such service shall be collected from such person and in such manner as may be prescribed and to such person all the provisions shall apply as if he is the person responsible for collecting the service tax in relation to such service. As we read Section 68 it does not in any way seek to alter or change the charge of service tax levied under Section 66, which is on the person responsible for collecting the service tax. It also does not to our mind, in any way, amend any of the clauses of Section 65, which contain the definitions of different expressions. All that Section 68(1-A) enables to be done is that with regard to the assesses or the persons who are responsible for collecting the service tax, the individual or the officer concerned can be identified and it is that person who would be a person responsible for collecting the service tax. In other words this provision, namely, Section 68(1-A) cannot be so interpreted as to make a person an assessee even though he may not be responsible for collecting the service tax. The service tax is levied by reason of the services, which are offered. The imposition is on the person rendering the service. Of course, it may be an indirect tax; it may be possible that the same is passed on to the customer but as far as the levy and assessment are concerned it is the person rendering the service who along can be regarded as an assessee and not the customer. This is the only way in which the provision can be read harmoniously.
14. We have no hesitation in holding that the provisions of Rule 2(d)(xii) and (xvii), insofar as they make persons other than the clearing and forwarding agents or the persons other than the goods transport operator as being responsible for collecting the service tax, are ultra vires the Act itself. The said Sub-rules are accordingly quashed.
19. We may note the fact that the Hon'ble Supreme Court in AIR 1983 SC 550, State of Karnataka and Anr. v. H. Ganesh Kamath etc. etc., considered the validity of provision of Rule 5(2) of Karnataka Motor Vehicles Rules vis-a-vis Motor Vehicles Act of 1939. From Sub-section (7) of Section 7 of the Act it automatically follows that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle. Under Sub-rule (2) of Rule 5 it was prescribed that one cannot obtain a licence to drive a heavy motor vehicle unless he has already possessed a licence to drive a medium motor vehicle and has experience in driving it for a period of at least two years. In such circumstances, it was held that provisions of the said Sub-rule (2) of Rule 5 are obviously inconsistent with the provisions of the Section 7 of the Act. The said Sub-rule did not merely prescribe a qualification not provided for in the Act, but prescribes a qualification which is contrary to that provided in the Act. It was further held that though the substituted Clause (aa) inserted in Sub-section (2) of Section 21 of the Act confers power upon a State Government to make rules providing for the minimum qualifications of persons to whom licences to drive a transport vehicle are issued, such power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. In our considered view, the ratio laid down in the aforesaid judgment is aptly applicable to the facts and circumstances of the case.
20. Upon hearing Ld. Counsel for the parties and keeping in view the law noticed hereinabove, the fundamental question which needs consideration in the present case is whether Para 4 of Regulation, 1964 making Grade 'C Central Secretariat Stenographers' Service eligible for Limited Departmental Competitive Examination of Section Officer of CSS is valid and legal or otherwise.
21. On bestowing our careful consideration to the entire aspect, particularly to the facts noticed hereinabove, we may note that the power conferred upon the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pension under para 2(2) of Fourth Schedule to the CSS Rules, 1962 had been to frame rules "for the Limited Departmental Competitive Examinations". We may note that Para 2 of the said Fourth Schedule deals with the maintenance of Select List for the Section Officer Grade. It is the undisputed facts that the term "maintenance" used therein include "addition" to the Select List also keeping in view the existing and anticipated regular vacancies. The said Para 2 read with Rules 10 and 13 of the CSS Rules, 1962 nowhere makes Stenographer Grade 'C of CSSS as either feeder category or eligible for promotion to the Grade of Section Officer in the Central Secretariat Service. The scope of power conferred to the said Department under Para 2(2) of the Fourth Schedule, in our considered view (sic) limited and restricted.
Framing of rules will not, in the given circumstances, include power to lay down the conditions of eligibility and making a cadre, which is alien and outside the normal channel of promotion, eligible for the said grade of Section officerin the CSS. We may also note the fact that the Grade 'C Stenographers of CSSS are indeed eligible for promotion to the next higher grade in their own channel and filed, i.e. Stenography.
It is not the case that the Grade 'C Stenographers of CSSS do not have promotional avenues in their own field and hierarchy. The respondents have made no attempts to clarify as to why the Parliamentary Standing Committee, which also considered all these aspects and made a strong recommendation in its Eighty-Third Report, as, noticed hereinabove, and recommended deletion of the provision which allowed the Stenographer Grade 'C to compete in CSS Section Officer was found to be unacceptable. If we may say so with great respect, it is a case of showing undue and unwanted favour to a group and class of officials, as the Grade 'C Stenographers are not only eligible for promotion in their own field and line but have also been made eligible for promotion to outside their channel and normal hierarchy. The matter does not rest here. We may also note the fact that Grade C Stenographer, under Rule 10 of CSS Rules, 1962 could be "posted" and not promoted to "duty posts in the Assistant's Grade" limited to two years period. When such is the mandate of the rules, how the Govt. in its executive power could make the said grade/category as feeder grade to the Section Officer post, is beyond our comprehension.
22. We have already noticed that the Rules of 1962 were framed by the President in exercise of power conferred under proviso to Article 309 of the Constitution and, therefore, same are statutory in nature, while the 1964 Regulations framed are only in the form, shape and in the nature of an administrative instruction as the same were not framed and issued in the exercise of power available under proviso to Article 309 of the Constitution of India. It is well settled that administrative instructions can only supplement and not supplant these statutory rules. We do not find any justification in the contentions raised by the respondents that the 1964 Regulations have to be treated as statutory rules. In our view there had been no fairness in the administrative decision taken even on 27th July, 2005. Following the law noticed, hereinabove, which is squarely applicable in the facts and circumstances of the present case, we have no hesitation to conclude that the Central Secretariat Service Rules envisage selection for appointment to Section Officer and Assistant Grades from the categories of officials prescribed under Rule 13. If that be so,'it cannot admit of any doubt that the Department of Personnel which framed Regulation, 1964 to make Grade C Stenographers of CSSS eligible for selection and appointment to Section Officer Grade, has done so clearly exceeding the parameters of the authorities conferred upon it under Rules 13, 23 read with sub-para (2) of Para 2 under Fourth Schedule of the said Rules.
The circumstances and factual reality in itself sufficient to expose and demolish the myth that the Assistants of CSS as well as Grade C Stenographers of CSSS who belong to two different classes and groups have been classified as equivalent, though in fact they being unequal in important matters, such as nature of posts, duties and responsibilities to be discharged by them in such posts, are not comparable. It is difficult to comprehend how they can be put in a common class for judging their comparative ability and merit in their respective job performances in the context of their suitability for appointment to the Section Officer Grade, which is the back-bone of the Central Secretariat Service. The respondents' action while framing the 1964 Regulations amounts to enlarging the scope of statutory rules of 1962, which is beyond its competence and jurisdiction. Executive instructions cannot over-ride any provision of existing rule.
Similarly, as per Rule 23 of 1962 Rules, no regulations which are inconsistent with the said rules could be framed or issued by the Department of Personnel and Training. Para-4 of 1964 Regulations is ultra vires and inconsistent to Rule 13 read with Para 2 under the Fourth Schedule of the said Rules and cannot be sustained.
We may also note that vide order dated 18th July, 2005 it was observed that the appointment made to the said Grade of Section Officer would be subject to the final outcome of the present O.A. and, therefore, if any appointment is made in the meantime, they have to be regulated in terms of the above order.
23. In view of above discussion, the O.A. is allowed. Para 4 of the Central Secretariat Section Officer Grade/Stenographer Grade 'B' Limited Departmental Competitive Examination Regulation, 1964 making Grade 'C Central Secretariat Stenographers Service eligible to the grade of Section Officer is quashed and set aside with all consequential benefits. No costs.