B. VENKATESAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This is the second round of litigations for the applicants. Earlier, they approached the Tribunal in OA No.1675/2006. The first applicant joined on deputation the National Crime Records Bureau (NCRB), the second Respondent, and then absorbed there as Sub -Inspector. Other applicants joined the Respondent on direct recruitment as Sub -Inspectors. These four applicants were engaged in EDP work since their appointments in NCRB. Following the OM issued by the Ministry of Finance, the first respondent conveyed the sanction of the Government by Order Number 42/4/89 -Ad.II/NCRB/FP.II dated 6.05.1991 for re -designation and revision of pay scales of various EDP posts under the second Respondent. The Sub -Inspector was redesignated as DPA -Grade A in the scale of pay of Rs.1600 -2660 (pre -revised). The post of Inspector, the next post on promotion, was redesignated as DPA Grade B in the scale of pay of Rs.2000 -3200. The number of posts in DPA Grade A and Grade B were fixed at 57 and 40 respectively. An Office Order Number 42/4/89 -AD.II/NCRB, dated 02.08.1991 from the second Respondent followed, which inter alia, stated that: - (i) DPA Grade B post was the post for promotion from DPA Grade A with four years of regular service in the latter; (ii) the employees, opting for the EDP cadre, would be given the benefit of EDP scales with effect from 11.09.1989 or subsequent dates as the case may be; and (iii) the employees would have to relinquish all their claims, if any, of being Police personnel e.g. rent free accommodation, uniform allowance, ration money etc. The applicants exercised their option for the new EDP cadre. They completed their four years of service in 1995. The DOP&T framed Model Recruitment Rules (MRR). MRR for DPA Grade A was notified on 16.02.1990. These were revised in 1998. However, the Respondents did not frame any Recruitment Rules for DPA Grade -B on the basis of the MRR. The applicants made representation to the Respondents on 31.12.2003 and 9.01.2006 for their regular promotion to DPA Grade B from the day they completed the stipulated period of four years of regular service in feeder grade.

(2.) In a different case (OA No.3128/2002) similarly placed officials including the 1st applicant in the present OA approached this Tribunal seeking the quashing of the order dated 24.05.2002 informing them that their promotion to DPA Grade B would be considered as and when vacancies arise in future. The Tribunal partly allowed the OA No.3128/2002 vide order dated 03.09.2003 in following terms: - 7. We have heard the learned counsel of the parties and have perused of the parties and have perused the materials available on record carefully. It is undisputed that the applicants have all along been working in the DPA unit of the respondents initially. Subsequently on being absorbed, as a model employer the respondents should have taken care of the future prospects of the applicants. It is stated that the applicants opted for the posts of DPA for better prospects of promotion ignoring other perquisites in their parent cadre. We are not satisfied with the reply filed by the respondents that as there was ban of the Government on the recruitment, promotions were not made even though the vacancies of DPA grade B were available during the years 1996, 1997, 1998 & 2000 and thereafter. The respondents cannot be allowed to stated that they had not followed the old recruitment rules of 1988 for ad hoc promotion. The applicants have rightly made a grievance that the said recruitment rules could have been followed by the respondents for regular promotions also. The learned counsel of the applicants rightly stated that there was no need to wait for revised recruitment rules for grade A & B posts in the DPA as notified by the DOP&Ts OM dated 14.10.1998 (Annexure A -11) already existed. In view of these facts, we direct the respondents to take steps to revive the abolished posts of DPA grade B if those posts are still to be created keeping in view the recruitments of the Department. As soon as those posts are revived, the applicants be considered for promotion if they are otherwise eligible and are within the zone of consideration in accordance with the model recruitment rules of the DOP&Ts dated 14.10.1998 and if their own recruitment rules are not yet notified. This exercise must be completed within 4 months from the date of receipt of a copy of this order. 8. In the result the OA is partly allowed without any order as to costs.

(3.) All the applicants in the present OA having not been promoted to the DPA Grade -B filed the OA No.1675/2006 which was decided on 14.10.2008. The pertinent part of the said order is reproduced below: - 10. The Respondents have further claimed that they had been trying to frame the Recruitment Rules as per MRR but did not succeed as the DOP&T had been revising these Rules. The learned counsel for the Respondents placed before us copies of note sheets of file Number 35/5/2001 -Ad II of the first Respondent, which were taken on record and which have notings dated 9.12.2002 and 25.07.2003 of the concerned officer of DOP&T that review of the MRR of EDP posts may be awaited. Be that as it may, the upshot is that the Recruitment Rules of 1988 have not been amended as per the MRR. 11. The Honourable Supreme Court had considered a similar issue in V. Ramakrishnan (cited supra), in which R. Sundar Raju the appellant before the Supreme Court had been promoted ad hoc on the strength of draft Recruitment Rules. The Honourable Supreme Court held thus: 28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis of grant of promotion, when Rules to the contrary is holding the field. 11. As to the Applicants contention that 29 DPA Grade A were recruited by direct recruitment method in accordance with the MRR, it has not been substantiated. The Respondents have repelled the argument by stating that there is a provision for direct recruitment to the extent of 66.66 per cent in the Recruitment Rules of 1988. It cannot, therefore, be said that these recruitments have been made under MRR, especially considering that designations and pay scales of the EDP posts had been adopted by order dated 6.05.1991, which has been referred to in the preceding paragraphs. 12. While we consider it most unfortunate that the Respondents -both the Ministry of Home Affairs and NCRB - have been most lethargic, in pursuing amendment to the Recruitment Rules of 1988 and their behaviour towards their own employees has been most unsympathetic and callous, yet the fact remains that the Recruitment Rules have not been amended in tune with the Model Recruitment Rules and till such time as these rules are amended, the extant rules will hold the field. The direction given in OA Number 3128/2002 that the applicants (not the same as in the instant OA) should be considered for promotion in accordance with the MRR will not be a binding precedent in view of the law laid down by the Honourable Supreme Court in V. Ramakrishnans case (cited supra). We, however, direct the Respondents now at least to take pro -active steps to amend the Recruitment Rules of 1988 suitably within six months from the date of receipt of a certified copy of this order and relieve the Applicants from their misery. With these observations, the OA is disposed off. No costs.