OM PAL SINGH Vs. UNION OF INDIA THROUGH SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF LABOUR & EMPLOYMENT

JUDGEMENT

(1.) Instant Original Application has been instituted for the following reliefs:

(2.) Pleadings of the parties in nutshell are as follows: It is stated by the applicant that he joined the services of the respondent No.1 Ministry as a direct recruit Programmer through UPSC on 13.09.1996, and thereafter promoted on 27.12.2001 as Senior Programmer in the pay scale of Rs.10000 -325 -15200, which is identical to the post of Deputy Director of Employment in the respondent Ministry. Vide office order dated 16.01.2008, with the objective of providing better promotional prospects and equal opportunities to each category of Group 'A' posts in the identical pay scales in the Employment Directorate under DGE&T, various posts were clubbed/amalgamated and re -designated. It was specifically provided that the incumbents of the re -designated posts would have no claim to seniority/promotion in respective cadres of Employment Directorate for the same or higher posts and would be governed by the inter se seniority drawn for the Employment Directorate. Copy of the order dated 16.01.2008 has been annexed with the OA. On 02/06.12.2010, another office order was issued by the respondents in partial modification of the office order dated 16.01.2008, providing for the post of Senior Programmer to be re -designated as Deputy Director of Employment, and in this manner the total cadre strength of Deputy Director of Employment was shown as 28. A representation was made by the applicant on 13.12.2010 to the respondents that he is in the feeder grade for promotion to the post of Joint Director of Employment w.e.f. 27.12.2001, and requested that the inter se seniority list be circulated so that he was considered for promotion to the post of Joint Director against the two posts of Joint Director lying vacant. It is alleged that in spite of making representation by the applicant, nothing has been done by the respondents, and that they are proceeding with making promotions by convening Departmental Promotion Committee (DPC). As the respondents have not redressed the grievance of the applicant, hence this OA.

(3.) The respondents have contested the case and filed their counter reply, denying the allegations made in the OA. However, it has been alleged by the respondents 1 and 2 in their counter reply that in DGE&T under Employment Directorate, there are so many small cadres. In the year 2004, it was proposed that the posts having the similar scales of pay in the DGE&T (Hqrs.) as well as in CIRTES and VRCs may be clubbed in a single unified cadre, which would provide uniformity and give equal opportunities to all for betterment of career prospects of promotion, timely filling up of the posts and availability of sufficient number of persons in the feeder grade for promotion. It is pleaded that the proposed amendment was also necessitated due to upgradation of the posts of Joint Director of Employment Exchanges in the scale of Rs.15600 -39100 (PB -3) + Rs.7600 Grade Pay (revised) [Rs.12000 -16500 (pre -revised)], and merger of the post of Additional Director of Employment Exchanges with the former. For amendment in the recruitment rules, approval of the DOP&T, UPSC and Ministry of Law is required, and when the proposal was referred to DOP&T for its approval, it was initially not agreeable to the insertion of the proposed amendment. However, later on the DOP&T agreed to the proposal on 08.06.2006 when the matter was discussed and taken up with higher officers. The proposal for amendment of combined recruitment rules was also referred to UPSC on 10.07.2006. After approval of the DOP&T, the proposal for amendment of combined recruitment rules for different Group A gazetted posts was sent to UPSC for its approval and the UPSC suggested that the specific orders regarding clubbing/amalgamation of different categories of posts needed to be issued by the Ministry before the proposal was processed by the UPSC. As per advice of UPSC and after obtaining approval of the Labour Ministry, an order No.DGE&T -A/12018/1/2004 -Adm.II dated 16.01.2008 was issued regarding re -designation of various posts. Under these circumstances, vide the order aforesaid all Group A gazetted posts in the identical pay scales in the Employment Directorate under DGE&T were clubbed/amalgamated and re -designated. In the order it has been mentioned that the incumbents of the re -designated posts would have no claim to seniority/promotion in respective cadres of Employment Directorate for the same or higher posts, and would be governed by the inter se seniority drawn for the Employment Directorate. The above mentioned order is a departmental order and can be replaced/modified at any stage on the advice of UPSC/DOP&T/Ministry of Law. The recruitment rules are statutory rules and cannot be replaced or modified by executive order/instructions, and the executive order/instructions cannot give any right to any person, including the applicant, to base his claim on the same. The post of Senior Programmer in the pay scale of Rs.10000 -15200 (pre -revised) [Rs.15600 -39100 (PB -3) Grade Pay Rs.6600 (revised)] and Programmer in the scale of Rs.8000 -13500 (pre -revised) [Rs.15600 -39100 (PB -3) Grade Pay Rs.5400 (revised)] was not included in the proposed recruitment rules as the duties and educational qualifications of the above said posts are different from that of the Deputy Director of Employment Exchanges and Assistant Director of Employment Exchanges. There was no similarity between the posts of Senior Programmer and Deputy Director, and that of Programmer with Assistant Director. There is no promotional avenue for the post of Senior Programmer, as this is an isolated post. A representation was submitted by the applicant for inclusion of the post of Senior Programmer in the proposed recruitment rules, but his request was not acceded to. However, the request of the applicant was acceded to for inclusion of the post of Senior Programmer in the combined recruitment rules, and office order dated 06.12.2010 was issued, but prior approval of DOP&T and UPSC has not been obtained. The post of Joint Director of Employment Exchanges is the promotional post for Deputy Director of Employment Exchanges and Senior Scientific Officer Grade -I. As per existing recruitment rules, the post of Joint Director is required to be filled by promotion failing which by transfer on deputation (including short -term contract). Deputy Director of Employment Exchanges and Senior Scientific Officer Grade -I with two years of regular service in their respective grade are eligible for promotion to the post of Joint Director of Employment Exchanges. Two vacancies of Joint Director were available due to ad hoc promotion of Shri K. S. Meena to the post of Deputy Director and due to retirement of Shri S. K. Seth w.e.f. 29.02.2008. Proposal for one time relaxation was sent to UPSC, but it was returned with the remarks that the existing recruitment rules for the post of Joint Director are inoperative. The proposal for determination of mode of recruitment for filling the post in question as a one time measure pending amendment/notification of revised rules cannot be entertained. The proposal for filling up of the two posts of Joint Director on the basis of existing recruitment rules was sent to UPSC, and they recommended the names of Shri B. L. Meena, Shri R. D. Meena and Shri A. S. Khan for promotion to the post of Joint Director. The recommendations relating to Shri R. D. Meena were kept in sealed cover as he was facing disciplinary proceedings. Order was passed in the OA for maintaining status quo. Hence, the promotion orders have been kept pending. The name of the applicant, Senior Programmer, was not included in the combined seniority list as the proposal for filling up of the two posts of Joint Director of Employment Exchanges was based on the existing recruitment rules, and the proposal was returned by the UPSC. It is pleaded that issuance of orders dated 16.01.2008 and 06.12.2010 would not confer any right on the applicant or any other person concerned, and it cannot be enforced. The OA is stated to be bad for non -joinder of necessary parties, as also lacking merit, and needs to be dismissed.