Justice V. K. Bali, Chairman: Ranjit Singh Bisht and ten others have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash the recruitment rules known as SSB (Secretarial) Service, 2006, framed for civilian ministerial cadre, enforced vide notification dated 20.11.2006, for Group B (Gazetted and Non-Gazetted) ministerial posts. They also seek a direction to be issued to the respondents to maintain status quo till finalization of SLP pending in the Honble Supreme Court in Union of India v Sukesh Kumar Nayak, and further to direct the respondents to follow the existing Rules of 1975.
2. We will give facts hereinafter, but we may mention that whereas under the rules known as DGS (Secretariat) Services Rules, 1975 (hereinafter to be referred as the Rules of 1975), a civilian ministerial cadre UDC would be eligible for promotion to the post of Assistant after having put in five years service as UDC, in the new rules known as SSB (Secretarial) Service Rules, 2006 (hereinafter to be referred as the Rules of 2006), the eligibility criteria for promotion has been extended. The primary grouse of the applicants is that the rules could not be amended or no fresh recruitment rules could be notified to change the eligibility criteria, at least for those who are already in service, and to that extent, provisions as regards eligibility of having put in ten years on the post of UDC for promotion to the post of Assistant in the Rules of 2006, would be illegal.
3. It is the case of the applicants that in order to defend the territorial integrity of borders of the country with active involvement of border population, the Government of India had formed a specialized outfit in the year 1963 by the name of Special Services Bureau (SSB) under the Director General of Security (DGS) under the administrative control of the Cabinet Secretariat. The administrative control of SSB was transferred from Cabinet Secretariat to the Ministry of Home Affairs with effect from 15.01.2001. The said organization being part of Directorate General of Security, has always been considered as an important secret agency, as well as an auxiliary force, and its functioning was divided into two streams, called combatized and non-combatized cadres. It is pleaded that since coming under the Ministry of Home Affairs, the civilian cadre of SSB was declared as dying cadre by the said Ministry vide letter dated 26.03.2003, wherein it was stated that no recruitment will be made in the force against any civilian post(s) in any cadre and the resultant vacant posts would be filled by combatized personnel. Directorate General of Security used to comprise of four organizations, viz., Aviation Research Centre (ARC), Special Frontier Force (SFF), Chief Inspector of Armaments (CIOA) and Special Services Bureau (SSB). It is pleaded that to cater to the secretarial work of these four components, a separate set up called DGS (Secretarial) Service was formed, to which the applicants belong. There was common seniority of ministerial staff of the above four organizations, which was being regulated by a separate coordination cell. Services of the incumbents were also inter-changeable in the said four organizations. Civilian ministerial cadre of DGS Secretarial service was being governed by the statutory rules notified in the year 1975. In the rules aforesaid, a UDC having five years service was eligible to be considered for promotion to the post of Assistant; besides 25% posts of Assistant were to be filled up by LDCE from UDCs. Consequent upon transfer of administrative control of SSB from Cabinet Secretariat to that of Ministry of Home Affairs in the year 2001, the DGS (Secretariat) Service was trifurcated into SSB, ARC and SFF Secretarial Service w.e.f. 23.08.2001 vide Cabinet Secretariat order of even date. The trifurcation of the service was made on as is where is basis without calling any option from incumbents to choose either of three departments. Since there was common seniority operating in all the four organizations for all purposes, therefore, while trifurcating the four organizations into three wings, as mentioned above, the respondents were required to obtain options from all the affected employees to opt for any particular department/wing, as at the time of their appointment there was no such condition to continue in one of the aforesaid for organizations. The respondents would, however, not obtain any option, aggrieved of which one Shri S. K. Nayak filed OA No.513/2002 in this Tribunal, which came to be disposed of vide order dated 13.11.2002, holding that options had to be asked. The decision aforesaid of the Tribunal has since been upheld by the Honble High Court in WP(C) No.3000/2003 decided on 06.11.2003 in the matter of Union of India v S. K. Nayak. SLP against the order aforesaid was pending at the time when the present OA came to be filed. We may mention at this very state itself that the decision of the Tribunal and the High Court has since been set aside by the Honble Supreme Court, which position has been taken in the counter reply filed on behalf of the respondents, and not disputed by the applicants, who, of course, while relying upon the judgment of the Tribunal and the High Court, were advancing their case for the reliefs asked for, but now confronted with the position that the judgments of the Tribunal and the High Court have been set aside, would plead and so state through their counsel that such judgments would not be relevant at all. Pending decision in the SLP, however, promotion of the civilian ministerial staff of DGS (Secretariat) Services were being made by SSB subject to outcome of SLP pending in the Supreme Court. It is the case of the applicants that all of a sudden, by ignoring the decision of this Tribunal and the that of the High Court, the respondents have enforced the new Rules of 2006 vide notification dated 20.11.2006 for Group B (gazetted and non-gazetted) services in supersession of the Rules of 1975. It is the case of the applicants that the respondents would have no authority to frame new set of rules, once the earlier rules framed by the competent authority under Article 309 of the Constitution were in existence. The Rules of 1975 would remain in existence till they are de-notified, further plead the applicants.
4. There would be no need to refer to further pleadings made in the OA, as during the course of arguments Shri M. K. Bhardwaj, learned counsel representing the applicants, knowing fully well that the judgments of the Tribunal and the High Court relied upon by the applicants, which, it was always the case of the respondents, were not relevant, but in any case, have been set aside by the Apex Court, would only contend that the Rules of 1975 were not repealed, and that being so, the Rules of 2006 could not be brought about. The second and the only other contention of the learned counsel is that in any case, while amending or superseding earlier rules, as per guidelines issued vide DOP&T OM dated 31.12.2010, the existing eligibility service conditions had to be retained for those who were already in service. We will comment upon the two-fold contentions of the learned counsel as noted above, but before we may do that, we may mention of the relevant pleadings made by the respondents, who, pursuant to notice issued by this Tribunal, entered appearance and by filing their counter reply contested the cause of the applicants. It is pleaded that before trifurcation of SSB, common recruitment rules were framed for ministerial cadre. As per recommendations of the VI CPC, the residency period in the recruitment has been framed on the basis of guidelines issued by DOP&T vide OM dated 25.05.1998. Accordingly, the guidelines were circulated to all field units. It is pleaded that UDCs serving under the Government are entitled for Grade Pay of Rs.2400/- and the Grade Pay of Assistants is Rs.4200/-, and as per DOP&T OM dated 24.03.2009 the minimum qualifying service for promotion from Grade Pay of Rs.2400/- to Rs.4200/- is ten years, and same is applicable for UDCs serving in various departments of the Government. It is then pleaded that to review the erstwhile role of SSB, when it was under Cabinet Secretariat, the Government had constituted a High Powered Committee and as per recommendations of the said Committee, the Government entrusted the role as Border Guarding Forces and administrative control of SSB was shifted from Cabinet Secretariat to Ministry of Home Affairs w.e.f. 15.01.2001. Accordingly, SSB has been deployed on Indo-Nepal and Indo-Bhutan border. Since the role of SSB has been changed as Border Guarding Force, the MHA has imposed ban on recruitment of civilian staff in SSB and vacancy occurred in civilian posts due to death, retirement etc. are being filled up by recruiting equivalent combatized personnel at base level, which, it is pleaded, will not create any problem with the existing civilian staff as regards their pay, promotion and other facilities, as applicable to them. It is further pleaded that consequent upon change of administrative control of SSB from Cabinet Secretariat to Ministry of Home Affairs in the year 2001, it was imperative that all the recruitment rules of combatized and non-combatized were required to be modified in the official gazette. The Rules of 1975 and the amendments brought about therein from time to time were not notified in the official gazette being a secret organization. It is pleaded that in view of the statutory requirement of recruitment (promotion, deputation, re-employment) in all the combatized and non-combatized cadres, the Rules of 2006 were notified by MHA in accordance with DOP&T instructions issued from time to time. It is further pleaded that although there is no recruitment in the initial stage in the civilian cadre, the promotion in each cadre is being made as per the existing recruitment rules. In the context of the contentions of the learned counsel representing the applicants, as noted above, there may not be any further need to make a mention of the pleadings made in the counter reply.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Even though, in the OA some relevance is sought to be established between the judgments of the Tribunal and the High Court, as mentioned above, for the relief asked for in the OA, but inasmuch as, the said judgments have been set aside by the Honble Supreme Court, during the course of arguments, no reliance is placed upon the said judgments. Rather, in the rejoinder the applicants have started claiming that such judgments are not relevant. There is no merit whatsoever in either of the contentions of the learned counsel representing the applicants, as noted above. Present is not a case as was in OA No.2104/2009 in the matter of Bakhtawar Singh & others v Union of India & other, decided on 05.01.2010, where the statutory rules had been rescinded by an administrative order. In that context, of course, we have held that if the statutory rules have to be rescinded, the same procedure is required to be gone into which was adopted while framing the rules, and that the statutory rules cannot be set at naught by administrative orders. Present is a case where the Rules of 2006 have come into being by virtue of proviso to in Article 309 of the Constitution. The Rules of 2006, the very reading of the same would suggest, came into existence in exercise of the powers conferred by proviso to Article 309, in supersession of the Rules of 1975. The Rules of 1975 have been superseded and the new set of Rules of 2006 has come into being by virtue of the proviso to Article 309. In the facts as mentioned above, there would be no merit whatsoever in the first contention of the learned counsel representing the applicants, as noted above.
6. The second contention of the learned counsel representing the applicant based upon DOP&T guidelines dated 31.12.2010 is equally devoid of any merit. Reliance of the learned counsel is upon the general guidelines regarding framing/ amendment/relaxation of recruitment rules. Para 3.1.3 of the guidelines aforesaid is said to be relevant by the counsel. The same reads as follows: 3.1.3. Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issued by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules. If read without reference and context in which para 3.1.3 came into being, the counsel for applicants may be right, but para 3.1.3 is preceded by para 3.1.1 with the caption Initial Constitution. Para 3.1.1 reads as follows: 3.1.1. In cases where a new service is formed and the Recruitment Rules are framed for the first time and that there are officers already holding different categories of posts proposed to be included in the service on a regular/long term basis, a suitable Initial Constitution Clause may be inserted in the Notification so as to count the regular service rendered by such officers before the date of notification of the Rules. Para 3.1.3 reproduced above would be applicable, in our considered view, only when a new service is formed and the recruitment rules are framed for the first time, and there are officers already holding different categories of posts proposed to be included in the service on a regular/long term basis. Para 3.1.3 would not be applicable where a service is already in existence, and it is not a case of framing new service rules. Present, as mentioned above, is a case of superseding earlier rules and replacing them by a new set of rules under proviso to Article 309 of the Constitution, i.e., the Rules of 2006.
7. Providing eligibility criteria for promotion as regards residency on a feeder post is a policy decision of the Government and in such policy decision, it is too well settled a proposition of law, that the tribunals and courts in their limited power of judicial review, would not interfere. Nothing, in any case, is stated as to how it will be impermissible or even inequitable to provide for residency period of ten years instead of five years, as was provided earlier. The respondents have given reasons for enhancing the eligibility criteria which is dependent upon the DOP&T guidelines adverted to above. The same are not under challenge nor even there is a plea that there is no rationale behind the said guidelines.
8. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs. ( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/