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1988 (3) TMI 457

..... , A. Subba Rao and T.S. Sundrarajan-in-person for the Respondents. JUDGMENT B.C. Ray, In these appeals under special leave the only question that falls for consideration is whether the service rule requiring 8 years of approved service as Section officer both for the direct recruits as well as for promotees for being eligible for consideration for promotion to the Grade I Post in Central Secretariat Service is arbitrary being in contravention of Articles 14 and 16 of the Constitution of India. The matrix of the case is that the appellants along with one Rajiv Kalsi made four applications under section 19 of the Administrative Tribunals Act, 1985 challenging the vires of proviso to sub-rule 2 of Rule 12 of Central Secretariate Service (C.S.S.), 1962 as amended by Notification No. 5/8/80-CS. I dated 29th December, 1984 prescribing 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade-I Post in C.S.S. The appellants, Miss Prabha Devi and Shri Rajiv Kalsi were recruited directly- through examination held by Union Public Service Commission in 1978 as Section officers. The appellants Shri G.S. Grewal and Shri Surjit Singh w .....

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..... d 10 years' approved service in that Grade; provided that the aforesaid condition of six years' approved service shall not apply to a person belonging to the Scheduled Castes or the Scheduled Tribes." Thus according to this proviso to sub-rule (2) of rule 12 a direct recruit Section officer who has rendered six years' approved service in that grade was eligible for consideration for promotion to Grade I whereas a promotee Section officer would have to render ten years' approved service in the grade of Section officer before being eligible for consideration for promotion. In 1979 the substantive part of sub-rule (2) of rule 12 was amended to provide eight years' approved service in the Section officers' Grade as against ten years approved service for eligibility for promotion to Grade I of C.S.S. The third proviso of sub-rule (2) of rule 12 was further substituted by the following proviso by Notification dated December 29, 1984: "Provided further that if any person appointed to the Section officers' Grade is considered for promotion to Grade I under this sub-rule, all persons senior to him in Section officers' Grade, belonging to the Schedul .....

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..... ntitles them for consideration for promotion to the higher post while their juniors i.e. promotee Section officers are being considered for promotion to the higher post. The purpose of the seniority in service is that the senior will be considered for promotion before those who are junior to them in the service. Of course, a senior incumbent may be considered not suitable for promotion. It has been submitted that the condition of eligibility as laid down in the said rule has no reference to suitability for promotion to the post and as such it is arbitrary and so void. It has been submitted in this connection that prior to 1978 directly recruited Section officers having rendered 3-4 years of service in that grade had been promoted to Grade I and they had duly performed their duties. Some of them have rendered their service in the promoted post very efficiently and they have earned remarks such as "very meritorious and outstanding" from the Department. There is nothing to show that the promoted direct recruits were proved inefficient in discharging their duties and responsibilities of the higher post. Mr. Shanti Bhushan furhter submitted that even in accordance with the pro .....

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..... itted that the appellants who are directly recruited Section officers on the result of examination held by the Union Public Service Commission in 1978 and 1980 against substantive vacancies, have become senior to the promotee Section officers on the basis of the quota reserved for direct recruits even though the promotee Section officers have rendered more than thirteen years' service as Section officers. This Fixation of seniority has no reference to the length of service. The inter se seniority between the direct recruits and the promotee Section officers being determined on the basis of the quota, the promotee Section officers even though they have been A promoted to the post of Section officers and have rendered service for a considerable period have become juniors to them in service and were not considered for promotion even. These promotee Section officers like the Respondent No. 2 have not been considered for promotion in spite of their rendering service as such for more than thirteen years whereas the direct recruit Section officers who were appointed much later were considered and promoted purely on the ground of seniority. This has created frustration in the minds of .....

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..... d in the rule framed by the rule- making authority. The rule-making authority by the amendment made in 1984 has brought in an uniform eligibility qualification of eight years' approved service to be rendered by the Section officers-both promotees and direct recruits before coming within the Zone of consideration for promotion to Grade I. Thus it treats all Section officers equally and there is no discrimination between the Section officers. It has been submitted that this rule is arbitrary and unreasonable as it prescribes a certain minimum service in a lower post for promotion to a higher post on the ground that it has no nexus to suitability for holding the higher post. This submission in our considered opinion, cannot be sustained in as much as experience over certain number of years in service and also due performance of the duties and responsibilities attached to the post of Section officer is very relevant and as such prescribing such an eligibility qualification has nexus to the suitability for the promoted post. The directly recruited Section officers are not totally excluded from the zone of consideration for promotion. They will be considered like the promotee Section .....

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..... rect recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section officers as well as the promotee Section officers. The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same hav .....

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