UNION OF INDIA AND ORS.versusK.B. RAJORIA

                       UNION OF INDIA AND ORS.                                   A
                                      v.
                               K.B. RAJORIA

                             MARCH 28, :fOOO

          [M. JAGANNADHA RAO AND MRS. RUM PAL, JI.]                              B

      Service Law :

     Public Works Department (Director General of Works) Recruitment Rules,
1986:
                                                                                 c
       Schedule-Notes ( 1) and (2 )-DPT's O.M. No. 22011105186 Estt., Dated
10.4.1989-Notional promotion-Counting the period as 'Qualifying service'
for further promotion-Promotion to the post of Director General (Works)-
Requirement of two years regular service as Additional Director General
(Works)-Held, in the case of the officer granted notional promotion as           D
Additional Director General (Works), his appointment being regular to the
post, the said period would be counted 9s qualifying service .for further
promotion to the post of Director General (Works)-ln such a case actual
service for the prescribed period is not required.

       Locus Standi-Public Works Department-Promotion to the post of Di-         E
rector General (Works )-Requirement of two years service as Additional Direc-
tor General (Works)-Officer notionally promoted to the post of Additional
Director General considered for promotion-Another officer.filing an applica-
tion before Central Administrative Tribunal claiming consideration on the
ground that he also ought to have been granted notional promotion as Addi-
tional Director General, and, therefore he should have also been considered-
                                                                                 F
Held, the officer has no locus standi since he was not granted national promo-
tion as Additional Director General.

      Words and Phrases :

      'Service', 'regular service'-Meaning of.
                                                                                 G

     The Schedule to the Central Public Works Department (Director
General of Works) Recruitment Rules, 1986 provided that the post of
Director General (Works), a selection post, could be filled up by promotion
amongst, inter alia, Additional Directors General (Works) with two years         H
                                     613
      614                      SUPREME COURT REPORTS                (2000) 2 S.C.R.
 A   regular service. Appellant No. 4, who had been granted on 10.6.1998
     notional promotion to the post of Additional Director General (Works)
     with effect from 22.2.1975, was considered for the post of Director General
     in January 1999. Respondent No. 1 filed an application before the Central
     Administrative Tribunal claiming that he was also eligible to be considered
     for the post of Director General, since the post of Additional Director had
 B
     fallen vacant on 1.5.1995 and he should have been given notional promo-
     tion as Additional Director General w.e.f. 1.5.1995. The Tribunal dismissed
     the application. The.respondent filed a writ petition before the High Court,
     which held that on the cut-off date, i.e.1.7.1997 neither the respondent nor
     appellant No. 4 was eligible for promotion since 'regular service' in the
·C ·Rules meant 'actual service' and that the fiction of notional sernce could
   ' ·not amount to two years experience necessary under the Rules. The High
     Court held that notional seniority granted to appellant. No. 4 was no
     substitute for requirement of two years' regular service as Additional
     Director General (Works). Aggrieved, the Union of India and others filed
 D the present appeal.
             Allowing the appeal, the Court

             HELD : 1.1. The High Court erred in construing the words 'regular
       service in the grade' as actual physical service. The word "regular'' does
       not mean "actual". The question the High Court should have considered
 E
       was whether the appointment of appellant No. 4 as Additional Director
       General (Works) was regular and in accordance with the Rules or was it
       irregUiar in the sense that it was contrary to any principle of law. It is
       nobody's case that the notional promotion granted to appellant No. 4 was
       'irregular'. By giving him notional promotion as Additional Director Gen·
 F     eral w.e.f. 22.2.1995, he was in fact regularly appointed to the post on that
       date. [617-C; F-G; 618-A-B]

             K. Madhavan v. Union of India, [1987) 4 SCC 566, relied on.

             1.2. The High Court erred in equating the works 'regular service'
 G     with 'actual experience'. Appellant No. 4 was admittedly superseded by his
       junior on 22.2.1995, and, therefore, later he was granted notional promo-
       tion as AdditionaJ Director General (Works) w.e.f. 22.2.1995. In terms of
       the provisions of para 18.4.3 of the Office Memorandum No. 220W05tS6
       Estt. D dated 10.4.1989, he was entitled to count the period from 22.2.1995
 H     as the period of qualifying service for the purpose of further promotion to
                                       ' '
                       U.0.1. v. K.B. RAJORIA [RUMA PAL, J.]                615
    the post of Director General. Further, Note (1) to the Schedule to the          A
    Central Public Works Department (Director General of Works) Recruit-
    ment Rules, 1986 leaves no room for doubt that the word "service" means
    "qualifying service" and Note 2 makes it clear that in case of supers.ession
    actual service for the prescribed period is not required. [619-G; B; F]

          Union of India and Others v. M. Bhaskar and Others, [1996] 4 SCC 416,     B
    Distinguished.

           2.1. The High Court erred in not dismissing the writ petition of the
    respondent on the ground of his obvious lack of locus standi as he had
    never been granted notional promotion. His case was built on hypothetical
    situations and his position could not reasonably be equated with that of
                                                                                    c
    appellant No. 4. [617-BJ

          2.2. Besides, the concession of the respondent before the Tribunal
    that he was not challenging the eligibility of appellant No. 4 to be consid-
    ered for promotion was overlooked by the High Court. [617-A]                    D
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2272 of 2000.

         From the Judgment and Order dated 7.9.99 of the Delhi High Court in
    C.W. No. 3283 of 1999.

          Altaf Ahmad, Additional Solicitor General, Raju Ramachandran, Ms. B.      E
    Sunita Rao, S.N. Terdol, Anis Ahmad Khan, Arun·K. Sinha and Rakesh Singh
    for the appearing parties.

          The Judgment of the Court was delivered by

          RUMA PAL, J. Leave granted.                                               F

           The undisputed facts of this case are that the appellant No. 4 was
    notionally promoted to the post of Additional Director General (Works) of the
    Public Works Department with effect from 22nd February, 1995. The notional
    promotion was given by an order dated 10th June, 1998 in terms of instruc-
                                                                                    G
    tions contained in the DPT's O.M. No.22011/05/86 Estt. D, dated 10th April,
    1989 as amended from time to time. In the meanwhile on 1st July 1997, the
    post of Director General,(Works) CPWD fell vacant. The mode of selection
    to the post has been laid down in the Central Public Works Department
    (Director General of Works) Recruitment Rules, 1986, which were amended
    on 23rd March 1992 by the Central Public Works Department (Director             H




•
    616                      SUPREME COURT REPORTS                  [2000) 2 S.C.R.
A   General of Works) Recruitment (Amendment) Rules, 1992. The amendment
    came into force on 4th April 1992. The Schedule to the Rules ( referred to
    hereinafter as the said Schedule) provides that the post of Director General
    (Works) is a selection post to be filled up by promotion from amongst, inter-
    alia, 'Additional Director General (Works) with two years' regular service in
    the grade'.
B
          Since Krishnamoorti had been granted notional promotion to the post of
    Additional Director General on 10.6.98 w.e.f. 22nd February 1995, his name
    was considered for the post of Director · General when the Departmental
    Promotion Committee met in January, 1999.
c          Shri K.B. Rajoria ( the Respondent No.1 before us) filed an application
    before the Central Administrative Tribunal claiming that he was also eligible
    to be .considered for the post of Director General. According to Rajoria, if the
    Departmental Promotion Committee had been held in 1995- 96, he could have
    been appointed to the post of Additional Director General which had fallen
D   vacant on 1.5.1995. His case was that he too should have been given notional
    promotion with effect from 1.5.95 in which case he would have also been
    eligible for promotion to the post of Director General. Rajoria claimed that he
    had been unfairly discriminated against because only Krishnamoorti was being
    considered for the post of Director General. It was however made clear before
    the Tribunal that Rajoria was not challenging the eligibility of Krishnamoorti
E
    to be considered but was only seeking consideration of his own case along
    with Krishnamoorti for the post of Director General.

          The Tribunal dismissed the respondent No. 1's application on 12th May
    1999. The 'respondent No. 1 challenged the decision of the Tribunal before the
F   High Court under Article 226 of the Constitution.

          The High Court held that neither the respondent no.1 nor Krishnamoorti
    were eligible on the cut off date i.e. 1st July, 1997 for promotion to the post
    of Director General. According to the High Court the words 'regular service'
    in the Rules means actual service and that the fiction of notional promotion
G   could not amount to the two years' experience necessary under the Rules. The
    High Court was of the view that the notional seniority granted to Krishnamoorti
    by the order dated 10th June 1998 was no substitute for the requirement of
    two years' regular service as Additional Director General (Works) which had
    been laid down in the relevant rules as the eligibility criteria for promotion to
H   the post of Director General (Works).
                   U.0.1. v. K.B. RAJORIA [RUMA PAL, J.]                   617
       In our view, the High Court's decision cannot be sustained. First, the      A
concession of Rajoria before the Tribunal that he was not challenging the
eligibility of Krishnamoorti to be considered for promotion was overlooked.

      Second, the High Court erred in not dismissing the writ petition on
the ground of the obvious lack of locus standi in Rajoria who had never
been granted notional promotion because the DPC was not in fact held for
                                                                                   B
reasons which the High Court felt were unavoidable. Rajoria's case was
built on hypothetical situations, and his position could not reasonably be
equated with that of Krishnamoorti.

       Third, the High Court erred in construing the words 'regular service        C
in the grade' as actual physical service. If that were so, then an ad hoc
appointee who actually serves in the post could also claim to be qualified
 to be considered for the post of Director General. The High Court itself held
that "ad hoc service rendered by any of the parties would not count towards
eligibility".                                                                      D
      Finally, while considering the definition of the word 'regular' in the           "
Concise Oxford Dictionary, Ninth Edition, the High Court noted that it
meant:

             "(1) conforming to a rule or principle, systematic; (2) harmoni-      E
         ous, symmetrical; (3) acting or done or recurring uniformly or
         calculably in time or manner, habitual, constant, orderly; (4) conform-
         ing to a standard of etiquette or procedure, correct, according to
         convention; (5) properly con.stituted or qualified, not defective or
         amateur, pursuing an occupation as one's main pursuit."
                                                                                   F
       The word "regular" therefore does not mean "actual" and the first
question the High Court should have considered was whether the appoint-
ment of Krishnamoorti was regular and in accordance with the Rules or was
it irregular in the sense that it was contrary to any principle of law?

      The decision which is somewhat apposite is the case of K. Madhavan           G
v. Union of India, (1987] 4 SCC 566 where the eligibility requirement was
eight years in the grade 'on a regular basis'. In that case it was held :

        In our view, therefore, the expression 'on a regular basis' would mean
        the appointment to the post on a regular basis in contradistinction to     H
    618                     SUPREME COURT REPORTS                  (2000] 2 S.C.R.
A            appointment on ad hoc or stopgap. or purely temporary basis."

          It is nobody's case that the notional promotion granted to Krishnamoorti
    was 'irregular'. By giving him notional promotion as Additional Director
    General With effect from 22.2.95, Krishnamoorti was in fact regularly ap-
    pointed to the post on that date'.
B
          The next question which should have beeri considered- was the m~g
    of the word 'service' in the light of the relevant rules.
                                                                                      -
          The Office Memorcmdum referred to in the order dated 10th June, 1998
    and in terms of which notional promotion was granted to Krishnamoorti
c   contains several provisions of which one is relevant for our purposes:

            "18.4.3. If the officers placed junior to the officer concerned have
            been promoted, he should be promoted immediately and if there is
            no vacancy the junior-most person officiating in the higher grade
            should be reverted to accommodate him. On promotion, his pay
D           should be fixed under F.R. at th«; stage it would have reached, had
            he been promoted; from the date the officer immediately below him
            was promoted but no arrears would be admissible. The seniority of
            the officer would be determined· in the order in which his name, on
            review, has been placed in the select list by DPC. If in any such case
E           a minimum period of qualifying service is prescribed for promotion
            to higher grade, the period from which an officer placed below the
            officer concerned in the select list was promoted to the higher grade,
            should be reckoned towards the qualifying period of service for the
            purpose of determining his eligibility for promotion to the next higher
            grade"
F
             Analysed these instructions provide:

             (i) For the immediate promotion of a person who has been super-
             seded.

G           (ii) Upon such promotion his pay should be fixed at the stage at which
            it would have reached had he been promoted from the date that the
            junior officer was promoted.

             (iii) The seniority of such notionally promoted officer would be
             determined according to the select list prepared by the DPC if a
H            minimum period is prescribed.
                                   .
                    U.O.l. v. K.B. RAJORIA [RUMA PAL, J.]                     619
         (iv) For the further promotion of such notionally promoted officer, his      A
         eligibility would be calculated as including the period from which the
         junior officer was promoted.

       Krishnamoorti was admittedly superseded by Shri S.R. Goyal, a junior
officer on 22nd February, 1995, when S,R. Goyal was promoted to the post
of Additional Director General (Works). In terms of the provisions of para            B
18.4.3, Krishnamoorti was entitled to count the period from 22.2.95 as the
period of qualifying service for the purpose of further promotion to the post
of- Director General.

      The distinction drawn by the High Court between the word 'service'              c
used in the eligibility criteria in this case and the words 'qualifying service'
in para 18.4.3 is specious. The Notes to the eligibility criteria as set out in the
said schedule fortify this view. Notes I and 2 to the said schedule clarify the
position with regard to the calculation of " two years regular service in the
grade".
                                                                                      D
         "(l) The eligibility list for promotion shall be prepared with reference .
         to the date of completion by the officers of the prescribed qualifying
         service in the respective grades/posts.

         (2) If a junior with the requisite years of service is considered, the
         senior will also be considered notwithstanding the fact that he does
                                                                                      E
         not possess the requisite years of service."

                                                               (Emphasis added)
                               ~
       Note I leaves no room for doubt that the word "service" means
                                                                                      F
"qualifying service", and Note 2 makes it clear that in case of supersession
actual service for the prescribed period is not required. This is in keeping with
para 18.4.3 of the O.M. quoted earlier. As the notional date of promotion of
Krishnamoorti was 22.2.95 he was eligible to be considered for the post of
Director General in 1999.
                                                                                      G
       In the context of this case, the High Court erred in equating the words
'regular service' with 'actual experience' relying on the decision in Union of
India and others v. M. Bhaskar and Others, [1996].4 SCC 416. In that case
the eligibility criteria expressly was of "completion of 2 years' experience in
Grade II." The case is therefore entirely distinguishable.
                                                                                      H
    620                     SUPREME COURT REPORTS                [2000] 2 S.C.R.
A         The notional promotion was given to Krishnamoorti to right the wrong
    that had been done to him by his supersession on 22nd February, 1995. If
    Krishnamoorti is denied the right to be considered for promotion to the post
    of Director General on the basis of i.uch notional promotion, particularly
    when the relevant· provisions so provide, it would result in perpetuating the
    wrong done to him. That is exactly what the High Court has done.
B
         We, therefore, allow the appeal and set aside the impugned order of the
    High Court, in so far as the finding regarding Krishnamoorti was concerned.
    There will be no order as to costs.

    R.P.                                                       Appeal allowed.




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