UNION OF INDIA AND ORS.versusP.C. MISRA

A                            UNION OF INDIA AND ORS.
                                          v.
                                    P.C. MISRA

                                SEPTEMBER 2, 1993

B                [S.C. f,.GRAWAL AND DR. A.S. ANAND, JJ.)

          Civil Services :

          Delhi, Andaman & Nicobar Islands Civil Service Rules, 1971-Rules
C 3(2), 18, 30, and 31-lntroduction of Junior Administrative Grade-Selection
    and appointment-Subsequent amendment in the Rules-Competence of
    Rule making authority and validity of the amendments.

          The Respondents joined the Delhi, Andaman and Nicobar Islands
    Civil Service and were governed by the Delhi and Andaman & Nicobar
D   Islantls Civil Service Rules, 1971. Initially the service consisted of Grade-I
    (Selection Grade) and Grade II. By memorandum dated November 26,
    1987, that Government introduced one more Grade viz. Junior Administra-
    tive Grade, with effect from January 1, 1986. The relevant provisions
    governing the newly created Grade were introduced by the 1988 Amend-
E   ment in this Rules.

        The Respondents were promoted to Selection Grade and further
  appointed to different posts which later fell in the Junior Administrative
  Grade after the Rules were amended in 1988. Though the Respondents
F were considered for appointment to the Junior Administrative·Grade, they
  were not selected and some of their juniors were appointed to the Junior
  Administrative Grade on 17.5.1989. The Respondents approached the
  Central Administrative Tribunal challenging their non-selection and the
  Tribunal directed that the respondents should be deemed to have been
G regularly appointed to the Junior Administrative Grade with effect from
  1.1.1986.

         Against the Tribunal's judgment, Union of India preferred the
    present appeals.

H        Allowing the lippeals, this Court
                                       96
                          U.O.I. v. P.C. MISRA                          97

       HELD: 1. The memorandum dated November 26, 1987 bas to be              A
read along with sub-rule (3) of Rule 31 of the Delhi and Andaman &
Nicobar Civil Service Rules, 1971 and if thus read it would cover cases of
officers who were eligible on January 1, 1986, the dated of introduction of
the Junior Administrative Grade. Officers who fulfilled the conditions of
eligibility contained in the said memorandum on December 31, 1985 were        B
to be appointed on the Junior Administrative Grade with effect from
January 1, 1986 on the basis of the said memorandum and the officers who
acquired the eligibility for such appointment after December 31, 1985
would be governed by the Rules in view of the note appended below
sub-rule (3) of Rule 31 and they could be appointed to the Junior Ad-
ministrative Grade in accordance with the provisions of Rule 31. Neither      c
of the respondents fulfilled the criterion for eligibility mentioned in the
memorandum because both of them did not have four years service in
Selection Grade on January 1, 1986. Since they could not satisfy the
conditions of eligibility upto January l, 1986, they could not be deemed to
have been regularly appointed to the Junior Administrative Grade with         D'
effect from January 1, 1986, the date when the Junior Administrative
Grade was introduced. They could be appointed to the Junior Administra-
tive Grade only by way of promotion in accordance with the Rules, as
amended by the 1988 Amendment. Their cases were duly considered for
such promotion but they were not found suitable for appointment and were      E
not selected. The respondents have not been able to show any infirmity in
the said selection. Since the respondents were not found suitable for
appointment to the Junior Administrative Grade, they cannot make a
claim on the same on the basis that their juniors were appointed to the
Junior Administrative Grade. [103-F-H; 104-A-E]                               F

      2. The Tribunal was not correct in its view that the 1988 Amendment
could only govern vacancies arising after the coming into force of the 1988
Amendment and that the "vested rights and legitimate expectations" could
not be taken away by retrospective amendment of the Rules. Since the          G
Junior Administrative Grade was introduced for the first time with effect
from January 1, 1986 the rule making authority was competent to make
provision for appointment to the Junior Administrative Grade after it was
introduced. Amendments introduced in rule 31 by the 1988 Amendment
make provision for such appointments and there is no legal infirmity in       H
    98                    SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A


                                                                                      -
    the said provision. [104-E-G]

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4414-15
    of 1993.

          From the Judgment and Order dated 4.3.92 of the Central Ad-
B   ministrative Tribunal in 0.A. No. 1006 & 1140 of 1989.

                                       WITH

          Civil Appeal No. 4416 of 1993.

C         Ms. Niranjana Singh and Ms. A. Subhashini for the appellants.

          Respondent in person in C.A. 4414-15 of 1993.

        P.P. Rao, V.J. Francis, R.F. Nariman, Sri Narain and Sandeep
    Mathur for the respondents.
D
          The Judgment of the Court was delivered by

          S.C. AGRAWAL, J. Special leave granted.

          We have heard learned counsel for the appellants in the appeals and
E the respondent in person in appeals arising out of SLP (C) Nos. 14261-
    62/92 and the learned counsel for the respondent in appeal arising out of
    SLP (C) No. 14402/92.

          These appeals are directed against the orders dated March 4, 1992,
F   passed by the1 Central Administrative Tribunal, Principal Bench, New
    Delhi, hereinafter referred to as 'the Tribunal'. Since they raise common
    questions for consideration they have been heard together and are being
    disposed of by this common order.

          Delhi, Andaman and Nicobar Islands Civil Service, hereinafter
G   referred to as 'the Service', is governed by the Delhi and Andaman and
    Nicobar Islands Civil Service Rules, 1971, hereinafter referred to as 'the
    Rules'. Initially the Service consisted of two grades, viz., Grade I (Selection
    Grade) and Grade II. By Memorandum dated November 26, 1987, the
    Government of India decided that with effect from January 1, 1986, the pay
H   structure of the Service would be as under :
                   U.O.I. v. P.C.MISRA[AGRAWAL,J.]                       99

(i) Entry Grade              Rs. 2000- 3500               Existing             A
(ii) Selection Grade
    (After 8 years)          Rs. 3000-4500                Existing
    (20% of APS
(iii) Junior
                             Rs. 3700- 5000              New Scale             B
      Administrative
Grade (After 12 years)
(With at least 4 years                                   introduced
in Selection Grade)
 (20% of APS-Subject
 to identification of
                                                                               c
 posts)

       In the said memorandum, it was stated that necessary amendments
in the Rules are being carried out. The said amendments were introduced
by Delhi and Andan1an & Nicobar Islands Civil Service (Amendment) D
Rules, 1988, hereinafter referred to as 'the 1988 Amendment', notified vide
notification dated November 22, 1988. Some of the amendments introduced
in the Rules by the 1988 Amendment were:-

     (1) Sub-rule (2) of rule 3 was substituted by the following provision:
                                                                               E
        "(2) The Service shall have the following three grades, namely :-

        (i) Junior Administrative Grade;

        (ii) Grade I (Selection Grade); and

        (iii) Grade II."                                                       F

     (2) Rule 18 was substituted by the following provision :

        "18. All appointments to the Service shall be made; to the Junior
        Administrative Grade, Grade I or Grade II of the service and not
        against any specific posts included in the service."                   G
     (3) Rule 30 was substituted as under :

        "30. The scales of pay attached to the service shall be as follows :

        (i)   Junior Administrative Grade                                      H
    100                  SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A                Rs. 3700-125-4700-150-5000;

            (ii) Grade I (Selection Grade)
                 Rs. 3000-100-3500-125-4500;

            (iii) Grade II
B                 Rs. 2000-60-2300-EB-75-3200-100-3500 ."

    ( 4) In Rule 31 relating to appointments to Junior Administrative Grade
    and to Selection Grade sub-Rules (2) and (3) were introduced as under :

            "(2) An officer with a minimum of five years of regular service in
c           Grade I shall be eligible for being considered for promotion to
            Junior Administrative Grade.

             NOTE : However, for vacancies occurring upto 31.12.1991, an
            officer with at least four years regular service in Grade I shall also
            be eligible for being considered for appointment to Junior Ad-
D
            ministrative Grade provided he has got a minimum 12 years of
            combined regular service in Grade I and Grade II. Provided that
            any service rendered in Grade II which was taken into account for
            promotion grade I by a duly constituted D.P.C. will be deemed to
            be regular service for the purpose of reckioning qualifying years
E           of service:

            Provided further that service rendered in an equivalent post in a
            State Civil Service or in Grade II of the Delhi and Himachal
            Pradesh Civil Service or Delhi, Himachal Pradesh and Andaman
            and Nicobar Islands Civil shall count towards the 12 years period:
F
                                            '
            Provided further that where a Junior person is considered for such
            appointment, all persons senior to him shall also be considered for
            promotion to Junior Administrative Grade provided they have put
            in at least four years regular service in Grade I.
G
            (3) The crucial date for determining the eligibility of officers for
            promotion to Junior Administrative Grade shall be 31st December
            of the year in which the vacancy has occurred.

            NOTE : For pormotion to the Junior Administrative Grade year-
H           wise panel will be prepared from the year 1986, i.e., w.e.f. the year
                  U.O.I. v. P.C.MISRA[AGRAWAL,J.)                    101

        in which the Junior Administrative Grade has been created and       A
        the crucial date will be 31st December of the year to which the
        panel pertains."

       Schedule I to the Rules was revised and under Delhi Administration
29 posts were specified as falling in the Junior Administrative Grade. By   B
notification dated April 7, 1989, the Rules were further amended by Delhi
and Andamans & Nicobar Civil Service (Amendment) Rules, 1989 and
Schedule I was substituted and as a result the number of posts specified
as falling in the Junior Administrative Grade was raised to 40.

       P.C. Misra, the respondent in appeals arising out of SLP(C) Nos. C
14261-62/92, joined the Service in 1974. He was promoted to Selection
Grade of the Service with effect from July 16, 1984. He was appointed to
the post of Joint Director (Agriculture and Marketing), with effect from
February 4, 1988. The said post is specified as falling in the Junior Ad-
ministrative Grade in Schedule I to the Rules as substituted by the 1988 D
Amendment. He was considered for appointment to the Junior Ad-
ministrative Grade but he was not selected and his juniors were appointed
to the Junior Administrative Grade with effect from July 17, 1989. Feeling
aggrieved by his non-selection for the JUnior Administrative Grade, he filed
0.A. No. 1006/89 and 0.A. No. 1140/89 before the Tribunal. The said
application have been allowed by the Tribunal by order dated March 4, E
1992. The Tribunal has held that the said respondent should be deemed to
have been regularly appointed to the Junior Administrative Grade with
effect from January 1, 1986.

       M.N. Mathur, the respondent in appeal arising out of SLP(C) No. 'F
14402/92, joined the Service in 1970. He was promoted to Selection Grade
by order dated November 12, 1984 with effect from October 3, 1983. In
November, 1986, he was appointed to the post of Joint Director (Educa-
tion) and in July, 1987 he was posted as Assistant Commissioner (Sales
Tax) and in September, 1988, as Deputy Commissioner (Sales Tax). All the
three posts, viz., Joint Director (Education), Assistant Commissioner G
(Sales Tax) and beputy Commissioner (Sales Tax) are specified as falling
in the Junior Administrative Grade in Schedule I to the Rules as sub-
stituted by 1988 Amendment. He was considered for appointment to the
Junior Administrative Grade but was not selected and two of his juniors
                                                                      I
were appointed to the Junior Administrative Grade on May 17, 1989. He H
    102                   SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A   filed O.A. No. 1202/89 before the Tribunal which was allowed by order
    dated March 4, 1992. The Tribunal has directed that he should be deemed
    to have been regularly appointed to the Junior Administrative Grade with
    effect from January 1, 1986.

           In holding that the respondents should be deemed to have been
B   regularly appointed to the Junior Administrative Grade with effect from
    January 1, 1986, the Tribunal has proceeded on the basis that the Selection
    Grade posts specified in the Schedule I to the Rules as falling in the Junior
    Administrative Grade have been upgraded to the Junior Administrative
    Grade and respondents, who were holding the posts which are specified as
C   falling in the Junior Administrative Grade in Schedule I as revised by the
    1988 Amendment, must be deemed to have been appointed to the
    upgraded posts without requiring any fresh process of selection to be
    undergone by them. The Tribunal has also held that the 1988 Amendment
    providing for promotion to the Junior Administrative Grade from Grade I
D   (Selection Grade) being prospective could only govern the vacancies aris-
    ing after the coming into force of the 1988 Amendment and further that
    the vested rights and legitimate expectations of the respondents could not
    be taken away by retrospective amendment of the Rules and by providing
    for fresh selection to the upgraded posts in the Junior Administrative
    Grade by adopting new criteria.
E
         The appellants have not challenged the finding recorded by the
   Tribunal that the 1988 Amendment has brought about upgradation of the
   Selection Grade posts referred to in Schedule I as falling in the Junior
   Administrative Grade. We will, therefore, proceed on the assumption that
F the posts specified as falling in the Junior Administrative Grade in
   Schedule I to the Rules, as amended by the 1988 Amendment, have been
   upgraded from Selection Grade to Junior Administrative Grade. The said
   upgradation, according to the respondents and as found by the Tribunal,
   was with effect from January 1, 1986. In order that respondents could be
'G held to be entitled to be appointed to the upgraded post in the Junior
   Administrative Grade, it was necessary that (i) they should have been
   holding that post on the date of upgradation, i.e., January 1, 1986; and (ii)
   they wen; eligible for appointment to the said post on January 1, 1986(the
   day of upgradation. We find that both these conditions are not satisfied by ·
   the respondents. On January 1, 1986, both of them were not holding a post
H specified as falling in the Junior Administrative Grade in Schedule I to th:e
                   U.0.1. v. P.C. MISRA[AGRAWAL, J.]                    103

Rules, as amended by the 1988 Amendment. They came to hold such a ·A
post after January l, 1986. P.C. Misra came to hold such post i.e. Joint
Director (Agriculture and Marketing) on February 4, 1988 while M.N.
Mathur came to hold such post i.e. Joint Director (Education) in Novem-
ber, 1986.

       As regards eligibility for appointment to the Junior Administrative B
Grade it may be stated that the memorandum dated November 26, 1987
whereby the Junior Administrative Grade was introduced with effect from
January 1, 1986, prescribed that in order that a person could be appointed
to the Junior Administrative Grade he should have 12 years service with
at least four years in Selection Grade. The same requirement is prescribed
in the Note appended below sub-rule (2) of Rule 31, inserted by the 1988
                                                                              c
Amendment, which provides that for vacancies occurring upto December
31, 1991, an officer with at least four years regular service in Grade I shall
also be eligible for being considered for appointment to the Junior Ad-
ministrative Grade provided he has got a minimum 12 years of combined
regular service in Grade I and Grade II. This will show that both under D
memorandum dated November 26, 1987 and the Rules as amended by the
1988 Amendment, in order to be eligible for appointment to the Junior
Administrative Grade it was necessary for an officer to have 12 years
service and at least four years service in Grade I. Reference, in this context,
may also be made to the Note appended below sub-rule (3) of Rule 31
inserted by the 1988 Amendment. In sub-rule (3) it is provided that the E
crucial date for determining the eligibility of officers for promotion to
Junior Administrative Grade shall be 31st December of the year in which
the vacancy has occurred. In the Note appended below sub-rule (3), it is
provided that for promotion to the Junior Administrative Grade yearwise
panel will be prepared from the year 1986, i.e., with effect from the year
in which the Junior Administrative Grade has been created and the crucial
                                                                                F
date will be 31st December of the year to which the panel pertains. The
memorandum dated November 26, 1987 has to be read along with sub-rule
(3) of Rule 31 and if thus read it would cover cases of officers who were
eligible on January 1, 1986, the date of introduction of the Junior Ad-
ministrative Grade. In other words officers who fulfilled the conditions of G
eligibility contained in the said memorandum on December 31, 1985 were
to be appointed on the Junior Administrative Grade with effect from
January 1, 1986 on the basis of the said memorandum and the officers who
acquired the eligibility for such appointment after December 31, 1985
would be governed by the Rules in view of the note appended below
                                                                              H
    104                   SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A   sub-rule (3) of Rule 31 and they could be appointed to the Junior Ad-
    ministrative Grade in accordance with the provisions of Rule 31. Neither
    of the respondents fulfilled the criterion for eligibilty mentioned in the
    memorandum because both of them did not have four years service in
    Selection Grade on January 1, 1986. They came to satisfy the said require-
    ment of eligibility only after January 1, 1986. Since they could not satisfy
B   the conditions of eligibility upto January 1, 1986, they could not be deemed
    to have been regularly appointed to the Junior Administrative Grade with
    effect from January 1, 1986, the date when the Junior Administrative Grade
    was introduced ar..d the Selection 9rade post specified as falling in the
    Junior Administrative Grade in Schedule I are said to have been ungraded
                                                                                   L
C   to the Junior Administrative Grade. They could be appointed to the Junior
    Administrative Grade only by way of promotion in accordance with the
    Rules, as amended by the 1988 Amendment. Their cases were duly con-
    sidered for such promotion but they were not found suitable for appoint-
    ment and were not selected. The respondents have not been able to show
    any infirmity in the said selection. Under sub-Rule (1) of Rule 31 appoint-
D   ment of members of the Service to the Junior Administrative Grade is
    required to be made by promotion on selection basis. Since the respon-
    dents were not found suitable for appointment to the Junior Administrative
    Grade they cannot claim appointment to the Junior Administrative Grade
    on the basis that officers junior to them have been appointed to the Junior
    Administrative Grade.
E
           We are unable to appreciate the view of the Tribunal that the 1988
    Amendment could only govern vacancies arising after the coming into force
    of the 1988 Amendment and that the vested rights and legitimate expecta-
    tions could not be taken away by restrospective amendment .of the Rules.
    Since the Junior Administrative Grade was introduced for the first time
F   with effect from January 1, 1986 the rule making authority was competent
    to make provision for appointment to the Junior Administrative Grade
    after it was introduced. Amendments intorduced in rule 31 by the 1988
    Amendment make provision for such appointments and we do not find any
    legal infirmity in the said provision.
G
          In the result, the appeals are allowed, the orders dated March 4, 1992
    passed by the Tribunal in O.A. Nos. 1006/89, 1140/89 and 1202/89 are set
    aside and the said applications are dismissed. No orders as to costs.

    G.N.                                                       Appeal allowed.