UNION OF INDIA AND ORS.versusVINOD KUMAR AND ORS.

                     UNION OF INDIA AND ORS.                                    A
                                v.
                      VINOD KUMAR AND ORS.

                              JULY 15, 1996

            [K. RAMASWAMY AND G.B. PATTANA!K, JJ.]                              B

      Employees Provident Fund and Miscellaneous Provisions Act, 1952 :
Section 5-D (7)(a}-Proviso.

       Service Law-Recntitment-Promotion-Rules and orders regard-               C
in[j""Departures from-Pennission for-Prior pennission of Central Gove1n-
ment-He/d necessary Fx post facto approval given for promotion made in
deviation of mies held not valid in law-Direction given by T1ibunal for issue
of Notification for fresh recnlit1nent in accordance with mies held valid.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9817 of D
1996.

      From the Judgment and Order dated 4.10.95 of the Central Ad-
ministrative Tribunal, Chandigarh in 0.A. No. 1002/PB/94.

        R.V. Reddy, C.V.S. Rao and T.C. Sharma for the Appellants.              E
        Ms. Meera Agrawal and R.C. Mishra for the Respondents.

        The following Order of the Court was delivered :

        Delay condoned.                                                         F
        Leave granted.

        We have heard the learned counsel.

      The only short question is whether the deviation from rule of granting    G
promotion of 50% of the quota gi,ing 2 years additional benefit to the
Upper Division Clerks is valid in law? Sub-section (7)(a) of Section 5-D
of the Employees Provident Fund and Miscellaneous Provisions Act, 1952
provides method of recruitment as under :

          '7(a) The method of recruitment, salary and allowances, discipline H
                                    593
    594                   SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

A            and other conditions of service of the Additional Central Provident
             Fund Commissioner, Deputy Provident Fund Commissioner,
             Regional Provident Fund Commissioner, Assistant Provident Fund
             Commissioner and other officers and employees of the Central
             Board shall be such as may be specified by the Central Board in
             accordance with the Rules and orders applicable to the officers
B            and employees of the Central Government drmving corresponding
             scales of play.

             Provided that where the Central Board is of the opinion that it is
             necessary to make a departure from the said rules or orders in
c            respect of any of the matters aforesaid, it shall obtain the prior
             approval of the Central Government."

    Under the proviso, where the Central Board is of the opinion that it is
    necessary to make a departure from the said rules or orders in respect of
    any of the matters enumerated above it is mandatory that it should obtain
D   prior approval of the Central Government. Admittedly, prior approval was
    not obtained. On the other hand, ex post facto approval was obtained but
    in the teeth of the language of the proviso ex post facto approval is not an
    approval in the eye of law. Under these circumstances, the Tribunal had
    rightly held that the approval was not valid in law and the matter was kept
E   at large and directed the appellant to issue notification afresh for recruit-
    ment in accordance with rules. We do not find any illegality in the order.

          The appeal is accordingly dismissed. No costs.

    T.N.A.                                                    Appeal dismissed.