Full Judgment Text
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CASE NO.:
Appeal (civil) 4679-4680 of 1996
Appeal (civil) 10983 of 1996
PETITIONER:
P.U. Joshi & Ors., Union of India & Ors.
RESPONDENT:
The Accountant General, Ahmedabad, & Ors., Basudeba Dora & Ors.
DATE OF JUDGMENT: 19/12/2002
BENCH:
Doraiswamy Raju & Shivaraj V. Patil
JUDGMENT:
J U D G M E N T
D. Raju, J.
Civil Appeal No.4679 of 1996 has been filed by the appellants herein, who
lost in their application filed before the Central Administrative Tribunal,
Ahmedabad Bench, in O.A. No.162 of 1989, which came to be dismissed by an
order dated 10.8.1994. Since their application for review in R.A.No.31 of 1994
also came to be dismissed by an order dated 12.10.1994, Civil Appeal No.4680
of 1996 has also been filed.
The various cadres of establishment in Indian Audit and Accounts
Department relating to the office of the Accountant Generals in the States were
bifurcated and restructured w.e.f. 1.3.1984 into (i) Accountant General (Accounts
and Entitlement) and (ii) Accountant General (Audit). So far as the State of
Gujarat is concerned, the combined office of the Accountant General, which had
its main office at Ahmedabad with a Branch at Rajkot, was bifurcated into two
separate offices, A.G. (Audit) at Ahmedabad/Rajkot and office of the A.G. (A & E)
at Rajkot/Ahmedabad. Prior to the said bifurcation, the combined office, among
other categories, had in the Supervisory Cadres (a) Section Officers (those who
were promoted after passing Subordinate Accounts Services Examination)
subsequently known as "Section Officers Grade Examination", (b) Supervisors
(those who were promoted on seniority-cum-rejection of unfit basis without
passing SAS/SOG Examination; and (c) Selection Grade Section
Officers/Selection Grade Supervisors (appointed subject to fulfillment of eligibility
criteria Section Officers and Supervisors were promoted to this category on
their fulfilling the required criteria of passing the examination and putting in the
required service). Supervisors were appointed only in cases of non-availability of
qualified Section Officers to man the supervisory posts and they were subject to
reversion if adequate number of Section Officers were available. Further, the
Section Officers were considered senior to Supervisors and the promotion
channel to the higher post of Accounts Officers was open to Section Officers only
and not to Supervisors. After restructuring of the Department w.e.f. 1.3.1984, so
far as the A.G. (A & E) offices are concerned, these class of officers were
categorized into (i) Section Officers (SOGE qualified hands - pre-revised scale
Rs.500-900/-); (ii) Supervisors (unqualified hands - pre-revised scale Rs.500-
900); and (iii) Selection Grade Section Officers Selection Grade Supervisors
whose pre-revised scale was Rs.775-1000. So far as A.G. (Audit) offices are
concerned, as per the restructured pattern it had Section Officers 20% (SOGE
qualified hands with pre-revised scale of Rs.500-900) and Assistant Audit
Officers - 80% (higher post, SOGE qualified hands with pre-revised scale
Rs.775-1000). Since in the newly constituted Audit Offices w.e.f. 1.3.1984, there
was no cadre of Supervisors in the Audit Wing, the existing staff of Supervisors
were not allowed to switch over to the Audit Office. In view of the above, option
was given to such of those who desired to get reverted to Audit Offices, in which
case they would be required to be reverted as Special Grade Auditors and then
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switched over to the Audit Offices from that cadre. Though free option was given
to all the members of combined offices to remain either in the A & E Offices or to
go over to the Audit Offices, the appellants in the above two appeals, who were
in the combined establishment, had chosen to remain with A & E Office.
While matter stood thus, when the Fourth Central Pay Commission’s
recommendations were made and accepted by the Government of India w.e.f.
1.1.1986, the "Selection Grade" was abolished from all non-gazetted cadre in all
the Departments of Government of India all over India, including the Department
of IA & AD. The orders in this regard were issued by the Government of India on
13.9.1986 and from that date the Selection Grade was abolished. As a result of
which, the Supervisory set up in A & E Office and Audit remained from 13.9.1986
as follows :-
"A & E Offices Audit Office
(i) Section Officers (i) Section Officers
(SOGE qualified hands) 20% (SOGE qualified hands)
(Revised pay-scale (Revised pay-scale
Rs.1640-2900 w.e.f. 1.1.86) Rs.1640-2900 w.e.f 1.1.86)
(ii) Supervisors Asstt. Audit Officers
(Unqualified hands) 80% (SOGE qualified hands)
(Revised pay-scale (Revised pay-scale
Rs.1640-2900 w.e.f. 1.1.86). Rs.2000-3200 w.e.f. 1.1.86)."
As part of the Scheme of implementation of the Fourth Central Pay
Commission’s recommendations and bringing the pay-scales of cadres of A & E
Offices and Audit Office at par with each other, the Government of India issued
orders of upgradation of posts of Section Officers in A & E Offices w.e.f. 1.4.1987
and accordingly the office of the Comptroller and Auditor General of India, New
Delhi, by its proceedings dated 17.8.1987 upgraded 80% of posts of Section
Officers into Assistants Accounts Officers cadre w.e.f. 1.4.1987. In consultation
with the Comptroller and Auditor General of India and in exercise of powers
conferred under Article 148 of the Constitution of India, the President of India
made the IA & AD (Assistant Accounts Officers) Recruitment Rules, 1989
applicable w.e.f. 1.4.1987, as a consequence of which the set up of the
Supervisory Cadre for A & E Offices w.e.f. 1.4.1987 stood as follows :-
"(i) Section Officers 20% Pay-scale Rs.1640-2900
(SOGE qualified hands)
(ii) Asstt. Accounts Officers 80% Pay-scale Rs.2000-3200
(SOGE qualified hands
having 3 years regular service
in the grade)
(iii) Supervisors Pay-scale Rs.1640-2900
(unqualified hands to the
extent (i) & (ii) are not
applicable)"
Since the pay-scales were to be brought on par in both the offices with
eligibility criteria on the same lines and inasmuch as there was no cadre of
Supervisors in Audit Stream but only the cadres of Section Officers/Assistant
Audit Officers cadre of qualified hands alone existed, the criteria of passing
SOG Examination to get into the pay-scale of Assistant Accounts Officers (i.e.,
Rs.2000-3000 in the revised pay-scales) and for promotion to Assistant Accounts
Officers was prescribed by the Comptroller and Auditor General of India in terms
of the directions issued by the Government of India under their letter dated
12.6.1987. As and when the selection grade was abolished w.e.f. 1.1.1986, then
the existing Selection Grade Supervisors, who were already holding the higher
scale of post identical to Assistant Accounts Officers cadre, were allowed to
continue in that scale treating their pay as "personal pay" to them. The grievance
of the appellants, who are Supervisors in the office of A & E, had been that since
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pay-scales of Supervisors and S.Os. are identical and duties and responsibilities
of Supervisors/S.Os./A.A.Os. are similar, they should also be given promotion to
(i) S.G. Supervisors posts in the pay-scale of Rs.2000-3200 or (ii) promotion to
Assistant Accounts Officers in the pay-scale of Rs.2000-3200. In staking such
claims, according to the Department, the appellants ignored the fact that the
selection grade posts no longer exist in any Department all over India w.e.f.
1.1.1986 when the revised pay-scales came into force and no exception could be
made in respect of IA & AD Department alone and that in the absence of any
scheme for promotion of Supervisors to the cadre of Assistant Accounts Officers,
the only course open to the appellants was to take SOG Examination to get
promoted as Section Officers and thereafter as Assistant Accounts Officers on
fulfillment of the required eligibility criteria in terms of the Recruitment Rules, as
per which any one to become eligible to the post of Assistant Accounts Officer
should pass the Section Officers Grade Examination and possess three years
service in the grade and that, therefore, the Supervisors, who have not even
passed the Section Officers Grade Examination, are not eligible for consideration
for promotion as Assistant Accounts Officers or for being placed in the scale of
pay of A.A.Os.
The claim of the appellants, based on denial of equality of opportunity and
equal protection, was rejected by the Tribunal, both in the order dated 10.8.1994
and subsequently in the order dated 12.10.1994. It may be incidentally pointed
out at this stage that similar claims were projected by persons similarly placed
before the Central Administrative Tribunal, Chandigarh Bench, in O.A.
No.561/HP/89 and O.A. No.1017/HP/91 and the said Tribunal also by its decision
dated 9.9.1993 rejected a similar challenge. Yet another claim projected before
the Central Administrative Tribunal, Principal Bench, New Delhi, in Registration
O.A.No.1502/88 and this Bench of the Central Administrative Tribunal also
rejected the claim of the applicants therein.
While that be the position, similar claims projected by some of the
aggrieved persons before the Central Administrative Tribunal, Bench at Cuttack
in the State of Orissa, in O.A. No. 144/81 came to be allowed on the ground that
since the directions issued by the Government envisaged a common seniority list
of Section Officers and Supervisors performing identical nature of duties, there
was no justification to thereafter discriminate them for purposes of promotion or
pay-scales and consequently directed the Department to grant promotion
considering their seniority inter se if they are otherwise suitable on the date on
which they are entitled to be promoted, with further directions relating to their
entitlement to promotional monetary benefits and other benefits flowing from
such promotions, setting out also a time limit within which such orders have to be
implemented. It is against this judgment of the Cuttack Bench of the Central
Administrative Tribunal that Civil Appeal No.10983 of 1996 came to be filed, by
the Union of India and the Department concerned.
Heard the learned counsel on either side. The stand on behalf of the
appellants-private parties is that their service rights are to be governed by the
rules relating to their service as on the date of bifurcation on 1.3.1984 and that
the rules and the service conditions cannot be altered to their detriment by the
subsequent rules. It is also contended that the appellants, working as
Supervisors, are also performing duties that are discharged by the Assistant
Accounts Officers and they would, therefore, be entitled to the scale of pay of
Rs.2000-3200 of A.A.Os. (earlier SG Supervisors) on the principle of ‘equal pay
for equal work’. The denial of promotional prospects to the category of
Supervisors, like the appellants, is also challenged on the ground of arbitrariness
and hostile discrimination. Lastly, it was contended that before bifurcation
though it was assured that the pay structure for the Accounts and Entitlement
offices would be the same as the one before bifurcation and the existing
promotional prospects and selection grade will be applicable mutatis mutandis, it
was not actually adhered to after bifurcation and for this reason also, relief as
prayed for ought to be granted. Inspiration was sought to be drawn, based on
the reasoning of the Cuttack Bench of the CAT, which order is the subject-matter
of challenge in the appeal filed by the Union of India and others.
Per contra, on behalf of the Union of India and the Department concerned,
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it is contended that in the light of the statutory rules made after bifurcation,
governing the recruitment to the posts of Assistant Accounts Officers, one should
pass the Section Officers Grade Examination and possess three years
experience in the grade as Section Officers and inasmuch as the appellants and
persons similarly placed in other States have not got qualified themselves by
passing the SOG Examination, they are ineligible to be considered for promotion
as A.A.Os. It is also contended that in the teeth of the rules made under Article
148 of the Constitution of India by the President of India in consultation with the
CAG of India duly published on 11.3.1989 effective from 1.4.1987, no reliance
can be placed on administrative instructions issued by the Authority of CAG to
assert any claim of rights in derogation of the statutory rules. The appellants and
persons similarly placed, who opted to remain in the Accounts and Entitlement
stream, had to conform to the relevant rules applicable and that even as per the
instructions relied upon by the appellants themselves, they could not assert
successfully their claims. It is contended further for the respondent-Department
that the right of the Government to bifurcate departments and suitably restructure
them in the interests of better administration and in order to ensure greater
efficiency is unquestionable and as long as the appellants do not conform to the
revised pattern and satisfy the requirement of the statutory rules governing the
service conditions, no grievance of denial of equal opportunity or discrimination
could be made, for and on behalf of the appellants. So far as the promotional
prospects are concerned, it is contended that even Supervisors, whose pay-scale
is identical to Section Officers having more than three years of regular service in
the cadre of Supervisors, cannot automatically claim for being promoted as
A.A.Os. and it is only when they qualify in the SGO Examination they become
eligible for consideration and promotion. In challenging the decision of the
Cuttack Bench of the CAT, it is strenuously contended that constitution, frame
and reconstitution and restructuring of departments, creation and abolition of
posts therein are matters of policy depending upon administrative exigencies and
exclusively within the discretion of the Government and as such the same could
neither be challenged nor the Tribunal could substitute its views to that of the
Government, as to how it should be. As to the reasoning based upon the
common seniority list, it is contended for the Department that such common
seniority list of Supervisors and Section Officers was prepared only for the limited
purpose and for the period to facilitate the grant of non-functional selection grade
and that inasmuch as Supervisors do not really belong to the category of Section
Officers.
We have carefully considered the submissions made on behalf of both
parties. Questions relating to the constitution, pattern, nomenclature of posts,
cadres, categories, their creation/abolition, prescription of qualifications and other
conditions of service including avenues of promotions and criteria to be fulfilled
for such promotions pertain to the field of Policy and within the exclusive
discretion and jurisdiction of the State, subject, of course, to the limitations or
restrictions envisaged in the Constitution of India and it is not for the Statutory
Tribunals, at any rate, to direct the Government to have a particular method of
recruitment or eligibility criteria or avenues of promotion or impose itself by
substituting its views for that of the State. Similarly, it is well open and within the
competency of the State to change the rules relating to a service and alter or
amend and vary by addition/substruction the qualifications, eligibility criteria and
other conditions of service including avenues of promotion, from time to time, as
the administrative exigencies may need or necessitate. Likewise, the State by
appropriate rules is entitled to amalgamate departments or bifurcate departments
into more and constitute different categories of posts or cadres by undertaking
further classification, bifurcation or amalgamation as well as reconstitute and
restructure the pattern and cadres/categories of service, as may be required from
time to time by abolishing existing cadres/posts and creating new cadres/posts.
There is no right in any employee of the State to claim that rules governing
conditions of his service should be forever the same as the one when he entered
service for all purposes and except for ensuring or safeguarding rights or benefits
already earned, acquired or accrued at a particular point of time, a Government
servant has no right to challenge the authority of the State to amend, alter and
bring into force new rules relating to even an existing service.
So far as the grievances of the appellants and private parties-respondents
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in the above cases are concerned, they have no sound or valid basis in law.
Before even bifurcation on 1.3.1984, the posts of Supervisors, Selection Grade
Supervisors as well as Section Officers and Selection Grade Section Officers
existed separately. Section Officers were considered senior to Supervisors and
promotion to higher posts of Accounts Officers was open to Section Officers only
and not to Supervisors. After bifurcation, since there was no cadre of
Supervisors in the Audit Offices, the question of accommodating them in the
Audit Offices as Supervisors did not arise. With the implementation of the
recommendations of the Fourth Central Pay Commission, ’Selection Grades’
were abolished from all non-gazetted cadres in all Departments of Government
of India all over the country, including the Department of IA & AD. As observed
by the Bench of the CAT at Cuttack which held in favour of the private parties on
some other ground, it will be too late in the day to put the clock back by claiming
to resurrect the abolished selection grade which was found to be already non-
functional, too. As noticed supra, the supervisory cadre for A & E offices w.e.f.
1.4.1987 came to consist of (a) Section Officers 20% (SOGE qualified hands);
(b) Assistant Accounts Officers 80% (SOGE qualified hands with further
experience of three years regular service in the grade) and (c) Supervisors
(unqualified hands to the extent whenever clauses (a) and (b) were not
available only. As noticed earlier, a Supervisor (unqualified) has to undertake
SOG Examination to be promoted as Section Officers and thereafter only get
promoted as A.A.O. Merely because the pay-scales were similarly granted to
these unqualified Supervisors on par with Section Officers alone apparently due
to alteration and restructuring in the set up of offices those Supervisors, who
had not even passed the SOG Examination, therefore, could neither be
appointed on promotion as Section Officers nor could claim equal status with the
SOG Examination qualified persons to straightaway get promoted as A.A.Os., to
which the feeder category is only Section Officers and not Supervisors. It is
necessary to notice here that Supervisors even earlier could not have been
promoted to the higher post of Accounts Officers. In addition to it, the other
criteria of three years regular service as Section Officer, before becoming eligible
for consideration to be appointed as A.A.Os. on promotion also must be satisfied.
The Cuttack Bench of the CAT, which decided the matter and which decision is
challenged by the Department in Civil Appeal No.10983 of 1996, committed a
grave error in taking it for granted equality in status and grade persons like the
private parties-respondents on par with Section Officers with higher qualifications
merely because a common seniority list was prepared ignoring the fact that it
was not for purposes of further promotion but for the limited purpose of giving
only the benefit of non-functional selection grade.
Consequently, as long as the appellants in Civil Appeal Nos.4679-4680 of
1996 and respondents in Civil Appeal No.10983 of 1996 have not acquired the
qualification of passing the SOG Examination and got promoted to the post of
Section Officers and put in three years regular service as such, which alone
constituted the feeder category for further promotion as A.A.Os., there is no
scope for according promotion to them despite the fact that there may be
vacancies available in the A.A.Os. The Tribunal, which passed the order, which
is the subject-matter of challenge in Civil Appeal No.10983 of 1996, was not right
in directing the promotion to them in derogation of the statutory rules under which
they are ineligible for any such promotion.
The plea based on the denial of equal opportunity and equal protection of
laws has rightly been rejected in the light of the principles laid down by this Court
in the decisions noticed by the Bench of the Tribunal, which rendered the
decision in respect of the appellants, who serve in the State of Gujarat. Likewise,
it was impermissible for the Bench of the Tribunal at Cuttack to have further
directed to give the promotional monetary benefits and other benefits flowing
from such promotion when they will not be entitled to any such relief under the
statutory rules, which the Tribunal itself could not, on its own, either bypass or
alter or give a go-by too or direct the department to ignore and contravene.
For all the reasons stated above, Civil Appeal Nos.4679-4680 of 1996
shall stand dismissed. Civil Appeal No.10983 of 1996 filed by the Union of India
and others shall stand allowed and consequently the order passed in O.A.
No.144 of 1991 shall stand set aside. There will be no order as to costs.
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