Statutory Rules for Promotion Eligibility Override Restrictive Executive Instructions Limiting Lien Period Service Benefits

The applicants were appointed as Assistant Section Officers (ASOs) in the Central Secretariat Service (CSS). With departmental permission, they appeared for other examinations and were selected for different posts (e.g., Divisional Accountant).

They tendered "technical resignations" while retaining a lien on their substantive posts in the CSS for a period of two years.

Within this period, the applicants resigned from their new posts and rejoined their parent cadre as ASOs.

In 2021, a notification was issued for the Limited Departmental Competitive Examination (LDCE) for promotion to Section Officer, requiring five years of "approved service".

The respondents refused to count the period spent by the applicants on lien towards the "approved service," relying on an Office Memorandum (OM) dated 16.09.2021 and an earlier OM dated 17.08.2016, which excluded periods spent in other departments after technical resignation from qualifying service.

1. Whether the period spent by a government servant on lien in another department after a technical resignation counts towards "approved service" for promotion under the CSS Rules, 2009.

2. Whether executive instructions in the form of Office Memoranda can override or restrict the definition of "approved service" provided in statutory recruitment rules.

CSS Rules, 2009, which define "approved service" to include periods of absence where the officer would have otherwise held the post but for such absence.

The principle that executive instructions are subservient to statutory rules and cannot impose additional conditions inconsistent with them, as established in R. Prabha Devi v. Government of India.

The doctrine of "lien" as a substantive right to hold a permanent post, citing Ram Lal Khurana v. State of Punjab and State of Rajasthan v. S.N. Tiwari.

The Tribunal reasoned that the CSS Rules, 2009, which carry statutory force, do not distinguish between different types of absences—such as lien, deputation, or leave—when calculating "approved service".

Since the applicants maintained a lien and rejoined within the permissible period, their service remained continuous for all intents and purposes.

The Tribunal found that the respondents' reliance on Para 2.6 of the OM dated 17.08.2016 was legally untenable because an executive instruction cannot curtail the scope of statutory rules or the eligibility criteria set out in the 15.09.2021 notification.

The Tribunal further noted that the judgment in Sarvesh Kumar (OA No. 402/2021) was per incuriam as it failed to consider the supremacy of statutory rules over OMs.

The Tribunal observed that denying the applicants this benefit while granting it to similarly situated officers constituted hostile discrimination under Article 14 of the Constitution.

It held that the applicants fulfilled the eligibility criteria under the CSS Rules, 2009, and that the exclusion of the lien period based on executive OMs was unsustainable in law.

The respondents were directed to treat the applicants as eligible for the LDCE and grant them all consequential benefits, including consideration for selection and promotion.