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2024 DIGILAW 883 (TS)

Dudam Sagar v. Union Of India

2024-12-31

ABHINAND KUMAR SHAVILI, LAXMI NARAYANA ALISHETTY

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JUDGMENT : Abhinand Kumar Shavili, J. Aggrieved by the interlocutory order dated 27.12.2024 passed in I.A.No.1 of 2024 in W.P.No.36753 of 2024 by the learned Single Judge, the present writ appeal has been filed. 2. Heard Ms. D.Sai Mahitha, learned counsel appearing for the appellants, learned Deputy Solicitor General of India appearing for respondent No.1 and Sri T.Mahender Rao, learned Standing Counsel for National Institute of Technology appearing for respondent Nos.2 to 4. 3. It is the case of the appellants that they were appointed as Superintendents in the year 2022 and they are eligible for promotion to the post of Senior Superintendents. While so, the 4 th respondent had issued Office Memorandum on 04.12.2024 to the effect that they would be conducting prescribed test in December, 2024 and the syllabus as well as the draft inter-se seniority list were appended as Appendix-1 & Appendix-2 to the Office Memorandum and the names of the appellants are shown at Sl.Nos.2 and 4. The appellants are waiting for hall tickets to be issued to them to participate in the prescribed test. As per the National Institutes of Technology (NITs) Non-Teaching Recruitment Rules, 2019 (for short ‘the Rules’), the post of Senior Superintendent is liable to be filled up by way of promotion. The eligibility criteria for promotion to the post of Senior Superintendent is that one must put in atleast five years regular service as Superintendent or Accountant (existing) in Pay Band-2, Grade Pay of Rs.4200/- or at least 5 years combined service of Assistant (SG-1) and Superintendent) in Pay Band-2, Grade Pay of Rs.4200/- through DPC and working performance record (APAR) through prescribed test and interview. Admittedly, the appellants are seniors and though the appellants do not fulfill the eligibility criteria, Rule 6 of the Recruitment Rules clearly states that, for matters not covered by the Statutes, the corresponding Central Government Rules shall be applicable. 4. Learned counsel for the appellants has drawn our attention to the Central Government Guidelines on Framing/Amendment/Relaxation of Recruitment Rules and Part-III of the Guidelines on preparing Schedule & Notification. Rule 3.1.2 clearly states that in some cases of promotion, the senior officers would not have completed the required service where as the juniors would have completed the prescribed eligibility condition for promotion, in such cases, seniors will be left out from consideration for the higher post. Rule 3.1.2 clearly states that in some cases of promotion, the senior officers would not have completed the required service where as the juniors would have completed the prescribed eligibility condition for promotion, in such cases, seniors will be left out from consideration for the higher post. To avoid such a situation, a suitable note may be inserted in the recruitment rules so that the seniors who have completed the probation period, are also be considered where the juniors who have completed the requisite service are being considered. Learned counsel for the appellants had contended that in view of the said Central Government Guidelines, if the appellants do not fulfill the eligibility criteria for promotion to the post of Senior Superintendent and if the juniors are fulfilling the eligibility criteria, in those circumstances, the seniors cannot be left out from consideration for the higher post. 4.1. Learned counsel had further contended that the Office Memorandum 04.12.2024 makes it very clear that inter se seniority of non-teaching cadres was appended to the Office Memorandum as Appendix-2 and the names of the appellants were placed at Sl.Nos.2 and 4 which would mean that the respondents have considered the cases of the appellants for promotion to the post of Senior Superintendents, however, for the best reasons known to the respondents, the respondents have not issued any call letters and did not permit the appellants to participate in the selections. In those set of circumstances, the appellants have approached this Court by filing W.P.No.36753 of 2024 and the appellants have sought relief before the learned Single Judge to direct the respondents not to effect promotions to the post of Senior Superintendent without considering the cases of the appellants in ensuing Departmental Promotional Committee meeting on par with juniors for the post of Senior Superintendent in the existing vacancies. But the learned Single Judge while ordering notice, passed an order to the effect that ‘any promotions made to the post of Senior Superintendent, shall be subject to further orders of this Court’. 4.2. But the learned Single Judge while ordering notice, passed an order to the effect that ‘any promotions made to the post of Senior Superintendent, shall be subject to further orders of this Court’. 4.2. Learned counsel appearing for the appellants had contended that there are seven vacancies of Senior Superintendents and only two juniors were participated in the promotional exercise and in view of the Central Government Rules, if the appellants do not fulfill the eligibility criteria for promotion to the post of Senior Superintendent and if the juniors are fulfilling the eligibility criteria, in those circumstances, the seniors cannot be left out from consideration for the higher post. Therefore, appropriate orders be passed in the writ appeal by directing the respondents to consider the cases of the appellants also for promotion to the post of Senior Superintendents, if necessary, by conducting fresh prescribed test and also by conducting DPC, however, results of the appellants may not be declared and the same may be subject to result of the writ petition. 5. Learned Standing Counsel appearing for respondent Nos.2 to 4 had contended that as per Recruitment Rules, 2019, for promotion to the post of Senior Superintendent, one must put in atleast 5 years of regular service as Superintendent or Accountant (existing) in Pay Band-2, Grade Pay of Rs.4200/- or at least 5 years combined service of Assistant (SG-1) and Superintendent) in Pay Band-2, Grade Pay of Rs.4200/- through DPC and working performance record (APAR) through prescribed test and interview. 5.1. Learned counsel had further contended that admittedly, the appellants are not fulfilling the eligibility criteria, therefore, the question of considering the cases of the appellants does not arise and the learned Single Judge protected the interest of the appellants by observing that any promotion made to the post of Senior Superintendent, shall be subject to further orders in the writ petition. Therefore, there are no merits in the writ appeal and the same is liable to be dismissed. 6. Therefore, there are no merits in the writ appeal and the same is liable to be dismissed. 6. Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that a perusal of the Recruitment Rules, 2019 makes it clear that for promotion to the post of Senior Superintendent, one must put in atleast 5 years of regular service as Superintendent or Accountant (existing) in Pay Band-2, Grade Pay of Rs.4200/- or at least 5 years combined service of Assistant (SG-1) and Superintendent) in Pay Band-2, Grade Pay of Rs.4200/- through DPC and working performance record (APAR) through prescribed test and interview. 6.1. Further, Rule 6 of Recruitment Rules, 2019 also makes it clear that for matters not covered by the Statutes, the corresponding Central Government Rules shall be applicable. A perusal of the Office Memorandum dated 25.03.1996 issued by the Government of India, Ministry of Personnel Public Grievances and Pensions, Department of Personnel & Training makes it clear that para 3.1.2 was amended in compliance of the judgment of the Apex Court in R.Prabha Devi and others vs. Government of India and others , Civil Appeal NOs.2040-42 of 1987, dt. 8.3.1988 . The Office Memorandum categorically states as under: ‘To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules. Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service’. Further, the Office Memorandum dated 25.03.1996 contemplates that if seniors did not fulfill the eligibility criteria and juniors fulfill the eligibility criteria, in such circumstances, the seniors cases also be considered for promotion. 6.2. Admittedly, in the instant case, the appellants’ probation was declared. Further, the Office Memorandum dated 25.03.1996 contemplates that if seniors did not fulfill the eligibility criteria and juniors fulfill the eligibility criteria, in such circumstances, the seniors cases also be considered for promotion. 6.2. Admittedly, in the instant case, the appellants’ probation was declared. A perusal of the Office Memorandum issued by the respondents on 04.12.2024 makes it clear that inter-se seniority list was appended to the said Office Memorandum as Appendix-2 wherein the names of the appellants were shown at Sl.Nos.2 and 4 and in the revised inter se seniority dated 19.12.2024, the names of the appellants were shown at Sl.Nos.2 and 3. Therefore, the respondents were not justified in not considering the cases of the appellants for promotion to the post of Senior Superintendents. Learned Single Judge ought to have given a direction to the respondents to consider the cases of the appellants also for promotion to the post of Senior Superintendents in view of the Central Government Office Memorandum dated 25.03.1996. Right for promotion may not be a Fundamental Right, however, right to be considered is the Fundamental Right guaranteed under the Constitution of India. Therefore, ends of justice would be met if the writ appeal is disposed of by directing the respondents to consider the cases of the appellants for the post of Senior Superintendents. 7. Accordingly, the Writ Appeal is disposed of directing the respondents to consider the cases of the appellants for the post of Senior Superintendents in pursuance of the Office Memorandums dated 04.12.2024 and 25.03.1996. No costs. Miscellaneous petitions, if any, pending shall stand closed.