Shekhar Agarwal ORDER
Permod Kohli, J. (Chairman)
1. Validity of new Recruitment Rules of University Grants Commission notified vide GSR 839(E) : MANU/HRDT/0028/2016 dated 26.08.2016 as regards the recruitment to the post of Joint Secretary, and the consequential advertisement notice dated 08.09.2016 published in Hindu Allahabad inviting applications for the post of Joint Secretary by direct recruitment are under challenge in the present OA.
2. The facts relevant for the purposes of adjudication of the present OA are that the Ministry of Human Resource Development had notified the Recruitment Rules, namely, University Grants Commission (Recruitment) Rules, 1983. These rules were amended vide Notification dated 26.11.1993. Vide impugned notification dated 26.08.2016 Recruitment Rules of 1993 have been substituted.
3. The applicant was appointed as Education Officer vide Office Order No. 226/2007 dated 03.10.2007 w.e.f. 12.10.2006 on probation for a period of two years. He was later promoted as Deputy Secretary w.e.f. 08.08.2013 vide order dated 08.08.2013. The next promotion in the hierarchy of service is to the post of Joint Secretary in UGC. Under 1993 Recruitment Rules, the post of Joint Secretary which falls under Group 'A' category was to be filled up by promotion, failing which by deputation or direct recruitment. The said post is a selection post. Following qualifications were prescribed under the 1993 Recruitment Rules:-
"Essential:
(1) First or second class Master's degree or a professional degree.
(2) about 10 years experience of teaching/research or educational administration.
Desirable:
Doctorate in any discipline or a Master's degree in any professional subject."
The age for appointment to the post of Joint Secretary/Director was 50 years (relaxable by 5 years for employees of Central and State Governments, Universities and autonomous bodies).
4. The aforesaid 1993 Recruitment Rules have now been substituted by Notification dated 26.08.2016, and for the post of Joint Secretary, the method of recruitment has been altered. Instead of earlier method of appointment by promotion, failing which by deputation or direct recruitment, the new method of recruitment has been notified as 75% by promotion (failing which by deputation) and 25% by direct recruitment. Separate set of qualifications have been laid down for direct recruitment which are as under:-
"Educational and other qualifications required for direct recruits.
Essential:
1. Doctorate in any discipline with First or second class Masters Degree;
2. At least 12 years of experience of teaching/research in any University or college or educational administration in higher education.
3(i) Holding analogous post on regular basis in the parent cadre/department; or
3(ii) With 5 years' service in the grade rendered after appointment thereto on regular basis in Pay Band-3 (Rs. 15600-39100) with Grade Pay of Rs. 7600 or equivalent in the parent cadre/department."
The same qualifications have been fixed for promotion as well. The age for direct recruitment is the same as was fixed in 1993 Recruitment Rules. However, under 1993 Recruitment Rules, the age and educational qualifications prescribed for direct recruitment were not applicable for promotion whereas under the new Recruitment Rules the age and educational qualifications prescribed for direct recruitment have been made applicable in the case of promotees as well. The position under the 1993 Recruitment Rules and under the 2016 Recruitment Rules is as under:-
"1993 Recruitment Rules.
"2016 Recruitment Rules.
The aforesaid recruitment rules have been framed by the central Government under Section 25 of the University Grants Commission Act, 1956. The relevant extract reads as under:-
"25(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purpose of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(d) the terms and conditions of service of employees appointed by the Commission."
The grievance of the applicant and challenge to the new Recruitment Rules of 2016 is twofold; (i) fixation of 25% quota for direct recruitment by reducing 100% promotion quota is detrimental to the promotional avenues of the applicant; and (ii) the amendment is in contravention to Dop & T OM No.AB-14017/61/2008-Estt. (RR) dated 13.10.2015.
5. On the first ground, it is contended that under 1993 Recruitment Rules, the post of Joint Secretary was to be filled up 100% by promotion, failing which by deputation or direct recruitment, and by virtue of new Recruitment Rules of 2016, 25% posts out of 100% posts meant for promotion have been culled out to be filled up by direct recruitment which has substantially reduced the chances of promotion of the applicant and others from the feeding channel. Such an exercise is contrary to law and having impacted promotional avenues of the applicant is violative of Article 14 & 16 of Constitution of India. It is stated in the OA that Deputy Secretary in UGC with five years continuous regular service is eligible for promotion to the post of Joint Secretary. However, with a view to accommodate few favourites by using colorable exercise of power, the respondents have culled out 25% quota for direct recruitment purposes by reducing promotion quota. It is argued that fixation of age limit for promotees and the qualifications prescribed under the new Recruitment Rules of 2016 which was not the position under the 1993 Recruitment Rules. It is stated that under the 1993 Recruitment Rules, on completion of residency period as Deputy Secretary, a person was eligible for promotion to the post of Joint Secretary. It is also the case of the applicant that the age limit and essential qualifications fixed under the 1993 Recruitment Rules for direct recruitment were not made applicable for promotees whereas under the new Recruitment Rules of 2016, the age limit and qualifications meant for direct recruits have been made applicable for promotees. According to the applicant, age limit for direct recruits is 50 Years relaxable by five years for employees of Central Government, State Government, Universities and Autonomous Bodies. It is further the case of the applicant that he is 47 years of age and if the direct recruitment is allowed, by the time the vacancies for promotion become available, he would cross 50 years of age and would be rendered ineligible for promotion. It is also alleged that there are 17 posts of Joint Secretary and only 4 posts are vacant against which direct recruitment is being resorted to, and in the event, all the available 4 posts are filled up the applicant would not have any chance of promotion.
6. On the second ground, it is stated that the DoP & TOM dated 13.10.2015 prescribes that before referring any proposal for framing/amendment in the Recruitment Rules of any post in Ministries/Departments and their subordinate and attached office, the proposed amendments/revision in the Recruitment Rules would be put up on the website of respective Ministries/Departments for 30 days for inviting comments from the stakeholders. The relevant OM is reproduced hereunder:-
"OFFICE MEMORANDUM
Attention is invited to this Department's O.M. No. AB.14017/48/2010-Estt (RR) dated 31st December, 2010 vide which Guidelines on framing/amendment/relaxation of Recruitment Rules and Service Rules were issued.
2. In this context it has been decided that before referring any proposal for framing/amendment in the Recruitment Rules of any post in Ministries/Departments and their subordinate and attached office, the proposed amendments/revision in the Recruitment Rules would be put up on the website of respective Ministries/Departments for 30 days for inviting comments from the stakeholders. Thereafter, taking into account the comments so received, the proposal would be sent to DoPT, UPSC and Ministry of Law for finalisation.
4. All the Ministries/Departments are, therefore, requested to adhere to these instructions scrupulously. Proposal referred to this Department without following the aforesaid procedure, would not be entertained."
On the basis of the above memorandum, it is contended that the amendment/framing of new Recruitment Rules of 2016 is in contravention of the OM dated 13.10.2015. The new Recruitment Rules of 2016 were never put up on the website of the department for inviting objections from the stakeholders before its publication/notification. Such recourse has violated the principles of natural justice and the applicant has been deprived of an opportunity to raise objection to the proposed amendments. The new Recruitment Rules of 2016 have definitely impacted the promotion avenues of the applicant as he was/is the stakeholder in regard to the amendment of the recruitment rules.
7. Notice of this OA was not issued. We have heard Shri Ajesh Luthra, learned counsel for the applicant at length, and Shri K.K. Rai, learned senior counsel appearing on behalf of the respondents, and examined the material on record.
8. This OA deserves to be rejected on both the grounds urged by learned counsel for the applicant. As regards the question of validity of new Recruitment Rules of 2016 is concerned, no ground has been made out to challenge the validity of recruitment rules. Section 25(d) empowers the Central Government to make rules laying down the terms and conditions of service of the employees appointed by the Commission. These rules have been framed and notified under the provisions of Section 25(d) of The University Grants Commission Act, 1956. Thus, it was within the legislative field and power of the Central Government to frame these rules. It is not the case of the applicant that the rules are ultra vires to the Act or even ultra vires to the Constitution in any manner. The only ground is that new Recruitment Rules have been framed with mala fide intention to accommodate some favourites. No specific allegation has been made in this regard. The only allegation of mala fides are contained in paras 4.23 and 4.25 of the OA. These allegations are totally vague and imaginary without any substance therein. A bald statement that amendment to recruitment rules is mala fide is of no relevance. Otherwise also, alleging mala fides to the legislative action is not to be entertained unless it is so apparent and so significant that it goes to the very root of the case. In the present case, no such allegation has been made. The only ground urged is that the new recruitment rules have reduced the promotional avenues of the applicant as against 100% quota of promotion 25% posts have been reserved for direct recruits thereby reducing promotional avenues of the promotees by 25%.
9. The second averment in the OA is that under 1993 Recruitment Rules, the age limit and qualifications for the direct recruitment were not applicable to the promotees whereas under the new Recruitment Rules of 2016, age limit and qualifications meant for direct recruits have been made applicable to the promotees as well curtailing their promotional chances. This position is factually incorrect. Under the 1993 Recruitment Rules, the post of Joint Secretary/Director is at Sl. No. 3, and under Column No.(6) the age limit prescribed for direct recruitment is 50 years relaxable up to 5 years for the category of employees mentioned therein. Under Column No.(7), essential and desirable qualifications have been laid down for direct recruitment whereas Column No.(8) deals with application of age limit and qualification for promotees. From the 1993 Recruitment Rules, reproduced hereinabove, we find that the age limit under Column No.(6) and qualification under Column No.(7) prescribed for direct recruitment have been made applicable for promotees as under Column No.(8) the word used is "Yes". Same is the position under the new Recruitment Rules of 2016. Against the post of Joint Secretary, Column No.(6) prescribes the age limit for direct recruits and Column No.(7) prescribes the educational and other qualifications required for direct recruits and under Column No.(8), age limit and educational qualifications prescribed for direct recruits have been made applicable to the promotees whereas under Column No.(10), 25% quota for direct recruits have been carved out, out of 100% quota for promotees, reducing it to 75%. Thus, the contention of the applicant that age limit and qualifications have been prescribed under the new Recruitment Rules of 2016 for promotees for the first time is totally incorrect. The age limit meant for direct recruits and the qualifications were applicable for promotees even under the 1993 Recruitment Rules. The contention is thus contrary to the recruitment rules itself.
10. As regards the question of reduction of quota for promotees is concerned, even under the 1993 Recruitment Rules, the post of Joint Secretary was to be filled up by promotion, failing which by deputation or direct recruitment. Thus, deputation and direct recruitment were also the prescribed modes of appointment to the post of Joint Secretary though these modes were to be adopted in the event the post could not be filled up by promotion.
11. To make rules and laid down service conditions is the prerogative of the employer and the experts in the field. The Courts do not venture into this area unless the service conditions are ultra vires to the provisions of the enactment whereunder the rules have been framed or are ultra vires to the constitution. No such allegation has been made, nor any material is placed on record to challenge the impugned notification as ultra vires to the Constitution or to the provisions of the University Grants Commission Act, 1956. The challenge is not sustainable in law. Mere reduction of chances of promotion is no ground to interfere in the prudence of the employer to fix any ratio for promotion and direct recruitment. In any case, 75% posts are still available for promotion. The rule making authority/employer in its prudence chooses to induce the talent by direct recruitment. No fault can be found with its wisdom/action.
12. In the matter of P.U. Joshi and Ors. vs. The Accountant General, Ahmedabad and Ors. reported in MANU/SC/1188/2002 : (2003) 2 SCC 632, the Apex Court has held as under:-
"10. We have carefully considered the sub-missions 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/subtraction 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."
13. In Union of India and Others vs. S.L. Dutta and another MANU/SC/0087/1991 : (1991) 1 SCC 505, the Hon'ble Supreme Court has held as under:-
"14. In connection with the question as to whether the conditions of service of respondent No. 1 could be said to be adversely affected by the change in the promotional policy, our attention was drawn by learned Additional Solicitor General to the decision of this Court in State of Maharashtra v. Chandrakant Anant Kulkarni, MANU/SC/0446/1981 : (1981) 4 SCC 130 : (AIR 1981 SC 1990). There it was held by a Bench comprising three learned Judges of this Court that mere chances of promotion are not conditions of service, and the fact that there was reduction in the chances of promotion did not tantamount a change in the conditions of service. A right to be considered for promotion is a term of service chances of promotion are not. (See para 16 at page 141) of the Report). Reference was also made to the decision of this Court in K. Jagadeesan v. Union of India, MANU/SC/0198/1990 : (1990) 1 JT 247 : (AIR 1990 SC 1072) where the decision of this Court in State of Maharashtra v. Chandrakant Anant Kulkarni, (MANU/SC/0446/1981 : AIR 1981 SC 1990) was followed."
14. Thus, the law laid down in this regard by the Hon'ble Supreme Court is that the policy matter, particularly, relating to promotions of the government servant is primarily within the domain of the employer. Mere chance of promotion is not a condition of service. Even if, promotional avenues are reduced on account of alteration of the promotion rules/policies, no interference is warranted.
15. The applicant is still entitled to avail the promotional avenue against 75% quota. As regards the question of age limit is concerned, the age is relaxable by 5 years for the employees of Central Government, State Governments, Universities and Autonomous Bodies. The UGC is itself an autonomous body, and thus the applicant would be entitled to age relaxation in the event he crosses 50 years of age or as and when the vacancy for promotional quota is to be filled up, and merely on this count, rules cannot be interfered with.
16. On the second question that DoP & TOM dated 13.10.2015 requires the Government to put up the proposed rules on the website of the Ministries/Departments for 30 days for inviting comments from the stakeholders, from the careful reading of the aforesaid OM we notice that this OM is applicable in respect to proposal for framing/amendment in the Recruitment Rules of any post in the Ministries/Departments and their subordinate and attached offices. This Memorandum has no application so far the autonomous bodies are concerned. This OM is applicable to the posts in the Ministries/Government Departments and their subordinate and attached offices. The UGC is creation of a Statute and is totally independent autonomous body. It is neither part of the Ministry, nor a department of the Government or a subordinate and attached office. The UGC falls outside the purview of the aforesaid Office Memorandum.
17. For the above reasons, the contention of the applicant is totally unsustainable in law. This Original Application is without any merit, accordingly fails and is hereby dismissed. No order as to costs.
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