CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2769 of 2010 Misc. Application No.

2167/2010 Reserved on : 14th December, 2011 Date of decision : 25th January, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. (MRS.) VEENA CHHOTRAY, MEMBER (A) 1. Rakesh Ranjan Singh S/o Ram Chander Singh, H. No.17, B. N. Enclave, Sector 29, Faridabad, Haryana. 2. Mahesh Prasad S/o G. C. Ram, H. No.91, B. N. Enclave, Sector 29, Faridabad, Haryana. 3. Mukesh Mishra S/o H. C. Mishra, D/113, Dabua Colony, NIT Faridabad, Haryana. 4. Dinesh Kumar S/o Nageshwar Prasad, H. No.38, B. N. Enclave, Sector 29, Faridabad, Haryana. ( By Shri M. K. Bhardwaj, Advocate ) Versus 1. Union of India through Secretary, Ministry of Labour & Employment, Shram Shakti Bhawan, New Delhi. 2. Central Provident Fund Commissioner, Employees Provident Organization, Head Office, 14 Bhikaji Cama Place,

Applicants

New Delhi. 3. Regional Provident Fund Commissioner (Exam), EPFO, Head Office, New Delhi. ( By Ms. Aparna Bhatt, Advocate )

Respondents

ORDER Justice V. K. Bali, Chairman: Rakesh Ranjan Singh and three others, have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking to declare the process of region-wise selection for the post of Enforcement Officer/Assistant Accounts Officer (EO/AAO) as illegal and unjustified, and in consequence thereof to direct the respondents to declare them as selected for the post of EO/AAO and promote them as per rules, as also to quash and set aside the selection made by the respondents region-wise and direct them to declare the select list on all India basis. The applicants also seek a declaration that the scheme of examination for the post of EO/AAO circulated vide letter dated 18.12.2002 and applied in their case, is illegal and violative of Articles 14 and 16 of the Constitution of India. 2. The facts on which the reliefs as indicated above are sought to rest reveal that as per the Employees Provident Fund Organization (Enforcement Officer/Assistant Accounts Officer) Recruitment Rules, 2002 (hereinafter to be referred as the Rules of 2002), the posts of EO/AAO are to be filled up by way of promotion to the extent of 50% (other than examination quota), 25% by promotion on the basis of Limited Departmental Competitive Examination (LDCE), and 25% by direct recruitment. Insofar as the 25% quota of LDCE is concerned, with which alone the applicants are concerned, persons with three years regular service as Section Supervisor in the pay scale of Rs.5000-8000 and Upper Division Clerk/Assistant/Stenographer/Date Entry Operator Gr. A with five years regular service in the scale of Rs.4000-6000 in respective regions, and Junior Hindi Translator in the pay scale of Rs.4500-7000 with five years regular service in respective regions, are eligible. The method of recruitment, age limit and other qualifications are specified in columns 5 to 14 of the Schedule appended to the Rules of 2002, as mentioned in rule 3. Various quotas, as mentioned above, have been picked by us from column 12 of the Schedule, which came into being by virtue of provisions contained in rule 3 of the Rules aforesaid. The applicants are already serving as SSSA/DEO/Section Supervisor, and it is not in dispute that they are eligible to compete for the 25% quota earmarked for departmental examination. The respondents initiated the process for

departmental examination for promotion to the post of EO in the month of December, 2009 on all India basis. It is the case of the applicants that in the concerned letter, it has been clearly stated that applications would be collected by the Regional PF Commissioner and thereafter the same would be sent to the Regional Provident Fund Commissioner (Exam), Head Office, New Delhi, the third respondent arrayed in the OA, for further necessary action. The applicants serving on the posts as mentioned above are posted in Delhi and Faridabad offices. They applied for appearing in the departmental examination, and their applications were forwarded to the 3rd respondent for necessary action. The respondents thereafter conducted the departmental competitive examination to fill the posts of EO/AO. The applicant appears in the examination. Even though, the respondents had made a mention of 21 regions for which the vacancies were declared, but they were to be filled up pursuant to the same examination in which all the candidates all over the country were allowed to appear. The result of the examination was declared on 05.08.2010. The applicants were shocked to see the manner in which the select list was prepared for promotion to the post of EO/AO. It is their case that the candidates who secured lesser marks than them were declared selected merely because they are serving in different regions, and that the candidates having lesser marks scored over the meritorious candidates who secured more marks than them, and this, according to the applicants, would violate the principle of equal chance. The applicants secured 297, 288, 311 and 300 marks out of 500, and were yet not selected, whereas candidates who secured even 240 marks out of 500 have been declared selected. Some of the details which have been given by the applicants of the candidates who secured lesser marks than them, are as follows: Sl. No. Name 1. Dinesh Gowda 2. Mahesh Babu 3. Morckar Anisha 4. Suman Nitesh 5. D K Mishra 6. D D Chaudhry 7. Takalkar A.S. 8. Pawan Patel 9. SamarPankaj Gupta 10.Gautam Dey 11. Arun Kumar Dass 12.Amit Gupta Region Marks Karnataka 251 Karnataka 266 Maharashtra 287 Maharashtra 279 Maharashtra 274 Maharashtra 246 Maharashtra 238 Madhya Pradesh 282 Madhya Pradesh 257 West Bengal 237 West Bengal 240 West Bengal 261

The applicants in the manner aforesaid, as per the case set up by them, have been denied selection and thus their promotion on the post of EO/AO, only because they belong to Delhi and Haryana Regions. It is their case that making selections region-wise would be violative of Articles 14 and 16 of the Constitution of India.

3. Pursuant to notice issued by this Tribunal, respondents 1 to 3 have entered appearance and by filing their counter reply, contested the cause of the applicants. It is the case of the respondents that even as per clause 12 of the schedule to the Rules of 2002 and the LDCE scheme for promotion, the posts are to be filled by departmental examination for the respective regions. There exists an approved examination scheme called Departmental competitive Examination Scheme for promotion to the post of EO/AO, 2002. The last examination under the scheme was held in the 15 regions from 16th to 20th June, 2003 where vacancies under this 25% quota were available. A circular was issued by RPFC (Exam), EPFO, HO, New Delhi on 01.09.2009 along with the statement of region-wise vacancies in accordance with the 2002 scheme to fill up the vacancies pertaining to examination quota in the cadre of EO/AO. It is averred that it would be clear from the plain reading of the circular, particularly para 2 thereof, that the examination would be held in the States mentioned in the circular, and the Regional Provident Fund Commissioners of the regions are to notify the vacancies and invite applications from eligible candidates, and that it is nowhere mentioned in the circular that the applications would be collected by the 3rd respondent, and further that the applications have to be collected by respective Regional Commissioners and sent to the erstwhile Regional Commissioner who maintains the seniority and other details for that particular region. The applicants appeared in the departmental examination, but could not come out as successful in the examination in their respective region. Result of the examination was announced containing the names of successful officials to the extent of the vacancies notified as available in each of the Regional Offices of EPFO. The applicants have, however, not come out as successful in their respective regions as per the scheme. It is pleaded that the examination is only for promotion and is not an all India competitive examination, and that the recruitment rules would allow the examination only for a class of employees of EPFO. Examination under the said approved departmental competitive examination scheme had been conducted in the year 2003 and officials who came out as successful then were given promotion to the post of EO/AO in their respective regions. It is then pleaded that the applicants did not raise any issue with respect to either the scheme of departmental competitive examination at the time of its notification for its conduct in 2009, or any such attempt was made by them at the time of applying for the said examination. It is only after declaration of the result that they have filed the present Original Application. 4. The respondents have filed an additional affidavit dated 03.03.2011, wherein it is pleaded that the posts under contention are regional posts, and that the departmental examination is the means to provide accelerated promotional avenue to eligible officials to move up in their career to the extent of 25% of the vacancies in their respective regions, as provided in the notified recruitment rules, and further that the appointments are also made regionally and the person concerned is not posted outside the region, and the officials are ordinarily transferred only within the region. It is then pleaded that ACRs are maintained in the regional office, and that since the post of EO/AO is the feeder cadre for the next higher post of Assistant Provident Fund commissioner (Group A), all India seniority is created after the appointment to the post

of EO/AO to consider promotion at all India level. There are some other averments also made in the additional affidavit, but inasmuch as nothing based thereon has been urged during the course of arguments, there would be no need to make a mention of the same. 5. The applicants have filed reply to the additional affidavit as well, wherein it is pleaded that the stand taken by the respondents that the departmental competitive examination for the post of EO/AO/ Superintendent is conducted for promotion of the officials, against the vacancies notified for each region, is incorrect, and an attempt on the part of the respondents to make wrong and incorrect statements, solely for misleading and misinterpreting the issue, and that the fact is that the RPFC-I s (in-charge of the Region) are required only to intimate the vacancy position to head office as per the work norms of 1988, in different modes, i.e., SQ, EQ and DR quota, inter alia for EO/AAO and not what is being stated by the respondents. It is then pleaded that the respondents after receiving the requirement of the regions as per the work norms take steps for filling up the vacancies and/or for creating posts as per the work norms and then taking steps for fill up the same either by promotions, examination or direct recruitment. The statement of the respondents that the vacancies are notified region-wise is stated to be wrong and incorrect. Filling up the posts falling under the examination quota is stated to be akin to that of direct recruitment and seniority should be determined as per general principles of seniority. The plea taken by the respondents that the said post has always been a regional post is stated to be incorrect and an attempt on their part to mislead this Tribunal. It is then pleaded that Shri R. K. Kukreja, RPFC-I(HRM) who has sworn the additional affidavit on behalf of the respondents, had already circulated an all India seniority list in the cadre of EO/AAO (now designated as AO) w.e.f. 04.03.1990 to 31.03.2005 vide Head Office, EPFO letter dated 24.04.2009 (Annexure D-2) with the heading All India draft seniority list of Enforcement Officer/Account Officer, and that from the said document it would be clear that the seniority of incumbents so promoted either by promotion, examination or direct recruitment to the cadre of EO/AO is fixed on all India basis rather than regional basis. The applicants have gone to the extent of seeking action against Shri Kukreja for swearing in a false affidavit. It is pleaded that the fact is that examination quota posts are to be filled by departmental examination and applicants being eligible made applications for taking the examination and took the same. There are three modes of filling up the posts of EO/AO, as mentioned above, in the ratio of 50:25:25 respectively as per the recruitment rules. Accordingly, the departmental examination was notified vide Head Office letter dated 01.09.2009 and all the eligible candidates in the feeder cadre were required to submit applications for the competitive examination for filling up the examination quota vacancies in the EO/AO cadre. The plea raised by the respondents that transfers are made within the region only is stated to be incorrect. In that regard, it is pleaded that one Mrs. Sudesh Chawla, who qualified from the Haryana Region, was posted to Uttar Pradesh Region. Reference is then made to clause 11 of the EPF (Officers and Employees Conditions of Service) Regulations, 2008, which inter alia provides for all India liability for transfer of Group A and B employees, which would imply that EO/AO carry all India transfer liability, which fact has been duly reiterated by the head office in its communication conveying the approval of the competent authority

for promotions against examination quota. Copies of communications dated 09.11.2010 and 06.10.2010 in that regard have been annexed as Annexures D-5 and D-6 respectively. 6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. 7. The respondents, for promotion to the post of EO/AO, issued a letter dated 01.09.2009, for holding of the examination, which was to be held in the States mentioned in Annexure-I, for filling up the number of vacancies mentioned therein under each category. The Regional Provident Fund Commissioners of the erstwhile regions where the seniority/vacancy details of the States were being maintained were requested to notify the vacancies and invite applications from eligible candidates. The applications were to be collected by the Regional P.F. Commissioners in-charge of all the regions for their respective region, including SROs under their region, and were to scrutinize the eligibility and other details of applicants, and send the applications with a covering list to the RPFC in-charge of the erstwhile region. The rules governing promotion on the post aforesaid were notified in exercise of the powers conferred by sub-section 7(a) of Section 5(D) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952. The same are known as the Employees Provident Fund Organization Enforcement Officer/Assistant Accounts Officer Recruitment Rules, 1990 (hereinafter to be referred as the Rules of 1990). The number of posts, their classification and scale of pay attached thereto have been specified in columns 2 to 4 of the Schedule, as may emanate from the provisions contained in rule 3 of the Rules aforesaid. The post under contention is to be filled to the extent of 25% through limited departmental examination. As mentioned above, in this matter, parties are concerned only with the quota of 25%. Head Clerks/Machine Operators/ Stenographers (Gr.II)/Legal Assistants/Hindi Translators (Gr.II)/ Stenographers (Gr.III) with five years regular service in the scale of Rs.12002040 serving in respective regions are eligible to appear in limited departmental examination. The Rules do not specify 25% quota to be filled through limited departmental examination as per respective regions, even though, insofar as the scheme of departmental examination, 2002 is concerned, it talks of determination of vacancies in each region which have to be notified. It is not in dispute that promotion to the next higher post of Enforcement Officer/Accounts Officer is to be governed by seniority to be fixed at all India level, and further that those who appeared in the examination earlier would be senior to those who appeared later, as also that those who are appointed earlier would be senior to those who are appointed later in point of time. In the circumstances as mentioned above, the question that arises for determination is as to whether the examination scheme for making appointments region-wise would be arbitrary and hit by Article 14 of the Constitution. We need not delve into the issue in all its minute details, as the matter appears to us to be covered by an authoritative pronouncement of the Honble Supreme Court in Radhey Shyam Singh & others v Union of India & others [(1997) 1 SCC 60]. Facts of the case aforesaid appear to fit in the facts of the present case like a glove in hand. The only difference in the facts is that whereas, the Honble Supreme Court was dealing with a case of initial recruitment, the present is a case of promotion. Facts of the case decided by the Apex Court reveal that on the

recommendations of the Administrative Reforms Commission, the Government of India passed a resolution whereby Subordinate Services Commission was constituted for purposes of recruitment to non-technical class III posts in the departments and subordinate offices of the Government. As per the resolution, the functions of the Subordinate Services Commission constituted by the Government, insofar as the same may be relevant, were as follows: The Subordinate Services Commission will make recruitment to non-technical Class III posts in the departments of the Govt. of India and in the subordinate offices except those posts for which recruitment is made by the Railway Service Commission Staff in the offices of the Comptroller and Auditor General and the Accountants General and industrial establishments. The Commission will among other things conduct terminations wherever requirement for recruitment to the posts within their purview and for ensuring that as far as possible the actual recruitment is made on a zonal basis so as to enable candidates from different regions to be absorbed in the vacancies arising within the respective regions, the examinations would be held as far as possible on different centres and successful candidates posted, to the extent possible to their home states/regions. The Commission published an advertisement In Employment News dated 1016.07.1993 inviting applications for the selection of candidates to the posts of (i) Preventive Officers, (ii) Examiner, (iii) Inspector of Central Excise, (iv) Inspectors of Income Tax, (v) Assistant Enforcement Officers, and (vi) Grade II of Delhi Administration Subordinate Services. According to the advertisement, the recruitment was to be made zone-wise on the basis of separate merit list drawn for each zone in respect of candidates appearing at the centres within the same zone. In all, there were 15 zones and the candidates were eligible to appear at any zone. In case, no vacancy was available in a particular zone, then that zone was to be clubbed with one of the contiguous zones at the discretion of the Commission and a common list for both the zones in the order of merit was to be prepared. An OA came to be filed challenging the zone-wise selection, which was dismissed in limine by the Tribunal. An appeal was carried against the order passed by the Tribunal, which succeeded, thus setting aside the order passed by the Tribunal. We may only mention that the Tribunal had not entered into the merits of the controversy and dismissed the OA only on the ground that the applicants, after participating in the examination, could not question its validity. It was urged on behalf of the appellants before the Supreme Court that zone-wise process of selection adopted by the Commission did not provide equal opportunity to the candidates appearing in different zones, though the competitive examination was same in all the zones. It was further urged that since the vacancies available in each zone were not indicated, the appellants were denied the opportunity of appearing at the competitive examination from a centre of a zone where the number of the vacancies may be large, there being more and better chances of selection. The contention aforesaid was upheld by observing as follows: 7. We have given serious considerations to the aforementioned rival contentions and have critically perused the Government resolution dated November 4, 1975 whereby the

Commission was constituted and the functions assigned to it as well as the advertisement issued for the recruitment of the candidates for the aforementioned posts. A reading of the functions assigned to the Commission, the relevant part of which is reproduced in the earlier part of this judgment will go to show that it provided that the Commission will among other things conduct examinations wherever required for recruitment to the posts within their purview and for ensuring that as far as possible the actual recruitment is made on a zonal basis so as to enable candidates from different regions to be absorbed in the vacancies arising within the respective regions. It thus provides the holding of examination as far as possible and making of actual recruitment on zonal basis. The object sought to be achieved by this process or method of selection is to enable the candidates from different regions to be absorbed in the vacancies arising within the respective regions. The question therefore that arises for consideration is whether such a selection based on zonal basis would be permissible or it would be violative of the Constitutional guarantee enshrined in Article 14 and 16 of the Constitution of India. For coming to the conclusion aforesaid, the Honble Supreme Court placed reliance upon its judgments in Minor P. Rajendran v State of Madras [(1982) 2 SCR 786 : AIR 1968 SC 1012]; Minor A. Peeriakaruppan v State of T. N. [(1971) 1 SCC 38]; and Nidamarti Maheshkumar v State of Maharashtra [(1986) 2 SCC 534]. The judgment was to have prospective effect, and once selection and appointments had so far been made, they were not to be disturbed. 8. Following the dictum of the Honble Supreme Court in Radhey Shyam Singh (supra), we hold that zone-wise selection irrespective of merit of the candidates who had appeared in all India examination for promotion to the post of Enforcement Officer/Accounts Officer, would be illegal. Even though, it is not mentioned, but it appears that the Apex Court made the operation of its judgment prospective for the reason that examination had been held in 1993 and the matter came to be disposed of by it in 1997, and by that time the selected candidates had since been appointed for about four years or so. Further, once the Honble Supreme Court declared the law way back in 1997, the respondents ought to have followed the same. Once, the law may be declared by the highest Court of the land for the first time with regard to a particular situation, the judgment may be prospective, but when the law is known and the respondents may still persist with their illegal stand, it will be iniquitous to deny the applicants relief by making the judgment prospective. 9. For the reasons mentioned above, we allow this Original Application. Consequently, a direction is issued to the respondents to make appointments of the candidates as may emanate from the result of the examination. Let the exercise as ordained above, be completed as expeditiously as possible and preferably within six weeks from today. There shall, however, be no order as to costs. 10. Before we may part with this order, we may mention that the applicants never disputed their liability for transfer anywhere in the country, and, therefore, the respondents may make appointments as per requirements in a region, but it has to be as per merit of the candidates in the examination.

( Dr. Veena Chhotray ) Member (A) /as/

( V. K. Bali ) Chairman