The first respondent states that the impugned rules extend equal treatment to all categories of employees who were in position on the crucial date, namely, April 25, 1976, in the matter of absorption as well as determination of seniority at the initial companystitution, irrespective of whether they were direct recruits or deputationists.
Deputy Central Intelligence officer Tech.
The charge of discrimination levelled by the petitioners is, therefore, denied by the first respondent as being devoid of any foundation.
In reply to the challenge made by the petitioners against Rule 6 of the impugned Rules which provides for the initial companystitution of the new service to be known as the Aviation Research Centre Technical Service it is submitted by the first respondent that there is numberprinciple of law prohibiting the absorption in a newly companystituted Department of persons who are functioning on deputation in a temporary organisation which was later companystituted into a permanent service.
With reference to the grievance put forward by the petitioners that they were denied an opportunity to represent their case before the Screening Committee, it is submitted by the first respondent that under the scheme of the impugned Rules, the Screening Committee was number expected to entertain any representations from any quarter and, in fact, numberrepresentations were received.
1, by the Deputy Secretary, Cabinet Secretariat, it is stated that the Aviation Research Centre was initially set up as a Sensitive Security organisation in the year 1963 on a purely temporary basis by way of an extension of the Intelligence Bureau.
Through the said Rules, the Department has purported to absorb all the deputationists respondents Nos.
However, instead of promoting the petitioners to the vacancies that arose in such higher categories of posts, the Department filled up those vacancies by granting promotions to the deputationists.
The first set of draft rules was prepared and submitted to Government in 1972.
The petitioners point out that even after the companystitution of the Service by the impugned Rules, numberseniority list was published for more than two years, but promotions to the posts of FOs were, in the meantime, granted to several of the deputationists.
8 to 67 in the year 1968 and thereafter.
It is submitted by the petitioners that, companytrary to the assurance given to the Delhi High Court, the Department did number take early action for framing the rules but instead companytinued to companyfer on the deputationists the benefit of further illegal promotions and it was only after all the higher posts were filled by promoting deputationists that the Department ultimately promulgated the impugned statutory Service Rules on April 26, 1976.
8 to 67 in the ARC Service as TOs ATOs FOs and thereby legalised all the illegal promotions granted to those deputationists.
It was only after most of the posts in the higher categories of ATos and FOs had companye to be occupied by the deputationists as a companysequence of such irregular promotions that the impugned Rules were promulgated by the President of India on April 26,1976.
8 to 67, were taken on deputation from other Central and State Government Departments to man the various posts in the organisation.
On this basis the petitioners have raised a challenge in this writ petition against the legality of the various promotions given to respondents Nos.
The petitioners companytend that the deputationists were serving in the ARC only on ad hoc basis and hence they were number eligible under the terms of the Memorandum dated December 27, 1959 Annexure C for the grant of any promotions in the borrowing department.
The Screening Committee was required to act within the frame work of the scheme of absorption envisaged in the Rules and the Committee had followed proper guidelines which had been approved by the companytrolling authority, namely, the Secretary, Department of Cabinet Affairs, Cabinet Secretariat.
Repelling the companytention of the petitioners that the principle for fixation of seniority laid down in the impugned Rules is illegal for the reason that it is inconsistent with the guidelines and general principles for determination of seniority in the Central Services enunciated in MHA Memorandum dated December 22, 1959 Annexure C the first respondent has submitted in the companynter affidavit that there is numbersubstance in this plea since it has been specially stated in the Memorandum Annexure C itself that the principles companytained therein will number apply to such services and posts for which separate principles have already been issued or may be hereafter issued by Government.
they have put forward more or less the same companytentions in defence of the writ petition as have been taken by the first respondent.
I that the appointments given to the petitioners were merely ad hoc in character and this had been clearly specified in the Memos issued to them companytaining the order of appointment that the appointments were temporary and would number companyfer on them any right for permanent appointment if and when the posts were made permanent.
Yet another relief claimed by the petitioners is that all the promotions granted to respondents Nos.
As regards the petitioners companytentions based on the MHA Memorandum dated December 22, 1959, it is pointed out in the companynter affidavit that the general principles laid down therein had numberapplication till the matter of filling up of temporary posts in a temporary department.
The Department was companytinued by the Government on temporary basis from year to year till 1971 when the Government, after reviewing all the relevant factors, took a decision to make the ARC permanent.
In the separate companynter affidavit filed on behalf of respondents 13, 16,22 etc.,
The allegation put forward by the petitioners that the direct recruits were discriminated against has been denied by the first respondent as totally unfounded, and it is stated that all such appointments to the various technical posts in the higher categories of FOS, ATOS and Assistant Directors were made by the Department on the recommendations of the duly companystituted DPCs Selection Committees.
the ARC Technical Service was deliberately delayed with a view to give undue advantage to the deputationists has been denied by the first respondent as baseless and untrue.
were subsequently appointed to higher posts on deputation basis but the first respondent submits that there companyld be numbervalid objection to such appointments, as they had all been made in the public interest and in accordance with the general instructions on the subject.
According to the petitioners, the said list had been prepared in violation of the principle that the same period of service of a Government servant cannot be legally companysidered twice over for service benefits in two Departments, namely, the parent department and the borrowing department.
Though a decision was taken by the Government in 1971 to make the ARC a permanent department, and steps to frame rules were also immediately initiated, the draft rules companyld be finalised after intensive examination by various companycerned Ministries only by April 1976 when the Rules were promulgated.
1 and 4 made representations companyplaining against those promotions, but those representations were rejected by the Director, ARC by his Memorandum dated September 8, 1975 Annexure E .
some of the deputationists who were initially appointed as Tech.
As and when direct recruits gained adequate experience, several of them were also given ad hoc appointments to such higher posts.
Some of the petitioners who had joined the ARC in 1963 as DFOs became eligible for promotions in 1968 by companypleting the five years qualifying period, but instead of promoting them to the category of Field officers, the Department filled up the vacancies which became available in 1968 and subsequent years by promoting some of the respondents who were only deputationists.
the writ petition before the Delhi High Court was got amended by the petitioners therein by incorporating objections against the new seniority lists published by the Department.
Dealing with the attack levelled by the petitioners against the validity of Rule 6 6 , it is pointed out in the companynter affidavit that the spirit and companytent of the rule is that persons who were holding higher posts on the crucial date and were companysidered suitable for permanent appointment in the said posts but companyld number be appointed substantively to such posts for want of vacancies, may be given permanent posts in the owner grade.
Assistant Technical officer subject only to the right of the Department to supersede those found unsuitable for such promotions.
In the light of the said submission, the High Court dismissed that writ petition observing that since numberrules governing the Service had been framed and the appointments in question had all been made on purely ad hoc basis, the petitioners did number have at that point of time any legitimate grievance and the writ petition was, therefore, premature.
It is companytended by the petitioners that the deputationists were occupying the posts in the Department only on ad hoc basis and such ad hoc appointees who were having the benefit of lien in their parent departments and were getting promotions in those departments had numberclaim whatever to seniority or promotions in the borrowing Department, namely, the ARC.
Under Article 32 of the Constitution of India M. Tarkunde, G.L. Sanghi, Mrs. Jayashree Wad, G.D .
While the deputationists were persons with rich experience and long years of service, the direct recruits were inexperienced and new to the job.
Since it was found to be defective in certain aspects, a revised draft was prepared in 1974.
working in the ARC was published in March 1971 Annexure A , wherein the officers on deputation as well as those who are directly recruited in the ARC had all been included and the seniority of the deputationists had been fixed by taking into account the total length of service put in by them in the rank of ACIO in their parent departments as well as in the ARC.
119 of 1979.
It is pointed out that if the companytention of the petitioners that only persons who are regularly appointed in the ARC companyld be absorbed in the service is to be accepted, then numbere of the petitioners companyld have been permanently appointed in the ARC Technical Service, as the appointments held by the petitioners prior to the companystitution of the ARC Service in 1976 were purely temporary and ad hoc in The further plea put forward by the petitioners that Rule 6 2 of the impugned Rules suffers from the vice of excessive delegation of power has been stoutly denied by the first respondent.
8 to 67 from 1968 onwards for a period of nearly seven years subsequent to the aforesaid pronouncement by the Delhi High Court.
The said rule was framed keeping in view the special requirements of the new Department.
The allegation made by the petitioners that the framing of the rules and the companystitution of.
How ever, all the appointments made by direct recruitment were merely temporary and ad hoc in character.
8 to 67 during the period between 1968 and 1975.
1, as Annexure R 1.
It is also submitted by the first respondent that the provision in the impugned rules for absorption of the deputationists in the ARC Technical Service was Made in public interest since it was found that the companytinual retention of the deputationists who possessed valuable experience and had long association with the organisation was absolutely necessary for the efficient functioning of the Department.
All the appointments made in the organisation, whether of direct recruits like the petitioners or of deputationists like respondents Nos.
It is pointed out in the companynter affidavit that the said rule was applicable to direct recruits as well as to the deputationists and that, as a matter of fact, some of the petitioners got the benefit of this rule inasmuch as they were appointed substantively in the grade of DFO T with effect from April 26, 1976, while they are holding posts of Fo T on the said date.
The first respondent has submitted that Rule 6 of the impugned Rules provides equal treatment to all the officers in position in the ARC on the crucial date in the matter of absorption and determination of inter se seniority at the time of initial companystitution of the service.
In the circumstances, the higher posts of FOs, ATOs and Assistant Directors had to be filled up by ad hoc appointments from amongst the deputationists who by virtue of their long experience in the particular type of work were companysidered suitable for those posts.
Since the whole matter had to be subjected to extensive and intensive examination by various Ministries taking into account all relevant factors, the finally approved rules companyld be promulgated only in April 1976.
G A Writ Petition Civil Writ Petition No.
Referring to the provisions companytained in Rule 5 3 of the impugned Rules regarding the exercise of option by officers willing to be absorbed on permanent basis in the ARC, it is submitted in the companynter affidavit that the said provision was equally applicable to direct recruits as well as the erstwhile deputationists.
Quite apart from what has been stated above on the aspect of laches, on the merits also we do number find any substance in the companytentions urged by the petitioners against the legality of the promotions granted to respondents Nos.
in the ARC organisation they companyld number automatically become members of the new ARC Technical Service which was companystituted for the first time with effect from April 26, 1976.
The companytention of the petitioners that they were regularly recruited as DFOs in the ARC is denied by the Government respondents.
The administrative companytrol over the ARC was originally vested in the Ministry of External Affairs and later with the Prime Ministers Secretariat till 1965 when it was transferred to the Cabinet Secretariat.
8 to 67, had been made only on an ad hoc basis.
It is pointed out by tile first respondent that when deputationists were selected by the DPC, they were appointed to the higher posts on deputation and it was number a process of promotion as wrongly companytended by the petitioners.
The allegation made by the petitioners that the deputationists were given illegal promotions from time to time has also been denied in the first respondents companynter affidavit as totally baseless.
The service rendered by the former deputationists in various grades prior to their absorption in the ARC companyld number be ignored, as their services were required by the Department in public interest.
If the deputationists had number been given the benefit of the service put in by them in the equivalent grade in their parent departments, they would have all opted for their reversion to their parent departments and that would have resulted incomplete dislocation of the functioning in the ARC.
The delay in promulgation of the rules was due to the fact that because of the special features of the Department and the sensitive nature of the functions to be discharged by it, various circumstances and factors had to be taken into account before the draft rules were finally cleared by the several Ministries companycerned.
Action to frame the rules was initiated shortly after the decision was taken in 1971 to make the ARC a permanent Department.
Subsequently, to supplement the man power, some persons were also directly recruited to the organisation on a purely ad hoc basis.
The companynter affidavit proceeds to state that promotions in the Department were effected in the meantime strictly on the basis of the seniority list of officers recommended for absorption which the Screening Committee had prepared.
It is admitted that during the period when the ARC was functioning as a temporary Department.
Writ petitioners Nos.
The further submission made in the companynter affidavit of the first respondent is that in the ARC there was numberregular cadre number any Recruitment Rules prior to 1976 and as and when posts in the various categories in the grades were sanctioned, they were filled up by getting suitable hands with the requisite qualifications and some experience from other departments on deputation and some vacancies were also filled up by direct recruitment.
The provision enabling the companytrolling authority to issue general instructions was incorporated in the rules for the purpose of ensuring that the rules relating to the initial companystitution of the service were applied uniformly and judiciously.
This, according to the petitioners, has been done with the mala fide intention of giving favoured treatment to a deputationist at the expense of the direct recruits like the petitioners.
In 1975, a further injustice is said to have been done to the petitioners when twenty of the deputationists functioning as Field officers were promoted as Assistant Technical officers for short, ATOs .
The petitioners as well as the direct recruits were treated alike in the matter of the assessment of their suitability for absorption by the Screening Committee and on being found suitable, they were absorbed either in the same posts which they were occupying immediately prior to April 26, 1976 or in a lower post, subject to availability of permanent posts.
1020 of 1971, filed by three of the present petitioners, that numberdiscrimination companyld be said to have been made against the direct recruits either in drawing up the seniority list of 1971 or in the action taken by the authorities to filling up some of the higher posts by appointing deputationists.
In February 1965, the ARC, along with two other schemes, was brought under the companytrol of the Director General of Security.
It is further pleaded by the first respondent that numberillegality whatever was involved in adopting the principle of reckoning the seniority in a particular post on the basis of total length of companytinuous service put in by the companycerned officers in the particular grade in the ARC or in the equivalent grade in the parent department.
When the case came up for hearing, companynsel appearing on behalf of the Union of India submitted before the High Court that statutory rules governing the service were then under preparation, that the arrangements till then made were all purely on ad hoc basis and the whole question will eventually be finalised after the rules were framed.
The petitioners have raised the plea that the aforesaid promotions of the deputationists were illegal and discriminatory since the Department had fixed an arbitrary date, namely, December 1972 for companyputing the qualifying period of three years for eligibility to be companysidered for promotions.
The first respondent has stated in the companynter affidavit that equal treatment had been meted out to the direct recruits and the deputationists in the matter of promotion appointment from the grade of AClO 1 to that of ATO.
ORIGINAL JURISDICTION Writ Petition No.
The Department treated both the direct recruits as well as the deputationists as ad hoc apponintees in the ARC with equal rights, and equal weightage was given to both categories of employees in respect of length of service in a given grade irrespective of whether or number it was rendered wholly in ARC.
The companytention put forward by the petitioners that the said provision renders the functioning of the Screening Committee nugatory, is C refuted by the first respondent as being devoid of any merit.
thereby illegally denying to the petitioners the opportunities legitimately due to them for promotion in the Department.
In the companynter affidavit filed on behalf of respondent No.
13 to 16, 22, 25, 28 and 31.
Prior to 1971, there were numberpermanent posts at all in the ARC because the Department was temporary and all the temporary posts were being sanctioned on a year to year basis.
Reliance is placed by the first respondent of the observations made by the Delhi High Court in its judgment in Civil Writ Petition No.
Since there was numberregularly companystituted service, the principles companytained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs Annexure C , on which strong reliance was placed by the petitioners, companyld have numberapplication at all to the temporary ARC organisation.
The former deputationists had occupied a larger percentage of the higher posts during the aforesaid period because they had put in more years of service in different grades and had much greater experience in carrying out the functions which were of a highly specialised nature when companypared to the direct recruits whose induction in the ARC started only from 1965.
There was numberregular cadre of posts in the said organisation, number were there any rules governing the mode of recruitment etc.
At that time, as already, numbericed, the ARC was a H purely temporary organisation which was being companytinued on a year to year basis.
Stress is laid in the companynter affidavit on the fact that simultaneously with the companystitution of the ARC as a regular department, the ARC Technical Service Rules, 1976 were promulgated by the Government and it has been submitted that the principles laid down in the aforesaid Memorandum did number get attracted to the new service inasmuch as it is clearly specified in the Memo itself that the principles enunciated therein will number be applicable for such Services and posts for which separate principles have been already issued or may be issued thereafter by the Government, The allegation of the petitioners that they had number been companysidered for promotion at the time when the vacancies in the categories of DFOs were filled up during the year 1968 to 1975 has been denied by the first respondent and it is averred in the companynter affidavit that the direct recruits were given promotions in the higher posts when they were found suitable by the DPC for ad hoc promotions to the grades of FOs Tech. ,
During the pendency of that writ petition the impugned seniority list of 1971 was substituted by two separate lists one companysisting of the direct recruits and the other companysisting of deputationists.
The petitioners companytend that by virtue of their regular appointments in the ARC, they were, as of right, entitled to be promoted to the higher posts of Assistant Central Intelligence officer, Grade I now called the Field officer Tech.
For manning this Task Force, persons with experience in the specialised nature of the work were taken on deputation basis from different sources, such as the intelligence Bureau, the Departments of Defence Science, Wireless Panning and Coordination, the Directorate General of Civil Aviation and the Police of different States and they were grouped together to form the ARC.
There were numberRecruitment and Cadre Rules for the ARC during the period when the Department was functioning on a temporary and purely experimental basis and a number of officers, including respondents Nos.
On December 1, 1975, seven more deputationists were promoted as ATOs.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. In this petition filed under Article 32 of the Constitution, the petitioners 31 in number who are all officers serving in the Aviation Research Centre for short, the ARC have challenged the companystitutionality of Rules 6 to 8 of the Aviation Research Centre Technical Service Rules, 1976 issued by the President of India under the proviso to Article 309 of the Constitution, as also the legality and validity of the absorption of respondents Nos.
The allegation made by the petitioners that the promulgation of the rules was deliberately delayed in order to companyfer an undue advantage on the deputationists who were granted promotions to the higher grades in the meantime, has been categorically denied by the first respondent in its companynter affidavit.
It is stated that the Memos issued to all the petitioners were on identical terms and a specimen companyy of the Memo issued to the petitioners has been appended to the companynter affidavit of respondent No.
Some persons, like the petitioners, were also directly recruited as ACIOs II on a purely temporary and ad hoc basis against temporary posts in the ARC.
8 to 67 in the ARC service from 1968 till 1978 should be declared by this Court as illegal and void, and that a writ of mandamus or any other appropriate writ, order or direction should be issued to respondents Nos.
Dr. Y.S. Chitale, A.T.M. Sampath and P.N. Ramalingam for the other appearing Respondents.
8 to 67 are officers whose services have been borrowed on deputation to the ARC from some departments of Central Government and from the Police Cadre of State Governments.
1020 of 1971 was filed in the Delhi High Court by three of the present petitioners companyplaining against the promotions given to the deputationists and challenging the validity of the companybined seniority list published by the Department in 1971.
In the absence of any Recruitment Rules, there was numberlegal bar whatever preventing the companypetent authority from borrowing persons from other departments on deputation basis to man the various posts in the ARC during the period prior to the introduction of the impugned Rules with effect from April 26, 1976.
Gupta and Miss Anita for the Petitioners.
for short DFO under the impugned Rules while respondents Nos.
1 to 7 the Union of India, the Cabinet Secretary, the Director of Department of Personnel, the Director General of Security, the Director of ARC and the Adviser Technical , A.R.C., respectively to companystitute the ARC afresh in accordance with law and to rearrange the seniority in the Service in companyformity with law.
Thereupon.
The petitioners case is that shortly after the formation of the ARC in 1963 the petitioners were directly recruited to the said department on a regular basis during the period between 1963 and 1966 in the category of Assistant Central Intelligence officers Grade II, which has since been redesignated as Deputy Field officers Tech.
8 to 67 in the said Department pursuant to the impugned Rules.
Parasaran, Solicitor General and Miss. A. Subhashini for Respondents 1 2 and 4 7.
A draft companybined seniority list of Assistant Central Intelligence officers Grade II Tech.
There is a further prayer in the writ petition to declare the Seniority List dated November 6, 1978 Annexure G published by the Department as illegal, unconstitutional and void.
Since the direct recruits were all occupying the posts in the ARC only on a purely cd hoc basis, they had numberlegal right to be appointed in the new Department and merely by reason of their temporary appointments as ACIO II Tech.
