Union of India & Ors. Vs. Vinod Kumar & Ors.
EmailAppeal: Civil Appeal No. 9817 of 1996.
(Arising out of SLP (C) No. 9374/96)
(From the Judgment and Order dated 04-10-95 of the Central Administrative Tribunal, Thandigargh in O.A. No. 1002/DB/94)
(Arising out of SLP (C) No. 9374/96)
(From the Judgment and Order dated 04-10-95 of the Central Administrative Tribunal, Thandigargh in O.A. No. 1002/DB/94)
Petitioner: Union of India & Ors.
Respondent: Vinod Kumar & Ors.
Apeal: Civil Appeal No. 9817 of 1996.
(Arising out of SLP (C) No. 9374/96)
(From the Judgment and Order dated 04-10-95 of the Central Administrative Tribunal, Thandigargh in O.A. No. 1002/DB/94)
(Arising out of SLP (C) No. 9374/96)
(From the Judgment and Order dated 04-10-95 of the Central Administrative Tribunal, Thandigargh in O.A. No. 1002/DB/94)
Judges: K. RAMASWAMY & G.B. PATTANAIK, JJ.
Date of Judgment: Jul 15, 1996
Appearances:
Mr. R.V. Reddy, Senior Advocate, Mr. C.V.S. Rao, Mr. T.C. Sharma, Advocates with him for the Appellants.
Ms. Meera Agrwal, R.C. Mishra, Adocates for the Respondents.
Head Note:
SERVICE AND LABOUR LAW
Employees provident Fund and Misc Provisions Act 1952 – Section 5D(7)(a) proviso – Held under Section 7(a) Proviso any deviation from rules is valid only on approval of Central Govt. – Ex past facto approval is not an approval in the eye of law and of law is not valid – Fresh Notification for recruitment to be issued.
Held:
On the other hand, ex post facto approval was obtained but, in the teeth of the language of the proviso ex post facto approval is not an approval in the eye of law. Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept at large and directed the appellant to issue notification afresh for recruitment in accordance with rules. We do not find any legality in the order. (Para 4)
JUDGEMENT:
O R D E R
1. Delay condoned.
2. Leave granted.
3. We have heard the learned counsel.
4. The only short question is whether the deviation from rule of granting promotion of 50% of the quota giving 2 years additional benefit to the Upper Division Clerks is valid in law? Sub-section (7)(a) of Section 5-D of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 provides method of recruitment as under:
“7(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner, Assistant Provident Fund Commissioner, and other officers and employees of the Central Board shall be such as may be specified by the Central Board in accordance with the Rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay.
Provided that where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government.”
Under the proviso, where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters enumerated above it is mandatory that it should obtain prior approval of the Central Government. Admittedly, prior approval was not obtained. On the other hand, ex post facto approval was obtained but, in the teeth of the language of the proviso ex post facto approval is not an approval in the eye of law. Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept at large and directed the appellant to issue notification afresh for recruitment in accordance with rules. We do not find any legality in the order.
5. The appeal is accordingly dismissed. No costs.
1. Delay condoned.
2. Leave granted.
3. We have heard the learned counsel.
4. The only short question is whether the deviation from rule of granting promotion of 50% of the quota giving 2 years additional benefit to the Upper Division Clerks is valid in law? Sub-section (7)(a) of Section 5-D of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 provides method of recruitment as under:
“7(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner, Assistant Provident Fund Commissioner, and other officers and employees of the Central Board shall be such as may be specified by the Central Board in accordance with the Rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay.
Provided that where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government.”
Under the proviso, where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters enumerated above it is mandatory that it should obtain prior approval of the Central Government. Admittedly, prior approval was not obtained. On the other hand, ex post facto approval was obtained but, in the teeth of the language of the proviso ex post facto approval is not an approval in the eye of law. Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept at large and directed the appellant to issue notification afresh for recruitment in accordance with rules. We do not find any legality in the order.
5. The appeal is accordingly dismissed. No costs.
