S. Adhinarayanan vs Union Of India & Ors.

This OA has been filed by the applicant seeking the following relief:

Brief facts of the case, as submitted by the applicant are as follows: The applicant was directly recruited through the Staff Selection Commission as Section Officer (Commercial) in 2008. The post was subsequently upgraded and merged with that of Assistant Audit Officer (Commercial) (AAO). As the applicant failed to qualify in the departmental test, he was reverted/removed from the post of AAO on 21.02.2014 and was offered the post of Auditor on 24.02.2014. He thereafter passed the departmental examination held on 27.02.2014 and was again promoted as AAO (Commercial) on 05.06.2014. However, the applicant was denied the corresponding AAO pay scale from the date of his initial appointment in 2008. His representations seeking review of his reversion, restoration of AAO status, conferment of the Auditor post, and condonation of the delay in qualifying the departmental test were rejected. His subsequent reconsideration representation was also rejected. The applicant challenged the rejection before this Hon’ble Tribunal, which directed the respondents to consider his representation and pass appropriate orders. The representation was again rejected. Aggrieved by the discriminatory treatment and repeated rejection of his claim, the applicant has filed the present Original Application.

The learned counsel for the applicant submitted that, as per the offer of appointment dated 11.08.2008, the period of probation was two years, and the applicant joined service on 08.09.2008. With the introduction of the revised SAS examination scheme in 2010, six fresh chances were made available to candidates. The applicant cleared 8 out of 9 papers within those six chances and, having applied for a seventh chance, was permitted to appear in the examination and was issued a hall ticket. Having thus accepted his application and permitted him to appear, the respondents were estopped from terminating his service for failure to qualify the examination, particularly immediately before the examination.

It was further submitted that, notwithstanding the termination/reversion order dated 21.02.2014, the applicant was permitted to appear in the SAS examination held on 27.02.2014, which he successfully cleared, as evidenced by the result published on 24.03.2014. He was thereafter promoted as Assistant Audit Officer (Commercial) and joined the promoted post on 17.06.2014. These material circumstances were not duly considered while rejecting his request for review.

The learned counsel further contended that the applicant’s probation was never formally terminated despite the stipulated two-year period having expired in 2010. The respondents, while rejecting his review on 19.08.2016, relied upon a maximum four-year probation period and stated that directly recruited AAOs were required to clear the SAS examination within the probation period. However, having expressly permitted the applicant to avail the seventh chance and issued the hall ticket, the respondents could not subsequently terminate his service on the ground of non-qualification. Such action is contrary to the principle of promissory estoppel and is therefore liable to be set aside.

It was also submitted that directly recruited AAOs of the 2010 batch, who had not cleared the SAS examination within six chances by February 2014, were granted a seventh chance in August 2014 without termination and reappointment. The applicant, who had in fact cleared the examination in February 2014 itself, was therefore subjected to discriminatory treatment and ought to have been extended the same benefit.

The learned counsel further pointed out that the rejection order itself states that directly recruited AAOs were required to clear the SAS examination within six chances, comprising the Main and Supplementary examinations, during the probation period, failing which their services were liable to be terminated under Para 5.5.2 of the C&AG’s MSO (Admn.) Vol. I. Having admittedly granted the 2010 batch a seventh chance, the respondents could not arbitrarily deny the same benefit to the applicant. The fact that the seventh chance was granted to the 2010 batch within the extended probation period cannot justify denying the applicant an identical opportunity, particularly when his application had already been accepted and a hall ticket issued only six days before the examination. Accordingly, the learned counsel submitted that the impugned orders suffer from arbitrariness and discriminatory treatment and are liable to be set aside, with consequential reliefs as prayed for in the OA.

In contrast, the learned counsel for the respondents, relying upon the reply statement, vehemently contended that the applicant was required to (i) pass the SAS examination within the prescribed probationary period of two years, extendable up to four years, and (ii) qualify the examination within the prescribed six chances. He submitted that, pursuant to the revamping of the SAS examination scheme vide C&AG’s Circular dated 07.06.2010, six fresh chances were granted to departmental candidates commencing from the SAS examination held in 2010. The said benefit was not applicable to the applicant. Therefore, the applicant’s comparison with directly recruited AAOs of the 2010 batch was misconceived, as those candidates were granted a seventh chance within their permissible extended probationary period of four years from the date of appointment.

It was further submitted that the applicant had completed the maximum extended probationary period of four years by September 2012. Nevertheless, as he had not exhausted the prescribed six chances by then, the Office of the C&AG, New Delhi permitted him to avail the remaining chances as AAO (Commercial) (Probationer) up to August 2013 to clear all the papers of the SAS (Commercial) examination. Since the applicant failed to qualify all the papers even after exhausting the permissible six chances, his services as AAO (Commercial) were terminated.

The learned counsel further submitted that even among the 2010 batch, the grant of a seventh chance was not universal. One AAO of that batch was denied the seventh chance because his extended probation had expired on 29.07.2014, two days prior to the cut-off date of 01.08.2014 for appearing in the SAS examination. It was also contended that, while applying for the February 2014 SAS examination, the applicant was fully aware that he had already completed the maximum four-year probationary period and exhausted the prescribed six chances without qualifying all the papers. There was, therefore, no nexus between his registration for the February 2014 examination, for which applications had been invited in November 2013, and the subsequent termination of his service as AAO (Commercial) in February 2014.

The respondents'counsel further submitted that the Office of the C&AG, New Delhi, vide letter dated 20.02.2014, had duly communicated the relevant position to the applicant. Despite being aware of the same, the applicant accepted the terms and conditions and the appointment to the post of Auditor vide his letter dated 24.02.2014. Having accepted such appointment with full knowledge of the applicable conditions, the applicant could not subsequently challenge the action of the respondents. Accordingly, the learned counsel submitted that the applicant’s claim was devoid of merit, that no discriminatory treatment had been meted out to him, and that the impugned orders were valid and in accordance with the applicable rules. He therefore prayed for dismissal of the Original Application.

We have considered the rival submissions made by the learned counsel on either side, perused the pleadings and materials available on record.

In the present OA. the applicant was appointed as Section Officer (Commercial)/Assistant Accounts Officer (Commercial) [SO(C)/AAO(C)] on probation with effect from 08.09.2008. As per the terms and conditions of his appointment, the applicant was required to qualify in the SOGE(C)/SAS(C) examination within the prescribed probationary period of two years, which could be extended by a further period of two years, thereby making the maximum permissible period of probation four years. The applicant appeared in the SAS(C) examination in 2009 under the then-prevailing scheme but failed to qualify within the normal probationary period of two years, i.e., by September 2010. Subsequently, the SAS examination scheme was revised pursuant to the CAG's Circular dated 07.06.2010. Under the revised scheme, a maximum of six chances was provided to departmental candidates, commencing afresh from the SAS examination held in 2010. The said benefit, however, was not applicable to the applicant at that stage, as he was a direct recruit.

Thereafter, pursuant to the CAG's Circular dated 24.11.2011, although the applicant's maximum permissible probationary period of four years was due to expire in September 2012, he was permitted to appear in the SAS(C) examination up to August 2013 so as to avail the remaining attempts within the overall limit of six chances. Thus, although the applicant's extended probationary period expired on 07.09.2012, his services as AAO(C) were not terminated on 08.09.2012. In view of the orders governing the SAS examination dated 07.06.2010 and 24.11.2011, he was permitted to continue as AAO(C) for the purpose of qualifying in the SAS(C) examination within the prescribed six chances, up to the examination held in August 2013. The records further disclose that the applicant, while continuing as AAO(C) on probation, failed to qualify Groups I and II of the SAS(C) examination within the extended period permitted to him and, consequently, could not fulfill the terms and conditions of his appointment as SO(C), subsequently redesignated as AAO(C).

In these circumstances, the applicant was offered appointment to the post of Auditor against a direct-recruitment vacancy in the Office of the Accountant General (E&RSA), Tamil Nadu. It was specifically stipulated that, upon such appointment, his existing pay in the AAO(C) cadre would not be protected. However, his past service would be counted for the purposes of leave and pension in accordance with Rule 24 of the CCS (Pension) Rules, 1972. The applicant, vide his letter dated 24.02.2014, filed as R-5, communicated his willingness to accept the offer of appointment as Auditor on the terms and conditions contained in the Office of the Comptroller and Auditor General of India, New Delhi's order dated 20.02.2014. Accordingly, in terms of paragraph 5.5.2 of the CAG's MSO (Admn.), Volume I, an offer of appointment as Auditor was issued to the applicant. Consequent upon his acceptance of the said offer, the applicant was appointed as Auditor with effect from 24.02.2014 (F/N), as evidenced by R-6.

Subsequently, in terms of the Office of the C&AG of India Examination Circular dated 18.11.2013, the applicant was permitted four consecutive chances commencing from the February 2014 SAS(C) Supplementary Examination, since he had qualified in more than five out of the nine papers of the SAS(C) examination up to August 2013. However, by that stage, the applicant had already exhausted the six chances available to him under the applicable examination scheme. The provisions of the Circular dated 18.11.2013 were applicable to departmental candidates of the IA&AD appearing in the SAS examination and were not applicable to direct-recruit AAO(C)s serving on probation. As the applicant failed to qualify the SAS(C) examination within the permissible chances, his services in the AAO(C) cadre were terminated. He was, however, permitted to appear in the SAS (Commercial) examination held on 27.02.2014 in his capacity as an Auditor. Upon successfully qualifying the SAS(C) examination held on 27.02.2014, the applicant was subsequently promoted to the cadre of AAO(C) with effect from 17.06.2014 as a departmental candidate.

Since the applicant had been removed from the AAO(C) cadre and was thereafter appointed as an Auditor, his pay drawn in the AAO(C) cadre as a direct recruit on probation was not protected. The condition regarding non-protection of pay was expressly incorporated in the offer of appointment to the Auditor cadre and was accepted by the applicant vide his letter dated 24.02.2014. Consequently, upon his appointment as Auditor, his pay was fixed at the initial stage applicable to a Direct Recruit Auditor under the Sixth Central Pay Commission, i.e., Pay Band-1 of Rs. 5,200–20,200 with Grade Pay of Rs. 2,800 (pay being fixed at Rs. 8,560/- plus Grade Pay of Rs. 2,800/- as applicable at the relevant time). Thereafter, on successfully qualifying Groups I and II of the SAS(C) examination as an Auditor, the applicant was promoted as AAO(C) with effect from 17.06.2014 as a departmental candidate. Upon such promotion, his pay was fixed at the initial stage prescribed for departmental candidates in the AAO(C) cadre under the Sixth Central Pay Commission, i.e., Pay Band-2 of Rs. 9,300–34,800 with Grade Pay of Rs. 4,800/-, in accordance with the applicable rules.

In the above circumstances, we do not find any infirmity in the orders impugned in the OA. Consequently, the OA is dismissed as devoid of merits. However, There shall be no order as to costs.