HARJINDER SINGH AND ORS  Vs UNION OF INDIA AND ORS

WP(C ) 9256/2020 Page 1 of 11
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 9256/2020

HARJINDER SINGH AND ORS. …..Petitioner s
Through: Mr.Ankur Chhibber, Advocate.

versus

UNION OF INDIA AND ORS. …..Respondents
Through: Mr. R.V. Si nha, Sr. CGC with
Mr. Amit Sinha, CGC and
Ms. Sharanya Sinha, Advocate.

% Date of Decision: 06th January, 2021
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE ASHA MENON

J U D G M E N T
MANMOHAN , J (Oral)
1. Present writ petition has been filed seeking quashing of pay
fixation or ders of the petitioners upon their promotion to the rank of
Sub-Inspector CRPF through LDCE to the extent that the said pay
fixation orders fixed the pay of the petitioners incorrectly at Rs.9300-
34800 + Grade pay of Rs.4200/ – and to re -fix the pay of the
petitioners in the pre -revised pay structure being Rs.10230- 34800 +
Grade Pay of Rs.4200/- as per the option form submitted by them in a
time bound manner as per instructions laid down by the DOPT to
ensure career progression along with all the consequential benefits
and arrears as due to them. :
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2. In the alternative, the petitioners pray for a direction to the
respondents to grant similar relief as was granted to similarly situated
personnel of the Force by this Court in the case of Braham Prakash
Vs. Union of India; W.P.(C) No.3636/2016 and connected matters
vide judgment dated 16th
3. Mr.Ankur Chhibber, learned counsel for the petitioners submits
that the LDCE is only a method of promotion and therefore, the
appointment of the petitioners as Sub-I nspector by way of LDCE has
to necessarily be treated as a promotion and not a fresh appointment
in government service. In support of his submission, he relies upon
the Division Bench judgment in W.P.(C) No.3636/2016. October, 2018.
4. He points out that a special leave pe tition filed against the
judgment and order dated 16th
5. Issue notice . October, 2018 has been dismissed by
the Supreme Court and the said judgment has been implemented vide office order dated January, 2020 – which has been placed on record
as Annexure ‘P -10’.
6. Mr.R.V.Sinha, Advocate , accepts notice on behalf of the
respondents . He states that SLP against Division Bench judgment of
this Court in Braham Prakash (supra) was dismissed on the ground
of delay leaving the question of law open and that on account of dismissal of the SLP, the Division Bench judgment referred to herein had to be implemented. On instructions, he further states that the
judgment in Braham Prakash (supra) has not attained finality
inasmuch as certain SLPs are pending before the Apex Court.
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7. Having heard learned counsel for the parties, this Court finds
that the issue raised in the present writ petition is no longer res
integra and is squarely covered by the decision of the Division Bench
in Braham Prakash (supra) ; W.P.(C) No.3636/2016. The relevant
portion of the said judgment is reproduced hereinbelow:-
“7. We have heard the learned counsel for the parties and
find that the only stand taken by the respondents to deny
the petitioner the benefit of his revised option dated
03.12.2010, is tha t he being a fresh appointee to the post of
Sub-Inspector (GD) w.e.f. 08.11.2007, was not eligible to
exercise any option in accordance with Rule 5 of the CCS
Rules as the said option was available only to persons who
were already in service before 01.01.2006. It may be noted
that it is undisputed before us that the petitioner had joined the CRPF on 23.02.2003 and was appointed as a Sub-Inspector (GD) on 08.11.2007 by way of LDCE. Therefore, the question before us would be whether upon joining the post of Sub Inspector (GD) by way of LDCE on
08.11.2007, it could be said that the petitioner had joined
Government service after 01.01.2006.
8. Before we deal with the rival contentions of the parties, it is deemed it appropriate to refer to Rules 5 and 6 of the
CCS (Revised Pay) Rules, 2008, which read as under: –

“5. Drawal of pay in the revised pay structure –
Save as otherwise provided in these rules, a Government servant shall draw pay in the revised pay structure applicable to the post to which he is appoin ted;
Provided that a Government servant may elect to
continue to draw pay in the existing scale until the
date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
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Provided further that in cases where a Government servant has been placed in a higher pay scale between 1.1.2006 and the date of
notification of these Rules on account of
promotion, upgradation of pay scale etc., the Government servant may elect to switch over to
the revised pay structure from the date of such promotion, upgradation, etc.

Explanation 1 – The option to retain the existing
scale under the provisos to this rule shall be
admissible only in respect of one existing scale.
Explanation 2 – The a foresaid option shall not be
admissible to any person appointed to a post on or after the 1st day of January, 2006, whether for the
first time in Government service or by transfer
from another post and he shall be allowed pay only in the revised pay struct ure.
Explanation 3 – Where a Government servant
exercises the option under the provisos to this rule
to retain the existing scale in respect of a post
held by him in an officiating capacity on a regular basis for the purpose of regulation of pay in that scale under Fundamental Rule 22, or any other rule or order applicable to
that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing scale in respect of the permanent post on which he holds a lien or would have held a lien
had his lien not been suspended or the pay of the
officiating post which has acquired the character
of substantive pay in accordance with any order
for the time being in force, whichever is higher.

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6. Exercise of Option –
1) The option under the provisos to Rule 5 shall be
exercised in writing in the form appended to the Second Schedule so as to reach the authority
mentioned in sub rule (2) within three months of
the date of publication of these rules or where an existing scale has be en revised by any order to
that date, within three months of the date of such order.

Provided that –
(i) in the case of a Government servant who is, on
the date of such publication or, as the case may be, date of such order, out of India on leave or deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the
date of his taking charge of his post in India; and

(ii) where a Government servant is under suspension on the 1st day of January, 2006, the
option may be exercised within three months of the date of his return to his duty if that date is
later than the date prescribed in this sub- rule.

(2) The option shall be intimated by the Government servant to the Head of his Office.
(3) If the intimation regarding option is not
received within the time mentioned in sub- rule (1),
the Government servant shall be deemed to have
elected to be governed by the revised pay structure with effect on and from the 1 day of Janua ry, 2006.

(4) The option once exercised shall be final Note 1
– Persons whose services were terminated on or
after the 1
st January, 2006 and who could not
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exercise the option within the prescribed time
limit, on account of discharge on the expiry of the
sanctioned posts, resignation, dismissal or
discharge or disciplinary grounds, are entitled to
the benefits of this rule

Note 2 – Persons who have died on or after the 1*
day of January, 2006 and could not exercise the option within the prescribed time limit are deemed to have opted for the revised pay structure on and
from the 1 day of January, 2006 or such later date
as is most beneficial to their dependents, if the revised pay structure is more favourable and in such cases, necessary action for payment of arrears should be taken by the Head of Office
Note 3 – Persons who were on earned leave or
any other leave on 1.1.2006 which entitled them to leave salary will be allowed the benefits of this rule.”
9. A perusal of the aforesaid Rules clearly reveals that as
per Explanation 2 to Rule 5, “those persons who are
appointed to a post for the first time in Government service
on or after 01.01.2006”, are prohibited from exercising the option to switch over to the revised pay structure from a date later than 01.01.2006. Thus, the entire claim of the petitioner hinges on whether he can be treated as a person who had joined Government service for the first time, on or
after 01.01.2006.

10. The question as to whether a person appointed by way of LDCE is a direct recruit or a promotee, need not detain
us for too long as we find that a Division Bench of this Court in the case of Man Singh (supra), has categorically
held that appointment through LDCE is merely an
appointment by way of promotion albeit fast tracked. In
arriving at the aforesaid decision, the Division Bench had
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relied upon the notings of the Ministry of Home Affairs
itself wherein, it had been clearly stated that LDCE is a mode of promotion. For the sake of ready reference, the
relevant extracts of the decision in the case of Man Singh
(supra), are reproduced hereinbelow: –

“17. Learned counsel for the petitioner has drawn our attention to the stand of the Ministry of Home Affairs (Personnel), New Delhi as well as the Department of Personnel and Trainin g of the
Government of India in their records which have been filed in a pending matter before the Supreme Court of India. The first noting (dated 18th November, 2011) is extracted in extenso hereafter and reads as follows: –

“Department of Personnel & Training
Estt (res)
Reference notes of Ministry of Home Affairs on pages 2- 3/ante.
2. Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the
RR Branch of this Department has clarified that
the LDCE is a mode of promotion. On t he issue of
change in category of a person, who has been appointed on the basis of reservation, it is clarified vide this Department’s OM dated 11.7.2002 that SC/ST candidates appointed on
their own merit (by direct recruitment or
promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any.
-sd-
(Sharad Kumar Srivastava)
Under Secretary (Res)”
(underlining by us)
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18. This noting was reiterated by the Ministry of
Home Affairs in a noting dated 22nd November,
2011 of Shri R.P. Sati, Under Secretary referring to a writ petition filed in this court. The noting
dated 22nd November, 2011 reads as follows: –
“Ministry of Home Affairs
Pers – II
Reference no te on pre -pages.

2. This is regarding Writ
Petition(C)No.5460/2011 filed by Shri Sundeep
Kumar Dubey, Constable )GD) of CRPF in the High Court of Delhi against his nonselection for the post of Sub, Insp(GD) through Limited Department Competitive Examinati on (LDCE),
2010.

3. The matter was considered in this Ministry
(p2/n) and DoP&T was requested to clarify the position as mentioned in para – 3(p-2/n). In this
connection DoP&T vide their UO dated 18.11.2011 (p-4/n) has clarified the following: –

“Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the LDCE is a mode of promotion. On the issue of change in category of a person, who has been
appointed on the basis of reservat ion, it is
clarified vide this Department ‟s OM dated
11.7.2002 that SC/ST candidates appointed
on their own merit (by directrecruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and
will be eligible to get benef it of reservation
in future/further promotions, if any.”

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4. We may convey the above mentioned
clarification of DoP&T to CRPF.
-Sd-
(R.P. Sati)
Under Secretary
22.11.2011
Director (Pers)/DS(Pers -I)”
(Underlining supplied)
The correctness and authenticity of these notings
have not
been disputed before us by the respondents.
19. The respondents have urged in the present proceedings that appointments through the LDCE is a mode of fast tracked promotion. In the above notings, the respondents have themselves taken
the position that appointment through the LDCE is a mode of promotion. Given the stand of the respondents in the notings aforesaid and before
this Court it is clear that appointment to LDCE is merely an appointment by promotion, albeit fast tracked. It would, therefore, follow that the
recruitment rules or guidelines for appointments which would apply to appointments through the LDCE, would have to be those which are applicable to appointment by promotions.”
11. The aforesaid extracts from the intern al notings of the
respondents themselves, as reproduced in the case of Man Singh (supra), leave no manner of doubt that as per the respondents’ own understanding, LDCE is treated only as a method of promotion and therefore, the appointment of the petitione r on 08.11,2007 as a Sub -Inspector (GD) by
way of LDCE as to necessarily be treated as a promotion
and not a fresh appointment in government service.

12. The petitioner had admittedly joined the CRPF on
25.02.2003, as a Constable (GD) and once we have com e
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to the conclusion that his appointment as a Sub- Inspector
(GD) on 08.11.2007, cannot be treated as a fresh
appointment, he must be treated as already being in Government Service as on 01.01.2006, i.e., the cut -off date
which is relevant for the purposes of exercising the option
under Rule 5 of the CCS Rules. In the light of the above, the decision of the respondent in treating the petitioner as having joined government service for the first time after 01.01.2006, is clearly erroneous and, therefore, the respondents’ reliance on the
Explanation 2 to Rule 5 to hold that the petitioner was not entitled to exercise any option, is not sustainable as the said provision which excludes the applicability of Rule 5 to persons who joined government service on or afte r
01.01.2006, is in applicable to the petitioner.
13. What emerges from the above discussion is that the
petitioner has been denied the benefit of the option
exercised by him in accordance with Rule 5, on an erroneous presumption drawn by the respondents that he had joined government service for the first time after 01.01.2006. The respondents have not raised any other ground to deny the petitioner the benefits of his revised
option. In the light of the aforesaid conclusion, the denial
on the part of the r espondents in extending the petitioner
the benefits of his revised option, is found to be wholly erroneous, arbitrary and cannot be sustained.
14. For the aforementioned reasons, the respondents are
directed to extend the benefits of the revised option
exercised by the petitioners in each case under Rule 5 of
the CCS(RP) Rules, 2008 and grant them all the consequential benefits to which they would be entitled, within eight weeks. ”

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8. Being a Co -ordinate Division Bench, it is not open for us to take
a different view and, more so, when we find that the view taken by
the earlier Division Bench is legal, fair, just and reasonable.
9. Consequently, the present writ petition is disposed of with a
direction to the respondents to extend the benefits of the revised
option exercised by the petitioners in each case under Rule 5 of the
CCS(RP) Rules, 2008 in accordance with the office order dated
January, 2020, (which has been placed on record as Annexure ‘P -10’
of the paper book) and grant them all the consequential bene fits to
which they would be entitled within eight weeks.
10. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e- mail.

MANMOHAN, J

ASHA MENON, J
JANUARY 06, 2021
KA

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