UNION OF INDIA AND ANR vs B P GAUTAM AND ORS
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: November 01, 2023
+ W.P.(C) 6891/2017
UNION OF INDIA AND ANR. ….. Petitioners
Through: Mr. Ruchir Mishra, Mr. Sanjiv Kumar Saxena, Mr. Mukesh Kumar Tiwari, Ms. Poonam Shukla and
Ms. Reba Jena Mishra, Advs.
versus
B P GAUTAM AND ORS. ….. Respondents
Through: Mr. R. S. Gautam, Adv.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
J U D G M E N T
V. KAMESWAR RAO, J
1. This petition has been filed by the Union of India and its functionary challenging the order dated January 5, 2017, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (Tribunal, for short) in Original Application No.3799/2012 (OA, for short) whereby the Tribunal has allowed the OA filed by the respondents herein.
2. The facts as noted from the record are that between the years 1986-92, the respondents joined the DGAQA (petitioner No.1) as Senior Scientific Assistant (SSA). As per then Recruitment Rules (RRs) Junior Scientific Officer (JSO) is the promotional post for SSA, Foreman and Chief Draughtsman. The post of Foreman had two grades hierarchy (Foreman and Assistant Foreman) but the SSA did not had two grades hierarchy. An Office Memorandum dated November 11, 1988 was issued by Ministry of Defence for DRDO and DGI (now DGQA), the relevant extract whereof, reads as under:
The undersigned is directed to say that with reference to CA No.9 & 10 0/1983, the Board of Arbitration award recommended that Senior Scientific Assistant (SSAs) may be given the Third Pay Commission’s Scale of Rs. 840-1040 in the same proportion as that obtaining on the date of the award between 27 Foreman and Assistant Foreman m the concerned organization i.e. DRDO and DGI. These orders will take effect from
3. An Arbitration award was passed. The cadre of Senior Scientific Assistants (SSAs) in DRDO and DGI was recommended to be re-structured in the same manner and pattern in which the post of Foreman was. The Board of Arbitration Award referred to the OM dated November 11, 1988 and extended the award to DGAQA vide letter dated August 14, 1992. By the time, the award was extended to DGAQA, 4th Central Pay Commission (CPC, for short) had already been implemented, and hence, the revised scale as per 4th CPC was ?2375-3500/- for SSA.
4. The consequence of the extension of award was that the cadre of SSA was rationalised and restructured by providing two grades hierarchical structure in the same pattern as was the cadre of Foreman. The SSA cadre was rationalised and restructured by redistributing 101 posts in two hierarchical grades, as was between the posts of Foreman and Assistant Foreman i.e. 43% and 57%., i.e. SSA (HS) and SSA (LS). The Recruitment Rules were amended and notified by making SSA (HS) a promotional post for SSA (LS).
5. In accordance with the re-structuring, SSA (HS) was upgraded to higher pay scale/grade of ?2375-3500/-, whereas SSA (LS) remained at their normal level in pay scale ?2000-3500/-. Both these are the scales of 4th CPC and corresponding scales in 5th CPC were ?7450-11500/- and ?6500-10500/-, respectively.
6. It was the case of the respondents herein that, pursuant to the recommendation of 6th CPC, SSA (HS) and SSA (LS) were merged with effect from January 01, 2006 and have been placed in a common replacement scale of PB-2 with a grade pay of ?4,600/- and the post has been redesignated as SSA(G). The grievance of the respondents was that they have not been granted, first financial upgradation after 12 years of service from the date of implementation of the scheme after ignoring the upgradation to SSA (HS) and as such they are entitled to ACP upgradation w.e.f. January 01, 2006.
7. The Tribunal in the impugned order has held that the upgradation of the post in the cadre of SSA is similar to the case of Randhir Singh Kundu v. Union of India & Ors., OA No.1559/2000, decided on September 18, 2001 and Defence Marine Engineering Technical Staff Association (DMETS) & Anr. v. Union of India & Ors., OA No.1735/2005 which judicial pronouncements have attained finality. The Tribunal held that the respondents are similarly placed as the applicants in O.A. 1737/2005 and they also deserve the same benefit. Therefore, the respondents upgradation to the post of SSA (HS) has to be ignored and they have to be considered for the grant of ACP benefit on completion of 12 years of service or from the date of implementation of ACP Scheme.
8. Mr. Ruchir Mishra, the learned counsel appearing for the petitioners, stated that the ACP Scheme provides for grant of two financial upgradations to an employee i.e., on completion of the 12 and 24 years of regular service, if regular promotions during the prescribed periods (12 and 24 years) could not be given. He stated that the OM dated July 18, 2001 was issued by Government of India/ DoP&T issuing clarifications with regard to ACP scheme. The relevant clarification for the purpose of present writ petition is the clarification No.35 under the ACP scheme, is reproduced as under:
Where, however, rationalization restructuring involves creation of a number of new hierarchical grades in the rationalised set up and some of the incumbents in the pre- rationalised set up are placed in the hierarchy of the restructured set up in a grade higher than the normal corresponding level taking into consideration their length of service in existing pre-structured/pre-rationalised grade, then this will be taken as promotion/upgradation. Where only a part of the posts are placed in a higher scale and rest are retained in the existing grade, thereby involving redistribution of posts. then it involves creation of another grade in the hierarchy requiring framing of separate recruitment rules for the upgraded posts. Placement of existing incumbents to the extent of upgradations involved, in the upgraded post will also be treated as promotion/upgradation and offset against entitlements under the ACPS.
9. He stated that the claim for grant of 1st ACP in OA No.1559/2000 filed by Randhir Singh Kundu working as Senior Technical Assistant (STA) in DGQA was decided by the Tribunal vide order dated September 18, 2001, directing the petitioners to consider the case of Randhir Singh Kundu for financial upgradation under ACP on completion of 12 years of service in the grade of STA or from the date of ACP scheme, whichever is later. He stated that the STA in DGQA, due to the implementation of award, was restructured and rationalised by redistributing the posts in STA cadre into STA(HS) and STA(LS) posts, with STA(HS) placed in the higher grade of ?2375-3750/- and rest remained in the pay scale Rs.2000 – 3500/-.
10. He submitted that the applicant in Randhir Singh Kundu (supra) in OA No.1559/2000 was placed in higher grade of STA (I) 2375-3750 but the Tribunal without considering the objective and scope of ACP scheme and Clarification No. 35 issued thereto, allowed the OA No. 1559/2000. The order dated September 18, 2001 became the basis for issuance of similar directions in OA 1735/2005 dated February 14, 2007 in DMETS Association (supra). The order in Randhir Singh Kundu (supra) was challenged by the petitioners before this Court by filing Writ Petition No.747/2002, however, the Writ Petition was dismissed. He also submitted that the dismissal of SLP has been understood by the Tribunal as a binding precedent, which may not be correct position in law as it is established principle of law that dismissal of SLP in limine does not create a binding precedent as the Court has not passed order on merits or disposed of the matter by a speaking order.
11. He stated that in the case of DMETS Association (supra), dismissed / decided on September 11, 2007, this Court did not consider the object of the ACP scheme and also the Clarification No.35 to the ACP scheme and decided the petition only on the ground that field is occupied by judicial dicta, in Randhir Singh Kundu (supra).
12. He stated that the respondents after dismissal of SLP in Randhir Singh Kundu (supra) and DMETS Association(supra), gave a representation relying upon the orders of Tribunal in the said cases, wherein they stated that the Writ Petition against these orders having been dismissed by this Court and the Supreme Court, their placement in SSA (HS) grade is not countable under ACP scheme, therefore, they should be given 1st ACP benefit on their completing 12 years service or from the date of implementation of the scheme.
13. The representations were rejected by DGAQA vide order dated April 08, 2011, by stating that as per government policy 1st ACP benefit cannot be granted. The OA No.3799/2012 was filed, which was allowed at the admission stage itself against which this Writ Petition has been filed and this Court considering the fact that the OA was allowed at the admission stage itself, had remanded the OA to the Tribunal for fresh consideration on merits by hearing both sides.
14. Mr. Mishra submitted that this Court in the case of Department of Social Welfare and Women and Child Development, Government of NCT of Delhi and others (supra), has considered the scope and application of ACP scheme and Clarification No.35 in similar facts and held that upgradation of some of the incumbents from a post to a higher grade amounts to promotion for the purpose of ACP, therefore, adjustable against financial up-gradation under ACP.
15. He stated that the petitioners in their reply to the OA had relied on the Clarification No.35 to the ACP scheme to state that placement in the higher pay-scale shall not entitle the respondents the financial upgradation under the ACP scheme and moreover the dismissal of the SLP by a non speaking order will not make the order of binding precedent. That as per the scheme of ACP, up-gradation granted to the respondents to the higher pay scale of ?2375-3500 shall offset the benefit under ACP, therefore, the respondents are not entitled to first ACP benefit as claimed by them.
16. He stated that the impugned order of the Tribunal is per incuriam, in view of the judgment dated February 29, 2012 in Department of Social Welfare and Women and Child Development, Government of NCT of Delhi and others (supra), passed by this Court in Writ Petition No.4907/2011.
17. He stated that the order in DMETS Association (supra) dated September 11, 2007 in Writ Petition No.5772/2007, also did not consider the scope of Clarification No.35 under ACP Scheme. Therefore, the orders passed earlier in point of time, shall not be binding precedent. It is the subsequent judgment dated February 29, 2012 having been passed upon due consideration of the objective of ACP scheme and the Clarification No.35, the same becomes a binding precedent.
18. He stated that the impugned order is not correct in view of the judgment dated February 29, 2012 which is occupying the field as the same has also been upheld by Supreme Court. Therefore, the impugned order, having been passed in ignorance of later judgment dated February 29, 2012, is liable to be set aside. He also stated that the Tribunal erred in not appreciating that the parity could not be the sole factor to grant the benefit as it is ACP Scheme itself within which entitlement need to be seen and consider to decide the entitlement. He seeks the prayers made in the petition.
19. Mr. R.S. Gautam, the learned counsel appearing for the respondents has stated that out of 15 respondents the respondent Nos.2, 3, 4, 5, 7, 8, 14 and 15 have since retired and the rest 7 respondents are also on the verge of retirement. He also stated that the respondents are entitled to the benefit of 1st ACP as per the DoP&T letter / order dated August 09, 1999, and the benefit has been rightly granted by the Tribunal.
20. He stated that the Clarification No.35 was not in existence when the matter of Randhir Singh Kundu (supra) was decided. He also stated that the petitioners have raised the issue of Clarification No.35 before this Court and the Supreme Court but still the petitions were dismissed.
21. He stated that as per the Govt. of India / DoP&T letter dated August 09, 1999, the ACP benefit is given to a scale in the promotional hierarchy, as per Recruitment Rules, to persons who have completed 12 years of service without promotion. Therefore, the respondents are entitled for the benefit of first ACP to the promotional scale.
22. He stated that the petitioners had referred to Clarification No.35, in the matter of Department of Social Welfare and Women and Child Development, Government of NCT of Delhi and others (supra), which case pertain to grant of second ACP benefit and not 1st ACP benefit. He seeks the dismissal of the writ petition
23. Having heard the counsel for the parties and perused the record, the short issue which arises for consideration is whether the grant of pay scale of ?2375-3500 to the respondents need to be ignored for the purpose of granting the first financial upgradation under the ACP Scheme.
24. Suffice to state that the Tribunal has relied upon the judgment in the case of Randhir Singh Kundu (supra) and DMETS Association (supra), which judgments have attained finality till the Supreme Court.
25. In Randhir Singh Kundu (supra), the Tribunal was concerned with pay scales in the context of Senior Technical Assistant-(I) and Senior Technical Assistant-(II). It is also correct that, based on the judgment Randhir Singh Kundu (supra), the Tribunal has also granted similar benefit to the applicants in DMETS Association (supra), which judgment had come in appeal before this Court in W.P.(C) 5752/2007, wherein this Court has on a finding that the judgment in Randhir Singh Kundu (supra) has attained finality, dismissed the writ petition.
26. We find that in a subsequent case of Department of Social Welfare & Women & Child Development, GNCTD & Ors. (supra) wherein an identical issue arose for consideration, inasmuch as, whether the respondents therein are entitled to the pay scale of ?10,000-15,200/- as a second financial upgradation under the ACP Scheme, has allowed the writ petition and set aside the order of Tribunal by relying on the clarification No. 35 issued by the DoP&T
27. In the said case, there were 129 posts of Supervisor (Woman) in erstwhile Department of Social Welfare. The Department also had the posts of Welfare Officer (Grade-II) / Probation Officer (Grade II) and Prison Welfare Officers. Pursuant to the recommendations made by the 5th CPC, 52 out of 129 Posts of Supervisor (Woman) as well as the posts of Welfare Officer (Grade-II)/Probation Officer (Grade II) and Prison Welfare Officers were upgraded from the pre-revised pay scale of ?1400-2300 (revised pay scale ?4500-7000) to the pre-revised pay scale of ?1640-2900 (revised pay scale of ?5500-9000) and these upgraded posts were designated as Supervisor Grade I and the remaining posts of Supervisor (Woman) were re-designated as Supervisor Grade-II. The next post in the hierarchy, i.e., post of Deputy Superintendent/ACDPO/Welfare Officer also carried the revised pay scale of ?5500-9000. These posts were merged with the post of Supervisor Grade-I.
No financial upgradation under the ACP scheme on completion of 12 years of service was granted to those 52 women Supervisors, who were posted against upgraded posts, redesignated as Supervisor Grade-I. They were, however, granted financial upgradation in the pay scale of ?6500-10500, on completing 24 years of service.
28. The respondents therein filed OA No. 867/2010, claiming benefit of second ACP in the pay scale of ?10,000-15200/- which was allowed by the Tribunal. The Tribunal allowed the OA, relying upon clarification 35, issued by DoP&T with respect to grant of ACP and rejected the contention of the petitioner to apply Clarification 35 issued by the Government.
29. This Court has set aside the order of the Tribunal and has in paragraphs 8, 9 and 10 held as under:-
8. There can be no doubt that if we have to examine the issue as a proposition of law, without applying clarification 35 issued by the DOP&T, upgradation of 52 posts of Supervisor (Woman) to the pre-revised pay scale of 1640-2900 would not be a promotion since neither any additional posts were created as a part of the restructuring nor was any element of selection or comparative merit involved in placing 52 Supervisor (Woman) in the upgraded post which was re-designated as Supervisor (Grade-I). As a legal proposition, promotion is clearly distinguishable from upgradation. The promotion ordinarily involves advancement in rank or grade or both of the employee concerned on the basis of selection. On promotion, the employee is placed in a higher position/grade consequent to the promotion and such higher position/grade may also involve discharge of higher duties. However, even if there is no change in the duties but, a process of selection is involved while placing an employee in a higher grade, such as Selection Grade, it would amount to promotion, even if the nature of the duties continues to remain the same. On the other hand, financial upgradation is normally granted in order to remove stagnation and sometimes also for administrative reasons. If financial upgradation available to the employees to complete a specified years of service or on the basis of seniority alone, no element of selection is involved in the process and consequently it cannot be termed as promotion, irrespective of whether additional posts are created while granting financial upgradation or not. The purpose of financial upgradation in such a case being only to provide relief against stagnation, the process does not involve advancement to a higher post. Even if screening of the employee is required to assess his suitability for advancement before giving the financial upgradation, that also would not amount to promotion for the reason that no process of selection is involved in such a case. If, however, financial upgradation is given after selection it would be a case of promotion to a higher pay scale since grant of the higher pay scale in such a case would depend upon the comparative merits of those who are considered for grant of higher pay scale.
9. In the case before us, since no element of selection was involved in placing 52 Supervisor (Woman) in the higher pay scale of Rs 1640-2900, such upgradation would in common parlance, not amount to promotion to a higher post or to a higher pay scale. But, if we have to apply Clarification 35 issued by DOP&T, there is no escape from holding that such financial upgradation would be deemed to be promotion for the purpose of ACP Scheme, as far as the persons who are posted against upgraded posts are concerned and it would be offset against their entitlement under the ACP. We have no hesitation in saying that in terms of service jurisprudence, this kind of financial upgradation does not constitute promotion to a higher post or to a higher pay scale such as selection grade since it does not have an element of selection, which requires evaluation of comparative merit and the financial upgradation is not given only on the basis of seniority alone. But, in order to get benefit of financial upgradation, the respondents have to bring their case within the four corners of the ACP Scheme, which, on account of Clarification No. 35, provides for treating such upgradation as promotion, for the purpose of Scheme, by virtue of a deeming provision, which by virtue of this clarification, now forms part of the ACP Scheme.
10. We find from a perusal of the prayer made in the OA, that the respondents had challenged Clarification No. 35, issued by DOP&T on the ground that it was against the object of the main scheme. However, no arguments seem to have been advanced before the Tribunal on this aspect and no arguments challenging the legality of the said Clarification have been advanced before us. In any case, it is for the framer of the Scheme to decide the terms and conditions on which financial upgradation under the ACP Scheme is to be granted and while doing so, the framer of the Scheme is not bound by the meaning to the expression promotion in the ordinary service parlance and it is competent to accord a restrictive meaning of the expression promotion, for the purpose of deciding to whom and subject to what conditions the benefit under the Scheme should be granted. It is not as if the Clarification No. 35 has been issued by someone other than the framer of the Scheme. The original Scheme as well as the Clarification, both having been issued by DOP&T, we see no merit in the challenge to the validity of the clarification. The purpose of providing financial upgradation under the ACP scheme is to remove stagnation on account of inability of the system to provide periodical promotion to the Government servants, the underlying idea being to atleast compensate them for the financial loss which they would otherwise suffer on account of periodical promotion not being given to them. Since financial upgradation of 52 Supervisors (Woman) resulted in the next pay scale being made available to them, the objective behind framing the ACP scheme stood served as far as the first financial upgradation was concerned. If this upgradation is not taken into consideration for the purpose of scheme, the result would be that these 52 persons would get 03 financial upgradations, one on upgradation of the post from the pre-revised pay scale of 1400-2300 to the pre revised scale of Rs 1640-2900, second on completion of 12 years of service and third on completion of 24 years of service whereas the objective of the scheme is to grant two financial upgradations to the employees in whole of their career and that is why the scheme provides that if promotion is granted to the employee within 12 years or 24 years of the service he would not be entitled to first or second financial upgradation as the case may be. If Clarification 35 is not applied, the result would be that those who were placed in the upgraded posts would get ACP on completion of 24 years of service, in the pay scale of Senior Superintendent, whereas those who do not work on the upgraded post would be placed in the pay scale of CPPO/Superintendent, on completion of 24 years of service. On the other hand, if Clarification 35 is applied, all the persons who were working as Supervisor (Woman) at the time the restructuring took place would be placed in the pay scale of Rs 6500-10500, which is the pay scale of CPPO/Superintendent on completion of 24 years of regular service. Therefore, it cannot be said that clarification 35 issued by DoPT runs contrary to the objective of ACP scheme of the government.
For the reasons stated hereinabove, we are of the view that the upgradation of 52 Supervisor (Woman) from the pre-revised pay scale of 1400-2300 to the pre revised scale of Rs 1640-2900 amounts to promotion for the purpose of ACP Scheme and consequently, the respondents were not entitled to the benefit of the first financial upgradation under the ACP Scheme. The impugned order dated 20.09.2010 passed by the Tribunal is, therefore, set aside.
In the facts and circumstances of the case, there shall be no order as to costs.
(emphasis supplied)
30. Suffice to state, this Court has relied upon the Clarification No.35 issued by the DoP&T which was issued by the framer of the Scheme i.e., DoP&T wherein, it is clearly stated that the placement of the existing incumbents in the upgraded scale will also be treated as promotion and offset against entitlement under the ACP Scheme.
31. In the present case as well, the clarification No.35 is squarely applicable inasmuch as grant of financial upgradation in the scale of ?2375-3500/-, need to be offset under the ACP.
32. With regard to the reliance placed by the Tribunal on the judgments of Randhir Singh Kundu (supra) and DMETS Association (supra) is concerned, though the judgments of the Tribunal have been upheld by this Court and the Supreme Court, in the year 2007-2008; but the same were rendered much before the judgment of the Coordinate Bench of this Court in Department of Social Welfare and Women and Child Development, GNCTD and Ors. (supra).
33. In view of the Clarification No.35 and also the judgment of this Court, it is clear that the grant of the scale of ?2375-3500/- to the respondents shall not entitle the respondents the grant of first ACP as was granted to them by the Tribunal in the impugned order. By doing so the Tribunal erred in not considering the law laid down by this Court.
34. In fact, we find that, in the year 2018 itself, the Tribunal on an identical issue has followed the judgment of this Court in Department of Social Welfare and Women and Child Development, GNCTD and Ors. (supra) in the case of Om Prasad v. Union of India, OA No.3091/2011, decided on August 8, 2018, wherein the Tribunal has held as under:-
8. In this regard he has been brought to our notice the judgment of the Honble High of Delhi in W.P. (C) No. 4907/2011-Department of Social Welfare & Women & Child Development, GNCTD & Ors. vs. Supervisors Welfare Assn. & Ors. dated 29.02.2012 in which an identical issue with regard to grant of financial upgradation has been decided on the basis of the Clarification No.35 issued by the Government of India. The relevant part of the judgment reads as under:-
9. In the case before us, since no element of selection was involved in placing 52 Supervisor (Woman) in the higher pay scale of Rs 1640-2900, such upgradation would in common parlance, not amount to promotion to a higher post or to a higher pay scale. But, if we have to apply Clarification 35 issued by DOP&T, there is no escape from holding that such financial upgradation would be deemed to be promotion for the purpose of ACP Scheme, as far as the persons who are posted against upgraded posts are concerned and it would be offset against their entitlement under the ACP. We have no hesitation in saying that in terms of service jurisprudence, this kind of financial upgradation does not constitute promotion to a higher post or to a higher pay scale such as selection grade since it does not have an element of selection, which requires evaluation of comparative merit and the financial upgradation is not given only on the basis of seniority alone. But, in order to get benefit of financial upgradation, the respondents have to bring their case within the four corners of the ACP Scheme, which, on account of Clarification No. 35, provides for treating such upgradation as promotion, for the purpose of Scheme, by virtue of a deeming provision, which by virtue of this clarification, now forms part of the ACP Scheme.
(Emphasis supplied).
10…………Therefore, it cannot be said that clarification 35 issued by DoPT runs contrary to the objective of ACP scheme of the government.
For the reasons stated hereinabove, we are of the view that the upgradation of 52 Supervisor (Woman) from the pre-revised pay scale of 1400-2300 to the pre revised scale of Rs 1640-2900 amounts to promotion for the purpose of ACP W.P(C) 4907/2011 Page 18 of 18 Scheme and consequently, the respondents were not entitled to the benefit of the first financial upgradation under the ACP Scheme. The impugned order dated 20.09.2010 passed by the Tribunal is, therefore, set aside.
9. The learned counsel for the respondents during the course of the arguments has primarily relied on the relevant part of the OM dated 18.07.2001 wherein it has been clearly mentioned that
where, however, rationalization/restructuring involves creation of a number of new hierarchical grades in the rationalised set up and some of the incumbents in the pre-rationalised set up are placed in the hierarchy of the restructured set up in a grade higher than the normal corresponding level taking into consideration their length of service in existing pre-structured/pre-rationalised grade, then this will be taken as promotion/upgradation.
10. There is no doubt that the case of the applicant falls squarely in this category and is fully covered by this Clarification. There is thus no requirement of going into the general issues of principle raised by the applicant in his pleading. The judgments produced by the learned counsel for the applicant neither relate to the subject matter in the present case nor do they deal with Clarification No.35 of ACP Scheme issued by the DoP&T.
11. Thus, we are satisfied that in view of the decision of the Hon?ble High Court of Delhi in the case of Department of Social Welfare & Women & Child Development, GNCTD & Ors. (supra) and Clarification No.35 of OM dated 18.07.2001, the applicant is not entitled to any relief. The OA, therefore, fails and hence dismissed. No order as to costs.
(emphasis supplied)
35. Accordingly, the judgment of the Tribunal is set aside. The writ petition is disposed of. No costs.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J
NOVEMBER 01, 2023/aky
W.P.(C) 6891/2017 Page 17 of 17