Delhi High Court
Rajesh Kumar Singh vs Union Of India Thr Its Chairman & Ors. on 2 August, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~44 & 45.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 02.08.2022
% W.P.(C) 8404/2020 & C.M. Nos. 27250-27251/2020, 31022/2020 &
2074/2021
RAJESH KUMAR SINGH ..... Petitioner
Through: Mr. Tripurari Ray, Mr. Anirudh Ray,
Advocates.
versus
UNION OF INDIA
THR ITS CHAIRMAN & ORS. ..... Respondents
Through: Ms. Monika Arora, Mr. Yogesh
Panwar, Mr Balkrishan Sharma,
Advocates for respondents/ UOI.
Mr. S.K. Gupta, Advocate for
respondent No.4/ MTNL.
Mr. Vivek Gurnani, Advocate for
Mr.Zoheb Hossain, Advocate for
Applicant - Indian Telecom Services
Association in C.M. No. 2074/2021.
% W.P.(C) 8641/2020 & C.M. Nos. 27822-24/2020
VIJAY PRATAP SINGH ..... Petitioner
Through:
versus
UNION OF INDIA THR ITS CHAIRMAN & ORS. ..... Respondents
Through: Ms. Monika Arora, Mr. Yogesh
Panwar, Mr Balkrishan Sharma,
Advocates for respondents/ UOI.
Mr. S.K. Gupta, Advocate for
Respondent No.4/ MTNL.
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 1 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. Regard been had to the similarity in the controversy involved in both
the matters, they were anomalously heard together and are being disposed of
by a common order.
2. The facts of W.P.(C.) No. 8641/2020 are as under.
3. The present petition is arising out of order dated 15.09.2020 passed by
the Central Administrative Tribunal (CAT) in O.A. No.1099/2020 titled Shri
Vijay Pratap Singh Vs. Union of India & Others.
4. The facts of the case reveal that the petitioner before this Court/ Shri
Vijay Pratap Singh - a member of the Indian Telecom Services (ITS), has
joined the ITS in the year 1989. He was holding the post of Director
(Operations) in Bharat Broadband Network Limited, New Delhi at the
relevant point of time when the Original Application was preferred.
5. The undisputed facts of the case reveal that the Department of
Telecommunication (DOT) issued an Office Memorandum dated 12.05.2020
in respect of appointment to the post of Chairman & Managing Director
(CMD), Telecommunications Consultants India Limited (TCIL) on
deputation/ immediate absorption basis. The Government of India, Ministry
of Telecommunication constituted a Selection Committee for the post and
the notification issued by the DOT prescribing qualifications for the post
reads as under:
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 2 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
"3. Qualification:
The applicant should be a graduate with good academic
record from a recognized University/ Institution.
4. Experience:
The applicant should have adequate experience at a
senior level of management in a large organization of repute.
Applicants with experience in Finance/Marketing/
Production will have added advantage.
5. Pay scale:
(a) Central Public Sector Enterprises
Eligible Scale of Pay
(i) Rs.8250-9250 (IDA) Pre 01/01/1992
(ii) Rs.11500-13500 (IDA) Post 01/01/1992
(iii) Rs.23750-28550 (IDA) Post 01/01/1997
(iv) Rs.62000-80000 (IDA) Post 01/01/2007
(v) Rs.150000-300000 (IDA) Post 01/01/2017
(vi) Rs.22400-24500 (CDA) Pre-revised
(vii) Rs.67000-79000 (CDA) Post 01/01/2006
(viii) Rs.182200-224100 (Level 15-CDA)
The minimum length of service required in the eligible
scale will be one year for internal candidates, and two
years for others as on date of vacancy.
(b)
(i) Applicants from Central Govt. / All India Services
should be holding a post of the level of Additional
Secretary in Govt. of India or carrying equivalent scale
of pay on the date of application.
(ii) Applicants from the Armed Forces of the Union
should be holding a post of the level of Lt. General in the
Army or equivalent rank in Navy/Air Force on the date of
application.
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 3 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
(c)
Applicants from State Public Sector Enterprises/ Private
Sector should be working at Board level position on the
date of application."
6. The aforesaid notification makes it very clear that one of the
mandatory qualifications prescribed for the post as contained under Clause 5
(b)(i) provides that the "Applicants from Central Govt./ All India Services
should be holding a post of the level of Additional Secretary in Govt. of
India or carrying equivalent scale of pay on the date of application".
7. The contention of the petitioner is that though he was serving on the
post of Director (Operations), he was enjoying the pay scale of Rs.182200-
224100 and, therefore, he is entitled to be considered for the post of
Chairman & Managing Director, TCIL.
8. The Tribunal has dismissed the said Original Application, and the
paragraphs 7 to 15 of the order passed by the Tribunal read as under:
"7. From a perusal of this, it is evident that the qualifications
are stipulated in terms of (a) educational quaifications (b)
experience (c) and the nature of post held or scale of pay drawn
by the applicants. A distinction needs to be maintained here. As
regards Central Government officers, the stipulation under
clause 5 (b)(i) is to the effect that the applicants should be
holding a post of the level of Additional Secretary in
Government of India or the one "carrying equivalent scale of
pay on the date of application". For the officers working in
CPSE, the stipulation is under clause 5 (a) in terms of the pay
scale.
8. What is prescribed for the applicants from Central
Government / All India Services is in terms of the level of the
post, i.e., Additional Secretary. The expression "equivalent
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 4 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
scale of pay on the date of application" refers to the other
equivalent posts, and it is not in terms of the salary drawn by
the applicants. For example, there may be a post in the Central
Government with a description other than that of Additional
Secretary carrying equivalent scale of pay. Such candidates are
eligible to apply. However, if an officer, not being an
Additional Secretary is drawing an amount or salary equal to
that of the Additional Secretary, a serious doubt, in fact, arises.
The rule making authority has employed the word "carrying"
and not "drawing". While the former is referable to the post,
the latter is referable to the individual, holding the post.
9. It is no doubt true that the applicants are drawing the
scale, which is almost equivalent to the one, attached to the
post of Additional Secretary. However, it is not in dispute that
the posts held by them do not "carry" a scale of pay of
Additional Secretary. The applicants are allowed the scale of
pay on NFU basis, and incidentally that is equivalent to that of
Additional Secretary. The pay attached to the post,
substantially held by the applicant is for less.
10. The Scheme of NFU was introduced in the year 2009.
According to this, if an IAS officer of a particular year is
promoted to a higher level, other Group „A‟ officers of
organised services, who are seniors to him by two years shall
also be allowed the same scale of pay, on NFU basis. Similar
facility is provided at other levels also. This is almost an „anti
stagnation measure‟. Two important conditions are imposed
while allowing NFU. They read as under:-
"(i) The upgradation granted under these orders
are purely non-functional upgradation personal to
the officer and it does not bestow any right to the
officer to claim promotion or deputation benefits
based on nonfunctional upgradation in such a
manner.
(ii) Pay fixation on grant of non-functional
upgradation under these orders has to be done as
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 5 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
per the provisions of CCS (RP) Rules 2008. At the
time of regular promotion to this grade, the pay
need not be fixed again for the officers who have
been granted upgradation under these orders. The
officers may exercise their option from fixation of
pay under relevant provision of FR 22 (i) (a) (1)
within one month from the date of issue of this
order."
11. The effort is to ensure that the NFU is not treated as
equivalent to that of promotion to the higher post. The instances
of an employee drawing the scale of pay attached to a higher
post, even while he occupies a lower post, are not uncommon.
For instance, an Assistant Engineer in CPWD would be
extended the pay scale of next higher post in case he could not
get promotion for want of vacancy, even while otherwise being
eligible. In such cases, he would continue to draw the same pay
scale, even after he gets regular promotion. However, as long
as he draws higher scale of pay even while continuing in the
lower post, it cannot be said that the post carries the same scale
of pay as that of higher post.
12. It may be true that on the previous occasions, the
candidates, who were drawing pay scale attached to the post of
Additional Secretary, albeit on NFU basis were called for
interview. The respondents, however, stated that it was a
mistake and that there are no instances of such persons being
selected or appointed.
13. Learned counsel for applicants has relied upon the
judgments of Hon‟ble Supreme Court in support of the
proposition that the Selection Committee cannot alter the Rules
in the process of selection. We do not find any instance of the
respondents altering or modifying the criteria for selection.
14. We do not find any merit in these O.As. They are
accordingly dismissed.
15. All the M.As. in respective O.As. shall stand disposed of.
There shall be no order as to costs. "
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 6 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
9. The undisputed facts of the case reveal that the petitioner before this
Court was granted the pay scale of the post of Additional Secretary not on
account of promotion but he was granted Non-Functional Upgradation
(NFU) on account of a scheme introduced by Government of India in the
year 2009. The Scheme of the Government of India provides that in case an
IAS officer/ officer of a particular year is promoted to a higher level, other
Group-A Officers of organized services, who are senior to him by two years
shall also be allowed the same scale of pay, on NFU basis. The aforesaid
benefit of pay scale is anti-stagnation measure and the conditions which
govern the NFU make it very clear that NFU is not treated as equivalent to
promotion to that higher post.
10. Undisputedly, the petitioner was not holding the post of Additional
Secretary though a higher pay scale has been granted to him, on NFU basis.
Therefore, in the considered opinion of this Court, the Tribunal was
certainly justified in holding that the petitioner was not in the pay scale of
Additional Secretary and he was not holding the post of Additional
Secretary or post equivalent to Additional Secretary, and is not entitled to be
considered for the post of CMD.
11. Learned counsel for the petitioner has vehemently argued before this
Court that in the preceding years, certain persons - who were granted the
pay scale of Additional Secretary on NFU basis, were called for interview.
The order of the CAT makes it very clear that the respondents have
categorically stated that it was mistake in the past and there are no instances
of such persons being selected or appointed. Otherwise also, in case the
arguments advanced by learned counsel are accepted, it will create anomaly
W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 7 of 8
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:04.08.2022
13:08:15
in the matter of appointment as some of the persons - who are not in the
level of Additional Secretary or who are lower in rank, will be entitled for
interview and the persons - who are holding equivalent rank and post who
have not been granted NFU, will be deprived of their right to participate in
the process of selection.
12. The petitioner - who was Director (Operations) at the relevant point
of time, is certainly not at all entitled to be considered for the post of
Chairman & Managing Director as he was not holding a post of the level of
Additional Secretary, nor is he holding any other equivalent post carrying
equivalent scale of pay on the date of application. The benefit of grant of
NFU will not certainly upgrade the post which the petitioner was holding at
the relevant point of time as it is a financial upgradation only granted to the
petitioner keeping in view the anti-stagnation measure introduced by the
scheme of NFU in the year 2009.
13. This Court do not find any reason to interfere with the order of the
CAT. The writ petition is, accordingly, dismissed.
14. In the light of the aforesaid, the other connected petition being
W.P.(C) 8404/2020 also stands dismissed.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J.
AUGUST 02, 2022 B.S. Rohella W.P.(C.) Nos. 8404/2020 & 8641/2020 Page 8 of 8 Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:04.08.2022 13:08:15