Central Administrative Tribunal - Bangalore
Shankar Bidari vs Home Affairs on 18 March, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00285/2023
ORDER RESERVED : 27.02.2024
DATE OF ORDER : 18.03.2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri Shankar Bidari, IPS Retd.,
Former DG&IGP,
S/o late Shri Mahadev Bidari,
Aged about 70 years,
Residing at No.3, 5th C Cross,
16th Main BTM 2nd Stage,
Bengaluru-560076. ..Applicant
(By Senior Advocate, Shri S.M.Chandrashekar along with Shri
Girish G.N. - Through video conference)
Vs.
1. The Union of India,
Ministry of Home Affairs,
(IPS-II) Government of India,
New Delhi -110001,
Rep. by its Secretary.
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2. The Office of Accountant General,
GM & A&E Sections, Karnataka,
Indian Audit & Accounts Department,
Park House, Bangalore - 560001.
Rep By: Principal Accountant General.
3. Government of Karnataka,
Department of Personnel & Administrative Reforms,
Services-4, Vidhana Soudha,
Bengaluru-560001.
Rep. By: Chief Secretary. ...Respondents
(By Advocates, Shri N.Amaresh for Respondents No.1 and 2 and
Shri M.Rajakumar for Respondent No.3)
ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a) Issue a writ of certiorari or order or direction or any other appropriate writ set-aside the impugned communication/endorsement bearing No.GM/IPS/398, dated 13.09.2022, issued by Respondent No.2, vide Annexure A1, and quash the same as illegal.
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b) Direct the Respondent No.2 to revise the salary of the applicant to the Apex scale and fix his pension in the Apex scale and extend all other benefits due to the applicant, as proposed by Respondent No.2 vide ANNEXURE A8, without further delay with effect from the date of implementation of the 7th Central Pay Commission Report i.e., 01.01.2016.
c) Pass such other order/s as deemed fit to grant to the applicant in the circumstances of the case including order to costs of this litigation, in the interest of justice and Equity."
2. Succinctly stated the facts as narrated by the applicant are that the applicant joined Indian Police Service in the year 1978. He took charge of the post of DG&IGP (HoPF), Karnataka State on 30.11.2011. One of the officers, Mr.A.R.Infant whose name was also included in the panel of the IPS officers prepared by the UPSC found fit for appointment of DG&IGP (HoPF), Karnataka State, filed OA No.545/2011 before this Tribunal, challenging the appointment of the applicant which came to be allowed and the appointment of the applicant was set aside. The applicant and the State of Karnataka filed W.P. (Civil) No.9655/2012 4 OA 285/2023/CAT/BANGALORE BENCH and W.P.No.8788/20112 respectively before the Hon'ble High Court of Karnataka challenging the order passed by this Tribunal, which came to be dismissed vide common order dated 30.03.2012 against which the applicant preferred Civil Appeal No.3799/2012 before the Hon'ble Apex Court. The said Civil Appeal No.3799/2012 was disposed of, by the Hon'ble Apex Court setting aside the order passed by the Hon'ble High Court and remanding the matter back to the Hon'ble High Court, further passing an order of stay, staying the operation of the order passed by this Tribunal dated 16.03.2012 in OA No.545/2011. During the interregnum, Respondent No.3 transferred the applicant from the post DG&IGP (HoPF) and posted him as Chairman, Karnataka State Police Housing Corporation (KSPHC) which was carrying the salary in the HAG + scale of Rs.75,550-80,000/-. The applicant handed over the charge of the post of DG&IGP (HoPF) on 31.03.2012 in accordance with the order issued by Respondent No.3 and availed earned leave on private affairs. Pursuant to the remand order passed by the Hon'ble Apex Court, the Hon'ble High Court once again dismissed the writ petition filed by the applicant vide order dated 28.05.2012, which was challenged before the Hon'ble Apex Court in SLP (C) No.18151/2012. The 5 OA 285/2023/CAT/BANGALORE BENCH Hon'ble Apex Court vide order dated 10.01.2013 disposed of the Civil Appeal No.179/2013 arising out of SLP (C) No.18151/2012.
3. In the meantime, the applicant had retired from service on attaining the age of superannuation on 31.05.2012. It transpires that the applicant submitted a requisition for rectification of mistake in authorising of leave salary from 01.04.2012 to 31.05.2012 in the Apex scale. Respondent No.2 sought concurrence of the State Government to reckon the applicant's last drawn salary of Rs.80,000/- (fixed) in the Apex scale and fix his pension under the VII Central Pay Commission. Respondent No.1 gave his opinion vide his reply sent to Respondent No.2. Further Respondent No.2 informed the applicant that he is not entitled to leave salary in the Apex scale and the said office has no further action in this regard and the same was communicated to Respondent No.3. Being aggrieved, the applicant has preferred this OA.
4. Learned Senior Counsel Shri S.M.Chandrashekar representing learned Counsel Shri Girish G.N. for the applicant, submitted that the leave salary of All India Service i.e., IPS officers is governed by the All India Services (Leave) Rules, vide Rule 20(i), a member of the service 6 OA 285/2023/CAT/BANGALORE BENCH on earned leave is entitled to leave salary equal to the pay drawn immediately before proceeding on earned leave. The applicant has drawn the salary in the Apex scale of Rs.80,000/- (fixed) from the date of appointment as DG&ICP (HoPF) until he proceeded on earned leave from 31.03.2012 afternoon to 31.05.2012 i.e., the date of his retirement, as such the applicant is entitled to leave salary in the Apex scale. The applicant was elevated to the Apex scale on his appointment as DG&IGP (HoPF) on the basis of his empanelment by the UPSC after following the due procedure to the post of DG&IGP (HoPF). Referring to the order of the Hon'ble Apex Court dated 10.01.2023 in Civil Appeal No.179/2013, the learned Counsel submitted that the Hon'ble Apex Court disposed of the said matter observing that "having read the paragraphs from the panel's report that are referred to in the High Court judgment along with and in the context of other paragraphs of the report, it is difficult to construe those paragraphs as containing any adverse comment much less any indictment of the appellant in his role as the Deputy Commandant of the STF", held that in any way, the observations and findings of the High Court are no more than of academic interest and have no practical consequence. As both the 7 OA 285/2023/CAT/BANGALORE BENCH appellant and Respondent No.4 (therein) had crossed the age of superannuation, it was further observed that a decision by the Hon'ble court in the matter is not going to materially affect either of them in any way, it would be best to put a quietus to the matter.
5. In view of the interim order of stay granted by the Hon'ble Apex Court in CA No.3799/2012 staying the operation of the order passed by this Tribunal in OA No.545/2011 dated 16.03.2012 while disposing of C.A.No.3799/2012 and remanding the matter back to Hon'ble High Court of Karnataka, all further proceedings including transfer of the applicant and handing over charge by the applicant on 31.03.2012 followed by the relieving order were subject to the result of the matter pending before the Hon'ble High Court of Karnataka, which indeed has finally reached the logical end in terms of the order passed in C.A.No.179/2013 dated 10.01.2013. Since the Hon'ble Apex Court finally confirmed the appointment of the applicant to the post of DG&IGP, the applicant is entitled to draw the Apex scale.
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6. Learned Counsel further submitted that during the applicant's leave period, the post of DG&IGP remained vacant. Shri A.R.Infant, then Commandant General Home Guards was placed in the concurrent charge of DG&IGP, but the said officer was never appointed as regular DG&IGP and did not draw the salary of the post of DG&IGP (HoPF). While authorising the leave salary, the applicant was authorised the salary of the post of Chairman, KSPHC in the scale below the Apex scale of pay of Rs.75,500-80,000/-. However, now by virtue of VII Central Pay Commission and Lawasa Committee report being implemented, there is a large difference on the basis of existing pension of the applicant compared with the Apex scale pension. Hence the representation submitted by the applicant to rightly fix the leave salary in the Apex scale of Rs.80,000/- in level-17 ought to have been considered by the Respondent No.1 in a proper perspective. Learned Counsel further submitted that pension being a recurring cause of action and actual cause of action in the pension amount having arisen subsequent to the implementation of VII Pay Commission, no delay and laches could be attributed to the applicant in claiming the fixation of Apex scale.
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7. A detailed reply statement has been filed on behalf of the Respondents No.1&2. Learned Counsel Shri N.Amaresh representing Respondents No.1&2 submitted that the applicant at the time of holding the post of DG&IGP was drawing the pay of Rs.80,000/- (fixed) in the Apex scale and however, on his transfer and posting as DGP and Chairman, Karnataka State Police Housing Corporation at Bangalore, his pay had to be fixed at Rs.80,000/- in the scale of Rs.75,500-80000/- regardless of the fact that he proceeded on long leave from 02.04.2012 to 31.05.2012 and retired on superannuation on 31.05.2012 without assuming the charge of the said post. The applicant did not occupy the post of the DG&IGP at the time of his retirement on 31.05.2012, he is not entitled to get pay scale of Rs.80,000/- and accordingly entitled to pay and pensionary benefits on the pay of Rs.80,000/- in the scale of Rs.75,500-80,000/- though his last pay was Rs.80,000/-. The Government of India implemented the recommendations of the VII CPC with effect from 01.01.2016, accordingly the applicant's pay was fixed in level-16. On the opinion sought from the State Government as regards the grant of Apex scale to the applicant so as to enable the 10 OA 285/2023/CAT/BANGALORE BENCH respondents to fix his pension, the State Government vide communication 25/26.05.2022 and 02.07.2022 stated that the applicant is entitled to revision of pension by reckoning the pay of Rs.80,000/- (fixed) in the Apex scale. Notwithstanding the said opinion, since the Government of India has taken over the entire pension liability of all the AIS officers, retired as well as retiring, both from the State and the Central Government , a conscious decision was taken by the Respondent No.1. Referring to the provisions of IPS (Pay) Amendment Rules, 2008 dated 27.09.2008, learned Counsel submitted that Apex scale is allowed only to the incumbent actually holding the post of DG&IGP (Head of Police Force). Thus only such officer holding the post of DG&IGP is entitled to the Apex scale of Rs.80,000/- (fixed) and since the applicant was transferred to the post of D.G.P. & Chairman, Karnataka Housing Corporation at Bangalore, he is not entitled to the Apex scale and only entitled to the pay of Rs.80,000/- in the scale of Rs.75,500-80,000/-. The applicant on the date of retirement was not actually holding the post of DG&IGP since he proceeded on earned leave from 01.04.2012 to 31.05.2012. Learned Counsel further submitted that the OA suffers 11 OA 285/2023/CAT/BANGALORE BENCH from delay and laches, since the applicant is claiming the refixation of pay and pension after a long time.
8. Learned Counsel Shri M.Rajakumar representing the Respondent No.3 submitted that on examination of the representation submitted by the applicant dated 24.07.2017, the Finance Department vide opinion date 23.11.2021 has concurred to refix the pay of retired officer in Apex scale. Hence the Government of Karnataka issued letter dated 25/26.05.2022 agreeing with the observations and suggestions made in the letter dated 08.08.2017 and concurring to revise the pension of the applicant by reckoning Rs.80,000/- (Fixed) as last pay drawn (Apex scale).
9. On the directions issued by this Tribunal, an affidavit of a responsible officer of the State Government has been filed submitting that the pay scale of Shri A.R.Infant, retired IPS officer was Rs.75,500- 80,000/- as on the date of retirement i.e., 31.05.2012 and pensionary benefits were calculated accordingly. Consequent to the sanction of VII Pay Commission with effect from 01.01.2016, the last pay drawn by Shri A.R.Infant was revised in the pay scale of Rs.2,05,400-2,24,400/- i.e., 12 OA 285/2023/CAT/BANGALORE BENCH level-16 of the pay matrix. Referring to the said affidavit, learned Counsel submitted that Shri A.R.Infant, then serving as Commandant General Home Guards was holding the concurrent charge of DG&IGP and was not drawing the Apex scale.
10. We have carefully considered the submissions of the learned Counsel appearing for the parties and perused the material on record.
11. The moot point that arises for our consideration is:
In the facts and circumstances of the case, whether the applicant is entitled to revision of his salary and pension in the Apex scale, Level-17 as claimed?
12. Rule 20(i) of the All India Services (Leave) Rules, 1955 ('Rules' for short) reads thus:
"A member of the service on earned leave is entitled to leave salary equal to the pay drawn immediately before proceeding on earned leave."
13. Instructions were given by the Respondent No.1 vide communication dated 08.03.2018 to the Chief Secretaries of all the 13 OA 285/2023/CAT/BANGALORE BENCH State/UT Government inviting attention to the following for kind perusal and necessary action:
i. In terms of IPS (Pay) Amendments Rules of 2008, the Director General of Police (Head of Police Force) is eligible to draw the Apex scale of Rs.80,000/- (Fixed).
ii. In terms of notification dated 18.10.2011 of DoP&T, no ex-
cadre post of DGP (HoPF) in Apex scale of Rs.80,000/- (Fixed) shall be created.
iii. Vide Ministry's letter No.16011/22/2016-IPS II dated 06.02.2017, it was intimated that DGP (HoPF) is a selection post, therefore provisions of 'Next Below Rule' is not applicable for the post of DGP (HoPF).
14. In order to ascertain whether Shri A.R.Infant, who was holding the concurrent charge of Commandant General Home Guards, whether was drawing the Apex scale in level-17, the State Government was directed to file an affidavit of a responsible officer to make it clear as no two officers are eligible for Apex scale salary. Accordingly, Shri Nagappa S. Pareet, Under Secretary to Government, (Services-4) 14 OA 285/2023/CAT/BANGALORE BENCH Department of Personnel and Administrative Reforms, Vidhana Soudha, Bengaluru, has filed a duly sworn affidavit dated 26.02.2024, submitting that the pay scale of Shri A.R.Infant, IPS Officer was Rs.75,500-80,000/- on the date of retirement i.e., 31.05.2012 and pensionary benefits were calculated accordingly. Consequent to sanction of VII Central Pay Commission with effect from 01.01.2016, the last pay drawn by Shri A.R.Infant was revised in pay scale of Rs.2,05,400-2,24,400/- i.e., level 16 of the pay matrix.
15. In terms of the instructions dated 08.03.2018 issued by the Ministry of Home Affairs, Government of India (Annexure A14), it has been stated that VII CPC vide its report at para 7.2.52 had recommended to retain HAG+ in the IPS and in case of transfer of HoPF (Apex scale) to some other post his/her pay or pay scale may be protected. The Central Government has approved the recommendation of VII CPC at para-7.2.52 of the report. On examination in the Ministry in consultation with the Department of Personnel and Training regarding the protection of pay of IPS officers at Level 17, it has been decided that on transfer of an IPS officer from DGP (HoPF) (Apex pay scale) to DG 15 OA 285/2023/CAT/BANGALORE BENCH (HAG+ pay scale) in State, her/his pay may be protected i.e., once Apex pay scale is given to an employee, she/he should not be shifted to a lower scale of pay in normal circumstances. The Apex scale given to such officer will be personal to the officer and it shall not be construed as creation of an ex-cadre post in Apex pay scale by the concerned State Government. Further, such protection will not be given in such cases where Apex pay scale has been granted in violation of IPS promotion guidelines issued vide Ministry of Home Affairs letter dated 15.01.1999 as amended from time to time. Further it is subject to taking effect from the date of implementation of the Central Pay Commission recommendation i.e., from 01.01.2016. In terms of the aforesaid, only DGP (HoPF) is eligible to draw Apex scale of Rs.80,000/- (fixed).
16. Now the crucial point would be what was the pay drawn by the applicant before proceeding on earned leave to analyse the applicability of Rule 20(i) of the Rules. Though the appointment of the applicant to the post of DG&IGP Karnataka was quashed by this Tribunal in OA No.545/2011 dated 16.03.2012 confirmed by the Hon'ble High Court of Karnataka in W.P.No.8788/2012 connected with W.P.No.9655/2012 16 OA 285/2023/CAT/BANGALORE BENCH dated 30.03.2012, by virtue of the order passed by the Hon'ble Apex court dated 24.04.2012, the order of this Tribunal in OA No.545/2011 was stayed and the judgment of the Hon'ble High Court of Karnataka was set aside. It was observed that it is open to the State Government to make the posting of an officer of its choice as the DGP, Karnataka subject of course, to the final order passed by the Hon'ble High Court. Shri A.R.Infant, IPS was appointed in a concurrent charge of DG&IGP vide notification dated 31.03.2012, however, subject to the result of the matter pending before the Hon'ble High Court of Karnataka. In the second round also, the Hon'ble High Court of Karnataka having dismissed the writ petitions filed by the State of Karnataka and the applicant by common order dated 28.05.2012, on further challenge made against that order in C.A.No.179/2013, the Hon'ble Apex Court has held thus:
"From sub-paragraph (I) of paragraph 105 as extracted above, it is evident that the High Court has found that the panel's report comments adversely on the appellant, not in his personal capacity, but vicariously upon his role "as a Commandant of the Task Force". The High Court's findings are based on Paragraphs 59, 33 and 35 of the panel's report which are
17 OA 285/2023/CAT/BANGALORE BENCH reproduced in paragraphs 52, 79 and 80 respectively of the High Court judgment. We have gone through those paragraphs of the panel's report and we have also examined some other parts of the report to which our attention was drawn by Mr.Batra, learned counsel appearing for respondents No.4. Having read the paragraphs from the panel's report that are referred to in the High Court Judgment along with and in the context of other paragraphs of the report we find it difficult to construe those paragraphs as containing any adverse comment much less any indictment of the appellant in his role as the Deputy Commandant of the STF.
In any way, the observations and findings of the High court are now no more than of academic interest and are of no practical consequence. We, therefore, do not see any reason to delve further in the matter and to consider all the other points raised by Mr.Ahmadi on behalf of the appellant. Now that both the applicant and respondent No.4 have crossed the age of superannuation and a decision by this Court in this matter is not going to materially affect either of them in any way, it would be best to put a quietus to this matter.
The appeal stands disposed of with the aforesaid observations."
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17. In the back drop of the categorical finding given by the Hon'ble Apex Court that it is difficult to construe the paragraphs (referred to therein), as containing any adverse comments much less indictment of the applicant in his role as the Deputy Commandant of the STF, the only inference that could be drawn is that the Hon'ble Apex Court has not concurred with the finding of this Tribunal and the Hon'ble High Court of Karnataka in holding the applicant's appointment as illegal. That being the situation, in the light of the stay order granted to the order of this Tribunal by the Hon'ble Apex Court as referred to supra, any further consequential action i.e., the order of transfer issued to the applicant and applicant handing over charge pales insignificance. In our view the applicant proceeding on earned leave with effect from 31.03.2012 sans taking charge in the transferred place till his retirement on attaining the age of superannuation on 31.05.2012 has to be considered in terms of Rule 20(i). In such circumstances, the applicant is eligible to draw the Apex scale of Rs.80,000/- (fixed) (Apex Scale). Respondent No.3 has also supported the case of the applicant to revise the pension of the applicant by reckoning Rs.80,000/- (fixed) as last pay drawn (Apex scale). The main objection of Respondent No.1 &2 that the applicant 19 OA 285/2023/CAT/BANGALORE BENCH handed over the charge of DG&IGP (HoPF) on 31.03.2012 and proceeded on earned leave from 01.04.2012 to 31.05.2012, as such he was not actually holding the post of DG&IGP (HoPF) on the date of his retirement deserves to be rejected in view of the orders passed by the Hon'ble Apex Court dated 24.04.2012 in C.A.No.3799/2012 and order dated 10.01.2013 CA No.179/2013. In the wake of recommendation of VII CPC with effect from 01.01.2016, fixing of Apex scale pension at Level-17 to the applicant becomes significant. The applicant has made representation immediately after the recommendation of the VII CPC, which has been rejected by the Respondent No.2. Hence the arguments on delay and laches advanced by the learned Counsel for the respondents requires to be negated.
18. The applicant was on earned leave at the time of his retirement. In other words, the applicant never took the charge of Chairman, Karnataka State Police Housing Corporation and remained on earned leave until the date of his retirement. Once the officer is placed in the 20 OA 285/2023/CAT/BANGALORE BENCH Apex cadre, the question of shifting the officer to a lower pay scale is not warranted. The Hon'ble Apex Court in Prakash Singh v. Union of India reported in (2006) 8 SCC 1, has enunciated the legal principles as under:
"Police officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in- charge District and Station House Officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption of if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to the promotion and retirement of the officer".
19. In the light of this judgement, the applicant indeed had the tenure to continue in the post of DG & IGP till the date of his retirement on 31.05.2012.
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20. The Apex scale conferred to the applicant during his tenure cannot be withdrawn as it is personal to him, as the applicant had gone on earned leave after obtaining the sanction from the State Government. By fiction of law, the applicant is entitled to the pay drawn by him at Apex scale before proceeding on leave for the period of leave.
21. Denial of legitimate pension of the applicant is violative of Articles 14 and 16 of the Constitution of India. Thus, the point formulated in the OA is answered in affirmative. Hence the impugned order dated 13.09.2022 at Annexure A1 is not sustainable.
22. For the reasons aforesaid, we pass the following:
ORDER
1) The impugned communication/endorsement dated 13.09.2022 issued by the Respondent No.2 vide Annexure A1 is set aside.
2) Respondent No.2 is directed to revise the salary of the applicant in the Apex scale and fix his pension in the Apex scale as proposed by the Respondent No.3 vide Annexure A8, in furtherance to VII CPC recommendations.
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3) Compliance shall be made in an expedite manner, in any event not later than eight weeks from the date of receipt of the certified copy of the order.
4) OA stands allowed to the extent indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.