Central Administrative Tribunal - Delhi
C S Khokhar & Others vs Union Of India & Others on 15 September, 2009
Central Administrative Tribunal Principal Bench OA No.1651/2009 MA No.1090/2009 New Delhi this the 15th day of September, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) C S Khokhar & others ..Applicants (By Advocate: Shri B S Mainee) Versus Union of India & others ..Respondents (By Advocate: Shri G C Chaturvedi) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
MA-1090/2009 for joining together is allowed.
2. Though ordinarily Judiciary should not encroach the domain of Executive, yet in a policy decision when the decision is irrational, arbitrary or is violative of Articles 14 and 16 of the Constitution of India, it has to be interfered, as ruled by the Apex Court in Villinaur Mayan v. Union of India, 2009 (8) SCALE 310. The promotion being a condition of service and its consideration has been held to be a fundamental right with fair and equitable consideration by the Apex Court in Dwarka Prasad v. Union of India, 2004 (1) ATJ SC 591.
3. In the above backdrop the applicants, numbering 62, working as Deputy General Managers (DGM) in RITES having put in 20 years of service, have impugned respondents promotion policy promulgated in September 2003 as well as office order dated 22.9.2008, whereby a grievance has been raised for not affording them the CDA pay scales at par with IDA pay scales and also seek quashing of Cluster-II of the promotion policy, whereby a post of DGM has been introduced on vacancy based screening test pre-requisite.
4. As per the previous policy Clusters have been formulated for consideration of promotion as per the earlier policy all the posts from Engineer to Executive Director are divided into 3 Clusters. Applicants are placed in Cluster-II, possessing education qualifications of Graduation in Engineering, MBA or equivalent etc. The next post to which applicants are eligible is that of Jt. General Manager (JGM) after five years stay as DGM.
5. The said policy norms were modified in terms of which an Engineer is eligible for promotion as Jr. Manager after 3 years and Jr. Manager of Asstt. Manager after 4 years and Assistant Manager to Manager after 4 years. It is the grievance of applicants that the respondents have arbitrarily passed the impugned order which has not only deprived applicants of their time-bound promotions from DGM to JGM and onwards but also it has adversely affected the time-bound automatic consideration for their advancement by illegally and arbitrarily increasing the eligibility period from 5 years to 7 years as well as by changing the pattern in such a manner that DGMs who earlier used to be promoted to JGM and onwards irrespective of any vacancy in the higher grade as the promotion with the cluster has to be made automatically after adjudging their suitability as per service record etc. is altered.
6. On 3.10.2008 the respondents have suddenly announced modification of norms of promotion policy against which an appeal was submitted by the applicants to the respondents, requesting to retain the previous norms/clusters/cadres as per the promotion policy of September 2003 and also to withdraw introduction of intermediate post of Senior Deputy General Manager, which had no nexus with the objective sought to achieved and as such DGMs who completed 5 years service had legitimate expectation for promotion to the post of JGM.
7. The applicants thereafter met the Director (Project) and explained their grievance in detail on which Director (Project) advised the applicants to submit another detailed representation. Accordingly the applicant submitted another representation to the respondents, wherein they have suggested that instead of creating a new post of Dr. DGM, a post of Senior Manager may be introduced. They have further pointed out that there is no CDA pay scale in the newly introduced post of Sr. DGM and that the pattern being followed in M/s IRCON Ltd. in CDA scale in line with the promotion policy of September, 2003 may be retained and modification regarding Cluster-II be withdrawn to protect the interest of applicants for advancement. Since then no action has been taken by the respondents on the representation of applicants. Hence the present OA.
8. Learned counsel of applicants Shri B.S. Mainee challenges the modified policy of promotion as violative of Articles 14 and 16 of the Constitution of India, as the applicants have a right for consideration to the post of JGM and AGM without constraints of availability of vacancies has been infringed. It is stated that the eligibility period has been enhanced for the post of JGM whereas in respect of other posts has been reduced, which smacks of invidious discrimination in violation of Articles 14 of the Constitution of India.
9. Learned counsel states that by this modification applicants would lose right of consideration and an opportunity for the promotional post. Learned counsel states that policy is arbitrary, as it is opposed to the aims and object of the earlier promotion policy, which provides in para 3 that the basic principle and object of the promotion policy is to provide adequate avenues of career advancement at all levels consistent with merit, suitability, performance and professional attainments of the employees, commensurate with the business needs of the company to sustain in the competitive environment. Learned counsel states that as per the policy of September 2003 those Managers who have completed 5 years of service as on the cut off date on 3.4.2004 are eligible for DGM and some of the DGM amongst applicants were called for promotion of Manager in February 1998 though due in May, 1997 but the process took time to complete the selection process. It is stated that by withholding the representation of applicants respondents have acted illegally and by relying upon a decision of the Apex Court in Grid Corporation of Orissa v. Rasananda Das, (2004) SCC (L&S) 214 it is contended that the service conditions cannot be altered to the disadvantage of the officer.
10. Learned counsel states that as per the report of the Justice S. Mohans Committee report to switchover from CDA to IDA scale the decision of the Apex Court in Jute Corporation of India Officers Association v. Jute Corporation of India Ltd. & Anr., CMP No.10854/1999 in Civil Writ Petition No.13044 of 1984, decided on 3.9.1990 it has been held that the employees shall continue to enjoy the option to switchover to IDA pattern only on voluntary basis. It is in this regard stated that pre-revised CDA scales prior to revision was Rs.12000-1650, which was made equivalent to IDA pay scale of Rs.13000-18250, now has been made equivalent to Rs.14500-18700 as per the impugned order, which is discriminatory, as CAD pay scale of Rs.12500-16500 has become equivalent to Rs.16000-20800.
11. Learned counsel states that while working as Managers in Cluster-I on promotion as DGM they have been subjected to a screening test but with a change in the policy they had to undergo a test for moving towards AGM. Those who have completed five years have been deprived of the promotion as DGM, which is contrary to the doctrine of legitimate expectation.
12. It is stated that the policy is one sided and discriminatory, as this has benefitted the categories like Assistant Manager, whose eligibility period has been reduced to 4 years and from Manager to DGM where it is reduced to 5 years to 4 years. Likewise for AGM, GM and JGM the respective eligibility period has been reduced but in case of JGM to AGM the period has been enhanced from 4 years and from 5 years the period has been enhanced to 7 years.
13. The learned counsel Shri Mainee demonstrates discrimination in the pay scale and stated that those DGMs who are promoted as Senior DGMs and who do not opt for IDA pay scales would continue to draw the same pay scale as of DGM. Relying upon the decision of the Apex Court in BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333 it is stated that a change in the policy is interfered with if it is contrary to law or its implementation is illegal. The decision of the Apex Court in Union of India v. Pushpa Rani, (2008) 9 SCC 242 has also been relied upon to contend that in the mater of policy decision, which includes creations of posts on review, judicial interference is permitted if the act is malafide, arbitrary and contrary to the Constitution of India.
14. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated by relying upon decision of the Apex Court in P.U. Joshi v. Accountant General, Ahmedabad, AIR 2003 SC 2156 and Union of India v. S.L. Dutta, AIR 1991 SC 363 contended that the Court cannot compel the Government to adopt a particular method by substituting its views and holding an eligibility criteria for promotion is within the prerogative of the Government. It is also stated that in the promotion, change of policy when the policy concerns highly technical or scientific nature should not be interfered.
15. Learned counsel would contend that Justice S. Mohan Committee in 1999 in the revision of pay scale in Public Sector Enterprises considered lack of uniformity between the IDA and CDA where a majority of the employees in IDA scales the CDA employees are further reduced voluntarily. In the above view of the matter the condition prevailing in the year 2008 when the problem of high rate of attrition of the employees of the respondent company due to the demand for skilled, meritorious and performing personnel having increased in the field, leading to skilled and qualified personnel of the respondents being lured by private sector, in order to arrest the attrition, a decision was taken to upgrade the pay scales under the I.D.A. as well as to see that the emoluments of both group of employees under CDA & IDA were more or less comparable.
16. It is further stated that the enhancement of the compensation to the officials of the respondent company, care was taken that merit and performance should only be rewarded and to this effect the changes in the promotion policy were also effected. The promotion was made competition based, so that the same may not be taken as granted, since the objective was to improve the quality of manpower to compete in the competitive world. As such, the clusters were also regrouped/restructured. Apart from making the pay scales more attractive, the concern of the organization was to infuse efficiency and merit, so that the performers are duly rewarded since the respondents was operating in a highly competitive environment from the private sector locally as well as globally. It is stated that by the impugned order of the respondents no legal or fundamental right of the applicants is being infringed.
17. Learned counsel would also contend that in the present OA and also in the representation made no grievance as to enhancement of pay scale was raised and now they are estopped from approbating and reprobating simultaneously. Learned counsel states that respondent organization is within its right to provide for promotion policy, modify it or re-change it, which is according to the compelling changed circumstances. It is stated that as per the policy of 2003 in paragraph 12.1, power is vested with the respondents to modify/amend or alter any of the rules or procedure of the promotion policy in the interest of the company, which is promotion.
18. We have carefully considered the rival contentions of the parties and perused the material on record.
19. In A. Satyanarayana v. S. Purshottam, (2008) 2 SCC (L&S) 279 the Apex Court in the matter of promotion ruled that in exercise of power of judicial review there must exist a rational nexus between the legislation and policy decision as well as the object of promotion. As promotion is granted to higher posts, to avoid stagnation and frustration amongst the employees, provision for promotional avenue is a must. However, before a rule is declared ultra vires, it must be held to be wholly irrational or arbitrary and the plea of discrimination based on pleadings would be essential.
20. In S.B. Bhattacharjee v. S.D. Majumdar, (2008) 1 SCC (L&S) 21 in a case of promotion the Apex Court ruled that though there is no fundamental right of promotion in terms of Article 16 of the Constitution of India but as a fundamental right, right to be considered therefor. However, there are decisions of the Apex Court and one of it is T.N. Electricity Board v. T.N. Electricity Board Sangam, (2008) 1 SCC (L&S) 649 wherein exclusion of judicial review in policy maters has been elaborated with holding of an individual cannot insist on an amendment, which suits him.
21. In V. Shivamurthi v. State of U.P., (2009) 1 SCC (L&S) 335 it has been held by the Apex Court that a policy decision, which is opposed to statutory or constitutional provisions and is suffering manifestly from arbitrariness, unreason or absurdity is liable to be interfered with. Likewise in CSIR v. Ramesh Chand Agrawal, (2009) 1 SCC (L&S) 547, it is held that a policy decision is not beyond the pale of judicial review but should be invalidated on some legal principles.
22. In K.A. Nagmani v. India Air Force, (2009) 2 SCC (L&S) 57 as to executive functions of laying down policy and its modification, the Apex Court held that there is no legal restriction to amend the policy as recognized, as it does not offend the provisions of Constitution or statutory rules.
23. With the above position of law discerned, applicants have a fundamental right to be considered for promotion within cluster-II on inter-changeability of posts without being subjected upto the post of AGM to a suitability test or screening test, is dependent on availability of vacancies as per the erstwhile policy with laying down of eligibility period of 13 years from Manager to AGM. The new policy has introduced an intermediate post of Senior DGM but without any test. However, this has enhanced the eligibility period of 7 years and by shifting the post of JGM and AGM in cluster-III more incumbency period has been added to the eligibility. Few of the applicants who have completed before September 2003 5 years service as DGM under the then policy had a right on fair and equitable basis to be considered for promotion. The policy, which is a prospective amendment to the erstwhile policy for want of any stipulation as to its being operated retrospectively shall have to be effective only prospectively. In the above view of the matter the right of applicants to be considered for the post of JGM has been violated, which is a fundamental right, cannot be countenanced in law. As an analogy what is to be mutatis mutandis applied for want of statutory rules for promotion when the policy has partaken the character of the statutory rules by way of practice is the trite law that if a right for promotion has been accrued as per availability of vacancies, which is not disputed in the instant case. As upgradation/promotion to DGM was not subjected to availability of vacancies the old rules on completion of eligibility would have to be pressed into operation for consideration. Having not done so, the contention put-forth by applicants is correct in all perspectives.
24. Another aspect, which is to be seen, is the dispute of pay scales. Though there is no averment as to grant of pay scale, yet in the light of the decision of the Apex Court in Jute Corporation of India (supra) as well as Justice B. Mohans report opting for IDA scale is an option to be exercised voluntarily the pay scale enjoyed by the applicants as DGM in CDA was much lesser than the pay scale attached to the post of DGM. In the above view of the matter, even the applicants who have not been getting the proportionate IDA scales is the pay scale of DGM of Rs.13000-18250, whereas the CDA pay scale in the sister concern has been risen to Rs.16000-20800 and this smacks of discrimination against the applicants, as after restructuring the CDA pays scales when substituted in tune with BSNL applicants pay scale is Rs.16000-20800 which they are not getting. However, this we have demonstrated as to the discrimination meted out to the applicants. Moreover, it is trite that when a promotional post is introduced like Senior D.G.M. as per the decision of the Apex Court in Pushpa Rani (supra) its two components and pre-requisite of higher pay scale and discharge of higher duties and responsibilities. As a DGM even the senior DGM and AGM which were inter-changeable as per the old policy, there is no distinction of inter-changeability as to performance of duties and responsibilities attached to these posts. Applicants even if promoted as Senior DGMs would carry out the same responsibilities and as the pay scale of DGM as per IDA adopted in other sister concern is identical but has been provided under IDA scale, there is no financial uplift of upgradation to the next post, which cannot be treated as a promotional post. It is pertinent to note that even Senior DGM post insofar as CDA and existing IDA pay scale is concerned, no pay scale has been set out, which clearly shows that the post has been introduced with a conscious decision and application of mind. With the policy whereby the post of JGM and AGM have been shifted to cluster-III the incumbency period has been enhanced whereas in the hierarchy for the post of CGM and for Assistant Manager the incumbency period has been reduced. This shows that this policy decision has been an advantageous piece of decision to the other cadres but for DGMs not only their pay has been reduced but also the eligibility period has been enhanced and has prevented them from being considered on fair and equitable basis, as JGM, AGM respectively. This is not only an arbitrary decision of the respondents with malafide intention but also an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India.
25. No doubt, chances of promotion do not vest a Government employee with an indefeasible right but when by way of an act of the respondents the chances have been reduced or almost foreclosed for some for promotion as JGM and AGM by introducing an intermediate cadre of senior DGM as per the decision of the Apex Court in A. Satyanarayana (supra) is an infraction to the fundamental rights of applicants.
26. The ingress and competitiveness and progress on competition by the respondents is the basis of this modification in the policy. We fail to understand that when there is no adversity in the functioning of the applicants how could such a stand be taken. Applicants with their dint of hard work and performance have risen to the status of DGM and further impeding their right for consideration for promotion certainly is not an intelligible differentia, which has no reasonable nexus with the object sought to be achieved. If the applicants, numbering 62 are the cadre borne employees, they would be progressing further in the cadre to avoid stagnation. In such an event, merely because the other Institutions are performing well, for want of material on record to establish ineffectiveness of employees in RITES Ltd. the defence of competitiveness is a simple afterthought and a lame excuse for legalizing their illegal action. However, in a policy decision when we find in judicial review that the same suffers from arbitrariness and illegality, as per the decision of the Apex Court in State of U.P. v. Ch. Ranbeer Singh, (2008) 5 SCC 550 we can always direct review of reconsideration by the respondents.
27. In the result, for the foregoing reasons, we dispose of this OA with a direction to respondents to reconsider their policy decision of promulgating promotion rules in September 2003 and also introduction of intermediate post of Senior DGM. The aforesaid exercise shall also entail meticulous consideration of averments in the OA and the contentions put-forth by the applicants, including rejoinder and also our observations made in the body of the order.
A well conscious decision shall be taken by the respondents with reasons, within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.