Delhi High Court
Union Of India And Ors vs Indian Trade Service Officers ... on 4 February, 2016
Author: Sanjiv Khanna
Bench: Sanjiv Khanna, Najmi Waziri
$~04
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5382/2012
Date of decision: 4th February, 2016
UNION OF INDIA AND ORS ..... Petitioner
Through Mr. Jasmeet Singh, CGSC with
Ms. Nishtha Kishore, Advocates.
versus
INDIAN TRADE SERVICE OFFICERS ASSOCIATION AND
ORS ..... Respondent
Through Mr. Gaurav Duggal, Advocate for
respondent Nos.1, 5, 7 & 9.
Ms. Shailja Balasaria, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
Union of India (Department of Commerce, Ministry of Commerce and Industry) and Director General of Foreign Trade have filed this writ petition impugning order dated 17th February, 2012, passed by the Central Administrative Tribunal, Principal Bench in OA No.4402/2011.
2. OA No.4402/2011 was filed by Indian Trade Service Officers Association and fourteen employees, with the following prayers:-
W.P.(C) 5832/2012 Page 1 of 7
"(i) Quash any proposal/approval of the Government to fill up newly upgraded 4 posts of Additional DGFT at Delhi, Mumbai, Kolkata and Chennai from outside the cadre officers under Central Staffing Scheme which will further increase the stagnation within the cadre and increase the heartburning and exodus from the service, and give direction to the Respondents to fill up these posts from the eligible officers of the ITS.
(ii) Quash Rule 8(1)(c) of the Recruitment Rules of ITS to fill up Grade I posts to Joint Director General of Foreign Trade by deputation by under Central Staffing Scheme and give direction to the Respondents to fill up these posts from the eligible officers of the ITS.
(iii) Quash the proposal bearing No.12013/1/2011 HRD1/4173 dated 24.10.2011 sent by the respondents to the DOPT for amending the Recruitment Rules of ITS to enable implementation of decision of Cabinet to upgrade 4 posts belonging to the deputationist quota.
(iv) Direct the respondents to undertake the first and second cadre reviews of the Indian Trade Service, in a time bound manner (within one year), which is a Group „A‟ service of the Central Government which has not been carried out for the last 34 years of its inception of the service and for which reason even the 1986 batch of ITS has not come up for promotion to the SAG grade despite 3 decades of service and to upgrade at least 24 posts at JAG level to SAG level and increase promotional avenues within the cadre as proposed several times by various Committees."
4. At the time when the OA was filed, the cadre strength in Indian Trade Service and hierarchy were as under:-
"
SI No. Grade Pay Strength
Structure
(i) Senior Administrative Grade Pay Band-4 08
(SAG) (Additional Directorate Rs.37,400-
General of Foreign 67,000 plus
Trade/Development Grade Pay
Commissioner SEZ) Rs.10,000
(ii) Grade-I Pay Band-3 65
W.P.(C) 5832/2012 Page 2 of 7
Junior Administrative Grade Rs.15,600-
(JAG) (including Non- 39,100 plus
Functional Selection Grade Grade Pay
(NFSG) (Joint Directorate of Rs.7,600
General of Foreign Trade) NFSG-(Pay
Band-4
Rs.37,400-
67,000 plus
Grade Pay
of Rs.8,700)
(iii) Grade-II Pay Band-3 63
Senior Time Scale (STS) Rs.15,6000-
(Deputy Directorate General 39,100 plus
of Foreign Trade) Grade Pay
of Rs.6,600
(iv) Grade-III Pay Band-3 54
Junior Time Scale (JTS) Rs.15,600-
(Assistant Directorate General 39,100 plus of Foreign Trade) Grade Pay of Rs.5,400 Total Cadre 190 Posts "
5. As is noticeable from prayer clause (i) quoted above, the respondent Association and 14 others were aggrieved at the proposal/approval given by the Government to fill up newly upgraded four posts of Additional Director General of Foreign Trade at Delhi, Mumbai, Kolkata, and Chennai under Central Staffing Scheme i.e. by officers from outside the cadre. The main concern and grievance of the respondent Association and 14 employees was stagnation within the cadre.
6. After elucidating on the factual matrix and legal aspects, the Tribunal by the order under challenge has given the following directions W.P.(C) 5832/2012 Page 3 of 7 under the head „Conclusion‟:-
"42. Considering the totality of facts and circumstances of the case, taking into account our above analysis on each of the issues, we come to the considered view that (i) Rule 8(1)(c) of the ITS (Group „A‟) Rules suffers from discrimination as it prejudices the ITS officers for being not considered for the 10% of the JAG posts and is, therefore, ultra vires of Article 14 and 16 of the Constitution of India and the provision to the extent of 10% of the posts to be filled up by deputation from IAS and Group „A‟ Central Services is quashed and set aside with the direction to the respondents to give all JAC posts by promotion only to the eligible Grade-II ITS officers (ii) four upgraded posts of JAG to SAG in the ITS shall be filled up as per the extant ITS (Group „A‟) Rules through promotion; (iii) the order dated 16.12.2011 b y which four ITS JAG posts have been upgraded to SAG is upheld to that extent but to fill up those posts under Central Staffing Scheme being dehors the relevant rule is set aside with direction to consider promotion of eligible ITS Grade-I officers as per extant Rules; (iv) the orders dated
07.12.2011 and 27.12.2011 by which two officers have been posted against the upgraded post under Central Staffing of SAG Scheme, being dehors the ITS (Group A) Rules are also quashed and set aside and (v) we also direct the respondents to carry out the cadre review exercise as per the extant guidelines of DOPT within a period of six months from today."
7. The petitioners thereafter have carried out the cadre review and in accordance with the approval of the Cabinet, conveyed vide Cabinet Secretariat U.O. No.27/CM/2015 (Case No.188/27/2015) dated 2nd July, 2015, published in the Gazette Notification dated 5th August, 2015 notifying the following grades in the Indian Trade Service Cadre:- W.P.(C) 5832/2012 Page 4 of 7
"
S Grade Pay Scale Pre- Additio Revis I (Designation) revised nal Post ed N Sanction Created Sancti o ed /Reduc oned Strength ed Streng th 1 Higher HAG 0 (+1) 1 Administrativ Rs.67,000/-
e Grade ( Annual
(HAG) Increment
@ 3%) -
79,000/-
2 Senior Pay Band-4 8 (+18) 26
Administrativ Rs.37,400-
ve Grade 67,000 +
(SAG) Grade Pay;
(Additional Rs.10,000/-
Director
General of
Foreign
Trade/Develo
pment
Commissione
r/Trade
Advisor)
3 Non Pay Band- 64 (-16) 48
Functional 4,
Selection Rs.37,000-
Grade 67,000/- +
(NFSG)/Junio Grade Pay
r Rs.87,000/-
Administrativ (NFSG)
e Grade and Pay
(JAG) (Joint Band-3,
Director Rs.15,600-
General of 39,100/- +
Foreign Grade Pay;
Trade/Directo Rs.76,00/-
r/Deputy (JAG)
Secretary
4 Senior Time Pay Band- 63 (-19) 44
Scale (STS) 3,
(Deputy Rs.15,600-
Director 39,100+
General of Grade Pay
Foreign Rs.66,00/-
Trade/Under
Secretary)
5 Junior Time Pay Band- 54 (-5) 49
W.P.(C) 5832/2012 Page 5 of 7
Scale (JTS) 3,
(Assistant Rs.15,600-
Director 39,100+
General of Grade Pay
Foreign Rs.54,00/-
Trade)
6 Reserve posts Pay Band- 0 (+23) 23
at JTS Level 3,
(Assistant Rs.15,600-
Director 39,100+
General of Grade Pay
Foreign Rs.54,00/-
Trade)
Total 189 (+2) 191
(2) The earlier provision of filling of 10% of JAG level posts (6 posts) in ITS by deputation
under Central Staffing Scheme (CSS) is removed. Four (4) posts of Additional Director General of Foreign Trade (SAG level) would be outside ITS Cadre and would continue to be filled though the Central Staffing Scheme. Remaining 2 posts at JAG level would be part of ITS cadre (included in the 48 posts mentioned in the Table at Part 1 above). x x x x x."
8. Thus, 18 additional posts have been created in the Senior Administrative Grade (SAG). One post in the Higher Administrative Grade (HAG) has been also created. Learned counsel appearing for Indian Trade Service Officers Association and the private respondents, except for Mr. S.S Das (respondent No.3), states that the above notification is acceptable and they are satisfied.
9. No one appears for Mr. S.S. Das (respondent No.3) to represent him or put forward his point of view. Mr. S.S. Das was duly represented by an independent advocate on earlier dates of hearing.
10. We dispose of the writ petition taking the notification published in W.P.(C) 5832/2012 Page 6 of 7 the Gazette Notification dated 5th August, 2015 on record. If any person or individual has any grievance against the said notification, he/she will be at liberty to challenge and question the same in accordance with law.
SANJIV KHANNA, J.
NAJMI WAZIRI, J.
FEBRUARY 04, 2016 NA W.P.(C) 5832/2012 Page 7 of 7