Central Administrative Tribunal - Delhi
Sajjad Khan vs M/O Personnel,Public Grievances And ... on 4 December, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 942/2014
MA 845/2014
MA 846/2014
Order reserved on: 17.11.15
Order pronounced on:04.12.15
New Delhi this the 4th day of December, 2015
Hon'ble Mr. Justice Syed Rafat Alam, Chairman
Hon'ble Mr. P.K. Basu, Member (A)
1. Shri Sajjad Khan
S/o Lt. Shri Shali Khan
R/o H.No.31,Type V
Lodhi Road Complex,
Lodhi Road, New Delhi-110003
2. Shri V.K. Mishra
S/o Lt. Shri P.R. Mishra
R/o H.No. 794, Asian Games Village,
New Delhi-110049
3. Shri B.P. Dahiya
S/o Shri Mailal
R/o H.No. D-II/455
Sector-7, Rohini,
New Delhi
4. Shri S.M. Tafsir Alam
S/o Shri Safir Alam
R/o H.No. 47/19, Rajpur Road,
New Delhi-110054
5. Shri U.A. Jose
S/o Lt. Shri U.A. Augustine
R/o H.No. 416, Laxmi Bai Nagar,
New Delhi-110023
6. Shri Arun Kumar
S/o Lt. Shri Chet Ram
R/o T-6, Hudco Place Extension,
New Delhi-110049
7. Shri Dushyant Singh Chauhan
S/o Shri Teg Singh
R/o 307, E Block,
2
OA 942/2014
Pragati Vihar Hostel,
New Delhi-110003
8. Shri C.L. Khaitan
S/o Lt. Shri R.L. Khaitan
R/o H.No. F-9, Andrews Ganj Extn.,
New Delhi-110049
9. Shri V.S. Pal
S/o Shri Suresh Pal
R/o H.No. C-I/1, MoD Apts.,
Vasundhra Enclave,
New Delhi-110096
10. Shri Naresh Virdi
S/o Shri B.M. Virdi
R/o H.No. 203B, Pocket B,
Mayur Vihar, Phase-II
New Delhi-110091 ... Applicants
(Through Mrs. Jyogi Singh, Senior Advocate with Ms. Tinu
Bajwa, Shri Sameer Sharma and Shri Amandeep
Joshi, Advocates)
Versus
1. Secretary
Department of Personnel & Training
Ministry of Personnel, Public Grievances & Pensions
North Block, New Delhi-110001
2. Secretary,
Department of Expenditure
Ministry of Finance,
North Block, New Delhi-110001
3. Defence Secretary,
Ministry of Finance
South Block, New Delhi-110011 ... Respondents
(Through Shri R.K. Jain, Advocate)
ORDER
Mr. P.K. Basu, Member (A) The applicants in this case are members of the Armed Forces Headquarters Civil Service (AFHQCS). The Armed Forces Civil Service Members are initially recruited as Assistant Group 3 OA 942/2014 `B' in PB-2. Thereafter, the next level is Section Officer (SO) Group `B' in PB-2 with Grade Pay Rs.4800/-. The induction as SO is 50% by direct recruitment and 50% by promotion.
2. The Department of Personnel and Training (DoP&T) vide OM dated 24.04.2009, consequent upon acceptance of recommendations of 6th Pay Commission, provided for non- functional upgradation (NFU) for officers of Organized Group `A' services in PB-3 and PB-4. The basic provision is quoted below:
"(i) Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay Band 4, the officers belonging to batches of Organized Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre."
3. From a close reading of the aforesaid provision, it would appear that the benefit of NFU could be extended only to the Members of organized Group 'A' service when a Member of Indian Administrative Service of the State or Joint Cadre is posted to the Centre in the Grade Pay in Pay Band 3 or Pay Band 4, if the officer belonging to Organized Group 'A' service is senior to him by two years, with effect from the date when such Indian Administrative Service Officer is posted in the particular grade at the Centre. Thus, to invoke the aforesaid provisions or, in other words, to get the aforesaid benefit, two conditions are to be satisfied, viz., (i) the officer claiming benefit of NFU is 4 OA 942/2014 member of organized Group 'A' service, and (ii) if an officer belonging to Indian Administrative Service junior to him by two years, is posted in that particular grade at the Centre, on which such member of organized Group 'A' service is working.
4. The grievance of the applicants is that the benefit of this OM is not being granted to the members of the Service. This matter had been examined by the government and Ministry of Defence in their reply dated 7.01.2013 to the AFHQCS Officers Association rejecting their plea as follows:
"2. The proposal for grant of Non-functional Upgradation under the DOP&T OM dated 24.4.2009 to the officers of AFHQ CS officer was taken up with DOP&T for their consideration twice in Feb 2010 and thereafter in June 2010. DOP&T have not agreed to the proposal stating that "the instructions for grant of Non-functional Upgradation issued in pursuance of the recommendations of the 6th CPC and are applicable to Organized Group `A' Officers. The proposal of extending the same for AFHQ Civil Service cannot be agreed to as the same will give rise to demand from other services also."
5. It would be seen that the rejection was basically on two grounds:
(a) That the AFHQCS is not an organized Group `A' service and NFU is applicable only to Organized Group `A' Officers; and
(b) Extending the benefit to AFHQCS officers will give rise to demand from other services also.5 OA 942/2014
6. Leaned counsel for the applicants asserted that the respondents have not been able to clarify till date what is Organized Group `A' Service and no such definition exists in the Government. It is pointed out that in G.J. Singh and others Vs. Union of India and others, W.P. (C) 153/2013 decided on 3.09.2015, the Hon'ble Delhi High Court has extensively examined the issue of what constitutes an Organized Group `A' by going into relevant OM dated 20.11.2009 of DoP&T, which purported to clarify this issue and it came to the conclusion after extensively hearing the government side that the word `organized' has not been defined anywhere and that the clarification dated 20.11.2009 itself acknowledged that there will be minor deviation from the stipulations in Organized Group `A' Service. In fact, in para 41 of the judgment, their Lordships observed that one Shri J.P. Syal, DIG (Retd.) had applied under RTI and in response, the DoP&T has stated that it does not maintain a separate list of Organized Group `A' Services and or of those with minor deviations. Neither the learned counsel for the applicants in this case in a position to clarify the issue. Therefore, this much is established that though the expression Organized Group `A' Service is being used in various government circulars, there is no clear definition of what is an Organized Group `A' Service. Therefore, this is not a valid ground for rejection of applicants' claim, as stated in letter dated 7.01.2013, referred to above.
7. The second ground for rejection that this will give rise to demand from other services is clearly not a valid legal ground 6 OA 942/2014 and has to be rejected outright. We are of the view that if a member belonging to organized Group 'A' service is qualified and fulfils the condition for grant of NFU under the provisions referred above, the same cannot be denied merely on the ground that this would give rise to lay demands by others. Therefore, the first prayer of the applicant which is to quash the impugned order dated 7.01.2013 has to be allowed and the order dated 7.01.2013 is thus quashed.
8. The second prayer of the applicant is to direct the respondents to grant NFU to the officers working in AFHQCS. Therefore, we now proceed to examine this issue.
9. The preliminary objection that has been raised by the respondents in their counter reply as to why they cannot allow the second prayer is that NFU Scheme has been extended to Organized Group `A' Services and services like AFHQ and CSS, which are Group `B' services, are entitled for only the MACP benefit to take care of the gaps in regular career progression by granting financial upgradations. We think this is the only serious objection that has been expressed, which needs to be answered by us.
10. The other objection raised in para 4.14 of the counter reply is that there has to be a Junior Time Scale (JTS) in such service in which at least 50% of the vacancies should be required to be filled by direct recruitment and this is said to be an essential attribute. Since AFHQCS does not have this JTS, it cannot qualify for NFU. However, this is not a valid ground as this has 7 OA 942/2014 already been knocked down by the Hon'ble High Court in G.J. Singh (supra) and, in any case, the Organized Group `A' Service argument is not a valid argument, as stated above. Therefore, the only issue open before us is Group `A' versus Group `B'.
11. The learned counsel for the applicants further stated vehemently that fresh grounds beyond what have been stated in the impugned order dated 7.01.2013, cannot be introduced by the respondents and in this regard relied upon the judgment of the Hon'ble Delhi High Court in Nidhi Kaushik Vs. Union of India and others, 212 (2014) Delhi Law Times 5 (DB) and specifically to para 7.1 to 7.9 of the judgment. Basically, their Lordships relied on earlier judgments in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16; Mohinder Singh Gill Vs. The Chief Election Commissioner, (1978) 1 SCC 405; Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520; East Coast Railway Vs. Mahadev Appa Rao, (2010) 7 SCC 678; Rashmi Metaliks Ltd. and another Vs. Kolkata Metropolitan Development Authority and others, (2013) 10 SCC 95; Dipak Babaria and another Vs. State of Gujarat and others, (2014) 3 SCC 502; L. Kunjumon Thankappan Vs. Chief Passport Officer, 2012 (1) KHC 720, to hold that an affidavit cannot be relied on to improve or supplement an order and held that the "The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits....." 8 OA 942/2014
12. We are in complete agreement with the contention of the learned counsel for the applicants that subsequent arguments cannot be introduced by the respondents by way of filing affidavits and on the two grounds mentioned in the impugned order dated 7.01.2013, a stand has to be taken by the government. Therefore, since the Hon'ble Delhi High Court in G.J. Singh (supra) has clearly held that there is no definition of Organized Group `A' Service, that is not a valid ground for rejection of applicants' claim. The other ground of demand being raised from other quarters is also not a valid ground at all, as noted above. However, it is open to us to examine the legal issue of whether there is any violation of Articles 14 and 16 in this matter and it has been argued also by both sides before us.
13. On the aspect of parity of AFHQCS with other Group `A' service which have the benefit of NFU, it was argued by the learned counsel for the applicants that similar benefit has been given to all other Group `A' services except the AFHQCS. In this regard, reference was made to documents filed by them at Annexure A-3, which lists out 52 Group `A' Services in the whole of Government of India. It is argued that in many services, though all attributes of Group `A' defined in OM dated 20.11.2009 are not met, still they have been given the benefit of Group `A' service. In fact, in G.J. Singh (supra) regarding granting NFU to BSF, CRPF, ITBP and CISF, the petitioners therein were granted the NFU benefit though the government had taken the same stand that they do not belong to Organized Group `A' Service.
9OA 942/2014
14. It was further pointed out that there are services like Custom Appraiser Service in which the entry point is at Group `B' level and after promotion in their parent Group `A', these officers are eligible for the benefit of NFU. Though officers working in AFHQCS are also appointed by the same examination process and both Indian Custom & Excise Group `A' and AFHQCS Group `A' have been classified as Central Civil Service Group `A', NFU has been denied to AFHQCS officers on the ground that it is not an Organized service. This statement of the applicants in para 5.13 of the OA has not been contradicted by the respondents in their reply. It is pointed out that similarly Legal Service has no JTS level but NFU has been given.
15. It is also argued that in OM dated 20.11.2009 pertaining to attributes of Organized Group `A' Central Services itself, clause
(iii) states that "at least 50% of the vacancies in Junior Time Scale (JTS) in such services are required to be filled by direct recruitment", which according to the learned counsel for the applicants clearly means that there will be promotion from Group `B' services.
16. Learned counsel for the applicants also referred to para 3.3.4 of the recommendations of the 6th Pay Commission regarding Central Service Group `A', which states as follows:
"3.3.4 An organized Group `A' Central Service represents a group of posts belonging to a distinct functional area arranged in a hierarchical order and pyramidal manner representing different grades or levels of responsibility. These responsibilities 10 OA 942/2014 increase with each senior level."
It is stated that AFHQCS fulfils all these conditions.
17. Our attention was also drawn to para 3.3.12 to the effect that the JTS level was not mentioned but only the Senior Time Scale, Junior Administrative Grade and Selection Grade were mentioned, indicating that having a JTS level is not relevant:
"3.3.12 Most Group A Organized Services Associations have demanded abolition of the Edge presently granted to the IAS in terms of pay scales at the level of Senior Time Scale, Junior Administrative Grade and Selection Grade."
18. The respondents argued that organized services are those which have batches like in IAS, IPS etc. and AFHQCS cannot be categorized as such. It is further argued that no IAS or IPS officer is posted in their organization, who is junior and hence no claim for NFU can be made. Lastly, it is stated that officers of these cadres do not get any upgradation because they are entitled to upgradation under MACP and essentially there is no difference in upgradation between NFU and MACP.
19. We have heard learned counsel for the parties and gone through the pleadings available on record.
20. The only issue to be decided here is whether there is distinction between AFHQCS and other services. In our opinion, there is a distinction and the distinction is that services like Indian Audit and Accounts Service (IAAS), Indian Revenue Service (IRS), Indian Railway Accounts Service (IRAS) etc. 11 OA 942/2014 have induction at Group `A' level and then they go up in their hierarchy. In case of AFHQCS, they are inducted at the level of Assistant Group `B', just like CSS. Then their promotion is again in Group `B' and only thereafter, they are inducted in Group `A'. There is no comparison between the two services. For example, a person who takes the Civil Services Exam and qualifies in IAAS and another person who does not qualify and then later qualifies for the job of an Assistant in CSS or AFHQCS, if we equate the two in giving the benefit of NFU, it would make a mockery of the system because the latter, though he failed to qualify for Group 'A' service and has to contend with joining as Assistant through this process, would get the same benefit as if he had qualified for IAAS. Clearly, this cannot be the intention of NFU Scheme introduced by the Government. While it may be true that in some other cadre the Government has accepted NFU for those who also have an entry point in Group 'B' but that cannot be used to justify the applicants' case for two reasons, firstly because no negative equality can be drawn as held by the Hon'ble Supreme Court in Union of India and another Vs. International Trading Co. and another, (2003) 5 SCC 437 (para 14) and secondly because that issue is not before us and neither are those persons arrayed as parties before us.
21. Nothing has been brought on record by the applicant to show that a particular officer belonging to the Indian Administrative Service, junior to his batch by two years, has been brought to the Central Government in the same grade in which the applicant is working and is given the Grade Pay in Pay 12 OA 942/2014 Band-3 or Pay Band-4 to attract the provisions contained in OM dated 24.04.2009 referred in para 2 of our judgment, and thus in the absence of any material on record it cannot be held that a particular officer two years junior to the applicant belonging to Indian Administrative Service has also been given that benefit after being posted in that particular grade at the Centre.
22. Therefore, in the facts of the case, the impugned order dated 07.01.2013 cannot sustain for the simple reason that it is based on the premise that the NFU Scheme is only applicable to organized Group 'A' services, which has now been repelled by the Hon'ble High Court in G. J. Singh & others v Union of India & others (supra). Similarly, the other ground taken in support of the impugned order that similar demands could be raised from other services, would also not stand, as we have also noted in para 7 of this judgment that a benefit which is extended by some order or statute cannot be denied only on the ground that it would give rise to lay claims by others. In view of the above, we are constrained to quash the impugned order dated 07.01.2013.
23. Now coming to the second prayer claiming direction to the respondents to grant NFU to the officers working in AFHQ civil service, the same cannot be granted for the reasons given in para 20 of our judgment, and also for the reason that the applicant failed to show us that the contingencies for claiming such benefit had taken place. As noted earlier, NFU could be extended only on fulfilment of two conditions, i.e., (i) the officer 13 OA 942/2014 claiming benefit of NFU is member of a organized Group 'A' service, and (ii) if an officer belonging to the Indian Administrative Service junior to him by two years, is posted in that particular grade at the Centre, on which such member of organized Group 'A' service is working. In the instant case, nothing is before us whereupon a finding could be recorded that a particular officer of the Indian Administrative Service, junior to the applicant's batch by two years, has been brought to the Centre in the same grade in which the applicant is working and is given the Grade Pay in Pay Band-3 or Pay Band-4, and, therefore, in the absence of this, the relief prayed for is declined.
24. In the result, the Application stands partly allowed, i.e., the impugned order dated 07.01.2013 is set aside, but the second relief regarding grant of NFU to officers working in AFHQ civil service is rejected. There shall be no order as to costs.
( P.K. Basu ) ( Syed Rafat Alam ) Member (A) Chairman /dkm/