Gujarat High Court
Ahmedabad City Civil And Sessions Court ... vs State Of Gujarat & 2 on 18 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12845/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12845 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1768 of 2016
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AHMEDABAD CITY CIVIL AND SESSIONS COURT PRIVATE
SECRETARIES' ASSOCIATION....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS HARSHAL N PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHAH, AGP for the Respondent(s) No. 1 - 2
LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 3
MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/02/2016
COMMON ORAL ORDER
1. So far as the Special Civil Application No.12845 of 2014 filed by the 'Ahmedabad City Civil And Sessions Court Private Secretaries' Association' is concerned, the following reliefs have been prayed for in the petition.
"6(A) declare and hold that the para 4 of the Government Resolution dated 2.9.2011 is illegal, arbitrary and discriminatory and is in defiance of order dated 7.10.2009 of the Honourable the Supreme Court passed in I.A No.71A and allied matters in W.P.(c) No.1022 of 1989, so far it prescribing an option to be exercised for availing benefits either under the Shetty Pay Commission or 6th Pay Commission from and beyond 1.1.2006 and accordingly, same be quashed and set aside, and Page 1 of 19 HC-NIC Page 1 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER (B) direct the respondent authorities to implement the recommendations of Shetty Pay Commission qua the members of petitioner association by granting Rs.1000015200 to those Stenographers, GradeI who are serving as Private Secretaries and Rs.1200016500 to those Stenographers, GradeI who are serving as Principal Private Secretaries w.e.f.1.4.2003 and from the date of appointment who are appointed subsequently, with all consequential benefits including corresponding revision of pay, and (B1) to declare and hold that the members of petitioner association are entitled to retain their present post of Principal Private Secretary and Private Secretary/Stenographer GradeI respectively and they shall not be redesignated/ downgraded as Stenographer GradeII as provided in item No.6, 11 and 12 of ScheduleB of the draft recruitment rules known as "The NonJudicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2015 and same be amended accordingly, and (C) further be pleased to direct the respondent authorities to pay arrears of pay with interest at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (D) award the cost of this petition, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to take appropriate decision considering the representations made by the petitioner, and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case."
2. Mr. Hemang Shah, the learned counsel appearing for the High Court pointed out that so far as the relief in terms of 6(A) is concerned, the same has been taken care of by the judgment of the Supreme Court, dated 16.03.2015 delivered in the I.A. No.297 in I.A. No.71A in Writ Petition (Civil) No.1022 of 1989. It appears that during the pendency of this petition, a draft amendment was prayed for and the same has been allowed. By the draft amendment, the petitioners seek to challenge the Draft Rules framed by the High Court known as "The NonJudicial Page 2 of 19 HC-NIC Page 2 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER Officers And Staff of the Courts (Recruitment and Conditions of Service) Rules, 2015", which have been forwarded to the State Government for approval. Mr. Shah pointed out that the Government has raised few queries in that regard which the High Court will have to answer. It is only after all queries are answered, then the Rules will be published in the Gazette.
3. According to Ms. Pandya, the learned counsel appearing for the petitioners, the relief as prayed for in terms of Para6(B) has direct nexus with the challenge to the Draft Rules.
4. The peculiar facts that emerge from the materials on record are as under: • Present Status:
45 members of petitioner Association are direct recruit Stenographer, GradeI (ClassII) appointed between the period from 1991 to 2013.
• Present Payscale :
Rs. 650010500 (revised 930034800 grade pay Rs. 4400) • Promotion :
Senior members upon completion of 15 years are already promoted and upgraded as PPS in the pay scale of Rs. 10000 15200 (revised Rs. 1560039100 grade pay Rs. 6600).
• Introduction of Pay Commission :
First National Judicial Pay Commission (Known as Shetty Pay Commission) came to be introduced in the year 2003 on Page 3 of 19 HC-NIC Page 3 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER improvement of service conditions of nonjudicial staff in subordinate courts.
• Order of the Hon'ble Supreme Court dt. 7.10.2009 for implementation of recommendations of pay commission.
• Petition filed seeking benefits as per recommendations of Shetty Pay Commission as no effective steps were being taken at the end of authorities.
• Final Judgment dated 16.3.2015 passed by Apex Court giving directions to the State and High Court. (page: 97) Time limit granted upto 31.12.2015.
• Draft Recruitment Rules :
Pending petition draft recruitment rules known as "The Non Judicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2015" came to be prepared and also placed on record.
• It is submitted on behalf of Res. No. 3 that before actual fixation, finalization of those rules is must, which is recorded in the order dated 17.12.2015 of this Honourable Court. (page : 225) • In affidavit dated 6.1.2016 filed by Res. No. 3, it is stated that draft rules are forwarded to all the Principal Judicial Officer of the Subordinate Courts. (Page : 223 para 5) • Provision in draft rules :
Original Designation Present Designation Pay -scale
after rules
Principal Private English/ Gujarati 10,00015,200
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C/SCA/12845/2014 ORDER
Secretaries Stenographer GradeI
1560039100
GP 6600
Private Secretary/ English Stenographer 650010500
English Stenographer GradeII
GradeI 930034800
GP 4600
Private Secretary Gujarati Stenographer 650010500 Gujarati GradeII Stenographer GradeI 930034800 GP 4600 • Actions have been initiated as provided in the draft rules.
• In view of the process being undertaken in view of the draft rules, petitioners are likely to be affected adversely rather getting benefits of recommendations.
• Applicability of Rules:
PARTI "They shall come into force from the date of their publication in the Official Gazette."
• PARTIV
General Conditions
Clause 8 : Calculation and Requisition of Vacancies :
Schedule - 'A'
• Item 6, 11, 12
(Post of PPS is not shown in schedule)
Post Existing Payscale Revised payscale
Eng./ Guj. 1560039100 NIL
Steno GradeI 6600
English 930034800 NIL
Steno GradeII 4600
Gujarati Steno Grade 930034800 NIL
II 4600
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C/SCA/12845/2014 ORDER
MAIN GROUNDS OF CHALLENGE:
1. All members of petitioner association are directly recruited Stenographer GradeI and some of them are already promoted as Principal Private Secretaries as per prevailing rules/ policy/ standing instructions, which is now sought to be taken away in view of draft rules. There is no question of redesignation or reversion or downgradation the Private Secretaries / Stenographers GradeI to GradeII and PPS to GradeI as it was never the intent of Commission.
2. So far City Civil Court is concerned, right from beginning there is only one cadre i.e. Stenographer, GradeI. They all were possessing requisite qualification of having speed of 120 w.p.m. in case of English Steno / 90 w.p.m. speed in case of Gujarati Steno in Shorthand and typing speed which is provided in rules of 2015 to be seen for the purpose of upgradation.
3. Nature of work being performed by Stenographers in the Courts as compared to their counterparts in the State Secretariat is one of the important bases of introduction of Shetty Pay Commission.
In the State Government, vide Notification dated 23.1.2015, the rules called the Principal Private Secretary, ClassI in the State Service (Heads of Department) Recruitment Rules, 2015 is amended whereby word 'Fifteen years' are substituted by 'eight years'. Thus, in State Secretariat, post of Principal Private Secretary will be there but attempt is being made to take away post of Principal Private Secretary of Courts who are holding same Page 6 of 19 HC-NIC Page 6 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER upon their promotion and they will be once again put to their original post of Stenographer, GradeI, which is ineffect is reversion without there being any punishment.
4. In the report it is recommended that "in order to afford adequate promotional opportunities to Stenographers and also to provide experienced Stenographers to higher Courts, there must be minimum THREE grades of Stenographers in Subordinate Courts in all the States / U.Ts. corresponding to the three tire hierarchy of Courts viz.
(i) Civil Judge (JR. Div.); (ii) Civil Judge Sr. Div.); and (iii) District and Sessions Judge and similar cadres.
* Grade III Stenographer to Civil Judge (Jr. Division). * Grade II Stenographer to Civil Judge (Sr. Division) / Chief Judicial Magistrate.
* Grade I Stenographer to District Judge / Joint District Judge / Addl.District Judge.
* The Principal District & Sessions Judge / Principal Judge City Civil Court, be provided with One GradeI Stenographer.
In the Government Resolution dated 2.9.2011 as amended vide Government Resolution dated 29.10.2015, it is stated that as a general policy junior most Stenographers shall be attached to the junior Judicial Officer, middle level Stenographer shall be attached to the middle level judicial officer and senior level Stenographer shall be attached to senior level judicial officer.
In the City Civil & Sessions Court, from inception, there are judges belonging to the cadre of District Judges and Addl. District Judges and hence, only Stenographer GradeI are to be allotted to the Judges of the City Civil Court. the stenographers who are Page 7 of 19 HC-NIC Page 7 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER appointed in City Civil Court are attached to the Judges falling in the cadre of District Judges and Addl. District Judge, having vast pecuniary as well as criminal jurisdiction whereas, in the District Courts, where there are three folds of judiciary performing i.e. Jr. Division, Sr. Division and District Judges, to keep the stenographers of City Civil & Sessions Court at par with the Stenographers of District Court in Grade II where they are supposed to work with Sr. Division Judges, and in City Court where there is no post of Sr. Division Judges and where only District Judges and Addl. District Judges, it would not be proper and in the interest of justice to redesignate/reclassify/degrade/ downgrade them as Stenographers Grade II and put them in the pay band of Rs.6500/.
It also needs to be mentioned here that in City Civil Court as there are Judges belonging to the cadre of District Judge and Addl. District Judge, stenographers i.e. redesignated Stenographers Grade II of City Civil Court are posted with them or are on rotation and hence, they have to work with either the Judges falling under the cadre of the District Judge or Addl. District Judge, whereas they would be getting salary equal to the Stenographers, who are working with the Sr. Division Judges in District Courts, and hence there does not arise any question of dividing the stenographers of City Civil Court in two different grades and to redesignate them Stenographers Grade II and keep them at par with the Stenographers Grade II, working with Sr. Division Judges in District Court. Likewise, in the District Courts also, the Stenographer GradeI is allotted to the District Judge/ Addl. District Judge and therefore, also, it would be in the interest of justice not to redesignate/reclassify the Stenographers working Page 8 of 19 HC-NIC Page 8 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER on the establishment of the City Civil Court.
5. Redesignation of Stenographer, GradeI as GradeII would create a class within a class though originally appointed as GradeI and duties and functions are of same nature and even pay scales are same, which is irrational and violative of art. 14 and 16 of the Constitution of India.
6. It is settled law that rules can not have retrospective applicability. Hence, Rules though not applicable as same are yet to be finalized and published in the gazette, action is being taken to re designate/revert/downgrade the petitioner which is not permissible.
7. It is also the settled law that benefit granted under prevailing rules/policy can not be taken away upon framing of new rules or policy.
8. The benefits under Pay Commission are granted from the date of 1.4.2003. The Res. No. 3 has with its last affidavit, placed on record three test cases, which shows that senior most employees are also put at the same stage in the pay scale at par with their juniors irrespective of their length of service, which would also affect their future benefits, hence, notional increments are required to be granted.
9. Adverting to the pay scale of Stenographer Grade I (Principal Private Secretary Class I) as mentioned in the Shetty Pay Commission, the Stenographer Grade I is falling in the lowest pay scale in Group A/Class I. It is also mentioned in the Report that as Stenographer Grade I is already in the pay scale of Rs.10,000 Page 9 of 19 HC-NIC Page 9 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER 15,200, next higher pay scale Rs. 1200016500 is recommended. It is also mentioned in the Report that Registrar/Addl. Registrar of City Civil & Sessions Court who is in the pay scale of Rs. 10,000 15,200 may also be assigned the higher pay scale of Rs. 12,000 16,500. It needs to be mentioned here that the Registrar working on the establishment of the District Court falls under the head of Chief Administrative Office and the post of the Chief Administrative Office is included in Group 'A' /ClassI and the pay scale of the post, as far as possible, may be the lowest pay scale admissible to the Group/Class. It is further mentioned in the report that the pay scale of CAO should be higher than the pay scale of all other staff working in the District Courts Administration. Meaning thereby, the salary of all the other staff working on the establishment of the City Civil Court and that of the District Courts Administration has to be less than that of the CAO. It needs to be mentioned that the Registrar of City Civil Court is the post of JMFC or Jr. Division Judge and the pay scale assigned to them is definitely more than Rs.1200016500. The Registrars working on the establishment of District Court attains that post after being promoted from the post of Superintendents i.e. Shristedars and hence, they are put in the pay scale of Rs.1200016500. Thus, once again it is to be stated that as the entire structure of the District Court differs from that of the City Civil Court, there does not arise question of not putting the Principle Private Secretaries i.e. Stenographers Grade I, as per the Report, working on the establishment of the City Civil Court in the pay scale of Rs.1200016500 as it would amount to depriving them of their legitimate right and thus, it is nothing else but, violation of Article 14 and 16 of the Constitution of India.
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10.Thus, members of petitioner association are entitled to the relief prayed for in petition. Those PPS are entitled to receive pay scale of Rs. 1200016500 as recommended by Commission and rest are entitled to receive Rs. 1000015200 without putting them on lower cadre.
5. So far as the Special Civil Application No.1768 of 2016 is concerned, the same has been filed by a Principal Private Secretary (P.P.S.), (Stenographer GradeI, ClassI) appointed in the year 1992 and who completed eight years of service in the year 2000. According to The Rules, 2015, on completion of eight years of service, a Private Secretary is entitled to the higher payscale i.e.P.P.S., GradeI (ClassI).
6. It is pointed out by Mr. Gandhi, the learned counsel appearing for the petitioner that according to the Shetty Pay Commission recommendations, all judges in the cadre of District Judge and Joint District Judges are to be provided with GradeI Stenographers (Private Secretary).
• So far as City Civil & Sessions Court, Ahmedabad is concerned, since 1960 all the appointees on the post of City Civil Judge are in the cadre of District Judge and/or Joint District Judges only. Therefore, as such, they are entitled to the services of only Stenographer, GradeI. Therefore also question of any reversion does not arise and cannot be effected.
• All Stenographers holding posts of Stenographer, GradeI, are doing same work under the same employer and discharging identical duties and performed same and/or similar functions and Page 11 of 19 HC-NIC Page 11 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER at all times all the Stenographers throughout were and/or are drawing the same payscale. That being so, there is little or no justification in putting 50% of them in a higher scale of pay and 50% others in a lower scale of pay. This grouping is without any intelligible differentia but only on the ground of length of service. Therefore, this type of grouping violates Article 14 of the Constitution. (P. Savita & others Vs. Union of India, AIR 1985 SC 1124).
• Even if the Report of Hon'ble Shetty Pay Commission recommendations is looked into, it has framed the Model Rules therein and if the same is looked into, it clearly provides that the said Rules shall come into effect on and from the date it is published by the relevant State Governments. It is, therefore, crystal clear that even the Hon'ble Mr. Justice (Retd.) Shetty was also clear that the said Rules shall come into effect prospectively and not retrospectively, in spite of the fact that the payscales are recommended to have retrospective effect.
• This also clearly goes to show that Hon'ble Shetty Pay Commission has never intended to downgrade and/or redesignate Private Secretary, GradeI (ClassII) and/or Principal Private Secretary, GradeI (ClassI) (as the case may be) and that it was the clear intention of the Hon'ble Shetty Pay Commission that in order to create more promotional avenues, in future, 50% of the Stenographers, GradeII who have completed 3 years of continuous service, shall be promoted to the post of Stenographer, GradeI. • Moreover, the Hon'ble High Court has framed Rules, 2015. It is a Page 12 of 19 HC-NIC Page 12 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER settled position of Law that the existing Rules, the amended Rules or the law to be passed by the Legislature, should not contravene the provisions of the Constitution and that if a rule is contrary to Articles 14, 16, 19, 310, 311 and 312 of the Constitution of India, it will have no effect and the action taken under it will be declared void.
Furthermore, it is also a settled position of law that all such Rules shall come into effect only prospectively i.e.from the date of its publication in the Official Gazette and not retrospectively. Therefore, when the Rules2015 are framed and it is yet to be published in the Official Gazette of the Government of Gujarat, in that case, the same cannot prejudicially affect the petitioner and the petitioner can, under no circumstances, be reverted on and from 01.04.2003.
Therefore, when the Rules are to come into effect retrospectively, then, in no circumstances the petitioner can be downgraded and/or redesignated as Private Secretary, GradeII as on 01.04.2003.
• In the alternative, it is submitted that as per the seniority list of 2003, where the total sanctioned posts are to be shown or considered and not the number of persons who are holding the posts. In 2003 there were 43 sanctioned posts in the City Civil & Sessions Court (English 23 and Gujarati20), including temporary posts. As per this list, even if 50% quota is considered, then 21 posts would remain GradeI (ClassI). In the said list, the name of the petitioner is shown at Sr.No.16. The mistake or fallacy in the list is, in spite of 43 posts at that time, only the total number of Page 13 of 19 HC-NIC Page 13 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER persons serving at the relevant time (both English and Gujarati) is shown as 31 in the document AnnexureA. Therefore, the barrier of 15, which is applied and the petitioner has been excluded from the consideration and giving effect. Therefore, that list is bad.
• If the Shetty Commission Recommendations are interpreted as stated in letter AnnexureA or as per the Rules, 2015 framed by this Hon'ble High Court, then the petitioner who is appointed as Private Secretary, GradeI (ClassII) on and from 22.03.1992, would be reverted to the post of Private Secretary, GradeII, which is a ClassIII post, which is not contemplated in the Shetty Pay Commission. Moreover, it is in violation of Article311 of the Constitution of India and as such, is contrary to law inasmuch as, once the post is held namely, GradeI ClassII in which an employee is placed, then, in that case, question of reverting him to the post of GradeII ClassIII does not arise. Here again, the petitioner has already been further promoted to the post of Principal Private Secretary, GradeI (ClassI) on and from 21.08.2008 and has been given the payscale of Rs.10000325 15200 (Prerevised) and Rs.1560039100 (revised).
• Submissions Regarding Principal Private Secretary (PPS - Class I) So far as the posts of Registrar and Additional Registrar of City Civil & Sessions Court is concerned, Shetty Pay Commission has recommended the payscale of Rs.1200016500. However, this is their Feeder Cadre post i.e. their Entry Level pay band.
However, so far as the Principal Private Secretary (PPS - ClassI) is concerned, their Feeder Cadre post is Private Secretary, GradeI Page 14 of 19 HC-NIC Page 14 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER (ClassII) which is given a payscale of Rs.1000032515200 with Grade Pay of Rs.6600 as per the Shetty Pay Commission recommendations. But, after continuous service of 15 years (which is now reduced to 8 years as per the Rules, 2015), in order to avoid any stagnation, as there is no further promotion for Private Secretary, GradeI (ClassII), Government, in consultation with the Hon'ble High Court of Gujarat, has decided to promote 20% of such Private Secretary, GradeI (ClassII) to the post of Principal Private Secretary, GradeI (ClassI). Therefore, the post of Principal Private Secretary, GradeI (ClassI) is given as and by way of a Accredited Career Progress (ACP) only to avoid stagnation and in order to create promotional avenues to the post of Private Secretary, GradeI (ClassII), which is recommended to be continued as per the recommendations of the Shetty Pay Commission.
Therefore, as such, there cannot be any comparison between the posts of Registrar/Additional Registrar with the post of Principal Private Secretary, GradeI (ClassI).
• The recommendations of Shetty Pay Commission are given effect from 01.04.2003.
As per the recommendations of Shetty Pay Commission, a pay scale of Rs.1000032515200 is recommended to the post of Private Secretary, GradeI (ClassII). Pay fixation along with notional increment be given effect in the said scale.
All States are recommended to give minimum of two ACPs. However, the States which provide for more than two ACPs are recommended to continue the same.
Page 15 of 19HC-NIC Page 15 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER The post of Principal Private Secretary, GradeI (ClassII) is given to the post of Private Secretary, GradeI as and by way of Selection Grade i.e. ACP, which is recommended to be continued by the Shetty Pay Commission recommendations.
Therefore, when the post of Private Secretary, GradeI (ClassII) is recommended the payscale of Rs.1000032515200, then, automatically the next ACP to the said post would be Rs.12000 37516500, which is recommended by the Shetty Pay Commission for all GroupA/ClassI posts. Therefore, since the post of Principal Private Secretary, GradeI (ClassI) is also given a ClassI status and that since it is given as and by way of an ACP to the post of Private Secretary, GradeI (ClassII), the said pay scale of Rs.1200037516500 should be given to the petitioner who is Principal Private Secretary, GradeI (ClassI).
Therefore, as per the existing scenario, as on 01.04.2003 the petitioner being a Private Secretary, GradeI (ClassII) was entitled to get the payscale of Rs.1000032515200 and upon his promotion to the post of Principal Private Secretary, GradeI (ClassI) on and from 21.08.2008, he is entitled to the payscale of Rs.1200037516500 as has been recommended by the Shetty Pay Commission.
Discrepancies in the Rules, 2015 framed by the High Court:
However, the Hon'ble High Court has proposed to reduce the period of 15 years to be promoted to the post of Principal Private Secretary, GradeI (ClassI) to 8 years. In that case, the petitioner has come to be appointed on and from 22.03.1992 and therefore Page 16 of 19 HC-NIC Page 16 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER has completed his 8 years service on 21.03.2000. Therefore, as per the Rules, 2015 framed by this Hon'ble High Court, the petitioner would become entitled to the payscale of Rs.10000 32515200 on and from 01.04.2000.
Submissions against Reduction in Rank:
• It is also a settled position of law by the Hon'ble Supreme Court that when a servant has right to a post or to a rank either under the terms of the contract of employment express or implied or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. [Purshotam Lal Dhingra Vs. Union of India, AIR 1958 SC 36(1)] In the present case, the petitioner is appointed as Private Secretary, GradeI (ClassII) on and from 22.03.1992 as per the established procedure and Recruitment Rules existing at the relevant time and has been thereafter further promoted to the post of Principal Private Secretary, GradeI (ClassI). Therefore, as such, petitioner has a right to the post of Private Secretary, Grade I (ClassII) as well as to the post of Principal Private Secretary, GradeI (ClassI) and therefore, reduction of the petitioner to a lower post of Private Secretary, GradeII or to the post of Private Secretary, GradeI (ClassII) (as the case may be) is by itself and prima facie a punishment and that it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. The real hurt does not lie in the consequences that follow. Protections of Article311 are not Page 17 of 19 HC-NIC Page 17 of 19 Created On Sun Feb 21 02:34:30 IST 2016 C/SCA/12845/2014 ORDER against harsh words but against hard blows. It is the effect of the order alone that matters. Article 311 applies whenever any substantial evil follows over and above a purely "contractual one". It does not matter whether the civil consequences are one of the "Penalties" prescribed by the rules or not. The real test is, do they in face ensue as a consequence of the order made. Therefore also the petitioner cannot be reduced in his rank.
• The expression "reduction in rank" in Article 311(2) has an obvious reference to different grades in service. The expression "reduction in rank", within the meaning of Article311(2) as the expression itself suggests, means reduction from a higher to a lower rank or post. But whether in this process an officer can be reduced from a higher rank or a post to a rank to which he never belonged and to a post which he never held? The answer is an absolute No. The order must have nexus with the post held by the officer concerned, from which he had been promoted to the post. If such an officer had not held that post or was not member of that cadre, then he cannot be reverted to a lower cadre to which he did not belong or to a lower rank which he did not hold at any stage.
In the present case also, the petitioner never held the post of Private Secretary or Stenographer, GradeII or was not member of that cadre at any point of time and therefore, the petitioner cannot be reverted to a lower cadre - Private Secretary, GradeII to which he did not belong or to a lower rank which he did not hold at any stage. (P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, AIR 1993 SC 1321 : (1993) 1 SCC 419.Page 18 of 19
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7. I am of the view that before proceeding further with the adjudication of both the writapplications, the High Court on its administrative side should look into all these issues and take an appropriate decision in that regard. Any decision taken by the High Court on the administrative side will facilitate this Court to adjudicate the petitions on merits, if necessary.
Let these matters be notified for further hearing on 10.03.2016 on top of the board. On the next date of hearing, Mr. Shah, the learned counsel appearing for the High Court shall apprise the Court of developments, if any, in the matter.
(J.B.PARDIWALA, J.) aruna Page 19 of 19 HC-NIC Page 19 of 19 Created On Sun Feb 21 02:34:30 IST 2016