Central Administrative Tribunal - Delhi
D K Gupta vs M/O Communications on 17 October, 2024
(1) O.A. No.4165/2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.4165/2015
Reserved on :19.09.2024
Pronounced on :17.10.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Sanjeeva Kumar, Member (A)
D.K.Gupta Age 61 years
S/o Sri R.L.Gupta
613, New-Ashiana CGHS
Plot No.10, Sector-6
Dwarka, New Delhi-110075. ...Applicant
(Applicant in person)
VERSUS
Union of India
Through Secretary
Department of Telecommunications,
Sanchar Bhawan, 20, Ashoka Road,
New Delhi-110001. ...Respondent
(By Advocate :Shri Subhash Gosai)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
"a) To direct the Secretary's Dept. of Telecom to grant HAG (NFSG) w.e.f. 15/12/2009 to applicant.
b) To direct the Secretary's Dept. of Telecom to review the recommendation of DPC for the post of Sr. DDG (BW) held on 25/7/2012
c) Award the cost of the Original Application to the applicant and/or
d) Award exemplary cost for not replying the notice under section 80-C of CPC as per the principles laid down by the Honourable Supreme Court of India (2) O.A. No.4165/2015
e) Pass such other and further orders this Hon'ble Tribunal may deem fit in the facts and circumstances of the case."
2. The applicant joined the service of Department of Telecommunications as Assistant Executive Engineer (Civil) in the year 1977. He was promoted to the Senior Administrative Grade (SAG) w.e.f. 15.12.2008. He became eligible to be considered for promotion to Higher Administrative Grade (HAG) in the year 2009. In terms of the scheme framed by the Government of India, a Group "A‟ officer in the Organized Services shall be entitled to be conferred the HAG on non functional basis in case an IAS officer, who is junior to him by two years, is posted in the Central Service, with that grade. Conferment of such benefits shall be on the basis of evaluation as to eligibility by the Screening Committee.
3. The Screening Committee, for the purpose of determining eligibility to confer the HAG for the applicant and other similarly placed officers, met on 19.12.2012. However, on finding that the ACR of the applicant for the year 2007-08 was below the benchmark, he was not found fit. He was permitted to make a representation for upgradation of the concerned ACR. The applicant has accordingly submitted representation. It is also stated that (3) O.A. No.4165/2015 the Departmental Promotion Committee (DPC) held on 22.07.2015 but its recommendations were not accepted. In this background, the applicant filed O.A.No.4165/2015, seeking a direction to the respondent to grant him the benefit of HAG w.e.f. 15.12.2009 and to review the decision on recommendations of DPC held on 22.07.2015 (wrongly mentioned in the prayer as 25.07.2012). The O.A. was disposed of vide Tribunal's order of 03.01.2020 wherein the following has been held:
"9. We, therefore, dispose of the O.A. directing that the representation made by the applicant to the competent authority for upgradation of his ACR for the period 2007-08 shall be disposed of within three months from the date of receipt of a copy of this order, and depending upon the outcome thereof, further steps, if necessary, in the context of conferment of HAG on non-functional basis, shall be considered. There shall be no order as to costs."
4. The applicant subsequently filed a Review Application, seeking review of the above order. The same was disposed of as follows:
"2. By filing O.A. No. 4165/2015, the applicant sought a direction to the respondent to grant him the benefit of HAG w.e.f. 15.12.2009 and to review the decision on recommendations of the DPC held on 22.07.2015 (wrongly mentioned in the prayer as 25.07.2012). The O.A. was disposed of by this Tribunal vide order dated 03.01.2020 by directing the Competent Authority to decide the applicant's representation for upgradation of his ACR for the period 2007 08 within a period of (4) O.A. No.4165/2015 three months from the date of receipt of a copy of the order.
3. The review applicant has annexed Office Memorandum dated 02.12.2016 as Annexure M-1 at page 39. The Office Memorandum dated 02.12.2016 reveals that the applicant's representation against below benchmark gradings of ACR for the period 2007-08 was already considered and disposed of. This fact, however, could not be brought to the notice of the Division Bench of this Tribunal, as the applicant could not remain present at the time of final hearing of the O.A.
4. The fact remains that the applicant's representation, which was directed to be disposed of, has already been decided by the respondents. Thus, there is an error apparent on the face of the record. In view of the decision on the applicant's representation, the said O.A. deserves to be heard on merits.
5. We, accordingly, allow this Review Application and recall the order dated 03.01.2020 passed in O.A. No. 4165/2015."
5. Learned counsel for the respondents reiterating the claim made in the counter reply submits that a proposal for grant of HAG to the applicant along with other officers i.e. Shri N.K.Tyagi and Shri Vinay Saran 1997 batch P&T Building Works (Civil) officers was taken up with DoP&T for grant of Non-Functional Upgradation (NFU) to the officers w.e.f. 01.01.2010 in terms of DoP&T OM dated 24.04.2009. As evident from the counter reply, the DoP&T examined the proposal and made certain observations as follow:
(I) The P & T Building Works Rule are still in the process of revision. As such, the revised eligibility conditions as in DoP&T OM dated 18.01.2011 cannot (5) O.A. No.4165/2015 be applied in this case. Grant of NFU shall be subject to meeting the eligibility conditions as in the existing Rules.
(II) In case of officers do not meet the eligibility conditions on the dates circulated in DoP&T OM indicating the posting of IAS officers in the Centre, then the officers shall be considered for grant of NFU from 1st day of the next year vacancy year during which they become eligible. In the present case, Sh.
D.K. Gupta, a 1977 batch officer, may be considered for grant of NFU in HAG scale from 01.04.2012.
6. Learned counsel for the respondents argues that in view of the observations of Nodal Ministry, i.e. DoP&T, the applicant was not eligible for grant of NFSG with effect from 01.01.2010. Initially he was not recommended for NFU in HAG by the Screening committee due below par ACR for a particular year. But later he represented against the same, which was positively disposed in his favour. Subsequently vide order dated 28.07.2017 he was granted NFU in HAG with effect from 01.04.2012. But he cannot be given the benefit of NFU from 03.12.2009 as the extant recruitment rules applicable to him do not provide for it.
7. We have carefully examined the contents of the pleadings and such arguments that have been adduced by the parties. We have also listened to the arguments advanced by their respective counsel and on the basis thereof, we find only following issue needs to be resolved in order to arrive at a satisfactory conclusion of the OA: (6) O.A. No.4165/2015
Whether the applicant fulfilled the requisite for eligibility under the NFU Scheme and if there has been any discriminatory treatment to the applicant in any manner whatsoever inasmuch as person(s) placed similarly have been given the benefit of NFU in the manner claimed by the applicant.
8. There is no dispute that the applicant was granted SAG with effect from 15.12.2008. The applicant while relying upon OM dated 18.01.2011 issued by the DoP&T for NFU applicable with effect from 15.12.2009 inasmuch as by that date he had completed more than 25 years of regular service in Group 'A' and more than 1 year of service in SAG. He further submits that NFU is to be given in pursuance of aforesaid DoP&T OM.
9. However, learned counsel for the respondents has drawn our attention to Para-3 of the said OM dated 24.04.2009, which states that appropriate amendments in the Service Rules may also be carried out, under which the cadre controlling authorities of the various Organized Group 'A' Engineering Services may initiate action for appropriate amendments in the Service Rules. It is submitted that as per Post and Telegraph Building Works (Group A) Service Rules 1994 , the criterion for promotion to the post of Sr. Deputy Director is as follows:
"Officers in Senior Administrative Grade in all the 3 sub cadres viz. Civil, Electrical and Architectural with 3 years regular service in the grade."(7) O.A. No.4165/2015
10. It is further submitted that since the criteria for promotion to the post of Sr. Deputy Director, which is at HAG level, is 3 years regular service in the SAG, the applicant could have been considered only on completion of the stipulated 3 years in SAG to enable him to get NFU in HAG scale. Since he was granted SAG scale on 15.12.2008, he was rightly granted NFU in HAG from 01.04.2012.
11. Learned counsel for the respondent also clarifies that the process for amending the RRs was initiated, however, it was returned by DoP&T stating that the process for restructuring the cadre in Department of Telecom was ongoing and after the cadre restructuring, the proposal for amendment of RR would be addressed. The cadre review process, which began in 2013, was only completed in November 2019, and the service was declared as 'dying cadre'. Some complaints regarding number of posts were raised in 2019, leading to delay in finalization of number of posts in each grade and the RR amendment process could not progress. The issue regarding the complaint was settled in July, 2023. As a result, the process for amendment in RR is now being restarted and will be notified shortly after approval of the competent authority.
(8) O.A. No.4165/2015
12. On the contrary, the applicant has submitted that he cannot be blamed for any delay in notification for revision of RR and he should have been given the NFU in HAG in the light of OM dated 24.04.2009 and subsequent OMs. The applicant also argues that he is entitled for NFU as he had completed more than 25 years of regular service in Group 'A' and more than 1 year of service in SAG, on the prescribed date.
13. We have perused the OM of 24.04.09 of DoP&T and also the subsequent OMs dated 15.12.2009 and 18.01.2011 issued in continuation of the said OM.
14. OM of 24.04.2009 captioned - Non-Functional Upgradation for Officers of Organized Group 'A' Services in PB-3 and PB-4, reads as follows:
"Consequent upon the acceptance of the recommendations of the Sixth Central Pay Commission, the following orders are issued:
(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 belong to batches of Organised 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.
(ii) Grant of higher scale would be governed by the terms and conditions given in Annex-I. (9) O.A. No.4165/2015
(iii) Appropriate amendments in the Service Rules may also be carried out.
(iv) Establishment Division of this Department will issue orders from time to time, in consultation with the Establishment Officer, intimating the batch of the officers belonging to the India Administrative Service who have been posted at the Centre in the various grades of PB-3and PB-4 as well as the date of posting of the first officers belonging to the batch.
2. Grant of higher scale (i.e. pay band and/or grade-pay) under these instructions would be w.e.f. 1.1.2006, wherever due and admissible."
15. We have also perused the DoP&T OM dated 15.12.2009 which provides the following for grant of NFSG to HAG level officers:
"(ii) For promotion to HAG level, the eligibility requirement shall be Officers in the SAG with 3 years' regular service in the grade OR Officers with 25 years' regular service in Group 'A' posts in the service out of which at least 1 year regular service should be in the SAG."
The aforesaid OM also states that the cadre controlling authorities of the various Organized Group A Services may initiate action for appropriate amendments in the Service Rules.
16. Another OM was issued by the DoP&T on 18.01.2011 with regard to grant of NFU to SAG/HAG Grades in organized Group 'A' Engineering Services, a Service to which the applicant belongs. For granting NFU to HAG (10) O.A. No.4165/2015 (Rs.67000-79000) level, the following eligibility requirement was prescribed:
"Officers in the SAG (PB-4 Grade Pay Rs.10000/-) with 3 years' regular service in the grade OR Officers with 25 years' regular service in Group 'A' posts in the service out of which at least 1year regular service should be in the SAG."
The aforesaid OM also stated that the cadre controlling authorities of the various Organized Group A Services may initiate action for appropriate amendments in the Service Rules.
17. Further DoP&T OM dated 01.07.2010 on the same subject mentions that there is a slight change in the date of posting of first officer of IAS cadre in the Centre in the grades of Additional/Joint Secretary, and a revised list was issued with a request to take necessary action for grant of higher scale for the officers belonging to batches of Organized Group A Services that are senior by two year or more and have not so far been promoted to that particular grade in accordance with the provisions of OM of 24.04.2009 revised date of the 1st 1979 batch of IAS officer was indicated as 03.12.2009. The applicant claims that he belongs to 1977 batch and he was due for NFU when 1st 1979 batch of IAS officer was posted as Additional Secretary in the Central Government which was 03.12.2009 (11) O.A. No.4165/2015 and therefore, the applicant was due for NFU with effect from same date i.e. 03.12.2009. He also draws strength from the OM aforementioned OM of the DoP&T of 18.01.2011 as he was an officer with 25 years' regular service in Group 'A' posts in the service out of which 1 year regular service was in the SAG.
18. Rebutting the claim of the Respondents that the criterion of 25 years service and one year regular service in SAG did not apply in his case because of pending revision of recruitment rules, the applicant, during the course of hearing, draws our attention to the orders pertaining to grant of NFU to one Vinod Kumar Hirna who was granted SAG scale w.e.f. 22.08.2017 and thereafter on completion of one year regular service in SAG, on 24.04.2019 he was granted HAG scale by the respondents. He submits that these orders are contrary to the argument advanced by the learned counsel for the respondents wherein pendency of RRs is cited as the reason for denying NFU to the applicant with effect from 03.12.2009.
19. In response, the Respondent through his additional affidavit dated 9thSeptember, 2024 has submitted the following to explain the grant of NFU to said Shri Vinod Kumar Hirna:
(12) O.A. No.4165/2015
"As per DOPT OM No. AB.14017/61/2008-Estt. (RR)Pt. dated 18.01.2011 (Annexure R/4), the eligibility requirements for promotion to HAG in the Pay Band of Rs. 67000-79000/- has been prescribed as "Officers in the SAG (PB-4 Grade Pay Rs.10000) with 3 years' regular service in the grade OR Officers with 25 years' regular service in Group 'A' posts in the service out of which at least 1-year regular service should be in the SAG". The cadre controlling authorities of the various Organized Group 'A' Engineering Services may initiate action for appropriate amendments in the Service Rules. Accordingly, the requisite amendments in Service Rules were initiated and however the amendments could not be concluded due to absorption of officers in BSNL, completion of Cadre Review and other administrative process. In view of above and other instructions/guidelines issued by DoPT regarding grant of NFU and meeting of the eligibility criteria for the grant of NFU, Shri Vinod Kumar Hirna was granted NFU with the approval of the Competent Authority."
20. However, we fail to understand as to how NFU was given after completion of one year in SAG to similarly placed said Shri Vinod Kumar Hirna, if the ground for denying the same to the applicant was non-finalization of RRs.
21. Learned counsel for the Respondents draws our attention to the order of the Hon'ble Supreme Court in Directorate of Film Festivals and Others vs. Gaurav Ashwin Jain & Others, (2007) 4 SCC 737 wherein it has been held as under:
"When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or (13) O.A. No.4165/2015 benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. The principle has been stated by this Court in Chandigarh Administration v. Jagjit Singh [1995 (1) SCC 745] thus :
"Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be (14) O.A. No.4165/2015 corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course
- barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well- accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a similar action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each (15) O.A. No.4165/2015 case must be decided on its own merits, factual and legal, in accordance with relevant legal principles."
22. The central theme of the aforesaid judgment is that if a similarly situated person has been illegally granted any relief, it cannot be taken as ground to grant the same to another person, as it would tantamount to perpetuation of an illegality which is impermissible in law.
23. However, the learned counsel for the Respondents neither vide the above submission nor during the hearing has stated that there was any illegality in granting NFU to said Shri Vinod Kumar Hirna, which was done with the approval of the competent authority. Since there was no illegality involved in granting of NFU to the aforementioned person, the ratio of the cited judgment does not apply.
24. On the other hand, the applicant and Shri Vinod Kumar Hirna, who was granted NFU, are similarly placed in terms of length of service in as much as both of them have put in 25 years regular service and one year in SAG as Group A officers, but they were not accorded same treatment as the applicant was denied the benefit of NFU with effect from 15.12.2009 as per his entitlement. To (16) O.A. No.4165/2015 our mind, this act of the Respondents is without any justification and discriminatory.
25. In view of above, the OA is allowed. The applicant is entitled for grant of HAG (NFSG) benefit with effect from 15.12.2009, subject to meeting the other relevant criteria in accordance with rules. The competent authority, amongst the Respondents, is directed to do the needful in this regard as expeditiously as possible and preferably within a period of two months from the date of receipt of a certified copy of this order. No order as to costs.
( Sanjeeva Kumar ) (Justice Ranjit More)
Member (A) Chairman
/kdr/