Karnataka High Court
Union Of India vs Sri Austine Eapen Ancheril on 22 June, 2024
Author: Chief Justice
Bench: Chief Justice
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT APPEAL No.59 OF 2024 (S-RES)
BETWEEN:
1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110001.
2. THE DIRECTOR GENERAL,
INDO TIBETAN BORDER POLICE,
CGO COMPLEX,
BLOCK - 2, LODHI ROAD,
NEW DELHI - 110003.
3. THE DEPARTMENT OF PERSONNEL
AND TRAINING (DOPT),
MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCES AND PENSION,
NORTH BLOCK,
NEW DELHI - 110001.
(REP. BY ITS SECRETARY).
...APPELLANTS
(BY SRI K. ARAVIND KAMATH, ASGI A/W
SRI CHANDRACHUD A., CGC)
AND:
SRI AUSTINE EAPEN ANCHERIL,
S/O LATE EAPEN J. ANCHERIL,
AGED ABOUT 64 YEARS,
2
A3P02, DLF WESTEND HEIGHTS,
AKSHAYANAGAR,
BENGALURU - 560068.
...RESPONDENT
(BY SRI AUSTINE EAPEN ANCHERIL, PARTY-IN-PERSON)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT R/W RULE 27 OF WRIT
PROCEEDINGS RULES PRAYING TO ALLOW THE WRIT APPEAL
AND SET ASIDE THE ORDER DATED 25/09/2023, PASSED BY THE
LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WP
No.19409 of 2022.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.06.2024, THIS DAY K. V. ARAVIND J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
This intra-court appeal under Section 4 of the High Court Act, 1961, against the order dated 25.09.2023 in Writ Petition No.19409 of 2022.
2. The respondent is the petitioner-party in person and the appellants are the respondents before learned Single Judge.
3. The parties are referred to as per their ranks in writ petition for convenience.
4. Brief facts, The petitioner joined as Group-A Executive Cadre Officer of the Indo Tibetan Border Police Force on 12.12.1987 and retired on superannuation on 28.02.2019 as Inspector General. 3
5. The Government of India accepting the recommendation of 6th Central Pay Commission provided for the Non Functional Financial Upgradation ['NFFU'] to Organised Group-A Services [OGAS'] .
6. The petitioner claimed NFFU with effect from 18.02.2009 on the basis of Office Memorandum dated 21.05.2009. The enclosure to the office memorandum provided for NFFU with effect from 18.02.2009 to the batch of 1989 Administrative Officers. The respondents granted the benefit of NFFU to the petitioner only from 01.04.2018.
7. Aggrieved against the denial of NFFU with effect from 18.02.2009, petitioner preferred Writ Petition No.19409 of 2022. Learned Single Judge by order dated 25.09.2023 directed the respondents to grant the petitioner NFFU with effect from 18.02.2009. Being aggrieved against the order of learned Single Judge, the respondents are before this Court in this appeal.
8. We have heard Sri. K. Aravind Kamath, learned Additional Solicitor General of India on behalf of Sri. A.Chandrachud, learned Central Government Counsel for the appellants and the 4 respondent-Sri Austine Eapen Ancheril appearing as party-in- person.
9. Learned Additional Solicitor General submits that the Office Memorandum dated 24.04.2009 [Annexure-A1] was issued consequent upon acceptance of the recommendation of 6th Central Pay Commission. He submits that NFFU was payable to the officers belonging to batches of Organised Group-A Services who are senior by two years or more and have not so far been promoted to that particular grade. Such senior officers would be granted the same grade on non-functioning basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre. He further submits that to give effect to the recommendation, appropriate amendments in the Service Rules were also contemplated. He further submits that NFFU was subject to terms and conditions. The officers to be eligible for NFFU should fulfill the prescribed eligibility criteria and promotional norms including the benchmark for Office to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders. The condition for promotion amongst Deputy Inspector General of Indo Tibetan Border Police Force is, the officer should have rendered two years of service in 5 the grade with total 24 years of Group-A Services and being in medical category.
10. Learned Additional Solicitor General further submits that by Notification dated 05.10.2010, Indo Tibetan Border Police Force, General Duty Cadre [Group 'A' Posts] Recruitment Rules, 2010, was notified. As per this Rule, to consider for promotion amongst Deputy Inspector Generals of Indo Tibetan Border Police Force, the concerned should have two years regular service as Deputy Inspector General and ought to have undergone pre-promotional course or courses prescribed by the department.
11. Learned Additional Solicitor General referring to the pre- amended rules submits that the petitioner joined services on 12.12.1987. As per the pre-amended rules, 24 years of Group-A Services was completed on 12.12.2011. He submits that the petitioner was not qualified to be promoted under the pre-amended Rules i.e. Rules 1999, as he has not completed 24 years of Group-A Services. The petitioner was not eligible for promotion even as per the post-amended Rules i.e. Rules 2010 as the petitioner has not undergone pre-promotional course. He submits that the petitioner has undergone training in the year 2017. In view of the training, the petitioner was considered eligible for NFFU and 6 the same is granted from 01.04.2018. Thus, submits that the order of learned Single Judge directing to extend NFFU from 18.02.2009 on the basis of Office Memorandum dated 21.05.2009 is incorrect. He further submits that learned Single Judge committed an error in not appreciating that the petitioner was eligible for NFFU subject to compliance of terms and conditions of the Office Memorandum dated 24.04.2009. The petitioner was eligible for promotion only on completion of training in the year 2017.
12. Per contra, the petitioner Sri. Austine Eapen Ancheril-party in person submits that the terms and conditions imposed in the Office Memorandum dated 24.04.2009 are not applicable.
13. The petitioner adverting to the Office Memorandum dated 15.12.2009 submits that in compliance of the recommendation of the 6th Central Pay Commission, eligibility criteria of OGAS for promotion has been amended. As per the said amendment, 17 years regular service in Group-A post is the prescribed qualification for promotion. The petitioner has completed 17 years of regular services.
14. The petitioner further submits that Rules 2010 mandates Deputy Inspector Generals to undergo pre-promotional course or 7 courses as prescribed by the department. As per the respondents, the petitioner was eligible for promotion in the year 2011. Undergoing pre-promotional course is not as per the choice of the petitioner. Pre-promotional course is to be offered by the respondents. The respondents having not offered pre-promotional course until 2017, cannot be permitted to contend that the petitioner is eligible for NFFU from 2017 onwards. The delay in not providing pre-promotional course from 2011-2017 is attributable to the respondents themselves.
15. We have considered the submissions of learned counsel for the parties. Perused the material placed before the Court.
16. The controversy regarding the applicability of benefits contemplated under the 6th Central Pay Commission by way of NFFU to All India Services and other Organised Central Group-A services was the subject matter before the Delhi High Court in Writ Petition (C) 153 of 2013 & allied matters, [G.J. Singh and others vs. Union of India]. The Delhi High Court by judgment dated 03.09.2015 held that All India Services and other Organised Central Group-A Services are entitled for benefits of NFFU as recommended by the 6th Central Pay Commission. 8
17. The Union of India preferred Civil Appeal No.1474 of 2019 against the judgment of the Delhi High Court. The Hon'ble Apex Court by judgment dated 05.12.2019 confirmed the decision of the Delhi High Court extending the benefit of NFFU to Organised Group-A Services.
18. The Government of India issued Office Memorandum dated 24.04.2009 extending Non-Functional Upgradation for officers of Organised Group-A Services. The said office memorandum reads as under;
" Office Memorandum Subject:- Non-Functional upgradation for Officers of Organised Group 'A' Services in PB-3 and PB-4 **** 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 nonfunctional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre.9
(ii) Grant of higher scale would be governed by the terms and conditions given in Annex-I.
(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 Indian 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."
19. The benefit of NFFU as per Office Memorandum dated 24.04.2009 is subject to terms and conditions given in Annex-I. The relevant terms and conditions are as under;
" TERMS AND CONDITIONS FOR GRANT OF HIGHER PAY SCALE ON NON-FUNCTIONAL BASIS TO OFFICERS OF ORGANISED GR.' A' SERVICES
1. The non functional up-gradation granted under these orders will be based on empanelment and posting of particular batch of IAS officer in the Centre. Such up- gradation would not be linked to the vacancies in the grade.10
2. The up-gradation granted under these orders will be a purely non-functional up-gradation, personal to the officer and it would not bestow any right to the officer to claim promotion or deputation benefits based on non-functional up-gradation in such a manner.
3. All the prescribed eligibility criteria and promotional norms including 'benchmark' for up-gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.
xxxx"
Underlining mine.
20. As per the terms and conditions for up-gradation to a particular grade pay, the officer should be eligible for promotion. As per Rules 1999, the petitioner would be eligible for promotion on rendering two years of service in the grade of Deputy Inspector General of Indo Tibetan Border Police Force with total 24 years of Group-A Services. The petitioner joined the service on 12.12.1987 and completed 24 years of Group-A service during December 2011.
21. The Ministry of Home Affairs in supercession of Rules 1999 notified Indo Tibetan Border Police Force General Duty Cadre [Group-A Post] Recruitment Rules 2010. As per Rules 2010, Deputy Inspector General would be eligible for promotion with two 11 years regular service as Deputy Inspector General and should have undergone pre-promotional course or courses as prescribed by the department.
22. In the present case, the petitioner has joined services in the year 1987 and completed 24 years of service on 12.12.2011. The petitioner was not eligible for promotion amongst Deputy Inspector General under Rule 1999. Rules 2010 have come into effect from the date of notification i.e. 05.10.2010. As per Rules 2010, petitioner has undergone pre-promotional course only in the year 2017.
23. The petitioner by referring to Office Memorandum dated 15.12.2009 submits that in view of amendment, Rules 1999 are not applicable. In the said amendment, 17 years regular service in Group-A post is the eligibility criteria. Before Rules 2010 coming into force, petitioner was eligible for promotion. Learned Single Judge is right in directing to extend the NFFU from 18.02.2009. The said contention is not acceptable.
24. The Office Memorandum dated 24.04.2009 extending the benefit of NFFU to OGAS was subject to terms and conditions and appropriate amendments in the service rules. As per the terms and 12 conditions, eligibility criteria and promotional norms are to be considered for upgradation to a particular grade pay. At the relevant time, Rules 1999 were in force till Rules 2010 were notified in supercession of Rules 1999. The Office Memorandum dated 15.12.2009 has only recommended amendment to the existing service rules, wherein 17 years regular service in Group-A post was recommended. However, the recommendation has resulted in notifying Rules 2010. Rules 2010 are not amended as per recommendation as per the Office Memorandum dated 15.12.2009. The contention of the petitioner that the eligibility for promotion as per Office Memorandum dated 15.12.2009 is to be considered is incorrect.
25. It is to be noticed that as per Rules 2010, the eligibility for promotion amongst Deputy Inspector Generals is on completion of pre-promotional course as prescribed by the Department. The petitioner was eligible for promotion as per Rules 1999 in the year 2011. In terms of Rules 2010, the petitioner was to be deputed for pre-promotional course. The delay in deputing the petitioner for pre-promotional course from 2011 till 2017 is not attributable to the petitioner, however is to the respondents. In view of Rules 2010, as the petitioner was eligible for promotion amongst Deputy 13 Inspector Generals, it is clear that the petitioner would be eligible for NFFU from 2011.
26. Learned Single Judge committed an error in holding that the petitioner is entitled to NFFU from 18.02.2009 on the basis of the Office Memorandum dated 01.07.2010 without considering the petitioner's eligibility for promotion as per the terms and conditions for grant of higher pay-scale on non-functional basis to officers of OGAS. The Office Memorandum dated 01.07.2010 and the dates as per Annex for extending the benefit of NFFU is not independent of the compliance of terms and conditions as imposed in the Office Memorandum dated 24.04.2009 specifically with reference to the eligibility conditions as per the service rules. The reference to the Official Memorandum dated 01.07.2010 is in violation of Rules 1999 as well as Rules 2010.
27. In the result, the following:
ORDER
i) Writ appeal is allowed-in-part.
ii) The order of learned Single Judge in Writ Petition No.19409 of 2022, dated 25.09.2023, is modified holding that the respondent is eligible for Non Functional Financial Upgradation from the date he is 14 eligible for promotion in terms of Rules 2010 i.e., after 12.12.2011.
iii) The benefits arising out of this order shall be implemented and settled within three months from the date of receipt of copy of this order.
In view of the disposal of main appeal, pending interlocutory applications do not survive for consideration and are disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE MV