Central Administrative Tribunal - Delhi
Shri B.S.Sial I.P.S. (Retd.) vs Union Of India on 3 January, 2012
Central Administrative Tribunal Principal Bench OA No.1829/2010 New Delhi, this the 3rd day of January, 2012 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri B.S.Sial I.P.S. (Retd.), Former Director General & Inspector General of Police, Karnataka State. S/o Late Shri Balwant Singh Sial, R/o C-55, Sector 50, Noida-201301 (UP). . Applicant. (By Advocate : Shri Yogesh Sharma) Versus 1. Union of India Through Secretary to Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi-110001. 2. Secretary to Government of India, Ministry of Finance, Department of Expenditure, North Block, New Delhi-110001. 3. Secretary to Government of India, Ministry of Home Affairs, North Block, New Delhi-110001. 4. Chief Secretary to Government of Karnataka, Vidhan Soudha, Karnataka State, Bangalore-560001. .. Respondents. : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri B.S. Sial, a retired Indian Police Service (IPS) Officer of 1971 batch belonging to Karnataka Cadre reached the rank of Director General of Police (DGP) and IG Prisons by promotion w.e.f. 06.08.2004 and subsequently, was selected as the DGP/IGP as the Head of the State Police Force w.e.f. 31.8.2005 and retired from the said post on 31.12.2006. At the time of his superannuation, he was drawing pay in the 5th CPC pay scale of `24050-26000. It is the case of the applicant that he remained in the said pay scale from 06.8.2004 to 31.12.2005 and his pay was fixed in the 6th CPC scale in the HAG+Scale of pay of `75000-80000. It is stated that the Government of India accepting the recommendations of pay scales/Pay Band has given effect to the same w.e.f. 01.01.2006, though the Union Cabinet accepted the 6th CPC recommendations in the year 2008. His case is that one post of DGP was granted Apex scale of `80000 for the Karnataka State by the Government of India which was introduced w.e.f. 27.9.2008, the date of the Notification issued by the Union of India. The applicants grievance is that had the Apex scale `80000 been granted w.e.f. 01.01.2006, he would have been eligible to get the Apex scale as he was DGP/IGP (Head of Police Force) and retired as such on 31.12.2006. By giving effect to the Apex scale of `80000 w.e.f. 27.9.2008, he has been denied his right to get the same. Feeling aggrieved, he represented to the 1st respondent in his letter dated 20.3.2009 which on consideration and in consultation with the 2nd respondent intimated in its letter dated 06.01.2010 (Annexure-A1) that the amendment being done prospective, the said post was to be filled up by selection only prospectively. He further requested the 4th respondent vide his letter dated 25.5.2009 and 26.6.2009 and email dated 08.02.2010 to fix his pay of DGP/IGP in the Apex scale of `80000. Vide letter dated 19.3.2010 (Annexure-A2) he was informed that Apex scale was not applicable to him as he retired on 31.12.2006 whereas the Apex scale was introduced w.e.f. 27.09.2008. He was also informed the same by the 1st respondent in the letter dated 25.03.2010 (Annexure-A3). Having been aggrieved by the above three Communications and assailing the vires of para 3 (i) (iii) of IPS (Amended) Rules, 2008; the applicant has approached the Tribunal in the present OA with following relief(s) :-
i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the para 3(i)(iii) of IPS (Amended) Rules, 2008 in respect of applicability of Apex Scale w.e.f. 27.9.08, declaring to the effect that the same is illegal, arbitrary and discriminatory and consequently pass an order directing the respondents to grant of Apex Pay Scale of Rs.80,000/- w.e.f. 1.1.2006 to the applicant with all consequential benefits.
(ii) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 6.1.2010, 19.3.2010 and 25.3.2010 (Annex.A/1) to A/3) and consequently pass an order directing the Respondents to implement the GOI Gazette Notification dated 29th Aug 2008, relevant for the purposes of present application, immediately with effect from 1.1.2006 granting the Apex Scale of 80,000/- to the applicant from that date, with all consequential benefits including arrears of difference of pay and allowances with interest and revision of retirement benefits of the applicants with arrears of difference with interest.
(iii) Any other relief which the Honble Tribunal deem fit and proper also be granted to the applicant.
2. Highlighting the background of the above said relief(s), Shri Yogesh Sharma, learned counsel for the applicant would contend that the applicant was duly selected DGP, as per the Government of Karnataka Notification dated 05.08.2004 and continued till 31.12.2006. He received the maximum of pay in the 5th CPC pay scale of `24050-26000 and the same having been replaced by the Apex Scale of `80000/- in the 6th CPC, the applicant was entitled to the same. The 6th CPC recommendations came into force after the acceptance by Government of India w.e.f. 01.01.2006 but the Apex Scale was postponed to the date of Notification i.e. Notification No.GSR 692 (E) dated 27.9.2008. Deferring the grant of Apex Scale to 27.9.2008 has denied the applicant his entitlement. This Notification is contrary to the Explanatory Memorandum i.e. the Notification will be effective w.e.f. 01.01.2006. The Rule 3(1) D(iii) of the IPS (Pay) Rules, 2007 dated 27.9.2008 is discriminatory, arbitrary and illegal as the said provision in the Rules is ultra vires of Article 14 and 16 of the Constitution of India. He, therefore, urges that the same provision in IPS Pay Rules in so far as the effective date (27.9.2008) is concerned, should be declared as ultra vires and the respondents should be directed to substitute the said date by 01.01.2006 and consequently grant the applicant Apex Scale w.e.f. 01.01.2006. He argues that the OA may be allowed with further direction to pay the applicant not only arrear of pay but also his pension refixed and arrears of pension paid to him.
3. Notices were issued to the respondents on 03.6.2010. Respondent Nos.1 to 3 entered appearance and filed their reply affidavit on 19.8.2010. In the meantime, Shri A.K. Bhardwaj, learned counsel appearing on behalf of the 1st to 3rd respondent was elevated to the Bench of this Tribunal. The respondents were directed on 15.3.2011 to engage some other counsel. The case was thereafter posted on 15.4.2011, 23.5.2011, 18.7.2011, 2.9.2011, 19.10.2011, 16.11.2011 and finally we heard the case on 21.11.2011. On 2.9.2011, the 4th respondent entered appearance through Shri Swapnil Verma and adopted the reply affidavit filed on behalf of the respondent Nos.1to3. Despite our specific direction to the 1st to 3rd respondents to engage a new counsel and inspite of granting adequate time, no counsel appeared on their behalf during the final hearing. In view of the above position, we propose to go through the reply affidavit filed on 19.8.2010 for proper adjudication of the controversies in the OA.
4. The respondents have stated that the Higher Administrative Grade (HAG) scale `67000-79000 has been introduced as a replacement scale for the pre-revised pay scale of `22400-500-24500 which is not a new dispensation and further the HAG plus scale of `75500 to 80000 was introduced as per 6th CPC for the pre-revised pay scale of `24050-26000. The Apex Scale was not the part of 6th CPC recommendations. However, at the time of considering 6th CPC recommendations, the Cabinet took the decision to amend the IPS and IFOS (Pay) Rules to introduce in each State Cadre one post of DGP/PCCF as head of the State Organisation in the Apex Scale of `80000 (fixed). Accordingly, respective Rules were amended and ordered to operate prospectively. It is further averred that the applicant has been informed appropriately by the Union of India and Karnataka State Government. Respondents have, therefore, urged to dismiss the OA.
5. The controversies for our determination are very simple : (i) Whether the Rule 3(1)D(iii) of IPS (Pay) Rules, 2008 can be declared illegal and (ii) Whether the Tribunal can direct the respondents to give retrospective effect to the Apex Scale w.e.f. 01.01.2006 in place of 27.09.2008 i.e. the date of issue of Notification?
6. Before we analyse the grounds taken by the applicant, we may refer to the well settled position in law in the subject relating to the role of the Tribunal in interfering on issue of the cut off date.
7. Honble Apex Court considered the issue of fixing cut off date by the executives in two cases which are similar to the one we are dealing in the present OA. While dismissing the WP(C) No.683 of 1990 in the matters of V.P. Malik and others Versus Union of India [1996-1-SCC-454] the issue of fixation of a date from which pay scale can be legally sustainable was gone into by the Honourable Supreme Court. Facts of the case before the Honble Supreme Court was that the petitioners were members of the teaching specialist sub-cadre of the Central Health Service under the Ministry of Health and Family Welfare, and engaged in teaching and doing clinical work in Lady Harding Medical College and associate hospitals at New Delhi Their grievances were that the Tikoo Committee Report which recommended that the teaching specialists should be placed in the grade of Rs.4,500-5,700/- after four years of the granting of the scale of Rs.3,700-5,000/- and distinction between the functional grade and non-functional grade may be done away with and promotion be made to the grade of Rs.4,500-5,700/- on a time bound basis on completion of 8 years as specialists have not been implemented from the date of the submission of the said report (31-10-1990), but from 1-12-1991, which date according to the petitioners is arbitrary and would have adverse effect on them. The stand of the Ministry, however, is that as the Office Memorandum could be issued only on November 14, 1991 incorporating the decisions of the Government relating to the various recommendations of the committee, the benefit was made available prospectively from the first day of the ensuing month i.e. December, 1991. The Honble Apex Court observed as follows :-
5. As to whether the fixation of the date (1-12-1991) can be regarded as arbitrary, it may be stated that fixation of a cut-off date can be so regarded by Court if the same be one about which it can be said that it has been picked out from a hat. As stated by this Court in D.R. Nim v. Union of India, (1967) 2 SCR 325 : (AIR 1967 SC 1301). A Bench of this Court to which one of us (Hansaria, J.) was a party examined the question of fixation of cut-off date on the touchstone of Article 14 in Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212 : (1994 AIR SCW 2866). In this case the case of D.R.Nim (supra) was noted in Para 4, followed by reference 5 to 7. We do not propose to reiterate what was stated in Jaiswals case . It would be enough to point out that the observation of Holmes, J. in Louisville Gas and Electric Company v. Clell Coleman, 277 US 32, that a choice of cut-off date can be interfered with if the fixation be very wide of any reasonable mark was cited with approval by this Court in Union of India v. Parmeswaran Match Works (1975) 1 SCC 305 : (AIR 1974 SC 2349) . It was further added that a choice of date cannot be dubbed as arbitrary unless it is shown to be capricious or whimsical in the circumstances.
6. In the present case, the date (1-12-1991) having been fixed because of the issuance of the Office Memorandum containing the decisions of the Government on the Tikoo Committee recommendations on 14-11-1991, the cut-off date 1-12-1991 is far from arbitrary and whimsical; it is really reasonable . It has not been picked out from a hat, but is founded on logic.
8. The judgment of Honble Apex Court in Government of Andhra Pradesh and Others Versus N. Subbarayudu and Others [2008-14-SCC-702], is equally relevant. The appellant reduced the age of superannuation and fixed cut off date for pension which was held to be within the domain of executive authority to fix cut off dates. While allowing the appeal, Honble Supreme Court went to the extent of observing that even if no reason had been given by the executive for fixing a date, the court must not declare that to be arbitrary and violative of Article 14. Honble Supreme Court further observed that unless the cut off date led to some blatantly capricious of outrageous result, court must maintain judicial restrain in matters relating to legislative and executive domain. We reproduce below the pertinent paragraphs :-
7. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date. The Government must be left with some leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368, Union of Indian & Anr. vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide para 5), Ramrao & Ors. vs. All India Backward Class Bank Employees Welfare Association & Ors. 2004 (2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr. 2008(3) 3 JT 221 and in Government of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi 2008(2) 8 JT 639 the Court must maintain judicial restraint in matters relating to the legislative or executive domain.
9. In the background of the above trite law, it is noted that the respondents have fixed the cut off date for the 6th CPC Pay Band and Grade pay with effect from 01.01.2006 and fixed the Apex Scale of `80000 for one of the DGP posts who is Head of Police force in a state w.e.f. 27.09.2008 - the date of Notification of the IPS (Pay) Amendment Rules, 2008. The challenge by the applicant boils down to the date of effect. His claim is that 01.01.2006 should be the date from which date 6th CPC pay scales came into force. But we find from the pleadings that the DGP replacement scale as per the 6th CPC recommendation is indicated in Rule 3(1)D(ii) i.e. (ii) HAG + : `75000 (annual increment @ 3%) 80000; Grade Pay : nil. However, there was no recommendation on the Apex Scale in the 6th CPC recommendation. The Apex Scale was introduced due to the decision taken by the Cabinet during the consideration of the 6th CPC recommendations. It is noted that in a State Government more than one DGP posts exist depending on the total strength of IPS officers in the State and the needs of the State and some of them work in ex-cadre posts. But the Rules 2008 upgraded only one of the DGP posts (not all posts) to the Apex Scale of `80000 (fixed). This upgradation is a new introduction by the Government on the basis of Cabinet decision. Obviously, the addition/upgradation has to be given effect to prospectively, not retrospectively. On 29.8.2008, the Ministry of Finance vide Resolution decided for the IPS as follows :-
Apex Scale of Rs.80000(fixed Indian Police Service Pay Rules
will be appropriately modified
to provide in each State cadre
one post of Director General of
Police as head of the police
Force in the apex scale of
Rs.80,000.
Pursuant to the above Resolution, the DOPT issued Notification dated 27.09.2008 amending the IPS Rules and para 3(1)D(iii) and Note 2 to the Rule 3 which being relevant is reproduced below :-
(iii) Apex Sclae : Rs.80000 (fixed), Grade Pay: nil (by upgradation of one existing post of Director General of Police as head of police force in the each State cadre);
(with effect from the date of issue of notification of the Indian Police Service (Pay) Amendment Rules, 2008);
Note 2 : The post of Director General of Police in the apex scale shall be filled by selection from amongst the officers holding the post of Director General of Police in the State cadre in the HAG + scale of Rs.75500/- (annual increment @ 3%)- 80000.
In the said Rule at para 11, the Notification clearly indicates the State wise one of the DGP posts to get designated as the head of police force in the State that too out of the existing posts of DGP in HAG + Scale, which clearly reveals that the respondents have, by a conscious decision, decided to upgrade a post of DGP to Apex Scale. Thus, `80000 Apex Scale for a DGP is not a replacement scale but a new scale for a new and upgraded post. In our considered view, the respondents rightly adopted 27.9.2008, the date of Notification of IPS (Pay) Amendment Rules, 2008, as the effective date. The cut off date so fixed is neither arbitrary nor discriminatory. Just because the 6th CPC Pay Scales and pay bands came into effect retrospectively from 01.01.2006, the new upgradation of one of the DGP posts to the Apex Scale cannot be given retrospective effect. The retrospective effect is as per the Explanatory Memorandum to the Notification dated 27.9.2008 clearly indicates revision of pay scales in respect of the All India Services with effect from 01.01.2006. Thus, effective date of 01.01.2006 would be applicable to the revised pay scales. Apex scale is not a revision of existing pay scale but new pay scale for which effective date cannot be 01.01.2006. Hence, the new Apex Scale introduced by upgradation of one of the DGP posts would have the date of notification as the effective date. For the above reasons, we are of the considered view that the effective date of 27.9.2008 given to the Apex Scale is legally sustainable. We do not find any arbitrariness or any other ground to interfere in the matter of the said effective date. The provisions in para 3(1) D(iii) is intra vires.
10. We have thoughtfully and carefully considered the totality of facts and circumstances of the case, and have been guided by the well settled position in law and for the reasons given above, the para 3(1) D(iii) is legally tenable. The applicant having retired on 31.12.2006, is not entitled to get Apex Scale of `80000 at all, less to speak of w.e.f. 01.01.2006. The impugned orders dated 6.1.2010, 19.3.2010 and 25.3.2010 are legally valid.
11. In the result, the OA being devoid of merits is dismissed. The respective parties will meet their own costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /rk/