Central Administrative Tribunal - Delhi
Raj Kumar Jha vs Union Of India on 7 March, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.77/2012 Order Reserved on : 2.03.2012 Order Pronounced on : 7.03.2012 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. Raj Kumar Jha s/o Late Kapileshwar Jha R/o G-V, New Police Lines, Delhi 110 009. 2. Suvashish Choudhary S/o Late G. S. Choudhary R/o 28/1, Police Station Tuglak Road, New Delhi. Applicants. (By Advocates : Mrs. Jyoti Singh, Senior Advocate with Sh. Amandeep Joshi) Versus 1. Union of India Through its Secretary Ministry of Home Affairs, Government of India, North Block, New Delhi. 2. Secretary Ministry of Personnel, Public Grievances and Pensions (DOPT), Government of India, New Delhi. 3. Secretary Union Public Service Commission, Shahjahan Road, New Delhi. Respondents. (By Advocate : Shri Rajender Nischal) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Rajkumar Jha and another officer belonging to the DANIPS have joined together in the present OA filed under Section 19 of the Administrative Tribunals Act, 1985 and prayed the following relief (s):
(i) The Respondent No.1 should be directed to give seniority of year 1997 to the applicants in IPS as per provisions in IPS (Pay) Rules, 2007 and IPS (Recruitment) Rules, 1954.
(ii) The Respondent No.1 and Respondent No.3 should be directed to hold regular DPC for JAG-II & JAG-I in DANILDDNHPS and regularize the ad hoc promotions of applicants in JAG-II & JAG-I.
(iii) The Respondent No.1 should be restrained from seeking undertaking of the applicants with regard to unconditional willingness for promotion to IPS and termination of lien in their present service after their substantive appointment to IPS till the issues raised in this OA are resolved.
(iv) The Respondent No.1 should be directed to keep the Select List (prepared for promotion to IPS AGMU Cadre for the year 2010) as well as candidature of the applicants in the said Select List valid for a period of 60 days from the date when the issues raised in this OA are resolved.
(v) The Respondent No.1 and Respondent No.2 should be directed to declare IPS (Regulation of Seniority) Rules, 1988 as null and void, quash and set aside the same and bring about new rule in this regard which should be in conformity with IPS (Recruitment) Rules, 1954 and IPS (Pay) Rule, 2007.
(vi) The Respondent No.1 should be directed to give all due benefits like Pay Scale, Seniority, Rank as per IPS (Recruitment) Rules 1954, IPS (Pay) Rule, 2007, and IPS (Uniform) Rules, 1954, while promoting the applicants to IPS.
(vii) Any other order that this Honble Tribunal may deem fit and proper in the facts of the case.
2. Brief facts of the case would disclose that the applicants joined Delhi and Andman Nicobar Islands Police Service (DANIPS) on 30.04.1986. They were granted selection grade on regular basis w.e.f. 9.12.1995 after completion of 8 years of service. In the year 2000, they became eligible for promotion to the Junior Administrative Grade-II (JAG-II) as they completed 13 years of approved service. But to their dismay they were not promoted to the said JAG-II in 2000. It is the case of the applicants that even as on 02.01.2007 they further became eligible for promotion to the next higher grade, namely, JAG-I but still they were not promoted. On the other hand, the respondents promoted them to the JAG-II on ad hoc basis only on 21.05.2007 and again they were promoted to JAG-I on ad hoc basis on 30.03.2010. It is their case that they are continuing only on ad hoc basis in JAG-II and JAG-I levels in DANIPS and no Departmental Promotion Committee (DPC) has so far met to consider their regular promotion to JAG-II and JAG-I. In view of this disadvantageous position of the applicants they submitted representation in May, 2010 to the 1st respondent requesting to hold DPC for regular promotion to JAG-II and JAG-I w.e.f. the date of their eligibility or at least from the date of available vacancies. In the mean time, the 1st respondent initiated the process for holding DPC for preparation of a select list of DANIPS officers for induction into Indian Police Service (IPS) AGMU Cadre for the vacancy year 2010. They were asked to submit unconditional willingness for induction and consent for termination of lien in the DANIPS. They represented vide their letter dated 20/25.07.2011 either to defer the proposal for induction in the IPS or not to insist on unconditional willingness till they get their regular promotion to the rank of JAG-II and JAG-I. Further, they also raised the issues like pay fixation and seniority because if they are inducted into IPS as ad hoc JAG-II and JAG-I they would financially suffer in pay fixation, besides losing their proper rank and seniority. Further, ad hoc JAG-II ad JAG-I they are in Pay Band-3 with Grade Pay of Rs.6600 and would be protected in the same Pay Band and Grade Pay as per Section 10 of the IPS (Pa)y Amended Rules, 2008. But if they are made regular in the JAG-I they would be placed in the Pay Band-4 with Grade Pay of Rs.8700. It is again the case of the applicants that they have put in 22 years of service in the State Police Service and in terms of the IPS seniority rules of 1998, they would be placed in the seniority list after the direct recruits of IPS for the year 2003, whereas they are entitled to be placed in the 1997 IPS batch. As the 1997 IPS batch has already got the selection grade in the IPS Scale, the applicants if put in 2003 would suffer serious financial anomaly as well as rank and seniority. Further, it was averred that applicants if they do not give unconditional willingness for induction, the period to do so would start from 14.12.2011 when the select list was prepared and 60 days time within which the willingness should be conveyed would end on 11.02.2012, otherwise, under Section 9 of the IPS Appointment, Promotion and Regulation, 1955, they would be barred for the induction to the IPS. If they give unconditional willingness they would suffer irreparable loss in pay, rank, and seniority. In this type of typical situation, the applicants have approached this Tribunal in the present OA.
3. We issued notice to the respondents on 19.01.2012 and indicated therein that on the next date of hearing the issue of stay raised in the application would also be considered. Though on 25.01.2012, the respondents were represented by Shri Ashish Nischal, learned counsel, he sought for adjournment. Therefore, on 30.01.2012 the issue of interim direction was considered. We directed that even if the applicants may not give any willingness by 11.02.2012, the select list qua the applicants will not lapse. With the above directions to the respondents, the case was adjourned to 10.02.2012. Ultimately, the case was heard on two other dates and finally on 2.03.2012.
4. Representing the applicants, learned Senior Advocate Mrs. Jyoti Singh, assisted by Shri Amandeep Joshi would contend that the applicants have suffered by not getting their due and regular promotion to JAG-II and JAG-I. They are senior enough and eligible to be inducted to IPS as they have been considered and selected by the competent authorities. But the applicants frustration arises on account of the financial loss they would sustain and the seniority and the rank they would lose if they submit unconditional willingness to join the IPS cadre. Her contention is that the opportunity to be promoted to IPS is one time opportunity which comes and the applicants are eager to avail the same but once the unconditional willingness is granted and if their pay, rank and seniority is not protected, their interest will be jeopardized after getting inducted to IPS. She further contends that the applicants have completed 22 years of service in DANIPS as on 01.01.2010. Once they get inducted to IPS, the IPS Recruitment Rules; IPS (Appointment by promotion) Regulations, 1955; IPS (Pay) Rules, 2007 as amended and other relevant Rules would apply to them. Her contention is that before the amendment to the IPS (Pay) Rules, 2007, a promoted officer from the State Police Officers used to be fixed in the Senior Time Scale of IPS i.e. Pay Band-3 with Grade Pay of Rs.6600. After the recent amendment on 3.03.2010, officer on promotion to IPS will be granted the initial pay scale and grade pay in the senior scale of IPS corresponding to the pay scale and grade pay which he was getting in the State Service. Her submission is that senior scale of IPS comprised (1) senior time scale (Pay Band-3 with Grade Pay of Rs.6600), (2) Junior Administrative Grade (Pay Band-3 with Grade Pay of Rs.7600) and (3) Selection Grade (Pay Band-4 with Grade Pay of Rs.8700). Her contention is that had the applicants been promoted on regular basis to JAG-II and later on JAG-I at least in 2007, they would be eligible to be fitted in the Selection Grade of IPS with Pay Band-4 and Grade Pay of Rs.8700. But since they have been continuing on ad hoc basis they would suffer financial loss, rank and seniority and they would be given pay in the Pay Band-3 with Grade Pay of Rs.6600. She, therefore, submits that this is an anomalous situation in which the applicants have been positioned mainly due to the inaction of the respondents. To a query from the Bench, Mrs. Jyoti Singh, submits that the applicants after induction to IPS are free to be posted to any place as per the IPS Rules and are not keen that they should be always posted at Delhi. Another set of contentions reiterated to the seniority and the rank that the applicants would get in the IPS, she submits that if the applicants would be placed junior to the direct recruits of 2003 batch, the situation will arise when the applicants being presently higher in rank will have to salute and report to an officer junior in the rank. This will create anomalous situation and it would be below the dignity of the applicants to work under such a condition. In this context only, the applicants are challenging the operation of the Regulations of 1988 which would become unworkable in view of the recent amendment made in the other rules governing service condition of IPS like IPS (Recruitment) Rules and IPS (Pay) Rules.
5. Shri Rajendra Nischal, learned Senior Central Government Counsel representing the first respondent filed the short affidavit on the interim relief on 10.02.2012 and subsequently has filed a detailed reply affidavit on 24.02.2012. His submission is that the applicants have been selected for the joint AGMU cadre of IPS and would need to be inducted into IPS only after getting the mandatory requirements of their willingness. In the absence of the same, no orders in respect of them could be issued by the competent authority. Regarding the regularisation in JAG-II and JAG-I, Shri Nischal submits that in two weeks time the competent authority is going to convene regular promotion in JAG for the year 2003 onwards which could not take place on account of seniority dispute between the officers promoted from feeder grade and those directly recruited through UPSC into DANIPS. Honble High Court of Delhi in WP (C) No.598/2004 in the matters of Union of India versus B. K. Singh decided on 31.05.2010 has finally passed the orders on the basis of which the respondents are now going to take action to convene the DPC. It is also submitted that once the officers are granted the higher pay scales with retrospective effect in the DANIPS, their pay would be revised and protected in the IPS accordingly. Thus, the pay they would get after the regular promotion to JAG-II and JAG-I would be protected by the respondents even in the IPS.
6. Having considered the rival contentions, we perused the pleadings as well. There are no disputes with regard to the facts admitted by the parties. It is not in dispute that the applicants have been selected for appointment by promotion to IPS from DANIPS and the same has been approved by the UPSC on 14.12.2011. Both the applicants have to convey their willingness to join IPS. They are admittedly in an anomalous situation where for years they have been continuing on ad hoc basis in JAG-II and JAG-I. As per IPS Regulation and Seniority Rules, 1986, the DANIPS Officers appointed to IPS are to be placed below the direct recruit officers of the batch allotted. Seniority of the officers would be fixed on the basis of the allotment years of the direct recruits in IPS. The seniority is fixed taking into account the continuous service rendered by them in the State Police Service not below the rank of Deputy Superintendent of Police or equivalent immediately before the year for which meeting or committee to make suggestion was held to prepare the select list. It is further noticed that the officers appointed by promotion are given weightage of one year for every completed 3 years of service subject to a minimum of 4 years where the officers has put in continuous 21 years of service in State Police Service, such officer is also given a weightage of one year for every completed two years of service beyond the period of 21 years subject to a maximum of 3 years. Hence, we note that the seniority of the applicants would be governed by the said Rules of 1988. It is noticed that the applicants have already completed 22 years of service and as per the formula worked out and confirmed by the respondents in their reply affidavit they would be entitled for weightage of about seven years of service. But as per the Rules, the applicants being the DANIPS Officers will be placed below the direct recruit officers belonging to the years of allotment. Even they may become the juniors but would be drawing higher pay by virtue of longer length of service put in by them and their pay when revised due to the regular promotion to the JAG-II and JAG-I DANIPS, the same would get protected in the IPS. It is admitted fact that two officers coming from two different set of examination and selection process cannot be equivalent merely on the basis of pay.
7. Having considered the totality of facts and circumstances of the case, we find that there is anomalous situation against the applicants insofar as DANIPS is concerned, as for the years they have been continuing on ad hoc basis in JAG-II and JAG-I grades. The respondents are responsible for not regularizing their services in the said grades may be due to the litigation. During the hearing, when this issue was discussed, Shri Nischal has conceded that the respondents are keen to conduct the regular promotion to the DANIPS shortly and the applicants would get their rightful position in the JAG-II and JAG-I respectively for the year to which they would be selected. In this regard, we would only direct the respondents to convene the regular DPC for JAG-II and JAG-I for the relevant years and complete the process as expeditiously as possible but positively within a period of four weeks from the date of receipt of certified copy of this order.
8. With regard to the willingness to be conveyed by the applicants, learned Senior Counsel for the applicants has indicated during the final hearing that applicants would convey their willingness but they need to be protected with reference to their pay scales and assigned proper seniority after taking into account their regular promotion in the DANIPS. There is no dispute about this from the learned counsel from the respondents. We, therefore, direct that the applicants would convey their willingness to the competent authority about their induction to the IPS within a period of two weeks from today. On receipt of their willingness, the respondents are directed to offer them the appointment for promotion to IPS, and protect their existing pay, which in any case would be provisional. Further, in the seniority and other associated aspects, the finalization of regular promotion of the applicants to the grade of JAG-II and JAG-I in DANIPS would be determined in the IPS. On receipt of appropriate orders in fixing their regular promotion to the JAG-II and JAG-I grades, the cadre controlling authority of the IPS, AGMU Cadre would fix their seniority and protect the revised pay for the applicants. If either in pay fixation or seniority applicants may be aggrieved, they may at that stage ventilate their grievances. Let this exercise, as ordained above, be completed within a period of three months from the date of receipt of orders regarding the applicants regular promotion to the JAG-II and JAG-I in DANIPS.
9. With regard to the vires of the rules and regulations governing the IPS Pay, seniority, etc. learned Senior Advocate for the applicants would not take the arguments forward. Therefore, we refrain to offer any remarks on the said relief (s) prayed in challenging the vires of these rules and regulations.
10. Taking into account the totality of facts and circumstances of the case, we are of the considered opinion that the applicants should be granted their regular JAG-II and JAG-I promotion as expeditiously as possible and preferably within the time frame as stipulated above and on receipt of the willingness from the applicants the competent authority would offer them appointment to IPS and fix their seniority, pay scales, rank, etc. as per revised regular promotion order to be received in grade of JAG-II and JAG-I in DANIPS and also as per the law relating to those matters of IPS. Applicants were given interim promotion. They may now give their unconditional willingness for their induction in IPS within two weeks.
11. In terms of our above orders and directions, the OA is disposed of. In view of the typical nature of the case, we direct the respective parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/