Central Administrative Tribunal - Delhi
Khc Rao vs Nhrc Through Its Secretary General on 29 October, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No. 643/13 Reserved on: 30.05.2014 Pronounced on: 29.10.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) KHC Rao H.No.30, Block-20, Lodhi Colony, New Delhi. Applicant (By Advocate: Shri Shanmugan Patro with Sh. Anil Gupta) Versus 1. NHRC through its Secretary General, Faridkot House, Copernicus Marg, New Delhi 110 001. 2. Union of India through Secretary, Ministry of Home, North Block, New Delhi. Respondents (By Advocate: Sh. R.N. Singh with Sh. Amit Sinha) O R D E R By Dr. B.K. Sinha, Member (A):
In the instant case the applicant Dy. S.P. in the respondent organization does not impugn any order as such but rather seeks upgradation of his pay scale from PB-II (Rs. 9300-34800 + 5400 GP) to PB-III (Rs. 15600-39100+5400 GP) at par with officials of equivalent rank working with CPOs by upgrading the category of applicants post from Group-B to Group-A with consequential benefits. He also seeks direction to create a post of Add. S.P. akin to the posts of Dy. Secretary and Under Secretary created by the Commission in recent past and promote him to the post of Addl. S.P.
2. The case of the applicant, simply put, is that he was employed as Sub Inspector in BSF from where he was taken on deputation to the respondent organization as Inspector and was subsequently promoted to the post of Assistant Commandant w.e.f. 08.12.1995 under Next Below Rule (hereinafter referred to as NBR) in his parent organization BSF. His pre-revised scale of pay was fixed at Rs.2200-4000. NHRCs pay scales for Assistant Commandant equivalent position i.e. DSP at that point of time was Rs.2000-3500/-. This anomalous situation compelled the respondent organization to upgrade the Dy. SP post held by the applicant to pre-revised scale of Rs.2200-4000/- vide OM dated 25.05.1998. It is the case of the applicant that on 27.11.1996, the respondent organization adopted service and other rules governing the service conditions of the Central Government employees in toto for its own employees. On 02.012.1997, the Department of Expenditure, GOI, declared the formulae to be adopted by the autonomous organization like NHRC for implementing the recommendations of the 5th CPC. The OM in question upheld rights of employees working with autonomous organizations to get pay at par with officials holding analogous posts with Central Governments other organization/departments. On 17.07.2000, the respondent organization notified the NHRC (Conditions of Service of Officers and Staff) Rules, 2000 at par with the Rules and Regulations applicable to the officers and staff belonging to Group-A, Group-B, Group-C and Group-D Central Government services with corresponding scales of pay. On 14.11.2000, the applicant was absorbed as Dy. SP in scale of Rs.6500-10500. The case of the applicant is that having come to the respondent organization, he has been deprived of the pay scale of Rs.8000-13500 which was being drawn by his counterparts holding equivalent rank in CPOs such as CBI, IB, ITBP, BSF, CRPF, CISF and BCAS. The applicant has submitted a copy of letter dated 28.01.1998 (Annexure A-5) of Under Secretary, NHRC to different organizations, viz., CBI, IB, ITBP, BSF and CRPF, which provides as under:-
Sub: Upgradation of scale of pay of the post(s) of Deputy Superintendent of Police in the Commission.
Sir, I am directed to state that prior to the implementation of the Vth Pay Commission recommendations, the Inspector(s) and Dy. S.P.(s) in the Commission were drawing their pay and allowances in the scale of pay of Rs.2000-3200 and Rs.2000-3500 respectively. The Vth Pay Commission has recommended replacement scale of Rs.6500-10500 for both the pre-revised scales mentioned above. It is understood that Dy.S.P.s working in the CPOs/IB/CBI have been given replacement scale of Rs.8000-13500.
2. It is requested to kindly confirm as to whether the Dy. Superintendent of Police under your organization has been given the scale of pay of Rs.8000-13500. This may please be treated as urgent.
3. The applicant contends that he has been at disadvantage by opting to be absorbed in the respondent organization as he does not get pay and allowances admissible to his counterparts in the CPOs as stated above. It is for this reason that the respondent organization is not able to get the services of good persons for investigation. The respondent organization, applicant submits, is the only organization of its kind which has the services of investigating wing and the work of respondent organization is getting hampered on this account. The officers in the rank of Dy. S.P. in other CPOs are Group A officers drawing salary as per PB-III Rs. 15600-39100 + GP of Rs.5400/- while Dy.SPs of NHRC have been kept as Group B and are being given salary as per PB-II Rs.9300-34800/- +Rs.5400 GP. The applicant has further alleged discrimination at the hands of the respondent organization as two of the posts of Dy. Secretary have been upgraded at par with that of the Director. The applicant also submits that the respondent organization is empowered to create its own posts and it does not require the approval of MHA or any other organization for that matter. The various Study Teams constituted by the respondent organization, in sum and substance, have recommended as follows:-
a) NHRC requires efficient, skillful and experienced investigators and supervisory staff [more particularly DSPs];
b) NHRC for its Investigation Division is dependent on deputation of investigators from CPOs/SPOs;
c) NHRCs scale of pay for DSPs is lower than that of CPOs. While in CPOs, Asst. Commandants [DSP equivalent] scale of pay is Pay Band III (Rs.15600-49100+5400 GP] NHRC offers a scale of pay Pay-Band II (Rs.9300-34800+5400 GP);
d) The DSPs at NHRC are deprived of many a facilities/allowances, fully described in Annexure A-20;
e) In view of the difference in the pay scales, NHRC is not getting right candidates of the level of Asst. Commandant to fill up its DSP pots on deputation as deputation to a lower scale is impermissible;
f) Because of all the reasons stated in this paragraph, the DSPs presently working with NHRC are keen to leave the organization at the earliest; also there has been a noticeable downfall in their efficiency and productivity;
g) Because of no apparent incentives or pay hikes or elevation in rank, Inspectors of CPOs are reluctant to join NHRC on deputation [even though they are offered DSP post].
4. The applicant has, therefore, prayed for the following relief(s):-
i) Up-gradation of applicants scale of pay from Pay-band II (Rs.,9300-34800+5400 GP) to Pay-band III (Rs. 15600-39100 + 5400 GP) at par with officials of equivalent rank working with CPOs if required by upgrading category of applicants post from Group-B to Group-A with consequential benefits;
(ii) Directions to NHRC to create post of Add. S.P. akin to the posts of Dy. Secreatry and Under Secretary created by Commission in recent past and promote applicant to the post of Addl. S.P. so created;
(iii) Any other/further relief this Honble Commission may deem fit and proper in the instant case to do justice.
5. The respondents have filed a counter affidavit wherein they have strongly opposed the contentions raised in the OA. The argument of the respondents in a nutshell is that what the applicant has effectively sought is that the post of Dy. SP which is in Group-B, be upgraded to Group-A. This falls under the realm of policy decision, which can only be taken by the Government or alternatively by the Pay Commission. When the Government have provided separately for Group-A and Group-B services and the applicant has been placed in Group-B he cannot demand as a matter of right that he should be upgraded to Group A. It is for the Government or for the Pay Commission to see whether he has any parity in working with the other Group-A service and to take a decision accordingly. The learned counsel for the respondent organization denies that the respondent has any power to create posts, which is evident from Annexure I of the OA. Creation and abolition of posts is done by the Government based upon the recommendations of the Staff Inspection Unit of Ministry of Finance. SIU has recently undertaken a study of work of the Commission and has submitted its report wherein it has not recommended creation of any post in between DSP and SSP in the Commission. The respondents have strongly denied the allegation of the applicant that the Commission has created two posts of Deputy Secretary. It is submitted that due to administrative exigency the senior-most Under Secretary was temporarily promoted to hold the post of Deputy Secretary against the vacant post of Director till the regular incumbent of the posts returns from deputation. Likewise, in the case of one Dr. Savita Bhakhry, she was appointed on deputation basis as Deputy Secretary (Research) and not promoted to the grade as contended by the applicant, for smooth conduct of various Research Projects commissioned by the NHRC in the absence of the Director (Research). These two appointments do not involve any financial implication as both the officers were holding the pay band and grade pay of Deputy Secretary prior to their appointment as Deputy Secretary and it was done due to functional requirement. The respondents have strongly denied that any such exigencies exist in the case of applicant. The respondents, in para 10 of their additional affidavit, have accused the applicant of misleading the Tribunal by terming the two appointments on deputation and one promotion as 3 promotions. They have further submitted that the supernumerary post of Under Secretary earlier operated to adjust a deputationist ceased to exist on repatriation of the deputationist. Likewise, the other two incumbents will also cease to function as such on completion of deputation tenure of three years or appointment of regular incumbent to the post of Director (Research), whichever is earlier and reporting back of regular incumbent of the post of Director (Admn.) from deputation. Hence, the question of withdrawal of three promotions does not arise.
6. In the counter affidavit it is further submitted that the applicant had been initially selected on the basis of his applying against an advertisement and was given proforma promotion under NBR as he was promoted to the grade of Assistant Commandant in his parent cadre. Accordingly, as opted by him, the applicant was allowed the pay drawn in his parent department plus 5% deputation (duty) allowance as admissible under the rules, during the period of his deputation. It is true that after implementation of the 5th CPC recommendation and Notification of NHRC (Conditions of Service of Officers & Staff) Rules, 2000, posts of Dy. S.P. in NHRC were having a lower scale as compared to similar posts in Central Para-Military Forces, CBI, IB etc. However, the applicant had intentionally opted for permanent absorption in the Commission in the lower grade despite being fully aware of the consequences. Therefore, the respondents rebutted the arguments that the applicant has been put to disadvantageous position for the reason that he had opted with his eyes open. The respondents have further submitted that the pay of the applicant had been protected by granting personal pay which was not recovered, as claimed by the applicant but was absorbed in the future increments. The respondents have also relied upon the decision of Honble Supreme Court in the matters of Mallikarjuna Rao versus State of A.P. [1990(2) SCC 707 and P.U. Joshi & Others versus The Accountant General, Ahmedabad & Otehrs [2003(2) SCC 632].
7. The applicant has also filed a rejoinder application rebutting all the points contained in the counter affidavit. In his rejoinder application, the applicant has sought parity with his counterparts in other departments on the basis of equal pay for equal work relying upon the judgment of Honble Supreme Court in the case of Inder Singh & Others versus Vyas Muni Mishra & Others [1987 (supp) SC 257] and State of M.P. & Others versus Ramesh Chandra Bajpai [2009 (13) SCC 635].
8. The respondents have also filed an additional counter affidavit in which some of the points have already been covered. They have strongly denied the allegations made in the rejoinder application and have submitted that the applicant cannot be promoted against the post of SSP by downgrading the same as in between the posts of Dy.SP and SSP, there are two functional grades of Addl. SP (Grade Pay of Rs.6600/-) and SP (Grade Pay of Rs.7600/-) in their normal hierarchy. The matter has been examined deeply in the department and there are no exigencies that call for such downgrading of posts.
9. The only issue that we are called upon to decide in the instant case is that whether the Tribunal would be within its competence to issue such a direction for either upgrading the post of Dy.SP Group-B to Group-A or by downgrading the post of Addl. SP to that of Dy. SP Group-A.
10. It is an admitted fact that as an officer absorbed in the respondent organization, the applicant is not entitled to some of the allowances attached to the post which his counterparts shall be getting in the CPOs. It is also admitted fact that he is in comparatively disadvantageous position qua his counterparts on this account and on account of the service conditions prevalent in NHRC. However, we are swayed by the fact that the applicant was fully aware of these conditions when he had opted for permanent absorption. It is a decision which he has taken with his eyes open and it is presumed that a prudent man after having weighed the pros and cons of it, cannot turn around after such a long time and seek perks and allowances of his previous organization or at par with his counterparts in CPOs. Once he has been absorbed, his identity in the previous organization becomes extinct and he acquires a new identity of the employee of new organization. Definitely, there must have been certain conditions on which the applicant would have thought and on account of which he took the decision of getting absorbed. However, he cannot be allowed to seek the allowances which he would have derived in his parent organization had he remained there. One cannot be allowed to run with the hare and hunt with the hounds in the same transaction.
11. We take full cognizance of the submissions made by the learned counsel Sh. R.N. Singh who has forcefully submitted that such matters like upgradation and downgrading of posts etc. are within the exclusive domain of the policy decision of the Government. Time in and time out the Honble Supreme Court has cautioned the subordinate courts not to walk into such areas.
12. In the case of Mallikarjuna Rao versus State of A.P. [supra], the petitioner, who was a veterinary surgeon, had opted to challenge the rules and the Honble High Court issued an advisory. The Honble Supreme Court has, however, held unequivocally as under:-
10. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution and as such the learned Judge deliberately used the word "advisable" while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice.
11. This Court relying on Narender Chand Hem Raj v. Lt. Governor, Union Territory, Himachal Pradesh (1972) 1 SCR 940 : (AIR 1971 SC 2399) and State of Himachal Pradesh v. A Parent of a Student of Medical College, Simia (1985) 3 SCC 169 : (AIR 1985 SC 910) held in Asif Hameed v. State of Jammu & Kashmir, 1989 Supp. (2) SW364:(AIR 1989SC 1899) as under (Para 19):
"When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of Policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive."
12. The Special Rules have been framed under Art. 309 of the Constitution. The power under Art. 309 of the Constitution to frame rules is the legislative power, This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution. This position has been re-affirmed in the case of P.U. Joshi & Others versus The Accountant General, Ahmedabad & Others (supra), relevant portion whereof reads as under:-
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
13. In addition, similar view was reiterated in Maharashtra State Board of Secondary and Higher Secondary Education and Another versus Paritosh Bhupesh Kurmarsheth, Etc. (1984 (4) SCC 27, which reads as under:-
14. We shall first take up for consideration the contention that cl. (3) of Regn. 104 is ultra vires the regulation making powers of the Board. The point urged by the petitioners before the High Court was that the prohibition against the inspection or disclosure of the answer papers and other documents and the declaration made in the impugned clause that they are "treated by the Divisional Board as confidential documents" do not serve any of the purposes of the Act and hence these provisions are ultra vires. The High Court was of the view that the said contention of the petitioners had to be examined against the back-drop of the fact disclosed by some of the records produced before it that in the past there had been a few instances where some students possessing inferior merits had succeeded in passing of the answer papers of other brilliant students as their own by tampering with seat numbers or otherwise and the verification process contemplated under Regn. 104 had failed to detect the mischief. In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate as to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute. Though this legal position is well-established by a long series of decisions of this Court, we have considered it necessary to reiterate it in view of the manifestly erroneous approach made by the High Court to the consideration of the question as to whether the impugned cl. (3) of Regn. 104 is ultra vires. In the light of the aforesaid principles, we shall now proceed to consider the challenge levelled against the validity of the Regn. 104 (3). This has been relied upon by the Tribunal in the case of Dr. Kamal Chauhan vs. Union of India (OA No.1918/2012). Likewise, this further finds substance in the cases of Bhushan Uttam Khare versus The Dean, B.J. Medical College and Others [1992(2) SCC 220]; State of Rajasthan and Others versus Lata Arun [2002 (6) SCC 252]; Secretary, Board of Basic Education, U.P. versus Rajendra Singh and Others [2009 (17) SCC 452]; and Union Of India & Anr versus S.K. Goel & Ors [2007)14 SCC 641]. A similar view has been taken by this Tribunal in the case of H.R. Bangia vs. Union of India [OA. No 1653/ 2012] wherein the Tribunal relied upon the decision of the Honble Madhya Pradesh High Court in the case of State Of M.P. versus Surendra Nath, IAS And Anr. Decided on 08.12.2005; Union Of India & Anr versus A.K. Narula decided by the Honble Supreme Court of India on 18 May, 2007; and S.R. Tewari versus Union of India & Another (Arising out of S.L.P. (C) No.22263-22264 of 2012 decided on 28.05.2013).
14. We are also swayed by the fact that now the 7th Pay Commission has been set up and matter as such can be placed before the Pay Commission for their advice. Otherwise, we are not at all impressed by the arguments placed by the learned counsel for the applicant for seeking the relief of upgradation of the post of Dy.SP from Group-B to Group-A. We reiterate that creation of posts is governed at institutional level and is not to be dictated by the self-interest of the individual employee alone.
15. Finding no merit in the OA, we are constrained to dismiss the same without there being any order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/