Central Administrative Tribunal - Delhi
Shri J. K. Khanna vs Union Of India on 7 December, 2009
Central Administrative Tribunal Principal Bench OA No.1807/2009 New Delhi, this the 7th day of December, 2009 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri J. K. Khanna S/o Late Sh. R. S. D. Khanna R/o H. No.A-102, Sector-55, Noida, UP, Working as Director General of Police- Cum-Officer on Special Duty, Bihar Bhawan, Bihar Niwas, 15, Chanakya Puri, New Delhi-21. . Applicant. (By Advocate : Sh. Sarvesh Bisaria) Versus 1. Union of India Through Secretary Ministry of Home Affairs, North Block, New Delhi. 2. State of Bihar Through Chief Secretary, Bihar, Main Secretariat, Patna, Bihar. 3. Dr. D. N. Gautam Director General of Police, Bihar, Main Secretariat, Patna, Bihar. 4. Accountant General (A&E), Bihar, Bir Chand Patel Marg, Patna, Bihar. . Respondents. (By Advocate : Ms. Vandana for Sh. A. K. Bhardwaj for R-1 Ms. Biji Rajesh for Sh. Gaurang Kanth for R-4) : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
Shri J. K. Khanna who belongs to 1974 Batch of Indian Police Service (IPS in short) and borne in Bihar Cadre, the Applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 and sought for the following reliefs:-
8. It is, therefore, most respectfully prayed that your Lorships may graciously be pleased to quash/set aside the orders dated 31st July, 2008 granting promotion to Dr. D. N. Gautam to the post of Director General of Police and further quash/set aside the order dated 26.9.2008, promoting the applicant to the non-existent post of Director General of Police and further direct the respondents to promote the applicant to the post of Director General of Police w.e.f. 31st July 2008 with all consequential benefits and further direct the respondents to fix the pay of the applicant equivalent to that of his junior and also award costs and compensation in favour of the applicant or may pass any other order or directions as may deem fit and proper in the interest of justice.
2. Brief facts of the case would reveal that the Applicant was appointed to Indian Police Service, Bihar Cadre on 21.7.1974. He was confirmed by order dated 1.7.1976 and was granted selection grade on 1.1.1987, 1st super time scale of DIG on 17.11.90, 2nd Super time scale of IG on 5.4.1997 and Super time scale of ADG on 30.9.2004. It is the case of the Applicant that he was sent on central deputation to KRIBHCO as Chief Vigilance Officer where he worked from 3.9.2003 to 2.9.2008. On 5.5.2008, the Applicant submitted a representation to the Bihar Government thereby stating that his deputation to the Central Government would come to an end on 2.9.2008 and his candidature may be considered for promotion to the post of Director General of Police which was expected to be vacant on 31.07.2008. The Respondents conducted DPC in the last week of July 2008 for the post of Director General of Police wherein the name of the Applicant and one Dr. D. N. Gautam, Respondent No.3 was considered. The Applicant states that Dr. D. N. Gautam is junior to him. The Respondent-2 issued an order dated 31.07.2008 granting promotion to Dr. D. N. Gautam (Respondent No.3), to the post of Director General of Police, Bihar ignoring the claim of Applicant, being senior to the Respondent No.3. On 1.08.2008, the Applicant submitted a representation to the Official Respondents requesting them to grant him promotion to the post of Director General of Police w.e.f. 31.07.2008, the date on which his junior was promoted. The Accountant General (A&E) wrote to the State of Bihar on 4.08.2008 to grant proforma promotion to the Applicant in the scale of Director General of Police as junior to the Applicant had been granted promotion in the scale of pay of the Director General of Police. The Applicant also submitted another representation on 8.08.2008 to the Respondent-2, requesting (a) to grant him proforma promotion w.e.f. 31.07.2008 and (b) to create an additional post of Director General of Police after obtaining the consent of the Central Government. On 15.09.2008, the Applicant joined the duty in the State of Bihar after getting relieved from the Central deputation, but the Respondents neither granted him promotion to the post of Director General of Police nor gave the pay scale of the said post. However, by order dated 26.9.2008, the Respondents posted the Applicant as Director General of Police-cum-Officer on Special Duty at Bihar Bhawan, New Delhi, but the Accountant General, Bihar objected informing the Respondent-2 that the Applicant had been appointed to a non-existence post and that the consent of the Central Government to create an additional post was necessary for regularization of (i) the said post and (ii) the waiting period i.e. 15.9.2008 to 28.9.2008. On 22.10.2008, the Respondent-2 informed the Respondent-4 that the post of Director General of Police-cum-Officer on Special Duty had been sanctioned from 1.4.2006 to 31.3.2009. Applicant submitted a representation to the Respondent-1 to sanction an extra ex-cadre post of Director General of Police. He also submitted an application on 10.11.2008 to the Respondents requesting them to grant promotion w.e.f. the date his junior had been promoted and fix the pay and allowances accordingly. However, the said representation was not replied to by the Respondents. Since the Applicant was not getting the pay for the last 2 months, he again submitted a representation on 14.11.2008 to the Respondents to grant him promotion w.e.f. 31.7.2008 and regularize the waiting period from 15.9.2008 to 28.9.2008 and declare the ex-cadre post of Director General of Police-cum-Officer on Special Duty, Bihar Bhawan, New Delhi equivalent in rank and status to the cadre of post of Director General of Police. The same was also not replied by the Respondents. As a result, he is before this Tribunal in this OA.
3. Notice was issued to the Respondents on 13.7.2009. When the case came up on 22.7.2009, the Counsel for the Applicant insisted for interim directions from the Tribunal but it was decided to hear the Respondents before such prayer to be considered. Enabling the Respondents to file reply the case was adjourned on 3.8.2009. In the meantime, Respondent-1 submitted written statement on 4.9.2009. It was found during the hearing on 25.9.2009 that Respondents-2 to 4 had not filed the reply affidavit, therefore, the last opportunity was granted on 6.11.2009. Respondent-1 and 4 were represented by their Counsel but Respondent-2 and 3 were not represented by the Counsel and they did not submit written counter affidavit to assist the Tribunal in adjudicating the issues, and finally the case was heard by us on 1.12.2009.
4. Shri Sarvesh Bisaria, the learned Counsel for the Applicant, contended that (i) the Applicant though senior to Respondent-3 was promoted with effect from 29.9.2008 whereas Respondent-3 got his promotion on 31.7.2008. Thus, the established principle of seniority was violated. (ii) The Applicant was drawing less pay than the Respondent-3. (iii) Prior concurrence of the Respondent-1 was not taken by the Respondent-2 in respect of number of DGP level posts to be filled before conducting the DPC, and the Applicant on reversion from the Central deputation was posted to a non-existent post in Bihar Niwas which violated Rule 11 of IPS (Pay) Rules, 2007. His contention was that both in status and pay scale the Applicant was adversely discriminated. As such action of the Respondent-2 was illegal and violative of Articles 14, 16 and 21 of the Constitution of India. Shri Bisaria, therefore, prayed to allow the OA.
5. The learned Counsel representing the Respondent-1 in the written submissions clarified the issues raised by the Applicant. (i) Any IPS officer who has completed 30 years of service in the IPS and whose name has been cleared by the duly constituted Selection Committee for promotion to the post of DGP can be posted on any of the posts at DGP level. (ii) It is true that the Government of Bihar promoted Shri D. N. Gautam (Respondent-3) to the grade of DGP without the prior concurrence of the Central Government as required under Rule 3(2) (ii) of IPS (Pay) Rules, 2007 and created the 5th post and posted the Applicant on the same violating Rule 11(7) of IPS (Pay) Rules, 2007. (iii) As per the amended provisions of IPS (Pay) Rules, 2007, one of the existing posts of Director General of Police (Pay Scale of Rs.75000-80000) is placed in the apex scale of Rs.80000 (fixed) and designated as the head of police force in the State. He submits that though the Government of Bihar can operate 4 posts (2 cadre and 2 ex-cadre) at the DGP level, but only one post was authorized to be at Rs.80000 (fixed) who is the head of police force in the State. Though it is the prerogative of the State Government to select one of the DGP to the fixed pay of Rs.80000, while doing so, Respondent-2 has to bear in mind that the senior cannot draw less pay than the junior.
6. Ms. Biji Rajesh, the Learned Counsel representing the Accountant General of Bihar (AG) supporting the prayers of the Applicant, drew our attention to AGs (i) letter dated 4.8.2008 (Page 59) to grant the Applicant proforma promotion on the basis of the one below rules; (ii) letter dated 6.10.2008 (Pages 79-80) seeking certain clarification from the Respondent-2; (iii) letter dated 23.10.2008 seeking clarification on the creation of an ex-cadre post in apex scale to accommodate the Applicant and (iv) the Applicants pay slip (Pages 109-110). She submitted that the claims of the Applicant was admissible as per IPS (Pay) Rules, 2007.
7. Before we go into the issues raised by the Applicant, we extract below the relevant provisions of IPS (Pay) Rules, 2007.
(i) Rule 3 (2) (ii) IPS (Pay) Rules, 2007 Appointment of a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadres or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade.
(ii) Rule 6 (7) and 6(8) of IPS (Pay) Rules, 2007 6(7) A member of the service, while holding post outside the cadre, including a post under the Central Government, may be granted proforma promotion to a post in the scale of pay above the time scale of pay specified in rule 3 by the Government of the State on the cadre to which he is borne.
6(8) In case of a member of the service being cleared for proforma promotion in the Super Time Scale and the Above Super Time Scale, the period of service covered by the proforma promotion shall, on his subsequent reversion to the cadre and appointment to a post in the said scale, count towards the initial fixation of pay and increments subject to the following conditions, namely:-
(i) the member of the service concerned should have been approved by the State Government for appointment to the said scale during the relevant period;
(ii) all his seniors (excluding those considered unfit) should have started drawing pay in that scale on or before the date from which the proforma promotion is granted to him;
(iii) the junior next below the officer(or, if that officer has been passed over for the reason of inefficiency or unsuitability or because he is on leave or serving outside the ordinary line or forgoes promotion on his own violation to that grade, the officer next junior to him not so passed over) should also have started drawing pay in that scale from that date and his appointment thereto not being fortuitous; and
(iv) the benefit should be allowed on one for one basis.
(iii) Rule 11(7) of IPS (Pay) Rules, 2007 11(7) At no time the number of members of the Service appointed to hold posts, other than cadre posts specified in Schedule III and referred to in sub-rule (1) and sub-rule (4), which carry a pay scale of Rs.24050-650-26000 per mensem, as the case may be, and which are reckoned against the State Deputation Reserve, shall except with the prior approval of the Central Government, exceed the number of cadre posts in the pay scale of Rs.24050-650-26000 per mensem, as the case may be, in a State Cadre or, as the case may be, in a Joint cadre.
8. It is noted that the IPS (Pay) Rules, 2007 were amended by DOP&Ts Notification No.14021/3/2008-AIS(II) dated 27.09.2008 to the extent that for the letters and figures Rs.24050-650-26000 in Rule 11(7), the letters, figures and wordsRs.75500-(annual increment @3%)-80000 were substituted. Further, in Schedule-II.A of the IPS (Pay) Rules, 2007, one of the existing posts of Director General of Police in the HAG+scale of Rs.75500-(annual increment@3%)-80000, was placed in the apex scale of Rs.8000(fixed) and designated as the head of police force in the State or Union Territory.
9. It is noted that as per the Government of India Notification No.I.11052/12/03-AIS(Ii) dated 07.12.2004 for the State of Bihar, two posts at the level of DGP are cadre posts, out of the two cadre posts sanctioned, one of the posts is placed in the apex scale of Rs.80000(fixed) to be the head of the police force. Further, as per the provisions of Rule 11(7) of IPS (Pay) Rules, 2007, the Government of Bihar is empowered to create two ex-cadre posts against the two sanctioned cadre posts. Thus, in all, the Government of Bihar can operate four posts at DGP level (one in the fixed scale of Rs.80000 and other 3 in Rs.75000-80000 scale). We find from the averments that on 1.1.2008, the Government of Bihar had 3 posts at DG level. On 31.7.2008, the Government of Bihar created the 4th post in DGP grade and promoted Respondent-3 to that grade/post. It is noted that on 15.9.2008, the Applicant returned from Central deputation to join the Government of Bihar. It is admitted fact that the Applicant is senior to the Respondent-3. The Respondent-2 vide its order dated 26.9.2008 created another post i.e. of DG-OSD, Bihar Bhavan, New Delhi in DG grade and posted Applicant to the post, and forwarded a proposal to Respondent-1 for ex-post facto approval for creation of the 5th post of DGP. Respondent-2 noticed two violations namely (i) the promotion of Respondent-3 without prior concurrence of Respondent-1 was in violation of Rule 3(2)(ii) of IPS Pay Rules 2007; and (ii) creation of 5th DG post and posting of the Applicant to the same violated the principle of 1:1 ratio between cadre and ex-cadre posts[Rule 11(7) of IPS (Pay) Rules 2007]. On getting the clarification Respondent-1 noted that there was scope for 4th post of DG. However, it was found that along with the Applicant, 2 other IPS officers on central deputation had not been given proforma promotion while promoting Respondent-3 as DGP. The Respondent-1 gave conditional concurrence for creation of the 5th DGP level post, subject to grant of proforma promotion as given under Rule 6 (7) and 6(8) of IPS (Pay) Rules, 2007 to the Applicant by the Respondent-1.
10. In view of the statutory rule position in the matter, taking into account the facts and circumstances of the case; and our above analysis, we come to the considered conclusion that the Applicant has made out a case in his favour. In the result, the following directions are issued to the official Respondents:-
To grant proforma promotion to the Applicant in the post of Director General of Police with effect from 31.7.2008 or the date his junior (Respondent-3) was promoted whichever is later.
To grant the Applicant all consequential benefits including seniority and admissible pay and allowances.
11. The Original Application having merits is, therefore, allowed in terms of our direction in Para 10 above, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali)
Member (A) Chairman
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