Delhi High Court
S.S. Ranade vs Union Of India And Anr. on 25 August, 1994
Equivalent citations: 1994IIIAD(DELHI)1556, 1994(31)DRJ196, 1995LABLC790
JUDGMENT Mahinder Narain, J.
(1) Rule D.B. (2) Since only a short point is involved in this case, by the consent of the parties, we have heard the arguments and we proceed to dispose of the writ petition.
(3) The petitioner appears in person and contends that he is governed by the Border Security Force (Seniority, Promotion & Superannuation of Officers) Rules, 1978 (hereinafter referred to as " the said Rules "). He contends that the age of superannuation for a person like him, i.e. the Commandant (Selection Grade), would be governed by Rule 9 of the said Rules, which reads as under:- "9.Superannuation Retirement age of officers holding a rank higher than that of Commandant shall be fifty eight years: and for officers of the other rank it shall be fifty five years. Provided that the government may, in every special circumstances and for reasons to be recorded in writing extend the retirement age of:- (a) an officer of the rank higher than that of Commandant, for a period of one year at a time but not in any case beyond the age of sixty years; (b) officers of other rank for a period of one year at a time, but not in any case beyond the age of fifty eight years."
(4) Petitioner contends that the rank of Commandant (Selection Grade) is a rank which is higher than a rank of Commandant as stipulated in Rule 9 as set out above.
(5) In support of his contention, he relies upon the observations of a Division Bench of this Court made in S.K. Srivastava v. Union of India reported as 1971, Vol.6 S.L.R. 453. The relevant parts of the said judgment are paragraphs 16 and 17, which are set out herein below:- "16. It is not the case of the petitioner that he was substantively transferred to the post of a Collector of Customs on 27.7.1970. It is well known that very few officers of the Indian Customs and Central Excise Service, Class I, have been confirmed as Collectors. May officers senior to the petitioner have yet to be confirmed. The petitioner could not, therefore, be substantively transferred to the post of a Collector of Customs. He was, therefore, obviously transferred to officiate in the post of a Collector of Customs. The order, of course, does not state whether the transfer was a substantive one or an officiating one. But the nature of the transfer has been proved to be an officiating one from the above circumstances of the case. Can it be said that the petitioner was transferred to a post carrying less pay than the - pay of the permanent post on which he holds a lien within the meaning of the exception to the general rule laid down in Fundamental Rule 15? Firstly, the petitioner has been confirmed only as an Assistant Collector and he has, therefore, a lien on the post of an Assistant Collector within the meaning of Fundamental Rule 9(13). To come within the exception, the petitioner has to prove things namely:- (1) that he held a lien on the permanent post of the Director of Revenue Intelligence, and (2) that the post of Collector of Customs carried less pay than the post of Director of Revenue Intelligence. These two requirements are also to be proved if the petitioner wants to show that he was reduced in rank by the impugned orders of transfer The word "rank" as used in Article 311(2) of the Constitution has not been defined. But it is well established that the words "dismissal, removal and reduction in rank" have a technical significance due to the special meanings attached to them historically from the very beginning. The meaning so attached to the word "rank" is that it is a class or a grade of service. The classes or the grades relevant for this purpose are those which are arranged in an ascending or a descending order, that is to say, they must be one above the other or one below the other.This is why the Central Civil Services (Classification, Control and Appeal) Rules, 1965 classified all the Central Civil Services and the Central Civil posts into four classes one below the other as Class I, Class Ii, Class Iii and Class Iv vide rules 4 to 6. The word "rank" has, therefore, a strictly service law significance. One rank is distinguished from another only by the classification of services or of posts within which they respectively fall. The post of Director of Revenue Intelligence is of the same class and of the same grade as the post of the collector of Customs as was expressly decided by the President in the memorandum dated 29th April 1960 at Annexure E of the writ petition which stated that "in partial modification of the orders conveyed in para 2 of this Ministry's letter No.1 (51)57-Ad Iv dated 4.12.1957, the President has been pleased to decide that the post of Director of Revenue Intelligence should carry the prescribed scale of pay of Collector of Central Excise/Customs Grade I, viz, Rs-1800-100- 2000 plus a special pay of Rs.250.00 p.m. with effect from 31.12.1959 and until further orders." This was further confirmed by the memorandum dated 20th July 1965 at Annexure Ee of the writ petition stating that "in supersession of all the existing orders on the above subject, the President has been pleased to decide that the scales of pay of the following post shall with effect from 1st June 1965 be as given below:- Designation of post Scale 1. Director of Inspection, Customs & Central Excise ) 2. Director of Revenue Intelligence) Rs.l800-100-2000-125-2250 3. Collector of Customs & Central Excise) 4. Narcotics Commissioner) 5. Additional Collectors of Customs and Central Excise) 6. Appellate Collectors of Central Excise & Customs) 7. Deputy Director of Inspection, Rs.1100-50- 1300-60-1600 Customs & Central Excise) 8. Deputy Director of Revenue Intelligence) 9. Officer on Special Duty, Bombay Central Excise Collectorate) 10. Deputy Collectors of Central Excise & Customs (including the Dy Narcotics Commissioner and D.C.S. & I Branch) The Special pay of Rs.250.00 p.m. now attached to posts of Director of Inspection (Customs & Central Excise), Director of Revenue Intelligence, Collectors of Customs, Calcutta and Bombay and two posts of Collectors of Central Excise, Bombay and Delhi will be reduced to Rs.200.00 p.m. from 1st June, 1965. "17. The concept of "rank" being solely significant for the purposes of administration of services and the law relenting to it, the Government has always applied the criterion of pay to distinguish one class or grade of service or post from another. In fixing the pay of a particular post or the scale of pay of a particular service, the government considers the status and responsibility at to a particular post or class of service. For instances, Rule 9 of the Indian Police Service Rules, 1954, specifically states that the government declares one post as being equivalent to another and ensures that the pay which a member of the service would get in each post would be the same. The pay itself is determined by the Government after taking into account the nature of the duties involved in the post. As the Government would have already taken into account the nature of duties, responsibilities and the status of different posts before classifying them and would have indicated the classification by the fixation of different salaries or pay scales, the Courts should be well advised in regarding the pay or the. sale of pay of post as the principal criterion to determine the rank of the post" Further, the Courts are not in the same position as the Government is in determining the nature of duties, responsibilities and status of a particular post and in comparing those with the nature of duties, responsibilities and status of another post. It would not be advisable, therefore, for the courts to ignore the classification made by the Government as indicated by the emoluments fixed by the Government and try to determine afresh the rank of a particular post by having regard to considerations other than the pay specially because these considerations have already been taken into account by the Government in fixing the pay or the pay-scale of a particular post. In K.Gopaul v. Union of India and others, , the petitioner was transferred from the post of Inspector General of Registration to the post of Accommodation Collector. In the former c'post, he was the head of a departmental while in the latter post he was not so. It was urged by him that he was, therefore, reduced in rank. The Supreme Court, however, rejected this contention with the following observation at page 632:- "THE rank in Government service does not depend on the mere circumstance that the government servant, in the discharge of his duties, is given certain powers".
In the High Court, Calcutta v. Amal Kumar Roy, , the loss of seniority by some places in the same grade of service was not regarded as reduction in rank. In State of Punjab v. Shri Kishan Dass, , Shelat, J., carefully reviewed the existing case-law on the meaning of "reduction in frank" and concluded that the expression "reduction in rank" in Article 311(2) has to be construed according to the well established meaning it has acquired under the various service rules and the provisions in that regard. Since rule 16.1 of the Punjab Police Rules made a clear distinction between reduction in rank and the stoppage of increment or forfeiture of approved service for increment, the letter could not be treated to be "reduction in rank" which could only mean reduction from a higher to a lower rank. As stated above, the Central Civil Service, Class I is a class or grade of service in which both the posts of Director of Revenue Intelligence and Collector of Customs/Central Excise are comprised. Both the posts are, therefore, of the same rank."
(6) The emphasised part of the judgment clearly supports the case of the petitioner.
(7) The petitioner also refers to and relies upon the Bsf (Seniority, Promotion and Superannuation of Officers)Rules 1978, which were notified on 31st May 1979, particularly, the provision of Rule 6 thereof. The said Rule 6 reads as under:- "6.Eligibility of officers for promotion (1) An Assistant Commandant who has put in a minimum Six years Group''A" service shall be eligible for promotion to the rank of Deputy Commandant. (2) A Deputy Commandant, who has put in a minimum twelve years Group "A" service shall be eligible for promotion as second incommand. (3) A Second-in-command, who has put in a minimum fourteen years Group "A service including at least two years of which as a Second-in-command, shall be eligible for promotion to the rank of Commandant. (4) A Commandant, who has put in a minimum of two years service in the rank of Commandant and has put in a minimum sixteen years Group "A" service, shall be eligible for promotion to the rank of Commandant (Selection Grade). (5) .......... (6) .......... (7) .........."
(8) The provisions of Rule 6(3) and (4) of the said Rules, when read together in conjunction with the judgment of this Court in S.K.Srivastava (supra), establish that the petitioner, holding the rank of Commandant (Selection Grade), holds a rank which is higher than that of Commandant.
(9) The petitioner also refers to the Ministry of Home Affairs' communication dated 4.3.94 relating to filling up of vacancy of AIG/Commandant in the Central Industrial Security Force by Re-employment basis, which is an organisation different from the organisation in which the petitioner is presently employed. Paragraph 6 of the said communication provides that officers who held the rank of Commandant (Selection Grade) in the pay scale of Rs-4500-7500 in Cops at the time of retirement are not eligible to apply. In our view, this communication appears to be administrative instructions, would not be used to control the interpretation of the two aforesaid Rules which we have noted above.
(10) Petitioner also points out that there is a distinction in rank between the Commandant, and Commandant (Selection Grade) in the B.S.F. as the fact the Commandant wears one star and Ashoka emblem on the shoulder; whereas Commandant (Selection Grade) wears an Ashoka emblem with two stars; the Commandant (Selection Grade) also wears coloured tabs on collars whereas the Commandant does not.
(11) MR.SHALI has referred to a judgment in the case of K.Nagaraj and others v. State of Andhra Pradesh and another etc. reported as , which dealt with reduction in the age of superannuation from 58 to 55 on the basis of Government policy and the Court in that case held that the reduction in age from 58 to 55 of compulsory retirement was not arbitrary. In our view the said judgment of the Supreme Court has no application to the case before us.
(12) The contention of Mr. Shali that the nature of duties which are performed by the Commandant and Commandant (Selection Grade) does not have the bearing on the matter in view of Rule 9 of the said Rules.
(13) In our view, the fact that there is a distinction between the Commandant and Commandant (Selection Grade), the petitioner being a (commandant (Selection Grade) would, in view of the judgment of this Court in S.K. Srivastava (supra) be considered to be holding a rank higher than that of Commandant and would retire at the age of 58 years.
(14) In view of above, we allow the petition. Rule is made aboslute.
(15) There is no order as to costs.