Delhi High Court
Delhi Administration Doctors Welfare ... vs Ministry Of Personnel, Public ... on 13 October, 2014
Author: Vipin Sanghi
Bench: S. Ravindra Bhat, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 13.10.2014
+ W.P.(C) 4067/2014
JOINT ACTION COUNCIL OF SERVICE
DOCTOR'S ORAGANISATION ..... Petitioner
Through: Mr. Sagar Saxena, Advocate.
versus
MINISTRY OF PERSONNEL, PUBLIC
GRIEVANCES AND PENSIONS, DEPTT. OF
PERSONNEL AND TRAINING AND ORS ..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC along
with Mr. Balkishan, Section Officer,
M/o H & FW for respondents No.1 to
3.
+ W.P.(C) 4073/2014
DELHI ADMINISTRATION DOCTORS
WELFARE ASSOCIATION AND ORS ..... Petitioners
Through: Mr. Sagar Saxena, Advocate.
versus
MINISTRY OF PERSONNEL, PUBLIC
GRIEVANCES AND PENSIONS, DEPTT. OF
PERSONNEL AND TRAINING AND ORS ..... Respondents
Through: Mr. Rajesh K. Gogna, CGSC for
respondents No.1 to 3.
Ms. Nikhita Khetrapal, Advocate for
respondent No.4.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
W.P.(C.) Nos.4067 & 4073/2014 Page 1 of 16
VIPIN SANGHI, J. (OPEN COURT)
1. These two petitions have been preferred by two associations, namely,
Joint Action Council of Service Doctor's Organization and Delhi
Administration Doctors Welfare Association, and others, to assail the
common order dated 04.10.2013, passed by the Central Administrative
Tribunal, Principal Bench, New Delhi (for short, 'the Tribunal') in O.A.
Nos. 2727/2012 and 2726/2012 respectively preferred by these petitioner
associations. The Tribunal by the impugned order has declined the
petitioner's claim for grant of benefit of non-functioning upgradation (NFU)
to the members of the petitioner associations and has directed the
respondents to deliberate upon the issue through an officer of the level of
Joint Secretary, in the light of the observations made in para 6 of the order
passed by the Tribunal in O.A. No. 1169/2010.
2. The members of the two petitioners' association are members of the
Central Health Scheme which is an organized Group 'A' service. The Sixth
Central Pay Commission recommended higher pay scale on non-functional
basis to members of organized Group 'A' services in the Pay Band-3 and
Pay Band-4. This proposal was accepted by the government. Consequently,
the Department of Personnel & Training (DoPT) issued O.M. dated
24.04.2009, which, inter alia, stated:
"No. AB.14017/64/2008-Estt.(RR)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
---
New Delhi, the 24th April, 2009
W.P.(C.) Nos.4067 & 4073/2014 Page 2 of 16
Office Memorandum
Subject: Non-Functional upgradation for officers of
organized Group 'A' Services in PB-3 and PB-4.
Consequent upon the acceptance of the recommendations
of the Sixth Central Pay Commission, the following orders are
issued:-
(i) Whenever an Indian Administrative Services Officer of
the State of Joint Cadre is posted at the Centre to a
particular grade carrying a specific grade pay in Pay
band 3 or Pay Band 4, the officers belong to batches of
Organized Group A Services that are senior by two years
or more and have not so far been promoted to that
particular grade would be granted the same grade on
non-functional basis from the date of posting of the
Indian Administrative Service Officers in that particular
grade at the Centre.
..................
....................
2. Grant of higher scale (i.e. pay band and/or grade-pay)
under these instructions would be w.e.f. 1.1.2006 wherever due
and admissible."
3. This non-functional upgradation was to be based on empanelment and
posting of an IAS officer at the Centre. Such upgrdations were not to be
linked to the vacancies in the grade. The upgradation to be granted was to
be purely non-functional, personal to the officer and it did not bestow any
right on the officer to claim promotion or deputation benefits based on non-
functional upgradation. Amongst other conditions, it was also provided that
all the prescribed eligibility criteria and promotion norms, including
'benchmark' for upgradation for a particular grade pay would have to be met
W.P.(C.) Nos.4067 & 4073/2014 Page 3 of 16
at the time of screening for grant of higher pay scale under the said orders.
The terms and conditions of office memorandum also contained the
illustration to the following effect:
"ILLUSTRATION: If officers of 1987 batch of IAS are
empanelled as Joint Secretary in the grade pay of Rs. 10,000/-
in PB-4 and an officer of the batch gets posted in the Centre
(under Central Staffing Scheme) on 15th January 2008, all the
officers of the 1985 batch of organized Gr.A Central Services
who have not been promoted to the Joint Secretary or
equivalent grade and who are eligible for the same on 1/1/2007
for the panel year 2007-08, would be appointed to the same
grade on non-functional basis under these instructions w.e.f.
15/1/2008. Same would be the case in the event of posting of
an officer of particular batch as Deputy Secretary/Director
under Central Staffing Scheme."
4. The same decision was reiterated vide office memorandum dated
21.05.2009 which reads as follows:
"Office Memorandum
Subject: Non-Functional upgradation for officers of
organized Group 'A' Services in PB-3 and PB-4.
A reference is invited to this Department OM of even No.
dated 24.04.09 on the above subject. As indicated at point (v)
of para 1, the details of batch of the officers belonging to the
Indian Administrative Service who have been posted at the
Centre in the various grades of PB-3 and PB-4 w.e.f.
01.01.2006 as well as the date of posting of the first officer
belonging to the batch is annexed. Necessary action may be
taken for grant of higher scale for the Officers belonging to
batches of Organized Group A Services that are senior by two
year or more and have not so far been promoted to that
particular grade."
W.P.(C.) Nos.4067 & 4073/2014 Page 4 of 16
5. It appears that certain doubts with regard to the aforesaid decision
arose, which too were clarified vide office memorandum dated 25.09.2009.
We may note that none of the clarifications issued sought to limit the scope
of entitlement to NFU in respect of officers/category of officers who were
otherwise entitled to pay upgradation/revision under the Assured Career
Progression Scheme (ACP) or the Dynamic Assured Career Progression
Scheme (DACP). The DoPT, however, sought to restrict the grant of NFU
by issuing an office memorandum dated 05.11.2009. The relevant part
thereof reads as follows:
"No. AB.14017/39/2009-Estt.(RR)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
New Delhi
---
New Delhi, the 5th November, 2009
Office Memorandum
Subject: Non-Functional upgradation for officers of
organized Group 'A' Services in PB-3 and PB-4-applicability
to Central Health Services (CHS).
The undersigned is directed to refer to Ministry of Health
and Family Welfare OM No. A45012/1/2009-CHS.V dated
15.5.09 on the above subject and to say that the matter has
been examined in this Department in consultation with
Department of Expenditure. Keeping in view the fact that
Dynamic ACP and Non-Functional Upgradation are separate
schemes and it would not be desirable to mix one with the
other, it has been decided that the Department cannot
selectively choose the operation of different scheme at various
W.P.(C.) Nos.4067 & 4073/2014 Page 5 of 16
levels and a different dispensation at this stage cannot be
accepted." [ emphasis supplied ]
6. Consequently, the NFU was sought to be denied on the ground that
where Dynamic ACP was being granted, NFU could not be granted as it was
'not desirable to mix one with the other'.
7. The members of the petitioner association assailed the said decision to
deny the benefit of NFU on the basis that they were covered by that DACP
Scheme by preferring O.A. No. 1169/2010. The Tribunal considered the
following issue in its order dated 11.11.2010 disposing of the aforesaid
original application:
".......Whether the doctors belonging to the Central Health
Service (CHS), who are covered by the Dynamic Assured
Career Progression (DACP) Scheme can be denied the benefit
of the Office Memorandum number AB.14017/64/2008-
Estt.(RR) dated 24th April, 2009 issued by the Department of
Personnel and Training (DOP&T), which provides that:
(i) Whenever an Indian Administrative Services Officer of
the State of Joint Cadre is posted at the Centre to a
particular grade carrying a specific grade pay in Pay
band 3 or Pay Band 4, the officers belong to batches of
Organized Group A Services that are senior by two years
or more and have not so far been promoted to that
particular grade would be granted the same grade on
non-functional basis from the date of posting of the
Indian Administrative Service Officers in that particular
grade at the Centre".
8. The Tribunal returned a finding that the members of the petitioner
satisfied the conditions for grant of NFU as provided for in the office
memorandum dated 24.04.2009. The contention of the petitioner was that
W.P.(C.) Nos.4067 & 4073/2014 Page 6 of 16
there was nothing in the Scheme for grant of NFU and the instructions and
the clarifications issued in its wake, to show that the DACP Scheme and
NFU are mutually exclusive. The DoPT had not given any justification in
its letter dated 05.11.2011 for its decision that the DACP Scheme would
exclude the application of the NFU as prescribed by the OM dated
24.04.2009. After considering the explanation furnished by the respondents-
which was that the NFU Scheme was intended to remove the disparity
between different services in the matter of promotion; that CHS officers
have their own Assured Career Progression Scheme under DACP; prior to
Sixth Central Pay Commission, DACP was upto NFSG level and Sixth
Central Pay Commission did not recommend any modification to the same,
the Tribunal, inter alia, held as follows:
"6. We do not find the explanation satisfactory at all. The
intention of the NFU scheme seems to remove the disparity
between the IAS and other organised Group 'A' services. No
facts have been given to substantiate the statement that
promotions under the DACP Scheme are faster than under
the NFU. Even if that be so, it would not exclude the CHS
from the NFU Scheme, first, because the said scheme does
not apply to HAG level and second, because if any batch of
the CHS has already been promoted to PB-3 or PB-4, as the
case may be, before an IAS officer posted at the Centre gets
the same pay band, the NFU Scheme would not apply to CHS,
but in case it is not so, the scheme would apply to them. The
first Respondent-DOP&T has, it is clear, not thought through
its response properly. The rejection seems to be without any
application of mind.
7. In view of the above discussion and considering that no
rationale has been given to justify the impugned order, we
quash and set aside the same with directions to the Respondent-
DOP&T to reconsider the matter and pass a fresh order within
W.P.(C.) Nos.4067 & 4073/2014 Page 7 of 16
four weeks of receipt of a certified copy of this order, which
should be logical, cogent and speaking order. The Applicants
would be at liberty to challenge the same in an appropriate
proceeding, if so advised and if the grievance survives. There
will be no orders as to costs. The OA is disposed of in the above
terms."
[ emphasis supplied ]
9. Pertinently, this decision of the Tribunal attained finality as it was not
assailed by the respondents.
10. Since the Tribunal gave an opportunity to the respondent-DoPT to
reconsider the matter and pass a fresh order 'which should be logical, cogent
and speaking order', the DoPT issued a fresh memorandum on 02.04.2012,
once again denying the NFU Scheme to the members of the petitioner
association on the same basis i.e. that they were covered by the DACP
Scheme and, consequently, NFU Scheme shall not be applicable to officers
of those organized services where FCS and ACP Schemes are already
operating, and where officers are already separately covered by their own in-
situ Career Progression Scheme. The said office memorandum dated
02.04.2012, insofar as it is relevant, reads as follows:
New Delhi, the 2nd April, 2012
Office Memorandum
Subject:- Non-Functional upgradation for Officers of
Organised Group 'A' Services -- applicability for
Services covered under other promotion schemes.
Attention is invited to instructions of this
Department issued in OM No. AB.14017/64/2008-Estt. (RR)
dated 24.4.09 for Non-functional Upgradation to officers of
Organised Group A Services in PB-3 and PB4 as per 6th CPC
W.P.(C.) Nos.4067 & 4073/2014 Page 8 of 16
recommendations and accepted by the Government.
The instructions on NFU are applicable at HAG level where
such a scale exists in the Service.
2. The issue of wide spread stagnation in various Organised
Group A Services where the promotion is vacancy based was
considered by the 6th CPC which recommended NFU linked to
empanelment/ appointment of IAS officers at the Centre.
References for extending the benefit of NFU to officers included
in Organised Group 'A' Services and who are covered by their
own promotions schemes like DACP, FCS etc. continue to be
received by this Department. The issue has been examined in
consultation with Department of Expenditure. The 6th CPC has
specifically recommended separate schemes at various levels
after detailed deliberations and the same are required to be
followed 'in toto'. The attributes of one scheme cannot be
transposed on another and two schemes cannot run
concurrently for a cadre as it would be against the spirit of
6th CPC recommendations.
3. Keeping in view that it would not be desirable to mix the
provisions of one scheme with the other at different levels, it is
clarified that the benefit of NFU to Organised Group A
Services shall not be applicable to the officers in those
Organised Services where FCS and DACP Schemes are
already operating and where officers are already separately
covered by their own in-situ Career Progression Schemes.
4. The Cadre Controlling Authorities of various Services in the
Ministries/Departments may accordingly take necessary
action."
[ emphasis supplied ]
11. The petitioner assailed the said office memorandum by preferring the
aforesaid original applications. Before the Tribunal, the respondents
W.P.(C.) Nos.4067 & 4073/2014 Page 9 of 16
opposed the Scheme of the petitioners by furnishing the following 13
reasons:
"(i) The Scheme of DACP was implemented exclusively for
promotion of CHS officers upto NFSG level as per the 5th
CPC's recommendations and they have been the
beneficiaries of the same since 05.04.2002; whereas the
officers of other organized Group A cadres to whom no
such benefit was granted post 5th CPC stage.
(ii) The Scheme implemented for the GDMO sub cadre of
CHS post 5th CPC stage provided promotion to Chief
Medical Officer (NFSG) (Rs. 14300-18300) on
completion of 13 years of regular service in the GDMO
sub cadre. Such a dispensation was not available to the
other organized Group A cadres post 5th CPC stage.
(iii) Consequent upon the implementation of the
recommendations of the 6th CPC this Scheme has been
extended upto SAG level for CHS Doctors vide Ministry
of Health & Family Welfare OM dated 29.10.2010.
(iv) Promotions under this Scheme will be made without
linkage to vacancies. The GDMP sub-cadre would attain
the SAG Grade after 20 years of service even if no posts
are vacant.
(v) In the case of Organized Group A services, SAG officers
can be allowed Non-functional upgradation to the HAG
Grade only where there is such a Grade in the Service.
(vi) Whereas promotions for the officers of the other
Organized Group A Services (which include technical
services, non-technical services and other services) upto
the SAG level took a much longer period than the CHS
Doctors since such promotions were linked to vacancies.
(vii) Whereas the such officers could be promoted to the
higher level only if posts were vacant.
W.P.(C.) Nos.4067 & 4073/2014 Page 10 of 16
(viii) As such vacancies arose after a considerable period of
time, officers of other Organized Group A Services had
to fact prolonged period of stagnation.
(ix) As per the consolidated information for all such cadres
prepared by DOPT the SAG level was attained by the
technical services after 22 to 36 years of service, for non-
technical services after 17 to 27 years of service and for
other services 25 to 37 years would lapse before they
could obtain such a Grade.
(x) The issue of such widespread stagnation across
innumerable Group A cadres was examined by the 6th
CPC vide para 3.3.12 of its Report and recommended a
higher no-functional grade to such officers of Organized
Group A Services which shall be personal to them and
shall be delinked from vacancies.
(xi) The above recommendations of 6th CPC have been
accepted by the Government as per the Ministry of
Finance, Department of Expenditure Notification dated
29th August, 2008. It is also mentioned that this will also
be applicable to the Indian Police Service and the Indian
Forest Service in their respective State cadres for which
the relevant cadre controlling authorities will issue the
orders.
(xii) The DOPT had accordingly issued the instructions in
OM dated 24.4.2009 in respect of officers of Organized
Group A services.
(xiii) The doctors of CHS are not similarly placed with the
other Organized Group A cadres in regard to grant of
allowances also. There are several allowances like non-
practicing allowance. Annual Allowance, PG allowance
available to CHS Doctors which are not accruing to the
other Organized Group A Officers."
W.P.(C.) Nos.4067 & 4073/2014 Page 11 of 16
12. The submission of the respondent was that fixation of pay and
admissibility of financial upgradation to government service was a complex
matter to be decided by the executive, and it is not for the courts/tribunals to
intervene in such matters. The Tribunal accepted this argument of the
respondent by placing reliance on the judgments of the Supreme Court in
Union of India Vs. P.V.Hariharan (1997) 3 SCC 568 and the Union of
India Vs. Makhan Chand Roy AIR 1997 SC 2391. The Tribunal rejected
the petitioner's contention that since the OM dated 25.09.2009 had not
clarified that those who had been given benefit of DACP Scheme, would not
be entitled to NFU, there was no justification for denial of the benefit of
NFU to the applicants. The Tribunal noticed the petitioner's submission that
by way of clarification, the object of the Scheme could not be defeated.
However, it held that it was not specifically provided in the NFU Scheme
that the same would be applicable- even to those who were granted financial
upgradation in terms of different schemes.
13. Learned counsel for the petitioner associations submits that the
members of the associations are entitled to the higher pay scale on non-
functional basis in accordance with the 6th CPC. Further, he submits that the
denial of the benefit of the NFU Scheme, on the ground that the NFU and
DACP are two different schemes, is an afterthought of the respondent no. 1,
as neither the 6th CPC nor the Union Cabinet imposed any such condition.
14. Another submission of the petitioner associations is that the benefit of
the DACP is given only till the level of SAG, while the benefit of the NFU
is awarded till the level of HAG. Also, the NFU is not a career progression
W.P.(C.) Nos.4067 & 4073/2014 Page 12 of 16
scheme, and only an incidental scheme which provides for non-functional
upgradation-which is personal only to the eligible officers belonging to the
batches of organized Group 'A' service, senior by two or more years to the
IAS officer of the State of Joint cadre posted in Centre to a particular to
grade carrying a specific grade pay in Pay Band- 3 and Pay Band-4.
15. Learned counsel for the Respondent Ministry submits that the benefit
of the NFU scheme is not applicable to the organized services where the
FCS and DACP schemes are already in operation. Therefore, NFU would
not be applicable to the CHS doctors as they are covered by the DACP
scheme. Learned counsel submits that fixation of pay and admissibility of
financial upgradation to government servants is a policy matter to be decided
by the executive, and is not for Courts/Tribunal to interfere.
16. Having heard the counsels for the parties and perused the documents
on record, this Court is of the opinion that the order of the Tribunal cannot
be sustained.
17. There can be no quarrel with the proposition laid down in the
judgments of the Supreme Court in Union of India Vs. P.V. Hariharan
(supra) and Union of India Vs. Makhan Chand Roy (supra), that pay
fixation and financial upgradation are complex issues, and interference by
the Courts/Tribunals would not be justified unless there is hostile
discrimination. However, the present is not one such case. In fact, the
present is a case where the Sixth Central Pay Commission has granted the
benefit of the NFU Scheme to the officers of the organized Group 'A'
service in Pay Band - 3 and Pay Band - 4 who satisfied the conditions
W.P.(C.) Nos.4067 & 4073/2014 Page 13 of 16
stipulated in the aforesaid office memoranda, but the said benefit is sought to
be denied by the respondents on the strength of the office memorandum
dated 02.04.2012. If the justification offered by the respondents for denial
of the benefit of the said NFU Scheme is not sustainable, and goes beyond
the recommendation of the Sixth Central Pay Commission - which has been
accepted by the government, certainly, the claim of the petitioner's
association and its members cannot be denied.
18. The recommendations of the 6th CPC were to bring at par the pay of the
officers in Pay Band - 2 and Pay Band - 3, who are senior by two or more
years to the IAS officers who are posted at the Centre. The upgradation is
non- functional, and does not create any right for promotion or deputation
benefits for the officers who are given the upgradation, which is personal to
them. The objective of the NFU Scheme appears to be to remove the
disparity in the pay being drawn by officers of Group 'A' Services (PB-3
and PB-4) vis-a-vis IAS Officers of the State or joint cadre who are posted at
the Centre. The endeavour appears to be to remove the said disparity to a
certain extent, as only such of the officers of the organized Group 'A'
Service would get non-functional upgradation, who are at least two years
senior to the IAS officer posted at the Centre. Pertinently, the Tribunal had
itself found in the earlier round (while deciding O.A. No. 1169/2010) that
the intention of the NFU Scheme was to remove the disparity between the
IAS and other Group 'A' Services. The aforesaid finding has become final
and it was never challenged by the respondents. The thirteen reasons given
by the respondents before the Tribunal-which were recorded in the
impugned order itself, appear to be wholly irrelevant to the purpose for
W.P.(C.) Nos.4067 & 4073/2014 Page 14 of 16
which the NFU Scheme was granted by the 6th Central Pay Commission to
officers of Group 'A' organized services. In our view, it is wholly irrelevant
that the DACP Scheme was implemented for the CHS Officers up to NFSG
level as per the Fifth Central Pay Commission's recommendation since
05.04.2002, whereas officers of other organized Group 'A' cadres were not
granted such benefits. This is a historical fact of which the 6th CPC was
aware. Yet it did not seek to deny the benefit of the NFU Scheme to the
CHS. Obviously, the grant of NFU to the eligible officers of the CHS would
be relevant, only if after grant of benefit under the DACP Scheme, there is
disparity between the pay of the eligible officers in the organized Group 'A'
Services and the pay drawn by the IAS Officer posted at the Centre. To us,
it is clear that the reasoning adopted by the respondents to deny benefit of
the NFU Scheme to the officers of the petitioners association-which,
admittedly, is an organized Group 'A' Service, is founded upon wholly
extraneous considerations which do not find mention in the recommendation
of the 6th Central Pay Commission as accepted by the government and the
said reasons do not shake the basic purpose of the grant of NFU-as a
personal upgrdation to the eligible officers. Pertinently, even when
clarifications were issued by the DoPT vide O.M. dated 25.09.2009, the
DoPT did not seek to limit the scope of the entitlement to NFU, on the
premise that where ACP or DACP schemes are in operation, the NFU shall
not be admissible. Therefore, it appears to us, that the stand subsequently
taken by the respondents to deny the benefit of the NFU Scheme to the
eligible officers of the CHS, is clearly an after-thought.
W.P.(C.) Nos.4067 & 4073/2014 Page 15 of 16
19. Since we do not find any substance in the reasons given by the
respondents to deny the benefit of the NFU Scheme to the officers of the
petitioners associations, we have no hesitation in quashing the said decision
of the respondents contained in the office memorandum dated 02.04.2010,
which we hereby do.
20. For the above reasons, we are of the opinion that the impugned order
of the Tribunal in unsustainable. It is, accordingly, set aside. The
respondents are hereby directed to issue necessary and consequential orders
granting benefit of the NFU Scheme as per the Sixth Central Pay
Commission recommendations to the members of the Central Health
Scheme - a Group 'A' organized service. The necessary orders in this regard
shall be issued within six weeks from today.
21. The writ petition is allowed in the above terms.
VIPIN SANGHI, J.
S. RAVINDRA BHAT, J OCTOBER 13, 2014 sl W.P.(C.) Nos.4067 & 4073/2014 Page 16 of 16