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2. The applicants submit that they had earlier approached the Tribunal along with others in OA-766/2007 seeking grant of non-functional scale grade (NFSG) of Rs.8000-13500/- (pre-revised) with all consequential benefits as granted to similarly situated persons in Central Secretariat Service (CSS). A perusal of copy of the OA filed at Annexure A-3 shows the names of applicants No.1 and 2 but the name of Sh. Shiv Prasad who is applicant No.3 is not traceable in the cause title. This O.A. was disposed of on 26.10.2007 directing the respondents to take a final decision as to the grant of NFSG within the stipulated period of time. The respondents passed orders on 22.09.2008 (Annexure-A5) in compliance thereof conveying the decision to grant the NFSG of Rs. 8000-13500/- to SOs of AFHQCS on the same lines as had been granted to SOs of CSS vide DoP&T order dated 13.11.2003 modified by order of 25.01.2006. This decision was taken in consultation with Ministry of Finance and DoP&T. It is pointed out that in fact, following acceptance of the recommendations of the 6th CPC, the respondents by their communication dated 11.09.2008 (Annexure-A4) had already forwarded the names of serving regular SOs belonging to DR and LDCE mode who had completed 4 years or more approved service in the grade as on 01.01.2006 onwards to the Dy. CAO(A) and others for considering their cases for grant of pay fixation in Pay Band-3 (Rs.15600-39100). The list of regular SOs (LDCE mode) enclosed with this communication shows the names of applicants No. 1, 2 and 3 at Serial Nos. 51, 6 and 91 and the columns against their names indicate that they had taken the LDCE 2003, 2002 and 2004 respectively and as a result their approved service had been reckoned from 01.01.2003, 01.01.2002 and 01.01.2004 respectively. It is asserted that this was in accordance with Rule 2(b) (ii) of the AFHQCS Rules, 2001 taking the approved service correctly from the Ist January of the year of the LDCE in which the applicants participated and succeeded for their appointment as SO. It is stated that although this communication is not endorsed to the applicants but they had received a copy by letter dated 06.02.2009 under RTI Act, 2005.

10. It is argued that although the Rules provide for counting approved service from 1st day of January of the year for which such examination was held, the benefit has now been extended only from 1st January subsequent to the year of examination whereas it has to be with respect to the year of LDCE. According to the applicants the Recruitment Rules applicable to CSS and AFHQCS are worded identically with the difference that in CSS approved service is to be counted from 1st day of July of the year for vacancies of which such examination was held, but in the case of AFHQCS it is counted from the 1st day of January of the year for which such examination was held. Therefore in CSS it is dependent on the year for vacancies of which the exam was held whereas there is no such condition in the AFHQCS. At the same time, it is stated that since the benefit of NFSG has been granted at par with CSS, it was arbitrary and discriminatory to decide upon a different year than CSS for reckoning of approved service. It is pointed out that Annexure-AR2 (Colly.) shows that SOs of CSS promoted on the basis of LDCE 2003 have been given NFSG from 01.07.2007 as per documents at pages 26 to 31 enclosed with the rejoinder. The benefit of NFSG was therefore required to be given at par with similarly situated SOs of CSS, particularly since the respondents had accepted in their reply to the averments of the applicant in OA-766/2007 that eligibility for NFSG would be as on 01.01.2007 as recruitment was through LDCE 2003. We, however, do not find any copy of such reply affidavit on record. The Recruitment Rules of SOs in CSS dealing with the grant of NFSG are also not traceable in the pleadings. However, the action taken by the respondents with regard to reckoning of approved service in the case of SOs and PSs of CSS has also been contested as being arbitrary. This appears to be somewhat contradictory to earlier averments. It is stated that there were sufficient vacancies under LDCE in the year 2001 and 2002 and the opinion of the Legal Advisor was in a different matter concerning seniority between direct recruits and promotees and not relevant to the present case. The applicants have enclosed a copy of the judgment of the Honble Supreme Court dated 19.02.2008 in the case of Direct Recruits vs.Promotees at Annexure AR-3 as well as reply received under RTI Act dated 25.03.2009 whereby file notings asked for were received. The latter are placed at Annexure AR-6 and perusal thereof shows a discussion of the variation in assessment of approved service between the three modes of recruitment of SOs in AFHQCS.

14. It is evident that keeping in view the AFHQCS Rules, 2001 the entitlement for grant of NFSG was laid down in terms of the approved service defined therein and upon completion of 4 years of such service in the grade. In this way the sanction of such benefit was based on approved service and did not say regular service. It may have been a similar provision for CSS as appears from representation of applicant No.2 dated 24.09.2008 addressed to JS(Trg.&CAO) in which he has pointed out that in both the DoP&T orders i.e. 13.11.2003 and 25.01.2006, by which NFSG was granted to SOs of CSS by DoP&T, it was mentioned that this scale is admissible to SOs of CSS on completion of 4 years approved service in the grade. The applicants have pointed out by reference to the annexures to the rejoinder that SOs in CSS who were successful in LDCE 2003 were given the benefit of NFSG after completion of 4 years with reference to the year 2003 in terms of the order at page-102 and effective from 01.07.2007. However, the AFHQCS Rules, 2001 were already in existence more than 7 years before the benefit of NFSG was extended to AFHQCS. These Rules mentioned the Ist of January whereas the CSS Rules take into account Ist of July for consideration of approved service, which would have its own implications for such a situation in CSS, especially as the applicants themselves aver that in CSS it relates to Ist of July of the year for vacancies of which such exam was held.

23. The eligibility for grant of benefit of NFSG depends inter-alia upon completion of the required 4 years of approved service. It would therefore be necessary to consider as to from which date such approved service is to be taken as having commenced. The definition links the commencement of approved service to the first day of January of the year for which such examination was held. The rationale for interpretation of this as the first day of January of the year of vacancies against which the appointments are made, as per the stand of the respondents, would appear to lie in the Rules and instructions contained in Chapter 54 of Swamys Complete Manual on Establishment and Administration for Central Government Offices Ninth Edition 2003. These reveal that there is a concept of vacancy year which is either the calendar year or financial year. In order that filling up of vacant posts arising in such year is not delayed the panels have to be prepared in advance of the vacancy year. The date of eligibility with reference to the vacancy year is invariably the first of January of that year. That is, for vacancy year 2003-2004 it would be the first of January 2003. Such date of eligibility seems to be followed in the case of NFSG for Group-A posts as well. NFSG is a segment of the grade which is that of SO in the present case. It is also Non-Functional in character since the appointment to NFSG involves mainly the extension of a higher pay scale to eligible officers within the existing sanctioned strength of the cadre. It is in the nature of a higher financial grade which is given in view of length of service, but on the same post. As such, these words in the definition would extend eligibility for grant of NFSG to all those SOs in AFHQCS who have entered the fifth year of approved service, starting from first of January of the vacancy year. The words of the year for which such examination is held would therefore mean the vacancy year and in accordance with the interpretation put forward by the respondents. It would not be the year by which the Departmental examination is merely designated.