Union Of India (Uoi) vs Dr. S.K. Chopra And Anr.
2002 Latest Caselaw 1641 Del

JUDGMENT

S.B. Sinha, C.J.

1. These two writ petitions arising out of a judgment and order dated 27.09.2000 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter) for the sake of brevity referred to as, 'the Tribunal') in O.A. No. 2218 of 1998 were taken up for hearing together and are being disposed of by this common judgment.

2. The basic fact of the matter is not in dispute.

Dr. S.K. Chopra (hereinafter referred to as the 'writ petitioner') is said to be a highly qualified person. He was having a lucrative job in the United States of America. Allegedly, at the request of the then Hon'ble Prime Minister of India, he returned to India in the year 1980. His services have been utilized in the field of Rural Energy initially as a part-time consultant in the Planning Commission and thereafter as a whole-time consultant on a fixed fee.

The Government of India created a post of Planning Commission Advisor (Rural Energy) and appointed him in the said post with the approval of A.C.C. initially on an ad- hoc basis in June, 1984 and on or about 01.06.1985, he had been posted on regular basis. The said post was an isolated post and classified as General Central Service Group 'A'.

The writ petitioner allegedly initiated various programmes including one known as Integrated Rural Energy Programme (in short, 'IREP') in the Planning Commission. On or about 16.02.1987, he was appointed as Adviser (Rural Energy), Planning Commission in a substantive capacity w.e.f. 17.06.1986.

In the year 1985, recruitment rules for the post of 'Adviser' in the Planning Commission were framed. According to the writ petitioner, there were posts of Adviser (Rural Energy) and Adviser (Energy), which were independent to each other and were manned by individual experts. Upgradation to the said posts being an in situ one was personal in nature.

It is alleged that with a view not to stagnate him on the same grade, a higher grade of Rs. 7,300/- - Rs. 100/- - Rs. 7,600/- w.e.f. 04.11.1992 was allowed to the writ petitioner, which was personal to him. It is not in dispute that the said grade in equivalent to the grade of Additional Secretary and such appointments are required to be made with the approval of A.C.C.

The Ministry of Non-Conventional Energy Sources (in short, 'the said Ministry') was created in the year 1993. The said Ministry sought for Government approval for bringing within its purview the said programme, namely, IREP, which had been initiated by the writ petitioner in the Planning Commission. Pursuant to or in furtherance of such request, the Deputy Chairman of the Planning Commission was requested to send the writ petitioner in the said Ministry.

According to the writ petitioner, although the move was to send him on deputation, but the said programme was transferred by the Planning Commission to the said Ministry.

In the year 1994, the writ petitioner was posted as Senior Adviser on the same grade, which was equal to that of Additional Secretary in the said Ministry. Indisputably in February 1995, the said post, namely, Planning Commission Adviser (Rural Energy) was abolished as item No. 12 from the Recruitment Rules of 1988. The writ petitioner by a letter dated 07.03.1996 requested the Planning commission to take his services back as he had not been formally absorbed in the said Ministry. However, by an Office Memorandum dated 28.06.1996, the said Ministry stated:-

"Ministry of Non-Conventional Energy Sources Block No. 14, CGO Complex, Lodhi Road, New Delhi - 110 003 No. 15/34/93/Adm. 28th June, 1996

OFFICE MEMORANDUM

This has the reference to the representation dated 7.3.1996, submitted by Dr. S.K. Chopra, Sr. Adviser, Addressed to the Dy. Chairman, Planning Commission, regarding the request for taking him back in the Planning Commission.

2. The representation of Dr. Chopra was forwarded to the Planning Commission for consideration.

3. The Planning Commission has informed that the representation of Dr. Chopra has been carefully examined. Planning Commission has regretted that since there is no post in the Planning Commission against which his lien could be retained, his request for taking him back in the Planning Commission cannot be accepted to.

Sd/-

B.R. Prabhakara Secretary to Govt. of India"

As the writ petitioner was not given the post of Secretary in the said Ministry, he filed an Original Application before the Tribunal questioning O.M. dated 28.06.1996 and Order dated 12.02.1998 as also for a declaration that he had a lien in the Planning Commission and the post of Adviser, which was transferred from the Planning Commission, was not a permanently absorbed post in the said Ministry. He had further prayed for a direction upon the second respondent to be considered for promotion as Principal Adviser in the Planning Commission on the ground that he has not lost his lien therein upon being transferred to the said Ministry. He further prayed for consideration of his case for the post of Principal Adviser equivalent to that of Secretary in the said Ministry.

3. Before the learned Tribunal as also before us, the contention of the respondents was that Group 'A' posts in General Civil Services have no line of promotion and no higher grade is granted by way of promotion. It was contended that he had been given the pay-scale of Rs. 7,300/- - Rs. 100/- - Rs. 7,600/- in situ, which was only personal to him. Although the writ petitioner was never posted as Additional Secretary and, thus, there was no question of his being considered for promotion to the post of Secretary in the said Ministry. It has been seriously contended that none of the colleagues of the writ petitioner in General Civil Services, who are posted in isolated posts had been promoted. According to the respondents, having regard to the fact that the petitioner was transferred along with the post, the question of his having a lien in the Planning Commission does not arise.

It had further been contended that in any event the post of a Secretary to the Government of India is not a regular promotion post, and the same is governed by Central Staffing pattern by the Cabinet wherefor normally only IAS Officers are considered.

4. The learned Tribunal noticed that the said Ministry has its own recruitment rules to the post of Adviser (Energy), and in that view of the matter, it was held that the writ petitioner stood permanently absorbed in the said Ministry. It was further held that the writ petitioner cannot be considered for upgradation as Principal Adviser in Planning Commission unless the respondents themselves decide in the public interest to transfer the said post along with the applicant's services back to the Planning Commission. Relying on or on the basis of the O.M. dated 05.01.1996 issued by the Department of Personnel Training, it was held that Para 3 of the Central Staffing Scheme envisages that all posts of the rank of Under Sectary and above in Government of India are filled under the Central Staffing scheme by borrowing officers from the All India Service and participating Group 'A' services, except those which are specifically en-cadred within the organized Group 'A' services or are filled by recruitment through UPSC or are filled in accordance with concerned C.C.S. Rules. As the post of Secretary in the Government of India does not fall within the purview of the said exceptions, the writ petitioner did not have a legal right to claim consideration for appointment as Secretary in the said Ministry.

5. Despite the aforementioned findings, the learned Tribunal observed that in the event a higher pay-scale is not sanctioned to him, he will have to continue in the existing pay-scale of Rs. 7,300/- - Rs. 7,600/- (Rs. 22,500/- - Rs. 24,500/- from 1992 to 2007). It was also observed that having regard to decision of the Apex Court in various cases, adequate avenues for career progression are an important ingredient in motivating Government employees, so as to enable it to get the best out of the Officers in public interest. It was further observed that keeping the writ petitioner in the said post for a period of 15 years in the same pay-scale would not be conducive to his motivation.

6. On the aforementioned findings, it was directed:-

"20. In the light of the foregoing discussion, we hold that this is a fit case to direct respondents to consider granting applicant a scale higher than the one he is presently in, namely, Rs. 22500-24500 (revised). We direct accordingly and call upon respondents to effect such consideration in accordance with rules and instructions as expeditiously as possible and preferably within six months from the date of receipt of a copy of this order".

7. Mr. S. Chopra, the learned counsel appearing on behalf of the writ petitioner, would submit that having regard to the fact that the writ petitioner was transferred without his consent, the same was a nullity. Reliance in this connection has been place on Jawaharlal Nehru University v. Dr. K.S. Jawatkar and Ors. .

The learned counsel would contend that the writ petitioner had a lien with the Planning Commission and, therefore, the learned Tribunal erred in holding contra.

It was contended that the writ petitioner being connected with various programmes and only one programme attached to the rural energy was transferred, the post itself could not have been transferred. It had been contended that in law and particularly having regard to the fact that the writ petitioner was holding a very senior post, he could not have been transferred without his consent.

According to the learned counsel, an assurance had been given to the writ petitioner to the effect that he would be given the post of Secretary in the said Ministry.

8. Mr. Gangwani, the learned counsel appearing on behalf of the respondents, on the other hand, reiterated the same contentions which had been raised before the learned Tribunal and inter alia submitted that having regard to the fact that the writ petitioner had been granted a higher pay- scale, even the ACP scheme would not be applicable.

According to the learned counsel, the learned Tribunal proceeded on a wrong premise that the writ petitioner will have to stagnate and, thus, was entitled to grant of higher pay-scale. Such a stage, according to the learned counsel, has not come. In any event, as admittedly a higher grade had been given to the writ petitioner, which is personal in nature, it cannot be said to be a case where the writ petitioner has been allowed to stagnate.

The learned counsel would contend that the learned Tribunal has traveled beyond the parameters of judicial review by directing the respondents to upgrade the post.

9. It is not in dispute that the writ petitioner filed two representations, which were rejected by reason of the aforementioned O.M. dated 28.06.1996 and Order dated 12.02.1998, which were impugned before the learned Tribunal.

It is also not in dispute that the writ petitioner was appointed to the post of Adviser (Rural Energy) in the Planning Commission in terms of the recruitment rules prevailing at the relevant point of time, namely, The Planning Commission Adviser (Rural Energy) Recruitment Rules, 1985. The said Rules again admittedly had been superceded by the Planning Commission in terms of the rules notified on 13.09.1998, which stood deleted by a notification dated 02.02.1995.

It is also not in dispute that the post held by the writ petitioner in the General Central Services is an isolated post and he was appointed in the said post, which carried a pay- scale of Rs. 5,900/- - Rs. 7,300/-. He, however, admittedly, had been granted an in situ promotion in the pay-scale of Rs. 7,300/ - Rs. 7,600/- on or about 04.11.1992. the learned Tribunal itself has found, which has not seriously been challenged before us, that having regard to the scheme for appointment as Secretary, the writ petitioner does not have any legal right for consideration therefore. In the instant case, indisputably the writ petitioner was transferred along with the post wherefor the Statutory Rules were amended.

It is further not in dispute that in terms of the said Rules the question of obtaining consent from him for deputation arises provided one is transferred from the Central Government to any public sector undertaking or vice-versa. The said question, in the instant case, does not arise, as the Planning Commission as also the said Ministry are two limbs of the Union of India.

10. It may be true that the transfer of a person from one cadre to another cadre may be permissible, but when such transfer is effected along with the post upon amendment of the recruitment rules made under proviso appended to Article 309 of the Constitution of India, the same does not require consent of the incumbent. There is nothing on record to show nor does it appear that such a contention had been raised before the learned Tribunal that the writ petitioner objected to such a transfer or that he had joined the said Ministry under protest.

There is further nothing on record to show that any assurance had been given to the writ petitioner that he would be posted to the post of Secretary in the said Ministry. However, it had not been disclosed as to who allegedly had given such assurance and the same authority had the requisite jurisdiction therefore or otherwise.

In this view of the matter, we are of the opinion that the impugned judgment of the learned Tribunal cannot be faulted as regard the said findings.

11. The writ petitioner had approached the learned Tribunal with specific prayers. He had not prayed that he be granted a higher scale of pay and the question, which was required to be posed before the learned Tribunal in this behalf was as to whether he had a legal right therefore or not. If he had no legal right to be promoted, the question of consideration of his case for granting promotion to a higher post would also not arise. A writ of Mandamus can be issued provided a person can establish existence of a legal right in himself and corresponding legal duties in the respondents.

It has not been held by the learned Tribunal that the ACP scheme could be invoked in the factual matrix of the matter nor the stage therefore had come into being. If the writ petitioner was not entitled to a higher grade either by way of promotion of otherwise, the learned Tribunal in our considered opinion must be held to have erred in issuing the impugned directions. It will bear repetition to state that in the instant case the invocation of the ACP scheme was not sought for and, thus, no relief could be granted on that count.

12. The Court of Law cannot grant any relief only on the basis of sympathy. ( See C.B.S.E. and Anr. v. Sunil Kumar and Ors.) .

In Latham v. Richard Johnson & Nephew Ltd. 1911-13 AER 117, Farwell L./J. observed:-

"We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles."

In State of Tamil Nadu and Ors. v. St. Joseph Teachers Training College , the Apex Court observed that the Court cannot grant any relief on humanitarian ground, which is contrary to law.

This aspect of the matter has also been considered by a Division Bench of the Calcutta High Court (of which one of us, S.B. Sinha, C.J., was a Member) in Ashoke Saha v. State of West Bengal and Ors. CAL LT 1999 (2) HC 1.

13. For the afore-going findings, CWP No. 470 of 2001 is dismissed and CWP No. 4514 of 2001 is allowed. However, in the facts and circumstances of the cases, there shall be no order as to costs.