Delhi High Court
M.C.Sharma Etc. Etc. vs Union Of India & Ors. on 4 July, 2008
Author: A.K.Sikri
IN THE HIGH COURT OF DELHI AT NEW DELHI
+WP(C) Nos.330 and 332 of 1988.
Date of Hearing:05.03.2008
Date of Decision: .07.2008
#M.C.Sharma ....Petitioner in WP(C)No.330 of 1988.
#Bhag Singh Sain ....Petitioner in WP(C)No.332 of 1988.
! Through: Ms.Renu Verma with
Mr.Alok Bachawat,Advocates.
Versus
$Union of India & Ors. .....Respondents
^ Through Mr.Manoj Ohri,Adv.
CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.M.MALIK
1. Whether Reporters of Local papers may be allowed to see
the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
A.K. SIKRI, J.
:
1. The grievance of the petitioners in these two petitions is
common. Both are seeking identical relief as well, namely,
quashing of Special Service Bureau (SSB) (Senior Executives)
Service Rules,1977 and SSB (Senior Executives) Service (2nd
Amendment) Rule,1982 and as well as promotion of
respondents 2 and 3 to the post of Dy. Director/DIG in SSB.
That is the reason that both these petitions were clubbed
together, heard together and are decided together by this
common judgment. For the sake of convenience, we may
start with the facts as appeared in WP(C)No.330 of 1988.
2. The date of birth of the petitioner is 14.11.1935. He joined
Indian Military Academy on 2.1.1963 and was commissioned
as Officer in the Indian Army from 30.6.1963 to 16.9.1967.
After his release from the Army the petitioner joined SSB on
1.1.1968 as Company Commander. He was promoted as
Dy.Commandant w.e.f. 5.7.1973; as Commandant on
31.12.1975. From July,1979 to 18.6.1982 he held the
appointment as Commandant-Staff Officer/ Area
Organizer(Training),Arunachal Pradesh Division with its
Headquarter at Tejpur. From 23.6.1982 to 9.4.1984 he held
his posting in Himachal Pradesh Division, Shimla in the same
capacity. Thereafter, he worked as Commandant in various
SSB Divisions like Agartala etc. At the time of filing of this
petition he was posted in Group Centre, Chamma (UP). The
next promotion is to the post of Dy. Inspector General (DIG) in
SSB. As per Item-3 in Schedule-II in the SSB (Senior
Executive) Service Rules,1977 (hereinafter referred to as
`1977 Rules') is by promotion/deputation/direct
recruitment/re-employment. No percentage is fixed for any of
these methods. In case of recruitment by
promotion/deputation the promotions are to be made from
amongst Class-I Assistant Director/Area Organizer with 8 years
service in the grade or in the equivalent grade. Deputation of
officers in the grade of Rs.2,000-2250, 1,500-2,000 or
Rs.1,200-2,000 or officers eligible for appointment to such
grades in offices of State/Central Govt. are eligible. The
feeder post do not mention `Area Organizer in (Senior
Executive) Service of SSB."
3. The aforesaid Rules were amended vide Second Amendment
Rules 1982 (hereinafter referred to as `Rules,1982) w.e.f.
2.12.1982. In these Rules, percentages were fixed for
different categories of feeder cadre post by providing as
under:
i) 15% by promotion of SSB Battalion Commandants
with minimum 8 years of service in the rank of
Commandant.
ii) 60% by promotion of Area Organizers/Asstt Directors
belonging to the SSB (Senior Executive) Service, with
minimum 8 years of service in the rank of Area
Organizer/Asstt Director.
iii) 25% by deputation/transfer/re-employment/ of
officers in the grade of Rs.2,000/- or officers eligible
for appointment to such grade in offices of
State/Central Government. Re-employment of retired
officers found suitable.
Where sufficient number of officers in respect of
categories (i) and (ii) above is not available, the
vacancies may be filled by deputation/transfer/re-
employment, as per conditions indicated in (iii)
above.
4. In the unamended Rules, composition of DPC was "Class-I
DPC'. As per the amendment, DPC was to consist of four
persons, Principal Director(Chairman), Director,SSB, one
Divisional Organizer and Dy. Director,SSB Headquarters
Directorate as Members. The three posts of Staff Officer
(Training) were allotted to Battalion Officers (Dy.
Commandants/Commandants). As a result of this cadre
review of Battalion Officers, the said three posts were
upgraded to Dy. Inspector General rank in SSB. Respondents
2 and 3 were promoted to these upgraded posts of
Dy.Director/DIG. The petitioner herein was ignored. The third
post was filled by an IPS deputationist.
5. Same is the position in respect of the petitioner in
WP(C)No.332/88. Both these petitioners, therefore, claim that
they should have been selected to the said post of DIG in
place of respondents 2 and 3 and it is this reason that both of
them have filed these two petitions on identical grounds
seeking identical relief. The grievance of the petitioners is
that they could not be overlooked and their candidature for
regular promotion to the post of DIG in SSB should have been
considered. Their submission is that it was because of mis-
interpretation of 1977 Rules, as amended in 1982 Rules, that
they were left out of consideration. They further submitted
that if the Rules are to be interpreted in a manner which deny
Dy.Commandant and Commandant the right to be considered
for promotion to the post of DIG, then the said Rules are
violative of Articles 14,16,19,21 of the Constitution of India
and should be quashed. It is also the submission of learned
counsel for the petitioner that the three posts of DIG were in
fact, a result of upgrading of posts of Staff Officers(Training)
for which the eligibility qualifications were met only by
Dy.Commandants/Commandants and deputationists IPS
officers. The said three posts of Staff Officers were never held
by Civilian AOs. Their eligibility condition required experience
of three years or so of commanding battalion and a spell of
duty as an Instructor, which a civilian AOs did not and could
meet and only a Commandant/IPS deputationist could meet
those terms. According to learned counsel, on correct
interpretation of 1977 Rules, one would find that
Dy.Commandants and Commandants were equally eligible for
promotion to DIG as others of equivalent grades. DIG in view
of the expression `others or equivalent grades' and AOs
(though AOs were in lower grade). He submitted that even
ex-cadre officers holding analogous interchanging
appointment would be entitled to be considered for promotion
and could not be excluded. In support of this plea he referred
to following three judgments of Supreme Court:
Haribans Misra & Ors. Vs. Railway Board &
Ors.,(1989) 2 SCC 84.
K.Madhavan & Anr. Vs. Union of India and
ors.,(1987) 4 SCC 566.
St. Mysore Vs. MH Krishna Murthy, (1973) 3 SCC
559.
6. Learned counsel went to the extent of arguing that on the
correct interpretation of the rules, as suggested by, there was
even no need to amend the rules by 1982 Rules and on this
premise 1982 Rules are also challenged.
7.We have already indicated the position of Rules 1977 for filling
up of the post of DIG. As mentioned above, in the case of
recruitment by promotion, it is to be made from amongst
'Class-I Assistant Director/Area Organizer with 8 years service
in the grade or in an equivalent grade'. It is not in dispute
that the two feeder cadre posts which are specifically
mentioned are Class-I Assistant Director and Area Organizer,
there is no reference to the Commandant or Assistant
Commandant. Therefore, the first question for consideration
is as to whether the Commandant/Dy. Commandant would be
covered by the expression `in an equivalent grade'.
8.In order to demonstrate that Commandant and Dy.
Commandant were carrying the equivalent grade, learned
counsel for the petitioner submitted that the SSB was created
in 1963 comprising only civilians and officers on deputation
from Indian Police Service (IPS). In 1969, combatised
personnel in various grades like, Deputy Superintendent of
Police (Company Commander/Adjutant/Quarter Master), Dy
Commandant and Commandant were introduced. The
combatised personnel were governed by Central Reserve
Police Force Act and Rules (CRPF) in disciplinary matters, but
were part of SSB and not of CRPF. The pay scale of Dy.
Commandant as well as of Commandant was Rs.1,200-1,700,
while the Commandant was entitled to special pay of Rs.100/-
a month. The civilian personnel in the lowest Group `A'
category were Area Organisers (AOs). The pay scale of AOs
upto 30.11.1984 was Rs.1,100-1,600 and, thereafter,
Rs.1,200-1700 with the proviso that after two years of regular
service as AO, and AO would be considered by a departmental
promotion committee for grant of special pay of Rs.100/- a
month without change of pay scale. The 4th Central Pay
Commission's recommendation of pay scale of Rs.3,000-4,500
to AOs and Dy. Commandants and Rs.4,100-5,300 to
Commandants was accepted effective 01.01.1986. Later, vide
order dated 14.12.88 the pay scale of AOs was revised to
4,100-5,300 with effect from 01.01.86 to bring it at par with
that of Commandants.
9.Learned counsel for the respondent on the other hand argued
that entire argument was on wrong premise. His explanation
was that SSB (Special Service Bureau) was raised in the year
1963. As per Cabinet Secretariat letter dated 4.8.1966,
sanction of the President was received for raising 3 SSB
Battalions under CRPF Act. In the year 1969, Ist SSB Battalion
was raised. In 1968/1969, petitioners who were working as
Commissioned Officers in Indian Army joined SSB as Company
Commanders. They were governed by CRPF Act and Rules
made there under. Petitioners were promoted as Deputy
Commandants on 5.7.1973 and 27.6.1977 respectively in the
pay scale of Rs.1200-1700/- and as Commandants on
31.12.1975 and 25.6.1981 in the pay scale of Rs.1200-1700 +
Special Pay of Rs.100/- (vide U.O. dated 15.9.1982).
10. He further submitted that admittedly in Rules 1977 post of
Commandant does not find mention as feeder cadre for
promotion to DIG. It was for the reason that Commandants
were separate cadre and continued to be governed by CRPF
Act and Rules. Position remained the same even after the
amendment in 1982. He also submitted that Dy.
Commandant and Commandant are two different posts. Both
these posts carried different pay scales. A brief comparison
chart showing different pay scales is handed over in the Court.
The petitioners have falsely claimed that their length of
service as Dy.Commandant be counted towards service as
Commandants while seeking promotion for DIG.
11. Learned counsel further argued that the petitioners could
not equate themselves with Area Organizers inasmuch as
Area Organizers and Commandants were two different posts
as two different cadres having different duties and
responsibilities. Petitioners, as Commandants cannot be
treated at par with Area Organizers in matter of command,
control and responsibilities. Both the posts were from
different cadres and governed by different set of Recruitment
Rules. While Area Organizers were governed by SSB (Sr.
Executive) Service Rules, the Commandants, were governed
by CRPF Act and Rules. For Commandants, the recruitment
and disciplinary action was governed by CRPF Act and Rules.
12. He also refuted the contention that the petitioners were in
`equivalent grade'. His submission was that the expression
`grade' was not same as `scale'. Referring to the judgment of
Supreme Court in A.K.Subraman Vs. Union of India
reported in 1975 (1) SCC 319, he submitted that it was held
that the expression `grade' was explained therein in the
following manner:
" "the word grade has various shades of meaning in
service jurisprudence. It is sometimes used to denote
a pay scale and sometimes a cadre". In the present
case, the petitioners are not in the same cadre as
they were and continued to be governed by CRPF Act
and rules whereas the Area Organizers were
governed by SSB (Sr Executive) Rules."
13. He also submitted that the Supreme Court had held in
State of Haryana Vs. Haryana Civil Secretariat Personal
Staff reported in 2002 (6) SCC 72 that fixation of pay and
determination of parity in duties, was the executive function.
He pleaded for dismissal of the writ petitions on these
grounds.
14. From the aforesaid arguments of both the parties, it is
clear that there is no dispute that the petitioners were also
having the same pay scale. The question is as to whether the
petitioners can be treated as the Officers in `equivalent grade'
because they were having the same pay scale as Area
Organizers.
15. The 1977 Rules used the expression "equivalent grade". In
the case of A.K.Subraman Vs. Union of India(supra), the
Supreme Court had the occasion to define the expression
`grade'. In that case the expression `grade' occurred in the
Rule stipulating "vacancies in the grade of Executive
Engineer". The Court while ascribing the meaning to these
words, defined the word `grade' occurring therein in the
following manner:
"Now the question which arises for
consideration is what is the meaning of the
words "vacancies in the grade of Executive
Engineer" as used in the aforesaid paragraph
of Rule 4(2). When does a vacancy in the
grade of Executive Engineer arise? To answer
this question it is necessary to ascertain what
are the posts which the grade of Executive
Engineer consists of for the vacancies can
only be in the posts £ in the grade of
Executive Engineer. The word "grade" has
various shades of meaning in the service
jurisprudence. It is sometimes used to denote
a pay scale and sometimes a cadre. Here it is
obviously used in the sense of cadre. A cadre
may consist only of permanent posts or
sometimes, as is quite common these days,
also of temporary posts."
16. We may also note at this stage that at times while
construing the expression "equivalent grade", besides the
grades of officers on deputation, ex-cadre officers can also be
treated as following "equivalent grade" if their pay scales,
duties etc are comparable with those with whom equivalence
is to be considered.
17. The case of Haribans Misra (supra) cited by learned
counsel for the petitioner holds that even ex-cadre officers in
equivalent grade are entitled to be considered for promotion
to the higher grades at par with cadre officers in the same
organization when ex-cadre officers were liable and did
occupy the so called cadre post for years with/without
specified tenure.
18. One of the arguments of the Railway Board was that these
persons could not be treated as having promoted on
substantive basis as they were holding ex-cadre posts. The
Supreme Court brushed aside this argument on the premise
that two posts, namely, Instructor and Chargeman C in
Railway Diesel Locomotive Works were of the same rank and
skill and staff of one post was transferable to the other and
vice versa and, therefore on these facts these were
interchangeable posts. In para-17 of the judgment, this
aspect is discussed in the following manner:
17. "In the circumstances, we are of the view
that the appellants were not appointed on an
ad hoc or a purely temporary basis by way of
interim measure as held by the High Court,
but they were appointed on a permanent
basis in the posts of Instructor or Chargeman
Grade-C, which are interchangeable posts
and, thereafter, promoted to the post of
Chargeman Grade-B. The appointment or
promotion of the appellants to the post of
Chargeman-C from the post of Skilled Artisan
or to Chargeman-B was made in accordance
with the circular of the Railway Board and/or
in accordance with Rule 216 of the Railway
Establishment Manual. It cannot, therefore,
be said that the appellants were promoted to
the post of Chargemen- C illegally or in
violation of any rule. There is a controversy
between the parties as to whether the post of
Instructor-C is an ex cadre post or not. It is
submitted on behalf of the respondents that
the post of Instructor-C being an ex cadre
post, the appellants could not be appointed
or promoted to the post of Chargeman-C.
This contention is unsound and is fit to be
rejected. It is the clear case of the Railway
Administration, as pointed out above, that
the posts of Instructor-C and Chargeman-C
are interchangeable posts. Even assuming
that the post of Instructor-C is an ex cadre
post, nothing turns out on that inasmuch as
according to the Railway Administration itself,
the two posts being of the same rank and
scale, the staff of one post could be
transferred to the other post and vice versa.
The appellants might have been appointed to
the post of Instructor-C, but they were
transferred to the post of Chargeman-C and,
therefore, there was no difficulty in
promoting them to the post of Chargeman-
B."
19. Another judgment of Supreme Court in the case of
K.Madhavan & Anr. Vs. Union of India and ors.(supra)
shall also throw some light as the Court again considered
meaning of `grade' in the context arose in the relevant rules
therein. That was a case relating to the promotion of the post
of Dy. Superintendent of Police(DSP) in the CBI. The
concerned rule required `eight years service in the grade'.
The appointment of respondent no.5 to the post of SP was
challenged on the ground that under the rules he was to
complete eight years service in the grade which would mean
he should have been for eight years in CBI as DSP before he
could be eligible for appointment to the post. The Supreme
Court did not accept this contention and held that any person
who had completed eight years service as DSP, and not
necessarily in CBI as DSP would be eligible. On this
interpretation it was held that an officer may have been in the
State Police as DSP with a period of six years and thereafter if
he joins CBI on deputation and spent two years on probation
(as the rules provided two years must be spent on probation
as DSP in the CBI), he would be eligible for consideration to
the post of SP in the CBI. The relevant rules also provided
that deputationists to be eligible, should be "suitable
deputationists". They should be `suitable officers holding
analogous post in the Central Government department like
the Directorate of Enforcement, Department of Customs etc.'.
The Supreme Court held that suitable Dy.Commandant in BSF
would also be eligible as he was holding analogous post. It is
thus clear from the aforesaid discussion that the word `grade'
can have various shades of meaning and which meaning is to
be ascribed to this word would depend upon the context in
which the same is used in particular rules.
20. According to the respondent the petitioners are not in the
same cadre as they were and continued to be governed by
CRPF Act and Rules whereas Area Organizers were governed
by SSB (Senior Executive) Rules and, therefore, they cannot
be treated as governed under equivalent grade. This
argument follows from the submission that Commandants
were a separate cadre and continued to be governed by
different Act and Rules, namely, CRPF Act and Rules. Whether
this fact alone can oust them from the expression `equivalent
grade' is the question. It cannot be disputed that if the
Commandants are governed by CRPF Act and Rules and are
not at all concerned with SSB (Senior Executive) Service
Rules, they cannot lay their claim for being considered to the
promotion to the post of DIG in the SSB. However, in the
present case, what we find that these Commandants were
working in SSB. It is also conceded by the respondents that
there were no promotional avenues available to the
Commandants. In fact submission of the leaned counsel for
the petitioner that there were no separate rules of promotion
for Dy.Commandants/Commandants and CRPF Act and Rules
govern only disciplinary aspects, could not be refuted by
learned counsel for the respondents. Thus though for
disciplinary matters these Commandants were subject to CRPF
Act, there were no other terms and conditions like promotion.
In this background, when we examine some more facts, as
spelt out herein below, it can be said that the expression
`equivalent grade' could refer to the Commandants as well
who were enjoying the equivalent pay scale. We enlist these
factors as under:
i) 1977 Rules were amended vide Notification
dated 2.12.1982. In this Notification 15% quota
for Commandants for promotion to the post of
DIG was prescribed. This quota was raised to
37.5% vide Notification dated 13.2.1989. If 1977
Rules did not contemplate inclusion of
Commandants as feeder cadre/equivalent cadre
for promotion to the post of DIG providing quota
for them from 1982 would be irrational. The very
fact that by 1982 amendment, different quota
was provided for different cadre and it included
Commandants as well, would indicate that the
Commandants were treated as officers belonging
to `equivalent cadre'.
ii) As per the respondent themselves this
amendment in 1982 was made to provide
promotional avenues to the Commandants as no
such promotional avenues were available to
them. Merely by providing quota, promotional
avenues cannot be made available unless they
were otherwise eligible. They could be eligible
only if we read "equivalent cadre" to mean
Commandants also who were enjoying the pay
scale in the equivalent cadre of Area Organizers
and were discharging similar duties.
iii) The post Staff Officer (Training) was never held
by civilian Area Organizers but was always held
by either Dy.Commandants or Commandants or
IPS deputationists. It was because of the reason
that one of the eligibility condition was that one
must have commanded battalion for three years
or so and a spell of duty as Instructor which
condition a civilian Area Organizer did not and
could not have met.
iv) Though there was a dispute as to whether nature
of duties of civilian Area Organizers and
Commandants were same, the petitioners have
placed on record order No.EA/SP/38/66 dated
23.7.68 of the Cabinet Secretariat (Department
of Cabinet Affairs) Government of India. This
order is issued in terms of Rule 9(1) of the IPS
(Pay) Rules,1954, Vol.I. It is stated in the order
that the President is pleased to declare the post
of Commandant and Dy.Commandant/Assistant
Commandant of SSB Battalions and Training
Centre as equivalent in status and
responsibilities to that of Assistant Director in the
Intelligence Bureau and Superintendents of
Police in Special Police Establishments
respectively as specified in Schedule III thereof.
Thus when the Commandant/Dy.Commandants
etc are treated as equivalent in status as
Assistant Director in Intelligence Bureau and
Superintendents of Police in Special Police
Establishments, they would on this reckoning
enjoying equivalent grade. It is clear from the
above that in the 1977 Rules the expression `or'
in `equivalent grade' would include
Commandant/Dy.Commandants who were in the
grade of Rs.1,200-1,700. It was equivalent to
Area Organizers. The expression `grade' in
these rules thus has reference to equivalent pay
scale enjoyed by the Commandants /Dy.
Commandants who were performing the same
duties. In fact Dy.Commandants and
Commandants were initially in a grade higher
than Area Organizers and later were placed in
the same grade as Area Organizers.
21. The next question is as to whether prescribing 50% quota
for them for the Commandant in 1982 Rules is discriminatory.
We may note that according to the petitioners their quota
should have been more, going by the proportion of their
strength in SSB. In fact this quota was revised to 37.5% in the
year 1989 after realizing representative character of these
Commandants/Dy.Commandants in SSB. Learned counsel for
the petitioner relied upon judgment of Supreme Court in the
case of State of Mysore Vs. MH Krishna Murthy, 1973(3)
SCC 559 in support of this submission. We are, however, not
impressed by this submission. It is for the employer to
provide particular quota. No doubt it is increased to 37.5% in
1989. That may not be the reason sufficient enough to hold
that even in 1982 their quota of these Commandants/Dy.
Commandants should have been 37.5%. The judgment of the
Supreme Court in the case of State of Mysore Vs. MH
Krishna Murthy(supra) as cited by the petitioner only states
that prescribing such a quota for consideration in altogether
different context, the Court in no unambiguous terms stated
that inequality of opportunity of promotion was not
unconstitutional per se. However, observation was made that
it should be justified on the strength of rational criteria
correlated to the object for which the difference is made. It
was also observed that in the case of Government servants,
the object of such a difference must be presumed to be a
selection of the most competent from amongst those
possessing qualifications and backgrounds entitling them to
be considered as members of one class. In some cases,
quotas may have to be fixed between what are different
classes or sources for promotion on grounds of public policy.
If, on the facts of a particular case, the classes to be
considered are really different, inequality of opportunity in
promotional chances may be justifiable. It is only when
different categories are found to be really belonging to single
class, it would in that case be discriminatory and violative of
Articles 14 and 16 of the Constitution of India. In the present
case, the fixation of different quota is not even challenged.
What is challenged is percentage of different quota. The
aforesaid judgment would not come to the rescue of the
petitioner in support of submission challenging the said
prescription of quota.
22. In view of the aforesaid, we allow this writ petition partly
and declare that the petitioners were entitled to be considered
for posts of DIG even as per 1977 Rules. These petitions were
filed in the year 1988 when the petitioners were not
considered for promotion to the said posts by the DPC and the
respondents 2 and 3 were appointed to these posts.
Respondents 2 and 3 as well as petitioners would have retired
by now. In these circumstances, it would not be prudent to
interfere with the appointments of respondents 2 and 3. At
the same time direction is given to the respondents to hold
Review DPC and consider the cases of the petitioners for
promotion to the post of DIG treating them as eligible for such
consideration. In case they are found fit for promotion, they
be given promotion from the date respondents 2 and 3 were
appointed to the post of DIG on notional basis. However, they
would not be given any arrears of pay as they did not work on
the said post and retired in the meantime. We are passing
this direction keeping in view that it was the bona fide view of
the respondents that the petitioners were not eligible for the
post of DIG under 1977 Rules. However, if they are held
entitled to promotion, they would be deemed retired as DIG
and their pension would be fixed accordingly. They would be
entitled to the arrears of pension from the date of their
retirement. This exercise be completed within a period of
three months from today.
23. No costs.
(A.K. SIKRI)
JUDGE
July _____ , 2008 (J.M.MALIK)
skk JUDGE
