Lieutenant General S.M.Chadha ... vs Union Of India & Ors
2008 Latest Caselaw 1953 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        WP (C) No.2929/1992


                                                Reserved on: 18.09.2008
%                                           Date of decision: 04.11.2008


LIEUTENANT GENERAL S.M.CHADHA (RETD.) ...PETITIONER

                           Through:   Mr.R.K.Saini, Mr.Nikhil Bhalla and
                                      Mr. Nagendra Singh, Advocates


                                   Versus


UNION OF INDIA & ORS                              ...RESPONDENTS

                           Through:   Ms.Jyoti Singh, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?          Yes

2.        To be referred to Reporter or not?           Yes

3.        Whether the judgment should be               Yes
          reported in the Digest?

SANJAY KISHAN KAUL, J.

1. The petitioner was commissioned in the Army in the Corps

of Engineers on 28.12.1952 and the service of the

petitioner was placed at the disposal of the Ministry of

Education and Scientific and Research for employment in

the Survey of India on 30.09.1957. The petitioner

achieved the substantive rank of Major on 28.12.1965 and

was granted the substantive rank of Lieutenant Colonel in

the post of Deputy Director on 23.11.1977. The petitioner

was granted the substantive rank of Colonel in the post of

Director on 01.09.1983. A selection was carried out by the

UPSC for the post of a Surveyor General of India in the

scale of Rs.5900-200-7300. The recruitment rules required

the post to be filled up 100 per cent by direct recruitment

with a probation period of two years. The petitioner was

selected by the UPSC and was appointed as the Surveyor

General of India on 02.01.1989. The petitioner was

granted the local rank of a Major General on 16.01.1989.

The Ministry of Science and Technology, however,

requested the Military Secretary to confer the acting rank

of Lieutenant General instead of local rank of Major

General during the probation period to be made into

substantive rank after successful completion of probation

as per a letter dated 07.03.1989. The letter also referred

to the appointment of the petitioner on direct recruitment

basis on probation period of "one year". The letter reads

as under:

"Dear Gen.Sharma,

Based on the recommendation of the UPSC and with the approval of the Government, Col.S.M.Chadha, an officer of Corps of Engineers on permanent secondment to Survey of India (SOI), has been appointed as Surveyor General of India with effect from 2nd January, 1989. Since his appointment is on direct recruitment basis, he would be on probation for a period of one year.

As per letter No.28160/Svy/18/MS(X) dated 16.01.1989, local rank of Major General has been conferred on Col.S.M.Chadha. As per the revised Recruitment Rules framed recently for the Army stream of SOI Group „A‟ Service, the rank of acting/substantive rank of Lt.General would be conferred on the incumbent occupying the post of

Surveyor General. I would request that the acting rank of Lt.General (instead of local rank) may please be conferred on Col.S.M.Chadha during the probation period, which could be subsequently made into a substantive rank after he successfully completes the probation.

With kind regards,

Yours sincerely

(D.B.Sehgal)

Lt.Gen Y.N.Sharma, AVSM, VSM, Military Secretary, Army Headquarters, South Block, New Delhi"

2. The service conditions were earlier governed by Survey of

India Group „A‟ Recruitment Rules, 1960, Survey of India

(Recruitment from Corps of Engineer Officers) Rules, 1950

and Surveyor General of India (Survey of India)

Recruitment Rules, 1974. These Rules were superseded

by the Survey of India (Group A) Service Rules, 1989 („the

said Rules‟ for short) which came into force on 17.06.1989.

Rule 1(2) of the said Rules provides for the Rules to come

into force from the date of their publication in the official

gazette while Rule 4 reads as under:

"4. Members of the Service -

                  1)  The following persons shall               be
                  members of the Service:

                  a)      Persons appointed to the service

at the publication of these rules in the Official Gazette;

b) Persons appointed to the service under rule 8 after the publication of these rules from the dates so appointed.

2) A person appointed under clause (a) of sub-rule (1) of the rule shall on such publication be deemed to be a member

of the service in the corresponding grade."

3. It is the case of the petitioner that in view of the aforesaid

Rule, the petitioner already having been appointed to the

service, was deemed to be a member of the service in the

corresponding grade on publication of the Rules. The

petitioner was holding the post of Surveyor General of

India and the Rule 6 of the said Rules provided for the pay

and allowances and other benefits. Rule 6 in so far as it

applies to the petitioner is as under:

"6. Pay and Allowances and other benefits: .......

iv) The officers holding posts against the Defence Stream would have the following equivalence of ranks

Post of Group 'A' The Corresponding Minimum No.of Service (Defence rank in Corps of years of service for Stream) Engineers for the substantive rank purpose of fixation of pay

6. Surveyor General Lt. General 28 years. (Rs.7300-7600) (Whenever from Defence Stream)

4. It is the case of the petitioner that he is thus deemed to be

a member of the service in the pay scale of Rs.7,300-100-

7,600 with substantive rank of Lieutenant General with

effect from 17.06.1989. It may, however, be noticed that

in terms of the letter dated 07.03.1989 and the Ministry of

Science and Technology of the Government of India, the

appointment of the petitioner as a Surveyor General of

India with effect from 02.01.1989 on the direct recruitment

basis stipulated that the petitioner would be on probation

for a period of one year. Thus, the said Rules came into

operation when the petitioner was still on probation. A

letter was thus addressed on 04.07.1989 by the Assistant

Surveyor General in respect of the pay fixation of the

petitioner in the new scale with effect from 17.06.1989, the

date when the said Rules came into force. This was as per

FR-23.

5. The notification was published by the Govt. of India dated

15.10.1990 appointing the petitioner in his existing post of

Surveyor General of India in the upgraded scale with effect

from forenoon of 10.10.1990. The petitioner represented

against the same on 21.11.1990 as the petitioner was

claiming the upgraded pay scale from 17.06.1989. It is the

case of the petitioner that as per Rule 4, the said Rules

were to have immediate application and thus the petitioner

was entitled to the new scale from 17.06.1989 and not

from 10.10.1990 as was done.

6. It is the case of the petitioner that officers who were

subordinate to the petitioner in the Army were granted the

acting rank of a brigadier with effect from 17.06.1989 in

terms of the said Rules whereas the petitioner remained in

the substantive rank of a colonel. The representations of

the petitioner did not succeed as the petitioner was

granted only a local rank and not a substantive rank of a

Lieutenant General as per the letter dated 20.11.1989 prior

to the issuance of the notification dated 15.10.1990. The

petitioner retired on 30.11.1990 and even thereafter

followed up the matter making representations. However,

the respondents clarified vide letter dated 24.02.1992 in

respect of the issue of substantive promotion as under:

" To, The Chief of Army Staff New Delhi

Sub: Substantive promotion: Corps of engineers Officers seconded to the Survey of India.

Sir,

The Corps of Engineers Officers seconded to the Survey of India were being given substantive military ranks under the provisions of Ministry of Defence letter No.27(1)58/6426/D(W-II) dated 23.04.1977 and Nos.90797/EIA/4409/D(W-II) dated 01.05.1986. The Department of Science and Technology have published GSR 437 dated 26.05.1989 regulating the method of recruitment to posts in the Survey of India, Group A, Service. Equivalence of ranks of the officers holding posts against the Defence Stream has been laid down in Rule 6(iv) of the said GSR, which has come into force on 17.06.1989 : ( Extracts of this rule are annexed).

2. The matter regarding grant of substantive ranks to Corps of Engineers Officers of the rank of Lt. Col and above seconded to Survey of India in view of the provisions of Rule 6(iv) of the above cited GSR has been under consideration of the Ministry of Defence for some time. The president is pleased to decide that such officers will, subject to fulfillment of provisions obtaining in regard to length of service as laid down in Rule 6(iv) and the requisite medical standards will be given substantive military ranks as indicated in the GSP, on their being appointed to the equivalent civil posts from the date of holding such posts.

3. For granting substantive military ranks to such officers the provisions laid down in Para 67 of Defence Services Regulations, Volume I, Revised Edition, 1987 and other Army Orders/Instructions issued from time to time in this regard will be followed.

4. The substantive posts in the Defence stream in the Survey of India will be supernumerary to the sanctioned substantive cadre strength of Lt. Colonel and above in the Regular Army.

5. This letter shall also apply in cases where promotions in the civil posts have already been made in pursuance of the above cited GSR.

6. This letter issues with the concurrence of Finance Division of this Ministry vide their ID No.577/Addl.FA(P) of 1992.

Yours faithfully

(Dr.S.K.Sharma) Director (Pensions)"

7. The request of the petitioner was thus not acceded to vide

letter dated 25.02.1992 on the ground that the

Appointments Committee of the Cabinet had approved the

appointment of the petitioner as Survey General Of India in

the upgraded scale only with effect from 10.10.1990. The

petitioner once again made representations on 13.03.1992

and 05.05.1992 urging the anomaly and injustice done to

the petitioner as officers junior to the petitioner were

granted substantive ranks of Brigadier and Major General

as against the case of the petitioner who continued in the

substantive rank of a colonel and drew pension related to

the said rank. The petitioner claims that in view of Rule

4 r/w Rule 6(iv) of the said Rules, the fitment of the

petitioner is automatic and there is no probation period for

officers appointed by selection from among the

departmental officers. In the alternative, it is submitted

that even otherwise the petitioner was appointed on one

year probation from 02.01.1989 and he completed the

probation of 01.01.1990. The said Rules came into force

on 17.06.1989 which entitled him to the pay in the

enhanced grade as also the substantive rank of Lieutenant

General.

8. The respondents have contested the petition by

emphasizing that the appointment of the petitioner with

effect from 02.01.1989 was under the Recruitment Rules

being Surveyor General of India (Survey of India), the

Recruitment Rules, 1974. In terms of the Recruitment

Rules, the period of probation of petitioner was two years

and the petitioner retired on 30.11.1990. It was thus

submitted that the petitioner would have retired under the

old Rules before the completion of probation period. The

petitioner was still on probation when the said Rules came

into force and, therefore, the appointment of the petitioner

should be treated as a fresh appointment under the new

Rules which would take effect from the date approved by

the Appointments Committee of the Cabinet.

9. The counter affidavit filed on behalf of the Surveyor

General of India explains that the case for grant of

substantive rank of Lieutenant General to the petitioner

was examined by the Ministry of Defence in consultation

with the Ministry of Science and Technology but was not

agreed to as one of the conditions for grant of substantive

rank of Lieutenant General was that the petitioner should

be appointed substantively in the corresponding civil post.

The petitioner remained on probation at the time of

recruitment and could not be given the substantive rank of

Lieutenant General. The proposal to appoint the

petitioner with a retrospective effect from 17.06.1989 was

put up for approval by the Appointments Committee of the

Cabinet which found that the petitioner should be given the

enhanced grade only from 10.10.1990. It is not in dispute

that the other officers were granted substantive ranks of

Brigadiers and Major General on 05.05.1992 as per the

letter of the Ministry of Defence but the request in the case

of the petitioner was not acceded to. A distinction is

sought to be made on the ground that the appointment of

the petitioner was through direct recruitment by UPSC and

the petitioner was on probation at the time of his

recruitment.

10. We have examined the rival submissions of the parties and

have perused the pleadings. The controversy in question

has arisen primarily on account of the fact that while the

appointment of the petitioner as a Surveyor General of

India took effect from 02.01.1989 under the earlier Rules of

1974 providing for a probation period of 2 years (the letter

dated 07.03.1989 refers to probation period of one year,

but the basis is not clear) , the Rules stood amended with

the said Rules coming into force on 17.06.1989 which

provided not only for a different pay scale and rank, but a

revised probation period of one year.

11. The case of the petitioner thus is that the said Rules came

into operation immediately as per Rule 1(2) of the said

Rules. Rule 4 of the said Rules stipulates that a person

like the petitioner appointed under Clause (a) of sub rule

(1) of the said Rules shall be deemed to be a member of

the service in the corresponding grade as per sub rule (2)

of the said Rules. The effect would be that from the date

the revised rules came into force, the probation period of

the petitioner would stand reduced to one year apart from

the fact that the petitioner would be in the new scale and

the new rank. The substantive rank would thus be entitled

on completion of the probation period of one year in

January, 1990 and thus the petitioner was entitled to the

pay scale and the substantive rank under the new Rules

having retired only on 30.11.1990. The stand of the

respondents, on the other hand, is that though the

petitioner was appointed under the Rules of 1974, if the

new Rules had not come into force, the petitioner would

have remained on probation for two years and would have

retired on probation since he would not have completed 2

years of service up to the date of retirement. Since new

Rules came into force, the appointment of the petitioner is

a fresh appointment under the said Rules which takes

effect from the date it was made on 10.10.1990 and thus

the petitioner cannot be said to have completed the period

of one year of probation under the new Rules.

12. In our considered view, the important fact is that the

appointment of the petitioner under the Rules of 1974 on

02.01.1989 cannot be said to have been obliterated or

discharged by reason of the said Rules having come into

force. It is in order to protect the appointments made

under the earlier Rules that the said Rules clearly provide

that they come into force on the publication in the Official

Gazette. The said Rules were in supersession of three sets

of Rules earlier framed. As to whether the petitioner

should be treated as a member of the service depends

upon what is stated in Rule 4 of the said Rules. There are

two kinds of appointments envisaged - i) appointments

which were in existence at the date of publication of the

Rules and ii) appointments made after the publication of

the Rules. The petitioner is a person already appointed to

the service at the stage of publication of the Rules and

thus falls under Rule 4(1)(a) of the said Rules. Rule 4(2) of

the said Rules makes it clear that in case of such a person,

he shall be deemed to be a member of the service in the

corresponding grade. Thus the petitioner is deemed to be

Surveyor General of India under the new Rules in view of

the aforesaid provisions and in the corresponding grade of

Lieutenant General with pay scale of Rs.7300-100-7600.

Once the petitioner becomes a member of the service, it is

the probation period under the new Rules which comes into

force and as per Schedule IV of said Rules, the period is

one year for any direct recruit. The petitioner would thus

complete the probation on expiry of one year from the date

of appointment of 02.01.1989 and would thus be entitled

to the substantive rank at this stage which is prior to the

retirement of the petitioner on 30.11.1990.

13. We are of the view that the respondents are

misinterpreting the aforesaid provisions as if fresh

appointment has been made under the said Rules. If such

a plea was to be accepted, it would imply that the initial

appointment of the petitioner under the earlier Rules of

1974 stood terminated and abrogated. It is such a

situation which is sought to be avoided by the clear

provisions under Rule 4 of the said Rules. The respondents

cannot be permitted to plead that since under the earlier

Rules the petitioner was to be on probation for two years,

the petitioner would not have completed the said probation

period up to the date of his retirement. Firstly, nothing

prevents the employing authority to confirm a person prior

to the expiry of the full period of probation who have

themselves referred to a probation period of one year

under the old rules vide letter dated 07.03.1989.

Secondly, the object of Rule 4 of the said Rules is apparent

that a person already in service would be deemed to be in

service under the new Rules and governed by the terms

and conditions of the new Rules. There was thus no case

of any fresh appointment to be made but of confirmation

on expiry of probation period under the new Rules which is

one year and which would arise in January, 1990 while the

petitioner retired on 30.11.1990. The petitioner is thus, in

our considered view, entitled to the pay scale of Rs.7300-

100-7600 from the date when the Rules came into force

on 17.06.1989 and would have attained the substantive

rank of a Lieutenant General on expiry of period of

probation since the petitioner was required to be in the

substantive corresponding civil post. The petitioner would

thus not be entitled to the substantive rank of Lieutenant

General with effect from 17.06.1989 as prayed for but from

01.01.1990 on completion of period of probation of one

year. The petitioner having retired form service thereafter

would thus be entitled to the pension in accordance with

the aforesaid scale and rank from the dates stipulated

above.

14. We are also unable to accept the plea of the respondents

that the petitioner should be denied the benefit because he

had only a right to be considered to the substantive rank

but does not have a right to be granted the substantive

rank. It is apparent from the pleadings that the only

reason for non grant of the substantive rank is the factum

of the petitioner not being in the corresponding

substantive civil post. Once we come to the conclusion

that the petitioner was entitled to the substantive civil post

of Surveyor General of India on completion of period of

probation of one year form 01.01.1990, there was no other

impediment in the way of the petitioner being granted the

substantive rank of a Lieutenant General.

15. A writ of mandamus is issued directing the respondents to

treat the petitioner in the pay scale of Rs.7300-100-7600

with effect from 17.06.1989 and to grant a substantive

rank of a Lieutenant General with effect from 01.01.1990

with a further direction to fix the pension of the petitioner

in the rank and pay scale in terms thereof. The needful

be done within a period of three months from today and

the arrears be also paid to the petitioner within the same

period of time.

16. The petition is accordingly allowed with costs quantified at

Rs.5,000/-.

SANJAY KISHAN KAUL, J.

November 04, 2008                             MOOL CHAND GARG, J.
dm