Delhi High Court
Union Of India vs Pushpa Devi on 23 March, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 1182/2010 & CM Nos. 2471-72/2010 &
3711/2010
% Date of Decision: 23.03.2010
U.O.I. .... PETITIONER
Through Mr. V.S.R. Krishna, Advocate
Versus
PUSHPA DEVI ....RESPONDENT
Through None
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be Yes
allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in No
the Digest?
MOOL CHAND GARG, J.
*
1. This writ petition has been filed by the petitioners aggrieved of the
order passed by the Principal Bench, Central Administrative Tribunal
(hereinafter referred to as the Tribunal) in OA No. 2074/2008 on
17.08.2009, whereby directions have been given to the petitioners to
place the respondent in the pay scale of Rs. 4500-7000 from the date of
inception of her service as a Junior Clerk with arrears and re-consider
her out of turn promotion to a pay scale higher than the scale now
being granted to her, with arrears, within a period of three months from
the date of receipt of a copy of the order.
2. Briefly stating the facts giving rise to the filing of this case are
that the respondent, a graduate of Delhi University as well as an athlete
of International level who was recruited in Central Industrial Security
Force (CISF) as Head Constable in the pay scale of Rs. 3200-4900 and
on the basis of the sports achievements, was also promoted as Assistant
Sub Inspector in the pay scale of Rs. 4000-6000. Pursuant to a
notification issued by the Railway Board for recruitment in Group 'C' for
the year 2000-2001 in sports quota, whereby the pay scale for graduate
was prescribed as Rs. 4500-7000, she applied for the post of Junior
Clerk, however despite her selection she was appointed as a Senior
Clerk but in the pay scale of 3050-4500. At this juncture, it would be
relevant to take note of the notification issued by the
respondents/Railway Board for recruitment of Group 'C' post in sports
criteria.
2.0 ELIGIBILITY CRITERIA
2.1 Citizenship: Only candidates who are citizens of
India are eligible.
2.2 Minimum Educational Qualifications:
Matriculation is the minimum qualification required
for appointment.
2.3 Educational qualification for different pay scales:
(i) Matric pass upto less than graduate for pay scale
Rs. 3050-4500, (ii) Graduate or higher qualification
for pay scale Rs. 4500-7000. (depending on the
sports performance.)
3. A bare reading of the aforesaid criteria goes to show that if a
person was graduate and was found to be successful in sports
performance has to be put up in the pay scale of Rs. 4500-7000 but for
a matric post up to less than graduate, pay scale prescribed was Rs.
3050-4500. However, despite that the petitioner was appointed in the
pay scale of Rs. 3050-4500 by the Railway Board despite she being an
athlete of National level and was not appointed in the pay scale of Rs.
4500-7000, which was the pay scale admissible to a graduate.
4. It is a matter of record that after the respondent joined the
Railway Board as Junior Clerk on 10.05.2002, till 2005 on the basis of
sports achievement, was granted six special increments and was also
given out of turn promotion as per Railway Board's guidelines on
outstanding performance as Senior Clerk in the pay scale of Rs. 4500-
7000. It is the matter of record that she also cleared the Appendix II-A
examination but was not yet promoted till the OA was decided by the
Tribunal.
5. The respondent had been requesting the petitioners to give
reasons as to why she was not granted the pay scale available for a
graduate even though she was enjoying the pay scale of 4000-6000 in
CISF to which no reply was sent. Rather vide a letter dated 06.08.2007,
the petitioners had informed her that notional fixation of pay of the
sports person shall be at the minimum of the pay scale after filing an
RTI, out of turn promotion was granted to her in the pay scale of Rs.
4500-7000 instead of Rs. 5500-9000.
6. Before the Tribunal it was argued on behalf of the petitioner that
the respondent at the time of recruitment in Railway was not eligible for
higher pay in the pay scale of Rs. 4500-7000 because as per the
advertisement, the pay scale of Rs. 4500-7000 depended upon the
sports performance. It was submitted that as per the recommendations
of the recruitment Committee after conducting a trial, she was only
recommended for the pay scale of Rs. 3050-4500 but later on she was
given higher pay scale by promoting her to the pay scale of Rs. 4500-
7000.
7. It is surprising to note that the same respondent who was stated
to have not achieved the level of performance at the time of trial, though
no records have been placed on record, has been given a higher pay
scale after she applied for an information under the RTI. The Tribunal,
therefore, allowed the OA filed by the respondent by making the
following observations:
7. We have carefully considered the rival
contentions of the parties and perused the material
on record. The advertisement published by the
respondents was issued with an intelligible
differentia and has reasonable nexus with the object
sought to be achieved, which was to fill up the sports
quota by sports persons. Applicant, who was a well
acclaimed National and International athlete and a
graduate, had come in the eligibility criteria for grant
of pay scale of Rs.4500-7000. However, the trial held
by the Railway authorities found her fit only for grant
of lower pay scale. Applicant not only participated in
the Asian Athlete Championship but also world-class
country championship and had stood first in 5000
meter. The justification put-forth by the respondents
that she has been found to be apt for a lower pay
scale is highly contradictory to their conduct post
appointment of the applicant, where on her sports
achievements she has not only been given six special
increments but also promotion on out of turn basis
for outstanding sports performance. If the
performance of applicant in the past or in the
Railways was found outstanding then placing her in
a lower pay scale despite being graduate is not good
administration on the part of the respondents. We
do not find any reasonableness or justification in the
act of the respondents of placing applicant at the
time of inception in service in a lower pay scale. Her
outstanding performance in sports clearly entitled
her to be considered in the higher pay scale, which
has been denied by the Railway authorities without
any basis. In our considered view, the unfairness of
the respondents has to be tested on the touchstone
of reasonableness as per the decision of the Apex
Court in Noida Enterprises Association v. Noida
Authority, 2008 (1) SCC (L&S) 672 does not pass the
test. In administrative decision when abuse of power
takes place, judicial review is permissible as held by
the Apex Court in Meerut Development Authority v.
Association of Management Studies, 2009 (8) SCALE
8. Sports in this country having such a big
population are going down day by day. No good
sportsman is emerging out of this population. This is
because of the unreasonableness and unfairness of
the authorities while dealing with sports persons. In
the instant case, which is a glaring example how a
good sportsman is treated, the applicant who is a
well-acclaimed National and International athlete
having brought laurels to the country has to now
litigate for redressal of grievance before us. Had this
been in some other country like USA irrespective of
sports achievements would have been suitably
awarded. This apathy due to fault in the system and
arbitrariness on the part of the authorities has led to
discouragement amongst the sports personalities to
shy away from Government service. If they are not
suitably rewarded for their achievements a time will
come when sports would be an obsolete choice of the
country, which would ultimately affect public
interest and reputation of this country as well.
Applicant, who has been appointed under sports
quota with an excellent track record being a graduate
has been wrongly placed by the respondents in a
lower pay scale, which cannot be sustained in law.
8. We have considered the submissions made by the learned counsel
for the petitioner that in the present case the respondent herself
accepted the appointment in lower pay scale as she was not found fit for
granting the higher pay scale and, therefore, she was not entitled to
raise up the issue subsequently. However, the learned counsel has not
been able to show us as to how a graduate could be granted a lower pay
scale even if submissions made by the counsel are to be accepted per
se. The criteria as quoted above goes to show that even if sports
performance was one of the criteria but that means that if the criteria is
not met by the applicant whether one is graduate or under-graduate,
the notification does not entitle to place a graduate in a lower pay scale.
In any event, the grant of special increment and then further promoting
her just within a span of two-three years itself falsifies the case of the
petitioner that the respondent was not able to satisfy the sports criteria
at the time of her initial selection. However the respondent was already
working in the pay scale of 4000-6000 in CISF and therefore there is no
reason for her to accept a lower pay scale. Hence, we do not find any
infirmity in the order passed by the Tribunal calling for any interference
by this Court under Article 226 of Constitution of India. The writ
petition is, therefore, dismissed.
9. All the pending applications are also disposed of.
MOOL CHAND GARG, J.
MARCH 23, 2010 ANIL KUMAR, J.
'ag'
