Delhi High Court

Dr.Sahadeva Singh vs Union Of India & Ors. on 19 April, 2011

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.17457/2005

%                       Date of Decision: 19.04.2011

Dr.Sahadeva Singh                                       .... Petitioner

                      Through Mr.Suhail Dutt, Sr.Advocate with
                              Mr.Azhar Alam & Mr.Sankalp
                              Goswami, Advocates

                                Versus

Union of India & Ors.                                .... Respondents

                      Through Mr.J.P.Sharma, Advocate for
                              respondent No.1

                               Mr.B.S.Mor, Advocate for respondent
                               No.2.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers              YES
        may be allowed to see the judgment?
2.      To be referred to the reporter or not?          NO
3.      Whether the judgment should be                  NO
        reported in the Digest?

ANIL KUMAR, J.

1. The petitioner has challenged the order dated 16th May, 2005

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA No.2182 of 2004, titled as „Dr.Sahadeva Singh v. Union

of India, through Secretary, Ministry of Agriculture, Krishi Bhavan,

New Delhi & Ors.‟ dismissing the OA of the petitioner claiming

seniority to the post of AC (Crops) from a date prior to joining this

post on account of getting higher pay scale in the post of AD(WS) and

further benefit of pay fixation under FR 22 (1). The Tribunal held

that the seniority to the post cannot be granted from a date prior to

petitioner joining the post.

2. Brief facts to comprehend the dispute are that the petitioner

was appointed as a Scientist in the National Research Centre for

Weed Sciences (hereinafter referred to as „NRCWS) w.e.f. 11th

December, 1989 in the scale of Rs.2200-75-2800-100-4000/- with

the Indian Council for Agricultural Research.

3. Under the ACP Scheme which was adopted by the Indian

Council for Agricultural Research, the petitioner claimed the pay

scale of Rs.3000-100-3500-125-5000/- w.e.f. 11th December, 1994

on completion of 5 years, which was the pay scale of Scientist (Senior

Scale).

4. The pay scale of Scientist (Senior Scale) on completion of 5

years was, however, denied to the petitioner by the DPC held on 12th

November, 1995.

5. The petitioner had also applied through the UPSC for direct

recruitment to the post of Assistant Director (Weed Science) [AD(WS)]

in the Directorate of Plant Protection, Quarantine & Storage

(hereinafter referred to as the „DPPQS‟) in the scale of Rs.2200-

4000/-. The DPPQS is an Office of the Department of Agriculture &

Co-operation (DAC). The petitioner was selected to the post of

AD(WS) with the Directorate of Plant Protection, Quarantine &

Storage as a direct recruit and he joined the new post on 22nd May,

1995. While joining the DPPQS, the petitioner was granted pay

protection i.e. pre-revised pay scale of Rs.2200-4000/-, which scale

of pay the petitioner was drawing in the Indian Council for

Agricultural Research where the petitioner was working in the

National Research Centre for Weed Science. On the said post of

AD(WS), the petitioner was made permanent after one year w.e.f.

22nd May, 1996. On the petitioner becoming permanent in the grade

of AD(WS), his lien in the service of the National Research for Weed

Science under the Indian Council for Agricultural Research got

terminated.

6. Later on, another post of Assistant Commissioner (Crops)

AC(C) had been advertised. The petitioner applied for it and he was

recommended by the UPSC for appointment in the pay scale of

Rs.10,000-15,200/- as a direct recruit. The petitioner was, therefore,

appointed to the said post of Assistant Commissioner (Crops) on 29th

June, 1999 as a direct recruit on substantive basis. On his

appointment to the post of Assistant Commissioner (Crops), the

petitioner was relieved from the post of AD(WS) with the Directorate

of Plant Protection, Quarantine & Storage and consequently, his lien

to the said post in the said department also stood terminated.

7. Though the petitioner was appointed to the post of Assistant

Commissioner (Crops) as a direct recruit, however, the petitioner

claimed higher pay scale/grade and the benefits of the past service

despite the fact that the appointment to the post of Assistant

Commissioner (Crops) had been made as a direct recruit through the

UPSC.

8. When the petitioner was working as a Scientist in the National

Research Centre for Weed Science under the Indian Council for

Agricultural Research, as per the Advance Career Progression

Scheme, he became entitled for the scale of Scientist (Senior Scale)

on completion of 5 years, which was denied to him by the DPC held

on 12th November, 1995. However, a subsequent DPC held during

1996 recommended the grant of higher pay scale of Rs.3000-5000/-

to the petitioner w.e.f. 11th December, 1995. However, the petitioner

was not satisfied with the grant of pay scale of Rs.3000-5000/-

under the ACP scheme w.e.f. 11th December, 1995 and therefore, he

filed an OA before the Central Administrative Tribunal, Principle

Bench, New Delhi, being OA No.850/1999, which was decided by the

Tribunal on 3rd May, 2000 holding that the petitioner is entitled to

the benefit under the ACP scheme from 11th December, 1994 with all

consequential benefits and not from 11th December, 1995 as had

been granted to him. Pursuant to the order of the Tribunal dated 3rd

May, 2000, the Indian Council for Agricultural Research, the

previous employer of the petitioner, sanctioned a higher grade of

Rs.3000-5000/- w.e.f. 11th December, 1994.

9. The Department of Agriculture & Co-operation (DAC), however

passed an order dated 4th December, 2001 and the pay of the

petitioner was fixed @ Rs.3000/- w.e.f. 22nd May, 1995 in the pay

scale of Rs.2200-4000/- and @ Rs.9100/- in the revised pay scale of

Rs.8000-13,500/- w.e.f. 1st January, 1996. Aggrieved by the order

dated 4th December, 2001, the petitioner filed CP No.611/2001

alleging non-compliance of the Tribunal‟s order dated 3rd May, 2000

by the Ministry. The Tribunal after hearing the parties, gave one

months time to the respondents to comply with its order. Against the

said order, the respondents filed a writ petition being CWP

No.248/2002 which was, however, dismissed.

10. The respondents thereafter filed an affidavit of compliance

before the Central Administrative Tribunal and by order dated 28th

January, 2002 the contempt petition was dismissed holding that no

contempt had been made out.

11. The order dated 28th January, 2002 was challenged by the

petitioner by filing another writ petition, being CWP No.1668/2002.

The writ petition bearing No. CWP No.1668/2002 was disposed of by

order dated 9th August, 2002 holding that the order dated 28th

January, 2002 of the Tribunal dismissing the proceeding under the

Contempt of Courts Act was liable to be set aside. Therefore, the

High Court set aside the said order dated 28th January, 2002 and

revived the contempt proceeding initiated by the petitioner before the

Central Administrative Tribunal. The High Court had held that the

petitioner was to be placed in the revised scale of Rs.3000-5000/-

w.e.f. 11th December, 1994 and thereafter in the pay scale of

Rs.10,000-15,200/- instead of that, the petitioner‟s pay was fixed at

Rs.3000/- in the scale of Rs.2200-4000/- w.e.f. 22nd May, 1995

and @ Rs.9100/- in the pay scale of Rs.8000-13500/- w.e.f 1st

January, 1996.

12. As the contempt petition, pursuant to order of the High Court

dated 9th August, 2002 in CWP No.1668/2002, was revived before

the Central Administrative Tribunal, the respondents were directed

to file a fresh affidavit. Thereafter, the Tribunal passed the order

dated 10th April, 2003 and dismissed the Contempt petition. The

Tribunal noted that the OA No.850/1999 filed by the petitioner was

disposed of by order dated 3rd May, 2000 to grant the higher pay

scale with all consequential benefits w.e.f. 11th December, 1994.

Though the previous employer of the petitioner, the National

Research Centre for Weed Science, had placed him in the higher

scale of Rs.3000-5000/- corresponding to the pre-revised scale of

Rs.10,000-15200/- w.e.f. 11th December, 1994, however, the

Ministry of Agriculture where the petitioner was appointed to the new

post of AD(WS) as a Direct Recruit in the Directorate of Plant

Protection, Quarantine & Storage, therefore had re-fixed his pay @

Rs.3000/- in the scale of Rs.2200-4000/- w.e.f. 22nd May, 1995 and

@ Rs.9100/- in the scale of Rs.8000-13500/- w.e.f. 1st January,

1996. While dismissing the contempt petition, the Tribunal also held

that no contumacious willful disobedience of the Tribunal‟s order

had taken place.

13. Consequent to these proceedings, Ministry of Agriculture also

re-fixed the pay of the petitioner on 1st October, 2002 and thereafter

on 6th November, 2002 and also paid arrears amounting to

Rs.1,01,778/-. The petitioner, however, claimed that he is also

entitled for consequential benefits which would include his further

promotion to the next higher scale of Rs.12000-18300/- w.e.f 12th

December, 1998 as his final absorption in the Ministry took place on

5th October, 1999.

14. It was also noted that the order dated 9th August, 2002 passed

by the High Court in CWP No.1668 /2002 had held that the Indian

Council for Agricultural Research had complied with the directions of

the Tribunal but the Government of India, Ministry of Agriculture

had not complied with the said order, consequent to which the

orders dated 20th September, 2002 and 6th November, 2002 were

passed and the petitioner was given arrears of pay and allowances. It

was also held that in the contempt proceedings the petitioner would

not be entitled to enlarge the scope of relief claimed by him in OA

and the writ petition. In the order dated 10th April, 2003 while

dismissing the contempt proceeding on compliance of the order of

the Tribunal in para 10 it was held as under:-

"10...........contempt proceedings shall not be permitted to be utilized for extending the scope of reliefs to be claimed. That is exactly what the applicant is seeking to do. Delhi High Court had held that the contempt in this CP subsisted as long as the applicant's pay was not fixed in the scales of Rs.3000-5000 and in Rs.10000-15200. Once the same has been done first by the ICAR and thereafter by the Ministry of Agriculture nothing survives. Request by the applicant that he should have been granted next higher scale on 11.12.1999 in ICAR, keeping in mind the fact that he was finally absorbed in the Ministry only 1999 (though w.e.f. 22.5.1996) is a totally new plea and the same cannot been entertained while considering this CP. The applicant expect the Tribunal to extend the scope of contempt action to give him any further relief than what has already been granted by the Tribunal earlier, the non- compliance of which he seeks to assail if at all he feels that he has a case and that some more relief was called for, he should take action on the original side, in accordance with law, if so advised.

15. Thereafter, the petitioner filed an OA, being OA No.2128 of

2004, titled „Dr.Sahadeva Singh v. Union of India & Ors.‟ praying,

inter-alia, that Ministry of Agriculture should carry out corrections in

the seniority list of petitioner and should give him seniority w.e.f.

22nd May, 1995 instead of 29th June, 1999, i.e. from the date he had

been placed in the scale of Rs.3000-5000 (revised pay scale of

Rs.10,000-152000/-) and also to give him promotion w.e.f. 22nd May,

2000 in the next higher grade to the post of Deputy Commissioner. It

was contended that on fixing his seniority w.e.f. 22nd May, 1995 in

the scale of Rs.10,000-152000/-, though he joined the post of AC(C)

as a direct recruit in the scale of Rs.10,000-15200/- w.e.f. 29th June,

1999, he would be entitled for the benefit of his past services with

the National Research Centre for Weed Science and his services with

the Directorate of Plant Protection, Quarantine & Storage. He

contended that he is entitled for seniority from 22nd May, 1995, the

date from which he has been granted the benefit of pay scale, and

not from the date of his joining the post as a fresh direct recruit. For

this plea, the petitioner again relied on the order passed by the

Tribunal in OA No.850/1999 dated 3rd May, 2000 and emphasis was

laid on the Tribunal granting all consequential benefits in the said

order.

16. The petition was contested by the respondents contending that

the Recruitment Rules and Cadre of National Research Centre for

Weed Science, the Directorate of Plant Protection, Quarantine &

Storage and Department of Agriculture & Co-operation are totally

different and distinct and the benefits with regard to pay scale and

seniority of previous service cannot be carried forward to different

cadres and different service after appointment as a direct recruit. It

was asserted that while complying with the order of the Tribunal in

OA No.850/1999, the pay scale of Rs.3000-5000/-was allowed to the

petitioner and his pay was re-fixed @ Rs.3000/- per month with

effect from 22.5.1995 and Rs.10,000 per month with effect from

1.1.1996 by order dated 1.10.2002, even though the post of

Assistant Director held by him in DPPQS remained in the lower

grade. As a sequel to this, the petitioner‟s pay was also re-fixed in the

pay scale of the post of Assistant Commissioner (Crops) with effect

from 29.6.1999 @ Rs.11330 under the provisions of FR-22 (i) after

taking into account his pay in the previous post vide order No.

19011/391/2002-E.V (Vol. I) dated 6.11.2002.

17. It was categorically asserted by the respondents that the pay

protection given to an employee does not entitle him for counting

seniority of previous cadre posts for another post the subsequent

cadre. Consequently, it was asserted that the petitioner is not

entitled for seniority from 22nd May, 1995 instead of 29th June, 1999

in the grade of Assistant Commissioner (Crops) and further

promotion with effect from 22nd May, 2000.

18. The respondents relied on the guidelines of the Department of

Personnel & Training contemplating that seniority of a person

regularly appointed to a post/service according to the rule is

determined by the order of the merit indicated at the time of initial

appointment, and, thus, it has to be counted from the date of his

appointment to such grade/service/cadre.

19. The respondents denied that the petitioner is entitled for

seniority in the grade of Assistant Commissioner (Crops) w.e.f. 22nd

May, 1995, which is the date of his appointment as Assistant

Director (Weed Science) in the Directorate of Plant Protection,

Quarantine & Storage, Faridabad, as it was a separate service/cadre

for technical post. According to the respondents, on petitioner‟s

appointment to the post of Assistant Commissioner (Crops) he got

detached from the service/post in the Directorate of Plant Protection,

Quarantine & Storage. The appointment to the post of Assistant

Director (Weed Science) and Assistant Commissioner (Crops) are

distinct which are regulated by different sets of recruitment rules.

Merely because the petitioner was allowed upgraded pay scale of

Rs.10,000-15200 in his previous post of Assistant Director (Weed

Science), in order to implement the order of the Tribunal in OA

No.850/1999, the petitioner cannot be permitted to have seniority

from the date prior to his appointment to a different post of Assistant

Commissioner (Crops) in a different cadre which has separate

existence from the earlier post of Assistant Director (Weed Sciences).

It was pleaded that the seniority in the grade of Assistant

Commissioner (Crops) is to be counted from the date of his

appointment, i.e., 29th June, 1999, and not from any previous date.

In the circumstances, it was contended that the claim of the

petitioner was misconceived, misleading and an attempt to

misrepresent the fact with the mala fide intention to get the benefits

which are not permissible under normal rules and circumstances.

20. The Tribunal noted the pleas and contentions of the parties

and held that there is no rule or instruction which states that if an

employee has been selected as a direct recruit against a post

advertised by the UPSC, he would be entitled to the benefit of

service/seniority in the post held by him in the previous cadre. On

account of protection of pay in the scale of Rs.10,000-15200 to the

post of Assistant Director (Weed Sciences), the petitioner cannot

claim seniority in the newly appointed post of Assistant

Commissioner (Crops) from the earlier date. It was held that the

claim of the petitioner is totally unreasonable and not at all tenable.

The observations and inferences drawn by the Tribunal made in para

9 of the order which is impugned in the present writ petition is as

under:-

"9. We find that the applicant has mainly relied on the order dated 3.5.2000 in OA No.850 of 1999 by

contending that respondent No. 1 has not complied with the said order in its true spirit. This, in our view, is not correct inasmuch as he had earlier filed CP in the matter which had been dismissed by the Tribunal but when the applicant had approached the High Court, CP had been revived culminating in order dated 10.4.2003 passed by the Tribunal after thoroughly analyzing the relief sought by the applicant earlier and compliance thereof furnished by the respondents. Learned counsel for the applicant has not been able to show any rule or instructions which state that if an employee has been selected as a direct recruit against a post advertised by the UPSC, he would be entitled to the benefit of service/seniority in the post held by him in the previous organization. The basis on which seniority is being claimed in the post of AC© is that applicant was given protection of pay in the scale of Rs.10000-15200 in the post of AD (WS) in the previous organization. Just because he was given pay scale in the post of AD(WS) which is at par with that of AC© in compliance of the order of the Tribunal, in our view, would not ipso facto confer on him vested right to claim seniority in the newly appointed post of AC© from the earlier date. The claim of the applicant is therefore, totally unreasonable and not at all tenable. In fact, by resorting to a series of litigation, the applicant has succeeded in getting the benefit of higher pay scale in the post of AD(WS) and further benefit of pay fixation under FR22(1). He is under the mistaken belief that he would invoke the powers of the Tribunal to accelerate his career prospect by claiming seniority in the post of AD© from a date prior to his joining the post, which is nothing but an attempt to mislead the Tribunal and derive undeserved and unlawful benefit. This attitude on part of the applicant is to be deprecated."

21. The petitioner has filed the present writ petition impugning the

order of the Tribunal dated 16th May, 2005 contending that the order

of the Tribunal dated 3rd May, 2000 passed in OA No.850 of 1999

has not been complied with and reiterating the pleas and contentions

raised before the Tribunal. According to him, though he was

appointed on 29th June, 1999 as a direct recruit against the post

advertised by the UPSC, however, he would be entitled to the benefit

on account of revision of his pay in the previous post in a different

cadre as qualifying service, as in the previous post in different cadre

he had been granted the same pay scale. It was contended that

therefore the seniority should be accepted from the date of his

appointment i.e. 22nd May, 1995 in the previous post in different

cadre. Seniority from the back date is claimed by the petitioner on

the ground that he was given higher pay scale against the lower post

of Assistant Director (Weed Science) which is at par with that of the

Assistant Commissioner (Crops) in compliance of the order of the

Tribunal. The petitioner also asserted that the post of Deputy

Commissioner (Crops) was lying vacant since 1999 and it was

mentioned that a candidate recommended by the UPSC would be

given an offer of appointment who is yet to join as the other three

posts were to be filled after revision of the recruitment rules.

According to the petitioner, respondent No.1 had failed to comply

with the order of the High Court dated 9th August, 2002 upholding

the Tribunal‟s orders dated 3rd May, 2000 and 12th December, 2001

and he is entitled for seniority from the date prior to his appointment

in compliance with the earlier order of the Tribunal. The petitioner

also claimed the promotion to the next higher grade w.e.f. 22nd May,

2000 under the relief of consequential benefits granted to the

petitioner in respect of his service as a scientist in the National

Research Centre for Weed Science with the Indian Council for

Agricultural Research.

22. The writ petition has been contested by the respondent No.1

who filed a counter affidavit dated 10th July, 2006. The pleas and

contentions raised on behalf of respondent No.1 before the Central

Administrative Tribunal were reiterated stating that the pay

protection given to the petitioner does not entitle him for counting

seniority of previous cadre/posts in the subsequent cadre/post. The

petitioner was appointed as Assistant Commissioner (Crops) w.e.f.

29th June, 1999 as a direct recruit and was made substantive in the

grade w.e.f. 29th June, 2000 and thus, the lien of the petitioner on

his previous post of Assistant Director (Weed Science) was

terminated and on account of any relief granted for the post of

Assistant Director (Weed Sciences) as a consequential relief, the

petitioner cannot claim seniority from the date prior to his joining in

a different cadre/post. Respondent No.1 emphasized that the

Tribunal while passing its order dated 10th April, 2003 in the

contempt petition No.611 of 2001 in OA No.850 of 1999 had held

that the respondents had given full effect to the directions of the

Tribunal‟s order dated 3rd May, 2000 in OA No.850 of 1999.

Therefore, as the contempt petition had been dismissed on account

of compliance of order dated 3rd May, 2000, the petitioner cannot

claim any further relief under the order dated 3rd May, 2000 passed

in OA No.850 of 1999 and as the seniority in the grade of Assistant

Commissioner (Corps) is not covered under the consequential benefit

given by the Tribunal for the previous post of AD (WS) in a different

cadre.

23. This Court has heard the learned counsel for the parties in

detail and has also perused the pleadings of OA No.850 of 1999 and

contempt petition No.611 of 2001 and the orders passed in the said

petitions and the order passed in the writ petitions filed by the

parties from the orders arising there from, as well as the order of the

Tribunal which is impugned before this Court.

24. The learned counsel for the petitioner has not been able to

refute that the post of Assistant Director (Weed Science) in the

Directorate of Plant Protection, Quarantine & Storage, Faridabad is

in a distinct cadre than the post of Assistant Commissioner (Crops).

Both the posts have different recruitment rules. Both the posts have

different duties and responsibilities. The petitioner has not been

promoted from the post of Assistant Director (Weed Science) in

DPPQS, Faridabad to the post of Assistant Commissioner (Crops).

The appointment of the petitioner to the post of Assistant

Commissioner (Crops) is on account of his direct recruitment

through the UPSC. Since the petitioner has been appointed to the

post of Assistant Commissioner (Crops) by direct recruitment,

seniority would be regulated by the order of merit indicated at the

time of his appointment and it is to be counted from the date of his

appointment. No rule or guidelines or office memorandam have been

brought to our notice which will entail to the petitioner, the seniority

of another cadre/post which is distinct and different from the post of

Assistant Commissioner (Crops) to which the petitioner was

appointed on 29th June, 1999. How the petitioner can claim seniority

legally and validly from 22nd May, 1995 has not been specifically

explained.

25. The learned Senior Counsel, Mr.Suhail Dutt has tried to rely

on FR 23 in order to substantiate his arguments. FR 23

contemplates that the holder of a post whose pay is changed shall be

treated as if he is transferred to a new post on the new pay. FR 23 is

as under:-

"F.R. 23- The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay;

Provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment or old scale or until he vacates his post or ceases to draw pay on that time scale. The option once exercised is final."

26. Apparently FR 23 relied on by the learned counsel is not

applicable to two posts in different cadres where the appointment is

made through the UPSC as direct recruit. The lien of the petitioner to

the post of Assistant Director (Weed Science) got terminated on his

joining the post of Assistant Commissioner (Crops) as a direct recruit

on 29th June, 1999. Thus, any pay protection granted to the

petitioner while he was on the post of Assistant Director (Weed

Science) cannot be construed so as to also grant seniority to the

petitioner for a post in a different grade where the appointment was

made as a direct recruit. Thus, there are no grounds to hold either

on the basis of any recruitment rules or any office memorandum or

guidelines that on joining the post of Assistant Commissioner (Crops)