Delhi High Court
K.L.Noatay vs Uoi & Ors. on 26 April, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: April 07, 2011
Judgment Delivered On: April 26, 2011
+ WP(C) 4377/2003
K.L.NOATAY ..... Petitioner
Through: Mr.K.N.Madhusoodhanan, Advocate
versus
UOI & ORS. .....Respondents
Through: Mr.K.P.S.Kohli, Advocate
WP(C) 10121/2009
RAGHUBIR SINGH GHERA & ORS. ..... Petitioners
Through: Ms.Rekha Palli, Ms.Punam Singh
and Ms.Amrita Prakash, Advocates
versus
UOI & ORS. .....Respondents
Through: Mr.R.V.Singh and Mr.A.S.Singh,
Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The above captioned writ petitions under Article 226 of
Constitution of India raise three issues; namely: (i) whether the
administrative officers cadre of Border Roads Organization is
required to be encadred as an organized cadre; (ii) whether
the petitioners in W.P. (C) No.10121/1999 are entitled to the
payment of special pay/headquarters allowance; and (iii)
whether the initial pay of the petitioner in
W.P.(C)No.4377/2003 in the post of Civilian Officer Grade-I (SG)
was required to be fixed in terms of the provisions of F.R.
22(I)(a)(1).
2. Whereas issue No.(i) arises for consideration in both the
writ petitions, issues Nos.(ii) and (iii) arise in W.P.(C)
Nos.10121/1999 and 4377/2003 respectively.
3. Since one of the issues which arise for consideration in
the two captioned petitions is common, arguments were heard
in both the matters on 07.04.2011 and decision was reserved.
The present judgment decides both the petitions.
4. We shall be dealing with each of the issues separately.
Issue No. (I)
5. Border Roads Organization (hereinafter referred to as the
"BRO") was set up in March 1960 for the expeditious execution
of Road Works for development of communication in North and
North - Eastern border areas of the country. BRO is a civil
engineering institution responsible to provide civil
(construction) engineering cover to the Armed Forces of India
and under the administrative control of Ministry of Road
Transport and Highways, Government of India. BRO is staffed
with a combination of Border Roads Engineering Services
(BRES) officers from General Reserve Engineering Force (GREF)
and officers from Corps of Engineering of Indian Army. Broadly,
there are four cadres in BRO; namely: (i) Civil Engineering
Cadre; (ii) Electrical and Mechanical Engineering Cadre; (iii)
Administrative Officers (Non-Technical) Cadre and (iv) Medical
Cadre. Out of the said four cadres, two cadres namely, civil
engineering cadre and electrical and mechanical engineering
cadre have been encadred as organized cadres. The
petitioners in the two captioned writ petitions are/were the
officers who are/were holding various Group A posts in the
administrative officers cadre of BRO.
6. In the year 1991 the petitioner of W.P.(C) No.4377/2003,
K.L.Noatay who was working on the post of Civilian Officer,
Grade-I in the administrative officers cadre of BRO filed a
petition bearing No.3210/1991 under Article 226 of
Constitution of India before the Gauhati High Court, inter-alia
praying for the relief(s) that :- (i) a direction be issued to the
department to undertake a cadre review of the posts in the
administrative officers cadre of BRO; and (ii) petitioner
K.L.Noatay be promoted to a post higher than that of Civilian
Officer, Grade-I, with effect from the date his counterpart
working in engineering cadres was promoted to a higher post
and to grant him incidental benefits of such promotion.
7. Noting that there are no promotional prospects for the
persons working as Civilian Officers in BRO, vide judgment and
order dated 14.07.1995 the Gauhati High Court directed the
department to undertake a review of the cadre of Civilian
Officers i.e. administrative officers cadre to improve
promotional prospects of the post of Civilian Officer in BRO.
The relevant portion of the judgment of the High Court reads
as under:-
"9. There is thus an immediate need to provide
promotional prospects for persons working as
Civilian Officers in the Border Roads
Organization. The respondents have stated in
their affidavit-in-opposition that it has been
decided to carry out the cadre review of the
Civilian Officer and grant relief to them, but the
matter has been dragged for too long time. Since
such cadre review of the Civilian Officers of
Border Roads Organization is long over-due and
the petitioner is about to retire from service
within a year, I direct that the respondents shall
within a period of 3 months from the receipt of a
certified copy of this order from the petitioner
review the cadre of Civilian Officers in the Border
Roads Organization for the purpose of creating
promotional posts for Civilian Officers and within
two months thereafter consider the petitioner
along with others for promotion to such
promotional posts which may be created by the
respondents. I further direct that while making
such cadre review and granting promotional
benefits, the respondents shall also decide as to
whether, considering the fact that the Civilian
Officers have stagnated in their respective posts
for almost two decades, such promotional
benefits should be given with retrospective
effect. With these directions, the writ petition is
disposed of, but there shall be no order as to
costs." (Emphasis Supplied)
8. Pursuant to the afore-noted directions issued by Gauhati
High Court, on 08.11.1995 the department carried out a review
of the posts in the administrative officers cadre of BRO.
9. All this while, the officers working in the administrative
officers cadre of BRO were making representations to the
department that in view of the lack of promotional prospects in
the administrative officers cadre which has a sizeable strength
inasmuch as it consists of 130 Group A officers and plays an
important role in the working of BRO the same be encadred as
an organized cadre.
10. In view of the representations made by the officers of the
administrative officers cadre, on 30.09.2009 DDG (Pers), BRO
forwarded a note to the Border Roads Development Board
wherein he mooted a proposal for the encadrement of the
administrative officers cadre of the BRO as an organized cadre.
The said note reads as under:-
"1. Ref Sectt BRDB ID Note No. PC-6 to
BRDB/03/191/2007/GE-I dated 13 May 2009.
2. GO - 1349W Dir (Admn) RS Ghera of this
Dte has submitted a representation requesting
for making Administrative Officers Cadre as an
organized cadre so that the benefits of
Organized Cadre can also be extended to
Administrative Officers Cadre, as in the case of
Civil/E & M cadre.
3. The case has been examined in the light of
the following aspects:-
(a) Instruction from Deptt of Pers & Trng vide
No. AB-14017/38/90-Estt (RR) dated 23 May
1990(F/B) which stipulates that all isolated posts
should be encadred into Organized Cadre.
(b) 130 Group A Officers are on the strength of
the Administrative officers cadre in the
Organization. Organized services like Indian
Supply Service, Indian Inspection Service, P & T
Building Works Service, etc have less strength
that that of Administrative Officer Cadre.
(c) In BRO, the Group A E&M Cadre who were
having less strength (i.e. 117 Nos) had been
made an Organized Service, during 1997.
(d) A model Organized cadre Cadre should
have the following level of posts.
Ideal Holding
SAG (Jt Secy or equivalent) Director (JAG)
JAG (Dy Secy or equivalent) Jt Dir (JAG)
STS (US or equivalent) SAO(STS)
JTS (Admn Offr or equivalent) AO(JTS)
50% of JTS should be through direct recruitment.
(e) Presently in the Administrative officers
cadre, the lower three levels are available as
against the SAG level, two posts of Director are
available which are lower than SAG level.
(f) In BRO there are broadly four arms/cadre of
Officers:-
(i) Civil Engineers
(ii) Mech Engineers
(iii) Medical Officers
(iv) Administrative Officers
(g) The cadres mentioned at (i) and (ii) of Para
3 (f) are organized cadre. The Medical Cadre
which is small in strength, though not Organized,
is covered by Dynamic Assured career
progression and an Officer joined as MO-II(JTS)
will get SAG Scale after completion of 20 years of
Service.
(j) The Administrative officers cadre, in fact, is
large in strength and meets the requirements of
an Organized Service and is presently deprived
of benefits of both Organized Cadre as well as
DACP.
4. Representation of Director (Admn) RS
Ghera was also referred to the Cadre Review
Committee constituted at this Dte for the
purposes of cadre review of all categories of
GREF officers. The Committee has opined that if
Admn Officers Cadre is to be constituted as an
organized cadre, then all the attributes of an
organized service has to be satisfied, viz post at
the level of JS equivalent has to be created,
lateral entry to be stopped, Dir (Admn) post to be
declared Non-Functional, entry at JTS level has to
be from Civil Service Examination conducted by
UPSC and the Gazette Notification of the Ministry
will be required making Admn Officers of BRO as
an organized service.
6. All organized cadres do not have posts
strictly as per the model Organized Service and
even Indian Legal Services do not have any post
of JTS level. Therefore, the cadres which do not
fit as per the model can also be declared as
Organized cadre. In view of all the points
elaborated above, it is recommended that the
case for declaring Administrative Officers Cadre
as an organized cadre be considered even if it
involves excluding the SAG level post at
present." (Emphasis Supplied)
11. Vide office order dated 05.11.2009 the Border Roads
Development Board rejected the afore-noted proposal mooted
by DDG (Pers) for the encadrement of the administrative
officers cadre of the BRO as an organized cadre, which office
order reads as under:-
"Subject: To encadre Administrative Officer of
BRO as an Organized Group A Cadre
Reference Dte.GBR‟s Note No.13822/SCR/Adm
Cadre/DGBR/93/E1A dated 30.09.2009 on the
above subject.
2. The proposal has been examined and the
same has not been accepted due to the reasons
given below:-
(a) Border Roads Organization is a construction
agency and engineers are the backbone of the
organization and the main cadre for the
execution of construction works, hence
comparison of AOs with engineers is not tenable.
(b) The Assistant Executive Engineers (entry
level) are recruited through UPSC on the basis of
Engineering Service Examination whereas
Administrative Officers are recruited through
interview basis only. Thus mode of selection for
these two posts is not similar.
(c) After implementation of recommendation of
6th Central Pay Commission, the Govt. has
introduced Modified ACP Scheme for Group A
officers also. Under this scheme, there will be
three financial upgradation at intervals of 10, 20
and 30 years of continuous regular service and
the same is also applicable to the officers of
Administrative officers cadre.
3. This issues with the approval of secretary BRDB."
12. Aggrieved by the decision of the department not to
encadre the administrative officers cadre as an organized
cadre the petitioners in both the petitions have filed the
present petition(s) under Article 226 of Constitution of India
inter-alia contending that in view of the lack of promotional
prospects in the administrative officers cadre which has a
sizeable strength inasmuch as it consists of 130 Group A
officers and plays an important role in the working of BRO, the
department be directed to encadre the said cadre as an
organized cadre. In order to highlight the lack of promotional
prospects in the administrative officers cadre, the petitioners
laid emphasis on the fact there exists a wide disparity between
the promotional prospects in the administrative officers cadre
and the two cadres of BRO which have been encadred as
organized cadre namely, civil engineering cadre and electrical
and mechanical engineering cadre. To demonstrate the said
disparity, following table(s) were pressed into service by the
petitioners:-
Comparison of Cadres in BRO
Civil Engineering Cadre
S. Name of Date of Senior Junior Senior Higher
No Official Joining Time Scale Admn. Admn. Admn
Grade (Jt Grade Grade
Dir/Dir)
1. V.K. 09.05.1978 15.06.1992 13.12.1997 12.12.2002 17.11.2009
Yadav (Dir)
2. Anil 10.05.1983 23.07.1993 18.08.1999 01.12.2004 -
Kumar (Dir)
3. Vinod 05.04.1983 July 1993 14.06.1999 05.10.2005 -
Kumar (Dir)
Electrical and Mechanical Engineering Cadre
S. Name of Date of Senior Junior Senior Higher
No Official Joining Time Scale Admn. Admn. Admn
Grade (Jt Grade Grade
Dir/Dir)
1. S. Sen 01.05.1982 22.03.1992 07.06.2001 31.05.2006 -
(Dir)
2. V.N. 06.08.1985 09.11.1993 07.10.2003 - -
Singh (Dir)
3. Rajesh 08.09.1990 20.08.2000 28.11.2009 - -
Kumar (Dir)
Administrative Officers Cadre
S. Name of Date of Senior Junior Senior Higher
No Official Joining Time Scale Admn. Admn. Admn
Grade (Jt Grade Grade
Dir/Dir)
1. R.S. Ghera 18.03.1978 05.03.1993 20.02.2002 - -
(Jt Dir);
30.11.2007
(Dir)
2. A.K. 14.03.1983 29.06.1995 06.09.2004 - -
Chattopadhyay (Jt Dir)
3. R.P. Singh 04.03.1983 12.04.1996 01.12.2006 - -
(Jt Dir)
4. Rohtash 17.10.1979 08.06.1996 22.08.2007 - -
Kumar (Jt Dir)
5. Alok Das 15.06.1982 09.09.1997 01.09.2007 - -
(Jt Dir)
13. Per contra, the department contended that it is settled
legal position that the courts should be very slow in interfering
with the policy decisions of the State as it is a decision taken
by the administrators on an examination of various facets
before them and the inputs they receive from various sources.
It was contended that in view of the said legal position, this
Court should not interfere with the policy decision of the
department not to encadre administrative officers cadre as an
organized cadre.
14. Broadly speaking, there are two categories of posts in
Group A services in the Central Government viz., those
encadred in the organized cadres and those which do not form
part of any organized cadre. In an organized cadre the posts
belonging therein are arranged in a hierarchical and
pyramidical manner representing different level of
responsibilities or grades and the level of responsibilities
increases with each senior level. There are six grades in an
organized cadre viz., Junior Time Scale (JTS), Senior Time Scale
(STS), Junior Administrative Grade (JAG), Non-Functional
Selection Grade (NFSG), Senior Administrative Grade (SAG),
Higher Administrative Grade (HAG) and Higher Administrative
Grade-I (HAG-I). While the Junior Time Scale (JTS) is the lowest
grade, Higher Administrative Grade-I (HAG-I) is the highest
grade. The Pay Commissions recommend scales of pay (now
known as pay bands) for different grades/levels of posts
keeping in view the nature of responsibilities attached to the
posts and the cadre structure i.e. the promotional avenues. As
opposed to this, the posts belonging to an unorganized cadre
are not arranged according to the level of the responsibilities
attached to the posts. Since the posts belonging to the
unorganized cadres are not arranged according to the level of
the responsibilities/grades the recommendations made by the
Pay Commissions do not apply to the unorganized cadres as a
result whereof acute stagnation is caused in the said cadres.
The instant case is a perfect example of the same. The tables
noted in para 12 above depicting the career progressions of
the officers working in the administrative officers cadre vis-à-
vis their counterparts working in the two engineering cadres,
the organized cadres of BRO. The afore-noted judgment dated
14.07.1995 passed by the Gauhati High Court also notices the
stagnation of the officers of the administrative officers cadre.
15. In view of the acute stagnation in the administrative
officers cadre of BRO due to non-encadrement of the said
cadre as an organized cadre, is the decision of the department
of refusing to encadre the administrative officers cadre as an
organized cadre legally valid is the question which needs to be
answered by us?
16. As already noted herein above, three reasons have been
given by the department in refusing to encadre the
administrative officers cadre as an organized cadre; namely: (i)
the two engineering cadres play a pivotal role in the working of
BRO, which is not the case with administrative officers cadre;
(ii) the mode of selection for the entry level posts in the
administrative officers cadre and the two engineering cadres
are different; and (iii) the implementation of the
recommendations of Sixth Central Pay Commission the
Modified Assured Career Progression Scheme (MACPS) applies
to all the Group A central government employees including the
officers working in the administrative officers cadre of BRO and
the same solves the problem of the lack of promotional
prospects in the administrative officers cadre.
17. The first two reasons given by the department to refuse
to encadre the administrative officers cadre as an organized
cadre are wholly fallacious. The department has not correctly
appreciated the tenor of the grievance raised by the officers
working in administrative officers cadre in respect of non-
encadrement of their cadre as an organized cadre. The
grievance raised was that due to non-encadrement of the
administrative officers cadre as an organized cadre there is
lack of promotional prospects in the said cadre. It was not the
grievance of the officers working in administrative officers
cadre that they are being discriminated against their
counterparts in the two engineering cadres and thus their
cadre should also be encadred as an organized cadre like the
two engineering cadres. The career progression of the officers
working in the said two engineering cadres has only been
referred to by the officers working in administrative officers
cadre to demonstrate the lack of promotional prospects in their
cadre. Thus, the approach of the department in drawing a
comparison between administrative officers cadre and the two
engineering cadres and thereby refusing encadrement to
administrative officers cadre is totally non-focused. In any
case, it is not correct to say that the administrative officers
cadre does not play an important role in the working of BRO.
BRO has a task force of approximately 42,000 personnel. The
administrative officers cadre is responsible for assisting,
advising and operating matters of discipline, administration
and other matters relating to human behavior and motivation
in personnel of BRO. The administrative officers cadre is also
responsible for the general safety of unit lines, maintenance of
regimental institutions, general administration matters,
preservation of resources and liaison with other units on
matters connected with execution of tasks assigned to them.
18. As regards the application of the Modified Assured Career
Progression Scheme (MACPS) to the officers working in the
administrative officers grade is concerned, relevant would it be
to note that in order to remove stagnation, the Fifth Central
Pay Commission recommended Assured Career Progression
Scheme (ACPS) to all the general employees in the Central
Government. The scheme of ACP recommended by the Fifth
Central Pay Commission envisaged three time-bound
promotions for Group A posts after 4, 8 and 13 years of
service. For posts in Groups B, C and D, two time-bound
promotions were to be provided on completion of 8 and 16
years of service for Group B, 10 and 20 years for Group C and
12 and 24 years for Group D. The Government accepted the
said scheme in a modified manner and introduced the ACPS for
Groups B, C and D and isolated posts in Group A where two
financial upgradations were to be provided on 12 and 24 years
of service. The financial upgradations were to be in the next
higher grade in the existing hierarchy. The Sixth Central Pay
Commission recommended certain modifications in the
Assured Career Progression Scheme implemented by the
Government. One of the recommendations made by the Sixth
Central Pay Commission was that save and except organized
Group A services, the benefit of ACPS be available to all posts
belonging to Group A, whether isolated or not, which
recommendation has been accepted by the Central
Government. Grant of financial upgradation envisaged by
Assured Career Progression Scheme is different from grant of
higher scale of pay recommended by the Pay Commissions
therefore the Assured Career Progression Scheme does provide
a limited relief to the officers of the administrative officers
cadre of BRO to a limited extent but is not a substitute for the
benefits available to the said officers on encadrement of
administrative officers cadre as an organized cadre.
19. It is trite that the courts should not ordinarily interfere
with the policy decision of the State. But at the same time it is
equally settled that the courts can interfere with a policy
decision of the State if such decision is shown to be patently
arbitrary, discriminatory or mala fide.
20. In view of the above discussion, we direct the department
to encadre the administrative officers cadre of BRO as an
organized cadre.
21. However the matter does not rest here. The further
question which arises is whether the said encadrement would
take effect from a prospective or retrospective date and if
retrospective, then from which date.
22. We direct the department to decide whether the
encadrement of administrative officers cadre of BRO as an
organized cadre would be given a prospective or retrospective
effect. The decision would be taken within 16 weeks of the
receipt of this judgment. In taking the said decision, the
department shall take into account all the facts germane to the
issue, particularly the fact that the officers working in the
administrative officers cadre have been stagnating since a long
time.
Issue No. II
23. The petitioners in W.P.(C) No.10121/2009 who are
holding various Group A posts in the administrative officers
cadre in BRO have been posted at the headquarters of BRO in
Delhi.
24. On 26.08.1974 Department of Expenditure, Ministry of
Finance, Government of India issued following office
memorandum to all the Ministries/Departments of Government
of India:-
"Subject: - Grant of special pay to class I senior
scale (Rs.1100-1600)/junior Administrative
Grade/inter Administrative Grade officers posted
in headquarters organization of the various
Departments-Recommendations of the Third Pay
Commission.
The undersigned is directed to invite a
reference to the recommendations of the Third
Pay Commission contained in paragraph 34 and
35 of Chapter 8 and paragraph 27(1) of Chapter
14 of its Report regarding grant of special pay to
officers in the senior scale and the Junior/inter
administrative grades of Central Class I Services
while holding posts in their respective
Headquarters organization. These
recommendations have been accepted by the
Government vide item No.8 of the Annexure to
the Ministry of Finance to the Ministry Resolution
No.F.11/35/74-IC dated 1.5.1974. The President
is accordingly pleased to decide that special pay
at the following rates to officers of Class I Non-
technical, Technical, Scientific and Engineering
Services when they are posted to the
Headquarters Organizations of those
Departments, i.e. to the highest office
administratively in charge of the Department like
the office of the C & A.G., office of the Controller
General of Defence Accounts, P & T Board,
Central Board of Direct Taxes, Central Board of
Customs and Excise, etc.
Rates of Special Pay
Officers in the senior scale Rs.200/- per month
(Revised scale Rs.1100-1600)
Officers in the Junior Rs.300/- per month
Administrative/Intermediate
Administrative grade
(Revised scales Rs.1500-1800/1800-2000/1500-
2000)
The grant of special pay at the rates indicated
above will be subject to the condition that the
pay plus special pay does not exceed Rs.1700/-
in case of senior scale officers and Rs.2250/- in
case of Junior/Intermediate administrative
grades."
25. On 20.02.1979 the Director General Border Roads
sanctioned the payment of special pay/headquarters allowance
only with respect to the officers working in the "organized
cadres" of BRO.
26. Aggrieved by the action of the department of denying the
payment of special pay/headquarters allowance to the
officers working in the administrative officers cadre, the
petitioners have filed the present petition under Article 226 of
Constitution of India.
27. Whether the action of the department in denying special
pay/headquarters allowance to the officers working in
administrative officers cadre on the ground that the
administrative officers cadre is not an organized cadre is
legally valid?
28. This issue is no longer res integra. In LPA No.121/1984
„Union of India vs. K.R. Swami & Ors‟ decided on 23.08.1991, a
Division Bench of this Court was faced with a similar
controversy. In the said case, the Ministry of Defence had
issued an Office Memorandum dated 20.08.1975, which
memorandum is pari materia to the Office Memorandum dated
26.08.1974 involved in the present case. The Office
Memorandum dated 20.08.1975 issued by Ministry of Defence
envisaged the payment of special pay to the officers holding
Class I posts (Group A posts) in Defence Establishments when
they are posted in the headquarters of their respective
organizations. The petitioner therein was working as Senior
Administrative Officer in Military Engineering Service. A similar
stand that the officers therein did not belong to an organized
Group A service was taken by Military Engineering Service to
deny the payment of special pay/headquarters allowance to
the officers therein, which stand was repelled by this Court in
following terms:-
"We have reproduced above the relevant
resolution of the Central Government accepting
the recommendation of the Pay Commission
regarding special pay. This resolution refers paras
34 and 35 of Chapter 8 and para 27(i) of Chapter
14 of the Pay Commission Report. Only para 34 is
relevant for our purpose as other paras deal with
the quantum of the special pay. Para 34 is as
under:-
"34. We are of the view that the
device of special pay should be used as
sparingly as possible. Thus our
approach generally has been to
suggest a higher scale of pay for posts
which are held on a non-tenure basis
and where the special pay has been
granted at present in lieu of a higher
scale for the post itself. However, we
feel that the device of granting special
pay cannot be discarded in the case of
posts where persons have to attracted
for a fixed tenure from other cadres
and departments. The grant of special
pay for compensating genuine and
discernible, but not substantial,
difference of duties is to be preferred
to the fragmentation of cadres, with
attendant complication. Once a higher
scale of pay as such is sanctioned for a
post of category of posts in a cadre,
and a person is appointed to such a
post, it may be difficult to shift him to a
posts carrying even a slightly lower
scale of pay, as it may be construed as
a reduction in rank, attracting the
provisions of Article 311 of the
Constitution. No such disadvantage
attaches to posts carrying special pay
which leads to enormous flexibility.
This criterion would apply to posts in
the Secretariat and at the
Headquarters of the departments. In
the case of posts at „headquarters‟
held on a tenure basis, the officer
brought on deputation has to
encounter many problems due to the
disturbance involved, and some
compensation on this account has to
be provided also if suitable persons are
to be attracted to these posts."
Special Pay, under F.R. 9(25), means an
addition, of the nature of pay, to the emoluments
of a post or of a Government servant, granted in
consideration of - (a) the specifically arduous
nature of the duties; or (b) a specific addition to
the work or responsibility. Cadre under F.R.9(4)
means the strength of a service or a part of
service sanctioned as a separate unit. Para 34 of
the Pay Commission Report reproduced above
does not talk of any organized service or
established service. In this para it is
recommended that special pay be granted "in the
case of posts where persons have to be attracted
for a fixed tenure from other cadres or
departments." The Commission opined that the
grant of special pay for compensating genuine
and discernible, but not substantial, difference of
duties was to be preferred to the fragmentation of
cadres, with attendant complication. This
criterion, it said, would apply to posts in the
Secretariat and at the Headquarters of the
departments and in the case of posts at
Headquarters held on tenure basis, the officer
brought on deputation had to encounter many
problems due to the disturbance involved, and
some compensation on this account had to be
provided also if suitable persons were to be
attracted on those posts. The resolution of the
Government for grant of special pay merely says
that it would be given to the officers of Central
Class I Services posted at the Headquarters
organizations of the various non-technical,
scientific and engineering departments. The
resolution says nothing more. In the office
memorandum dated August 20, 1975, it was
stated that on the recommendation of the Third
Pay Commission contained in paragraphs 35 and
37 of Chapter 8 and para 27(i) of Chapter 14 of
the Report regarding grant of special pay, the
President was pleased to decide that special pay
shall be paid officers of Class I non-technical,
technical and engineering services in defence
establishmenst viz. ML&C, IOFS and MES when
they were posted to their Headquarters
Organizations, i.e., to the highest office
administratively in charge of the Defence
Establishments, viz., (i) Director of Military Lands
and Cantonments; (2) the office of the Director
General of Ordinance Factories, Calcutta; and (3)
E-in-C‟s Branch, Army Headquarters. On the basis
of this office memorandum, Senior Barrack Stores
Officers or Principal Barrack Stores Officers or
Senior Administrative Officers started getting
special pay. A clarification to this scheme was
issued on June 9, 1982 when another office
memorandum was issued, and under this it was
stated that a doubt had arisen whether the
benefit of special pay as contained in office
memorandum dated August 20, 1975, could be
extended to officers of non-organized services on
their posting to the Headquarters Organizations of
their respective departments. It was clarified by
the office memorandum that benefit of special
pay would be admissible to Class I Officers (Group
„A‟ Officers) of the respective Organized Services
only when they were posted to the Headquarters
Organization of their respective departments. The
petitioners have, therefore, been denied special
pay on this account.
We have seen above, the decision of the
Government accepting the recommendation of
the Pay Commission means that the posts held by
senior scale officers (officers of Central Class I
Services) in the Headquarters Organ in various
non-technical, scientific and engineering
departments should carry a special pay of
Rs.200/- per month, etc. The argument that
special pay is to be admissible to Class I Officers
of respective organized services is based on para
29 of the Report which is not relevant for our
purposes inasmuch paragraphs 25 to 29 deal with
pay fixation on promotion. Special pay is
discussed in paras 30 to 39 of the Report.
Moreover, resolution of the Government does not
talk of any tenure posting to be eligible for special
pay. There is no ambiguity in the resolution of the
Government for us to go back to the Pay
Commission Report on the grant of special pay.
Special Pay cannot mean other than what F.R.
9(25) says...."
29. In view of the aforesaid legal position, we find no merit in
the stand taken by the department that the officers working in
the administrative officers cadre of BRO are not entitled to the
payment of special pay/headquarters allowance on the ground
that the administrative officers cadre is not an organized
cadre. As a necessary corollary to the aforesaid, the
department is directed to make payment of special
pay/headquarters allowance to the petitioners in
W.P.(C)No.10121/2009 from the date said petitioners were
posted in headquarters of BRO.
Issue No. (III)
30. On 28.10.1972 the petitioner in W.P.(C)No.4377/2003
was recruited in the administrative officers cadre of BRO on
the post of Civilian Officer Grade-I in the pay scale of `3700-
4500/-. On 01.12.1991 the petitioner was granted selection
grade in the pay scale of `3700-125-4700-150-5000 and his
pay was fixed at `4,575/- per month. Pursuant thereto, the
petitioner made a representation to the department inter-alia
stating therein that his initial pay in the post of Civilian Officer
Grade-I (Selection Grade) be fixed in terms of the provisions of
FR 22(I)(a)(1) for the reason the post of Civilian Officer Grade-I
(Selection Grade) carries greater duties and responsibilities
than the post previously held by him i.e. the post of Civilian
Officer Grade-I. The department accepted the aforesaid
representation of the petitioner and fixed the pay of the
petitioner as `4,700/- per month in terms of the provisions of
FR 22(I)(a)(1).
31. All was well in the world of the petitioner till about
11.03.1996, on which date the Controller of Defence Accounts
issued a letter to the department inter-alia stating therein that
the department has wrongly fixed the initial pay of the
petitioner in the post of Civilian Officer Grade-I (Selection
Grade) in terms of the provisions of FR 22(I)(a)(1) for the post
of Civilian Officer Grade-I (Selection Grade) is a non-functional
post and thus the initial pay of the petitioner ought to have
been fixed in terms of the provisions of FR 22(2). On the
receipt of the afore-noted letter issued by Controller of
Defence Accounts, the department re-fixed the initial pay of
the petitioner in the post of Civilian Officer Grade-I (SG) as
`4,575/- per month in terms of the provisions of FR 22(2).
32. Aggrieved by the aforesaid action of the department the
petitioner has filed the present petition under Article 226 of
Constitution of India.
33. As evident from the afore-noted conspectus of facts, the
controversy involved in the present matter centers around FR
22, the relevant portion whereof reads as under:-
"F.R. 22. (I) The initial pay of a Government servant
who is appointed to a post on a time-scale of pay is
regulated as follows:-
(a)(1) Where a Government servant holding a
post, other than a tenure post, in a substantive or
temporary or officiating capacity is promoted or
appointed in a substantive, temporary or officiating
capacity, as the case may be, subject to the
fulfillment of the eligibility conditions as prescribed in
the relevant Recruitment Rules, to another post
carrying duties and responsibilities of greater
importance than those attaching to the post held by
him, his initial pay in the time-scale of the higher
post shall be fixed at the stage next above the
notional pay arrived at by increasing his pay in
respect of the lower post held by him regularly by an
increment at the stage which such pay has accrued
or rupees one hundred only, whichever is more.
Save in cases of appointment on deputation to
an ex cadre post, or to a post on ad hoc basis or on
direct recruitment basis, the Government servant
shall have the option, to be exercised within one
month from the date of promotion or appointment,
as the case may be, to have the pay fixed under this
rule from the date of such promotion or appointment
or to have the pay fixed initially at the stage of the
time-scale of the new post above the pay in the
lower grade or post from which he is promoted on
regular basis, which may be refixed in accordance
with this rule on the date of accrual of next
increment in the scale of the pay of the lower grade
or post. In cases where an ad hoc promotion is
followed by regular appointment without break, the
option is admissible as from the date of initial
appointment/promotion, to be exercised within one
month from the date of such regular appointment:
Provided that where a Government servant is,
immediately before his promotion or appointment on
regular basis to a higher post, drawing pay at the
maximum of the time-scale of the lower post, his
initial pay in the time-scale of the higher post shall
be fixed at the stage above the pay notionally
arrived at by increasing his pay in respect of the
lower post held by him on regular basis by an
amount equal to the last increment in the time-scale
of the lower post or rupees one hundred, whichever
is more.
(2) When the appointment to the new post does
not involve such assumption of duties and
responsibilities of greater importance, he shall draw
as initial pay, the stage of time-scale which is equal
to his pay in respect of the old post held by him on
regular basis, or, if there is no such stage, the stage
next above his pay in respect of the old post held by
him on regular basis:
...."
34. A plain reading of the above Rule shows that two distinct
situations are envisaged when a government servant is
promoted or appointed in a substantive, temporary or
officiating capacity to another post. Where such appointment
involves higher duties and responsibilities, the initial pay of
such Government servant in higher post shall be fixed at the
stage "next above the notional pay arrived at by increasing his
pay in respect of the lower post held by him regularly by an
increment at the stage at which such pay has accrued or
rupees one hundred only, whichever is more.". This is
otherwise called stepping up of the pay at the initial stage.
However, where the appointment to the new post does not
involve duties and responsibilities of greater importance there
would be no stepping up of the pay at the initial stage and the
initial pay would be "equal to his pay in respect of the lower
post held by him on regular basis." Therefore, in each case, it
would be a question of fact whether the appointment to the
new post is one which has higher duties and responsibilities
than the old post.
35. As evident from the aforesaid, the sine qua non for the
application of F.R. 22(1)(a)(I) in a given case is appointment or
promotion to a new post. Both, the petitioner as also the
department have proceeded on the premise that the post of
Civilian Officer Grade-I (Selection Grade) is distinct from the
post of Civilian Officer Grade-I. Whereas the petitioner has
contended that the post of Civilian Officer Grade-I (Selection
Grade) is a functional post i.e. it carries greater duties and
responsibilities than the feeder post of Civilian Officer Grade-I
the department has contended that the said post is non-
functional. The stands taken by both the petitioner and
department are incorrect as they are based on an incorrect
understanding of the concept of selection grade.
36. The concept of „Selection Grade‟ was explained by the
Supreme Court in the decision reported as Lalit Mohan Deb v
Union of India (1973) 3 SCC 862 in the following terms:-
"It is well recognised that a promotion post is a
higher post with a higher pay. A selection grade
has higher pay but in the same post. A selection
grade is intended to ensure that capable
employees who may not get a chance of
promotion on account of limited outlets of
promotions should at least be placed in the
selection grade to prevent stagnation on the
maximum of the scale. Selection grades are,
therefore, created in the interest of greater
efficiency." (Emphasis Supplied)
37. In the decision reported as Union of India v S.S. Ranade
(1995) 4 SCC 462 the question which had arisen for
consideration was whether the post of Commandant (Selection
Grade) is distinct from the post of Commandant. Answering the
aforesaid question in negative, the Supreme Court observed as
under:-
"This submission is based on a misunderstanding
of what is meant by Selection Grade.
Undoubtedly, a Commandant who becomes a
Commandant (Selection Grade) secures a
promotion to a higher pay scale. But it is a higher
pay scale in the same post. The use of the word
„promotion‟ in Rule 6 and the constitution of a
Departmental Promotion Committee for selection
of Commandant (Selection Grade) in Rule 7, do
not necessarily lead to the conclusion that the
promotion which is contemplated there is
necessarily a promotion to a higher post.
Promotion can be either to a higher pay scale or
to a higher post. These two rules and the use of
the word „promotion‟ there do not conclude the
issue.
The High Court in its impugned judgment has
referred to Article 311(2) of the Constitution. It
has considered how different posts in the Civil
Service of the Union or the States or all-India
services are compared or ranked with reference to
one another in order to ascertain whether, in a
given case, there is reduction in rank under Article
311(2) by transfer from one post to another post.
In this connection the High Court has emphasised
that posts carrying different designations and
different duties may be considered equivalent in
rank if they are in the same pay scale. In this
context pay scale may be a good yardstick for
measuring rank. But this has no application to
selection grade posts. Because the creation of a
selection grade in the same post stands on a very
different footing. By its very nature a selection
grade provides a higher pay or a higher pay scale
in the same post. The beneficiary of a selection
grade does not thereby occupy a post which is
higher in rank than the post earlier occupied by
him." (Emphasis Supplied)
38. That being the position, the post of Civilian Officer
Grade-I (Selection Grade) is not distinct from the post of
Civilian Officer Grade-I. When the post of Civilian Officer
Grade-I (Selection Grade) is not distinct from the post of
Civilian Officer Grade-I F.R.22(I)(a)(1) has no application in the
present case.
Conclusion
39. In view of above discussion, we conclude as under:-
I The department is directed to encadre the administrative
officers cadre of BRO as an organized cadre. The department
shall further decide whether the encadrement of
administrative officers cadre of BRO as an organized cadre
would take effect from a prospective or retrospective date
within eight weeks of the receipt of this judgment.
II The department is directed to make payment of special
pay/headquarters allowance to the petitioners in W.P.(C)
No.10121/2009 from the date said petitioners were posted in
the headquarters of BRO.
40. With these directions, the above captioned petitions are
disposed of. There shall be no order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
APRIL 26, 2011
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