Delhi High Court
Sunil Kumar Gupta vs Govt. Of Nct Of Delhi & Ors. on 16 November, 2011
Author: A.K.Sikri
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th November, 2011
+ W.P.(C) 8245/2010
SUNIL KUMAR GUPTA ..... Petitioner
Through: Mr. Sanjiv Sharma, Adv.
Versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Rajiv Nanda, Standing Counsel,
GNCTD with Mr. Abhijeet Kakoti,
Adv. for R-1&3.
AND
+ W.P.(C) 7924/2010
GOVT. OF NCT OF DELHI & ANR ..... Petitioners
Through: Mr. Rajiv Nanda, Standing Counsel,
GNCTD with Mr. Abhijeet Kakoti,
Adv.
Versus
SUNIL KUMAR GUPTA & ANR. ..... Respondents
Through: Mr. Sanjiv Sharma, Adv.
Mr. Baldev Malik, Adv. for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether the judgment should be reported
in the Digest? Yes.
ACTING CHIEF JUSTICE
1. It is unfortunate that the petitioner who is a Law Officer in Tihar Jail
and is defending the Jail Authorities in various legal cases has to knock the
doors of courts to seek justice for himself, specially when the respondents
appreciate and understand the plight of the petitioner and the unfair
treatment which has been meted out to the petitioner in grant of pay scales
as well as non-promotion and though the respondents themselves
appreciated and recommended for not only providing proper promotional
avenues but also suitable upgradation to the higher pay scales; however
when it came to implementation thereof, the respondents utterly failed
therein.
2. The petitioner was appointed as Asstt. Supdt. in the Prison
Department of the respondent no.1, Govt. of NCT of Delhi on 8 th May,
1981. While the petitioner was working in the aforesaid capacity, the
Government had set up Justice A.N. Mulla Committee on prison reforms.
The said Committee submitted its report in March, 1983 making various
recommendations for reforming the prisons. These recommendations
included creation of post of Law Officer in a jail housing 750 prisoners and
Dy. Director (Legal Affairs) at Prison Headquarters. Pursuant to the
aforesaid recommendation, on 27th June, 1986 ad hoc post of Law Officer
was created with pay scale of `2375-225-3500. However Recruitment
Rules for this post were formulated. The petitioner, on 16 th October, 1986
was promoted to the post of Dy. Supdt. Grade-II. The petitioner was
appointed as Law Officer on ad hoc basis on 15th May, 1996. Vide order
dated 14th May, 1997 his appointment as Law Officer was regularized
w.e.f. 15th May, 1996 i.e. the date of which the petitioner was initially
appointed as the Law Officer. He was given the pay scale of `7450-11500,
the then pay scale of the said post. He was notionally promoted to the post
of Dy. Supdt. Grade-I w.e.f. 23rd December, 1994, which was the regular
cadre in which he initially joined the services in the Prison Department.
This notional promotion was given to him up to 15th May, 1996 when he
had joined as Law Officer.
3. It will be demonstrated from the above that before the petitioner
joined as Law Officer, in his erstwhile cadre he had got promoted from
Asstt. Supdt. to Dy. Supdt. Grade II and thereafter Dy. Supdt. Grade-I.
However after becoming Law Officer the petitioner stagnated. It is because
of the reason that not only the post was created on ad hoc basis but there
were no Recruitment Rules for the said post.
4. The petitioner made representations for creating promotional
avenues. These representations were forwarded with strong
recommendation of the Director General (Prison) to the Home Department
of the respondent no.1. The Addl. Secretary (Home) even recommended
creation of one post of Chief Law Officer and five posts of Law Officer.
The Prison Department had taken up the case with 6 th Central Pay
Commission as well for according financial upgradation to the post of Law
Officer after 8 years and 13 years of service respectively in the absence of
any promotional avenues. Such a recommendation was made even by the
Chief Secretary. However, as pointed out above, notwithstanding these
recommendations when it came to implementation, no such steps were
taken to grant benefit in real terms to the petitioner herein. In these
circumstances, after impatiently waiting for all these years and when the
petitioner was not getting any cogent results he approached the Tribunal by
filing an application under Section 19 of the Administrative Tribunal Act,
1985. In this OA he made following prayers:-
"a. Quash and set aside the order dated 8.9.09 passed by
Principal Secy. (Home), Govt. of NCT and order dated
16.9.09 passed by Director (Delhi), Ministry of Home
Affairs, Govt. of India.
b. Direct the Respondents to grant the scale of `1000-
15000 w.e.f. 15.5.2004 viz the date when the applicant
completed 8 years of services as Law Officer in the pay
scale of `7450-1150.
c. Direct the Respondents to grant the next scale of
`12000-16500 w.e.f. 15.4.09 viz. the date when the
applicant completed 13 years of service as Law Officer
in the pay scale of `7450-11500.
d. Direct the Respondents to provide promotional avenues
to the post of Law Officer on which the applicant has
been working since 1996 on the same pattern as done in
other States and in particular the State of Madhya
Pradesh."
5. This OA has been decided by the Tribunal vide impugned order
dated 19th August, 2010. Though in the opening para of the impugned
order the Tribunal has noted the relief which the petitioner claimed, while
giving the directions in the last para, none of these prayers are taken care
of except prayer „a‟ which is allowed by the Tribunal quashing the order
dated 8th September, 2009 passed by Principal Secretary (Home), Govt. of
NCT of Delhi and order dated 16th September, 2009 passed by the Director
(Delhi) Ministry of Home Affairs, Govt. of India. Even while setting aside
these orders the only direction which is given is to consider the claim of
the petitioner for ACP as per the scheme and clarification in the
appropriate pay scale in the hierarchy, as stipulated in the ACP Scheme, by
a speaking order to be passed within a period of three months.
6. We may note, at this stage, that under the Assured Career
Progression (ACP) Scheme, financial upgradation is permissible at the end
of 12 and 24 years respectively in those cases where the incumbents are
not able to get promotion even when the promotional avenues are provided
and they are stagnating at their existing post.
7. As stated above, in the case of the petitioner there are no
promotional avenues, therefore it is a case where for absence of post in the
hierarchy at a higher level, the petitioner is stagnating. It is a case where
there is no post at higher level provided at all. It was because of this reason
the Chief Secretary had recommended upgradation of the petitioner to
higher pay scale after 8 years and 13 years of service respectively. This
recommendation was in the following terms:-
"Apart from the above justification, the
D.G.(Prisons) has also taken up the case of isolated post of
Law Officer, in the Delhi Prisons presently in the pay scale
`7450-11500 (pre revised). He has proposed that since
there is no promotion avenues for the incumbent to the post
of Law Officer, a time scale of `10000-15200 after 8 years
and `12000-16500 after 13 eyars of service may be
allowed to this post as in the case of DANICS Cadre
Officers. This matter was also taken up before the 6 th
Central Pay Commission but it seems that it has escaped
the attention of the Pay Commission."
8. Prayers „b‟ & „c‟ were predicated on the aforesaid recommendations
of the Chief Secretary who is the Appointing Authority of the petitioner as
well. The Tribunal has not even considered the submissions on merits and
instead financial upgradation is ordered under the normal ACP Scheme.
Further prayer „d‟ is not adverted to at all whereby the petitioner had
claimed the relief of providing promotional avenues.
9. It is in these circumstances, the aforesaid order is challenged by the
petitioner by filing instant petition.
10. The Govt. of NCT of Delhi has also challenged the order
questioning the partial relief granted by the Tribunal. In view of the
direction we are going to give in the writ petition filed by the petitioner,
the writ petition filed by the Govt. of NCT of Delhi has to fail and is
hereby dismissed accordingly. We may only observe that it is not
understood what prompted the Government even to challenge the partial
and minimal relief given by the Tribunal.
11. Coming back to the petition filed by the petitioner impugning the
order of the Tribunal, we first take up the issue of absence of promotional
avenues in the Recruitment Rules. Before we advert to this issue, we may
point out that the petitioner claims that though there are ten jails in the
Tihar Complex, there is singular person working as Law Officer managing
the legal affairs of these jails. It is pointed out that Section 6 of the Delhi
Prisons Act, 2000 stipulates that for every prison there is to be a Law
Officer; on this basis, there should have been 10 Law Officers for 10 jails.
However as the petitioner is the only Law Officer, he is taking care of the
legal problems pertaining to more than 10000 prisoners as well as the
prison headquarters in Delhi. His duties include advising the Director
General (Prisons) and other officers of Prison Department, vetting of
appeals filed by the convicts in the High Court of Delhi and Supreme
Court of India; such appeals are approximately 250 per year. He also
prepares comments on the various applications filed by the staff and
prisoners before different fora like Central Administrative Tribunal, High
Court, Supreme Court, National Human Right Commission, National
Minority Commission, Delhi Minority Commission, Delhi Women
Commission, National Commission for Protection of Child Rights etc. He
helps in the appointment of government counsels and liasoning with them,
preparing notes for the counsels appearing in various cases and also
attending hearings in these fora as and when called along with the record
of the case. Besides the aforesaid work, the petitioner is also looking after
other jobs like disposal of applications under RTI Act, preparing reply to
the questions raised in Parliament/Delhi Assembly, acting as Press
Relation Officer of the jail, organizing special courts for disposal of petty
offences, releasing of prisoners on relaxed surety conditions in co-
ordination with judiciary, handling of various reformative activities in the
jail, publication of Tihar Newsletter and Annual review etc. It is also stated
in the petition that because of his exemplary work he has been conferred
with the President Medal twice; once on 26 th January, 2003 for Meritorious
Services and second time in the year 2007 for Distinguished Service, again
on Republic Day.
12. Mr. Sharma, learned Counsel for the petitioner submits that it is the
right of the petitioner to at least have two promotions in his career as Law
Officer. In support of this submission he has referred to the judgment of
Supreme Court in the case of Council of Scientific & Industrial Research
v. K.G.S. Bhatt AIR 1989 SC 1972 and has drawn our attention
specifically to the following observations in the said judgment:-
"9. That then is the scope of bye-law 71(b)(ii). But that
does not mean that we should interfere with the relief granted
to respondent-1. By pointing out the error that crept into the
decision of the Tribunal, we need not to take to its logical end
which will defeat justice. Respondent-1 is not a lay-man. He is
a highly qualified engineer. Although he joined service with a
diploma in Engineering, he later passed Bachelor of
Engineering (B.E.) and also acquired M. Tech. degree and one
more diploma (D.P.M.). He was however, left without
opportunity for promotion for about twenty years. This is
indeed a sad commentary on the appellant's management. It is
often said and indeed, abroitly, an organisation public or
private does not 'hire a hand' but engages or employees a
whole man. The person is recruited by an organisation not just
for a job, but for a whole career. One must, therefore, be given
an opportunity to advance. This is the oldest and most
important feature of the free enterprise system. The
opportunity for advancement is a requirement for progress of
any organisation. It is an incentive for personnel development
as well. (See : Principles of Personnel Management by Flipo
Edwin B. 4th Ed. p. 246). Every management must provide
realistic opportunities for promising employees to move
upward. "The organisation that fails to develop a satisfactory
procedure for promotion is bound to pay a severe penalty in
terms of administrative costs, misallocation of personnel, low
morale, and ineffectual performance, among both no
managerial employees and their supervisors". (See : Personnel
Management by Dr. Udai Pareek p. 277). There cannot be any
modern management much less any career planning, man-
power development, management development etc. which is
not related to a system of promotions. (See : Management of
Personnel in Indian Enterprises by Prof. N.N. Chatterjee,
Chap. 12 p. 128). The appellant appears to have overlooked
this basic requirement of management so far as respondent-1
was concerned till N.R. & A.S. was introduced."
13. It is further submitted that as an ideal employer, the Government is
supposed to provide promotional avenues. (The Supreme Court in
Raghunath Prasad Singh v. Secretary, Home (Police) Deptt. AIR 1988
SC 1033 held that reasonable promotional opportunity should be available
in every wing of public service; the same generates efficiency and fosters
attitude to grow for achieving excellence in service; in absence of
promotion prospects, service is bound to degenerate and stagnation kills
the desire to serve properly). Other judgment referred to by the learned
counsel is O.Z. Hussain (Dr.) v. Union of India 1990 Supp. SCC 688
wherein the Court expressed its views in the following manner:-
"7. This Court, has on more than one occasion, pointed out
that provision for promotion increases efficiency of the public
service while stagnation reduces efficiency and makes the
service ineffective. Promotion is thus a normal incidence of
service. There too is no justification why while similarly
placed officers in other ministries would have the benefit of
promotion, the non-medical 'A' Group scientists in the
establishment of Director General of Health Services would
be deprived of such advantage. In a welfare State, it is
necessary that there should be an efficient public service and,
therefore, it should have been the obligation of the Ministry
of Health to attend to the representations of the Council and
its members and provide promotional avenue for this
category of officers. It is, therefore, necessary that on the
model of rules framed by the Ministry of Science and
Technology with such alterations as may be necessary,
appropriate rules should be framed within four months from
now providing promotional avenue for the 'A' category
scientists in the non-medical wing of the Directorate."
14. He submitted that these two judgments are again followed by the
Supreme Court in the case of Food Corporation of India v. Parashotam
Das Bansal (2008) 5 SCC 100 wherein the Supreme Court laid down, in
certain terms that the Court can even direct creation of avenues for
promotion in their absence in the following manner:-
"12. When employees are denied an opportunity of
promotion for long years (in this case 30 years) on the ground
that they fell within a category of employees excluded from
promotional prospect, the Superior Court will have the
jurisdiction to issue necessary direction.
13. If there is no channel of promotion in respect of a
particular group of officers resulting in stagnation over the
years, the Court although may not issue any direction as to in
which manner a scheme should be formulated or by reason
thereof interfere with the operation of existing channel of
promotion to the officers working in different departments and
officers of the Government but the jurisdiction to issue
direction to make a scheme cannot be denied to a Superior
Court of the country."
15. The aforesaid dicta laid down by the Supreme Court has been
followed in a series of judgment. We are of the view that the Court has
power to give direction to the respondents to create promotional avenues
for those categories of employees who were excluded from promotional
prospects. No doubts, this Court will not issue direction as to the manner in
which the rules are to be formulated; however direction can be given to the
extent that that promotional avenues should be provided by incorporating
suitable provisions in the Recruitment Rules. We thus direct the
respondents to make proper amendments in the Recruitment Rules for the
post of Law Officer in Prison Department of the Govt. of NCT of Delhi.
16. While passing these directions, we are also fortified by the similar
rules which prevail in other States. Mr. Sharma, learned counsel for the
petitioner has drawn our attention to the Recruitment Rules of the Law
Officer in the Jail Department in State of Madhya Pradesh. The position
there is as under:-
"S.No. Post Pay Scale before
VIth Pay
Commission
1. Law Officer `8000-12000
2. Sr. Law Officer (Promotional Post. `10000-15200
Eligibility after 5 years services as
Law Officer)
3. DIG (P) Law (Promotional Post. `12000-16500
Eligibility after 5 years services as
Sr. Law Officer)"
17. These rules provide for two promotions and a person who is
recruited
as Law Officer is entitled to be considered for promotion as Sr. Law
Officer and thereafter DIG (P) Law. The eligibility for promotion to the
post of Sr. Law Officer is five years of service as a Law Officer likewise
after rendering five years service as Sr. Law Officer the incumbent
becomes eligible for promotion to DIG (P) Law.
18. Even in the Prosecution Deptt. of respondent no.1 itself a person
who has joined the service at the entry level of Asstt. Public Prosecutor,
gets upgraded to Addl. Public Prosecutor after seven years of service, as
Chief Prosecutor after five years of service as Addl. Prosecutor and then
Director (Prosecution) after serving five years as Chief Prosecutor. The
pay scales drawn by such persons in different post are indicated below:-
"S.No. Post Pay Scale before
VIth Pay
Commission
1. Assistant Public Prosecutor `6500-10500
2. Additional Public Prosecutor `7450-11500
(Promotional Post. Eligibility 1s 7 upgraded to 8000-
years regular service as Asst. Public 13500
Prosecutor)
3. Chief Prosecutor (Promotional Post. `10000-15200
Eligibility is 5 years regular service
as Addl. Public Prosecutor)
4. Director (Prosecution) (Promotional `12000-375-16500
Post. Eligibility is 5 years regular
service as Chief Prosecutor)."
19. We thus see no reason why the Law Officer in the Jail Department
of the Govt. of NCT of Delhi should be meted out discriminatory treatment
by not providing any promotional avenues. A mandamus is accordingly
issued to the respondents to suitably amend the Recruitment Rules by
providing appropriate promotional avenues to the Law Officer in the Jail
Department. We also expect that necessary provisions in this behalf shall
be made within a period of three months from today. After providing
promotional avenues, the case of the petitioner shall be considered on the
basis of his entire length of service as Law Officer within one month
thereof.
20. Once the respondents carry out the aforesaid exercise and have
considered the case of the petitioner for consequential promotions, the
relief of ACP as claimed by the petitioner may not even be necessary.
However in the interregnum the question of grant of ACP to the higher pay
scale of `10000-15000 after 8 years of service and `12000-16500 after 13
years of service at par with DANICS cadre which has been recommended
by the Chief Secretary himself, arises for consideration. As pointed out
above, the Chief Secretary had recommended aforesaid upgradation. This
recommendation is contained in communication dated 1 st December, 2008
of the Chief Secretary addressed to Ministry of Home Affairs. A perusal of
this letter would show that two issues were raised by the Chief Secretary.
One pertains to the pay scales of Jail Prison cadre official/officers and their
equivalent rank in Delhi Police and Govt. of NCT of Delhi. This obviously
had reference to the other prisons staff and not the Law Officer. In respect
of Law Officer a separate and independent recommendation was made
proposing two upgradations after 8 years and 13 years of service
respectively in the absence of promotional avenues for the isolated post of
Law Officer i.e. the petitioner herein. The Ministry of Home Affairs
however rejected the proposal vide letter dated 16th September, 2009. Para
2 of the said letter shows that the two issues raised by the Chief Secretary
though independent of each other, were mixed up and which resulted in
rejection, pertain to the first issue. The case of the petitioner herein which
related to isolated post of Law Officer was not given any consideration
independently. The Tribunal in the impugned judgment has already set
aside the aforesaid communication dated 16th September, 2009. We find
that the reasons given for rejection are irrelevant in so far as the case of the
petitioner is concerned. We state at the cost of repetition that the Chief
Secretary had emphasized that it was a case of isolated post of Law
Officer; there were no promotional avenues for the incumbent to the post
of Law Officer; and that in such circumstance there should be two
upgradations in the pay scale given to the Law Officer. We may also
emphasize that ACP Scheme is available to those government servants
who are provided promotional avenues in their respective cadres. In spite
of such promotional avenues, when the incumbent is not able to get
promotion because of want of vacancies in the higher grade and stagnates
at the given post, ACP Scheme stipulates providing of two upgradations on
the expiry of 12 years/24 years of service. In those cases even when the
incumbent gets upgradation after 12 years he will get promotion within
few years thereafter. However in such contrast, in the case of the
petitioner, the recommendation was made as there is no promotional
avenue at all. It was for this reason that the Chief Secretary thought it
appropriate to recommend that the upgradation should be after 8 years and
13 years of service. Even the 5th Pay Commission had given such a
recommendation in respect of isolated post which is contained in para
22.41 of its report. Presumably, emboldened by those recommendations
the Chief Secretary had stipulated period of 8 years and 13 years of service
for two upgradations. There are certain posts where the incumbent will
keep on doing the same work even when he is promoted to a higher grade.
Examples would be of technical post, the post where the incumbent carries
on the research like scientific post, post of Secretary etc. The post of Law
Officer falls in the same category. Even when a person, who is appointed
as a Law Officer is given promotion, will continue to discharge the same
duties. It is for this reason, in so far as technical and scientific post are
concerned in order to give incentives and to boost their morale, the
Government has framed rules for giving time bound promotions whereby
stagnation is taken care of by providing such type of rules. We do not
understand as to why similar exercise cannot be undertaken in respect of
Law Officer in the Jail Department in Jail Prisons which is again an
isolated post.
21. We accordingly direct that the recommendation of Chief Secretary
contained in communication dated 1st December, 2008 shall be acted upon
having regard to the observations made by us in this judgment and
necessary orders giving two upgradations to the petitioner after the expiry
of 8 years and 13 years service respectively, shall be passed within two
months from today.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW,J
NOVEMBER 16, 2011
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