Delhi High Court
Uoi & Anr. vs R.C.Bajpayee & Ors. on 28 September, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.657/2007
% Date of Decision: 28.09.2011
UOI & Anr. .... Petitioners
Through Mr.R.V.Sinha and Mr.A.S.Singh,
Advocates
Versus
R.C.Bajpayee & Ors. .... Respondents
Through Mr.V.S.R.Krishna and Mr.G.P.
Srivastava, Advocates for respondent
nos. 1 & 2
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioner, Union of India through the Secretary, Ministry of
Agriculture and Anr., have challenged the order dated 19th July, 2006
passed by the Central Administrative Tribunal, Principal bench in O.A
No.30/2005 titled as „Sh. R.C.Bajpayee and Sh. Hari Singh v. The
Secretary, Ministry of Agriculture & Ors.‟ allowing the original
application of the respondent nos. 1 & 2 and directing the petitioners to
grant the second financial upgradation to them, in the pay scale of
Rs.10,000-15,200/- with all consequential benefits with effect from 9th
August, 1999. The Tribunal held that in the existing hierarchy of Dairy
Supervisor (Rs.5,000-8,000/-), Section Manager (Rs.6,500-10,500/-)
and Shift Manager (Rs.10,000-15,200/-) even though the essential
eligibility condition for promotion from Section Manager to Shift
Manager was to have a degree in Dairying/Dairy Science/Dairy
Technology from a recognized University/ Institute or equivalent and
the respondent nos.1 & 2 had only a degree of B.Sc. (Agriculture),
however, since the petitioners had granted the second financial
upgradation in the pay scale of Rs.7,450-11,500/- which amounts to an
implicit admission on the part of the petitioners that the respondent
nos.1 & 2 fulfilled the eligibility criterion under the ACP Scheme,
therefore, the financial upgradation had to be granted to the respondent
nos.1 & 2 in the pay scale of Rs.10,000-15,200/-, which is the pay
scale of the Shift Manager.
2. The questions for adjudication in the present writ petition are
whether or not B.Sc. (Agriculture) is equivalent to the degree in
Dairying/Dairy Science/Dairy Technology so as to entitle the
respondent nos.1 & 2 for promotion to the post of Shift Manager under
the amended Recruitment Rules of 1991, and if in case B.Sc
(Agriculture) is not the essential qualification as required under the
1991 Rules for the post of Shift Manager, then whether or not the
financial upgradation under the ACP Scheme can be granted to
respondent nos.1 & 2, in the pay scale of Rs. 10,000-15,200, since the
petitioners had granted the second financial upgradation, however, in
the pay scale of Rs.7,450-11,500/- in terms of condition No.7 of the
ACP Scheme to the next higher grade in accordance with the existing
hierarchy in the cadre.
3. Some relevant facts to comprehend the disputes between the
parties are that respondent nos.1 & 2 joined the services of petitioner
no.2 on 23rd April, 1965 and 9th October, 1974 respectively. Both the
respondent nos.1 & 2 have the qualifications of B.Sc (Agriculture) which
was the essential eligibility qualification for being appointed as Dairy
Supervisor under the relevant Recruitment Rules at the time.
4. The respondent nos.1 & 2 were promoted to the post of Section
Manager in the pay scale of Rs.6,500-10,500/- on 18th March, 1997.
This is also not disputed that prior to notification dated 27th September,
1991 amending the Recruitment Rules, the promotion from the post of
Dairy Supervisor was to the post of Section Manager and there was no
promotional post from Section Manager. Under the Recruitment Rules
prior to 1991, the post of Shift Manager was not a promotional post
from Section Manager and the post of Shift Manager was to be filled
100% by direct recruitment. Under the old rules, however, 100% posts
of Section Manager were filled by promotion from Dairy Supervisors.
5. After the amendment to the Recruitment Rules by notification
dated 27th September, 1991 the post of Shift Manager is to be filled by
promotion, failing which by transfer on deputation (including short term
contract) and on failing both, that is, promotion and transfer on
deputation, then by direct recruitment. The essential eligibility
qualification for the post of Shift Manager is degree or diploma in
Dairying/Dairy Science/Dairy Technology from a recognized University/
Institute or equivalent with three years or five years experience of
running a dairy plant in a Supervisory capacity respectively. The
essential qualifications are relaxable at the discretion of Union Public
Service Commission in the case of candidates who are otherwise well
qualified. Even the qualifications regarding the minimum experience for
degree holders and diploma holders is relaxable at the discretion of the
Union Public Service Commission in the case of candidates belonging to
the Schedule Caste or Schedule Tribes, if at any stage of selection, the
UPSC is of the opinion that sufficient number of candidates from these
communities possessing the requisite experience are not likely to be
available to fill up the vacancy reserved for them.
6. An Assured Career Progression Scheme (hereinafter referred to as
ACP) was issued by petitioner no. 2 in the light of the recommendation
of the 5th Central Pay Commission by O.M dated 9th August, 1999. As
per the ACP Scheme, the benefit of two financial upgradations is to be
given to the employees who had not got any promotion in the same
hierarchy throughout their employment. The object of the ACP Scheme
is to give benefits of financial upgradation for want of promotional
avenues. The first financial upgradation is to be given after 12 years. If
no further promotion is again available, then after 12 years an employee
is entitled for the 2nd financial upgradation. Ultimately, an employee is
to put in at least 24 years of service in order to claim the benefits of two
financial upgradation under the ACP Scheme. Under the ACP Scheme,
the petitioner No.2 by an order dated 17th February, 2001 granted 2nd
financial up-gradation to respondent Nos.1 & 2 in the pay scale of
Rs.7,450-11,500/- with effect from 9th August, 1999. The up-gradation
in the pay scale of Rs.7,450-11,500/- was given on the premise that
there was no definite hierarchy under the ACP Scheme. The office order
dated 17th February, 2001 granting second financial upgradation in the
pay scale of Rs.7450-11500/- to the respondent nos. 1 & 2 is as
under:-
12-14/2000-Estt(Spl.)
Government of India
Delhi Milk Scheme
West Patel Nagar,
New Delhi-110096
Dated 17.02.2001
OFFICE ORDER
"In accordance with the instructions contained in the
Ministry of Personnel, Public Grievances and Pensions
(Deptt. Of Personnel and Training) OM No.15034/1/97
Rett.(D) dated 09.08.99 and on the recommendation of the
departmental promotion committee (Group „B‟), the
following Section Managers in the pay scale of Rs.6500-
10,500/- is granted 2nd Financial Upgradation in the pay
scale of Rs.7450-225-11,500/- in the absence of defined
hierarchy under the A.C.P. Scheme with effect from
09.08.99 as they have already got one promotion.
1. Sh.R.C.Bajpai Section Manager
2. Sh.Hari Singh -do-
The above officers are allowed to exercise their option for
fixation of pay as per rules within a period of 30 days from
the date of issue of the orders. Hindi version will follow.
Sd/-
(R.M. Mishra)
General Manager"
7. As by the amendment in the Recruitment Rules by notification
dated 27th September, 1991 the post of Shift Manager was made a
promotional post, the order dated 17th February, 2001 was challenged
by respondent nos.1 & 2 by filing the O.A No.923/2001 on the ground
that there exists a hierarchy which is Dairy Supervisor→Section
Manager→Shift Manager, therefore, they are entitled for 2nd financial
up-gradation in the pay scale of Rs.10,000-15,200/- which is the pay
scale of Shift Manager and not the financial up-gradation in the pay
scale of Rs.7,450-11,500/-. The respondent Nos.1 & 2 claimed 2nd
financial up-gradation in the pay scale of Rs.10,000-15,200/- on the
ground that the said pay scale was also given to their other
counterparts by order dated 16th February, 2001. The respondent nos.1
& 2 categorically relied on the case of junior employees namely M.S.
Tripathi, and Sh.Y.R.Singh (respondent No.3) who were given the
benefits of the 2nd financial up-gradation under the ACP Scheme in the
scale of Rs. 10,000-15,200/- from the scale of Rs. 6,500-10,500/-.
8. Respondent no.1, Sh.R.C.Bajpayee, in the meantime took
voluntary retirement with effect from 1st April, 2001 and Sh.Hari Singh,
respondent No.2, retired on 30th September, 2001 on attaining the age
of superannuation.
9. The pleas of respondent nos.1 & 2 in O.A No.923/2001 were
contested by the petitioners on the ground that respondent nos.1 & 2
did not possess the requisite qualifications for promotion to the post of
Shift Manager as they only have the degree of B.Sc. (Agriculture) which
is not equivalent to a degree or diploma in Dairying/Dairy
Science/Dairy Technology and, therefore, they are not eligible for the
post of Shift Manager and consequently they are not entitled to the 2nd
financial up-gradation in the scale of Rs.10,000-15,200/- in view of
condition no.6 of the ACP Scheme which contemplates that in order to
get the benefit of the scheme, an employee is required to fulfill the
normal promotion norms.
10. The original application, being O.A No.923/2003, was disposed of
by the Central Administrative Tribunal by order dated 23rd April, 2002
with the directions to the petitioners to examine the claims of
respondent nos.1 & 2 for their fitment in the scale of Rs.10,000-
15,200/- admissible to the post of Shift Manager under the second
financial upgradation with effect from 9th August, 1999 in pursuance of
the promotion to the said post of Shift Manager being granted to
Sh.M.S. Tripathi who, like respondent nos.1 & 2, also held only a
degree of B.Sc. (Agriculture).
11. Pursuant to the directions given by the Tribunal in O.A
No.923/2001 to examine and consider the claim of the respondent
nos.1 & 2 in the background of the promotion granted to Sh.M.S.
Tripathi who also had only the degree of B.Sc. (Agriculture), the
petitioner no.2 by Memorandum No.15-2/2001-Estt.(Spl.) (DMS) dated
12th June, 2002 rejected the claim of the respondent nos.1 & 2 after
consideration and distinguished the case of Sh.M.S. Tripathi on the
ground that he was promoted to the post of Shift Manager in
consultation with the concerned Ministry and the UPSC. It was
contended that the case of respondent nos.1 & 2 is neither identical nor
parallel to that of Sh.M.S.Tripathi.
12. The respondent nos.1 & 2 thereafter filed another original
application before the Tribunal, being O.A No.2587/2002, contending
that the second financial upgradation under the ACP Scheme had been
granted to some other persons similarly situated as respondent nos.1 &
2 who also possessed only the degree in B.Sc. (Agriculture), namely, Sh.
G.P. Sharma, Sh.D.V.S. Yadav, Sh.A.P. Singh and Sh.Nooruddin
Ashraf. In O.A No.2587/2002 the Tribunal held that since respondent
nos.1 & 2 had the same qualification as other individuals named by
them, therefore, there was no logical reason to deprive respondent nos.1
& 2 of the same benefits as was granted to others. The Tribunal,
therefore, directed the petitioners to consider the claim of respondent
nos.1 & 2 in the light of its findings. The order of the Tribunal in O.A
No.2587/2002 was, however, not implemented entailing filing of the
contempt petition No.352/2003. The petitioners also filed a Review
Application being R.A No.26/2004 contending, inter-alia, that the
individuals named by respondent nos.1 & 2 in O.A No.2587/2002 on
the basis of whom the similar benefit of second financial upgradation
was claimed, in fact, were not drawing the pay scale of Rs.10000-
15200/-. The review application was, therefore, disposed of by the
Tribunal to consider the claim of respondent nos.1 & 2 in light of the
findings arrived at by the Tribunal and since the petitioners had not
filed any order, therefore, there was no question of review of order
passed in O.A No.2587/2002. The notice issued in the contempt
petition filed by respondent nos.1 & 2 was also discharged in CP
No.352/2003.
13. Thereafter, the petitioners passed the order dated 27th August,
2004 holding, inter-alia, that the ACP Scheme stipulates that the
financial upgradation shall be a personal position and that there shall
be no additional financial upgradation for the senior employee on the
ground that the junior employee in the grade has got higher pay scale
under the ACP Scheme. It was further held that since the officials junior
to respondent nos.1 & 2 fulfilled the recruitment rules for the hierarchal
post of Shift Manager and completed 24 years of regular service,
therefore, they were considered and granted pay scale of Rs.10,000-
15,200/-. As the respondent nos.1 & 2 did not fulfill the recruitment
rules for hierarchal post of Shift Manager, therefore, they have been
granted the common/standard pay scale that is Rs.7,450-11,500/-
instead of Rs.10,000-15,200/-. The claim of the respondent nos.1 & 2
was held to be not sustainable. The said order dated 27th August, 2004
was challenged by respondent nos.1 & 2 by filing the original
application being O.A No.30/2005 titled as „Sh.R.C.Bajpayee and
Sh.Hari Singh v. Union of India through the Secretary, Ministry of
Agriculture & Ors.‟ on the ground that when hierarchal scale is
available in the institute of petitioner No.2, then respondent nos.1 & 2
should have been given the next higher scale of Rs.10,000-15,200/-
and not the scale of Rs.7,450-11,500/-. It was further urged that the
common/standard scale prescribed under the ACP Scheme would,
therefore, not be applicable to the respondent nos.1 & 2. It was asserted
that only when there is no existing hierarchy, the common/standard
pay scale is adopted and not otherwise. The respondent nos.1 & 2 also
claimed discrimination viz a viz Sh.Y.R.Singh, respondent No.3, and Sh.
M.S.Tripathi who, though having the qualification of only B.Sc.
(Agriculture), as did the respondent nos. 1 & 2, but still they were given
promotion to the post of Shift Manager, which was unfairly denied to
respondent nos. 1 & 2. The respondent nos.1 & 2 contended that the
petitioners cannot be allowed to adopt different yardsticks for similarly
situated employees. It was also pleaded by respondent nos.1 & 2 that
the amendments in the recruitment rules of 1991, which was primarily
meant for the direct recruits, could have only prospective effect and the
qualification prescribed for promotional post at the time of entry into
employment could not be modified so as to create a bar for promotion to
the existing employees to the next hierarchical post. The respondent
nos.1 & 2 also contended that Dairy Supervisors, including respondent
nos.1 & 2 who had got promotion as Section Manager, were eligible for
second financial upgradation under the ACP Scheme in the pay scale of
Rs.10,000-15,200/-.
14. The petitioners contested the pleas and contentions of respondent
nos.1 & 2 before the Tribunal contending, inter-alia, that initially their
stand was that in absence of a definite hierarchy under the ACP
Scheme, the respondent nos.1 & 2 were only eligible to get the second
financial upgradation in the pay scale of Rs.7,450-11,500/-, being the
next higher pay scale in the standard/common pay scale as provided in
Annexure II of the ACP Scheme. The petitioners also contended that
since the respondent nos.1 & 2 did not fulfill the condition No.6 of the
ACP Scheme, that is the fulfillment of the eligibility condition for
promotion, therefore, they are not entitled for grant of financial
upgradation to the scale of Rs. 10,000-15,200/-. The plea of the
petitioners was that the essential qualification for the post of Shift
Manager is a degree or a diploma in Dairying/Dairy Science/Dairy
Technology with three or five years experience respectively, whereas,
respondent nos.1 & 2 only possessed a degree of B.Sc. (Agriculture)
and, therefore, they were not entitled to get the scale in the next higher
grade in the existing hierarchy. The case of Sh.M.S. Tripathi was
distinguished on the ground that the promotion for qualification in his
case was relaxed and he was promoted in consultation with DOPT and
UPSC and that he was not granted any benefit under the ACP Scheme.
Regarding Sh.Y.R.Singh, respondent no. 3, it was asserted that he
possessed the degree of M.Sc. (Agriculture) Animal Husbandry and
Dairying, which is equivalent to the qualification prescribed in the
revised recruitment rules of 1991. Regarding Sh.A.P.Singh, it was
asserted that though he did not have the qualification as per the
amended Recruitment Rules, 1991, however, he was placed in the pay
scale of Rs.10,000-15,200/- on account of the order of the Central
Administrative Tribunal passed in O.A No.493/2004 dated 22nd
December, 2004 which was not interfered in a writ petition filed before
the High Court. The High Court in W.P(C) No.4437 and 4438/2006 and
CM No.3660/2006 had recorded by order dated 23rd March, 2006 that
the order of the Tribunal dated 22nd December, 2004 shall not be
treated as a precedent. Consequently, Sh.A.P.Singh was promoted by
office order dated 29th April, 2006 and the respondent nos.1 & 2 cannot
claim discrimination viz a viz Sh.A.P.Singh.
15. The Tribunal, after hearing the contentions of the parties, by
order dated 19th July, 2006 which is impugned in this writ petition held
that the amendment to the recruitment rules for promotion can have
only prospective effect and would not create a bar for the existing
employees as the rules prior to 1991 conferred a vested right on
respondent nos.1 & 2 which could not be taken away by retrospective
effect, as it would amount to alteration of conditions of service of
respondent nos.1 & 2 which would be to their disadvantage and relied
on the judgment of the Supreme Court in 1999 (1) L&J 1215. The
Tribunal also observed that the post of Section Manager and Shift
Manager have to be filled 100% on promotion basis. However, as per
notified Recruitment Rules for the post of Shift Manager, educational
qualifications prescribed for direct recruits do not apply in case of
promotees of the said post but for the post of Shift Manager the
educational qualifications prescribed for the direct recruits apply in
case of promotees also. In para 11 of the impugned order the Tribunal
held as under:-
"11. From the perusal of the material on record we find
that the posts of Section Manager and Shift Manager have
to be filled up 100% on promotion basis. However, as per
the notified Recruitment Rules for the post of Section
Manager, educational qualifications prescribed for direct
recruits do not apply in the case of promotees but for the
post of Shift Manager the educational qualifications
prescribed for direct recruits apply in the case of promotees
also. This indeed is a somewhat strange dispensation."
16. The Tribunal also held that the financial upgradation under the
ACP Scheme is to be given in the next higher scale in accordance with
the existing hierarchy in the cadre as mandated in condition No.7 of the
ACP Scheme and any clarification issued by the Government, including
Clarification No.56, being contrary to the conditions of ACP Scheme, is
ultra vires. In para 14 of the impugned judgment the Tribunal held as
under:-
"14. In view of these decisions, we come to the inevitable
conclusion that there is no half way house in the ACP
Scheme. If an individual is eligible, he shall be given
financial upgradation to the next higher grade in
accordance with the existing hierarchy in the cadre. The
Scheme does not envisage grant of financial upgradation in
the next higher grade in the Standard/Common Pay Scales
if the employee is ineligible for any reason, including
absence of prescribed qualifications. The fact that the
applicants have been granted the second financial
upgradation (albeit in the pay scale of Rs. 7450-11500)
amounts to implicit admission on the part of the
respondents that the applicants fulfill the eligibility criteria
under the ACP Scheme and if that is so, the financial
upgradation has to be granted in keeping with the
mandatory provision contained in Condition No. 7 of the
ACP Scheme, viz. next higher grade in accordance with the
existing hierarchy in the cadre."
17. The order of the Tribunal directing the petitioners to grant the
second financial upgradation to respondent nos.1 and 2 in the pay scale
of Rs.10,000-15,200/- is impugned by the petitioners, inter-alia, on the
grounds that the impugned order lead to an anomalous situation and
that pursuant to the directions of the Tribunal the petitioners are in a
situation where they would be bestowing the financial benefits upon
respondent nos.1 and 2 in contravention of relevant rules, instructions
and provisions of the ACP Scheme; the case of respondent no.3 and
other persons relied on by respondent nos.1 and 2 are distinguishable
and there have been no discrimination between respondent nos.1 and 2
and other employees who had been granted second financial
upgradation in the pay scale of Rs.10,000-15,200/-; respondent nos.1
and 2 do not have requisite educational qualification to be eligible for
promotion to the post of Shift Manager; in any case even if the second
financial upgradation and pay scale of Rs.10,000-15,200/- has been
granted to some other employees wrongly, that could not be a ground to
confer the same benefit on respondent nos.1 and 2; granting second
financial upgradation in the pay scale of Rs.7,450-11,500/- does not
amount to implicit or otherwise admission on the part of the petitioners
that respondent nos.1 and 2 fulfilled the eligibility criteria under the
ACP Scheme for grant of second financial upgradation in the pay scale
of Rs.10,000-15,200/-; amendment to the Recruitment Rules in 1991,
whereby the post of the Shift Manager was amended to be filled by
promotion from Section Manager, does not confer a vested right in
respondent nos.1 and 2 and that they are governed by the Recruitment
Rules prior to 1991. Since prior to 1991 the post of the Shift Manager
was not a promotional post from the post of Section Manager and it
became a promotional post only after 1991, therefore, amendment to
the Recruitment Rules, 1991 did not amount to alteration of the
conditions of the service of respondent nos.1 and 2 to their
disadvantage.
18. Learned counsel for the petitioners also very emphatically
contended that on the basis of the decision in the case of W.P.(C)
No.4437-38/2006, titled as „Union of India and Ors. v. Nooruddin
Ashraf and Ors.‟, respondent nos.1 and 2 are not entitled for the relief
claimed, as the High Court had categorically held that the observations
made by the Central Administrative Tribunal in its order dated 22nd
December, 2004 granting the second financial upgradation to the
employees, though they did not fulfill the eligibility condition, yet since
the order of the Tribunal had been implemented in their case, the same
shall not be treated as a precedent. It was contended that respondent
nos.1 and 2 are also not entitled to claim similar treatment as that of
Mr.A.P.Singh who was also not eligible for the second financial
upgradation under the ACP Scheme, however, since he had already
retired, the High Court had not interfered with the order of the Central
Administrative Tribunal. The learned counsel for the petitioners has
relied on (2006) 13 SCC 613, LIC of India v. .R.Dhandapani; (2006) 11
SCC 709, Colonel B.J.Akkara (Retd.) v. Govt. of India and Ors. and
(2009) 5 SCC 65, State of Bihar v. Upendra Narain Singh and Ors.
19. The writ petition is contested by respondent nos.1 and 2
contending, inter-alia, that petitioner no.2 has been taking inconsistent
plea inasmuch as by order dated 17th February, 2001 the financial
upgradation to the scale of Rs.10,000-15200/- was denied on the
ground that there was no defined hierarchy and they had, therefore,
granted the second financial upgradation in the pay scale of Rs.7,450-
11,500/-, while thereafter, another plea was taken that respondent
nos.1 and 2 have not fulfilled the normal promotional norms under the
Recruitment Rules which were amended on 27th September, 1991.
Discrimination was also contended vis-à-vis Sh.M.S.Tripathi, who,
though had only an educational qualification of B.Sc.(Agriculture),
however, he was granted the second financial upgradation in the pay
scale of Rs.10,000-15,200/- and similarly discrimination was alleged in
relation to Sh. A.P.Singh, who had also been granted the second
financial upgradation in the pay scale of Rs.10,000-15,200/- and who
had thereafter retired and after his retirement the High Court had
declined to interfere in his case and had allowed him to get the retiral
benefits in the pay scale of Rs.10,000-15,200/-.
20. Learned counsel for respondent nos.1 and 2 contended that the
amendment to the Recruitment Rules could not be detrimental to the
case of respondent nos.1 and 2 as when they had joined as Dairy
Supervisor the eligibility qualification for the said post was
B.Sc.(Agriculture) and hence since they had the requisite qualification
they were eligible. The grievance was also made that in case of
respondent nos.1 and 2 permission had not been granted by the
petitioners, whereas, in the case of the other employees the permission
was granted to treat the degree of B.Sc.(Agriculture) as similar to the
degree required as an essential qualification for promotion to the post of
Shift Manager. Relying on the case of Sh. Nooruddin Ashraf and
Ors.(supra), it was very emphatically contended by learned counsel for
respondent nos.1 and 2, in the alternative, that the ratio of the said
case may not be a precedent, but as in the said case of Sh.A.P.Singh
the High Court had declined to interfere with the decision of the
Tribunal of granting him second financial upgradation in the scale of
Rs.10,000-15,200/- as he had retired. In the case of the respondents
nos.1 & 2 as well, they too have retired and have been drawing their
retiral benefits on the basis of having been placed in the pay scale of
Rs.10,000-15,200/-, therefore this Court too should not interfere with
the decision of the Tribunal.
21. After hearing the learned counsel for the parties in detail, and on
perusing the writ petition, the counter reply filed by respondent nos.1
and 2, the documents produced by the parties and the precedent relied
on, it is not disputed that prior to the amendment in the Recruitment
Rules on 27th September, 1991 the promotional hierarchy was from the
Dairy Supervisor to Section Manager. Under the Recruitment Rules
prior to 27th September, 1991 the post of Shift Manager was not in the
hierarchy of post from the post of Section Manager as the Shift Manager
post had to be filled up 100% by direct recruitment. From the facts, it
has also emerged that both respondent nos.1 and 2 joined as diary
supervisor prior to 27th September, 1991, and therefore, they did not
have any vested right to be promoted to the post of Shift Manager as the
said post was not in the hierarchy of the post for promotion. After
amendment in 1991, the post of Shift Manager was also included in the
promotional post from Section Manager. Consequently, on amendment
to the Recruitment Rules on 27th September, 1991, no vested right of
respondent nos.1 and 2 have been taken away retrospectively as
inferred by the Tribunal. Amendment in the Recruitment Rules on 27th
September, 1991 also did not tantamount to alteration of the service
conditions of respondent nos.1 and 2, nor could it be termed that the
service conditions were amended to their disadvantage, rather, after the
amendment in 1991, the service conditions became favourable to those
employees who had joined the post of dairy supervisor and who were
promoted to the post of Section Manager, as another promotional post
of Shift Manager became available to them subject to fulfilling the
essential eligibility conditions. In the circumstances, the findings and
inferences of the Tribunal that the amendment in the Recruitment
Rules amounted to a retrospective amendment and it altered the
conditions of service applicable to respondent nos.1 and 2 to their
disadvantage, cannot be sustained.
22. On amendment of the Recruitment Rules, 1991 whereby the post
of Shift Manager was made a promotional post from Section Manager,
subject to the educational qualification of degree or diploma in
Dairying/Dairy Science/Dairy Technology with three or five years
experience in running a dairy plan in a supervisory capacity, cannot be
termed as "somewhat strange dispensation" as held by the Tribunal.
Respondent nos.1 and 2, in any case, have not challenged the
Recruitment Rules, nor have the Recruitment Rules been challenged by
any of the other employees, or the Section Managers who wanted to be
promoted to the post of Shift Manager under the 1991 Recruitment
Rules.
23. The next plea of the respondents that the other Section Managers,
namely Sh. M.S. Tripathi, Sh.Y.R.Singh and Sh.N.Ashraf had been
promoted to the post of Shift Manager though they did not have the
essential educational qualification and consequently, respondent nos.1
and 2 are also entitled and eligible for promotion to the said post of
Section Manager and thus, entitled for second financial upgradation
under the ACP Scheme in the pay scale of 10,000-15,200 is also not
sustainable. The petitioners had categorically contended that Sh. M.S.
Tripathi, though had a degree of B.Sc.(Agriculture), was promoted in
consultation of the DOP&T and UPSC which cannot be equated with the
case of respondent nos.1 and 2 as there have not been any such facts
which would entitle relaxation by the UPSC for promotion. The
Recruitment Rules, 1991 for the post of Shift Manager under Note-I
categorically stipulates that the qualification are relaxable at the
discretion of the UPSC in the cases where candidates otherwise would
not qualify. Consequently, on the basis of the promotion granted to Sh.
M.S. Tripathi, respondent nos.1 and 2 cannot claim equality.
24. In the case of Sh.Y.R.Singh and Sh.N.Ashraf, it has been revealed
that they possessed M.Sc. (Agriculture) in Animal Husbandry and Dairy
which was considered equivalent to a degree or diploma in Dairy/Dairy
Science/Dairying Technology. Admittedly, respondent nos.1 and 2 do
not have post graduate qualification of M.Sc. and in any case they have
graduate degrees in Agriculture and not in Animal Husbandry and
Dairy. Respondent nos.1 and 2, therefore, cannot claim equality vis-à-
vis Sh.Y.R.Singh and Sh.N.Ashraf.
25. Learned counsel for respondent nos.1 and 2 have also relied on
the copy of the counter affidavit filed on behalf of petitioner no.2 in
W.P.(C) No.3795/2001, titled as „Rajkumar v. Union of India and Ors.‟,
where it was asserted on behalf of petitioner no.2 that as per the advice
of the Staff Selection Committee no order was issued by the Board of
Assessment for Educational Qualifications equating the
M.Sc.(Agriculture) in Animal Husbandry and Dairying as equivalent to a
degree in Dairying or Microbiology or M.Sc. in Bio-Chemistry. Para 8 of
the counter affidavit of Sh.B.B.Garg, Deputy General Manager of
administration of petitioner no.2 in W.P.(C) No.3795/2001, titled as
„Rajkumar v. Union of India & Ors.‟, is as under:-
"8. That as per the advice of Staff Selection Committee, a
reference was made to the Department of Animal
Husbandry and Dairying for necessary clarification vide
letter/note dated 2710/1997. The Deptt. of Animal
Husbandry and Dairying in turn sought clarification from
the Ministry of Human Resource Development (Department
of Education) and gave the following clarification vide letter
dated 17/4/1998.
"The Board of Assessment for Educational
Qualifications recognize qualification for posts and service
under the Central Government. For that purpose, the
award of Recognized Universities stand automatically
recognized. It has however, not issued any orders equating
M.Sc.(Agriculture0 in Animal Husbandry and Dairying as
Equivalent to a degree in Dairying or Microbiology or M.Sc.
in Bio Chemistry as per records."
"The Department of Animal Husbandry and Dairying
further advised that Delhi Milk Scheme should strictly
follow the Recruitment rules for appointment of Dairy
Supervisor."
That in view of the advice of the Deptt. of
A.H.&Dairying, the petitioner was not found fit by the
Selection Committee and the Competent Authority."
26. Be that as it may, the stand of petitioner no.2 would only make
Sh.Y.R.Singh, respondent no.3, and Sh.N.Ashraf possessing the degree
of M.Sc.(Agriculture) in Animal Husbandry and Dairying as not being
eligible for the post of Shift Manager. But on this account, respondent
nos.1 and 2 will not be entitled to claim that they should also be
deemed to be eligible for promotion to the post of Shift Manager so as to
be entitled for second financial upgradation in the pay scale of
Rs.10,000-15200/-. The Supreme Court in State of Bihar v. Upendra
Narain Singh & Ors. (supra) in para 67 at page 102 had held that it is
settled law that guarantee of equality before law enshrined in Article 14
is a positive concept and it cannot be enforced by a citizen or Court in a
negative manner. It was further held that if an illegality, or irregularity
has been committed in favor of any individual or a group of individuals
or a wrong order has been passed by a judicial forum, the other cannot
invoke the jurisdiction of the higher or superior Court for repeating or
multiplying the same illegality or irregularity or for passing a wrong
order. The Supreme Court in para 67 of the said judgment had held as
under:-
"67. By now it is settled that the guarantee of equality
before law enshrined in Article 14 is a positive concept and
it cannot be enforced by a citizen or court in a negative
manner. If an illegality or irregularity has been committed
in favour of any individual or a group of individuals or a
wrong order has been passed by a judicial forum, others
cannot invoke the jurisdiction of the higher or superior
court for repeating or multiplying the same irregularity or
illegality or for passing wrong order--Chandigarh Admn. v.
Jagjit Singh (1995) 1 SCC 745, Jaipur Development
Authority v. Daulat Mal Jain(1997) 1 SCC 35, Union of India
v. J.V. Subhaiah(1996) 2 SCC 258, Gursharan Singh v.
NDMC(1996) 2 SCC 459, State of Haryana v. Ram Kumar
Mann(1997) 3 SCC 321, Faridabad CT. Scan Centre v. D.G.
Health Services(1997) 7 SCC 752, Style (Dress Land) v. UT,
Chandigarh(1999) 7 SCC 89, State of Bihar v. Kameshwar
Prasad Singh(2000) 9 SCC 94, Union of India v. International
Trading Co. (2003) 5 SCC 437 and Directorate of Film
Festivals v. Gaurav Ashwin Jain(2007) 4 SCC 737."
27. In Col. B.J.Akkara (supra), it was held that a particular judgment
of the High Court may not be challenged by the State where financial
repercussions are negligible or where an appeal is barred by limitation.
It may also not be challenged due to negligence or oversight of the
dealing officers or on account of wrong legal advice, or on account of
non-comprehension of the seriousness or the magnitude of the issues
involved. This, however, will not prevent the State, nor the State would
be barred from challenging the specific position or resisting the
subsequent writ petitions even though the judgment in a case involving
similar issue was allowed to reach finality in the case of others. It was
also observed by the Supreme Court that the position would be different
if the plea is that the State has adopted a "pick and choose" policy only
to exclude some of the petitioners on account of mala fides or ulterior
motives. Be that as it may, neither the principles of res judicata, nor the
principles of estoppel would be attracted. It was also held that the
Administrative Law Principle of legitimate expectation or fairness in
action also cannot be invoked in such circumstances.
28. In the case of Nooruddin Ashraf and Ors., the Central
Administrative Tribunal had held by order dated 22nd December, 2004
in OA No.493/2004 that there was no order of the petitioners in case of
applicant in the said OA by which the Dairy Supervisor had been re-
designated as Assistant Manager and placed in the scale of Rs.5,000-
8,000/-. The Tribunal also held that there was no amendment to the
Recruitment Rules to reorganize structure in the cadre of Dairy
Supervisor and on 9th August, 1999 there was no scale of pay of
Rs.5500-9000/- in the existing hierarchy structure for promotional
post. The Dairy Supervisors had been granted first financial
upgradation in the scale of Rs.6500-10500/- and since the next
promotional post of Shift Manager was in the pay scale of Rs.10,000-
15,200/-, therefore, the second financial upgradation under the ACP
Scheme could be only in the scale of Rs.10,000-15,200/-. The Tribunal
had also observed that the petitioners had itself recommended for giving
this pay scale i.e. second financial upgradation to the applicant in that
case. In the writ petition filed against the said order, being W.P.(C)
No.4437-38/2006, while disposing of the writ petition on 23rd March,
2006 it was noticed that out of the 10 employees the order of the
Tribunal had already been implemented in the case of 9. The High
Court had also noticed that since no order was filed by the petitioners
by which the Dairy Supervisors had been re-designated as Assistant
Manager at the time when the matter was heard before the Central
Administrative Tribunal, therefore, the High Court Bench had also
declined to interfere with the order of the Tribunal. Regarding
Mr.A.P.Singh, it was held that since he did not have a degree in
Dairying/Dairy Science/Dairy Technology, therefore, he ought not to
have been granted the benefit of the impugned judgment and that the
petitioners may have had some merits in respect of these pleas,
however, as Mr.A.P.Singh had retired, therefore, without expressing any
opinion on the merit of the plea, the Court had declined to interfere with
the order of the Central Administrative Tribunal. It was specifically
observed that the impugned judgment of the Central Administrative
Tribunal dated 22nd December, 2004 shall not be treated as a
precedent.
29. The learned counsel for respondent nos.1 and 2 has contended
that since these respondents have also retired and they have been
granted the 2nd financial upgradation in the pay scale of Rs.10,000-
15,200/- then on parity with the case of Mr.A.P.Singh, this Court too
should not interfere with the order of the Tribunal granting the pay
scale of Rs.10,000-15,200/- as the second financial upgradation.
30. To counter the plea of learned counsel for the respondent nos.1
and 2, the learned counsel for the petitioners, Mr.Sinha, has relied on
R. Dhandapani (supra) where the Supreme Court had held that the
relief cannot be granted to the litigants on the basis of misplaced
sympathy, generosity and private benevolence. The Court observed that
there has been an increasing evidence of well meant but wholly
unsustainable, tendency towards a denudation of the legitimacy of
judicial reasoning and process. The relief granted should be logical and
tenable within the framework of law and should not incur and justify
the criticism that the jurisdiction of the Court tends to degenerate into
misplaced sympathy, generosity and private benevolence. In para 8 at
page 618 in R.Dhandapani (supra), the Supreme Court has held as
under:-
"8. In recent times, there is an increasing evidence of this,
perhaps well-meant but wholly unsustainable, tendency
towards a denudation of the legitimacy of judicial reasoning
and process. The reliefs granted by the courts must be seen
to be logical and tenable within the framework of the law
and should not incur and justify the criticism that the
jurisdiction of the courts tends to degenerate into misplaced
sympathy, generosity and private benevolence. It is
essential to maintain the integrity of legal reasoning and the
legitimacy of the conclusions. They must emanate logically
from the legal findings and the judicial results must be seen
to be principled and supportable on those findings.
Expansive judicial mood of mistaken and misplaced
compassion at the expense of the legitimacy of the process
will eventually lead to mutually irreconcilable situations
and denude the judicial process of its dignity, authority,
predictability and respectability."
31. In the case of Nooruddin Ashraf and Ors.(supra), the relief was
granted to Mr.A.P.Singh as a benevolence, since he had retired and not
on the basis of logical and tenable appreciation of the pleas and
contentions of the parties. This is not the case of respondent nos.1
and 2 that the petitioners have adopted a policy of pick and choose only
to exclude respondent nos. 1 and 2 by challenging the order of the
Tribunal or not implementing the decision of the Tribunal. The learned
counsel for respondent nos.1 and 2 have also not shown any plea of
mala fides or ulterior motives in declining to grant the pay scale of
Rs.10,000-15,200/- as a second financial upgradation to respondent
nos.1 and 2. The pay scale of Rs.10,000-15,200/- is denied to
respondent nos.1 and 2 on the ground that they do not have the
essential educational qualification of a degree or diploma in
Dairying/Dairy Science/Dairy Technology. On the basis of the ratio of
the judgments relied on by the petitioners, the principles of res judicata,
estoppel, legitimate expectation or fairness in action would not be
attracted so as to grant the relief to the respondents by giving the
second financial upgradation in the pay scale of Rs.10,000-15,200/-.
Though another Bench of this Court in the case of Mr.A.P.Singh had
declined to interfere with the order of the Tribunal granting second
financial upgradation in the pay scale of Rs. 10,000-15,200/-, since he
had retired from the service.
32. The reasoning of the Tribunal that since respondent nos.1 and 2
have been granted second financial upgradation in the pay scale of
Rs.7,450-11,500/- it amounts to implicit admission on the part of the
petitioners that respondent nos.1 and 2 have fulfilled the eligibility
criteria under the ACP Scheme and would be eligible for promotion to
the post of Shift Manager also cannot be sustained in the facts and
circumstances. The petitioners have granted the financial upgradation
in the next higher grade as specified in the standard/common pay scale
on the premise that there was no defined hierarchy under the ACP
Scheme which has not been challenged by the petitioners, nor have
been withdrawn. The petitioners have also not contended that they are
entitled to withdraw the second financial upgradation granted to
respondent nos.1 and 2 in the standard/common pay scale of Rs.7,450-
11,500/- in the facts and circumstance of the case, however, that
cannot be construed to mean that respondent nos.1 and 2 were eligible
for the post of Shift Manager under the amended Recruitment Rules,
1991 and were, therefore, consequently entitled to the pay scale of Shift
Manager as the second financial upgradation under the ACP Scheme to
the pay scale of Rs.10,000- 15,200/.
33. For the foregoing reasons, the order of the Tribunal dated 19th
July, 2006 passed in OA No.30/2005, titled as „R.C.Bajpayee and Ors.
v. Union of India and Ors.‟, suffers from material illegality and
irregularity and, therefore, cannot be sustained. Since respondent nos.1
and 2 do not have the essential educational qualification of a degree or
diploma in Dairying/Dairy Science/Dairy Technology and instead they
have the qualification of B.Sc.(Agriculture) only, the degree possessed
by them cannot be termed to be a degree or diploma in Dairying/Dairy
Science/Dairy Technology, and thus, under the relevant Recruitment
Rules, respondent nos. 1 and 2 were not eligible for promotion to the
post of Shift Manager, and consequently, they are also not entitled for
the second financial upgradation in the pay scale of Rs.10,000 -
15,200/-. The writ petition is, therefore, allowed and the order of the
Tribunal impugned by the petitioners is set aside.
34. Against the order dated 19th July, 2006 which is impugned by the
petitioners, the writ petition was filed and came up for hearing before
this Court for the first time on 29th January, 2007 by which time, the
period granted by the Tribunal to implement the order had expired, and
the order of the Tribunal was not complied with. The application for
stay was, therefore, dismissed. Thereafter, a review application was filed
against the dismissal of the stay application which was also dismissed
by order dated 3rd August, 2007. The writ petition, though filed in 2007,
remained pending also on account of the adjournment taken on behalf
of the learned counsel for the petitioners and the absence of the learned
counsel for the petitioners on 26th August, 2009, 24th November, 2009,
6th July, 2011, 8th July, 2011, 12th July, 2011 and 9th August, 2011. In
the circumstances, though it has been held that respondent nos.1 and
2 are only entitled for second financial upgradation in the pay scale of
Rs.7,450-11,500/- and not to the pay scale of Rs.10,000-15,200,
whatsoever benefits have already been paid to respondent nos.1 and 2
on account of placing them for the second financial up-gradation in the
pay scale of Rs.10,000-15,200/- shall not be refundable by them, nor
shall the petitioners be entitled to recover the same from respondent
nos.1 and 2 up to 30th September, 2011. That is, difference on account
of giving the pay scale of Rs.10,000-15,200/- in place of Rs.7,450-
11,500/- already paid to the respondent nos.1 & 2 will not be recovered
in the present facts and circumstances. However, from 1st October,
2011 respondent nos.1 and 2 shall be entitled for their retiral benefits
on the basis of their being placed in the pay scale of Rs.7,450-11,500/-
under the second financial upgradation specified in the
standard/common pay scale under the ACP Scheme which had not
been challenged by the petitioners.
35. With these directions, the writ petition is allowed and the order
dated 19th July, 2006 passed by the Central Administrative Tribunal
Principal Bench in OA No.30 of 2005 titled as Sh. R.C.Bajpayee and
Shri Hari Singh Vs. The Secretary, Ministry of Agriculture & ors is set
aside and the original application of the respondent nos. 1 & 2 is
dismissed. Considering the facts and circumstances, the parties are,
however, left to bear their own costs.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
September 28, 2011
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