Shri M.L. Meena vs Union Of India & Anr.
2011 Latest Caselaw 4905 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C) No.5951 of 2003

                                            Reserved on: 27th July, 2011
%                                  Pronounced on: 30th September, 2011


      SHRI M.L. MEENA                                     . . . PETITIONER

                                  Though:    Mr. Shankar Raju, Advocate.


                                  VERSUS

      UNION OF INDIA & ANR.                              . . .RESPONDENTS

                                  Through:   Mr. Sachin Datta with Mr.
                                             Abhimanyu, Advocates.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE M.L. MEHTA

      1.       Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
      2.       To be referred to the Reporter or not?
      3.       Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The pleadings in this writ petition unfold the following material

facts:

The petitioner was appointed as Deputy Assistant

Director General (MS) in Pay Scale of `1100 - 1600 on the

recommendation of the Union Public Service Commission and

he assumed the office to the said post on 7th January, 1978.

Next promotion was to the post of Deputy Assistant Director

General (MS) (in Senior Scale) for which eligibility is

completion of three years in the feeder cadre. This senior

grade was given to the petitioner in the year 1984.

2. In a celebrated judgment rendered by the Apex Court in Dr.

(Ms.) O.Z. Hussain Vs. Union of India [1990 AIR 311]

exhorting the Government as model employer to provide

adequate promotional avenues to the employees, the

respondent No.1/Union of India framed the rules known as

―The Department of Health (Group-A Gazetted Non-Medical

Scientists and Technical Officers) In-situ Promotional Rules,

1990‖. These Rules provide for suitable promotion avenues to

Group-A Scientists in the non-medical wing of the

establishment of Directorate of Health Services (hereinafter

referred to as ‗the Rules'). Rule 4 of the said Rules provides for

―Categorization of Scientists Levels‖. Sub-rule (1) of Rule 4

reads as under:

―(1) Without prejudice to recruitment Rules relating to the posts specified in Annexure-II of Group ‗A' Scientific and Technical Officers who were working in the department on regular basis and were holding on the date of commencement of these Rules, the posts specified in column (i) of Annexure - II, shall be deemed to have been appointed to the corresponding posts specified in column 4 with Scientists Levels specified in column 4 respectively of Annexure - II for the purpose of application of these Rules governing in-situ promotions, provided they possess the minimum qualifications prescribed in Annexure-I; provided that the Central Government may in consultation with the commission and for reasons to be recorded in writing, categorize the

Scientists Level of any of the posts referred to in Annexure-II or in Annexure-III.‖

3. In Annexure - II, redesignation of the category to which the

petitioner belonged was done as under:

―Existing Designation No. Designation after categorization of of Scientists level Post Medical Stores Organization:

Dy. Director General 1 Dy. (S-4) Scientist-4 Director General Asst. Director General 2 Asstt. (S-3) Scientist-3 Director General Dy. Asst. Director 7 Dy. Asst. (S-2) Scientist-2 General Manager Director General Manager Manager 7 Manager (S-1) Scientist-1.‖

4. Thus, the Dy. Assistant Director General after categorization

became as (S-2) Scientist-2. This Rule further provides that

the incumbent in the existing designation would be deemed to

have been appointed to the corresponding post. Thus, the

petitioner became Scientist-2 on the promulgation of the

aforesaid Rules.

5. Next promotion in the hierarchy is to the post of Scientist-III.

Rule 8 deals with ―The Schedule of Promotion‖. In certain

cases, ―Power to Relax‖ this Rule is given under Rule 10 and

for clarification of doubts on certain aspects, Rule 11 is

provided. These Rules are reproduced below:

―8. THE SCHEDULE OF PROMOTION- (1) A scientific or technical officer holding Group ‗A' post shall be eligible for promotion upto and including the grade of Scientists 4 level carrying pay scale of Rs.4500-5700 as follows:-

(a) Scientist 1 Level officers working in the grade of Rs.2200-4000 shall be promoted to the S2 Level in the grade of Rs.3000-4500 (Non--teaching)/Rs.3000-5000 (Teaching) on completion of five years of regular service in the grade of Rs.2200-4000 on the basis of an assessment.

(b) Scientist 2 Level officers working in the grade of Rs.3000-4500/3000-5000 shall be promoted to the S-3 Level in the scale of Rs.3700-5000 on completion of five years of regular service in the grade of 3000- 4500/3000-5000 on the basis of an assessment.

(c) Scientists 3 Level Scientists/officers working in the grade of Rs.3700-5000 shall be promoted to the Scientist 4 Level in the scale of Rs.4500-5700 on completion of five years of regular service in the grade of 3700-5000 on the basis of an assessment.

(2) Promotion to the 8 floating posts in the Scientist Level 5 in the scale of Rs.5900-6700 shall be made from a common eligibility list of all non-Medical Scientist having at least 3 years of regular service in the scale of Rs.4500-5900, the eligibility list being drawn on the basis of the length of their regular service in the scale of Rs.4500-5900/-.

9. Upgradation on Promotion - Where an officer is promoted under these rules, the grade of the post immediately held by him shall stand upgraded to the next higher level to which he has been promoted and shall revert to the original level on the vacation of it by the officer holding it : provided that where an officer is promoted further to higher levels in the course of time, the grade of the post shall continue to be upgraded to the level to which he has been promoted as personal to him and shall revert back to the level of original recruitment to the post i.e., level

1, 2, 3 or 4 as shown in the column 4 of Annexure - II.

10. POWER TO RELAX - Where the Central Govt. is of the opinion that it is necessary or expedient to do so, it may by order for reasons to be recorded in writing and in consultation with the UPSC relax any of the provisions of the rules with respect to any class or category of persons.

11. REMOVAL OF DOUBTS - For removal of doubts it is hereby declared that these rules are in addition to and not in derogation of the existing recruitment rules including the method of promotion or direct recruitment to the posts mentioned in Annexure II.‖

6. The petitioner was given Senior Grade of `1300-1700 with

effect from 15th March, 1984. After enforcement of

recommendation of IVth Central Pay Commission with effect

from 01.01.1986, this scale was revised to `3000 - `5000. The

petitioner started getting the scale of `3000 - `5000. Rule 8

(1) (b) provides that Scientist 2 Level officers working in the

grade of `3000-`4500/`3000-`5000 shall be promoted to the

S-3 Level in the scale of `3700-`5000 on completion of five

years of regular service in the grade of `3000-`4500/`3000-

`5000 on the basis of an assessment. Rule 9 stipulates that on

promotion under these rules, the grade of the post immediately

held by him shall stand upgraded to the next higher level to

which he has been promoted.

7. The petitioner was considered for promotion to S-3 level along

with others and was promoted vide orders dated 24th October,

1992. As per this order, on promotion from S-2 to S-3 with

effect from 15th November, 1989, he was upgraded to the

Scale of `3700 - `5000 from `3000 - `5000. The petitioner was

not happy with this upgradation, as according to him, before

his promotion to level S-3, he was enjoying in pay scale of

`3000-`5000 and the pay scale of `3700 to `5000/- given to

him ended with `5000/-. It was, therefore, no upgradation in

real sense. Further, the petitioner was always drawing pay of

`4,125/- which was much higher than the minimum pay-scale

granted to him, i.e., `3700/- in level S-3 on his promotion.

The petitioner made representation dated 17th February, 2003

for removal of this purported anomaly, but nothing happened.

He kept on making further representations and sent various

reminders as well, but to no effect.

8. Ultimately in August, 2001, he approached the Central

Administrative Tribunal (hereinafter referred to as ‗the

Tribunal') by filing application under Section 19 of the

Administrative Tribunal Act. This was disposed of vide orders

dated 27th August, 2001 directing the Government to consider

his representations. In compliance with the said order, the

petitioner made another detailed representation, which was

rejected by the respondents vide orders dated 4th January,

2002. Challenging this order, the petitioner moved the

Tribunal once again. This time, the claim of the applicant was

contested by the respondents by filing the detailed reply to

which the petitioner filed his rejoinder. After considering

arguments advanced by the counsel for both the parties, the

Tribunal had dismissed the O.A. of the petitioner as devoid of

any merit vide impugned order dated 26th February, 2003. The

petitioner sought review of the Tribunal's order dated 26 th

February, 2003, which met the same fate, as the said review

was also dismissed vide orders dated 26th April, 2003.

9. Challenging the aforesaid orders passed in the O.A. as well as

in the Review petitioner, the present petition is preferred under

Article 226 of the Constitution of India.

10. Learned counsel for the petitioner argued that there was an

apparent anomaly by putting the petitioner, on promotion to S-

3, in the pay scale of `3700-`5000 when the petitioner was

already enjoying the pay scale of `3000-`5000. His

submission, therefore, was that it was a fit case where Rule 11

of the Rules should have been invoked and anomaly revoked.

According to the learned counsel, this aspect was not dealt with

properly by the Tribunal resulting into error.

11. We are not impressed by the aforesaid argument of the learned

counsel.

12. It is to be borne in mind that the aforesaid Rules were framed

on the basis of directions made by the Supreme Court in the

case of Dr. (Ms) O.Z. Hussain (supra). In-Situ Promotion

Rules, 1990, the scale of pay of `3000-4500 and `3000-5000

have been combined and are made the feeder cadre for

promotion to S-3 level. Though these Rules were promulgated

in the year 1990, the Rules are given retrospective effect from

15.11.1989. This was the date specifically chosen because of

the reason that on this date, directions were given by the

Supreme Court. Further, it is relevant to point out that the

petitioner nowhere challenged the vires or validity of Rule 8 or

any other Rules. The placement in the scale of `3,700 -

5000/- was strictly in accordance with this Rule. The argument

which has been advanced before us was not raised before the

Tribunal. The contention of the petitioner was that his case is

covered under Rule 8 (1)(c) of In-Situ Rules, which was not

accepted by the Tribunal. Interestingly, challenge on this

ground is given up, as it was not argued before us at all and

the argument was predicated on Rule 8(1)(b) only. Likewise,

there was no such case projected by the petitioner that his

upgradation on promotion has resulted in any anomaly. The

question of anomaly even otherwise does not arise when the

upgradation is made strictly as per the extent Rule.

13. It will also be worthwhile to point out that pursuant to Vth

Central Pay Commission `3,700-5000/- was revised to

`12,000-16,500/- which is distinct from the clubbed scale of

`3000-4500/`3000-5000/-. It is evident that the decision to

club the scales was a conscious decision and was not an

anomaly as suggested by the petitioner. The order dated 1st

April, 1991 issued in pursuance to various orders passed by the

Supreme Court in W.P.(C) No.101/1989 and Contempt Petition

No.85/1990 clearly mentions as under:

―6(b) These are some who joined service prior to 15.11.1979 after 15.11.1969, having thus completed one unit of 10 years service period. If they have remained in the same Grade without any promotion/upward mobility in pay scale during the period 15.11.79 to 14.11.89 they are considered eligible for in situ promotion to the next higher level as on 15.11.89, irrespective of the fact whether they had or had not received promotion prior to 15.11.79.‖

14. It becomes manifest from the reading of the above that the

occasion to promote the petitioner arose only on the basis that

there has not been any promotion/upward mobility in pay-scale

during the period 15.11.1979 and 14.11.89. If it was true, as

the petitioner contends that DADG (MS) at to `3000-5000/-

level was distinct from the DADG having a scale of `3000-

4500/-, then the petitioner having already got a promotion on

15th March, 1984 would not have been eligible for promotion in

terms of Para 6(b) of the order dated 1st April, 1991 read with

In-Situ Rules. This itself negates the contention of the

petitioner.

15. We, thus, do not find any merit in the writ petition, which is

accordingly dismissed. However, there shall not be any order

as to costs.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE SEPTEMBER 30, 2011 pmc