Delhi High Court
Union Of India & Ors. vs Vinod Kumar Jain & Anr. on 18 April, 2012
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18.04.2012
+ W.P.(C) No.8401/2010
Union of India & Ors. ... Petitioners
Versus
Vinod Kumar Jain & Anr. ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. A.S.Chandihoke, Additional Solicitor
General of India with Mr. Sachin Dutta,
Ms.Gyatri, & Mr. Manikya Khanna Advocates
for Petitioners
For Respondent No.1 : Mr. Arun Bhardwaj, Advocate for respondent
No.1;
Mr.Tanveer A.Mir Advocate for respondent
No.2
AND
+ W.P.(C) No.8503/2010
Union of India & Ors. ... Petitioners
Versus
Smt. Prachi Nigam & Ors. ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. A.S.Chandihoke Additional Solicitor
General of India with Mr. Sachin Dutta and
Ms.Gyatri, Advocates for Petitioners
For Respondent No.1 : Mr.Tanveer A.Mir Advocate for respondent
Nos.1 to 5; Mr. Pushkar Sood Advocate for
Respondent Nos. 6 to 16.
WP(C) 8401/2010 & WP (C) 8503/2010 Page 1 of 52
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
ANIL KUMAR, J.
*
1. The petitioners, Union of India, through the Secretary,
Department of Personnel & Training & Ors., have challenged the order
dated 7th July, 2010 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi in OA No.3663/2009, titled as „Smt. Prachi
Nigam & Ors. v. Union of India & Ors.‟ with OA No.3097/2009, titled as
„Vinod Kumar Jain v. Union of India & Ors‟. The Tribunal by the
impugned order has quashed the order dated 2nd September, 2008
passed pursuant to order dated 26th May, 2008 in OA No.1317/2005,
titled as „Vinod Kumar Jain v. Union of India & Ors‟. By the impugned
order dated 7th July, 2010, the Tribunal, while quashing the order dated
2nd September, 2008 passed by the petitioners, has remanded the
matter back to the petitioners with the directions to consider the aspect
of the merger of AFLEs & DFLEs and grant of seniority on merger of
both the categories of AFLEs & DFLEs in accordance with the
observations made by the Tribunal in its order dated 26th May, 2008
passed in OA No.1317/2005. While passing the impugned order, the
Tribunal also held that till a fresh order is passed by the petitioners,
promotion to the post of Deputy Secretary shall remain on hold.
2. The brief facts to comprehend the controversy between the parties
are that Sh. Vinod Kumar Jain, respondent No.1 in WP(C) 8401/2010,
had joined the Language Cadre of the Research & Analysis Wing,
Cabinet Secretariat, as LDC (Group „C‟ post) with effect from 13th June,
1969. Later on, he was appointed as Assistant (Group „B‟ non-gazetted
post), and subsequently, he joined the Language Cadre as Interpreter
(Group „B‟ non-gazetted post) with effect from 26th August, 1985 in the
pay scale of Rs.550-900/-, which was later on revised to Rs.2000-
3200/-.
3. The said respondent no.1, Vinod Kumar Jain, was thereafter,
promoted as Assistant Foreign Language Examiner in the pay scale of
Rs.2000-3500/-(Group „B‟ Gazetted post) with effect from 18th July,
1991.
4. The respondent No.1 to 5 of W.P.(C) No.8503/2010 also became
Assistant Foreign Language Examiners (hereinafter referred to as „the
AFLE‟) Group „B‟ (gazetted post) in the pay scale of Rs.2000-3500/-.
5. The same department also has the posts of Deputy Foreign
Language Examiner (hereinafter referred to as „the DFLE‟) which was a
Group „A‟ post with the pay scale of Rs.2200-4000/-. The recruitment to
the various posts in the Language Cadre is governed by the Research
and Analysis Wing (Recruitment Cadre & Service) Rules, 1975 as
amended from time to time.
6. The next promotion for AFLEs and DFLEs was to the post of
Under Secretary (Language) in the scale of Rs. 3000-4500/-. The quota
for promotion was 50% of AFLEs and 50% for DFLEs, however, the
AFLEs required a residency period of 8 years service before becoming
eligible for promotion to the post of Under Secretary (Language) whereas
the DFLEs required 5 years service.
7. Subsequently, pursuant to the recommendations of the 5th
Central Pay Commission the AFLE which was a Group „B‟ (gazetted
post) in the pay scale of Rs. 2200-4000, was revised in the pay scale of
Rs. 8000-13500, with effect from 1st January, 1996 by the petitioners
by OM dated 6th January 1999 and the arrears since 1st January, 1996
too were given to the employees who were on the post of AFLE.
8. Prior to the recommendations of the 5th Central Pay Commission,
the classification and pay scale of the various posts up to the rank of
the Under Secretary in the Language Cadre were as under:-
Sl. No. Post Pay Scale Classification
1. Interpreter 2000-3200 Gr. B Non Gazetted
2. AFLE 2000-3500 Gr. B Gazetted
3. DFLE 2200-4000 Gr. A Gazetted
4. Under Secretary 3000-4500 Gr. A Gazetted
9. The posts of Interpreters and DFLEs were filled up 100% by direct
recruitment. The posts of AFLEs were filled up 100% by promotion from
the feeder grade of Interpreters. The qualification prescribed for direct
recruitment to the post of Interpreter, which was a feeder grade for
promotion to AFLEs, and that of DFLEs were as under:-
"i) Interpreter--Bachelor‟s degree in a Foreign Language
from a recognized university or institute or a degree with
diploma in Foreign Language from a recognized university
or institution.
ii) DFLE--Master‟s Degree (2nd class) in a Foreign Language
from a recognized university or institution or Master‟s
Degree (2nd class) in any subject with honours degree (2nd
class) in a foreign language from a recognized university or
institution."
10. There was no parity between the DFLEs and AFLEs as the
educational qualifications and the mode of recruitment prescribed in
the Recruitment Rules were different.
11. Pursuant to the recommendations of the 5th Central Pay
Commission, the pay scale of Rs.2000-3500/- of AFLEs was revised to
Rs.8000-13500/- retrospectively from 1st January, 1996. Since the pay
scale of AFLEs was revised from Rs.2000-3500/- to Rs.8000-13500/-,
in terms of notification dated 20th April, 1998 of the Ministry of
Personnel, Public Grievance & Pensions, the Group of the post of AFLEs
was revised from Group „B‟ to Group „A‟. Therefore, the post of AFLEs in
the Language Cadre in the pay scale of Rs.8000-13500/- was re-
classified as Group „A‟ post and the Cabinet Secretariat‟s Order
No.11011/4/99-DO-I dated 13th September, 1999 was passed to the
same effect. The hierarchy of the Language Cadre for R&AW, Cabinet
Secretariat, before the 5th Central Pay Commission and after the 5th
Central Pay Commission is tabulated as under:-
Before the 5th Pay Commission After the 5th Pay Commission
Director, Group A, Director, Group A,
Rs. 4500-5700 Rs. 14300-18300
Deputy Secretary Group A. Deputy Secretary Group A
Rs. 3700-5000 Rs. 12000-16500
Under Secretary, Group A, Under Secretary, Group A
Rs. 3000-4500 Rs. 10000-15200
DFLE, Group A,
Rs. 2200-4000 (D) AFLE, Group A, DFLE, Group A,
Rs. 8000-13500 Rs. 8000-13500
(D)
AFLE, Group B, (Gztd)
Rs. 2000-3500
Interpreter, Group B,
Rs. 6500-10500 (D)
Interpreter, Group B,
Rs. 2000-3200 (D)
12. Later on, the Recruitment Rules in the Language Cadre were
amended by notification dated 25th May, 2001 and consequent thereto
the post of Under Secretary (Language) was to be filled up (i) 40% by
promotion of DFLEs (direct recruits) and (ii) 60% by promotion of AFLEs
(promotees) with a residency period of 5 years in both the posts.
13. Before the amendment of the Recruitment Rules of Research and
Analysis Wing, the post of Under Secretary (Language) was filled up
50% by promotion from DFLEs and 50% by promotion of AFLEs. The
minimum length of service prescribed for eligibility was 5 years in case
of DFLEs and 8 years in case of AFLEs. The basis of promotion in the
case of AFLEs was seniority-cum-fitness, whereas, in the case of DFLEs
it was selection. The rules had also provided that if the post in the
quota of one stream remained unfilled due to the non-availability of
eligible candidates, the promotion would be affected from other streams.
After the re-classification of the post of DFLEs and AFLEs as Group A
posts and the amendment of recruitment rules regarding promotion to
the next higher post of Under Secretary (Language), the amendment of
the rules providing filling up of the post of Under Secretary (Language)
in the ratio of 60:40 was challenged in OA No.2452/2004 and OA
No.2415/2004, titled as „O.K.Sharma v. Union of India and Ors.‟. The
applicants in the said OA had sought quashing of ratio of 60:40
between the AFLEs and DFLEs for promotion to the post of Under
Secretary, on the ground that it was discriminatory and arbitrary. It
was also contended that unequal ratio for promotion would affect the
chances of the promotion of AFLEs. The Tribunal had repelled the
challenge to the ratio of AFLEs to DFLEs of 60:40 by order dated
19.4.2005, holding that the chances of promotion are not conditions of
service and therefore it would not be a right and also that no employee
has a right to promotion, but instead he has only a right to be
considered in accordance with the rules. Relying on „Dwarka Prasad
and Ors. v. Union of India and Ors.‟ (2003) 6 SCC 535, it was held that
the amendment to the rules making ratio for promotion from 50-50 to
60-40 between DFLEs and AFLEs could not be disallowed. The Tribunal
had held that merely because both the posts are in the same scale, it
does not imply that they must get the same or higher percentage of
promotional avenues and that the number of feeder cadre posts can
only be one of the factors, but not the tilting factors. The Tribunal in
the said OA in para 15 had held as under:-
"15. Identical is the position herein. We find nothing
arbitrary or discriminatory tainted with malice that the said
amendment should be disallowed. Merely because if both
are in the same scale, does not imply that they must get
same or higher percentage of promotional avenues. The
number of feeder cadre posts can only be one of the factors
but not a tilting factor. The respondents can take a
decision keeping in view their experience of the nature of
working of the persons and thereafter fill up the
promotional posts. It is, therefore, basically the
administrative department, which decides the said
controversy. We find, therefore, that element of bias is
totally absent. In fact, the posts of DFLEs are filled up by
direct recruitment and the posts of AFLEs are filled up by
promotion. Therefore, at this stage, there is no equality
amongst them. If the Department feels that they get higher
number of posts keeping in view the lower number in the
feeder cadre per se will not become discriminatory. The
said contention must be rejected."
14. The matter of appointment to the upgraded post was considered
by the Department of Personnel and Training in its Office Memorandum
dated 4th February, 1992. The said OM considered 4 situations
regarding appointments to upgraded post including where upgradation
of post involved only a higher replacement scale without any larger
responsibility/higher qualification or higher eligibility service. In respect
of these situations, the said OM stated that for such upgradation
involving only higher replacement without any additional responsibility/
higher qualification/ higher eligibility service, the suitability of the
incumbent is not to be reassessed and such incumbent may be
appointed to the post with the higher replacement scale w.e.f. from date
of notification by the Government giving effect to the recommendation of
similar body.
15. One of the AFLEs, Sh.Vinod Kumar Jain, filed an original
application bearing OA No. 1317/2005 before the Tribunal and claimed
that since the post had been upgraded from 1.1.1996, therefore, he has
a preferential right as per Recruitment Rules for promotion to the post
of Under Secretary (Language) as both the posts of AFLEs and DFLEs
are Group „A‟ post, having the same pay scale of Rs.8000-13500/-.
16. In the meantime, with the initiation of the Cadre Review exercise
in 2004-06, the Cadre Review Committee headed by the Cabinet
Secretary considered, among many other things, the issue of merger of
both the AFLEs and DFLEs, placed in the same pay scale of Rs. 8000-
13,500/- from a functional and organizational point of view and it was
decided that in the Language Cadre, only one entry grade of Interpreter
through direct recruitment was required to be kept and consequently it
was decided to dispense with direct recruitment in DFLE at Junior Time
Scale level. Moreover, both the posts of AFLE and DFLE were merged
together and re-designated as Senior Interpreter in the pay scale of Rs.
8000-13500/- by notification dated 13th March, 2008, with a provision
to fill up newly designated post of Senior Interpreter by 100% promotion
from the feeder grade of Interpreter (Group „B‟ non gazette post).
However, the said notification also provided that the reclassification of
the merged posts of AFLEs and DFLEs as Senior Interpreters would be
effected in such a manner that it does not have any adverse impact on
the career prospects of the existing direct recruits joining the grade of
DFLE‟s on or before the date of the notification, i.e. 13th march, 2008,
and that they would continue to maintain their distinct identity till their
promotion to the next higher grade of Under Secretary against their
quota. However, no changes were made to the Recruitment Rules for
filling up the post of Under Secretary (Language).
17. The original application being OA No.1317/2005, titled as „Vinod
Kumar Jain v. Union of India‟ was decided by order dated 26th May,
2008 directing the petitioners to reconsider the aspect of merger of
AFLEs and DFLEs and to pass an order accordingly. The Tribunal had
also taken into consideration the amendment to the rules made on 13th
March, 2008 by which the posts of AFLEs and DFLEs were reclassified
as Senior Interpreter. The Tribunal had opined that by protecting the
interest of the direct recruits in the post of DFLE, the petitioner had
discriminated against the AFLEs since even though the grade and pay
scale of AFLEs and DFLEs had become same, however, inspite of this
their distinct identity was maintained, which prejudiced the employees
in the post of AFLE.
18. The Tribunal was of the view that since the higher replacement
scale had been accorded to the AFLEs with effect from 1st January,
1996, the distinction between the AFLE and DFLE had been done away
with from the said date. The Tribunal further took note of the
Presidential order which classified posts in the pay scale of Rs. 8000-
13500/- to be Group „A‟ posts with effect from 20th April, 1998 which
was also given effect to by the DOP&T OM dated 12th June, 1998.
Therefore, according to the Tribunal, the order dated 13th September,
1999 reclassifying the post of AFLE as Group „A‟ from 13th September
1999 was contrary to the Presidential order as it should have been with
effect from 20th April, 1998.
19. The Tribunal further observed that a cadre having two different
posts with an identical pay scale could not be discriminated against by
treating them differently. The Tribunal also placed reliance on the
decision of a co-ordinate bench dated 19th April, 2007 in OA. No.
1923/2006 titled as „M. Srinivas Kumar & Anr. vs. Union of India &
Ors‟ holding that the instant matter dealt with a similar controversy in
the Cabinet Secretariat for the posts of ARO and RO and therefore it
would apply mutatis mutandis to the facts and circumstances of the
present case. The Tribunal also observed that undisputedly the
respondents had been appointed before the DFLE‟s to the service,
therefore, treating DFLEs as senior and maintaining a separate quota
especially in light of the amended rules on 13th March, 2008 and the
amalgamation of the two posts of DFLEs and AFLEs on reclassification
as Senior Interpreters, would occasion the treatment of equals as un-
equals and that such differential treatment is without basis as they are
holding identical posts. The relevant portion of the Tribunal‟s reasoning
is reproduced as under:
"29. It is trite that when cadre consists of two different
posts with having an identical pay scale, it would be
invidious discrimination to treat differently. For that
purpose in the exigency of service and keeping in view
appointment of both the cadres from the date of their
substantially holding the posts and scale, the seniority has
to be worked out.
30. Accordingly, a similar controversy when raised in
M.Srinivas Kumars case (supra) the decision to finalize the
merger and methodology to treat the combined seniority for
further consideration for promotion in all four covers the
present issue where the principle applied is mutatis
mutandis applicable to the facts and circumstances of the
present case.
31. From the perusal of the record, we have shocked to
see that despite a strong view taken by the DOP&T to merge
both the cadres and thereafter to lay down a combined
seniority for further progression, the aforesaid has not been
adhered to without any justification and reason.
32. Applicant undoubtedly was appointed before DFLEs
to the service. Accordingly, treating DFLE senior and
maintaining a separate quota cannot be sustained in law.
33. The merger now taken place with promulgation of the
amended rules on 13.3.2008 though the re-designated
posts of AFLE and DFLE on reclassification as Senior
Interpreter but an invidious discrimination has been made
by protecting the interest of the direct recruits DFLEs,
which shall maintain their distinct identity till their
promotion to the next grade of Under Secretary. It is trite
that when two cadres are amalgamated, there cannot be a
distinction in any of the parameters which would amount to
treating equals unequally. It appears that the direct
recruits have been favoured with without any basis, which
has ultimately prejudiced the right of DFLEs for further
career progression when they were in all functional
requirements are holding the identical post."
20. Pursuant to the directions of the Tribunal by order dated 26th
May, 2008, the petitioners reconsidered the aspect of merger of the two
posts in accordance with the rules/ instructions and recruitment rules
on the subject and passed a speaking order dated 2nd September, 2008
in light of the recruitment rules prevalent at the time of filing the OA in
the year 2005 and also in view of the fact that the merger of the two
posts being affected by notification dated 13th March, 2008 was to
apply prospectively and not retrospectively. However, dissatisfied by the
order dated 2nd September, 2008, the respondents filed a Contempt
Petition No. 357/2008 before the Tribunal. The Tribunal by order dated
19th November 2008 issued the following directions:
"5. It is pertinent to note that the aforesaid decision has
not been the subject matter of review before this Tribunal
and also no writ petition has been filed against the
decision. This implies that the direction issued by the
Tribunal attained finality.
6. Consideration in legal parlance is to take positively in
consonance with the direction and application of all the
relevant factors involved in the issue. Once the court has
directed a particular methodology to apply, no other
methodology could be used. Any observation which runs
counter to the Tribunal‟s order is not acceptable as while
doing so they act as an appellate authority over the findings
of the Tribunal. When there is a clear channel provided to
the Respondents for appealing against the Tribunal‟s order
before the Hon‟ble High Court of Delhi, they cannot now
approbate and reprobate simultaneously by not preferring
any appeal except by implementing the directions of the
Tribunal in its true letter and spirit. No doubt, on
reconsideration a different view may be taken by the
respondents, but a view, which has already been taken by
the Tribunal cannot be disagreed in any manner while
complying with the order. We could have asked for the
presence of the concerned authority, who passed the order,
who did not bestow any respect towards the judiciary, as in
the order passed by them. In the interest of justice as the
contempt cannot be used to settle the scores or to take any
counter action, but to uphold the majesty of law, we afford
the Respondents another opportunity to pass a fresh order
keeping in view the observation made by us in the body of
the order passed in OA within four weeks from the date of
receipt of a copy of this order failing which serious view of
the matter shall be taken. For the present we dispose of
the CP and discharge notices issued to the Respondents
with liberty to the applicant to revive CP at appropriate
time, if so advised."
21. This order of the Tribunal dated 19th November, 2008 was
challenged by petitioners in WP(C) No. 7680/2009. This writ petition
was disposed of by order dated 21st July, 2009. Respondent no. 1 did
not press the contempt petition before the Tribunal, however liberty was
given to the respondent to challenge the order dated 2nd September,
2008. Thus, respondent no.1 filed O.A. No 3097/2009 before the
Tribunal seeking the quashing of order dated 2nd September, 2008 as
well as the footnote of the Notification dated 13th March, 2008, on the
ground that it is in complete violation of the directions of the order
dated 26th May, 2008 passed by the Tribunal in O.A. No. 1317/2005.
Respondent no. 1 also sought that the merger of AFLE and DFLE be
given effect to from 1st January, 1996 and consequently to prepare the
combined seniority list in lieu of the merger and to further quash the
Recruitment Rules amended in 2001 establishing the ratio of 60:40 for
promotion to the post of Under Secretary. Respondent no.1 challenged
the order dated 2nd September,2008 on the grounds that he had joined
the post of AFLE in the year 1991, 8 years prior to the recruitment of
the DFLEs; that the AFLEs should be given the seniority with effect
from 1st January, 1996, the date upgraded pay scale was effected in
terms of the judgment of the Supreme Court in the matter of S.K. Kaul
and Ors. v. UOI, AIR 1989 SC 1688; that the order dated 13th March,
2008 is not actually a merger of AFLE and DFLE but is instead an
illegal protection granted to the DFLE by arbitrarily maintaining the
quota of 60:40 ratio and is a ploy to promote DFLEs as against the
AFLEs for the post of Under Secretary; that the AFLEs and DFLEs only
differ on account of qualifications, while the nature of work, duties and
responsibilities, the pay scale as well as the residency period are the
same and they also both have been given the Group A status; that
DOP&T circular dated 4th February, 1992 which advices merger in case
of upgraded scales also supports the claim of respondent no.1 and that
the concept of promoting junior DFLEs as against their seniors in AFLE
is illegal.
22. The petitioners contested the claims of respondent no.1
contending, inter alia, that the posts of AFLE and DFLE are two
different, distinct and independent posts governed by separate
recruitment rules. While DFLE post is a direct recruitment post, the
AFLE post is a promotional post. Merely because both posts are the
feeder posts for the promotional post of Under Secretary does not mean
that the respondents can seek parity between the two posts. The
method of recruitment and educational qualifications for both the posts
is entirely different. While for recruitment to the post of DFLE, the
requisite qualification is post graduate, on the other hand for promotion
to the post of AFLE there was no such prescribed minimum educational
qualification. Thus, it was contended that the respondents cannot seek
merger of two independent posts with retrospective effect. The
petitioners also contended that it is a settled position in law that a
policy decision taken by the Government cannot be made effective from
a retrospective date. It was also urged that the posts of DFLE and AFLE
are distinct therefore, the up-gradation of pay scale which was granted
to the AFLEs with effect from 1st January, 1996 does not entitle them
to the same rank as that of DFLEs. It was also pointed out that the
order dated 13th September, 1999 reclassifying the post of AFLEs as a
Group „A‟ post was a natural corollary to the upgradation of their pay
scale, however, it does not mean that AFLEs thereafter, became
identical to DFLEs. The petitioners also contended that the reliance
placed on the OM dated 4th February, 1992 is misplaced since the
present matter does not involve the question of upgradation of posts but
instead it is regarding the revision of the pay scale of an existing post
and therefore the interpretation given to the said OM is factually
incorrect. According to the petitioners, Serial no.1 in the circular of the
DOP&T dated 4th February, 1992 is applicable in the present facts and
circumstances. It was also submitted that the decision to maintain the
distinction of the two posts was primarily to meet the functional
requirements of the Organization and also to ensure that the service
conditions of the DFLEs be not made disadvantageous to them and
further to retain better talent at the cutting edge level of JTS. However,
in lieu of the Cadre Review of the Organization in the period of 2004-
2007, the posts of DFLEs were done away and a single promotional post
of Senior Interpreter was created. Consequently, it was made a 100%
promotional post from the rank of Interpreter with prospective effect.
23. The Tribunal while taking into consideration the pleas and
contentions of both the parties restricted itself to the issue of the order
dated 26th May, 2008 passed by the Tribunal and the order dated 2nd
September, 2008 passed by the petitioners and its validity thereof. By
placing reliance on the judgment of Bhikhu Bhai Vithlavhai Patal &
Ors. v. State of Gujarat & Anr. 2008(4) SCALE 278, the Tribunal
observed that a valid consideration in law pursuant to the directions
given by the Tribunal is to think over and facilitate an active application
of mind on all the relevant aspects of the matter. On perusing the
record, the Tribunal held that despite a strong view taken by the DOP&
T to merge the posts of AFLE and DFLE and to thereafter lay down a
combined seniority list for further progression, the same was not
adhered to without any justification or reason. The Tribunal, after
taking note of the order dated 2nd September, 2008, held that while
reconsidering the aspect of merger of AFLEs and DFLEs none of the
observations and conclusions arrived at by the Tribunal had been
considered in its right legal perspective by the petitioners. Thus the
order suffers from serious legal infirmity since in the opinion of the
Tribunal, the Joint Secretary, instead of reconsidering the matter,
rather assumed the role of the appellate authority over the Tribunal and
passed the order in total disregard of its order, without dealing with the
issues raised and adjudicated. Therefore, it was held to be not a valid
consideration in the eyes of law and consequently the Tribunal directed
that the matter be again remanded back to the petitioners with a
specific direction to reconsider the aspect of merger of the AFLEs and
DFLEs and grant seniority on the merger of both the categories strictly
in accordance with the observations of the Tribunal made in OA No.
1317/2005 and pass a speaking order. The relevant portion of the
Tribunal‟s reasoning is as follows:
"9. We are of the considered view that while reconsidering
the aspect of merger of AFLES and DFLEs, none of the
observations and conclusions arrived at by the Tribunal
have been considered in its right legal perspective by the
respondents. When reconsideration is done on whims and
fancies not adhering to the dicta of the Tribunal, the order
suffers from a serious legal infirmity. It appears that the
Joint Secretary (Pers.) instead of reconsidering the matter
as apt in law rather assumed the role of the appellate
authority over the Tribunal and passed the order in total
disregard of the Tribunal‟s order, without dealing with the
issues raised and adjudicated, which is no valid
consideration in the eyes of law. No doubt, the contempt
was withdrawn by the applicants but the contentions taken
therein have been ordered by the High Court of Delhi to be
raised in the petition and as the legality of the order dated
02.09.2008 has been challenged before us, only on this
issue we have no hesitation to hold that the order cannot
be sustained in law.
10. Resultantly, leaving open the merit of the case, we
partly allow these O.As quashing the impugned order dated
02.09.2008. We remand the case back to the respondents
with a specific direction to meticulously reconsider the
aspect of the merger of AFLEs and DFLEs and grant of
seniority on merger of both the categories of DFLs and
AFLEs, strictly in accordance with the observations made
by the Tribunal in O.A 1317/2005 and pass a speaking
order within two months from the date of receipt of a copy
of the order. We also make it clear that till a fresh order is
passed, promotion to the post of Deputy Secretary shall
remain on hold. No costs."
24. It is against this order of the Tribunal that the petitioners have
preferred to approach this Court and has invoked its writ jurisdiction.
The petitioners have contended, inter alia, that the amended
Recruitment Rules of 2001 had not put the respondents/AFLEs in a
disadvantageous position. Prior to 2001, the quota for AFLE in the
matter of promotion was only 50% which in terms of the amended rules
was increased to 60%. It was also contended that the posts of DFLE and
AFLE could not be treated at par for various reasons. The post of DFLE
was filled up by 100% direct recruitment while the post of AFLE was
filled up by 100% promotion. The educational qualification for both the
posts were different. Mere change in the classification of the post of
AFLE as a Group „A‟ post and revision of pay scale could not be a
ground to treat both of them at par. It is also contended that the
Tribunal erred in concluding that a merger of the two posts had been
effected, while in fact a new post of Senior Interpreter has been created
and the rights of DFLEs already appointed have been safeguarded. As
per the learned counsel for the petitioners, there has been no
amalgamation of the posts as observed by the Tribunal. The learned
counsel for petitioners further challenged the impugned order on the
grounds of delay by contending that while the Recruitment Rules had
been amended in the year 2001, it was interfered with by the Tribunal
only after the OAs were filed by the respondents in the year 2005.
25. Learned Additional Solicitor General, Mr. A. S. Chandioke, also
contended that the respondents had filed a contempt petition against
the order dated 2nd September, 2008 passed by the petitioners, being
numbered as 357/2008 before the Central Administrative Tribunal,
claiming that the order was not in accordance with the order of the
Tribunal dated 26th May, 2008, which was disposed of by order dated
19th November, 2008, the relevant portion of which has been
reproduced hereinabove. This order dated 19th November, 2008 was
thereafter challenged by the petitioners in W.P.(C) No. 7680/2009.
Since the respondents had withdrawn the contempt petition, the said
writ petition was disposed of by stating that the order passed by the
petitioners dated 2nd September, 2008 was in compliance of the
directions of the Tribunal in order dated 26th May, 2008. Thus the
challenge to the contempt petition was rendered infructuous.
Thereafter, a second O.A. was filed against the order dated 2nd
September, 2008 which was disposed of by the impugned order dated
7th July, 2010 by which the Tribunal partly allowed the O.As. and
directed the petitioners to reconsider the aspect of merger within two
months. The learned counsel contended that once the issue had been
dealt with in the first round and it had also been held by the High Court
that the petitioners had complied with the order dated 26th May, 2008,
then the Tribunal could not sit over the High Court judgment. He also
submitted that since the respondents had already withdrawn the
contempt petition filed by them and it had also been held by this Court
that the order of the Tribunal dated 26th May, 2008 had been complied
with by the petitioners then their order dated 2.9.2008 could not be
challenged again. Therefore, according o the learned counsel for the
petitioners the impugned order of the Tribunal cannot be sustained
even on this ground.
26. The respondents have reiterated their stand taken before the
Tribunal and contended that the differential treatment of the AFLEs and
the DFLEs is without any rationale and is in clear violation of the
fundamental rights enshrined in the Indian Constitution and that the
Tribunal has rightly directed the petitioners to reconsider the aspect of
merger of the AFLEs and the DFLEs in accordance with law. Therefore,
according to the respondents, the impugned order does not suffer from
any illegality, infirmity or any such perversity. The respondents have
also heavily relied upon the order dated 13th September 1999 as well
DOP&T OM dated 4th February, 1992 in order to contend that the
AFLE and the DFLE posts were merged and that consequently a
common seniority list ought to have been prepared by the petitioners.
27. This Court has heard the learned counsel for the parties in detail
and has perused the entire record placed before the Tribunal. It is not
disputed that the two posts that were the feeder grades for the
promotional post of Under Secretary prior to the Amendment of the
Recruitment Rules in the year 2008 dated 13th March, 2008 were the
posts of Assistant Foreign Language Examiner (AFLE) and Deputy
Foreign Language Examiner (DFLE).
28. To become an AFLE, one had to be promoted from the post of
Interpreter while the DFLEs were recruited directly. Initially, the ratio
between both the posts, for the purpose of promotion to the post of
Under Secretary, was 1:1, i.e. 50% were promoted from the AFLEs and
50% were promoted from the DFLEs. In 2001, the rules had been
amended and the said ratio was changed to 3:2, i.e. 60% were to be
promoted from the AFLEs and 40% were to be promoted from the
DFLEs.
29. The controversy in the present matter arose when the posts of
AFLEs and DFLEs were reclassified as Senior Interpreters pursuant to
the amendment of the recruitment rules in the year 2008, by which the
petitioners ensured that the re-designation of the AFLE and DFLE posts
would apply prospectively and ensured that it would not have any
adverse effect on the career prospects of the direct recruits, i.e. the
DFLEs, and incorporated in the order of amendment dated 13.3.2008
that the merger in the grades of Assistant Foreign Language Examiner
and Deputy Foreign Language Examiner and their re-designation as
Senior Interpreter will be effected in such a manner that it does not
have any adverse impact on career prospects of the existing direct
recruits in the grade i.e DFLEs who will continue to maintain their
distinct identity till their promotion to the next higher grade of Under
Secretary against their quota.
30. The Senior Interpreters are to be appointed by 100% promotion
from the feeder grade of Interpreters. However, the respondents
challenged the said distinction between the AFLEs and DFLEs on the
ground that the said distinction had been done away with in the year
1999 itself pursuant to order dated 13th September 1999 by which the
AFLEs were re-classified as Group „A‟ being same as the DFLEs, which
in turn was passed in view of the order dated 25th January, 1999 by
which the higher pay scales of Rs. 8000-275-13500/- was given to the
AFLEs with effect from 1st January 1996 pursuant to the
recommendations of the 5th Central Pay Commission. Thus, according
to the respondents, since both the posts of AFLE and DFLE are group
„A‟ posts, having the same pay scale and the same duties and
responsibilities, they are identical in nature and the distinction between
the two maintained by the petitioners by their order dated 2nd
September, 2008 is not only in complete violation of the observations of
the Tribunal made in the order dated 26th May, 2008 but is also in
violations of the fundamental rights enshrined in the Indian
Constitution.
31. The petitioners, however, have contended that the AFLE and
DFLE posts were certainly not identical since while the former was a
promotional post, the latter was by direct recruitment. The educational
qualifications for the post of DFLE are higher than the educational
qualifications for the post of AFLE.
32. At this stage, it is appropriate to consider whether, the two posts
of AFLE and DFLE were identical or not, so as to ascertain whether the
distinction maintained between the two will be permissible as saved in
the amended recruitment rules of 2008 and pursuant thereto the order
passed by the petitioners dated 2nd September, 2008. Prior to the
recommendations of the 5th Central Pay Commission the difference in
the posts of DFLE and AFLE was evident in terms of the mode of
recruitment, the pay scales, the requirements for promotion to the next
higher posts of Under Secretary as well as the educational qualifications
required for the two posts. Pursuant to the recommendations of the 5th
Central Pay Commission, the pay scale for the post of AFLE was
brought at par with the post of DFLE. The higher pay scale of Rs 8000-
13500 was granted to the AFLEs by the OM dated 25th January, 1999
with effect from 1st January, 1996 and the arrears due to them were
also given. Thus, the pay scales of AFLE and DFLE became same.
33. By DOP&T order dated 20th April, 1998 it was directed that all the
posts should be classified strictly in accordance with the norms
prescribed under the notification from the date of the notification. The
said notification prescribed that a central civil post carrying a pay or a
scale of pay with a maximum of not less than Rs. 13,500 would be
classified as Group „A‟. Consequently, the posts of AFLE having the
higher pay scale of Rs 8000-13500 was re-classified as a group „A‟ post.
This was effected by the order dated 13th September 1999. Thus AFLE
was re-classified as a Group „A‟ post, however, for promotion to the post
of Under Secretary, their separate identities were retained and there
was any change in their educational qualification for appointment and
mode of appointment.
34. The DOP&T order dated 20th April, 1998 and the order dated 13th
September 1999, both did not prescribe and contemplate any merger
nor did they stipulate any change in the qualifications or conditions of
service with regard to duties and responsibilities attached to each of the
posts and the mode of entry. It was merely a re-classification on
account of the higher pay scales given to AFLE pursuant to the 5th
Central Pay Commission and re-grouping pursuant to DOP&T order
dated 20.4.1998.
35. Even the amendment made to the recruitment rules in the year
2001 maintained the distinction between DFLE and AFLE as the quota
for promotion was changed to 40:60 from 50:50. The said amendment
did not contemplate merger of two posts of DFLE and AFLE. However,
the residency period of both the posts was made 5 years for promotion
to the next post, as prior to 2001 the residency period for AFLEs was 8
years while the residency period for DFLEs was 5 years.
36. Another distinction which was retained in the two posts was
about the educational qualifications. Yet another relevant aspect is that
despite same pay scale and grouping of posts, no changes were
evidently made out in terms of the nature of the responsibilities and
duties of the said posts and they remained as they were earlier, when
AFLE was a Group `B' post.
37. The respondents in the two writ petitions and in their Original
Applications before the Tribunal had sought quashing of order dated
2.9.2008 passed by the petitioners pursuant to the order dated
26.5.2008 passed by the Tribunal in O.A No. 1317 of 2005 which was
filed by Sh. Vinod Kumar Jain. The respondents had also sought
quashing of footnote in the notification dated 13.3.2008 amending the
rules which also safeguarded the rights of DFLEs and for quashing the
ratio of AFLE & DFLE of 60:40 for promotion to the post of Under
Secretary. They had also sought that the merger be held to be from
1.1.1996 when the pay scale equivalent to the pay scale of DFLE was
granted to the AFLEs. The respondents also sought preparation of a
combined seniority list of AFLEs and DFLEs on the basis of their date
of appointment/promotion and to promote the respondents to the posts
of Under Secretary and Deputy Secretary on the basis of combined
seniority list and not to fill up the vacancies till the combined seniority
list is prepared.
38. This is not disputed and cannot be disputed that one of the AFLE,
Shri O.K.Sharma, had filed two Original application seeking the relief
that the ratio of promotion between AFLE and DFLE should have been
74: 26 and not 60:40 as per the amended rule dated 25.2.2001 and
that since he was working as AFLE since 1991, he had become eligible
for promotion to the next post of Under Secretary after completion of 8
years of service and five vacancies which had occurred prior to the
amendment of rules on 25.2.2001 should be filled according to rules
prevalent before that date. The said Original Applications were decided
by another Bench of the Tribunal by order dated 19th April, 2005
holding that the amendment fixing the ratio of promotion between
AFLEs and DFLEs as 60:40 is valid. In para 15 of the said order the
Tribunal had held as under:-
"15. Identical is the position herein. We find nothing
arbitrary or discriminatory tainted with malice that the said
amendment should be disallowed. Merely because if both
are in the same scale, does not imply that they must get
same or a higher percentage of promotional avenues. The
number of feeder cadre posts can only be one of the factors
but not a tilting factor. The respondents can take a decision
keeping in view the experience of the nature of working of
the persons and thereafter fill up the promotional posts. It
is, therefore, basically the administrative department,
which decides the said controversy. We find, therefore, that
element of bias is totally absent. In fact, the posts of DFLEs
are filled up by direct recruitment and the posts of AFLEs
are filled up by promotion. Therefore, at this stage, there is
no equity amongst them. If the department feels that they
get higher number of posts keeping in view the lower
number in the feeder cadre per se will not become
discriminatory. The said contentions must be rejected."
39. The Tribunal had thus repelled the contention that the ratio of
promotion for AFLEs should have been higher and consequently,
implicitly had also rejected the plea that the AFLEs and DFLEs were
similar and that there could not be different ratio for promotion to the
next post. Upholding the different ratio for promotion was indicative of
the fact that the two posts were different and the AFLEs could not be
compared with DFLEs for the purpose of promotion.
40. In O.A 1317 of 2005 decided by the Tribunal by order dated
26.5.2008, the respondent no.1 had prayed as under:
"it is therefore, respectfully prayed that the amended
Recruitment Rules for the post of Under Secretary in the
language cadre may be declared quashed as illegal.
The respondents may be directed to not fill up the vacant
post of under Secretary in the language Cadre as per the
existing RRS especially when the year wise vacancies have
not been identified separately and
Respondents may be directed to merge the posts of DFLE
and AFLE, they may further be directed to hasten the
process of merger.
Having decided to merge the AFLE and DFLE, the
respondent Department may further be directed to prepare
a combined seniority list of AFLE and DFLE on the basis of
their date of promotion/appointment and to make
promotion in accordance with this combined seniority list.
Any other relief which this Hon'ble Court deems fit and
proper may also be granted to the applicant."
41. The application of the respondent no.1 was decided by order
dated 26.5.2008 with directions to petitioners to reconsider the aspect
of merger of AFLE and DFLE strictly in accordance with law and the
petitioners were directed to hold the promotion to the post of Under
Secretary. The Tribunal surprisingly did not consider the decision of
coordinate bench in the case of O.K.Sharma (supra) appropriately
holding that the amendment fixing the ratio of promotion between
AFLEs and DFLEs as 60:40 to be valid. In O.K.Sharma (supra) the
distinction between AFLE and DFLE had been upheld but in Vinod
Kumar (supra) by order dated 26.5.2008 it was held that the distinction
between the AFLE and DFLE has been done away with. If the Bench
which passed the order dated 26.5.2008 had to differ with the order
passed by another co-ordinate Bench dated 19.4.2005, the bench
should have referred the matter to a larger bench. In any case, if the
said bench had given a firm and binding finding regarding merger of the
two posts since 1.1.1996, then the matter should not have been
remanded to the petitioners to reconsider the aspect of merger of AFLE
and DFLE strictly in accordance with law. If the Tribunal had reached
the conclusions that the two posts stood merged for whatsoever
reasons, in that case, the Tribunal should have given directions to the
petitioners to carry out the consequential effects of alleged merger. The
Tribunal could not have passed an order directing the petitioners to
pass an order in accordance with law about the merger of posts of DFLE
and AFLE from a particular date as it was for the Tribunal to pass an
unambiguous order.
42. The petitioners, therefore, reconsidered the matter about the
merger of AFLE and DFLE in accordance with law, as was directed by
the Tribunal and passed the order dated 2nd September, 2008. The
petitioners had held as under:-
"13. As already discussed in foregoing paragraphs, the mere
fact of granting a higher pay scale or a mere fact of being
granted a higher classified status i.e Group A, in this case,
would not, ipso facto, have the effect of amending the
statutory recruitment rules. The statutory recruitment
rules, in 2005, clearly distinguished between these two
separate streams of AFLFEs and DFLEs, having different
qualification and having different modes of entry. Though,
due to operationalisation of the recommendation of the fifth
pay commission, both AFLEs and DFLEs happened to be
placed in the same scale of Rs. 8000-13500 as well as they
happen to be placed in the same Group `A'. However, the
statutory recruitment rules, do not, at all mentioned either
the pay scale or Group `A' status of feeder streams of the
post of US (Language). This point becomes all the more
clear, when we find that even when these recruitment rules
were amended in 2001, the distinctiveness of these two
streams were kept intact. It cannot be a case that just
because a notification has been issued granting a higher
pay scale to promotee stream AFLEs, the distinctiveness of
these two separate feeder streams should get obliterated, so
as to treat all AFLEs as DFLEs.
14. The CAT has desired that we should reconsider the
aspect of merger of AFLEs and DFLEs and its
consequences. It is clear that as per the law, in vogue, in
2005, there was no merger of AFLE and DFLE, except the
fact that these two streams happen to be granted the same
classified status and same pay scales. Hence, in the year
2005, no merger has taken place.
In fact, the merger has only taken place w.e.f
13.3.2008 with the introduction of the posts of Senior
Interpreter in the pay scale of Rs.8000-13500. Due
safeguards, while effecting merger, have been kept to
protect the promotional prospects of both the streams, as
per their promotional entitlements, as available to them in
pre-13.3.2008 Statutory Rules.
15. The CAT has made a observation „It is trite that when
two cadres are amalgamated there cannot be a distinction
in any of the parameters which would amount to treating
equals unequally. It appears that the direct recruits have
been favoured with without any basis, which has ultimately
prejudiced the right of DFLE (sic) for further career
progression when they were in all functional requirements
are holding the identical post."
In this connection it is observed that the post of
AFLEs and DFLEs are not completely identical posts. As
already discussed in the foregoing paragraphs, the post of
AFLEs are filled up by the promotee officers with no
minimum qualification laid down whereas the post of
DFLEs have a minimum qualification of post-graduation.
Though, due to operationalisation of fifth pay commission
on the condition, they happen to be placed in the same
scale and were given same classified status of Group `A‟.
The CAT has taken a view that both these two carders have
been amalgamated. In our view, no amalgamation has
taken place. The revised recruitment rules keep their
distinct identity for their upward promotion. In any case,
this issue was not before the CAT for adjudication in the
OA, because the revised statutory recruitment rules (2008)
could have not been challenged in the OA (filed in 2005)
As far as the question of treating equals unequally is
concerned, it is submitted that in the eyes of law both are
not equal in all respects, as already pointed out in the
aforesaid paras. The rights of directly recruited DFLEs have
been correctly protected in the order dated 13.3.2008
because it is settled law that conditions of service of a
particular set of employees cannot be changed to their
detriment, without any basis and without affording them
opportunity. These DFLEs, at the time of recruitment were
having a distinct quota of 50% (reduced to 40% later on) for
their promotion to the higher post of US (Language). The
classification between directly recruited DFLEs and the
promotee AFLEs on a reasonable basis with clear objective.
The objective is to ensure that employees with higher
qualification, and who have been inducted into Government
service after stringent selection, get better promotional
prospects."
43. Against the said order of the petitioners dated 2.9.2008, a
contempt petition was filed which was, however, dismissed by the
Tribunal by order dated 19.11.2008 directing the petitioners to pass
another fresh order. This order of the Tribunal was challenged by the
petitioners in W.P (C) 7680 of 2009 titled as Union of India & ors. Vs
Vinod Kumar Jain which writ petition was decided by order dated
21.7.2009. While passing the said order this Court had held that while
passing the order dated 2.8.2008, the petitioners had complied with the
order dated 26.5.2008 of the Tribunal. Consequently, it was held that
the challenge to the order dated 2.9.2008 has been rendered
infructuous. However, the liberty was granted to the respondents to
challenge the said order before the Tribunal. This order was not
challenged by the respondents.
44. The Tribunal decided the petitions by order dated 7th July, 2010.
While dealing with the petitions filed pursuant to the liberty granted by
the High Court, the Tribunal has held in para 8 of the order dated 7th
July, 2010 that when the judicial fora directs consideration, more
particularly making observations in the backdrop, these considerations,
observations and conclusions arrived at are not to be treated otiose or
non-existent. According to the Tribunal, it had ruled and observed in
the order dated 26 May, 2008 that there has been a merger of both
categories of AFLEs and DFLEs. Reliance has also been placed on the
view taken by the DOP&T to merge both the cadres. According to the
Tribunal, when cadre consists of two different posts having an identical
pay scale, to treat them differently is violative of Article 14 of the
Constitution of India. The Tribunal has further held that after a
categorical finding as to amalgamation of cadre by the amended rules of
2008, distinguishing between the direct recruits (DFLE) and promotes
(AFLE) amounted to treating equals unequally. In paras 9 and 10 of the
impugned order which are reproduced hereinabove, though the
Tribunal has held that the order of the petitioners suffers from a serious
legal infirmity, yet has not elaborated or spelled the legal infirmity
cogently.
45. Apparently the Tribunal has misapplied the settled law by the
Courts in respect of merger. The learned counsel for the respondents
have not been able to explain satisfactorily as to how the cadres will be
merged on the ground that the two posts have similar pay scales. In
AIR 1963 SC 913, The State of Punjab Vs Joginder Singh relied on by
the petitioners, the District Board and Municipal Board teachers were
taken over by the Punjab Government and were given scales of pay as
were applicable to teachers in Government employment. However,
service rules differentiated them in the matter of promotion. The
Supreme Court had held that the State can constitute two services
consisting of employees doing the same work but with different scales of
pay or subject to different conditions of service and constitution of such
service is not violative of Article 14 of the Constitution of India. The plea
that Article 14 of the Constitution of India requires that equal work
must receive equal pay or that if there is equality in pay and work, there
have to be equal conditions of service, was held to be untenable.
46. The plea of merger has been dealt with by the Courts in
numerous judgments, some of which are as under. In State of
Maharashtra and Anr. v. Chandrakant Anant Kulkarni & Ors.
MANU/SC/0446/1981 while considering the question of integration
of government servants allotted to the services of the new States when
the different States of India were re-organised, the Supreme Court
cited with approval the principles which had been formulated for
effecting integration of services of different States. These principles
are: In the matter of equation of posts, (1) where there were regularly
constituted similar cadres in the different integrating units, the
cadres will ordinarily be integrated on that basis but (2) where there
were no such similar cadres, the following factors were taken into
consideration in determining the equation of posts:-
(a) Nature and duties of a post;
(b) Powers exercised by the officers holding a post the
extent of territorial or other charge held or responsibilities
discharged;
(c) The minimum qualifications, if any, prescribed for
recruitment to the post and;
(d) The salary of the post.
The Apex Court further observed that it is not open to the Court
to consider whether the equation of posts made by the Central
Government is right or wrong. This was a matter exclusively within
the province of the Central Government. Perhaps the only question
the Court can enquire into is whether the four principles cited above
had been properly taken into account. This is the narrow and limited
field within which the supervisory jurisdiction of the Court can
operate. The Apex Court subsequently relied on this ratio in its
subsequent judgment in the case of Union of India & ors. Vs.
S.L.Dutta & anr. MANU/SC/0087/1991 also.
47. Since the AFLE and DFLE posts in the present matter are clearly
not equatable posts except in salary and the Group, till by amendment
in 2008 another equivalent posts of Senior Interpreter was created
prospectively and the rights of DFLEs had been protected, therefore,
their merger could not have been effected retrospectively merely on the
basis of opinion expressed by the Tribunal without cogent reasons
consonant with acceptable legal grounds. Instead the contention of the
petitioners does seem rational that they had done away with the DFLE
post itself and re-designated the posts of AFLE as Senior Interpreter,
which is why the interests of already existing DFLEs were protected and
the amendment of 2008 was made applicable prospectively. The
petitioners have acted in a bonafide manner. The Tribunal also failed to
appreciate that the Courts do not have the power to direct a merger. In
Assn. for the Officers of the W.B. Audit and Accounts Service v. W.B.
Audit and Accounts Service Assn., 1995 Supp (4) SCC 44, at page 46 the
Supreme Court had held as under :
1. The Audit and Accounts Department of the State of West
Bengal consists of three services, namely, the West Bengal
Higher Audit and Accounts Service (Higher Service), the
West Bengal Audit and Accounts Service (State Service) and
the West Bengal Junior Audit and Accounts Service (Junior
Service). The members of the Junior Service sought a
mandamus form the Calcutta High Court to the effect that
the Junior Service and the State Service be merged and
reconstituted as single service. A learned Single Judge of
the High Court allowed the writ petition and directed the
merger of the two services with effect from 27-3-1971. The
learned Judge further directed that after the unification of
the two services, the seniority of the unified cadre be fixed
with effect from 27-3-1971. Two appeals, one by the State
of West Bengal and the other by the Association of the
officers were filed against the judgment of the learned
Single Judge. A Division Bench of the High Court dismissed
both the appeals and upheld the judgment of the learned
Single Judge. These appeals by way of special leave are
against the judgments of the High Court.
3. During the pendency of the appeal the Division Bench
directed the State of West Bengal to file an affidavit
clarifying its position. Secretary to Government, Finance
Department, filed an affidavit dated 7-11-1990 wherein he
stated that the State Government had fully examined the
question of merger of the two services and had taken a
conscious decision to the effect that such merger was not in
the interest of the administration. We have been taken
through the affidavit wherein elaborate reasons have been
given for rejecting the demand for merger of the two
services. It is not open to the High Court to go into the
merits of the reasoning of the State Government. After going
through the reasons given in the affidavit we are of the view
that each one of the reasons given therein is cogent and the
High Court was wholly unjustified in not taking the same
into consideration. The Division Bench became wholly
oblivious of the affidavit filed by the Finance Secretary and
did not even notice the same in its judgment.
5. This Court has repeatedly held that merger of more
than one cadre or division of one cadre into two or
more cadres is an executive act and is entirely within
the administrative sphere of the State Government.
This Court in Reserve Bank of India v. N.C. Paliwal held as
under: (SCR Headnote p. 379)
"The integration of different cadres into one cadre
cannot be said to involve any violation of the equality
clause. It is entirely a matter for the State to decide
whether to have several different cadres or one
integrated cadre in its services. That is a matter of
policy which does not attract the applicability of
the equality clause. The integration of non-clerical
with clerical service sought to be effectuated by the
Combined Seniority Scheme cannot, in the
circumstances, be assailed as violative of the principle
of quality."
In Inder Singh v. Vyas Muni Mishra, the Supreme Court
Court had again observed as under: (SCR Headnote p. 973)
"The High Court exceeded its jurisdiction in
directing the merger of the posts of Ganna Gram
Sewaks and Cane Supervisors.
The merger or bifurcation of a cadre is an executive
act. It is for the State to consider whether two groups
of persons working under two distinct posts perform
the same kind of duties or not, and whether in
implementing the Directive Principles, as contained in
Article 39(d) of the Constitution, it is necessary to
merge the two posts into one cadre post."
48. In Union of India v. Arun Jyoti Kundu, (2007) 7 SCC 472, at page
481 the Supreme Court had again held that Central Administrative
Tribunal or the High Court could not direct the merger of any cadre as
it is a policy decision for the Government to take. So long as it is not
done, it is not open to the Tribunal or the Court to issue directions in
this regard. In the instant case, the Typists working in the Railways
claimed merger of their cadre with the cadre of clerks consequent to
grant of higher pay scale, which was denied by the Apex Court. The
Supreme Court had held as under:
"20. When a concession was being extended as distinct
from implementing a specific recommendation of the Pay
Commission with reference to a particular point of time, it
is open to the Government to provide that the benefit it
proposes to give, would be available only from a notified
date. As this Court has observed, neither the Central
Administrative Tribunal nor the High Court, can direct the
merger of any cadre. That is a policy decision for the
Government to take. So long as it is not done, it is not open
to the Tribunal or the Court to issue directions in that
regard and to follow it up with what are thought to be
consequential directions.
21. We may in this context notice that the Central
Administrative Tribunal, Principal Bench, Delhi dealing
with a similar claim took up the position on the basis of
decisions of this Court, that the Tribunal would have no
jurisdiction to issue the directions sought for by the
employees. It is submitted that the correctness of the said
decision has been questioned in the High Court at Delhi.
Therefore, it is not necessary for us to make any
observation regarding that decision. But we note that, that
Tribunal declined jurisdiction in similar circumstances."
49. The petitioners had maintained the distinction between AFLEs
and DFLEs till 2008 when the said posts were re-designated as senior
interpreters prospectively. While doing so, the petitioners ensured that
it would not have any adverse effect on the career prospects of the
direct recruits, i.e the DFLEs. It was categorically incorporated in the
order of amendment dated 13th March, 2008 that the merger in the
grades of Assistant Foreign Language Examiner and Deputy Foreign
Language Examiner and their re-designation as Senior Interpreter will
be effected in such a manner that it does not have any adverse impact
on career prospects of the existing direct recruits in the grade i.e DFLEs
who will continue to maintain their distinct identity till their promotion
to the next higher grade of Under Secretary against their quota. The
learned counsel for the respondents have not been able to satisfy this
court to strike down the footnote of the said amendment safeguarding
the career prospects of DFLEs. The amendment in the rules in 2008
which was prospective in nature cannot be made retrospective effective
from 1st January, 1996 when the similar pay was recommended by the
fifth pay commission and later on when the post was also re-designated
as Group `A‟ posts. It will be pertinent to notice that the other
differences in the educational qualification, without having larger
responsibilities and different ratio for promotion had persisted till the
amendment was made in 2008. Retrospectivity is an exception and the
rules framed operate prospectively. Even where the rules are framed
and applied retrospectively, it cannot discriminate or violate the vested
rights of the persons. With this objective the footnote was incorporated
in the amendment dated 13th March, 2008 so as to safeguard the vested
rights of DFLEs. The observation of the tribunal that safeguarding the
vested rights of DFLEs had resulted in discrimination is factually not
sustainable nor it is legally sustainable nor the learned counsel for the
respondents have been able to make out any legally acceptable ground
to strike down the said footnote. In K. Narayanan v. State of Karnataka,
1994 Supp (1) SCC 44, at page 55 the Supreme Court had considered
the retrospectivity as an exception in the following manner :_
7. Rules operate prospectively. Retrospectivity is an
exception. Even where the statute permits framing of rule
with retrospective effect the exercise of power must not
operate discriminately or in violation of any constitutional
right so as to affect vested right. The rule-making authority
should not be permitted normally to act in the past. The
impugned rule made in 1985 permitting appointment by
transfer and making it operative from 1976 subject to
availability of vacancy in effect results in appointing a
Junior Engineer in 1986 with effect from 1976.
Retrospectivity of the rules is a camouflage for appointment
of Junior Engineers from a back date. In our opinion the
rule operates viciously against all those Assistant Engineers
who were appointed between 1976 to 1985. In Ex-Capt. K.C.
Arora v. State of Haryana10 and P.D. Aggarwal v. State of
U.P.11 it was held by this Court that the President or
Governor cannot make such retrospective rules under
Article 309 of the Constitution as contravene Articles 14, 16
or 311 and affect vested right of an employee. Even in B.S.
Yadav v. State of Haryana where the power to frame rules
retrospectively was upheld it was observed: (SCC p. 557,
para 76)
"Since the Governor exercises a legislative power under
the proviso to Article 309 of the Constitution, it is open
to him to give retrospective operation to the rules made
under that provision. But the date from which the
rules are made to operate must be shown to bear,
either from the face of the rules or by extrinsic
evidence, reasonable nexus with the provisions
contained in the rules, especially when the
retrospective effect extends over a long period as in
this case."
As seen earlier there is no nexus between framing a rule
permitting appointment by transfer and making it
retrospective with effect from 1976. Appointing a person to
a higher post in a different cadre in which he has never
worked is violative of constitutional guarantee of those who
are working in the cadre. It is against basic principle of
recruitment to any service. Even in Mohammad Shujat Ali1
where the Constitution Bench while reiterating that
distinction in qualification was valid criterion for
determining eligibility for promotion except where both held
the same post and perform same duty did not strike down
the rules as the differentiation in same class of persons was
not brought about for the first time but existed from before
and the two were treated as distinct and separate class. The
retrospective operation of the impugned rule attempts to
disturb a system which has been existing for more than
twenty years. And that too without any rationale. Absence
of nexus apart no rule can be made retrospectively to
operate unjustly and unfairly against other (sic). In our
opinion the retrospective operation of the rule with effect
from January 1, 1976 is discriminatory and violative of
Articles 14 and 16.
50. In (1996) 7 SCC 191, State of West Bengal Vs Subal Chandra Das
& ors, relied on by the respondents, post of Moharrir, constituting
feeder post for promotion to the post of LDC, was re-designated as LDC
and was granted the same pay scale as admissible to LDCs. In such
circumstances it was held that there emerged only one cadre and
therefore, the claim of directly recruited LDCs for a pay scale higher
than that of LDCs who were promoted, who were earlier holding a
lower-cost of Moharrir was held to be unjustified. The case relied on by
the respondents is apparently distinguishable. The pay scale of AFLE
and DFLE after the recommendation of fifth pay commission is the
same. The ratio of the said case in the facts and circumstances does not
advance and support the plea of the respondents.
51. It is no more res integra that the ratio of any decision must be
understood in the background of the facts of that case. What is of the
essence in a decision is its ratio and not every observation found
therein nor what logically follows from the various observations made in
it. It must be remembered that a decision is only an authority for what
it actually decides. It is well settled that a little difference in facts or
additional facts may make a lot of difference in the precedential value of
a decision. The ratio of one case cannot be mechanically applied to
another case without having regard to the fact situation and
circumstances in two cases. The Supreme Court in Bharat Petroleum
Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778)
had held that a decision cannot be relied on without considering the
factual situation. In the judgment the Supreme Court had observed:-
"Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the
fact situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too
taken out of their context. These observations must be
read in the context in which they appear to have been
stated. Judgments of Courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark into
lengthy discussions but the discussion is meant to explain
and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes; their
words are not to be interpreted as statutes."
52. The other precedent relied on by the respondents, AIR 1984 SC
1595, Sh. O.P.Singla & Anr. Vs Sh. Sadhu Ram & Ors. also does not
support the pleas and contentions of the respondents. It was held in
this case that whenever the rules provide for recruitment to a service
from different sources, there is no inherent infirmity in prescribing a
quota for appointment of persons from those sources and in working
out the rule of quota by rotating the vacancies as between them in a
stated proportion. It was further held that Rule (8) 2 of Delhi Higher
Judicial Service Rules, 1970 could not be held to be unconstitutional
merely because, it reserved one third of the vacancies in the service for
direct recruits and provided that the first available vacancy in the
service will be filled in by a direct recruit, the next two by promotes and
so on.
53. The learned counsel for the respondents also relied on the
decision of the Supreme Court in S.L. Kaul & Ors. v. Secretary to the
Govt. of India, Ministry of Information and Broadcasting, New Delhi and
Ors., AIR 1989 SC 1688. The precedent relied on by the respondents is
apparently distinguishable since it dealt with fixing inter se seniority on
merger. However, in case of AFLEs and DFLEs there had not been any
merger in 1.1.1996 or thereafter when the AFLEs were placed in Group
`A‟ post. The respondents cannot rely on the ratio of the said case to
contend that there would be merger if the pay scale and group of the
posts is the same though the education qualification for recruitment
have remained different and quota for further promotion persisted and
had even been upheld by the Tribunal in another case filed by one of
the AFLE.
54. The learned counsel for the respondents have also placed reliance
on Office Memorandum dated 4th February, 1992 to contend that the
posts of AFLEs merged with DFLEs when the post of AFLE was grouped
as Group `A‟ post on account of increase of their pay scale equivalent to
the pay scale of DFLE, though the other distinction between the two
had persisted till amendment on 13.3.2008. The office Memorandum
dated 4.2.1992 is as under:
" NO. 22011/10/84-Estt,(D)
Government of India
Ministry of Personnel, PG and Pensions
(Department of Personnel & Training)
New Delhi, the 4th February, 1992
OFFICE MEMORANDUM
Subject: Revision of pay scale/upgradation of the post -
date of regular appointment of the incumbents to the
upgraded post.
The undersigned is directed to say that in the event of
revision of pay scales or upgradation of posts, the question
as to what criteria should be adopted in assessing the
suitability of the incumbents of the post as well as the date
of appointment to the upgraded posts has been under
consideration in this department. In the matter of
appointments to the upgraded posts, the following for
situations can be expected: -
i. Upgradation of posts involve only a higher
replacement scale without any larger responsibilities/higher
qualification or a higher eligibility service;
ii. Upgradation involves only higher replacement scale
without any higher responsibility but the officers concerned
have to fulfill the higher eligibility service;
iii. The upgradation of the posts involve higher
responsibility or higher qualifications or higher eligibility
service; and
iv. Upgradation involves change in group but without
higher responsibility or higher qualification (or higher
eligibility service).
2. The following criteria may be adopted in assessing
the suitability of the incumbents of the post/deciding the
date of appointment to upgraded posts.
1. Where the upgradation involves only a higher
replacement scale without any additional
responsibility/higher qualification/higher eligibility
service, the suitability of the incumbents need not be
assessed and they may be appointed to the post with
the higher replacement scale with effect from the date
notified by the Government, giving effect to the
recommendations of the pay commission or similar
bodies etc.
2. Where the upgradation involves a higher
responsibilities or higher qualifications but with a
higher eligibility service, the incumbents assessed for
their suitability but it should be ensured that they
have completed the requisite qualifying service for
appointments to the upgraded post. In case they had
completed the qualifying service on or before the date
notified by the government, they may be appointed to
the upgraded post from that date. In the case of others
who fulfil the qualifying service on a later date, they
should be appointed to the upgraded post from the
date on which they complete the qualifying service.
This would be subject to the condition that irrespective
of the date of appointment, the original seniority of the
incumbent in the grade prior to upgradation will be
maintained for appointment to the upgraded post.
3. If the upgradation involves higher responsibility
or higher qualification and higher eligibility service,
the suitability of the incumbents has to be assessed
and if found suitable, they will be appointed to the
upgraded post prospectively i.e not earlier than the
date of UPSC‟s advice letter for if the assessment is
made by the departments themselves, the date of
assessment.
4. If the upgradation involves change in the
group, but there is no higher responsibility or a higher
qualification or (higher eligibility service) the suitability
of the incumbents has to be assessed and if found
suitable, they will be appointed to the upgraded post
notified by the Government.
3. These instructions may please be brought to the
notice of all concerned for guidance and compliance.
( Y.G.Parande)
Director"
55. There is no cogent reason to hold on the basis of the said Office
Memorandum that the posts of AFLE merged with DFLE when the
AFLEs were placed in `Group `A‟ on account of increase of their pay
scale though they were not given larger responsibilities or eligibility
service or higher qualification prescribed for them remain different from
DFLE. The said Office Memorandum only contemplates that the
suitability of such incumbents need not be assessed and they can be
appointed to the post with higher replacement scale with effect from the
date notified by the Government, giving effect to the recommendations
of the pay commission or similar bodies etc. On the basis of the said
office memorandum, therefore, it cannot be held that the post of AFLE
got merged with DFLE with effect from 1.1.1996 nor can the
respondents claim that there should be a combined seniority list on the
basis of respondents‟ appointment/promotion in the facts and
circumstances.
56. The respondents have also prayed for directions to the petitioners
for placing on record all original DOPT notes and recommendation
including notes dated 1.10.2002; 9.4.2002, 11.4.2002, 10.10.2002 and
1.7.2003 by an interim application on the ground that DOPT had given
directions to merge both the posts. This is not disputed that by the
amendment dated 13.3.2008 post of senior interpreter has been created
and merger of AFLE and DFLE was effected. Even if notes of DOPT or
any other material will show that the steps were initiated for merger
from earlier dates, the amendment cannot be held to be retrospective
from such dates on which recommendation for merger were made by
DOPT or the Department of the petitioners. There is no rule and
regulation that the amendment to rules would relate back to the date
when the proposal of amendment is initiated or recommended. The plea
of the respondents is not sustainable in the facts and circumstances
and in law and consequently the petitioners are not liable for directions
to produce the DOPT notes as has been demanded by the respondents
in CM No. 273/2011 in W.P (C) No. 8503/2011 and the said application
is liable to be dismissed.
57. This Court does not find any serious legal infirmity in the order
dated 2nd September, 2008 passed by the petitioners nor there is any
legally sustainable ground to quash the said order. Therefore, in the
facts and circumstances and for the foregoing reasons, the impugned
order dated 7th July, 2010 passed by the Central Administrative
Tribunal in O.A no. 3663 of 2009 titled as Prachi Nigam & Ors Vs
Union of India & Ors and in O.A No. 3907 of 2009 titled as Vinod
Kumar Jain Vs Union of India & Ors. is set aside and the original
applications of the respondents are dismissed and the above noted writ
petitions are allowed. The observation of the Tribunal that the two posts
of AFLE and DFLE were merged w.e.f 1.1.1996 is quashed and the
direction of the Tribunal to the petitioners to reconsider and decide
about the merger of posts of AFLEs and DFLEs and grant of seniority on
merger to both categories of DFLEs and AFLEs is consequently set
aside. Since these posts could not be merged retrospectively, in the
present facts and circumstances and for the foregoing reasons, there
cannot be a common seniority list of AFLEs and DFLEs nor the
respondents, AFLEs, are entitled for promotion to higher posts on the
basis of alleged combined seniority list of AFLEs and DFLEs. The
direction of the Tribunal to hold on the promotion to the higher posts
till reconsideration of merger of posts in view of observation made by
the Tribunal in the impugned orders is also set aside and the
petitioners shall be entitled to promote the concerned employees
according to rules. Status Quo order dated 21.12.2010 passed in CM
No. 21770 of 2010 is vacated and the application is dismissed. The
application of the respondents, being CM 273 OF 2011 in WP(C) 8503 of
2010, is also dismissed. With these directions the writ petitions are
allowed, however, parties are left to bear their own costs.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
April 18, 2012
„vk‟
