Delhi High Court
Raj Kumar Jha vs Union Of India & Ors. on 22 April, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: April 02, 2013
Judgment Pronounced on: April 22, 2013
+ W.P.(C) 2683/2012
RAJ KUMAR JHA .....Petitioner
Represented by: Ms.Jyoti Singh, Sr.Advocate
instructed by Mr.Sanjeev Chaswal,
Ms.Saahila Lamba,Ms.Tinu Bajwa
and Mr.Amandeep Joshi,
Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Represented by: Mr.Rajinder Nishal, Advocate with
Mr.Ashish Nischal, Advocates for
R-1 & R-2
Mr.Naresh Kaushik, Advocate
with Ms.Aditi Gupta and
Ms.Amita Kalkal Chaudhary,
Advocates for UPSC
AND
W.P.(C) 7710/2012
UNION OF INDIA & ANR. .....Petitioners
Represented by: Mr.R.V.Sinha and Mr.R.N.Singh,
Advocates
versus
RAJ KUMAR JHA & ORS. ..... Respondents
Represented by: Ms.Jyoti Singh, Sr.Advocate
instructed by Mr.Sanjeev Chaswal,
Ms.Saahila Lamba, Ms.Tinu Bajwa
and Mr.Amandeep Joshi,
Advocates for R-1
W.P.(C) Nos.2683/2012 & 7710/2012 Page 1 of 35
Mr.Naresh Kaushik, Advocate
with Ms.Aditi Gupta and
Ms.Amita Kalkal Chaudhary,
Advocates for UPSC
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The Indian Police Service (hereinafter referred to as the 'IPS') is
one of the many All India Civil Services. The pay band(s) and grade
pay(s) admissible to a member of the IPS are as follows:-
S. No. Name of Scale Eligibility Scale of Pay Grade
Criteria Pay Band Pay in `
1. Junior Scale Initial `15,600- PB-3 5400
Appointment 39,100
2(i) Senior Scale: (i) Completion of `15,600- PB-3 6600
Senior Time 4 years of 39,100
Scale Service
2(ii) Senior Scale: (ii) Completion of `15,600- PB-3 7600
Junior 9 years of 39,100
Administrative Service
Grade
2(iii) Senior Scale: (iii) Completion of `37,400- PB-4 8700
Selection Grade 13 years of 67,000
Service
3(i) Super Time Completion of `37,400- PB-4 8900
Scale: (i) Deputy 14 years of 67,000
Inspector Service
General of Police
3(ii) Super Time Completion of `37,400- PB-4 10000
Scale: (ii) 18 years of 67,000
Inspector Service
General of Police
4(i) Above Super - `67,000 - - -
Time Scale: (annual
HAG Scale increment
@ 3%) -
79,000
4(ii) Above Super - `75,500 - - -
Time Scale: (annual
HAG+ increment
@ 3%) -
80,000
4(iii) Above Super - `80,000 - -
Time Scale: (fixed)
Apex Scale
2. Appointment to the service is by direct recruitment as also
promotion/induction of substantive members of State Police Services
including the Delhi, Andaman and Nicobar Islands, Lakshwadeep,
Daman and Diu and Dadra and Nagar Haveli Police Service (hereinafter
referred to as the 'DANIPS'). Eligibility for appointment by promotion is
8 years of regular service in the post of Deputy Superintendent of Police
or any other equivalent post.
3. As is clear from its nomenclature, DANIPS is a law enforcement
police force in-charge of Delhi, Andaman and Nicobar Islands,
Lakshwadeep, Daman and Diu and Dadra and Nagar Haveli. There are
following 4 grades in DANIPS:-
S. Grades of the Eligibility Scale of Pay Grade
No. Service Criteria Pay Band Pay in `
1(a) Entry Grade Initial `9300- PB-2 4800
(Group B) Appointment 34800
1(b) Entry Grade Completion of `15,600- PB-3 5400
(Group B) 4 years of 39,100
Approved
Service
2. Selection Grade Completion of `15,600- PB-3 6600
(Group A) 8 years of 39,100
Approved
Service
3. Junior Completion of `15,600- PB-3 7600
Administrative 13 years of 39,100
Grade-II (Group Approved
A) Service
4. Junior Completion of `37,400- PB-4 8700
Administrative 18 years of 67,000
Grade-I (Group Approved
A) Service
4. In the two captioned writ petitions, we are concerned with the
promotion/induction of officers of DANIPS in IPS.
5. The promotion/induction of an officer of a State Police Service,
including DANIPS, in IPS is governed by 5 Rules viz.:-
(i) IPS (Recruitment) Rules, 1954;
(ii) IPS (Appointment by Promotion) Regulations, 1955;
(iii) IPS (Pay) Rules, 2007;
(iv) IPS (Regulation of Seniority) Rules, 1988; and
(v) IPS (Uniform) Rules, 1954.
6. The Indian Police Service (Appointment by Promotion)
Regulations, 1955 deal with the promotion of an officer of a State Police
Service including DANIPS to the IPS. Being relevant for our discussion,
Regulations 2, 5, 7 and 9 need to be noted. They read as under:-
"2. DEFINITIONS: -
(I) In these regulations, unless the context otherwise
requires:
(j) State Police Service means:
i) For the purpose of filling up the vacancies in the Indian
Police Service cadre of the Arunachal Pradesh-Goa-
Mizoram-Union Territories under rule 9 of the Recruitment
Rules, any of the following services namely:-
a) The Delhi and Andaman & Nicobar Islands Police
Service.
5. PREPARATION OF A LIST OF SUITBALE
OFFICERS:-
(1) Each Committee shall ordinarily meet every year and
prepare a list of such members of the State Police Service as
are held by them to be suitable for promotion to the Service.
The number of members of the State Police Service to be
included in the list shall be determined by the Central
Government in consultation with the State Government
concerned, and shall not exceed the number of substantive
vacancies as on the first day of January of the year in which
the meeting is held, in the posts available for them under
rule 9 of the Recruitment Rules.
(2) The Committee shall consider for inclusion to the said
list, the cases of members of the State Police Services in the
order of seniority in that service of a number which is equal
to three times the number referred in sub-regulation (1).
Provided also that the Committee shall not consider the case
of a member of the State Police Service unless on the first
day of the January of the year for which the Select List is
prepared he is substantive in the State Police Service and
has completed not less than eight years of continuous
service (whether officiating or substantive) in the post of
Deputy Superintendent of Police or in any other post or
posts declared equivalent thereto by the State Government.
X X X
7. SELECT LIST: -
(1) The Commission shall consider the list prepared by the
Committee along with:
a) the documents received from the State Government
under regulation 6;
b) the observations of the Central Government and unless
it considers any change necessary, approve the list.
(2) ......
(3) The list as finally approved by the Commission shall
form the Select List of the members of the State Police
Service.
(4) The Select List shall remain in force till the 31st day of
December of the year in which the meeting of the Selection
Committee was held with a view to prepare the list under
sub-regulation (1) of regulation 5 or up to 60 days from the
date of approval of the Select List by the Commission under
sub-regulation (1) or as the case may be finally approved
under sub-regulation (2) whichever is later. (Emphasis
Supplied)
X X X
9. APPOINTMENTS TO THE SERVICE FROM THE
SELECT LIST:
(1) Appointment of a member of the State Police Service,
who has expressed his willingness to be appointed to the
service shall be made by the Central Government in the
order in which the names of the members of the State Police
he was Service appear in the Select List for the time being in
force during the period the Select List remains in force."
7. The Indian Police Service (Regulation of Seniority) Rules, 1988
deal with the matter of fixation of seniority of the officers of the State
Police Service who have been promoted to the IPS. Being relevant, Rules
2 and 3 of the said Rules need to be noted. They read as under:-
"(2) Definitions
(h) „Promotee officer‟ means an officer appointed to the
service in accordance with the provisions of the Indian
Police Service (Appointment by Promotion) Regulations,
1955;
(i) „Recruitment Rules‟ means the Indian Police Service
(Recruitment) Rules, 1954;
(j) „Select List‟ means the Select List prepared in
accordance with the Indian Police Service (Appointment by
Promotion) Regulations, 1955;
(3) Assignment of year of allotment
(1) Every officer shall be assigned a year of allotment in
accordance with the provisions hereinafter contained in
these rules.
(2) ......
(3) The year of allotment of an officer appointed to the
service after the commencement of these rules shall be as
follows:
(i) the year of allotment of a direct recruit officer shall be
the year following the year in which the competitive
examination was held:
(ii) the year of allotment of a promotee officer shall be
determined with reference to the year for which the meeting
of the Committee to make selection, to prepare the Select
List on the basis of which he was appointed to the Service,
was held and with regard to the continuous service rendered
by him in the State Police Service not below the rank of a
Deputy Superintendent of Police or equivalent, upto the 31st
day of December of the year immediately before the year for
which the meeting of the Committee to make selection was
held to prepare the select list on the basis of which he was
appointed to the Service, in the following manner:-
(a) for the service rendered by him upto twenty one years,
he shall be given a weightage of one year for every
completed three years of service, subject to a minimum of
four years:
(b) He shall also be given a weightage of one year for
every completed two years of service beyond the period of
twenty one years, referred to in sub-clause (a), subject to a
maximum of three years.
Explanation: For the purpose of calculation of weightage
under this clause, fractions, if any, are to be ignored.
Provided that he shall not be assigned a year of allotment
earlier than the year of allotment assigned to an officer
senior to him in that select list or appointed to the service on
basis of an earlier select list."
8. Before proceeding further, let us see how Rule 3(3)(ii) of the IPS
(Regulation of Seniority) Rules, 1988, dealing with fixation of seniority
of the officers of the State Police Services who have been promoted to the
IPS, works itself out.
9. Let us take a hypothetical case. An officer 'A' of DANIPS who has
rendered 30 years service in DANIPS gets promoted to the IPS. As per
Rule 3(3)(ii)(a), 'A' shall get a weightage of 1 year for every completed 3
years of service for 21 years service rendered by him i.e. a weightage of 7
years (21÷3=7). Thereafter, for the remaining 9 years service, 'A' shall
get a weightage of 1 year for every completed 2 years service, subject to a
maximum of 3 years, in terms of Rule 3(3)(ii)(b) i.e. a weightage of 3
years (9÷2=4.5 years). (Be it noted here that 'A' would not get a
weightage of 4.5 years for the reason the maximum weightage an officer
can get for service beyond 21 years rendered by him in state police
service is 3, in view of the provisions of Rule 3(3)(ii)(b).) In all, 'A'
would get a weightage of 7+3=10 years. Thus, upon his induction in the
IPS, 'A' would be placed below such directly recruited officers in the IPS
who would have been promoted to Junior Administrative Grade in senior
scale of pay in the seniority list of the IPS, inasmuch as an officer of the
IPS becomes eligible for being promoted to Junior Administrative Grade
on completion of 9 years of service.
10. From the above illustration, it is clear that an officer of a State
Police Service who gets promoted to the IPS will at best get a weightage
of 10 years for the service rendered by him in the State Police Service and
will be placed below such directly recruited officers in the IPS who
would have been promoted to a post in the Senior Time Scale or Junior
Administrative Grade, depending upon the service rendered by him in the
State Police Service, in the seniority list of the IPS.
11. Prior to the year 2007, IPS (Pay) Rules, 2007 envisaged that the
pay of an officer of a State Police Service who gets promoted to the IPS
shall be initially fixed in the Senior Time Scale of `15,600-39,100 in PB-
III with Grade Pay of `6,600/-. Thus, prior to the year 2007, the salary of
the officers of the State Police Service who got promoted to the IPS was
fixed commensurate to their seniority in the IPS inasmuch as the pay of
such promoted officer was fixed in Senior Time Scale and they were
placed below such officers who had been promoted to the post drawing
Senior Time Scale or Junior Administrative Grade, depending upon the
service rendered by them in the State Police Service.
12. On December 31, 1997, September 27, 2008 and March 03, 2010
significant changes were made in the Indian Police Service (Recruitment)
Rules, 1954 and Indian Police Service (Pay) Rules, 2007.
13. It would be relevant to note the following portion of the (amended)
Rules 4 and 6 of the Indian Police Service (Recruitment) Rules, 1954:-
"4. Method of recruitment to the Service:
(1) Recruitment to the Service, after the commencement of
these rules, shall be by the following methods, namely:-
(a) by a competitive examination;
(b) by promotion of substantive members of a State Police
Service.
x x x
6. Appointment to the Service:
(1) All appointments to the Service after the commencement
of these rules shall be made by the Central Government and
no such appointment shall be made except after recruitment
by one of the methods specified in rule 4.
(2) The initial appointments of persons recruited to the
Service under clause (a) of sub-rule (1) of rule 4 shall be in
the junior scale of pay.
(3) The initial appointments of persons recruited to the
Service under clause (b) and (c) of sub-rule (1) of rule 4
shall be in the senior scale of pay."(Emphasis Supplied)
14. It would also be relevant to note the following portions of the
(amended) Rules 3, 5 and Schedule I appended to the Indian Police
Service (Pay) Rules, 2007:-
"Pay-Bands and grade Pays: -
(1) The pay bands and grade pays admissible to a
member of the Service and the dates from which the said
pay bands and grade pays shall be deemed to have come
into force, shall be as follows:-
A. Junior Scale-
Pay-Band - 3: `15600-39100 plus Grade Pay `5400;
B Senior Scale-
(i) Senior Time Scale- Pay-Band - 3; `15600-39100 plus
Grade Pay `6600;
(ii) Junior Administrative Grade-
Pay-Band - 3; `15600-39100 plus Grade Pay `7600;
(iii) Selection Grade-
Pay-Band - 4; `37400-67000; plus Grade Pay `8700.
C. Super Time Scale-
(i) Deputy Inspector General of Police-
Pay-Band - 4; `37400-67000; plus Grade Pay `8900;
(ii) Inspector General of Police-
Pay-Band - 4; `37400-67000; plus Grade Pay `10000;
D Above Super Time Scale-
(i) Additional Director General of Police-
HAG Scale `67000 (annual increment @3%)-79,000
(ii) HAG+: `75500- (annual increment @3%)-80000
Grade Pay: nil;
(iii) Apex Scale: `80000 or (fixed), Grade Pay: nil
(by upgradation of one existing post of Director General
of Police as head of police in each State cadre);
(with effect from the date of issue of notification of the
Indian Police Service (Pay) Amendment Rules, 2008);
Note 1: Appointment of a member of the Service to the
Senior Time Scale and above shall be regulated as per the
provisions in the Guidelines regarding promotion to
various grades in the Indian Police Service.
Provided that a member of the Service shall be eligible for
appointment to the Senior Time Scale on his completion of
four years of service, subject to the provisions of sub-rule
2 of rule 6A of the Indian Police Service (Recruitment)
Rules, 1954, to the Junior Administrative Grade on
completion of nine years of service, to the Selection Grade
on completion of thirteen years of service, to the Deputy
Inspector General Super Time Scale on completion of
fourteen years of service and to the Inspector General
Super Time Scale on completion eighteen years of service.
X X X
5. Fixation of initial pay -
(1) ......
(2) ......
(3) The initial pay of a State Police Service officer, on his
appointment to the Service or on appointment to a cadre
post in an officiating capacity in accordance with rule 9
of the Indian Police Service (Cadre) Rules, 1954, as the
case may be, or officers recruited as Dy. Superintendent
of Police in States and Assistant Commandant in Central
Para Military Forces appointed to the IPS through
Limited Competitive Examination shall be fixed as per the
principles laid down in the Schedule I. Further pay and
incremental benefits shall accrue to him under the other
relevant provisions.
SCHEDULE I
[See sub-rule (3) of rule 5]
Principles of pay fixation in cases falling under sub-rule
(3)o rule 5
In this Schedule, the term-
(I) "actual pay" means the pay to which a member of the
State Police Service is entitled by virtue of his substantive
position in the cadre of that Service or by virtue of his
having continuously worked in a temporary or officiating
capacity in a higher post for a period of three years or
more after following the prescribed procedure, provided
the State Government has not revised the scales of pay
applicable to the State Police Service after the 1 st day of
January 2006. If the pay scales have been revised
subsequent to the 1st of January, 2006, the dearness
allowance, dearness pay, interim or additional relief
sanctioned by the State Government after the 1st day of
January, 2006 and merged in the revised pay scales, shall
be excluded;
....
(1) Notwithstanding anything contained in the first proviso
to sub-rule (1) of rule 3, and the Notes thereunder, the
initial pay of a promoted officer or an officer appointed
by selection, as the case may be, shall be fixed in the pay
band 3 or pay band 4 by adding one increment equal to 3%
of the sum of the pay in the pay band and the grade pay
applicable which will be rounded off to the next multiple
of 10 and in addition, the grade pay of Senior Time Scale
or Junior Administrative Grade or Selection Grade,
corresponding to pay scale or grade pay in the State
Service, shall be granted."(Emphasis Supplied)
15. From the afore-noted provisions of the (amended) Indian Police
Service (Pay) Rules, 2007 it is evident that an officer of a State Police
Service who has been promoted to the IPS will be granted initial pay-
scale and grade pay in the senior scale of IPS corresponding to the pay-
scale and grade pay drawn by him in the State Police Service. Thus, after
the year 2007, the matter of fixation of initial pay of an officer of a State
Police Service who has been promoted to the IPS underwent a significant
change for prior to the year 2007 the initial pay of such an officer was
required to be fixed in the senior time scale.
16. At this stage it would also be apposite to note the following portion
of Rule 17 of the Indian Police Service (Uniform) Rules, 1954:-
"17. Badges of Rank- Silver metal. The State Emblem to be
5/32" by ¾". The stars to be of the "Star of India" (five pointed)
pattern and 1" broad. The Deputy Directors, Intelligence
Bureau, Commissioners of Police and Deputy Inspectors
General of Police shall wear the three stars in the badges of
their rank on the shoulder strap in the form of an equilateral
triangle with apex upwards. The Strap should be slightly frosted
but without any design in the centre. The crossed sword and
baton will be worn so that the point of the sword is to the front,
and the edge of the blade outwards or towards the arm. The
sword should measure 7/8" and the baton 1-3/4".
Embroidered badges of rank, worked in dark blue silk thread
may be worn when wearing informal working dress, at the time
of riots, dacoit operation and such other duties.
....
(e) Superintendent of Police in The State Emblem and two
the selection grade stars
....
(g) All officers [other than those The State Emblem
mentioned in (f)-(i) & (ii) above]
drawing pay in the senior time-
scale who have 10 years‟ service
and less"
17. On April 30, 1987, Raj Kumar Jha and Suvashish Choudhary
(hereinafter referred to as the 'Jha' and 'Choudhary' respectively) joined
DANIPS. On April 17, 1997, Jha and Choudhary were promoted in the
Selection Grade w.e.f December 09, 1995. Jha and Choudhary became
eligible for promotion to the JAG-II and JAG-I in the years 2000 and
2007 respectively, but no meeting of the Departmental Promotion
Committee was convened to consider said officers for promotion to the
said grades till the year 2006. Finally, on May 5, 2007 and March 03,
2010, said officers were promoted to JAG-II and JAG-I respectively, but
only on 'ad-hoc basis'.
18. Thereafter Jha and Choudhary submitted a representation to the
competent authority requiring the department to convene a meeting of the
Departmental Promotion Committee to consider them for promotion to
JAG-II and JAG-I on regular basis and promote them to said grades with
effect from the date they become eligible for promotion to the said grades
or at least from the date when vacancies fell in the said grades.
19. While the aforesaid representation submitted by Jha and
Choudhary was pending consideration, on July 05, 2011 the Ministry of
Home Affairs initiated the process for preparing a Select List of officers
of DANIPS for promotion/induction in the IPS pertaining to the
vacancies for the year 2010. On the same date i.e. July 05, 2011, Jha and
Choudhary, who were eligible to be inducted in the IPS, were asked to
submit an unconditional willingness for they being promoted/inducted in
the IPS as also a consent to terminate their lien in the DANIPS.
20. On July 20 and 25, 2011, Jha and Choudhary submitted
representations to the competent authority stating therein that the
Ministry of Home Affairs should either defer the proposal to induct them
in the IPS till they are promoted to JAG-II and JAG-I on regular basis or
they should not be required to submit an unconditional willingness for
being inducted in the IPS. In their representations, Jha and Choudhary
highlighted that if they were inducted in the IPS as ad-hoc JAG-II and
JAG-I they will suffer immense loss in pay, seniority and rank etc. It was
highlighted by them that there is a serious anomaly in the IPS (Regulation
of Seniority) Rules, 1988 which governs determination of seniority of the
officers of the State Police Service on promotion to IPS.
21. On October 19, 2011 the Ministry of Home Affairs rejected the
representations dated July 20 and 25, 2011 submitted by Jha and
Choudhary.
22. On December 14, 2011 the UPSC approved the Select List of
officers of DANIPS prepared by the Ministry of Home Affairs for
induction/promotion in the IPS, which included the names of Jha and
Choudhary. They were called upon to submit an unconditional
willingness for induction in the IPS before February 11, 2012.
23. Aggrieved by the aforesaid action of the Ministry of Home Affairs,
in January 2012, Jha and Choudhary filed an application before the
Central Administrative Tribunal canvassing therein:-
A Jha and Choudhary became eligible for promotion to JAG-II and
JAG-I in the year 2000 and 2007 respectively, but the department did not
take any steps to convene a meeting of the Departmental Promotion
Committee and consider them for promotion to the said grades till the
year 2006. Finally, on May 05, 2007 and March 03, 2010 they were
promoted to JAG-II and JAG-I respectively, but only on 'ad-hoc basis'
and not on regular basis. Thereafter Jha and Choudhary made several
representations to the department to convene a meeting of the
Departmental Promotion Committee to consider them for promotion to
JAG-II and JAG-I on regular basis but till date no action has been taken
by the respondents in said regard. Since they were promoted to JAG-II
and JAG-I only on ad-hoc basis, they would be deemed to be working in
the Selection Grade on substantive basis which is in the pay-scale
`15,600-39,100 in PB-III with grade pay `6,600/-. As per Rule 5(3) and
Schedule I appended to the IPS (Pay) Rules, 2007, they would be entitled
to be placed in PB-III i.e. pay-scale `15,600-39,100 with grade pay
`6,600/-. Had they been promoted to JAG-II and JAG-I on regular basis
in the year 2007 i.e. when the vacancies arose they would have been
drawing pay in the pay scale `37,400-67,000 in PB-IV with grade pay
`8,700/- (pay-scale of JAG-I) in the year 2012 and the same would have
been their initial pay-scale and grade pay on their induction in the IPS.
The inaction of the department in convening a meeting of the
Departmental Promotion Committee to consider them for promotion to
JAG-II and JAG-I on regular basis has caused immense loss to them
pertaining to their initial pay being fixed as officers of the Indian Police
Service.
B Jha and Choudhary joined DANIPS on April 30, 1987 and the
select list in question was prepared to fill up the vacancies which had
arisen in the IPS on January 01, 2010, meaning thereby, Jha and
Choudhary had completed 22 years of service in DANIPS as on January
01, 2010. As per Rule (3)(ii)(a) and (b) of the IPS (Regulation of
Seniority) Rules, 1988, upon their induction in IPS Jha and Choudhary
would get a weightage of 7 years (21÷3 = 7 years) for the service
rendered by them in DANIPS. Thus, upon induction in the IPS, Jha and
Choudhary would be placed below the officers who were directly
recruited in the IPS in the year 2003, which officers are still in Senior
Time Scale i.e. pay scale of `15,600-39,100 in PB-3 with grade pay of
`6,600/-. As per Rule 5(3) read with Schedule I appended to the IPS (Pay)
Rules, 2007, upon their induction in the IPS, Jha and Choudhary would
be granted initial pay scale and grade pay of senior scale of IPS
corresponding to the pay scale and grade pay which they were drawing in
the DANIPS. Jha and Choudhary were drawing pay-scale of `37,400-
67,000 in PB-4 with grade pay of `8,700/- in DANIPS, which
corresponds to Selection Grade in the senior scale of pay in the IPS.
Meaning thereby, upon their induction in the IPS the initial pay-scale
which would be granted to Jha and Choudhary would be `37,400-67,000
in PB-4 with grade pay of `8,700/-. Thus, a most anomalous situation
would arise with regard to fixation of seniority and initial pay-scale and
grade pay of the officers of State Police Service who get promoted to the
IPS inasmuch as the officers of the State Police Service who get inducted
in the IPS such as Jha and Choudhary would be placed juniors to such
directly recruited officers in the IPS who are drawing much lower pay-
scale and grade pay than the officers of the State Police Service. To
further highlight said anomaly, Jha and Choudhary placed reliance upon
Rule 17 of the IPS (Uniform) Rules, 1954. Whereas as per clause (e) of
Rule 17 the officers who are in the Selection Grade such as Jha and
Choudhary are required to wear State Emblem and 2 stars, the officers
who are directly recruited in the IPS in the year 2003 (who would be
senior to Jha and Choudhary in the IPS) are required to wear only 2 stars
as per the provisions of clause (g) of said Rule. Jha and Choudhary
highlighted that upon their induction in the IPS they would be required to
report and salute to the officers who are junior to them in the rank. Jha
and Choudhary canvassed that aforesaid anomaly is the result of the
Ministry of Home Affairs not amending Rule 3(ii)(a) and (b) of the IPS
(Regulation of Seniority) Rules, 1988 to bring it line with the
amendments made in the IPS (Recruitment) Rules, 1954 and IPS (Pay)
Rules, 2007 in the years 1997 and 2010 respectively to the effect that
upon their induction in the IPS, the officers of the State Police Services
will be granted the initial pay scale and grade pay in the senior scale of
IPS corresponding to the pay scale and grade pay which they were
drawing in the State service. Jha and Choudhary pointed out that said
anomalous situation can be remedied by placing them i.e. Jha and
Choudhary below the officers who were directly recruited in the IPS in
the year 1997 and became eligible to the grant of Selection Grade as on
January 01, 2010 inasmuch as the pay-scale of Selection Grade is
`37,400-67,000 in PB-4 with grade pay of `8,700 which corresponds to
the pay-scale and grade pay drawn by Jha and Choudhary in the DANIPS.
24. Since Jha and Choudhary were required to submit their
unconditional willingness for induction in the IPS by February 11, 2012,
else the Select List in question would lapse in view of the provisions of
Regulation 7(4) of IPS (Appointment by Promotion) Regulations, 1955
and they would not be able to get induct in the IPS even in future, a
prayer for interim relief was made by them before the Tribunal that the
Select List in question should not lapse qua them till the disposal of their
application by the Tribunal.
25. The aforesaid application was first time listed before the Tribunal
on January 19, 2012, on which date following order was passed:-
"Issue notice to the respondents returnable on 25.01.2012.
Notice. Stay as well for the date fixed.
Process DASTI only."
26. The matter then came to be listed before the Tribunal on January 30,
2012, on which date following order was passed:-
"Learned counsel for the respondents seeks time to file
reply. Mrs.Jyoti Singh, learned senior counsel representing
the applicant would, however, insist upon interim direction
for which notice was given.
Having heard learned counsel for the parties, we
order that even if the applicants may not give any
willingness by 11.02.2012, the select list qua them will not
lapse.
Respondents will file their reply two days before the
next date fixed with an advance copy to the counsel
opposite, who may file the rejoinder even in the court itself
on the date fixed but with an advance copy to the counsel
opposite.
List the matter on 10.02.2012. It is made clear that
no further adjournment will be given and the matter will
be finally disposed of on the date fixed."(Emphasis
Supplied)
27. The matter was thereafter heard by the Tribunal on February 10,
2012, on which date following order was passed:-
"Order dated 30.01.2012 reads as follows:
......
The order was passed, as mentioned above, as the
apprehension of the applicant was that if 60 days may
elapse the respondents may take the plea that any
further extension is beyond the regulation. Sixty days
will expire on 11.02.2012. We only record at this stage
that adjournment is necessitated because counsel for
respondents states that short reply is being filed today
but detailed reply will be filed later. This cannot be
appreciated. If a detailed reply is to be filed, we do not
think there is any necessity to file short reply. However,
short reply is taken on record. Request of the
respondents for adjournments is repeated.
List again on 24.02.2012.Consequences of expiry of
sixty days in the context of the order passed today shall
be examined on the final stage of the case."(Emphasis
Supplied)
28. Thereafter the Ministry of Home Affairs filed its reply before the
Tribunal, the relevant portion whereof reads as under:-
"3.4 That the proposal for regularization in JAG-II
and JAG-I of DANIPS have been forwarded to UPSC in
Nov. 2011. That the DPC for regular promotion into
JAG-II for years 2003 onwards could not take place on
account of seniority dispute between the officers
promoted from feeder grade and those recruited
directly through UPSC into the DANIPS which was
agitated by the promotee and the direct recruited
officers in several cases in past upto Supreme Court
and presently still pending before the Delhi High
Court...
3.6 That the pay of the DANIP officers induction
into IPS are fixed as per extant relevant rule in the pay
scale being drawn by the DANIP officer immediately
before induction on regular basis. That once the officer
is granted the higher pay scale on regular basis with
retrospective effect after induction into the IPS, his pay
will be re-fixed accordingly and this his pay will be
ultimately protected.
3.14 That the pay and seniority are completely two
different aspects of service. An officer who is junior
may draw higher pay than his senior by virtue of
greater length of service and higher pay of a junior
should not be misconstrued as a yardstick for seniority
in service in a particular grade.
3.15 That a junior can draw higher pay than a
senior by virtue of longer length of service. The high
pay is not a criteria of determining seniority. The two
officers coming from different set of examination and
selection process cannot be equated merely on the basis
of pay.
3.16 That the All India Service Rules are framed
and administered by the Department of Personnel and
Training, Govt. of India and MHA being State Govt. for
joint cadre of AGMU follows the rules and regulation
promulgated by DOP & T from time to time and a
reasonable and logical. It is submitted that as far as
IPS Pay Rule is concerned it has no bearing on the
seniority as the pay and seniority are completely two
different aspects of service. An officer who is junior
may draw higher pay than his senior by virtue of
greater length of service and higher pay of a junior
should not be misconstrued as a yardstick for
determining seniority in service in a particular grade."
29. The matter was finally heard by the Tribunal on March 03, 2012
and reserved for judgment. Vide order dated March 07, 2012 the Tribunal
disposed of the application filed by Jha and Choudhary in the following
terms:-
"7. Having considered the totality of facts and
circumstances of the case, we find that there is anomalous
situation against the applicants insofar as DANIPS is
concerned, as for the years they have been continuing on
ad hoc basis in JAG-II and JAG-I grades. The
respondents are responsible for not regularizing their
services in the said grades may be due to the litigation.
During the hearing, when this issue was discussed,
ShriNischal has conceded that the respondents are keen to
conduct the regular promotion to the DANIPS shortly and
the applicants would get their rightful position in the
JAG-II and JAG-I respectively for the year to which they
would be selected. In this regard, we would only direct the
respondents to convene the regular DPC for JAG-II and
JAG-I for the relevant years and complete the process as
expeditiously as possible but positively within a period of
four weeks from the date of receipt of certified copy of this
order.
8. With regard to the willingness to be conveyed by the
applicants, learned Senior Counsel for the applicants has
indicated during the final hearing that applicants would
convey their willingness but they need to be protected with
reference to their pay scales and assigned proper
seniority after taking into account their regular promotion
in the DANIPS. There is no dispute about this from the
learned counsel from the respondents. We, therefore,
direct that the applicants would convey their willingness
to the competent authority about their induction to the IPS
within a period of two weeks from today. On receipt of
their willingness, the respondents are directed to offer
them the appointment for promotion to IPS, and protect
their existing pay, which in any case would be provisional.
Further, in the seniority and other associated aspects, the
finalization of regular promotion of the applicants to the
grade of JAG-II and JAG-I in DANIPS would be
determined in the IPS. On receipt of appropriate orders in
fixing their regular promotion to the JAG-II and JAG-I
grades, the cadre controlling authority of the IPS, AGMU
Cadre would fix their seniority and protect the revised pay
for the applicants. If either in pay fixation or seniority
applicants may be aggrieved, they may at that stage
ventilate their grievances. Let this exercise, as ordained
above, be completed within a period of three months from
the date of receipt of orders regarding the
applicantsregular promotion to the JAG-II and JAG-I in
DANIPS.
9. With regard to the vires of the rules and regulations
governing the IPS Pay, seniority, etc. learned Senior
Advocate for the applicants would not take the arguments
forward. Therefore, we refrain to offer any remarks on the
said relief (s) prayed in challenging the vires of these
rules and regulations.
10. Taking into account the totality of facts and
circumstances of the case, we are of the considered
opinion that the applicants should be granted their
regular JAG-II and JAG-I promotion as expeditiously as
possible and preferably within the time frame as
stipulated above and on receipt of the willingness from the
applicants the competent authority would offer them
appointment to IPS and fix their seniority, pay scales,
rank, etc. as per revised regular promotion order to be
received in grade of JAG-II and JAG-I in DANIPS and
also as per the law relating to those matters of IPS.
Applicants were given interim promotion. They may now
give their unconditional willingness for their induction in
IPS within two weeks.
11. In terms of our above orders and directions, the OA
is disposed of."(Emphasis Supplied)
30. Aggrieved by the statement contained in the judgment dated March
07, 2011 that the counsel appearing for Jha and Choudhary was not taking
forward the argument relating to vires of rules and regulations, Jha and
Choudhary filed a review application in the Tribunal. Vide order dated
March 29, 2012 the Tribunal disposed of the said review application in
the following terms:-
"In case the applicant is required to challenge the vires
of rules and regulations governing the IPS‟s pay,
seniority, then it may remain open to challenge it and the
applicants will not be debarred from challenging the
vires of the rules and regulations of the IPS‟s pay, salary
etc. We are conscious of the fact that there can be no
estoppel against the law. If a rule or regulation is ultra
vires, then it can be challenged at any stage. And in the
present case, it has not been adjudicated. Hence, if a
matter has not been adjudicated finally, then it cannot
operate as res judicata or estoppel. We are of the opinion
that even in the subsequent litigation, the vires of rules
and regulations can be challenged by the applicants, if
they need so.
3. It is also material that in the operative portion, it has
been provided that two weeks‟ time was provided to the
applicant to give unconditional willingness for the
induction in IPS, and the learned senior advocate for the
applicants stated that two weeks‟ time is likely to expire,
and she wants one more week‟s time from today to file
this unconditional willingness for induction in IPS.
Hence, this Review Application is disposed of with the
above observations made in the body of this order."
31. Choudhary was fully satisfied with the judgment dated March 07,
2012 read with order dated March 29, 2012 passed by the Tribunal and
submitted an unconditional willingness to the Ministry of Home Affairs
for his induction in the IPS on March 19, 2012
32. On the other hand, Jha was aggrieved by the judgment dated March
07, 2012 insofar it had not resolved the issue of seniority which would be
assigned to him upon his induction in the IPS and thus filed W.P.(C)
No.2683/2012 under Article 226 of the Constitution of India. Needless to
state, Jha did not give an unconditional willingness for his induction in
the IPS.
33. The aforesaid writ petition was first time listed before this Court on
May 07, 2012, on which date following order was passed:-
"CM No.5767/2012
Allowed, subject to just exceptions.
W.P. (C) No.2683/2012 & CM No.5766/2012
Issue notice.
The learned counsel for the respondent No.1 & 2 as
well as the learned counsel for the respondent No.3
accept notice.
Renotify on 06.11.2012.
The learned counsel for the respondents state that no
counter affidavit would be necessary and that they
would rely on the record of the original application
before the learned Tribunal.
In the meanwhile, the tenure of the select list would
be subject to the final order that may be passed in
this writ petition."(Emphasis Supplied)
34. In the meantime, on April 17, 2012 the Ministry of Home Affairs
issued an order appointing Jha and Choudhary to the JAG-II of the
DANIPS in the scale of pay of `15,600-39,100 in PB-3 with Grade Pay
of `7600 with effect from July 01, 2007. Thereafter on July 19, 2012 the
Ministry of Home Affairs issued an order appointing Jha and Choudhary
to the JAG-I of the DANIPS in the scale of pay of `37,400-67,000/- in
PB-4 with Grade Pay of `8700 with effect from July 01, 2008.
35. While W.P. (C) No.2683/2012 filed by Jha was pending
adjudication, the Ministry of Home Affairs filed W.P. (C) No.7710/2012
under Article 226 of the Constitution of India assailing the legality of the
judgment dated March 07, 2012 read with order dated March 29, 2012
passed by the Tribunal.
36. In W.P. (C) No.7710/2012, the grievance raised by the Ministry of
Home Affairs is that the direction relating to induction of Jha and
Choudhary in the IPS passed by the Tribunal in its judgment dated March
7, 2012 is in violation of Regulation 7(4) of the IPS (Appointment by
Promotion) Regulations, 1955. It was submitted that Regulation 7(4) of
the IPS (Appointment by Promotion) Regulations 1955 prescribes that the
'Select List shall remain in force till the 31st day of December of the year
in which the meeting of the Selection Committee was held with a view to
prepare the list under sub-regulation (1) of regulation 5 or up to 60 days
from the date of approval of the Select List by the Commission under sub-
regulation (1) or as the case may be finally approved under sub-
regulation (2) whichever is later‟. In the instant case, the UPSC approved
the Select List in question on December 14, 2011. In terms of Regulation
7(4), the Select List was to remain in force for a period of 60 days from
the date of approval of the Select List by the UPSC i.e. upto February 11,
2011. In other words, Jha and Choudhary were required to submit
unconditional willingness for induction in the IPS till February 11, 2012.
It was submitted that since Jha and Choudhary did not submit their
unconditional willingness before February 11, 2012 i.e. the period during
which the Select List remained in force the Select List qua Jha and
Choudhary lapsed after February 11, 2012 and they could not have been
inducted in the IPS after the said date. It was submitted that the Tribunal
committed an illegality in directing the Ministry of Home Affairs to
induct Jha and Choudhary in the IPS when they had not submitted their
unconditional willingness before February 11, 2012.
37. Since the Ministry of Home Affairs has raised an issue about the
very induction of Jha and Choudhary in the IPS we first deal with W.P. (C)
No.7710/2012 filed by it.
38. On July 05, 2011 the Ministry of Home Affairs initiated the process
for preparation of a Select List of the officers of DANIPS for their
promotion/induction in the IPS for the vacancies for the year 2010. As
already pointed hereinabove, Jha and Choudhary were eligible to be
inducted in the IPS.
39. Jha and Choudhary had raised grievances regarding fixation of
their pay and senioirity upon their induction in the IPS by way of filing
representations before the competent authority, which representations
were rejected vide order dated October 19, 2011.
40. On December 14, 2011 the UPSC approved the Select List of the
officers of DANIPS prepared by the Ministry of Home Affairs for their
induction/promotion in the IPS, which list included the names of Jha and
Choudhary. Jha and Choudhary were called upon to submit their
unconditional willingness for induction in the IPS before February 11,
2012.
41. In the month of January 2012, Jha and Choudhary filed an
application before the Tribunal seeking resolution of their grievances
relating to fixation of their pay and seniority upon their induction in the
IPS.
42. Since the period during which Jha and Choudhary were required to
submit their unconditional willingness for induction in the IPS was
coming to an end, Jha and Choudhary sought interim relief from the
Tribunal that the Select List in question should not lapse qua them during
the pendency of the application. Vide order dated January 30, 2012 the
Tribunal directed that the Select List in question would not lapse qua Jha
and Choudhary even if they do not give unconditional willingness before
February 11, 2012. It is most significant to note that the aforesaid order
dated January 30, 2012 passed by the Tribunal was not challenged by the
Ministry of Home Affairs.
43. As already noted hereinabove, the matter then came to be listed
before the Tribunal on February 19, 2012. On said date, the Tribunal
expressed displeasure on the conduct of the Ministry of Home Affairs of
delaying the matter and directed that'consequences of expiry of sixty
days in the context of the order passed today shall be examined on the
final stage of the case.'
44. The matter was finally heard by the Tribunal on March 03, 2012 and
reserved for judgment. Vide judgment dated March 07, 2012 the Tribunal
disposed the application filed by Jha and Choudhary. In paragraph 8 of
the judgment dated March 07, 2012 the Tribunal dealt with the issue of
furnishing unconditional willingness by Jha and Choudhary in the
following terms:-
"With regard to the willingness to be conveyed by the
applicants, learned Senior Counsel for the applicants has
indicated during the final hearing that applicants would
convey their willingness but they need to be protected with
reference to their pay scales and assigned proper seniority
after taking into account their regular promotion in the
DANIPS. There is no dispute about this from the learned
counsel from the respondents"(Emphasis Supplied)
45. From the afore-noted paragraph 8, it is clearly evident that the counsel
for the Ministry of Home Affairs gave a concession before the Tribunal
that Jha and Choudhary would be inducted in the IPS if they would give
unconditional willingness after passing of the judgment in the case,
notwithstanding the fact that they had not given unconditional willingness
before February 11, 2012. It is not the case of the Ministry of Home
Affairs before this Court that their counsel had not given aforesaid
concession before the Tribunal. Having conceded before the Tribunal that
Jha and Choudhary would be inducted in the IPS even if they do not
sumbit unconditional willingness before February 11, 2012 it does not lie
in the mouth of the Ministry of Home Affairs to contend that in view of
the provisions of Regulation 7(4) of the IPS (Appointment by Promotion)
Regulations, 1955 the Select List in question lapsed qua Jha and
Choudhary on February 11, 2012 when they did not give submit
unconditional willingness before that date.
46. Furthermore, vide order dated January 30, 2012 the Tribunal had
directed that the Select List in question would not lapse qua Jha and
Choudhary even if they do not submit unconditional willingness before
February 11, 2012. As already noted hereinabove, the order dated January
30, 2012 has not been challenged by the Ministry of Home Affairs.
Having not challenged the order dated January 30, 2012 it is not open to
the Ministry of Home Affairs to contend that the Select List in question
lapsed qua Jha and Choudhary on February 11, 2012 when they did not
sumbit unconditional willingness before said date.
47. The matter can also be looked at from another angle.
48. In the instant case, when the Ministry of Home Affairs initiated the
process for induction of DANIPS officers in the IPS on July 05, 2011, Jha
and Choudhary stood promoted to JAG-II and JAG-I on ad-hoc basis. It
is an admitted fact that by that time Jha and Choudhary ought to have
been promoted to JAG-II and JAG-I on regular basis but for the delay on
the part of the Ministry of Home Affairs. It is further an admitted fact that
had Jha and Choudhary got inducted in IPS without getting promoted to
JAG-II and JAG-I on regular basis their pay in the IPS would have been
fixed in the scale of pay of `15,600-39,100 in PB-3 with Grade Pay of
`6,600 while had they got inducted in the IPS after getting promoted to
JAG-II and JAG-I on regular basis their pay in the IPS would have been
fixed in the scale of pay of `37,400-67,000 in PB-4 with Grade Pay of
`8,700. This was one of the grievances which Jha and Choudhary wanted
to be redressed before getting inducted in the IPS but their representations
were rejected by the Ministry of Home Affairs. This problem in the
matter of pay fixation of Jha and Choudhary in the IPS occurred due to
the delay on the part of the Ministry of Home Affairs in promoting Jha
and Choudhary to JAG-II and JAG-I on regular basis. Why should Jha
and Choudhary suffer for the delay caused by the Ministry of Home
Affairs in promoting them to JAG-II and JAG-I on regular basis?
49. In said regards, it would be most apposite to note the decision of
the Supreme Court reported as AIR 2012 SC 1682 Union of India v
Hemraj Singh Chauhan. In said case, the respondents therein were the
members of the State Civil Services of Uttar Pradesh who had completed
8 years of service on July 23, 1985 and June 04, 1986 respectively. An
officer of the SCS is entitled to be considered for appointment to the
Indian Administrative Service after completion of 8 years of service in
the SCS. Under Regulation 5(3) of the IAS (Appointment by Promotion)
Regulations, 1955, members of the SCS who had attained 54 years of age
on the 1st day of January for which the Select List is prepared shall not be
considered for promotion to the IPS. The Central Government was
required to conduct a cadre review of a SCS to determine the number of
vacancies of the IPS which would be filled from a particular SCS. In said
case, the cadre review of the SCS of Uttar Pradesh was to be conducted in
the year 2003 but the Central Government conducted the same in the year
2006. Due to such delay in conduct of cadre review, the determination of
the vacancies for being filled up by promotion of the officers of SCS of
Uttar Pradesh took place on February 01, 2006, by which date the
respondents had crossed age of 54 years and thus could not be considered
for promotion to the IPS. Noticing that grave prejudice has been caused
to the respondents due to delay on the part of the Central Government, a
Division Bench of this Court directed that the cadre review undertaken in
the year 2006 be deemed to have undertaken in the year 2003 and on said
basis the respondents be considered for promotion to the IAS, which
direction was upheld by the Supreme Court in an appeal preferred by the
Central Government. It would be relevant to note the following portion of
the judgment of the Supreme Court:-
"36. However, from the discussion made
hereinbefore, the following things are clear:
(a) Both the appellants and the State Government in
accordance with their stand in the subsequent affidavit
accepted that Cadre Review in the State of U.P. was made
in 1998 and the next Cadre Review in that State was due in
2003;
(b) Neither the appellants nor the State Government has
given any plausible explanation justifying the delay in
Cadre review;
(c) From the materials on record it is clear that the
appellant as the Cadre Controlling authority repeatedly
urged the State Government to initiate the review by
several letters referred to hereinabove;
(d) The only reason for the delay in review, in our opinion,
is that there was total in-action on the part of the U.P.
Government and lackadaisical attitude in discharging its
statutory responsibility.
37. The Court must keep in mind the Constitutional
obligation of both the appellants/Central Government as
also the State Government. Both the Central Government
and the State Government are to act as model employers,
which is consistent with their role in a Welfare State.
38. It is an accepted legal position that the right of eligible
employees to be considered for promotion is virtually a
part of their fundamental right guaranteed under Article of
the Constitution. The guarantee of a fair consideration in
matters of promotion under Article virtually flows from
guarantee of equality under Article of the Constitution.
X X X
49. Therefore, this Court accepts the arguments of the
learned Counsel for the appellants that Rule 4(2) cannot
be construed to have any retrospective operation and it
will operate prospectively. But in the facts and
circumstances of the case, the Court can, especially having
regard to its power under Article of the Constitution, give
suitable directions in order to mitigate the hardship and
denial of legitimate rights of the employees. The Court is
satisfied that in this case for the delayed exercise of
statutory function the Government has not offered any
plausible explanation. The respondents cannot be made in
any way responsible for the delay. In such a situation, as in
the instant case, the directions given by the High Court
cannot be said to be unreasonable. In any event this Court
reiterates those very directions in exercise of its power
under Article of the Constitution of India subject to the
only rider that in normal cases the provision of Rule 4(2)
of the said Cadre Rules cannot be construed
retrospectively."
50. Thus, looked at from whichever angle, the W.P. (C) No.7710/2012
does not have any merit and is hereby dismissed.
51. We now proceed to deal with W.P. (C) No.2683/2012 filed by Jha.
As already noted hereinabove, the grievance of Jha relates to fixation of
his seniority in the IPS.
52. It is an admitted fact between the parties that as per the present
position upon his induction in the IPS Jha would be made juniors to such
officers who were directly recruited in the IPS and drawing lesser pay
scale and grade pay and junior in rank to Jha.
53. Can a junior officer draw higher pay, more particularly grade pay,
than his senior?
54. The answer to the aforesaid question lies in the following portion
of the report of the VI Pay Central Commission:-
"1.27 A major departure from the earlier Pay
Commissions has been made in respect of pay scales. For
the first time, the Commission is recommending running
pay bands for civilian employees as well as for the
Defence Forces. The Fourth Central Pay Commission had
recommended running pay bands for Defence Forces that
were implemented. The Fifth CPC, however,
recommended specific pay scales for civilians as well as
Defence Forces personnel. A conscious departure as been
made in recommending running pay bands because of the
inherent advantages of such pay scales.
2.2.11 Under the system of running pay bands being
recommended by the Commission, all the employees
belonging to the aforesaid 4 categories will be placed in
distinct running pay bands. At the time of promotion from
one post to another in the same running pay band, the
grade pay (being a fixed amount attached to each post in
the hierarchy) attached to posts at different levels within
the same running pay band will change. Grade pay will
determine the status of a post with (apart from the two
apex scales of Secretary/equivalent and Cabinet
Secretary/equivalent that do not carry any grade pay) a
senior post being given higher grade pay.
2.2.13 Introduction of running pay bands will have
the following benefits:-
(vi) Seniority of a post will depend on the grade pay
drawn. This will invariably be more for a higher level post.
Pay scales will largely become irrelevant for purposes of
computing seniority. Thus, the present situation where
frequently a junior draws higher salary (albeit in lower
pay scale) vis-à-vis his senior because of longer years of
service, will no longer be of any essence for purposing of
computing seniority.
Summary of main recommendations
11.4 All the employees belonging to Groups „A‟, „B‟,
„C‟&„D‟ to be placed in distinct running pay bands. Every
post, barring that of Secretary/equivalent and Cabinet
Secretary/equivalent to have a distinct grade pay attached
to it. Grade pay (being a fixed amount attached to each
post in the hierarchy) to determine the status of a post
with (apart from the two apex scales of
Secretary/equivalent and Cabinet Secretary/equivalent
that do not carry any grade pay) a senior post being given
higher grade pay. The total number of grades reduced to
20 spread across four distinct running pay bands; one
Apex Scale and another grade for the post of Cabinet
Secretary/equivalent as against 35 standard pay scales
existing earlier. At the time of promotion from one post to
another in the same running pay band, the grade pay
attached to posts in different scales within the same
running pay band to change. Additionally, increase in
form of one increment to be given at the time of promotion.
A person stagnating at the maximum of any pay band for
more than one year continuously to be placed in the
immediate next higher pay band without any change in
the grade pay."
55. From the above noted portion of the report of the 6 th Central Pay
Commission, it is crystal clear that a junior officer cannot draw a higher
grade pay than his senior.
56. It is otherwise also settled legal position that a junior officer cannot
draw a higher grade pay than his senior. (See the decision of the Supreme
Court reported as 2009 (1) SCC (L&S) 578 Gurcharan Singh Grewal v.
Punjab State Electricity Board.)
57. In view of the above, there can thus be no doubt that Jha is right in
contending that there is a discord between Rule 3(ii)(a) and (b) of the IPS
(Regulation of Seniority) Rules, 1988, which deals with fixation of
seniority of the officers of State Police Service who get inducted in the
IPS and IPS (Appointment by Promotion) Regulations, 1955 and IPS
(Pay) Rules, 2007 for the reason the effect of said Rule is that officers
working in State Police Service such as Jha are made juniors to the
officers who were directly recruited in the IPS and drawing lesser pay
scale and grade pay than them.
58. Since Jha has already been granted permanent/substantive
appointment in Junior Administrative Grade-II as also Junior
Administrative Grade-I with retrospective effect; the former being with
effect from July 01, 2007 and the latter being with effect from July 01,
2008, we allow his claim as prayed for in the Original Application filed
by him requiring it to be treated that the panel/select list prepared and
approved by UPSC on December 14, 2011 did not lapse and thus he
should be inducted in the Indian Police Service as per the select list/panel.
59. We further direct the Ministry of Home Affairs to amend Rule
3(ii)(a) and (b) of the IPS (Regulation of Seniority) Rules, 1988 to bring
it in line with the (amended) provisions of IPS (Appointment by
Promotion) Regulations, 1955 and IPS (Pay) Rules, 2007. As a necessary
corollary thereof, we direct the Ministry of Home Affairs to induct Jha in
the IPS on his submitting an unconditional willingness in said regards and
fix his seniority in the IPS as per the Rule 3(ii)(a) and (b) of the IPS
(Regulation of Seniority) Rules, 1988 which would be amended in terms
of above directions given by us.
60. W.P.(C) No.2683/2012 filed by Jha is accordingly allowed in above
terms. W.P.(C) No.7710/2012 is dismissed.
61. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
APRIL 22, 2013
mamta
