Vikas Dhawan & Ors. vs The Registrar General Delhi High ...
2015 Latest Caselaw 383 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   WRIT PETITION (CIVIL) NO. 3827/2013
                                            Date of decision: 15th January, 2015
        VIKAS DHAWAN & ORS.                                    ..... Petitioners
                             Through Mr. P.S. Bindra, Advocate.
                             versus

        THE REGISTRAR GENERAL DELHI HIGH COURT
                                              ..... Respondent

Through Mr. Chetan Lokur, Advocate for Mr. V.R.

Datar, Advocate for the Delhi High Court.

Mr. Saurabh Tiwari, Advocate for respondent Nos.

2 to 4.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

SANJIV KHANNA, J. (ORAL):

The petitioners herein are working as Senior Personal Assistants in the

Delhi High Court. They have challenged, by way of the present writ petition

under Article 226 of the Constitution of India, the Circular bearing

No.788/Estt./E.2/DHC dated 20th May, 2013, the relevant portion of which

reads as under:-

"Applications are invited from the eligible officials of this Court and of the Courts subordinate to this Court for filling up the existing 32 vacant posts of Private Secretary against 75% test quota, in the Pay Band of Rs.15600-39100 + Grade Pay Rs.6600. As per Item No. 6(b)(i) of Schedule II of Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972, the minimum qualification prescribed for appointment to the post of Private Secretary, for members of establishment of this Court and Courts subordinate to this

Court is Graduate with 5 years' service in the pay scale of Rs.6500-10500 (pre-revised) or 7 years service in the pay scale of Rs.5500-9000 (pre-revised) including the service rendered in the post(s) carrying higher pay scale and possessing a speed of not less than 120 words per minute in English Shorthand and 45 words per minute in English typing on Computer with proficiency in Computer.

In view of the pronouncement of judgment dated 02.05.2013 of this Court in W.P. (C) No. 6522/2012 titled "Manoj Kumar and Ors. Vs. High Court of Delhi and Ors." revising the Grade Pay of the Personal Assistants, Judicial Assistants, Judicial Translators and Assistant Librarian of this Court, from Rs.4200/- to Rs.4600/-, the Personal Assistants and officials holding equal status posts with 5 years' service in the said posts, may also apply. However, admission to the examination of those who have not rendered 7 years' service in the pre-revised pay scale of Rs.5500-9000, shall be purely provisional and, in case of selection, their appointment will be subject to implementation of the aforementioned judgment."

2. The second prayer made in the Writ Petition is for quashing Clause

6(b)(i) of Schedule-II of the Delhi High Court Establishment (Appointment

and Conditions of Service) Rules, 1972 ("Establishment Rules", for short),

on the ground that the aforesaid clause is not in accord with the common

judgment dated 2nd May, 2013 passed in W.P.(C) No.6522/2012, Manoj

Kumar & Others versus High Court of Delhi and W.P.(C) No.6751/2012,

Sharvan Kumar Tanwar & Others versus High Court of Delhi & Others.

3. For the sake of completeness, we are reproducing Clause 6 of the

Establishment Rules, which reads as under:-

"

 6 Private    a. Graduate with 5 years' a.                        25% of the
  Secretary     service in the post of                           vacant posts by
  (Promotion    category 13 (Senior Personal                     promotion on
  /Selection    Assistant) mentioned in                          the basis of
  Post)         Schedule I.                                      seniority-cum-
                                                                 merit       from
                                                                 seniority list of
                                                                 category       13
                                                                 (Senior
                                                                 Personal
                                                                 Assistant)
                                                                 mentioned      in
                                                                 Schedule-I.

                                                                 75% of the
                                                                 vacant posts by
                                                                 selection      on
                         b (i) For members of                    merit on the
                         establishment of this Court and         basis of written
                         Courts subordinate to this              examination

Court: 5 years service in the pay b(i) comprising of scale of Rs.6500-10500 or 7 & one paper in years service in the pay scale of b(ii) English Rs.5500-9000 including the language service rendered in the (Essay, post(s)carrying higher pay scale Grammar and and possessing a speed of not Translation) less than 120 words per minute followed by a in English Shorthand and 45 Shorthand words per minute in English dictation to be typing on Computer with transcribed on proficiency in Computer. Computer. The short-listed Provided that on the date of candidates application the candidate should would also be a Graduate. undergo a viva-

voce test.

b (ii) For direct recruits:

                         Graduate with 5 years' service          In case requisite
                         as Stenographer in the pay scale        number         of
                         of Rs.6500-10500 or 7 years             candidates do
                         service as Stenographer in the          not qualify for
                         pay scale of Rs.5500-9000 in            selection      on


                          any                 Government     merit in terms
                         Department/Public Undertaking      of provisions of
                         & possessing a speed of not less   clause      b(i),
                         than 120 words per minute in       appointment
                         English Shorthand and typing       will be made in
                         speed of 45 words per minute in    terms of clause
                         English typing on Computer         b(ii).
                         with proficiency in Computer.

                                                                               "

4. By decision dated 2nd May, 2013 in the case of Manoj Kumar &

Others (supra), a Division Bench of this Court had directed that the posts of

Personal Assistants, Judicial Assistants, Junior Translators and Assistant

Librarians, which fall in the Pay Band-II (i.e. PB-II of Rs.9300-34800) were

entitled to Grade Pay of Rs.4600/- with effect from 1st January, 2006. The

grievance of the petitioner Manoj Kumar and others that they were wrongly

covered under Grade Pay of Rs.4200/-, was accepted. The Division Bench

relied on an earlier decision dated 8th August, 1996 in W.P.(C)

No.1174/1999, titled K.K. Sharma & Others versus UOI & Others, in which

on considering the nature, work and the duties performed by Personal

Assistants and Junior Stenographers in the Delhi High Court vis-à-vis

Assistants and Stenographers of the Central Secretariat Service and the

Central Secretariat Stenographers Service, it was held that Personal

Assistants and Junior Stenographers in the Delhi High Court should be given

the same pay scales as applicable to their brethren in the Central Secretariat

Service and the Central Secretariat Stenographers Service. Reference was

also made to the order dated 6th July, 2010 passed by the Department of

Personnel and Training (DoPT), Government of India in compliance with the

decision of the Tribunal in OA No.164/2009, titled S.R. Dheer & Others

versus UOI & Others, decided on 19th February, 2009, which was followed

in another decision dated 9th April, 2010 allowing OA No.1165/2010, titled

Sunita Devi versus The Secretary, DOPT. Thus, it was held that the grade

pay was wrongly and erroneously fixed.

5. Learned counsel for the petitioners does not dispute and accepts the

said position. As a result of the said decision, Personal Assistants, Judicial

Assistants, Junior Translators and Assistant Librarians became entitled to the

pay scale of Rs.6500-10500 (pre-revised). This would mean that all of them

would qualify and would be eligible under clause 6(b)(i) of the

Establishment Rules.

6. As noticed above, by the same decision dated 2 nd May, 2013, Senior

Personal Assistants, Senior Judicial Assistants, Senior Judicial Translators,

Senior Assistant Librarians and Readers in the Delhi High Court, who were

in the Pay Band of Rs.9300-34800, it was held were entitled to Grade Pay of

Rs.4800/- (instead of Rs.4600/-), with effect from 1st January, 2006. This

was done on the principle of parity as Grade Pay of Rs.4800/- was being

paid for identical work in the Central Secretariat Service. The judgment had

placed reliance on the recommendations of the Fourth and the Fifth Central

Pay Commissions, which recommended parity with those working in the

Central Secretariat Service. The effect of the judgment was that the Grade

Pay was enhanced from Rs.4600/- to Rs.4800/-

7. We are informed that the aforesaid decision dated 2 nd May, 2013 has

been accepted and implemented.

8. However, before any final decision could be taken on whether or not

to accept the decision dated 2nd May, 2013, the Delhi High Court had

initiated process for filling up 32 vacant posts of Private Secretary against

75% test quota by way of the Circular dated 20th May, 2013. Thus, the said

Circular recorded that the admission to candidates, who had not rendered

seven years' service in the pre-revised scale of Rs.5500-9000 shall be purely

provisional and in case of selection, their appointment would be subject to

implementation of the aforesaid judgment.

9. The contention of the petitioners is that after pronouncement of the

judgment dated 2nd May, 2013 in the case of Manoj Kumar & Others and

Sharvan Kumar Tanwar & Others (supra), clause 6(b)(i) of the

Establishment Rules which prescribed the qualification in the form of pay

scale should be and are required to be amended and altered. It is submitted

that the upgradation granted in terms of decision dated 2nd May, 2013

mandates and requires upgradation or higher pay scales should be substituted

in the clause 6(b)(i) of the Establishment Rules.

10. We have considered the said contention, but are not inclined to agree

with the submissions made by the petitioners. We do not think that the

effect of the judgment dated 2nd May, 2013, titled Manoj Kumar & Others

and Sharvan Kumar Tanwar & Others (supra) would justify a judicial

decision amending clause 6(b)(i) of the Establishment Rules. The said

submission in fact would be stretching the decision dated 2nd May, 2013, of

which the petitioners were also the beneficiaries and have taken advantage.

11. A close scrutiny of clause 6 of the Establishment Rules would indicate

that it consists of three clauses. We would now refer to Clause (a) and

Clause (b)(i) of the Establishment Rules. Under clause (a), a graduate with

five years' service in the post of category 13, i.e. Senior Personal Assistants

are promoted to the post of Private Secretary. Such promotional posts are

restricted to 25% of the vacant posts and have to be filled on the basis of

seniority-cum-merit; under clause (b)(i), the balance 75% of the vacant posts

are to be filled by selection on merit on the basis of a written examination

comprising of one paper in English language followed by shorthand dictation

to be transcribed on computer. The shortlisted candidates, then, undergo a

viva voce test. Sub-clause b(i) states that members of establishment of this

Court and subordinate courts with five years' service in the pay scale of

Rs.6500-10500 or seven years' service in the pay scale of Rs.5500-9000,

including services rendered in the post(s) of higher pay scale, are eligible.

The said category is wide and is not restricted to Senior Personal Assistant.

The purpose and object of having the said broader category is to expand and

widen the pool of officers, who would be eligible to sit and appear in the

selection tests under sub-clause b(i). Noticeably, the promotion is by way of

selection on merits by way of a written examination followed by a shorthand

dictation and a viva voce test. Thus, the aforesaid clause ensures that

candidates/officers in the pay scale of Rs.6500-10500 with five years'

experience and those in the pay scale of Rs.5500-9000 with seven years'

experience are eligible. Not only the officers working in the Delhi High

Court in the said pay scales but also those working in the subordinate courts

in the said pay scales, are eligible. Judgment in the case of Manoj Kumar &

Others and Sharvan Kumar Tanwar & Others (supra) are only in the case

of the High Court employees and did not apply to the employees working in

the subordinate courts. The aforesaid direction in the case of Manoj Kumar

& Others (supra) was given relying upon and referring to an earlier decision

in K.K. Sharma & Others (supra) to hold that the grade pay was erroneously

fixed. The error was corrected. Any such direction which the petitioners

seek would adversely affect and reflect on the eligibility criteria of the

employees working in the subordinate courts. Noticeably, the pay scales

prescribed in Clause b(i), are the minimum and the employees drawing a

higher pay scale are equally eligible.

12. Private respondents have submitted that the petitioners herein were

recently recruited and did not have five years' experience in the pay scale of

Rs.6500-10500 (pre-revised) and, therefore, they were not eligible to appear

in the said examination. This factual position is admitted/accepted. Thus,

the petitioners were ineligible and could not and did not appear in the

selection. They are protesting because some others might get selected and

possibly the number of vacant posts would be reduced in future, consequent

to the said selection. In State of Maharashtra versus Chandarkant Anant

Kulkarni (1981) 4 SCC 130, the Supreme Court observed that mere chances

of promotion are not conditions of service and the fact that there is a

reduction in such chances would not tantamount to change in the conditions

of service. Thus, the settled principle is that a right to be considered for

promotion is a term of service, but mere reduction in chances of promotion is

not. Therefore, the grievance made by the petitioners, who are not eligible,

that there would be and has been reduction in chances of promotion may not

be a ground to invoke writ jurisdiction. Same principle stands reiterated in

Shyama Charan Dash & Others versus State of Orissa & Another (2003) 4

SCC 218.

13. It is stated by the counsel appearing for the Delhi High Court that out

of the 79 sanctioned posts of Private Secretary, 35 posts were vacant when

the present selection process was initiated. Pursuant to the interim order

passed in this writ petition, results of the skill test have not been disclosed

and are kept in a sealed cover. The said sealed cover has been produced and

opened in the Court. Out of the 66 candidates who had appeared, only 10

have qualified in the skill test. Their eligibility norms are not known. Thus,

the petitioners would have suffice and adequate opportunity to appear in the

selection tests, when they fulfil the eligibility criteria.

14. In Shyama Charan Dash (supra), clubbing of posts for the purpose of

feeder cadre was upheld observing that this was not due to intrinsic or basic

differences of essential qualifications or the nature of duties and obligation.

No such allegation has been brought to our notice in the present case.

15. It is pointed out that service conditions and pay scales of subordinate

court employees are being rationalized and the matter is now pending

consideration. In case, there is any amendment in the pay-scales/grade-pay

of the concerned employees in subordinate courts, etc., it will be open to the

petitioners or others to make a representation. If any representation is made,

the same can be considered.

16. In view the aforesaid reasoning, we do not find any merit in the

present writ petition and the same is dismissed. Interim order is vacated.

(SANJIV KHANNA) Judge

(ASHUTOSH KUMAR) Judge JANUARY 15, 2015 VKR