Delhi High Court

G.S. Dhodi vs Govt. Of Nct Of Delhi & Ors. on 8 December, 2016

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 3919/2015
                                     Reserved on:      24th October, 2016
                                   Date of decision: 8th December, 2016

       G.S. DHODI                                              ..... Petitioner
                                      In person.

                         Versus

       GOVT. OF NCT OF DELHI & ORS.                .... Respondents
                     Through:     Mr. Vikrant Naraya Vasudeva,
                     Advocate for R-1, 2 & 4.
                     Mr. Dev P. Bhardwaj, CGSC for UOI.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J.

G. S. Dhodi, the petitioner in this writ petition impugns order dated

18th July, 2014 passed in OA No. 2208/2012 by the Principal Bench of the

Central Administrative Tribunal.

2. The impugned order holds that the petitioner has been rightly denied

non-functional scale of Rs.8000-13500 (pre-revised) with effect from 1st

January, 1996 on notional basis and with effect from 1 st December, 2006 on

actual basis. The petitioner had also prayed for setting aside or quashing the

orders dated 17th March, 2011 and 20th March, 2012, by which his prayer for

grant of non-functional scale of Rs. 8000-13,500 was rejected by the

respondent-Government of National Capital of Delhi (GNCTD, hereafter).

The petitioner seeks grant of consequential benefits, arrears etc. as well as

revision of his retirement benefits.

3. The petitioner was appointed as Lower Division Clerk in Delhi

Administration (now GNCTD) in 1971. He was promoted to Grade-I

(DASS) in 1989 and to DANICS with effect from 12th April, 2001.

4. The GNCTD vide order dated 1st February, 2007 had decided to grant

non-functional scale of Rs.8000-13500 to ad-hoc appointees to DANICS on

completion of four years of regular service in Grade-I (DASS) with effect

from 1st December, 2006, subject to vigilance clearance. This order was to

be effective from 1st December, 2006. However, by a subsequent order

dated 19th October, 2007, the earlier order dated 1st February, 2007 was

partially modified. It was decided to grant non-functional scale of Rs.8000-

13500 in Grade-I (DASS) with retrospective effect, on notional basis with

effect from 1st January, 1996, to those who have been appointed as ex-cadre

post of DANICS on an ad-hoc basis and with actual benefit, on account of

such re-fixation of pay being with effect from 1st December, 2006. The

GNCTD issued another clarification dated 23rd August, 2007 referring to

various letters received from different departments relating to grant of non-

functional scale. In response to query No.3, the clarification given was as

under:-

"

3 Whether the vigilance clearance is required The Vigilance for the date on which the officer has clearance is to be completed four years of regular service as ascertained as on the Grade-I/Sr. PA or current vigilance clearance date on which an is required? official become eligible for non-

                                                                      functional       grade,
                                                                      which came into
                                                                      effect      1.12.2006.
                                                                      However,      if     an
                                                                      officer had completed
                                                                      four years of regular
                                                                      service    prior     to
                                                                      1/12/2006, Vigilance
                                                                              "
                                                                      Status in his case
                                                                      should ascertain as on
                                                                      1/12/2006

                                                                      "

As clarification given to query No.4 is also relevant, the same is also

reproduced below:-

"

4 Whether the upgradation of the scale of This up-gradation/grant Grade-II (DASS) is application to ex-cadre of non functional scale post or not? issued vide order no.2/50/2003/S.I/Pt/38 and 2/50/2003/S.I/Pt/39 and subsequent corrigendum 2/50/2003/S.I/Pt/40 dated 1/02/2007 is applicable only in

respect of Grade-I (DASS) and Grade-II (Dass) "

5. Subsequently, the respondents issued a further clarification vide

Office Memorandum dated 14th February, 2008, the relevant portion of

which reads as under:-

"

             SI.      Clarification            Explanation
             No.
             1        Whether      vigilance   The non-functional scale of Rs.8000-

clearance is necessary 275-13500 is admissible on completion for grant of non- of four years of regular service as Gr.I functional scale of (DASS)/Sr. PA and also to the Gr.I Rs.8000-13500 to Gr.I (DASS)/Sr.PA who have been (DASS)/Sr. PA/Adhoc appointed to ex-cadre post of DANICS DANICS. on ad hoc basis, subject to their vigilance clearance at the time of grant of Non-functional scale.

"

6. However, grant of non-functional scales could not be implemented,

inspite of the said order, for lack of clarity and as the issue was referred to

the Government of India. The Government of India by their letter dated 9 th

April, 2010 informed the GNCTD that the earlier orders regarding grant of

non-functional scale to Grade-I officers of DASS cadre, on completion of

four years of regular service, had been examined in consultation with the

Ministry of Finance, Department of Expenditure, i.e. the competent

authority. Grant of non-functional higher pay-scale was without approval of

the Ministry of Finance and hence void ab initio. The Ministry of Finance

taking cognizance of the report of the Sixth Pay Commission had advised

immediate withdrawal of orders granting non-functional pay-scale of

Rs.8000-13500 to Grade-I (DASS) officers and to make recoveries. The

matter was again referred to the Department of Expenditure in the Ministry

of Finance for re-consideration. By letter dated 27th January, 2010, the

Department reiterated their earlier stand. However, it was observed that

since the post of Grade-I (DASS) was placed in the pre-revised pay-scale of

Rs.6500-10500, the post of Grade-I (DASS) was covered by the

Implementation Cell, Department of Expenditure, Ministry of Finance OM

dated 13th November, 2009.

7. Thereafter, the competent authority in GNCTD constituted a

Committee to look into all aspects of grant of non-functional scale of

Rs.8000-13500 to Grade-I (DASS) officers, vide order No. 161 dated

12.05.2010. This Committee was to look into all aspects, including

references received from the Ministry of Home Affairs etc. and adoption of

replacement pay-scales consequent to implementation of the Sixth Pay

Commission‟s recommendations. The Committee came to the conclusion

that grant of non-functional scale to Grade-I (DASS) was within the

delegation of financial powers for creation of Group A to D posts, both on

the plan and non-plan side. The salary of the staff was paid from the funds

of GNCTD and it would be impracticable to reverse the decision. These

recommendations were approved by the Lieutenant Governor. In the

Committee‟s view the recommendations were in consonance with the

recommendations of the Sixth Pay Commission.

8. The aforesaid decision was communicated by the GNCTD to the

Ministry of Home Affairs, Government of India on 15th November, 2012.

Thereafter there was a time gap and the correspondence exchanged and

position is unclear.

9. The Services Department of the GNCTD vide order No.56 dated 3rd

February, 2015, was pleased to grant non-functional scale to Grade-I

(DASS) officers who had completed four years of regular service in Grade-I

(DASS) with effect from 1st January, 2006 as per Column Nos.5 and 6 of

Part-B, Section II(1) of the First Schedule of the Central Civil Services

(Revised Pay) Rules, 2008. The said employees were entitled to Grade Pay

of Rs.5400 in Pay Band-3. This order refers to the power conferred on the

GNCTD vide Notification S.O. 853 dated 24.09.1998 of the Government of

India, and clarification conveyed vide Government of India, Ministry of

Home Affairs letter No. 14012/02/2008-Delhi-I dated 12.01.2015.

10. The petitioner herein, who had retired on 31st December, 2010, as ad-

hoc DANICS officer made a complaint to the Public Grievance Commission

that he had been denied non-functional scale of Rs.8000-13500 as he had

worked on the post of Grade-I (DASS) for 11 years from 12th May, 1989 to

12th April, 2001. Before the Public Grievance Commission, it was stated by

the Directorate of Vigilance that two cases for initiation of major penalty

proceedings under Rule 14 of the of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965 were pending against the

petitioner as on 1st December, 2006, though no charge sheet had been issued

against him as on 1st December, 2006. The Chairman of the Public

Grievance Commission opined that as charge sheets had not been issued,

non-functional pay-scale should be given to the petitioner. He relied upon

the clarification given by the Ministry of Personnel, Public Grievance and

Pensions in OM dated 25th October, 2004 read with DOPT‟s OM dated 14th

September, 1992 issued pursuant to the judgment of the Supreme Court in

Union of India Vs. K.V. Jankiraman, AIR 1991 SC 2010, recording that

sealed cover procedure would be justified only when (i) the officer is under

suspension, (ii) major penalty proceedings have been initiated and articles of

charge have been served (iii) decision to prosecute the charged officer had

been taken or charge sheet had been filed.

11. Pursuant to the aforesaid opinion expressed by the Public Grievance

Commission, the matter was examined by the Directorate of Vigilance of

the GNCTD and it was pointed out vide letter dated 9th November, 2011 that

the petitioner was cautioned vide order dated 21st February, 2008 in one

disciplinary proceeding. In the second disciplinary proceeding, the

petitioner was chargesheeted for major penalty vide memorandum dated 25th

March, 2010 and the proceedings were in progress. By letter dated 9th

August, 2012, the petitioner was informed that his representation for grant

of non-functional pay-scale was under consideration by the Committee

constituted vide the letter of the Government of India dated 9th April, 2010.

12. It was in these circumstances that the petitioner filed OA

No.2208/2012 before the Tribunal in which the impugned order dated 18 th

July, 2014 has been passed.

13. Another fact, which may be noted, is that vide order dated 26 th

August, 2013, the disciplinary authority in the second charge sheet after

considering the evidence and facts on record has imposed penalty of

withholding of 10% of the monthly pension of the petitioner for a period of

three years. Gratuity, it was directed, would be released if not otherwise

required.

14. The petitioner, who had appeared in person, had submitted that grant

of non-functional pay-scale to Grade-I (DASS) officers with four years of

regular service was neither vacancy dependent, nor selection based. Thus,

the petitioner should have been granted the said non-functional grade as he

was not facing any departmental proceedings as on 1 st December, 2006.

Reliance was placed upon decision in the case of K.V. Jankiraman (supra),

for on the said date i.e. 1st December, 2006, no departmental proceedings

were pending by issue of a charge sheet. Sealed cover procedure could not

have been followed. Reference is also made to DOPT‟s Office

Memorandum dated 14th December, 2007, wherein it is observed that

vigilance clearance shall not be withheld due to filing of a complaint unless

it is established, on the basis of at least a preliminary enquiry or on the basis

of information that the concerned department already has in its possession,

prima facie substance to verify the allegations regarding corruption,

possession of disproportionate assets, moral turpitude or violation of the

conduct rules. Vigilance clearance should not be withheld if the preliminary

enquiry takes more than three months. There were other similar stipulations

as well. It was observed that vigilance clearance would be decided on a

case-to-case basis keeping in view the sensitivity of the purpose, gravity of

the charges and the facts and circumstances in each case.

15. We find that there is incongruity and conflict between the petitioner‟s

argument predicated on the decision in the case of K.V. Jankiraman (supra)

and the reliance placed upon the Office Memorandum dated 14 th December,

2007. K.V. Jankiraman's case dealt with 'sealed cover procedure' and not

grant of vigilance clearance, which was subject matter of the Office

Memorandum dated 14th December, 2007. In K.V. Jankiraman's case the

issue in question was when departmental proceedings could be treated as

pending and in that context, it was observed that sealed cover procedure

would apply when the officers who are under suspension, or against whom a

charge sheet had been issued, or a criminal trial was pending. It would not

apply when the allegations against the employee were pending investigation

[see decision of a single Judge of this Court in Y.N.P. Sinha Vs. Union of

India & Others, (2002) 95 DLT 186].

16. The petitioner has also relied upon the decision in the case of Coal

India Ltd. and Ors. Vs. Saroj Kumar Mishra, (2007) 9 SCC 625. In the

said case, referring to the concept of vigilance clearance, the finding of the

Supreme Court was that the employer, i.e. the appellant, had not pleaded or

setup a case that pursuant to the complaint received they had satisfactorily

arrived at a conclusion that a charge sheet was likely to be issued on the

basis of the preliminary enquiry held in that behalf, or otherwise. The

earlier decision of the Supreme Court in Manoj Kumar Singh Vs. The Coal

India Ltd. and Ors. dated 2nd January, 2006 and subsequently reported as

(2006) 13 SCC 205 was held to be inapplicable, for this decision did not lay

down any ratio decidendi. In Manoj Kumar Singh (supra), a decision to

take action against the employee had been taken and, therefore, he was not

granted vigilance clearance. These judgments do, however, draw a clear

distinction between sealed cover procedure and vigilance clearance.

17. We would now like to refer to other case law on the subject of

vigilance clearance. In The Central Provident Fund Commissioner Vs.

Ashok Dubey 1993 Supp (2) SCC 708, an officer of Canara Bank was

selected by the Union Public Service Commission for appointment to the

post of Assistant Provident Fund Commissioner in the Employees'

Provident Fund Organisation. A letter of appointment etc. had been issued

by the Provident Fund Department and the employee had also sent a letter of

resignation to the bank. At that time, the bank refused to grant vigilance

clearance as departmental proceedings had been initiated and were pending.

The letter of resignation was not accepted by the bank. It was held that

vigilance clearance or integrity certificate was absolutely necessary and,

therefore, the High Court had erred in granting the relief to the petitioner

that he should be appointed to the new post.

18. In Union of India Vs. Pushpa Rani and Ors., (2008) 9 SCC 242, the

Supreme Court referred to the concept of cadre, which means strength of

service or part of service sanctioned as a separate unit, and the concept of

promotion and non-financial upgradation, and it was opined as under:-

"23. In the service jurisprudence which has developed in our country, no fixed meaning has been ascribed to the term "cadre". In different service rules framed under proviso to Article 309 of the Constitution as also rules framed in exercise of the powers of delegated legislation, the word "cadre" has been given different meaning.

24. In A.K. Subraman v. Union of India [(1975) 1 SCC 319 : 1975 SCC (L&S) 36] a three-Judge Bench of this Court while interpreting the provisions contained in Central Engineering Service, Class I, Recruitment Rules, 1954, observed as under: (SCC p. 328, para 20)

"20. ... The word „grade‟ has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts."

x x x x x x xx

31. In legal parlance, upgradation of a post involves the transfer of a post from the lower to the higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment -- D.P. Upadhyay v. N.R. Baroda House [(2002) 10 SCC 258 : 2003 SCC (L&S) 250] .

32. The word "promotion" means "advancement or preferment in honour, dignity, rank or grade". "Promotion" thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law the expression "promotion" has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post" -- State of Rajasthan v. Fateh Chand Soni [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] .

In the said case, the issue involved was whether there should be reservation

in "financial upgradation" as per the scheme and the issue was answered in

affirmative.

19. Reference can be also made to the judgment of the Supreme Court in

Union of India Vs. R.S. Sharma, (2000) 4 SCC 394, wherein the employee

had placed reliance upon K.V. Jankiraman (supra) to assert that sealed

cover procedure can only be resorted to after the charge memo had been

received or the charge sheet was filed, and till that time the employee cannot

be denied promotion which he is entitled to. The said contention was

rejected on the ground that the employee was not actually promoted even

when the matter was pending in the Supreme Court and that sanction for

prosecution had been issued in the meanwhile. Thus, even if the sealed

cover procedure was not followed, the promotion could not have been

granted, due to the intervening events.

20. The effect of the aforesaid decisions is that non-functional pay-scale

would not be granted when the intervening events predicate non-grant of

vigilance clearance. This precept would be good, and applicable, even in the

case of a non-selection or non-vacancy based pay scale upgrade. When

vigilance clearance is required, the issue from vigilance perspective has to

be examined. Sealed cover procedure is applied to Departmental Promotion

Committee meetings and the two operate independently.

21. An employee need not be promoted even after the Departmental

Promotion Committee has been held and the employee is declared eligible

and fit for promotion, in case the employee is facing departmental

proceedings or prosecution, before he is actually promoted. This may

happen when there is some time gap between the date when the

Departmental Promotion Committee meeting was held and the date when

the promotion is due to take effect.

22. We would, at this stage, like to refer to and examine the decision of

the Supreme Court in Union of India & Ors. Vs. Anil Kumar Sarkar,

(2013) 4 SCC 161. The facts of the said case are distinguishable and quite

distinct and different from the facts of the present case. In Anil Kumar

Sarkar's case as per the Departmental Promotion Committee held, the

employee was considered and placed in the extended select list. Sealed

cover procedure was not followed as the conditions stipulated in

Jankiraman's case (supra) were not applicable. The Supreme Court

dismissed the appeal filed by the Union of India as the batch mates of the

employee were promoted on 21st April, 2003, when neither charge sheet had

been issued against the said employee, nor was he placed under suspension.

There was, therefore, no reason why the respondent-employee could not be

promoted along with his batch mates and juniors on 21 st April, 2003.

23. The Union of India had placed reliance on clause 7 of the Office

Memorandum dated 14th September, 1992, which provides as under:-

"7. A government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in Para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also."

Reliance placed on clause 7 was rejected observing that in the said case, as

on 21st April, 2003 when the batch mates and juniors of the employee were

promoted, the said conditions of clause 7 were not satisfied. In the facts of

the present case, the factual position is different. It is not the case of the

petitioner that any of his batch mates were promoted or granted non-

functional grade, prior to the date when he was served with the two charge

sheets. Thus, when the case of the petitioner was to be considered for grant

of non-functional scale, he had already been chargesheeted. Consequently,

he could not be given vigilance clearance. The decision, therefore, in the

case of Anil Kumar Sarkar (supra) is not applicable and does not support

the petitioner.

24. We have referred to several office memoranda issued by the