Delhi High Court
Central Secretariat ... vs Union Of India And Anr on 20 October, 2016
$~01
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7446/2016
Date of decision: 20th October, 2016
CENTRAL SECRETARIAT STENOGRAPHERS SERVICE
ASSOCIATION AND ORS ..... Petitioner
Through Mr. Padma Kumar S. Advocate.
versus
UNION OF INDIA AND ANR ..... Respondent
Through Mr. Dev P. Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J. (ORAL)
Having heard counsel for the petitioner, we are not inclined to
interfere with the impugned order dated 27th January, 2016 passed by the
Central Administrative Tribunal, Principal bench, New Delhi.
2. The contention of the petitioners is that the petitioners are entitled to
notional fixation of pay, effective from 1st July of the year to which the
select list pertains, notwithstanding the date specified in Rule 2(c) of the
Central Secretariat Stenographers Service Rules, 1962 under which the term
"approved service" is defined.
3. The definition of term "approved service" as per Rule 2 (c) of the
Central Secretariat Service Rules, 1962 is as under:-
"(c) "approved service" in relation of any Grade means
(i) in respect of an officer recruited directly to that grade,
period or periods of regular service rendered in that grade,
including period or periods of absence during which he would
have held a post on regular basis in that grade but for his being
on leave or otherwise not being available to hold such post,
from the first day of July of the year, following the year in
which the examination for direct recruitment was held;
(ii) in respect of an officer recruited to that grade through
departmental examination, period or periods of regular service
rendered in that grade, including period or periods of absence
during which he would have held a post on regular basis in that
grade but for his being on leave or otherwise not being
available to hold such post, from the first day of July of the year
for vacancies of which such examination was held;"
The aforesaid clause specifically defines "approved service" to mean
the period or periods of regular service rendered in that particular grade.
Approved service, under clause (ii) relating to departmental candidates,
includes the period not only of regular service rendered in the grade but also
the period on or after the 1st day of July of the year of vacancies for which
the examination was held. Merely because the select list is published would
not mean that the persons mentioned in the select list have rendered regular
service, for appointment is made subsequent to publication of the select list.
Nevertheless, clause (ii) quoted above extends the benefit of approved
service for the departmental candidates as it is counted and begins from the
1st day of July of the year in which vacancies arise for which examinations
are held. It is not stated and observed that the selected candidates would be
treated as notionally promoted/appointed or paid wages from the year of the
vacancy to which the select list pertains. Back-dated or retrospective
promotions or pay is not the mandate of Rule 2(c). In view of the
aforestated Rule and position, the contention of the petitioners that they
should be given notional fixation of pay with reference to the year to which
the select list pertains, in our opinion, is fallacious and has to be rejected.
4. Learned counsel for the petitioners, however, contends that an
identical rule exists and is applicable to the officers belonging to Central
Secretariat Service (CS Service) and the said officers have been granted
benefit of "approved service" for notional pay from the 1st day of July of the
year of the vacancies for which examinations were subsequently held. Our
attention has been drawn to Annexure P-8 to urge that there was a delay in
holding of the tests and publication of the select list for the years 2003,
2004, 2007 and 2008.
5. The aforesaid Annexure P-8 is a file noting made by the Under
Secretary (Estt. D). As per the table quoted in the noting, the select list for
the post of Private Secretary (PS) was finalised for the years 2002-2003 on
18th May, 2006, for 2004 on 16th November, 2007, for 2007 on 1st June,
2010 and for 2008 on 20th December, 2010. Similarly, the select list for Sr.
Principal Private Secretary was finalised on 23rd June, 2005 for the years
2002-2003, on 12th August, 2008 for 2006, on 21st January, 2009 for 2007
and on 22nd July, 2009 for the year 2008. The details would only indicate
that there was a delay in finalization of the lists. Annexure P-27 is a file
noting that sets out and states the reasons for the delay in publication of the
select list for the respective years.
6. Learned counsel for the petitioners submits that the petitioners are
identically situated as the officers of the CS Service who have been granted
the notional fixation of pay for the select lists for the years 2001 to 2008.
7. The benefit of notional fixation of pay for the select lists has only
been granted to CS Service officers and not the officers of the CSS Service
to which the petitioners belong. Admittedly, per Rule 2(c) (ii) quoted above,
the benefit of "approved service" with effect from 1 st July of the preceding
year, in terms of Rule 2(c), has been given to the petitioners as well as to
other officers in the CSS Service. The Rule is not questioned or challenged
in the present writ petition.
8. In K. Madhavan & Anr. vs. Union of India (1987) 4 SCC 566, the
Supreme Court held that as a rule, retrospective appointment to a post
should not be resorted to, unless, on a sound reasoning and foundation, it
becomes necessary to sparingly do so. Further, a Division Bench of this
Court in Union of India & Anr. vs. K.L. Taneja &Anr. 2013 SCC OnLine
Del 1428 referring to the decision of the Supreme Court in Union of
India v. K.K. Vadera 1989 Supp (2) SCC 625 held that the observations of
the Supreme Court in K.K. Vadera (supra) would mean that service
jurisprudence does not jurisprudentially recognize retrospective promotions
and unless a specific rule exists evidencing to the contrary, promotions take
effect from the date the person is actually promoted and not retrospectively.
Citing a catena of decisions on the subject-matter, the Division Bench held
as under:-
"21. The cornucopia of case law above noted brings out the
position:-
(i) Service Jurisprudence does not recognize retrospective
promotion i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant
promotion from a retrospective date would be valid because of
a power existing to do so....."
9. On the question of fixation of pay where notional promotion
has been granted from an earlier date, the Supreme Court in State of
Haryana vs. O.P. Gupta (1996) 7 SCC 533, applying the "no pay for
no work" principle as stated in Paluru Ramkrishnaiah vs. Union of
India 1989 2 SCC 541, has held that a person will not be entitled to
any pay and allowance during the period for which he did not perform
the duties of the higher post. The decision in O.P. Gupta (supra) has
further been applied in State of Haryana & Anr. vs. S.K. Khosla &
Ors. (2007) 15 SCC 777. Treating or taking the vacancy year for
fixation of notional pay fixation, would not only be contrary to the
mandate of Rule 2 (c) (ii) and amount to re-writing and substituting
the position under the Rule but would also not be in consonance with
the law as laid down by the Courts. It would be in contradiction with
the first principle applicable to service jurisprudence, i.e. promotion
should not be granted retrospectively.
10. Reliance placed by the petitioners on cases of some of the officers of
the CS Service is incorrect and misplaced as in the said cases the benefit was
contrary to the position under the Rule, and was granted under a mistake and
error. The respondents have rectified and corrected the error on their part
and are no longer granting the same benefit of notional pay fixation even to
officers of CS Service. The decision to this effect as recorded in the note
dated 10th September, 2012 has been made effective and followed from the
select list for 2009 onwards. Error made in the past in a different service,
which may be based upon a particular order passed by the Tribunal, cannot
be perpetuated, for the faults and omissions have to be rectified and
corrected. As stated above, starting with the select list of 2009, benefit of
notional pay fixation in the CS Service is not being given with effect from
1st July of the year of the vacancy. The said position has been uniformly
applied and adhered to since the beginning in the present service i.e. CSS
Service. This should not be disturbed. It is also well settled that a person is
entitled to the pay-scale in the promotional post from the date he has joined
the said post and not from retrospective effect i.e. the date of vacancy. As
observed above, retrospective promotion is not the norm. In this case,
benefit of approved service would be from the date specified in Rule 2(c)(ii)
11. In case the present writ petition is allowed, we could be faced with
multiple litigations and identical prayers by other government employees
similarly situated. Undue benefit, contrary to the Rule position and settled
principles, would have a cascading and odious effect. Once this position is
accepted, it would be erroneous to grant notional pay fixation by grant of
increments from the date of vacancy, for similar benefit was erroneously
given for some years, in another service, notwithstanding the position that
the error or mistake has been rectified and corrected in the said service.
12. The writ petition has no merit and is accordingly dismissed.
SANJIV KHANNA, J.
SUNITA GUPTA, J.
OCTOBER 20, 2016
NA
