Delhi High Court
Hansraj & Ors vs Union Of India & Ors. on 13 November, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 14th September, 2017
Date of Decision: 13th November , 2017
+ W.P.(C) 8437/2015 & C.M. Nos.18078,19493,28649/2015
HANSRAJ & ORS ..... Petitioners
Through Ms. Jyoti Singh, Sr. Adv with
Mr. S. Padma Kumar and Mr.
Pradeep Dahihya, Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Sanjeev Narula, CGSC
with Ms. Anumita Chandra,
Adv.
Mr. R.N Singh, Adv for R- 7 to
10.
+ W.P.(C) 9921/2015 & C.M. Nos.24068-24069/2015,
10356/2016
NITIN ROSE & ANR. ..... Petitioner
Through Ms. Jyoti Singh, Sr. Adv with
Mr. S. Padma Kumar and Mr.
Pradeep Dahihya, Adv.
versus
UNION OF INDIA & ORS. ..... Respondent
Through Mr. Jasmeet Singh, CGSC for
UOI with Ms. Gayatri Aryan,
Adv.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
WP(C) No.8437/2015 , W.P.(C) 9921/2015 Page 1 of 46
JUDGEMENT
REKHA PALLI, J
W.P.(C) 8437/2015 & W.P.(C) 9921/2015
1. The present writ petitions assail the order dated 24.07.2015
passed by Central Administrative Tribunal, Principal Bench, New
Delhi in O.A No.4503/2014, whereby the Tribunal has rejected the
O.A filed by the Petitioners. The Petitioners had filed the aforesaid
common O.A challenging the action of the Respondent No.1 i.e. the
Ministry of Statistics & Programme Implementation whereby, vide
OM dated 04.12.2014, it had decided to de-cadre twenty nine posts
of Investigator Grade-II of Labour Bureau and one post of
Statistical Assistant of Department of Post from the Subordinate
Statistical Service (hereinafter referred to as SSS) with immediate
effect. This would result in the Petitioners being reverted back to
the Labour Bureau, from which they had been absorbed into the
SSS. However, they were given the option of being retained in the
SSS, but on the same posts in which they had been encadred.
2. The brief facts as relevant for the adjudication of the present
petition may be noted. The Petitioners had been appointed as
Investigator Grade-II in the Labour Bureau (Respondent No.6)
under the Ministry of Labour and Employment by way of direct
recruitment/promotion during the years 1997-2003. The next
promotional grade as per hierarchy in the Labour Bureau is that of
Investigator Grade-I. Based on the recommendations of the Vth
Central Pay Commission a notification dated 30.09.1997 was issued
granting the replacement scale of Rs.5500-9000/- to the post of
Investigator Grade-II and of Rs.6500-10500/- to the promotional
post of Investigator Grade-I.
3. Based on the notification dated September 30, 1997,
Respondent No.6-the Director General, Labour Bureau, placed the
Investigator Grade-I and Investigator Grade-II of Labour Bureau
the revised pay scale of Rs. 6500-10500 and Rs. 5500-9000,
respectively w.e.f. 01.01.1996.
4. However, vide an order dated 20.03.1998 issued by the Office
of Controller of Accounts, Ministry of Labour, the scale of
Investigators Grade-II in Respondent No.6 was reduced to Rs.
5000-8000 from that of Rs. 5500-9000. The Investigators Grade-II
challenged this action by filing O.A. No. 239-CH/1998 and 240-
HP/1998 before the Central Administrative Tribunal, Chandigarh
and Shimla Bench. Upon dismissal of these OAs by the Tribunal
vide its Common Order dated 18.05.1999, a Civil Writ Petition No.
7311/1999 was preferred by these Investigator Grade-II before the
High court of Punjab and Haryana challenging the Tribunal‟s order
dated 18.05.1999. During the pendency of the Writ Petition before
Punjab and Haryana High Court, the Ministry of Labour and
Employment (Respondent No.5) issued an order dated 21.03.2000
placing the Investigator Grade-II in the pay scale of Rs. 5000-
8000/-. The High Court vide its order dated 07.08.2000 allowed the
Writ Petition by quashing the above mentioned order dated
21.03.2000 passed by Ministry of Labour and Employment
(Respondent No.5).
5. The Respondent No.5 i.e. Ministry of Labour and Employment
challenged the order dated 07.08.2000 passed by High court of
Punjab and Haryana by way of Special Leave Petition (Civil) No.
21480/2000 before the Supreme Court. However, during the
pendency of the SLP (Civil) No. 21480/2000, Respondent No.3, i.e.
the Ministry of Finance issued another Notification dated
30.04.2001 modifying its earlier Notification dated 30.09.1997
revising the pay scale of Investigator Grade-II from Rs. 5500-9000
to Rs. 5000-8000 w.e.f. 01.01.1996 and, therefore, the Supreme
Court disposed of the SLP (Civil) No. 21480/2000 vide its Order
dated 25.09.2001, giving liberty to the Respondents, therein, i.e. the
Investigators Grade-II to challenge the new notification dated
30.04.2001 issued by Ministry of Finance before an appropriate
forum.
6. Accordingly Investigators Grade-II of the Labour Bureau
(Respondent No.6) including Petitioners No. 1 & 2 then approached
the Tribunal, Chandigarh Bench by way of O.A. No.1292-CH/2001
challenging this new notification dated 30.04.2001 issued by
Respondent No.3, which OA was allowed by the Tribunal vide its
order dated 09.03.2004. The Tribunal quashed the notification
dated 30.04.2001 issued by Ministry of Finance and restored the
upgraded pay scale of Rs. 5500-9000 w.e.f. 01.01.1996 alongwith
due arrears to the Applicants therein, which included Petitioner No.
1 & 2 who were also Investigators Grade-II in Respondent No.6.
7. The order passed by the Tribunal, Chandigarh Bench was
challenged by Respondent No.5 before the High Court of Punjab
and Haryana by way of C.W.P. No. 13743-CAT/2004, which
Petition was dismissed by the High Court vide its Order dated
21.03.2011. This Order passed by the High court of Punjab and
Haryana was not challenged by the Respondents and the same thus
attained finality. The Respondents, however, implemented the
same only qua the applicants in the O.A. No. 1292-CH/2001 and
granted them the enhanced pay scale of Rs.5500-9000/- w.e.f
01.01.1996. In these circumstances, other similarly situated
Investigators Grade-II, who had not been granted the pay scale of
Rs. 5500-9000 filed O.A. No. 1311-CH/2011 before the Central
Administrative Tribunal, Chandigarh Bench, which was also
allowed by the Tribunal vide its order dated 04.12.2012. This order
of the Tribunal was also implemented by Respondent No.5 and,
accordingly, the remaining Investigators Grade-II of Labour Bureau
were granted the pay scale of Rs. 5500-9000/- w.e.f. 01.01.1996
itself.
8. In the interregnum, while the aforesaid litigation initiated by the
Petitioners, who were Investigators Grade-II in the Labour Bureau,
for grant of pay scale of Rs.5500-9000/- w.e.f. 01.01.1996 was
pending, the Central Government, based on the recommendations of
the Vth Central Pay Commission (hereinafter referred as CPC),
decided to constitute the SSS.
9. It would be appropriate to reproduce para 81.17 of the
recommendations given by the 5th CPC which led to the constitution
of the SSS. The same reads as follows:-
"81.17 A large number of posts of Junior and Senior
Statistical Investigators in the scales of Rs. 1400-2300/-
and Rs. 1640-2900 are spread over different ministries and
offices of the Government of India. We observed that some
of these posts are isolated and the chances of promotions
of the incumbent in such cases are very bleak. We
recommend that all such posts with statistical functions be
constituted into a Subordinate Indian Statistical Service
(SSS) and all recruitment to the feeder posts in India
Statistical Service (ISS) be centralised and placed under
the ISS cadre Controlling Authority. All post of Junior
Statistical Investigator in the scale of Rs. 1400-2300 be
upgraded and given the replacement scale of Rs.1600-
2660. All Junior Statistical Investigators / Statistical
Assistant in the scale of Rs. 1400-2300 will henceforth be
called Statistical Investigator Grade-II. All posts of Senior
Statistical Investigators/ Assistant at present in the pay
scale of Rs. 1640-2900 may be given the replacement scale
of Rs.2000-3500 and be called Statistical Investigator
Grade-I. At the level of Statistical Investigator Grade-II,
recruitment may be taken up with graduation in Statistics
as a minimum qualification. The entrants in the scale
would move through the replacement scale of Rs.1640-
2900 and Rs.2000-3500 in a time bound manner. Post-
graduation may be made the minimum manner. Post-
graduation may be made the minimum qualification for
entry to 50% of the post of Statistical Investigator Grade-I.
The entrants to this level will move through the
replacement scale of Rs.2375-3750 and the entry scale of
ISS Group „A‟ in a time bound manner."
10. Before notifying the Recruitment Rules of SSS laying down its
service structure and other service conditions of its employees, a
tripartite meeting was held on 13.12.2001, between Respondent
No. 1, 2 & 3 i.e. Ministry of Statistics & Programme
Implementation, Department of Personnel & Training and Ministry
of Finance, respectively, to finalise the service structure and other
aspects of the SSS. In this meeting a policy decision was taken that
the total number of existing posts of the Ministries/Offices offered
for inclusion in SSS would be placed in the ratio of 40:60 into
Group „B‟ and Group „C‟ Services respectively. Accordingly, 40%
of total allocated posts were to be placed in the pay scale of Rs.
6500-10500/- as Investigator Grade-I and the remaining 60% of
posts in the pay scale of Rs.5000-8000/- as Investigator Grade-II. It
was also decided that 30% posts of each of the two grades would be
placed in the non-functional scale of Rs. 7450-11500/- and Rs.
5500-9000/-, respectively.
11. In this tripartite meeting, the issue regarding en-cadrement of
the post of Assistant Superintendent from NSSO (FOD) into the
SSS was also considered. The post of Assistant Superintendent had
initially been granted the Vth CPC pay scale of Rs. 1600-2660/- +
Rs. 75/- (as special pay for all practical purpose) and classified as a
Group „C‟ post but in accordance with the recommendations of the
Vth CPC contained in para 81.16 of its report, these Assistant
Superintendents had been given the upgraded pre-revised pay scale
of Rs.1640-2900/- (Pre-revised) and an equivalent revised pay scale
of Rs.5500-9000/- w.e.f. 01.01.1996. Based upon this upgradation,
the issue of classification of these posts of Assistant Superintendent
(FOD) as Group „B‟ had been taken up with DoP&T (Respondent
No.2), being the nodal agency for all Service(personnel) matters,
which had conveyed its concurrence for classification of these posts
as Group „B‟, though with certain suggestions including the need to
carry out necessary amendments in the relevant Recruitment Rules.
However, since these posts of Assistant Superintendent which were
being offered for en-cadrement in SSS in December, 2001 were in
the pay scale of Rs.1600-2660/- (revised scale of Rs.5500-9000/-)
which was not a recognised pay scale for inclusion into SSS, a
policy decision was taken by the Respondents in the same tripartite
meeting held on 13.12.2001, that, for the 1388 posts of Assistant
Superintendents of NSSO(FOD) in the pay scale of Rs.1600-2660/-
, the pay scales be adjusted in such a manner so as to ensure that
their pay scales become identical to the posts in the SSS.
Accordingly, while en-cadring them into the SSS, 861 posts of
Assistant Superintended in NSSO were upgraded to the pay scale of
Rs.6500-10500/- and the rest were down-graded to the pay scale of
Rs.5000-8000/-. The post allocation in NSSO (FOD) before and
after formation of SSS was as under:-
Sl. Allocation in NSSO (FOD) Allocation in NSSO(FOD)
No. before SSS after SSS
Name of Post Number Name of post Numb
of posts er of
posts
1. Superintendents 357 Statistical
[(Group „B‟, Investigator
Gazetted, Rs.6500- Grade-II
10500(Rs. 1640- [Functional] 1218
2900)] [(Group „B‟,
2. Assistant 1388 Gazetted,
Superintendents[(Gro Rs.6500-10500]
up „B‟, Non- including SI
Gazetted, Rs.5500- Grade-I (NFSG).
9000(Rs.1600-2660)]
3. Investigator [(Group 1482 Statistical 2009
„C‟, Non-Gazetted, Investigator
Rs.5000- Grade-IV
8000(Rs.1400-2300)] [Functional]
[(Group „C‟, Non
Gazetted,
Rs.5000-8000/-]
including SI
Grade-III
(NFSG)
Total 3227 3227
The posts of Assistant Superintendent from NSSO were thus en-
cadred and included in Schedule- I, II, III & IV of Subordinate
Statistical Service Rules vide Notification dated 12.02.2002 (Group
„B‟ & C), after ensuring that these posts had been brought at par and
had become identical as envisaged under the RRs so that they did not
conflict with the general recommendations contained under Para
81.17 of 5th CPC.
12. Thus the SSS which was constituted Vide Respondent No.1‟s
O.M dated 30.01.2002, had the following four-grade structure.
(a) Statistical Investigator Grade-IV in the pay scale of
Rs. 5000-8000/- Functional (No. of posts 1612)
(b) Statistical Investigator Grade-III in the pay scale of
Rs. 5500-9000/- Non-functional (No. of posts 691)
(c) Statistical Investigator Grade-II in the pay scale of
Rs. 6500-10500/- Functional (No. of posts 1075)
(d) Statistical Investigator Grade-I in the pay scale of Rs.
7450-11500/- Non-functional (No. of posts 461)
13. Pertinently, it may be noted that despite all departments/
Ministries/Organisations being asked to offer Statistical posts for
induction into SSS, the Labour Bureau(Respondent No.6) at this
stage did not offer the post of Investigator Grade-II for en-
cadrement in SSS and, in fact offered the post of Investigator
Grade-I for en-cadrement in SSS.
14. After the formation of the SSS, Recruitment Rules for both
Group „B‟ & „C‟ namely Subordinate Statistical Service (Group „B‟
Gazetted) Rules, 2002 (hereinafter referred to as Group „B‟ Rules)
and Subordinate Statistical Service (Groups C) Rules, 2002
(hereinafter referred to as Group „C‟ Rules) were notified on
12.02.2002. The Rules for Group „B‟ Gazetted posts were distinct
from the Rules for Group „C‟ posts. The posts with Statistical
Investigator Grade-I & II were placed in Group „B‟ Rules, while
those of Statistical Investigator Grade-III & IV were placed in
Group „C‟ Rules of the SSS.
15. At this stage it may be useful to reproduce Rule 8 of Group „B‟
Rules dealing with the initial constitution of the Service and the
same reads as under:
"8. Initial Constitution of the Service.
(i) The initial constitution of the Service shall be made from
amongst Group „B‟ statistical function posts spread over
different Ministries/Departments/Organisations of the
Government of India, which have been offered for inclusion in
the Subordinate Statistical Service.
(ii) The Controlling Authority shall constitute a Selection
Committee headed by a Senior Administrative Grade Officer of
Indian Statistical with three other members from different
Ministries/ Departments/Organisations participating in the
service to determine the suitability of the existing departmental
candidates for appointment and absorption to Statistical
Investigator Grade-II of the Service and to prepare an order of
preferences for each grade.
Explanation: The absence of a member other than the
Chairman shall not invalidate the proceedings of the Selection
Committee.
(iii) Any departmental candidate referred to in sub-rule (ii)
who is selected to Statistical Investigator Grade-II of the
Service but does not desire to be absorbed in the Service, may
continue to hold the post held by him immediately before the
selection, as if he has not been selected.
(iv) The Group „B‟ departmental candidates who are not
absorbed at the initial constitution of the service will continue
to work as at present.
Special provisions regarding departmental candidates:-
(v) Notwithstanding anything contained in rule 9, the Group
„B‟ departmental candidates referred to in sub-rule (iv) may be
considered by the Controlling Authority for appointment to the
Service at a subsequent stage or stages after the suitability of
such candidates for appointment to various grades of the
Service is determined.
(vi) Notwithstanding anything contained in rule 9, the Group
„B‟ Departmental candidates as per sub-rules (iv) and (v)
above may be considered against the recognized and approved
posts from other Departments which offer the posts in due
course after the initial constitution, by the Controlling
Authority for appointment to the service at a subsequent date
after determining their suitability.
16. Similarly, as per Rule 8 of Group „C‟ Rules, the initial
constitution of the Group „C‟ posts was from amongst Group „C‟
posts offered by Ministries/Departments/Organisations of
Government of India. The Group „C‟ Rules, as notified, had
provisions similar to those contained in Group „B‟ Rules except for
the fact that Group „C‟ Service consists of Statistical Investigators
Grade-III and Grade-IV. Amongst these Group „C‟ post, Grade-III
posts were notified as non-functional, while Grade-IV posts were
notified to be a functional Grade.
17. Upon promulgation of the SSS Group 'B' and Group 'C' Rules,
the Respondent No. 1 once again invited options by way of a
revised performa from employers. This time, the Respondent
No.6/Labour Bureau, Ministry of Labour and Employment, vide its
Letter dated 28.03.2002, offered 13 posts of Investigator Grade-I (in
pay scale of 6500-10500) for Grade-II of the SSS and 14 posts of
Investigator Grade-II (in pay scale of 5000-8000) for Grade-IV of
the SSS. Keeping in view the fact that the case for grant of pay
scale of Rs.5500-9000 for Investigator Grade-II was pending before
the Central Administrative Tribunal, Chandigarh Bench, the Labour
Bureau‟s letter stated that the offer of these 14 posts to Grade-IV
was subject to the outcome of the pending case.
18. In accordance with the aforesaid RRs of SSS the post of
Investigator Grade-I as offered by the Labour Bureau was classified
as a Group 'B' post with the pay scale of Rs. 6500-10500/- and
included in Schedule IV of the SSS Group „B‟ Rules, 2002. On the
other hand, the post of Investigator Grade-II in Labour Bureau,
which was the post held by the Petitioners and was the feeder grade
for Investigator Grade-I, had been classified as a Group 'C' post in
the pay scale of Rs. 5000-8000/- and included in Schedule IV of the
SSS Group „C‟ Rules, 2003. The encadrement of these posts
offered by the Labour Bureau was done vide notification dated
04.04.2003 issued by Respondent No.1. Consequently, on
01.04.2004, Petitioners No. 6,9,10 and 11 were absorbed and
appointed in SSS as Statistical Investigator Grade-IV (Group 'C') in
the pay scale of 5000-8000/-.
19. After some of the Petitioners had already been en-cadred in the
SSS, the Controlling Authority on 03.08.2004 issued an O.M.
stipulating the following implications of non-opting for absorption
in the SSS:
(i) Those incumbents, who have not desired to be absorbed in
SSS or not given their option within stipulated date, shall
continue to hold the substantive posts held by them on
personal basis, will not be entitled for promotions in the SSS
and nay ad-hoc arrangements (like ad-hoc promotions)
cannot be protected.
(ii) The incumbents holding said posts will continue in the
same post till they vacate the post by way of retirement or
other reasons. The post vacated by these incumbents shall be
filled up by SSS.
(iii) The incumbents holding said posts will continue in the
same post till they vacate the post by way of retirement or
other reasons. The post vacated by these incumbents shall be
filled up by SSS.
(iv) The ISS recruitment rules are likely to be amended to
recognize the SSS as feeder category for promotion to JTS
Grade IV of ISS. Absence of willingness for absorption in the
SSS may forfeit the right of non-opt less for promotion into
JTS of ISS cadre.
20. Meanwhile, upon acceptance of the VIth CPC and
consequential notification of the CCS (Revised Pay) Rules, 2008 on
29.08.2008, the structure of the SSS which comprised of four
grades was restructured to comprise of only two grades. As a result
of this restructuring, the posts of Statistical Investigator Grade-I and
Statistical Investigator Grade-II were merged into a single post of
Statistical Investigator Grade-I with the Grade pay of Rs. 4600 and
the posts of Statistical Investigator Grade-III and Statistical
Investigator Grade-IV were merged into a single post of Statistical
Investigator Grade-II with Grade pay of Rs. 4200, w.e.f.
01.01.2006.
21. After this restructuring, 15 posts of Investigator Grade-II were
offered by the Labour Bureau vide letter dated 22.09.2010 for en-
cadrement as Statistical Investigator Grade-II in the SSS with the
Grade Pay of Rs. 4200/-. The same were, accordingly, en-cadred in
the SSS vide O.M. dated 13.10.2010. Consequently, Petitioner No.
1,2,3,4,5,7,8 and 12 were also absorbed in SSS as Statistical
Investigators Grade-II vide SSS order dated 01.03.2011 passed by
Respondent No.1.
22. While the Petitioners thus stood encadred in the SSS in the
posts of Statistical Investigator Grade-II with the pre-revised pay
scale of Rs.5000-8000/-, the order dated 09.03.2004 of the
Chandigarh Bench of the Tribunal in O.A. No. 1292-CH/2001,
granting them the higher pay scale of Rs.5500-9000/-, was upheld
by the High Court of Punjab and Haryana vide its order dated
21.03.2011. Consequently, as noted hereinabove, Respondent No.6
i.e. the Labour Bureau placed Petitioners No.f 1 and 2, who were
parties to the litigation, in the higher pay scale of Rs. 5500-9000/-
w.e.f. 01.01.1996.
23. Upon restoration of the pay scale of Rs. 5500-9000/- w.e.f.
01.01.1996, Petitioners No. 1 & 2, by placing reliance on the
DoPT‟s O.M. dated 20.4.1998, requested the Respondent No. 1 to
place them appropriately in the seniority list of Group „B‟ posts by
considering the higher pay scale awarded to them by the Labour
Bureau. It was their contention that in view of the DoPT‟s O.M.
dated 20.4.1998, which directed that posts carrying a scale of pay
with a maximum of not less than Rs.9,000 but less than Rs.13,500
had to be classified as a Group „B‟ post, they could no longer be
placed in the seniority list of Group „C‟ employees. Their plea was
that in view of their enhanced pay scale of Rs.5500-9000/- they
now had to be treated as having been absorbed into the SSS in a
Group 'B' post.
24. Based on these representations, the Respondent No. 1, while
issuing the draft seniority list of Statistical Investigator Grade-II
vide O.M. dated 23.05.2012, revised the seniority of Petitioner 1and
2 vis-a-vis their earlier seniority fixed vide O.M. dated 12.11.2008,
and placed them both as senior to those officials who had been
holding the post in the pay scale of Rs. 5000-8000/- prior to the
constitution of the SSS. The Petitioners 1 and 2, however, were
aggrieved by the fact that they had still been placed in the seniority
list of a Group 'C' post instead of being placed in the seniority list of
the Group 'B' post of Statistical Investigator Grade-II. The claim of
the Petitioners was that since they had been placed in the pay scale
of Rs. 5500-9000/-, they were entitled to be treated as holders of
Group „B‟ posts since, according to the DoP&T‟s OM dated
20.04.1998, this enhanced pay scale of Rs.5500-9000/-
corresponded with Group „B‟ posts. The Petitioner‟s request to
place them in the seniority list of Group „B‟ posts was, however,
not accepted by the Respondents and even in the draft seniority list
of Statistical Investigator Grade-II issued vide O.M. dated
02.07.2013, the Petitioners, though treated as senior to those
officials who were holding the post in the pay scale of Rs. 5000-
8000/-, were still placed in the seniority list of Statistical
Investigator Grade-IV, a Group 'C' post, alongwith other employees
in the pay scale of Rs. 5000-8000/-.
25. Another relevant factor which may be noticed is that, though
the Respondent No.6 had initially implemented the judgment dated
21.03.2011 of the High Court of Punjab and Haryana, qua the
parties in those Writ Petitions only, but subsequently the
Chandigarh Bench of the Tribunal vide its order dated 04.12.2012
extended the benefits of the higher pay-scale of Rs.5500-9000/- to
all the persons holding the post of Investigator Grade-II of Labour
Bureau. As a result of this subsequent order of the Tribunal, the
Respondent No.6- Labour Bureau, restored the pay scale of Rs.
5500-9000 for all the Petitioners herein w.e.f. 01.01.1996 and not
merely Petitioner No.1 & 2, as had been done initially.
26. After granting the enhanced pay scale of Rs.5500-9000/- to all
the Investigators Grade-II w.e.f. 01.01.1996 the Labour Bureau i.e.
Respondent No.6 also issued an OM dated 20.08.2013 directing that
the post of Investigator Grade-II would now ipso facto be classified
as Group „B‟ post. While giving this direction, the Respondent
No.6 relied on DoP&T‟s OM dated 20.04.1998 according to which
all posts carrying a scale of pay with a maximum of not less then
Rs.9000/- but less than Rs.13,500/- would be classified as the
Group „B‟ post. The Respondent No.6 thus came to the conclusion
that the post of Investigator Grade-II in Labour Bureau dejure stood
classified as a Group „B‟ post w.e.f 28.04.1998.
27. Armed with this OM dated 20.08.2013 issued by Respondent
No.6, the Petitioners made further representations to Respondent
No.1 reiterating their request for determining their seniority in the
appropriate slot of Group „B‟ posts by keeping in view their
enhanced pay scale of Rs.5500-9000/- in the Labour Bureau w.e.f.
01.01.1996 i.e. prior to their en-cadrement in the SSS. Based on
these representations made by the Petitioners as well as the OM
dated 28.08.2013 issued by Respondent No.6, the Respondent No.1,
after consultation with the DoP&T and Ministry of Law, issued the
impugned OM dated 04.12.2014 conveying the fact that it had
decided to de-cadre the 29 post of Investigator Grade-II of Labour
Bureau and one post of Statistical Assistant of Department of Post
from SSS with immediate effect. While issuing the aforesaid OM,
the Respondent No. 1 also noticed the fact that these 29 posts had
been offered for en-cadrement in SSS in the pay scale of Rs.5000-
8000/-(Group „C‟), though subject to outcome of the court cases
pending in the CAT, Chandigarh Bench and had, accordingly, been
en-cadred in the pay scale of Rs.5000-8000/- as a Group „C‟ post
in the light of the RR‟s dated 12.02.2002. This OM also recorded
the fact that in view of the higher pay scale extended to those 29
officials, the said post of Investigator Grade-II did not qualify to be
en-cadred in SSS, and hence the en-cadrement of these incumbents
had become infructuous. However, all the incumbents including the
Petitioners were given an option to either get de-cadred or to remain
in the SSS based on the seniority position assigned to them in the
cadre of Statistical Investigator in Grade-IV in pay scale of Rs.
5000-8000/-. The conditions imposed by this OM in respect of
those Statistcal Investigator Grade-IV who wanted to continue in
the SSS, read as under:-
(i) Agree that pay scale of Rs.5500-9000 restored to them by
Hon'ble Courts will not be a factor relevant for fixing pay or
seniority.
(ii) All representations made by the applicants be treated as
withdrawn.
(iii) The matter may not be called in question before any court of
law in future.
28. In these circumstances, the Petitioners, who believed that as a
result of the restoration of their pay scale, they were entitled to be
placed in the SSS in the higher grade which belongs to a Goup 'B'
post, being aggrieved by this O.M. dated 04.12.2014 which rejected
their demand, approached the Tribunal by way OA no. 4503/2014.
29. While the Petitioners‟ OA was pending adjudication before the
Tribunal, a number of letters and OM‟s were exchanged between
Respondent No.1,2,3 & 6 and it transpires from the record that,
while Respondent No.6 kept insisting that it being the cadre
controlling authority of Investigator Grade-II post at the relevant
point of time on 20.04.1998, had correctly reclassified the post of
Investigator Grade-II as Group „B‟ w.e.f. 20.04.1998 in accordance
with the DoP&T‟s OM dated 20.04.1998, on the other hand
Respondent No.1 insisted that the Labour Bureau was no longer the
cadre controlling authority of these 29 Investigator Grade-II posts
which already stood en-cadred in SSS.
30. We, therefore, deem it appropriate to reproduce the relevant
extract of the OM dated 17.04.2015 issued by Respondent No.1,
whereby it had reiterated its stand that the Labour Bureau i.e
Respondent No.6 was no longer the cadre controlling Authority for
the 29 posts which already stood en-cadred in SSS, hereinbelow:-
Subsequently, as a result of unilateral decision Labour
Bureau had declared the post of Statistical Investigator Gr.
II as Group 'B' posts vide their O.M. dated 20.8.2013 with
retrospective effect, i.e. w.e.f 20.04.1998.
As per statutory provisions contained in DoP&T
Notification dated 20.4.1998 and 12.6.1998, only the Cadre
Controlling Authority of the posts can re-classify their posts
as Group 'B' or C. Once these 29 incumbents of Statistical
Investigator Grade-Ii [pay scale 5000-8000 (Group „C‟) GP
4200] have already become part of the SSS cadre, the
decision to declare them as Group „C‟ or B rested with CCA
of SSS. Thus, the O.M. issued by Labour Bureau on 20.8.2013
is not applicable to these 29 incumbents of Labour Bureau
who are part of SSS.
Under the above backdrop, the O.M. dated 22.1.2015
issued by this Ministry in consultation with DoP&T and
Ministry of Law is in conformity with the notification issued
by DoP&T.
31. The claim of the Petitioners before the Tribunal was, that the
Respondents having en-cadred the Petitioners in the SSS could not
at a subsequent stage de-cadre them merely because their pay-scale
had now been restored back to Rs.5500-9000/- by virtue of the
judgment passed by the High Court of Punjab & Haryana. The
Petitioners also contended that, once the SSS had been constituted
on 30.01.2002 encompassing all Group „B‟ and C statistical
functional post in different Ministries/Departments, they could not
now ask the Petitioners to go back to the Labour Bureau, only
because the Respondents do not have a post in the pay-scale of
5500-9000/- in any functional Grade-In the service. The Petitioners
also contended that, once the Respondents had adjusted persons
occupying the post of Assistant Superintendent in National Sample
Survey Organisation (NSSO) who were also drawing the pay-scale
of Rs.5500-9000/- by placing them in the upgraded post of pay
scale Rs.6500-10500/-, there was no justification why the same
treatment could not be meted out to the Petitioners. The Petitioners
contended that there was no reason as to why the Petitioners could
also not be adjusted in manner similar to the Assistant
Superintendents of NSSO. According to the Petitioners, the action
of the Respondents, in refusing to keep them in SSS with the higher
upgraded pay scale of Rs.5500-9000/- was discriminatory and an
attempt on their part to deny them the benefit of higher grade-pay
granted to them by Orders of the High Court of Punjab and
Haryana.
32. Before the Tribunal, the Petitioners also contended that after
the grant of pay-scale of Rs.5500-9000/- to them w.e.f. 01.01.1996,
they had ipso facto become Group „B‟ officers and they could no
longer be treated as Group „C‟ employees, as was being sought to
be done by the SSS. In this connection, the Petitioner had placed
reliance on the DoP&T‟s Memorandum dated 20.04.1998 whereby
all civil posts had been classified on the basis of the pay-scale.
According to the Petitioners, any civil post with the pre-revised pay
scale of Rs. 5500-9000/- had to be dejure treated as a Group „B‟
post. In this connection, the Petitioners also referred to the OM
dated 20.08.2013 issued by their original parent department i.e.
Labour Bureau(Respondent No.6) whereby, the Respondent No.6
had categorized the post of Investigator Grade-II, which was the
post which the Petitioner has been occupying, as a Group „B‟ post
w.e.f. 20.04.1998 itself. The contention of the Petitioners, thus, was
that once the Labour Bureau had classified their post of Investigator
Grade-II as a Group „B‟ post by relying on the DoP&T‟s OM dated
20.04.1998, the SSS could not ignore the said classification and still
treat them as holding a Group „C‟ post.
33. In these circumstances, the contention of the Petitioner before
the Tribunal, was that the action of the SSS was wholly illegal as
they were compelling the Petitioners to either go back to the Labour
Bureau in which there were, admittedly, no further promotional
avenues after the creation of SSS, or to continue to work in SSS
without getting any benefit of their higher pay-scale of Rs.5500-
9000/- in matter of fixation of pay and seniority in the SSS, thus
denying them the fruits of the litigation wherein they had succeeded
to get the pay scale of Rs.5500-9000/-.
34. Per Contra, the Respondents had, while opposing the OA
before the Tribunal, contended that as per the initial constitution of
the SSS, the post of pay-scale of Rs.5500-9000/- with pre-revised
pay scale of Rs.1400-2300/- was not bracketed in Group „B‟ service
of the SSS, and only posts with pay scale of Rs.6500-10500/- and
Rs.7450-11500/- were included in the Group „B‟ Gazetted Service
of the SSS. It was thus contended that even after grant of higher
scale of Rs.5500-9000/-, the Petitioners could not be treated as
Group „B‟ employees in SSS. It was also contended that even
otherwise, when the SSS was constituted, there was no identical
post in the SSS to which persons holding the pay scale of Rs.5500-
9000/- could be encadred. It was thus contended that persons like
the Petitioners herein, holding the pay-scale of Rs.1400-2300/- later
revised to Rs.5500-9000/- could not have been en-cadred in SSS.
The Respondents had also contended before the Tribunal, that after
the grant of the revised pay scale of Rs.5500-9000/- to the
Petitioners by virtue of the Court orders, the matter had been
considered in detail in consultation with the DoP&T as well as the
Ministry of Finance and Department of Legal Affairs and a
conscious policy decision had been taken to de-cadre these un-
identical posts from the SSS. It was further contended that,
keeping in view the time lapse since the en-cadrement of the
Petitioners, it had been decided to provide them with an opportunity
to remain in SSS if they so desired, but with the condition that they
would continue to be regulated by the Recruitment Rules of SSS
and their inter se seniority would remain, as it existed at the time of
their en-cadrement.
35. Before the Tribunal, the Respondents had also contended that
most of the Petitioners had, even otherwise, given unconditional
options for en-cadrement in the Group „C‟ posts of SSS and only in
a few cases the options given by the Petitioners had been made
subject to the outcome of the case pending in the Central
Administrative Tribunal, Chandigarh, Punjab. It was thus
contended that the Petitioners could not subsequently challenge
their encadrement in Group „C‟ posts of the SSS.
36. The Respondents had further contended before the Tribunal
that in any event after the implementation of the Sixth Central Pay
Commission Report, the pay-scales of Rs.5000-8000/- & Rs.5500-
9000/- had been-w.e.f.01.01.2006, merged in a single Grade Pay of
Rs.4200 and those Rs.6500-10500/- and Rs.7450-11500/- merged in
the single Grade Pay of Rs.4600/- (both for Group „B‟ and C). It
was pointed out that, consequently, the 2002 Rules had become
unworkable and, therefore, the entire structure of SSS had been re-
structured vide a notification dated 29.08.2008. As a result the
number of grades in SSS stood reduced from four to two and it was,
therefore, contended that there being only two grades now in the
amended Recruitment Rules of 2013, none of the incumbents of
statistical functional posts, with the grade-pay of Rs.4200/- had
been promoted on regular basis as Statistical Investigator Grade-I
(Grade Pay of Rs.4600/-). It was further contended by the
Respondents that, since the post of Investigator Grade-II of Labour
Bureau had been classified as Group „C‟ in the relevant RRs of the
post, the said post had been correctly placed in Group „C‟ of the
SSS Rules, 2002. It was further brought out that even in the
Labour Bureau these posts of Investigator Grade-II were the feeder
post to the post of Investigator Grade-I (Rs.6,500-10,500/-) and the
same had, accordingly, been incorporated correctly in Schedule IV
of SSS Group „C‟ Rules and the same could not in any event be
categorized as a Group „B‟ post, since their promotional post i.e.
Investigator Grade-I was already incorporated in Schedule IV of
SSS Group „B‟ posts.
37. The Respondents had also contended that the entire exercise of
constitution of SSS in 2002 was a well considered exercise
undertaken after considering the availability of statistical posts in
various Ministries/Departments, which could not be tinkered with at
this stage. It was thus contended that the Petitioners could not be
absorbed at the level of Statistical Investigator Grade-II, under the
revised cadre structure. In defending their decision to give an
option to the Petitioners to be de-cadred, the Respondents had also
contended before the Tribunal that on account of pay-scale of
Rs.5500-9000/- (pre-revised Rs.1400 - 2300/-) being granted to the
post of Investigator Grade-II of Labour Bureau, the post no longer
continued to be an identical or equivalent statistical functional posts
recognised for en-cadrement into the SSS. It was contended that
only those statistical functional post as existed in the pay-scale of
Rs.5000-8000/- (pre revised Rs. 1400-2300/-) and Rs.6500-10500/-
(pre revised 1640-2900/-) could be included in the SSS.
38. The Tribunal after considering the detailed submissions of the
parties came to the conclusion that, once the Government had
decided to create a Subordinate Statistical Service with two separate
Rules for Group „B‟ gazetted service and Group „C‟ Service by
culling out Group „B‟ and Group „C‟ Statistical posts from different
departments, it was not for the Court to interfere with the policy
decision of the Government. The Tribunal found that two basic
grades, i.e. Statistical Investigator Grade-IV in the pay-scale of
Rs.5000-8000/- and Statistical Investigator Grade-III in the pay-
scale of Rs.5500-9000/- had been created as Group „C‟ posts of SSS
for which specific Group „C‟ Rules were notified. The ratio of
distribution between these two posts was also fixed to be 70% in
the functional grade of Statistical Investigator Grade-IV in the pay-
scale of Rs.5000-8000/- and 30% in the non-functional grade of
Statistical Investigator Grade-III in the pay-scale of Rs. 5500-9000/-
. The Tribunal held that this being the initial constitution of service
as notified in 2002 under Article 309 of the Constitution of India,
the Government was bound to follow these Rules and could not
induct persons by ignoring those Rules.
39. The Tribunal also found no merit in the plea of the Petitioners
that, after the grant of pay scale of Rs.5500-9000/- (revised pay
scale of PB-2 with Grade Pay of Rs.4200/-), they were clearly
Group „B‟ staff and they could not be forced to join a Group „C‟
post of SSS. The Tribunal held that even if it is taken that the
Petitioners were in a Group „B‟ post in their parent department, the
Petitioners were much junior to many other employees in the
original gradation list of SSS who had also been absorbed in the pay
scale of Rs.5000-8000/- in Group „C‟ posts and, therefore, held that
their claim that they belong to Group „B‟ service and that they
should be accorded Group „B‟ status in SSS, was a farfetched plea.
The Tribunal also considered the OM dated 20.08.2013 issued by
the Labour Bureau (Respondent No.6), wherein Respondent No.6
had come to the conclusion that in the light of Central Civil
Services (Revised Pay) Rules, 1997 granting scale of pay of Rs.
5500-175-9000/- to Investigators Grade-II of Labour Bureau, the
post of Investigator Grade-II in Labour Bureau de jure stood
classified as Group „B‟ post w.e.f. 20th April, 1998 in accordance
with DoP&Ts OM dated 20.04.1998. The Tribunal, however, held
that the said classification would be applicable only in Labour
Bureau(Respondent No.6) and could not be made applicable to SSS
and that too in contravention of Group „B‟ Rules of SSS.
40. The Tribunal, accordingly, vide its impugend order, dismissed
the OA by holding that the posts of Investigator Grade-II in Labour
Bureau, which was admittedly a Group „C‟ post in the pay scale of
Rs.5000-8000/- at the time of initial constitution of SSS, could not
be reclassified as a Group „B‟ post in SSS as, even with the
enhanced pay scale of Rs.5500-9000/-, it did not fulfill the
eligibility requirements of Group „B‟ Rules of SSS. The Tribunal
also found no infirmity in the decision of the Respondents to give
an option to the Petitioners to either get de-cadred from SSS or to
continue in the same post in which they had been en-cadred in the
SSS.
41. Being aggrieved by the decision of the Tribunal, the
Petitioners have preferred the present Writ Petition. On behalf of
the Petitioners, Ms. Jyoti Singh, learned senior counsel has
reiterated the submissions made before the Tribunal. While
drawing attention to the conditional options submitted by some of
the Petitioners, wherein they had stated that their encadrement was
subject to pending cases, she contends that once the Petitioners had,
at the time of encadrement itself, made it clear that their posts were
being offered subject to the outcome of the pending litigation, the
Respondents cannot deny them the benefits to which they are
entitled to pursuant to the upgradation of their pay scale to Rs.5500-
9000/-. She further submits that, the action of the Respondents in
directing the Petitioners to either accept their seniority below those
officers who were in the pay-scale of Rs.5500-9000/- at the time of
encadrement in the SSS, or to go back to the Labour Bureau is
wholly illegal as, according to her, there is no provision for
decadrement in the SSS and all those persons who form part of the
initial constitution of the SSS cannot be subsequently decadred.
42. Learned Senior Counsel for the Petitioners, also draws our
attention to various letters, wherein the request of certain officers to
be de-cadred had been rejected by stating that the encadrement once
done, could not be revoked. Further, the submission of the senior
counsel for the Petitioners is that, the stand of the Respondents that
there was no provision for inducting persons in the pay-scale of
Rs.5500-9000/- at the time of constitution of SSS was contrary to
record. She draws our attention to the fact that, Assistant
Superintendants from NSSO(FOD) who were also in the pay-scale
of Rs.5500-9000/- in NSSO had been admittedly encadred in Group
„B‟ posts in the SSS and she, therefore, contends that the Petitioners
are also entitled to be given the same treatment. It is, therefore,
contended by her that the plea of the Respondents that there is no
possibility to retain the Petitioners with the upgraded pay-scale of
Rs.5500-9000/- is fallacious. According to her, the action of
Respondents in denying the same treatment to the Petitioners as
given to Assistant Superintendants of NSSO is discriminatory and
violative of Article 14 & 16 of the Constitution.
43. Ms. Singh, further argues that, once the pay scale of the post-
which the Petitioners were holding at the time of their encadrement
in the SSS has been upgraded to Rs.5500-9000/-, the Respondents
were duty bound to upgrade the post in accordance with the
DoP&Ts OM dated 20.04.1998, which classifies this as a Group „B‟
post. She submits that the Respondent‟s refusal to grant them the
benefits of the upgradation of their pay scale amounts to virtually
denying them the benefit of upgradation in pay scale awarded by a
court of law.
44. Ms. Singh further argues that even otherwise once their parent
department i.e. Labour Bureau had upgraded the post of
Investigator Grade-II from Group „C‟ to Group „B‟ with
retrospective effect from 20.04.1998, the Respondents 1-3 were
duty bound to treat them as holders of a Group „B‟ post at the time
of their encadrement. She, thus submits that the Respondent could
not continue to treat the Petitioner as holders of Group „C‟ posts.
45. Per contra, Mr. Sanjeev Narula while defending the impugned
judgment submits that the SSS was a new service created pursuant
to the recommendations of the 5th CPC. He submits that at that
point of time itself all the Petitioners were well aware that they
were being inducted in the Group „C‟ post of Statistical Investigator
Grade-IV and, therefore, once they had consciously opted to be
encadred in a Group „C‟ post of the new service for whatsoever
reasons and perhaps for a brighter future, they cannot now contend
that their post should be treated as a Group „B‟ post merely because
their pay-scale was subsequently enhanced by the Labour Bureau.
46. He further submits that, at the time of initial constitution of the
SSS the Respondents had, after considering the various posts being
offered to them by various Departments/Ministries/Organisations
for encadrement in SSS, fixed the number of post in different cadres
and taken a conscious decision to place Assistant Superintendent
coming from NSSO in grade to with the higher scale of Rs.6500-
10500/-. He submits that once the process of constitution of SSS is
completed, there is no provision now for encadring the Petitioners
in a different post than in which they were encadred at the time of
its constitution. He further submits that even the post of Statistical
Investigator Grade-III with the pay-scale of Rs.5500-9000/- which
was provided for in the SSS at the time of its initial constitution was
a non-functional post as per the Group „C‟ Rules of SSS.
Accordingly, there was no provision for direct induction in the SSS
even in this Group „C‟ post of Statistical Investigator Grade-III. He
submits that, in fact, all the incumbents who were holding the post
of Investigator Grade-III in the pay-scale of Rs.5500-9000/- in the
SSS were only those who had been promoted from the scale of
Rs.5000-8000/- and he, therefore, submits that the Petitioners could
not be adjusted even in the post of Statistical Investigator Grade-III
in the SSS, as such an induction, would be contrary to the Statutory
Rules.
47. Mr. Narula also submits that when the SSS was created there
were separate Rules both for Group „B‟ and Group „C‟ posts. He
submits that in Group „B‟ service there were only two Grades
namely for Rs.7450-11500/- and Rs.6500-10,500/-. He, further,
submits that even otherwise the classification of the posts in the
SSS has to be guided by statutory rules. He, therefore, submits that
once the SSS Rules for Group „C‟ posts clearly show that post in
the pay-scale of Rs.5000-8000/- and those in the pay-scale of
Rs.5500-9000/- also were Group „C‟ posts, the Petitioners could not
in any manner, whatsoever, claim that, their posts should be
upgraded to Group „B‟ post.
48. Mr. Narula, further submits that, though in normal
circumstances there is no provision for de-cadrement, but keeping
in view the peculiar facts of the case, the Respondents had, in a
most fair manner, given the option to the Petitioners that if they so
desired they could go back to Labour Bureau in case they were not
satisfied with the posts which they were holding in SSS. He also
submits that though the post of Investigator Grade-II has been
upgraded to a Group „B‟ post, this has been done by the Labour
Bureau (Respondent No.6) vide its OM dated 20.08.2013. The OM
categorised this post as a Group „B‟ post w.e.f. 20.04.1998 only for
the Labour Bureau and the Respondents 1 to 3 have not accepted
the said categorisation for purposes of the SSS, as the said
classification is contrary to the Statutory Rules of the SSS.
49. In support of his plea that the Court ought not to interfere with
the creation and constitution of services, Mr. Narula relies on the
following judgments:-
I. Mrigank Johri & Ors. v. Union of India & Ors.
II. Indu Shekhar Singh & Ors. v. State of UP & Ors
III. Dr. M.A.Haque & Ors. v. Union of India & Ors.
IV. Guman Singh & Ors. v. State of Rajasthan & Ors.
V. Dr. Rajinder Singh v. The State of Punjab & Ors.
VI. Mallikarjuna Rao & Ors. v. State of Andhra Pradesh &
Ors.
VII. Malcom Lawrence Cecil D‟souza v. Union of India & Ors
VIII. Union of India & Ors. v. M.K. Sarkar.
50. We have also heard Mr. R.N Singh, the learned counsel
appearing for Respondent No. 7-10 i.e. the private Respondents,
who, while adopting the submissions made by Mr. Sanjeev Narula,
submits that the Petitioners claim is contrary to the statutory rules
which have been framed under article 309 of the Constitution.
According to him, the Petitioners, having chosen to be en-cadred in
the Group „C‟ post governed by SSS Group „C‟ Rules, cannot now
contend that they should be treated as holders of a Group „B‟ post in
the SSS. He further submits that, even otherwise, the post of
Statistical Investigator Grade-III in the pay scale of Rs.5500-9000/-
in the SSS was a promotional post for Investigator Grade-IV and
merely because the Petitioners have now been granted the pay scale
of Rs.5500-9000/- by the Labour Bureau, though their pre-revised
pay scale remains Rs.1400-2300/-, they cannot claim a right to be
posted against Group „B‟ post which posts were, admittedly,
governed by a different set of rules in the SSS. He further submits
that once the invitation of Respondent No.1 itself was for Group „C‟
posts pursuant to which the Petitioners, after having given a
undertaking that they were willing to be absorbed in SSS in a Grade
corresponding to the pay scale of Rs.5000-8000/- as per the
appropriate service rules of SSS, cannot now turn around and
challenge the same. He further submits that the Assistant
Superintendents of NSSO(FOD) who were in the pay scale of
Rs.5500-9000/- (pre-revised) had been absorbed in the pay scale of
Rs. 6500-10500/- at the time of inception of SSS itself. He submits
that for this purpose the available 1388 post of Assistant
Superintendent Group „B‟ were restructured in such a manner that
861 posts out of the 1388 were upgraded in the pay scale of
Rs.6500-10500/-, and the remaining 527 posts were down-graded to
the pay scale of Rs.5000-8000/- Group „C‟. He thus submits that
the Petitioners who were all en-cadred in Group „C‟ post having the
pay scale of Rs.5000-8000/- as per the SSS Group „C‟ rules cannot
compare themselves with the erstwhile Assistant Superintendents of
NSSO(FOD) as their encadrement had taken place at the time of
inception of SSS by taking a considered decision to upgrade certain
posts. He further submits that, in any event, the Petitioners were in
a lower pre-revised pay scale of Rs.1400-2300/- viz-a-viz the
Assistnt Superintendent of NSSO and would, even otherwise, be
ineligible for induction in SSS with this pre-revised scale.
Mr. Singh places reliance on the following judgments:-
1. Guman Singh v. State of Rajasthan, 1971 (2)SCC 452
2. Dr. M.A. Haque v. Union of India, 1993 (2)SCC 213
3. Civil Appeal No. 5984/1998
4. Ekta Shakti Foundation v. UoI (AIR 2006 SC 2609)
51. Having heard the learned counsels for the parties and
considered the submissions made by them, we find that, though the
pleadings in the case run into over 1850 pages, the issue involved in
the matter is fairly simple. The only question which needs our
consideration is whether the Petitioners who were encadred as
Group „C‟ employees in the SSS can subsequently, upon
enhancement of their pay scale with retrospective effect in their
parent department, insist that they must be deemed to have been
encadred as Group „B‟ employees in the SSS. The undisputed
position which emerges from the record and lengthy submissions of
the parties is that at the time of their encadrement in SSS all the
Petitioners were, admittedly, in the pay scale of Rs.5000-8000/-,
which was found to be matching with the post of Statistical
Investigator Grade-IV created in the newly constituted SSS and, on
that basis, they had been inducted into SSS on different dates
between 2004 to 2011. The issue, thus, would be as to whether
after grant of higher pay scale to them by virtue of court orders in
their capacity as Statistical Investigator Grade-II in the Labour
Bureau, can the Petitioners claim that, because their enhanced scale
now corresponds to a Group „B‟ service as per DoP&T‟s OM dated
28.04.1998, they must be treated as holders of Group „B‟ posts in
the SSS also. As a corollary, a connected issue would be whether
the Petitioners having been specifically inducted in a Group „C‟
service with full knowledge that, they are being inducted in a Group
„C‟ service, can subsequently insist that, they must now be placed in
the Group „B‟ service of the SSS, even though there are neither any
vacancies as per the rules, nor their enhanced pay scale is matching
with the entry grade of Group „B‟ service in the SSS.
52. Another un-disputed fact which emerges from the record is
that, the Petitioners as Investigators Grade-II in the Labour Bureau
were, admittedly, holding Group „C‟ posts as per the RR‟s dated
23.12.1994 and 31.07.2006 and their posts were up-graded to Group
„B‟ posts by the Labour Bureau only on 28.08.2013 i.e. after the
Petitioners already stood absorbed in the SSS. It is thus apparent
that when the Petitioners were en-cadred into SSS either in 2004 or
2010, they were holders of Group „C‟ posts only and were,
therefore, en-cadred into SSS into the Group „C‟ service of SSS.
53. There is also no dispute about the fact that, on induction of the
Petitioners in the SSS they were accorded inter se seniority in the
cadre of Statistical Investigator Grade-IV and were placed below
Statistical Investigator Grade-III in the seniority lists issued by the
SSS from time to time. It is also an undisputed position that the
posts of Statistical Investigator Grade-III and IV in the SSS were
both Group „C‟ posts. It is also an admitted position that as per
Group „C‟ Rules of SSS, the post of Statistical Grade-III was a non-
functional post, thus clearly bringing out the fact that the said post
could be filled only by way of promotion from the holders of post
of Statistical Investigator Grade-IV. Another factor which emerges
from the record is that, when the SSS was created and the
Recruitment Rules for both Group „B‟ and „C‟ service were
notified, the number of posts for each of the grades was clearly
specified in the Recruitment Rules itself.
54. The claim being raised by the Petitioners for being treated as
part of Group „B‟ service of the SSS would obviously upset the
entire notified structure of the SSS. The issue, thus, would be,
whether the Petitioners by claiming encadrement in the Group „B‟
Gazetted service of SSS, can be allowed to topple this entire
notified statutory structure. Before we deal with this question it
would be apt to examine the notified structure of the SSS at the time
of its initial constitution which, for the sake of convenience, is
being noted hereinbelow in a tabular form:-
3. The notified Structure of Subordinate Statistical Service
(SSS) was as under:
Post Category Pay Scale (5th No. of posts
CPC)
Statistical Non-functional Rs. 7450-11500 467
Investigat (Group „B‟,
or Grade- Gazetted)
I
Statistical Functional Rs. 6500-10500 1091
Investigat (Group „B‟, (Pre-revised 1640-
or Grade- Gazetted) 2900)
II
Statistical Non-functional Rs. 5500-9000 701
Investigat (Group „C‟,
or Grade- Non-Gazetted)
III
Statistical Functional Rs. 5000-8000 1635
Investigat (Group-C, Non- (Pre-revised 1400-
or Grade- Gazetted) 2300)
IV
55. We also deem it apt to refer to the upgradations and
replacement of the various relevant pay scales from time to time
which are being noted hereinbelow in a tabular form:-
1. General upgraded/replacement pay scales under 5th CPC
[01.01.1996-31.12.2005]:
Sl. Pre-revised Up-graded in Normal Upgraded
No. pay scale pre-revised replacement replacement pay
(4th CPC) pay scale (4th pay scale (5th scale granted
CPC) CPC) (5th CPC) under
para 81.15 to
81.17.
1 Rs. 1400- Rs. 1600- Rs. 4500-7000 Rs. 5000-8000
2300 2660
2 Rs. 1600- Rs. 1640- Rs. 5000-8000 Rs. 5500-9000
2660 2900
3 Rs. 1640- Rs. 2000- Rs. 5500-9000 Rs. 6500-10500
2900 3500
2. Pay scales granted in Labour Bureau under 5th CPC
[01.01.1996--31.12.2005]:
Investi Rs. 1640- Normal Upgraded
gator 2900 (4th replacement pay replacement pay
Grade- CPC) scale of Rs. 5500- scale granted Rs.
I 9000 (5th CPC) 6500-10500
Under para 74.13 Under 74.13 and
and 74.18. 74.18
Investi Rs. 1400- Normal Upgraded
gator 2300 replacement pay replacement pay
th
Grade- (4 CPC) scale of Rs. 4500- scale of Rs. 5500-
II 7000 9000. Scale
th
(5 CPC) under actually given by
para 74.13 and government
74.18 5000-8000
56. We find that the main plea raised by the learned senior counsel
for the Petitioners is that, once the pay scale of the Petitioners has
been enhanced by virtue of judicial orders they have to be classified
as holders of a Group „B‟ post, by considering their enhanced pay
scales as per the classification mandated in the DoP&T‟s OM dated
20.04.1998. The Respondents cannot now coerce them to either
give up the benefit of this higher pay scale, or go back to their
original parent department i.e. Labour Bureau. Her contention thus
being that, once the Petitioners had been en-cadred in the SSS they
had to be treated as part of the initial constitution of the cadre and
there is no provision in the SSS Rules for de-cadreing employees
like the Petitioners, who were part of the initial constitution of the
service.
57. We have given our thoughtful consideration to this submission
of the learned Senior counsel for the Petitioners and find that
though the Petitioners may be entitled to be treated as Group „B‟
employees as per the DoP&T‟s OM dated 28.04.1998, the question
would still be whether a newly constituted service, namely the SSS,
can be forced to induct persons like the Petitioners into the Group
„B‟ service at this stage, and that too when these persons were
initially admittedly inducted into the Group „C‟ service. Can the
use of expression "subject to the outcome court case pending in
CAT, Chandigarh Bench" at the time of initial offering of the post,
be stretched to this extent, to imply that in case the pay scale of
such a post is subsequently enhanced, the post would have to be en-
cadred in a different service i.e. the Group „B‟ service instead of
Group „C‟ service of the SSS. In our considered opinion, the
answer is a clear „No‟.
58. The conditional offer of the posts of the Petitioners for
inclusion in SSS only had the effect of safeguarding the interest of
the Petitioners vis-à-vis their parent department i.e. the Labour
Bureau. The SSS was a new service under constitution when the
said posts were offered for inclusion and the unilateral inclusion of
the said condition while offering the Petitioners posts in the Labour
Bureau for encadrement did not bind the Cadre Controlling
Authority of the SSS. It is precisely for this reason that the
Petitioners have been given the offer to return with their posts to the
Labour Bureau, so that they may avail of the higher pay scale of
Rs.5500-9000/- as well as their Grouping as Group „B‟.
59. In our view, when the Government takes a considered decision
to frame a service in a particular manner by creating fixed number
of posts for all the different grades created therein, there would be
no cause for the Court, except in very compelling circumstances, to
interfere with the said policy decision of the Government. It is
evident that the policy decision regarding filling up of the various
posts created under the Rules of the SSS was done after considering
the various posts offered to them by different
Ministries/Departments/Organisations. The Respondent No.1 had
taken a well considered decision, and it would be totally
unworkable if the Courts were to interfere and insist that persons
inducted in Group „C‟ service should now be inducted in a Group
„B‟ service, merely because their pay scale has now been enhanced
with retrospective effect and is still not matching any of the Group
„B‟ posts in the SSS.
60. In our view the action of the Respondents, in giving the
Petitioners an option to either continue in the post in which they
were inducted in SSS with the grant of a higher pay scale on
personal basis to them, or to go back to Labour Bureau (Respondent
No.-6) if they so desire, is more than fair in such circumstances.
61. It is also true that though in normal circumstances, as
contended by Ms. Singh-learned senior counsel for the Petitioners,
that a person en-cadred in a service at the time of its constitution or
at any subsequent stage cannot be de-cadred, but, keeping in view
the exceptional circumstances due to which the pay scale of the
Petitioners is no longer matching with the pay scale of the post in
which they were inducted, the only available option to the
Respondents was to give the Petitioners a choice to go back to the
Labour Bureau if they so desired and work in a Group „B‟ post in
the Labour Bureau, or continue in the SSS at the post in which they
were absorbed.
62. We have also considered the plea of the learned senior counsel
for the Petitioners that, once the Respondents had en-cadred
Assistant Superintendent from NSSO holding the similar pay scale
of Rs.5500-9000/- in Group „B‟ posts in the SSS, there was no
reason as to why the Petitioners should not be treated in a similar
manner. Her plea, therefore, is that refusal of the Respondents to
en-cadre the Petitioners, who are holding the same pay scale as held
by Assistant Superintendent (NSSO), in Group „B‟ posts is
discriminatory and in clear violation of Article 14 and 16 of the
Constitution. On the other hand the contention of Mr. Narula,
learned counsel for the Respondents is that decision to en-cadre an
Assistant Superintendent(NSSO) in the Group „B‟ service was a
conscious policy decision of the Government of India taken even
before notification of the SSS.
63. We find that there was a difference in the pre-revised scale of
Assistant Superintendent of NSSO(FOD) and of Statistical
Investigator Grade-II in Labour Bureau. The pre-revised pay scale
of Assistant Superintendent of NSSO was Rs.1600-2660/-, whereas
that of the post of Statistical Investigator Grade-II held by the
Petitioners in the Labour Bureau was Rs.1400-2300/-. Thus, it
becomes evident that at the time of the constitution of the SSS
itself, a conscious policy decision had been taken to encadre
Assistant Superintendent of NSSO in Group „B‟ posts of the SSS.
The methodology used for their induction in Group „B‟ posts was
that all the existing 1388 posts of Assistant Superintendents of
NSSO (FOD) in the pay scale of Rs.1600-2660/- (Revised Rs.5500-
9000/-) were abolished by upgrading 861 posts in the pay scale of
Rs.6500-10500/- , and downgrading the remaining 527 posts to the
pay scale of Rs.5000-8000/-. The upgraded posts were included
under Schedule I and II of SSS Group „B‟ Rules dated 12.02.2002,
while the downgraded posts were included under Schedule I and III
of SSS Group „C‟ Rules dated 12.02.2002.
64. We also find force in the contention of the learned counsel for
the Respondents, that as per the Group „B‟ service rules, only two
posts were provided in the Schedule I of the Group „B‟ rules-the
same being that of Statistical Investigator Grade-I and Grade-II with
the pay scale of Rs.7450-225-11500/- & Rs.6500-200-10500/-
respectively. Therefore even with the admitted pay scale of higher
pay scale of Rs.5500-9000/-, the Petitioners could not by any
means be en-cadred in the Group „B‟ service of SSS. In fact, on
their own showing, the Petitioners‟ enhanced pay scale does not fit
into the prescribed pay scales of Group „B‟ posts in the SSS.
Therefore, we are unable to accept the plea of the learned senior
counsel for the Petitioners that, merely because they have been
classified as holders of Group „B‟ posts by the Labour Bureau,
which classification itself, we find has been challenged by the
Respondents 1, 2 & 3, they have a right to be inducted in Group „B‟
service of the SSS.
65. There is also merit in the submission of Mr. R.N. Singh,
learned counsel for the Respondents No. 7-10 that, once the
invitation to the Petitioners by the SSS was for Group „C‟ post, the
Petitioners cannot contend that they should be en-cadred into Group
„B‟ posts with retrospective effect. Even otherwise, we also find
merit in the submissions of Mr. Singh, that the post of Statistical
Investigator Grade-III, which is the only post which is having a
matching pay scale of Rs.5500-9000/- as has now been granted to
the Petitioners in the Labour Bureau, is a non-functional post and
can be filled only by promotion and, therefore, the Petitioners
cannot be allowed to be directly inducted into these posts as per the
Group „C‟ Rules of the SSS.
66. We have also considered the judgments relied upon by the
learned counsel for the Respondents and we deem it appropriate to
refer to the case of Dr. Rajinder Singh v. The State of Punjab &
Ors. (2001) 5 SCC 482, wherein Supreme Court observed in para 8
as under:-
"8. The settled position of law is that no Government
Order, Notification or Circular can be a substitute of the
statutory rules framed with the authority of law. Following
any other course would be disastrous inasmuch as it would
deprive the security of tenure and right of equality
conferred upon the civil servants under the constitutional
scheme. It would be negating the so far accepted service
jurisprudence. We are of the firm view that the High Court
was not justified in observing that even without the
amendment of the rules, the Class II of the service can be
treated as Class I only by way of notification. Following
such a course in effect amounts to amending the rules by a
Government Order and ignoring the mandate of Article
309 of the Constitution."
67. It would also be appropriate to refer to the decision of the
Supreme Court in the case of P.U Joshi & Ors v. The Accountant
General, Ahmedabad & Ors. (2003) 2 SCC 632, wherein the
Supreme Court has reiterated the well settled legal position that
questions relating to constitution pattern, nomenclature of posts,
cadres etc., pertain to the field of policy and are within the
exclusive discretion and jurisdiction of the State. In the case of
P.U. Joshi (supra), the Supreme Court in para 10 observed as
under:-
"10.We have carefully considered the submissions made on
behalf of both parties. Questions relating to the
constitution, pattern, nomenclature of posts, cadres,
categories, their creation/abolition, prescription of
qualifications and other conditions of service including
avenues of promotions and criteria to be fulfilled for such
promotions pertain to the field of Policy and within the
exclusive discretion and jurisdiction of the State, subject, of
course, to the limitations or restrictions envisaged in the
Constitution of India and it is not for the Statutory
Tribunals, at any rate, to direct the Government to have a
particular method of recruitment or eligibility criteria or
avenues of promotion or impose itself by substituting its
views for that of the State. Similarly, it is well open and
within the competency of the State to change the rules
relating to a service and alter or amend and vary by
addition/substruction the qualifications, eligibility criteria
and other conditions of service including avenues of
promotion, from time to time, as the administrative
exigencies may need or necessitate. Likewise, the State by
appropriate rules is entitled to amalgamate departments or
bifurcate departments into more and constitute different
categories of posts or cadres by undertaking further
classification, bifurcation or amalgamation as well as
reconstitute and restructure the pattern and
cadres/categories of service, as may be required from time
to time by abolishing existing cadres/posts and creating
new cadres/posts. There is no right in any employee of the
State to claim that rules governing conditions of his service
should be forever the same as the one when he entered
service for all purposes and except for ensuring or
safeguarding rights or benefits already earned, acquired or
accrued at a particular point of time, a Government
servant has no right to challenge the authority of the State
to amend, alter and bring into force new rules relating to
even an existing service."
68. Thus, we find that once the statutory rules of the SSS both
for Group „B‟ and Group „C‟ prescribed a particular method for
en-cadrement as well as prescribed specific pay scales for
induction, no direction can be given to the Respondents to en-
cadre the Petitioners and to induct them either as Statistical
Investigators Grades-III, a Group „C‟ post or as Statistical
Investigators Grade-II, a Group „B‟ post since they admittedly do
not fulfill the requirement of the statutory rules. Though we find
merit in the plea of the learned senior counsel for the Petitioners
that the benefit of the enhanced pay scale cannot be denied to
them, but on this ground alone, we cannot give a direction to the
SSS to treat them as holders of Group „B‟ posts in the SSS as we
find that their encadrement in Group „B‟ posts would be wholly
contrary to the statutory rules of the SSS. In these circumstances,
we are of the view that the only manner in which the Petitioners, if
they so desire, can be treated as holders of Group „B‟ posts is by
going back, upon de-cadrement, to their parent department, the
Labour Bureau, which has now, admittedly, treated their said post
as a Group „B‟ post. In our view this methodology worked out by
the Respondent is just and fair and does justice to all the parties
involved. The Petitioners having been declared as holders of
Group „B‟ post in the Labour Bureau cannot be compelled to
continue to work in a Group „C‟ posts in the SSS and so have
rightly been given the option to go back to Labour Bureau, if they
so desire.
69. Having considered the matter from all possible angles, we
find absolutely no merit in the present Petition. There is no
infirmity in the order passed by the Tribunal. The writ petition is
dismissed, with no order as to costs.
C.M. Nos.18078,19493,28649/2015 in W.P(C) No.8437/2015
C.M. Nos.24068-24069/2015, 10356/2016 in W.P.(C) 9921/2015
In view of the Writ Petitions having been dismissed, these
applications are rendered infructuous and dismissed as such.
REKHA PALLI, J
VIPIN SANGHI, J
November 13th , 2017
saurabh
