Karnataka High Court
Sri Pramod Kumar Jha vs Union Of India on 19 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2023:KHC:46399
WP No. 3771 of 2021
C/W WP No. 4625 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 3771 OF 2021 (S-PRO)
C/w.
WRIT PETITION NO. 4625 OF 2021 (S-PRO)
IN W.P.No.3771/2021:
BETWEEN:
1. SRI C N SATHEESH
S/O NARAYANAN NAIR,
AGED ABOUT 46 YEARS,
WORKING AS
SENIOR ADMINISTRATIVE OFFICER GRADE - II,
AERONAUTICAL DEVELOPMENT AGENCY,
PB1718, GOVERNMENT OF INDIA
VIMANAPURA POST
BENGALURU - 560 017
Digitally
signed by
KIRAN ...PETITIONER
KUMAR R
Location:
HIGH (BY SRI.M.P. SRIKANTH., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. UNION OF INDIA
BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF DEFENCE
RESEARCH AND DEVELOPMENT,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA
DRDO BHAVAN,
RAJAJI MARG
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NC: 2023:KHC:46399
WP No. 3771 of 2021
C/W WP No. 4625 of 2021
SOUTH BLOCK,
NEW DELHI - 110 010.
2. THE AERONAUTICAL DEVELOPMENT AGENCY
BY ITS DIRECTOR GENERAL
ALSO SECRETARY
DEPARTMENT OF DEFENCE
RESEARCH AND DEVELOPMENT,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA
DRDO BHVAN,
RAJAJI MARG
SOUTH BLOCK,
NEW DELHI - 110 010.
3. THE PROGRAM DIRECTOR (CA)
AND DIRECTOR-ADA
BY ITS DIRECTOR,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA
PB. NO. 1718, VIMANAPURA POST
BENGALURU - 560 017.
4. THE DIRECTOR (ADMIN AND HR) ADA
BY ITS DIRECTOR,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA,
PB NO. 1718,
VIMANAPURA POST,
BENGALURU - 560 017
...RESPONDENTS
(BY SRI. MADHUKAR DESHPANDE., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ENDORSEMENT DATED 23.10.2020 ISSUED BY
THE GRIEVANCE REDRESSAL COMMITTEE OF THE R-2 VIDE
ANNEXURE-V, ETC.
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NC: 2023:KHC:46399
WP No. 3771 of 2021
C/W WP No. 4625 of 2021
IN W.P.No.4625/2021:
BETWEEN:
1. SRI PRAMOD KUMAR JHA,
S/O RAM RATAN,
AGED ABOUT 49 YEARS,
WORKING AS
SENIOR ADMINISTRATIVE OFFICER GRADE-II,
AERONAUTICAL DEVELOPMENT AGENCY,
PB1718, GOVERNMENT OF INDIA,
VIMANAPURA POST,
BENGALURU-560 017.
...PETITIONER
(BY SRI.M.P. SRIKANTH., ADVOCATE)
AND:
1. UNION OF INDIA
BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF DEFENCE
RESEARCH AND DEVELOPMENT,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA
DRDO BHAVAN,
RAJAJI MARG
SOUTH BLOCK,
NEW DELHI - 110 010.
2. THE AERONAUTICAL DEVELOPMENT AGENCY
BY ITS DIRECTOR GENERAL
ALSO SECRETARY
DEPARTMENT OF DEFENCE
RESEARCH AND DEVELOPMENT,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA
DRDO BHAVAN,
RAJAJI MARG
SOUTH BLOCK,
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NC: 2023:KHC:46399
WP No. 3771 of 2021
C/W WP No. 4625 of 2021
NEW DELHI - 110 010.
3. THE PROGRAM DIRECTOR (CA)
AND DIRECTOR-ADA
BY ITS DIRECTOR,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA
PB. NO. 1718,
VIMANAPURA POST
BENGALURU - 560 017.
4. THE DIRECTOR (ADMIN AND HR) ADA
BY ITS DIRECTOR,
MINISTRY OF DEFENCE
GOVERNMENT OF INDIA,
PB NO. 1718,
VIMANAPURA POST,
BENGALURU - 560 017
...RESPONDENTS
(BY SRI. MADHUKAR DESHPANDE., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ENDORSEMENT DATED 23.10.2020 ISSUED BY
THE GRIEVANCE REDRESSAL COMMITTEE OF THE R-2 VIDE
ANNEXURE-X, ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 3771 of 2021
C/W WP No. 4625 of 2021
ORDER
1. The prayer in these petitions is to quash the
decisions taken by the Grievance Redressal Commission,
by which the claim of the petitioners for promotion from
the Grade Pay of Rs.4,600/- to Rs.5,400/- has been
refused.
2. It is the case of the petitioners that the Ministry of
Personnel, Public Grievances and Pensions, the
Department of Personnel and Training ('the DoPT', for
short), issued an Office Memorandum dated 24.03.2009,
whereby the recommendations of the 6th Central Pay
Commission ('the 6th CPC', for short) were considered and
consequential steps to amend the existing Service Rules,
Recruitment Rules were ordered to be undertaken on a
priority basis.
3. It is the case of the petitioners that Clause 1(i) of the
Official Memorandum dated 24.03.2009 stipulated the
minimum eligibility service as per the revised guidelines in
the manner enclosed in the Annexure to the said order.
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Clause 1(i) of the said Official Memorandum reads as
follows :
"(i) Substituting the existing scales
by the Grade Pay alongwith the Pay
Band
The existing pay scales have to be
substituted by the new pay structure (Pay
Bank and Grade Pay/Pay Scale)
straightaway without making a reference
to the Department of Personnel and
Training (DOP&T)/Union Public Service
Commission (UPSC). The heading of
column No.4 of the Schedule on RRs may
be modified to "Pay Bank and Grade
Pay/Pay Scale". In cases where deputation
is also one of the methods of recruitment,
the field of selection for deputation, which
might include various grades, should also
reflect the corresponding Grade Pay
alongwith the Pay Band/Pay Scale, and
the minimum eligibility service as per the
revised guidelines, as enclosed in
Annexure."
4. The petitioners were concerned with Serial Number
13 of the said Annexure, which reads as follows:
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Minimum
Sl. Grade Pay qualifying service
No. for promotion
From To
Placement as per
** **** **** 6th CPC
recommendations
13. 4600 5400 3 years
** **** **** ****
5. As could be seen from this Annexure, the minimum
qualifying service for promotion and placement as per the
6th CPC recommendations, was three years for the Grade
Pay of Rs.4,600/- to Rs.5,400/-.
6. The respondent-Aeronautical Development Agency
('the ADA', for short) proceeded to issue a Circular dated
11.12.2012, consequent to the issue of the Official
Memorandum dated 24.03.2009, in the following terms:
"Aeronautical Development Agency
ADA:ADM:R&P:2012 December 11, 2012
Circular
Sub: Change in qualifying service for
promotion of Admin Officer/Finance
Officer/Commercial Officer/Asst Staff
Officer to the post of SAO-II/SFO-
II/SCO-II/Staff Officer in PB2 (9300-
34800) from Grade Pay Rs.4600 to
Rs.5400.
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Consequent to adoption of the 6th CPC
scales in ADA from 01.01.2006, there is a need
for amending the Recruitment Rules &
Promotion Policy in ADA corresponding to the
revised Pay Bands, Grade Pay and residency
period introduced by the revised pay structure.
The amendment of Recruitment Rules &
Promotion Policy as per the guidelines laid
down by Govt of India, DOP&T letter No
AB14017/66/2008 Estt(RR) dated 24.03.2009
and DRDO letter No DHRD / 76257 / ADMIN /
CLASSIFICATION / C / P / 05 / 160 / D(R&D)
dated 18.01.2010, has been taken up and the
revised Recruitment Rules & promotion Policy
of ADA will be finalised shortly.
2. Meanwhile, such of those employees in
the Unified cadre / Secretarial cadre who have
completed three years service in the post of
Admin / Finance / Commercial Officer / Asst
Staff Officer in PB-2 (9300-34800) with Grade
Pay Rs.4600 with a cumulative service of 18
years from the date of appointment in the post
of Office Asst / Stenographer in ADA in the
scale of Rs.1200-2040 / 4000-6000 / Grade
Pay Rs.2400 in PB-1(5200/20200) are being
considered eligible for assessment to the next
higher post of SAO-II / SFO-II / SCO-II / Staff
Officer in PB-2 (9300-34800) with Grade Pay of
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Rs.5400. Candidates who have completed the
qualifying service as stipulated above only will
be considered for assessment during the year
2012.
Sd/-
[N.Sermathi Pandian]
Jt Director (Admin & Legal)"
7. As could be seen from this Circular, the ADA
categorically stated that they were required to amend the
Rules consequent to the adoption of the 6th CPC in the
ADA from 01.01.2006.
8. It was also stated that the amendment to the Rules
and the Policy had been taken up and the revised
Recruitment Rules and Promotion Policy would be finalized
shortly.
9. However, the ADA took a decision that in the
meanwhile, it would promote only those employees who
had not only completed three years of service as
necessitated in the Official Memorandum dated
24.03.2009, but also proceeded to impose an additional
condition that such of those candidates should also have a
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cumulative service of 18 years in the ADA from the date of
the appointment. As a consequence of this Circular, the
petitioners, who had earlier worked in the Indian Air Force,
became disentitled to be promoted to the next Grade Pay
of Rs.5,400/- as they did not have a cumulative service of
18 years in the ADA.
10. It is also the contention of the petitioners that this
condition of having a cumulative service of 18 years in the
ADA would be arbitrary.
11. The learned counsel for the ADA, on the other hand,
contends that the ADA was an autonomous body and was
not required to automatically adopt the Official
Memorandum dated 24.03.2009.
12. The learned counsel sought to place reliance on Rule
12 of the Aeronautical Development Agency Recruitment
and Promotion Rules, 1990 (for short, 'the Rules') which
read as follows:
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"12. Power to relax or alter:
Where the Society is of the opinion
that it is necessary to do so, it may, by
order of the Competent Authority, relax
or alter any of the provisions of these
rules in respect of any of its employees.
The mode of filling up of posts will be
direct recruitment, promotion,
deputation, contract or otherwise and is
described in Schedule-III and IV, may be
changed by the order of Governing
Body/director General, ADA in the
interest of the Society, from time to time
or for the specific case, as the case may
be."
13. According to him, since the ADA was conferred with
the power to relax or alter any of the provisions of the
Rules in respect of any of its employees, it was
empowered to impose the condition of an employee having
a cumulative service of 18 years in ADA, apart from having
a qualifying service of three years, as contemplated under
the Official Memorandum dated 24.03.2009.
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14. The learned counsel also sought to contend that this
Circular dated 11.12.2012 was not challenged and
therefore, the petitioners could not seek promotion on the
ground that they had obtained the qualifying service of
three years and they were not required to have a
cumulative service of 18 years.
15. The learned counsel also placed reliance on the
judgment rendered by a Co-ordinate Bench of this Court in
W.P. No.46103 of 2004 decided on 26.04.2011, which was
also confirmed by the Division Bench in Writ Appeal
Nos.4430-4434 of 2011, decided on 22.07.2013 in support
of his arguments.
16. It may also be pertinent to state here that the
Recruitment Rules and Promotion Policy of the ADA were
amended only on 15.06.2020. By this amendment, the
ADA prescribed the qualifying service of three years alone,
as the criteria for a promotion.
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17. In respect of the Pay Grade of Rs.4,600/- to
Rs.5,400/-, the ADA did not incorporate the condition of
cumulative service of 18 years in the ADA, which it had
mandated in the Circular dated 11.12.2012.
18. To put it differently, the Rules were amended in the
year 2020 and the amendment only prescribed a
qualifying service of three years, as prescribed in the
Official Memorandum dated 24.03.2009. The ADA, thus,
gave up the condition of cumulative service of 18 years
while amending the Rules.
19. The learned counsel for the ADA submits that though
the Rule was amended omitting the requirement of
cumulative service of 18 years, the requirement of three
years can only be applied prospectively and the benefit
cannot be given to the petitioners.
20. In my view, in the light of the arguments advanced
by the learned counsel for the parties, the questions that
are to be considered in these petitions are:
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"(i) Whether the petitioners were
entitled for promotion on
completion of the qualifying
service of three years ? and
(ii) Whether they were not
required to abide by the condition
of possessing cumulative service
of 18 years, as stated in the
Circular dated 11.12.2012 ? "
21. It is not in dispute that the conditions for promotion
are prescribed in the Recruitment Rules and Promotion
Policy laid down by the ADA. The Rules, till the year 2020
admittedly stipulated a period of five years as qualifying
service, and this was amended only in the year 2020, by
virtue of the adoption of the Official Memorandum dated
24.03.2009 by the ADA.
22. It is, no doubt, true that the ADA is not governed by
the Circulars issued by the DoPT as a matter of course,
and it can adopt its own Rules, given the nature of the
Institution and the fact that it is considered as an
autonomous body. However, having regard to the fact that
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it is an Organization set up by the Central Government,
and having further regard to the fact that the ADA adopted
the Official Memorandum dated 24.03.2009, it is clear that
the ADA cannot have the power of dissecting the Official
Memorandum dated 24.03.2009 and incorporate additional
conditions.
23. This becomes evident from the further fact that while
amending the Rules, the requirement of having cumulative
service of 18 years, apart from the qualifying service of
three years, was not put into effect and the ADA chose
only to abide by the condition imposed in the Official
Memorandum dated 24.03.2009, of a candidate having
three years of qualifying service.
24. If the ADA had chosen to adopt the DoPT Circular in
its entirety, as reflected in its amendment to the Rules in
2020, it cannot place reliance on the Circular to non-suit
the candidates who did not possess the cumulative service
of 18 years and were not promoted in the interregnum as
a result of the Circular.
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25. The reliance placed upon by the learned counsel on
the judgments referred to above would be of no avail,
since in that particular case the Co-ordinate Bench and the
Division Bench did not consider the fact as to whether the
DoPT Circular would automatically be applicable. Further,
the factual situation available in these cases, i.e., the
adoption of the DoPT Circular by the ADA was also not
forthcoming in that case. In that view of the matter, the
ratio of that decision cannot be applied to the facts of the
present cases.
26. In the light of the above, consequent to the adoption
of the Official Memorandum dated 24.03.2009, which only
laid down the condition of a qualifying service of three
years for promotion from the Grade Pay of Rs.4,600/- to
Rs.5,400/-, which has been adopted by the ADA by
amending its Rules, it would be appropriate to direct the
respondents to grant the petitioners the promotion on they
attaining the qualifying service of three years as
prescribed in the Official Memorandum dated 24.03.2009.
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27. As a consequence of this order, the petitioners will
also be entitled to all consequential benefits, including
monetary benefits, which shall be made over to them
within a period of two months from the rate of receipt of a
copy of this order.
28. The writ petitions are accordingly allowed.
Sd/-
JUDGE
RK
CT: SN
