Allowed

Sri C N Satheesh v. Union of India

Karnataka HC19 Dec 2023WP/3771/2021

Case brief

AI extract

What is this about?

The High Court allowed writ petitions seeking promotion for employees denied advancement due to an arbitrary cumulative service requirement. Ruling that the agency could not add conditions to the central government's guidelines after adopting them, the court directed promotion based on three years of qualifying service.

What did the court decide?

Directing respondents to grant petitioners promotion and all consequential monetary benefits within two months.

Sri C N Satheesh Vs Union of India — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC:46399 WP No. 3771 of 2021 C/W WP No. 4625 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA

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WRIT PETITION NO. 3771 OF 2021 (S-PRO)

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C/w.

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WRIT PETITION NO. 4625 OF 2021 (S-PRO)

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IN W.P.No.3771/2021:

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BETWEEN:

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SRI C N SATHEESH S/O NARAYANAN NAIR, AGED ABOUT 46 YEARS, WORKING AS

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SENIOR ADMINISTRATIVE OFFICER GRADE - II, AERONAUTICAL DEVELOPMENT AGENCY, PB1718, GOVERNMENT OF INDIA VIMANAPURA POST BENGALURU - 560 017

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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(BY SRI.M.P. SRIKANTH., ADVOCATE)

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AND:

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…PETITIONER

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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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SOUTH BLOCK, NEW DELHI - 110 010.

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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.

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THE PROGRAM DIRECTOR (CA) AND DIRECTOR-ADA BY ITS DIRECTOR, MINISTRY OF DEFENCE GOVERNMENT OF INDIA PB. NO. 1718, VIMANAPURA POST BENGALURU - 560 017.

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THE DIRECTOR (ADMIN AND HR) ADA BY ITS DIRECTOR, MINISTRY OF DEFENCE GOVERNMENT OF INDIA, PB NO. 1718, VIMANAPURA POST, BENGALURU - 560 017

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…RESPONDENTS

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(BY SRI. MADHUKAR DESHPANDE., ADVOCATE)

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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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IN W.P.No.4625/2021:

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BETWEEN:

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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.

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…PETITIONER

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(BY SRI.M.P. SRIKANTH., ADVOCATE)

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AND:

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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.

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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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NEW DELHI - 110 010.

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THE PROGRAM DIRECTOR (CA) AND DIRECTOR-ADA BY ITS DIRECTOR, MINISTRY OF DEFENCE GOVERNMENT OF INDIA PB. NO. 1718, VIMANAPURA POST BENGALURU - 560 017.

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THE DIRECTOR (ADMIN AND HR) ADA BY ITS DIRECTOR, MINISTRY OF DEFENCE GOVERNMENT OF INDIA, PB NO. 1718, VIMANAPURA POST, BENGALURU - 560 017

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…RESPONDENTS

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(BY SRI. MADHUKAR DESHPANDE., ADVOCATE)

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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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.

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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 6^th Central Pay Commission (‘ the 6^th 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.

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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

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follows :

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“ (i) Substituting the existing scales by the Grade Pay alongwith the Pay Band

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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.”

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The petitioners were concerned with Serial Number 13 of the said Annexure, which reads as follows:

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Sl. No	Grade	Pay	Minimum qualifying service
.	From	To	for promotion
**	****	****	Placement as per 6^thCPC recommendations
13.	4600	5400	3 years
**	****	****	****

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As could be seen from this Annexure, the minimum qualifying service for promotion and placement as per the 6^th CPC recommendations, was three years for the Grade Pay of Rs.4,600/- to Rs.5,400/-.

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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:

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“ Aeronautical Development Agency

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ADA:ADM:R&P:2012 December 11, 2012

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Circular

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Sub: Change in qualifying service for promotion of Admin Officer/Finance Officer/Commercial Officer/Asst Staff Officer to the post of SAO-II/SFOII/SCO-II/Staff Officer in PB2 (930034800) from Grade Pay Rs.4600 to Rs.5400.

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Consequent to adoption of the 6^th 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.

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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.

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Sd/[N.Sermathi Pandian] Jt Director (Admin & Legal)”

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As could be seen from this Circular, the ADA

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categorically stated that they were required to amend the Rules consequent to the adoption of the 6^th CPC in the ADA from 01.01.2006.

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It was also stated that the amendment to the Rules

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and the Policy had been taken up and the revised Recruitment Rules and Promotion Policy would be finalized shortly.

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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.

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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.

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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.

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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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11 -

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“ 12. Power to relax or alter :

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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.”

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According to him, since the ADA was conferred with

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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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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.

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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.

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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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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.

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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.

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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.

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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

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(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 ? ”

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It is not in dispute that the conditions for promotion

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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.

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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.

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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.

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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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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.

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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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As a consequence of this order, the petitioners will

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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.

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The writ petitions are accordingly allowed.

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Sd/JUDGE

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RK CT: SN List No.: 1 Sl No.: 66

Sri C N Satheesh v. Union of India

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Sri C N Satheesh v. Union of India

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