IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER. WP(C) Nos.330 and 332 of Date of Hearing:

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER WP(C) Nos.330 and 332 of Date of Hearing: Date of Decision: M.C.Sharma... Petitioner in WP(C)No.330 of Bhag Singh Sain... Petitioner in WP(C)No.332 of Through: Ms.Renu Verma with Mr.Alok Bachawat,Advocates. Versus Union of India and Ors.... Respondents Through Mr.Manoj Ohri,Adv. CORAM :- THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR. JUSTICE J.M.MALIK A.K. SIKRI, J. 1. The grievance of the petitioners in these two petitions is common. Both are seeking identical relief as well, namely, quashing of Special Service Bureau (SSB) (Senior Executives) Service Rules,1977 and SSB (Senior Executives) Service (2nd Amendment) Rule,1982 and as well as promotion of respondents 2 and 3 to the post of Dy. Director/DIG in SSB. That is the reason that both these petitions were clubbed together, heard together and are decided together by this common judgment. For the sake of convenience, we may start with the facts as appeared in WP(C)No.330 of The date of birth of the petitioner is He joined Indian Military Academy on and was commissioned as Officer in the Indian Army from to After his release from the Army the petitioner joined SSB on as Company Commander. He was promoted as Dy.Commandant w.e.f ; as Commandant on From July,1979 to he held the appointment as Commandant-Staff Officer/ Area Organizer(Training),Arunachal Pradesh Division with its Headquarter at Tejpur. From to he held his posting in Himachal Pradesh Division, Shimla in the same capacity. Thereafter, he worked as Commandant in various SSB Divisions like Agartala etc. At the time of filing of this

2 petition he was posted in Group Centre, Chamma (UP). The next promotion is to the post of Dy. Inspector General (DIG) in SSB. As per Item-3 in Schedule-II in the SSB (Senior Executive) Service Rules,1977 (hereinafter referred to as `1977 Rules') is by promotion/deputation/direct recruitment/re-employment. No percentage is fixed for any of these methods. In case of recruitment by promotion/deputation the promotions are to be made from amongst Class-I Assistant Director/Area Organizer with 8 years service in the grade or in the equivalent grade. Deputation of officers in the grade of Rs.2, , 1,500-2,000 or Rs.1,200-2,000 or officers eligible for appointment to such grades in offices of State/Central Govt. are eligible. The feeder post do not mention `Area Organizer in (Senior Executive) Service of SSB.'` 3. The aforesaid Rules were amended vide Second Amendment Rules 1982 (hereinafter referred to as `Rules,1982) w.e.f In these Rules, percentages were fixed for different categories of feeder cadre post by providing as under: i) 15% by promotion of SSB Battalion Commandants with minimum 8 years of service in the rank of Commandant. ii) 60% by promotion of Area Organizers/Asstt Directors belonging to the SSB (Senior Executive) Service, with minimum 8 years of service in the rank of Area Organizer/Asstt Director. iii) 25% by deputation/transfer/re-employment/ of officers in the grade of Rs.2,000/- or officers eligible for appointment to such grade in offices of State/Central Government. Re-employment of retired officers found suitable. Where sufficient number of officers in respect of categories (i) and (ii) above is not available, the vacancies may be filled by deputation/transfer/re- employment, as per conditions indicated in (iii) above. 4. In the unamended Rules, composition of DPC was ``Class-I DPC'. As per the amendment, DPC was to consist of four persons, Principal Director(Chairman), Director,SSB, one Divisional Organizer and Dy. Director,SSB Headquarters Directorate as Members. The three posts of Staff Officer (Training) were allotted to Battalion Officers (Dy. Commandants/Commandants). As a result of this cadre review of Battalion Officers, the said three posts were upgraded to Dy. Inspector General rank in SSB. Respondents 2 and 3 were promoted to these upgraded posts of Dy.Director/DIG. The petitioner herein was ignored. The third post was filled by an IPS deputationist. 5. Same is the position in respect of the petitioner in WP(C)No.332/88. Both these petitioners, therefore, claim that they should have been selected to the said post of DIG in place of respondents 2 and 3 and it is this reason that both of them have filed these two petitions on identical grounds seeking identical relief. The grievance of the petitioners is that they could not be overlooked and their candidature for regular promotion to the post of DIG in SSB should have been considered. Their submission is that it was because of mis- interpretation of 1977 Rules, as amended in 1982 Rules, that they were left out of consideration. They further submitted that if the Rules are to be interpreted in a manner which deny Dy.Commandant and Commandant the right to be considered for promotion to the post of DIG, then the said Rules are violative of Articles 14,16,19,21 of the Constitution of India and should be quashed. It is also the submission of learned counsel for the petitioner that the three posts of DIG were in fact, a result of upgrading of posts of Staff Officers(Training) for which the eligibility qualifications were met only by

3 Dy.Commandants/Commandants and deputationists IPS officers. The said three posts of Staff Officers were never held by Civilian AOs. Their eligibility condition required experience of three years or so of commanding battalion and a spell of duty as an Instructor, which a civilian AOs did not and could meet and only a Commandant/IPS deputationist could meet those terms. According to learned counsel, on correct interpretation of 1977 Rules, one would find that Dy.Commandants and Commandants were equally eligible for promotion to DIG as others of equivalent grades. DIG in view of the expression `others or equivalent grades' and AOs (though AOs were in lower grade). He submitted that even ex-cadre officers holding analogous interchanging appointment would be entitled to be considered for promotion and could not be excluded. In support of this plea he referred to following three judgments of Supreme Court: Haribans Misra and Ors. Vs. Railway Board and Ors.,(1989) 2 SCC 84. K.Madhavan and Anr. Vs. Union of India and ors.,(1987) 4 SCC 566. St. Mysore Vs. MH Krishna Murthy, (1973) 3 SCC Learned counsel went to the extent of arguing that on the correct interpretation of the rules, as suggested by, there was even no need to amend the rules by 1982 Rules and on this premise 1982 Rules are also challenged. 7. We have already indicated the position of Rules 1977 for filling up of the post of DIG. As mentioned above, in the case of recruitment by promotion, it is to be made from amongst 'Class-I Assistant Director/Area Organizer with 8 years service in the grade or in an equivalent grade'. It is not in dispute that the two feeder cadre posts which are specifically mentioned are Class-I Assistant Director and Area Organizer, there is no reference to the Commandant or Assistant Commandant. Therefore, the first question for consideration is as to whether the Commandant/Dy. Commandant would be covered by the expression `in an equivalent grade'. 8. In order to demonstrate that Commandant and Dy. Commandant were carrying the equivalent grade, learned counsel for the petitioner submitted that the SSB was created in 1963 comprising only civilians and officers on deputation from Indian Police Service (IPS). In 1969, combatised personnel in various grades like, Deputy Superintendent of Police (Company Commander/Adjutant/Quarter Master), Dy Commandant and Commandant were introduced. The combatised personnel were governed by Central Reserve Police Force Act and Rules (CRPF) in disciplinary matters, but were part of SSB and not of CRPF. The pay scale of Dy. Commandant as well as of Commandant was Rs.1,200-1,700, while the Commandant was entitled to special pay of Rs.100/- a month. The civilian personnel in the lowest Group `A category were Area Organisers (AOs). The pay scale of AOs upto was Rs.1,100-1,600 and, thereafter, Rs.1, with the proviso that after two years of regular service as AO, and AO would be considered by a departmental promotion committee for grant of special pay of Rs.100/- a month without change of pay scale. The 4th Central Pay Commissions recommendation of pay scale of Rs.3,000-4,500 to AOs and Dy. Commandants and Rs.4,100-5,300 to Commandants was accepted effective Later, vide order dated the pay scale of AOs was revised to 4,100-5,300 with effect from to bring it at par with that of Commandants.

4 9. Learned counsel for the respondent on the other hand argued that entire argument was on wrong premise. His explanation was that SSB (Special Service Bureau) was raised in the year As per Cabinet Secretariat letter dated , sanction of the President was received for raising 3 SSB Battalions under CRPF Act. In the year 1969, Ist SSB Battalion was raised. In 1968/1969, petitioners who were working as Commissioned Officers in Indian Army joined SSB as Company Commanders. They were governed by CRPF Act and Rules made there under. Petitioners were promoted as Deputy Commandants on and respectively in the pay scale of Rs /- and as Commandants on and in the pay scale of Rs Special Pay of Rs.100/- (vide U.O. dated ). 10. He further submitted that admittedly in Rules 1977 post of Commandant does not find mention as feeder cadre for promotion to DIG. It was for the reason that Commandants were separate cadre and continued to be governed by CRPF Act and Rules. Position remained the same even after the amendment in He also submitted that Dy. Commandant and Commandant are two different posts. Both these posts carried different pay scales. A brief comparison chart showing different pay scales is handed over in the Court. The petitioners have falsely claimed that their length of service as Dy.Commandant be counted towards service as Commandants while seeking promotion for DIG. 11. Learned counsel further argued that the petitioners could not equate themselves with Area Organizers inasmuch as Area Organizers and Commandants were two different posts as two different cadres having different duties and responsibilities. Petitioners, as Commandants cannot be treated at par with Area Organizers in matter of command, control and responsibilities. Both the posts were from different cadres and governed by different set of Recruitment Rules. While Area Organizers were governed by SSB (Sr. Executive) Service Rules, the Commandants, were governed by CRPF Act and Rules. For Commandants, the recruitment and disciplinary action was governed by CRPF Act and Rules. 12. He also refuted the contention that the petitioners were in `equivalent grade'. His submission was that the expression `grade' was not same as `scale'. Referring to the judgment of Supreme Court in A.K.Subraman Vs. Union of India reported in 1975 (1) SCC 319, he submitted that it was held that the expression `grade' was explained therein in the following manner: the word grade has various shades of meaning in service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. In the present case, the petitioners are not in the same cadre as they were and continued to be governed by CRPF Act and rules whereas the Area Organizers were governed by SSB (Sr Executive) Rules. 13. He also submitted that the Supreme Court had held in State of Haryana Vs. Haryana Civil Secretariat Personal Staff reported in 2002 (6) SCC 72 that fixation of pay

5 and determination of parity in duties, was the executive function. He pleaded for dismissal of the writ petitions on these grounds. 14. From the aforesaid arguments of both the parties, it is clear that there is no dispute that the petitioners were also having the same pay scale. The question is as to whether the petitioners can be treated as the Officers in `equivalent grade' because they were having the same pay scale as Area Organizers. 15. The 1977 Rules used the expression ``equivalent grade'`. In the case of A.K.Subraman Vs. Union of India(supra), the Supreme Court had the occasion to define the expression `grade'. In that case the expression `grade' occurred in the Rule stipulating ``vacancies in the grade of Executive Engineer'`. The Court while ascribing the meaning to these words, defined the word `grade' occurring therein in the following manner: Now the question which arises for consideration is what is the meaning of the words ``vacancies in the grade of Executive Engineer'` as used in the aforesaid paragraph of Rule 4(2). When does a vacancy in the grade of Executive Engineer arise To answer this question it is necessary to ascertain what are the posts which the grade of Executive Engineer consists of for the vacancies can only be in the posts in the grade of Executive Engineer. The word ``grade'` has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts. 16. We may also note at this stage that at times while construing the expression ``equivalent grade'`, besides the grades of officers on deputation, ex-cadre officers can also be treated as following ``equivalent grade'` if their pay scales, duties etc are comparable with those with whom equivalence is to be considered. 17. The case of Haribans Misra (supra) cited by learned counsel for the petitioner holds that even ex-cadre officers in equivalent grade are entitled to be considered for promotion to the higher grades at par with cadre officers in the same organization when ex-cadre officers were liable and did occupy the so called cadre post for years with/without specified tenure. 18. One of the arguments of the Railway Board was that these persons could not be treated as having promoted on substantive basis as they were holding ex-cadre posts. The Supreme Court brushed aside this argument on the premise that two posts, namely, Instructor and Chargeman C in Railway Diesel Locomotive Works were of the same rank and skill and staff of one post was transferable to the other and vice versa and, therefore on these facts these were interchangeable posts. In para-17 of the judgment, this aspect is discussed in the following manner: 17. In the circumstances, we are of the view that the appellants were not appointed on an ad hoc or a purely temporary basis by way of interim measure as held by the High Court, but they were appointed on a permanent basis in the posts of Instructor or Chargeman Grade-C, which are interchangeable posts and, thereafter, promoted to the post of Chargeman Grade-B. The appointment or promotion of the appellants to the post of Chargeman-C from the post of Skilled Artisan or to

6 Chargeman-B was made in accordance with the circular of the Railway Board and/or in accordance with Rule 216 of the Railway Establishment Manual. It cannot, therefore, be said that the appellants were promoted to the post of Chargemen- C illegally or in violation of any rule. There is a controversy between the parties as to whether the post of Instructor-C is an ex cadre post or not. It is submitted on behalf of the respondents that the post of Instructor-C being an ex cadre post, the appellants could not be appointed or promoted to the post of Chargeman-C. This contention is unsound and is fit to be rejected. It is the clear case of the Railway Administration, as pointed out above, that the posts of Instructor-C and Chargeman-C are interchangeable posts. Even assuming that the post of Instructor-C is an ex cadre post, nothing turns out on that inasmuch as according to the Railway Administration itself, the two posts being of the same rank and scale, the staff of one post could be transferred to the other post and vice versa. The appellants might have been appointed to the post of Instructor-C, but they were transferred to the post of Chargeman-C and, therefore, there was no difficulty in promoting them to the post of Chargeman-B. 19. Another judgment of Supreme Court in the case of K.Madhavan and Anr. Vs. Union of India and ors.(supra) shall also throw some light as the Court again considered meaning of `grade' in the context arose in the relevant rules therein. That was a case relating to the promotion of the post of Dy. Superintendent of Police(DSP) in the CBI. The concerned rule required `eight years service in the grade'. The appointment of respondent no.5 to the post of SP was challenged on the ground that under the rules he was to complete eight years service in the grade which would mean he should have been for eight years in CBI as DSP before he could be eligible for appointment to the post. The Supreme Court did not accept this contention and held that any person who had completed eight years service as DSP, and not necessarily in CBI as DSP would be eligible. On this interpretation it was held that an officer may have been in the State Police as DSP with a period of six years and thereafter if he joins CBI on deputation and spent two years on probation (as the rules provided two years must be spent on probation as DSP in the CBI), he would be eligible for consideration to the post of SP in the CBI. The relevant rules also provided that deputationists to be eligible, should be ``suitable deputationists'`. They should be `suitable officers holding analogous post in the Central Government department like the Directorate of Enforcement, Department of Customs etc.'. The Supreme Court held that suitable Dy.Commandant in BSF would also be eligible as he was holding analogous post. It is thus clear from the aforesaid discussion that the word `grade' can have various shades of meaning and which meaning is to be ascribed to this word would depend upon the context in which the same is used in particular rules. 20. According to the respondent the petitioners are not in the same cadre as they were and continued to be governed by CRPF Act and Rules whereas Area Organizers were governed by SSB (Senior Executive) Rules and, therefore, they cannot be treated as governed under equivalent grade. This argument follows from the submission that Commandants were a separate cadre and continued to be governed by different Act and Rules, namely, CRPF Act and Rules. Whether this fact alone can oust them from the expression `equivalent grade' is the question. It cannot be disputed that if the

7 Commandants are governed by CRPF Act and Rules and are not at all concerned with SSB (Senior Executive) Service Rules, they cannot lay their claim for being considered to the promotion to the post of DIG in the SSB. However, in the present case, what we find that these Commandants were working in SSB. It is also conceded by the respondents that there were no promotional avenues available to the Commandants. In fact submission of the leaned counsel for the petitioner that there were no separate rules of promotion for Dy.Commandants/Commandants and CRPF Act and Rules govern only disciplinary aspects, could not be refuted by learned counsel for the respondents. Thus though for disciplinary matters these Commandants were subject to CRPF Act, there were no other terms and conditions like promotion. In this background, when we examine some more facts, as spelt out herein below, it can be said that the expression `equivalent grade' could refer to the Commandants as well who were enjoying the equivalent pay scale. We enlist these factors as under: i) 1977 Rules were amended vide Notification dated In this Notification 15% quota for Commandants for promotion to the post of DIG was prescribed. This quota was raised to 37.5% vide Notification dated If 1977 Rules did not contemplate inclusion of Commandants as feeder cadre/equivalent cadre for promotion to the post of DIG providing quota for them from 1982 would be irrational. The very fact that by 1982 amendment, different quota was provided for different cadre and it included Commandants as well, would indicate that the Commandants were treated as officers belonging to `equivalent cadre. ii) As per the respondent themselves this amendment in 1982 was made to provide promotional avenues to the Commandants as no such promotional avenues were available to them. Merely by providing quota, promotional avenues cannot be made available unless they were otherwise eligible. They could be eligible only if we read equivalent cadre to mean Commandants also who were enjoying the pay scale in the equivalent cadre of Area Organizers and were discharging similar duties. iii) The post Staff Officer (Training) was never held by civilian Area Organizers but was always held by either Dy.Commandants or Commandants or IPS deputationists. It was because of the reason that one of the eligibility condition was that one must have commanded battalion for three years or so and a spell of duty as Instructor which condition a civilian Area Organizer did not and could not have met. iv) Though there was a dispute as to whether nature of duties of civilian Area Organizers and Commandants were same, the petitioners have placed on record order No.EA/SP/38/66 dated of the Cabinet Secretariat (Department of Cabinet Affairs) Government of India. This order is issued in terms of Rule 9(1) of the IPS (Pay) Rules,1954, Vol.I. It is stated in the order that the President is pleased to declare the post of Commandant and Dy.Commandant/Assistant Commandant of SSB Battalions and Training Centre as equivalent in status and responsibilities to that of Assistant Director in the Intelligence Bureau and Superintendents of Police in Special Police Establishments respectively as specified in Schedule III thereof. Thus when the Commandant/Dy.Commandants etc are treated as equivalent in status as Assistant Director in Intelligence Bureau and Superintendents of Police in Special Police Establishments, they would on this reckoning enjoying equivalent grade. It is clear from the above that in the 1977 Rules the expression `or in `equivalent grade would include Commandant/Dy.Commandants who were in the grade of Rs.1,200-1,700. It was equivalent to Area Organizers. The expression `grade in these rules thus has reference to equivalent pay scale enjoyed by the Commandants /Dy. Commandants who were

8 performing the same duties. In fact Dy.Commandants and Commandants were initially in a grade higher than Area Organizers and later were placed in the same grade as Area Organizers. 21. The next question is as to whether prescribing 50% quota for them for the Commandant in 1982 Rules is discriminatory. We may note that according to the petitioners their quota should have been more, going by the proportion of their strength in SSB. In fact this quota was revised to 37.5% in the year 1989 after realizing representative character of these Commandants/Dy.Commandants in SSB. Learned counsel for the petitioner relied upon judgment of Supreme Court in the case of State of Mysore Vs. MH Krishna Murthy, 1973(3) SCC 559 in support of this submission. We are, however, not impressed by this submission. It is for the employer to provide particular quota. No doubt it is increased to 37.5% in That may not be the reason sufficient enough to hold that even in 1982 their quota of these Commandants/Dy. Commandants should have been 37.5%. The judgment of the Supreme Court in the case of State of Mysore Vs. MH Krishna Murthy(supra) as cited by the petitioner only states that prescribing such a quota for consideration in altogether different context, the Court in no unambiguous terms stated that inequality of opportunity of promotion was not unconstitutional per se. However, observation was made that it should be justified on the strength of rational criteria correlated to the object for which the difference is made. It was also observed that in the case of Government servants, the object of such a difference must be presumed to be a selection of the most competent from amongst those possessing qualifications and backgrounds entitling them to be considered as members of one class. In some cases, quotas may have to be fixed between what are different classes or sources for promotion on grounds of public policy. If, on the facts of a particular case, the classes to be considered are really different, inequality of opportunity in promotional chances may be justifiable. It is only when different categories are found to be really belonging to single class, it would in that case be discriminatory and violative of Articles 14 and 16 of the Constitution of India. In the present case, the fixation of different quota is not even challenged. What is challenged is percentage of different quota. The aforesaid judgment would not come to the rescue of the petitioner in support of submission challenging the said prescription of quota. 22. In view of the aforesaid, we allow this writ petition partly and declare that the petitioners were entitled to be considered for posts of DIG even as per 1977 Rules. These petitions were filed in the year 1988 when the petitioners were not considered for promotion to the said posts by the DPC and the respondents 2 and 3 were appointed to these posts. Respondents 2 and 3 as well as petitioners would have retired by now. In these circumstances, it would not be prudent to interfere with the appointments of respondents 2 and 3. At the same time direction is given to the respondents to hold Review DPC and consider the cases of the petitioners for promotion to the post of DIG treating them as eligible for such consideration. In case they are found fit for promotion, they be given promotion from the date respondents 2 and 3 were appointed to the post of DIG on notional basis. However, they would not be given any arrears of pay as they did not work on the said post and retired in the meantime. We are passing this direction keeping in view that it was the bona fide view of the respondents that the petitioners were

9 not eligible for the post of DIG under 1977 Rules. However, if they are held entitled to promotion, they would be deemed retired as DIG and their pension would be fixed accordingly. They would be entitled to the arrears of pension from the date of their retirement. This exercise be completed within a period of three months from today. 23. No costs. July 04, 2008 Sd./- A.K. SIKRI,J Sd./- J.M.MALIK,J