Bindu
Sehgal Vs. Union of India & Ors. [2010] INSC 264 (8 April 2010)
Judgment
CIVIL
APPELLATE JURISDICITION CIVIL APPEAL NO. 5995 OF 2004 Bindu Sehgal ...Appellant
Versus Union of India & Ors. ...
Respondents
T.S.
THAKUR, J.
1. This
appeal by special leave calls in question the correctness of an order passed by
the High Court of Delhi whereby C.W.P. No.586 of 2001 filed by the appellant
for a writ of mandamus directing grant of financial up gradation to her in
terms of the Assured Career Progression (ACP) has been dismissed.
2.
Pursuant to an advertisement issued by the Union Public Service Commission
inviting applications from eligible candidates for direct recruitment to the
post of Hindi Officer in the Border Road Development Board, under the
Department of Surface Transport, Ministry of Transport, the appellant was
selected and appointed against the said post in September, 1986, and confirmed
against the same w.e.f. 23rd October, 1988. The appellant's case is that
persons similarly situated and possessing similar educational qualifications as
the appellant who had been recruited through the U.P.S.C. in the year 1986 and
allocated to Central Secretariat Official Language Service had been promoted as
Senior Hindi Officers/Varisth Hindi Adhikharis after putting in a service of
just about 8 years. Some of them had even been promoted to the post of Joint
Director while the appellant continued to stagnate as a Hindi Officer in her
department. A representation made by the appellant for grant of promotion
appears to have been considered in consultation with the Ministry of Defence
(Finance), but the 3 appellant was advised to await the recommendations of the
Fifth Central Pay Commission. A work study was also ordered although no such
study, according to the appellant, was conducted.
3. The
appellant's further case is that even when the Parliamentary Committee on
Official language and the Central Hindi Implementation Committee headed by the
Prime Minister have time and again recommended that a separate cadre be formed
for providing promotional avenues to Hindi Officers working in subordinate
offices in various Ministries and undertakings and although the said
recommendations were accepted with the modification that cadres be formed wherever
the same were feasible yet the same were ignored by the Border Road
Organization, who remained content with the introduction of what is known as
ACP Scheme. The scheme, according to the appellant, envisages two financial up gradations
the first falling due after completion of 12 and the second after 24 years of
regular service in cases of acute stagnation. It is not in 4 dispute that the
scheme was made applicable in the case of directly recruited "B"
Group Hindi Officers also.
4.
Pursuant to the introduction of the scheme aforementioned, the appellant
submitted three representations seeking financial upgradation to the pay scale
of Rs.10000-15200 in terms of the existing hierarchy prevailing in the Ministry
of Defence and in the Department of Official Language (Ministry of Home
Affairs). These representations were considered but instead of granting, what
according to the appellant was legitimately due to her under the scheme, she
was given the pay scale of Rs.8000- 13500 admissible to those working as
Assistant Executive Engineers in the BRO.
5.
Aggrieved by denial of the higher grade of Rs.10000- 15200 being enjoyed by
similarly situated Hindi Officers working in other Departments, the appellant
approached the High Court for redressal of her grievance, which writ petition
has been dismissed holding that the grant of higher pay 5 scale of
Rs.10000-15200 claimed by the appellant was likely to create anomalies in the
departmental hierarchy. The High Court was also of the view that the appellant
was not entitled to the scale of pay admissible to senior officers of any
particular Ministry or Department as that was not the intent and object of the
ACP Scheme. She could not, observed the High Court, be allowed to steal a march
over persons placed in analogous pay scales in her department.
6.
Appearing for the appellant Mrs. Shally Bhasin Maheshwari, strenuously argued
that the High Court had failed to correctly appreciate the points urged on
behalf of the appellant and the basis of her grievances. She drew our attention
to the scheme and the clarifications issued in regard to the same, to buttress
her argument that the scheme was intended to give relief against continued
stagnation on account of the absence of promotional avenues to the employees
serving in different cadres. She also placed reliance upon the orders granting
financial up- gradation to officers serving in other Departments and 6
Ministries who are similarly situated and who possess similar qualifications as
the appellant. Denial of a similar benefit to the appellant in the light of the
said orders argued the learned counsel, was unfair and unjustified.
7. Mr.
Ashok Bhan, learned counsel appearing for the respondents, on the other hand,
contended that the post held by the appellant was an isolated post to which the
financial up-gradation under the scheme was not applicable.
Alternatively,
he contended that the High Court was justified in declining the upgradation
claimed by the appellant on the analogy of similar upgradation granted to other
officers working in other departments as any such upgradation to the appellant
would result in an anomalous situation in as much as the appellant would then
draw a higher salary than those serving in the Engineering Department of the
BRO. He further argued that the appellant was not entitled to the benefit
claimed by her as she had been granted the benefit of previous service as an
L.D.C. apart from two promotions in that cadre.
8. We
have given our careful consideration to the submissions made and perused the
record. The order passed by the High Court does not, in our opinion,
satisfactorily deal with the following among other questions that arose for
consideration in the writ petition filed by the appellant:
1. Was
the appellant directly recruited against the post of Hindi Officer? If so,
could she be denied the benefit of the Assured Career Progression Scheme on
account of the fact that she had, before her recruitment, held the post of a
Lower Division Clerk and had been given two promotions or on account of the
fact that she had been granted the benefit of her past service.
2. In
case the benefit of Assured Career Progression Scheme could not be denied to
the appellant for the reasons indicated in (1) above, was the post held by the
appellant an isolated post within the meaning of the Assured Career Progression
Scheme? 8
3. If the
answer to (2) above be in affirmative whether the appellant would be entitled
to the benefit of the Assured Career Progression Scheme. If so, to what effect?
4.
Whether persons similarly situated as the appellant and holding analogous posts
in other Departments were enjoying higher pay-scales. If so, whether the
appellant could claim financial upgradation under the Assured Career
Progression Scheme by reference to the said higher pay-scales?
5.
Whether any analogous grades were available in the Border Road Organization,
and in particular whether the post of Assistant Executive Engineer in the said
Organization could be said to be analogous to the post held by the appellant?
9. Answer
to the above questions holds the key to the grant or refusal of the relief
claimed by the appellant in the writ petition filed by her. Since, we do not
have the advantage of the opinion of the High Court on the above questions we
consider it unnecessary to examine or answer 9 the same in the present appeal.
The proper course, in our opinion, is to remit the matter back to the High
Court for proper determination of the matters in controversy afresh.
10. In
the result we allow this appeal, set aside the order under challenge and remit
the matter back to the High Court for a fresh disposal in accordance with law
keeping in view the observations made above. The matter being fairly old, we
request the High Court to dispose of the same as early as may be practicable.
No costs.
.......................................J. (MARKANDEY KATJU)
.......................................J.
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