IN THE HIGH COURT OF DELHI AT NEW DELHI
CIVIL APPELLATE JURISDICTION
LETTER PATENT APPEAL NO. 2115 OF 2006
Reserved On : January 13, 2009
Date of Judgment : April 15, 2009
Delhi Development Authority ................Appellant
Through Mr. Arun Birbal, Advocate
Versus
Jai Singh & Others .......Respondents
Through Mr. J.P.Sengh, Sr. Advocate
with Ms. Garima Kapoor, Advocate
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
SUDERSHAN KUMAR MISRA, J.
1. This appeal under Letters Patent has been preferred by
Delhi Development Authority (DDA) impugning the decision of a Single
Judge of this Court whereby the DDA was directed to apply the
Assured Career Progression Scheme (ACP of 1999) to the respondents
in terms of circular dated 14th October, 1999, issued by the DDA.
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2. The facts necessary for the decision of this appeal are as
follows:-
The DDA had recruited the respondents as Stenographers
between January, 1980 and March, 1981. At that time, the DDA had
one cadre of, “Stenographers”, in the pay scale of Rs. 330-700. Later
on, from Ist January, 1986, this cadre was bifurcated into two cadres,
namely, “Stenographers” and “Senior Stenographers”. The newly
formed cadre of Stenographers was assigned the pay scale of Rs. 330-
560 while that of Senior Stenographers was given the pay scale of
Rs. 425-700. This is stated to have been done to implement the
recommendations of the Fourth Pay Commission. In this context, the
report of the Committee constituted by the DDA to go into the
question of adoption in the DDA of all the orders of the Government of
India relating to the Fourth Pay Commission becomes relevant. This
Committee came to be appointed consequent upon a resolution
passed by the DDA adopting the entire package of recommendations
of the Fourth Pay Commission in respect of group B, C and D
employees of the Central Government as accepted by the Government
of India, for similar employees of the DDA. The Committee felt that
the basic anomaly in accepting the recommendations was in
connection with the pay-scale of Stenographers in the DDA. After
examining the scales of Stenographers in the Government of India and
also the method of recruitment thereto, it found that as against two
scales of Stenographers in the government of India, in the DDA, there
was only one cadre of Stenographers and that the existing scale of
Stenographers in the DDA was a combination of the two scales of
LPA No. 2115 of 2006 Page 2 of 16
Stenographers that existed in the Government of India. The
Committee felt that since there was no pre-revised scale in the
Government of India corresponding to the DDA’s scale of Rs. 330-700
for Stenographers, it found it difficult in relating this existing scale of
Stenographers in the DDA with the revised scales that were to be
adopted in terms of the aforesaid resolution of the DDA. It also
noticed two other prominent variations in the scale of the
Stenographers in the DDA as compared to the two scales of pay
admissible to Stenographers in the Central Government. They were;
“(a) The rate of increment is Rs. 15/- which is
that of the scale of Senior Stenographer while
scale starts at Rs. 330/-, i.e. the beginning of
lower scale of the Jr. Stenographer.
(b) At the stage of E.B., there is a lump sum
jump of Rs. 50/- as against the normal practice of
one increment which is allowed to all officials at
the stage of crossing of E.B.”
It is with a view to overcoming these difficulties, and a view to
implementing the decision of the DDA to adopt the recommendations
of the Fourth Pay Commission, that the Committee examined various
alternatives and ultimately decided to recommend the adoption of both
the scales prevalent in the Central Government by placing some posts
in the Junior Scale and some in the Senior Scale. It suggested that
the existing, single cadre, be split into a Junior Scale and Senior Scale
and some of the posts be placed in the Junior Scale while others be
placed in the Senior Scale. In recommending the placement of certain
posts in the Senior Scale, the Committee gave the following reasoning:
“…..the Committee felt that in any case
Stenographers who have already crossed theLPA No. 2115 of 2006 Page 3 of 16
stage of E.B., i.e. Rs. 405 in the pre-revised scale
will have their initial scale fixed at a stage above
Rs. 1400/- and in a way can be considered
equivalent to the Senior Stenographers.”
[ Emphasis Added ]
The Committee, therefore, felt that Stenographers recruited prior to
1980 would automatically be placed in the senior category. At the
same time, Stenographers recruited during 1981 also be allowed to be
placed in the senior scale, “considering the initial recruitment and
experience having already been put in by them.” Even as regards
Stenographers recruited during the year 1983, the same
recommendation was made. In addition, the Committee also
recommended that those Stenographers who had joined the DDA after
Ist January, 1983 be initially placed in the cadre of Stenographers and
then in the cadre of Senior Stenographers after completion of three
years service. It felt that in this way till 1989, all Stenographers that
had been recruited till Ist January, 1986 would be in the cadre of
Senior Stenographers. It also recommended that after Ist January,
1986, all recruitment be made only at the level of Stenographers.
Significantly, the Committee clarified that the placing of the
Stenographers in the senior scale, “will be considered as personal to
the officials and will not tantamount to creation of these posts in the
senior scale.” These recommendations were made by the Committee
on 19th January, 1987, and were duly approved and adopted by the
DDA on 13th March, 1987. Consequently, the DDA sanctioned a
revised pay scale of Rs. 1400-2300 to such of the Stenographers who
were recruited upto 31st December, 1986 on their completion of three
LPA No. 2115 of 2006 Page 4 of 16
years of service. It is in this manner that the petitioners before the
Single Judge came to be placed in the post of Senior Stenographers.
It might be noted that nothing has been shown to us from the records
to indicate any proposal or decision to promote the respondents to the
next post or even any decision taken to the effect that the placing of
all Stenographers who were recruited up to 31st December, 1986 in
the senior scale of Rs. 1400-2300 shall be considered as having been
promoted to that post. On the contrary, while recommending the
placement of officers, such as the respondents, in the scale of
Rs. 1400-2300, the Committee had categorically stated that this scale
will be considered personal to the officials and will not tantamount to
creation of these posts in the senior scale.
3. At the time when the respondents were initially recruited
to the post of Stenographers, the next promotion, to which they would
have been entitled, was to the post of Private Secretary. It is
nobody’s case that the respondents have in fact been promoted to
that post at any time up to now. We also note that the initial pay-
scale of Rs. 330-700, to which the respondents were recruited, was
revised from time to time only on the basis of recommendation of the
various Pay Commissions and on receipt of orders from the Ministry of
Urban Development and in fact they had never been granted any
promotion at any point of time and no such entry had been made in
their service records.
4. Thereafter, with effect from Ist January, 1996, Fifth Pay
Commission recommended implementation of the Assured Career
Progression Scheme (ACP Scheme) to Central Government employees.
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The “conditions for grant of benefits under the ACP Scheme”, that has
been annexed by the appellants along with the office memorandum of
the Government of India dated 9th August, 1999 setting out the
salient features of the Scheme, states that the ACP Scheme is aimed
at dealing with stagnation and hardship faced by employees “due to
lack of adequate promotional avenues”. It further states that the
benefits of the Scheme shall be available to Group B, C and D
employees on completion of 12 years and 24 years of regular service.
The first financial upgradation under the ACP Scheme shall be allowed
after 12 years of regular service and the second upgradation after 24
years of regular service. The conditions which are set down in
Annexure 1 to the aforesaid memorandum dated 9th August, 1999,
filed by the respondents before the Single Judge, inter alia, state as
follows:-
“Two financial upgradation under the ACP Scheme in
the entire government service career of an
employee shall be counted against regular
promotion including institute promotion and first-
tract promotion availed through limited
departmental competitive examination availed from
the grade in which an employee was appointed as a
direct recruit. This shall mean that two financial
upgradations under the ACP Scheme shall be
available only if no regular promotions during the
prescribed periods (12 and 24 years), have been
availed by an employee. If an employee has already
get one regular promotion, he shall qualify for the
second financial upgradation only on completion of
24 years of regular service under the ACP Scheme.
In case two prior promotions on regular basis have
already been received by an employee, no benefit
under the ACP Scheme shall accrue to him.”
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It further states as follows:-
“The financial upgradation under the ACP Scheme
shall be purely personal to the employee and shall
have no relevance to his seniority position. As such
there shall be not additional financial upgradation
for the senior employee on the ground that the
junior employee in the grade has got higher pay
scale under the ACP Scheme.”
And that,
“The Financial benefit allowed under the ACP
Scheme shall be final and no pay fixation benefit
shall accrue at the time of regular promotion i.e.
posting against as functional post in the higher
grade.”
On 14th October, 1998, the aforesaid ACP Scheme was adopted by
the DDA.
5. Brief submissions have been filed by both parties. In their
submission, the appellant-DDA contends that as a matter of fact, the
respondents have already received one promotion, and therefore, they
are not entitled to benefits equivalent to two promotions. According to
the DDA, it was merely by chance that the respondents happened to
be recruited in the DDA when there happened to be a single cadre of
Stenographers in the pay scale of Rs. 330-700. They submit that
before 14th February, 1979, there existed two cadres, one of
Stenographers in the pay-scale of Rs. 330-560, and the other of
Senior Stenographers in the pay-scale of Rs. 425-700. At that time,
the former cadre of Stenographers was the feeder cadre for the cadre
of Senior Stenographers and consequently Stenographers were
promoted to the post of Senior Stenographers. It is the case of the
LPA No. 2115 of 2006 Page 7 of 16
appellants that since the decision was taken to bifurcate the single
cadre of Stenographers to which cadre the respondents were
appointed, once again into the two cadres that originally existed
before 14th February, 1979 in order to remove the anomalies that
would arise whilst implementing the decision of the DDA to adopt and
implement the recommendations of the Fourth Pay Commission, the
respondents have received one promotion since they have been placed
on senior scale on the recommendation of the Committee.
6. We do not agree. The respondents were recruited by the
DDA as Stenographers in a particular scale of pay against a
designated post in a specified cadre. Admittedly, at that time, there
was only one cadre of Stenographers. The next promotional post was
the post of Private Secretary. The cadre was split into two with a view
to implementing the recommendations of the Fourth Pay Commission.
On the other hand, the object of the ACP Scheme was quite different.
It was adopted to deal with the problem of stagnation due to lack of
adequate promotional avenues to whose working in the cadre of
Stenographers in the organization. It is obvious that the need for
extending the benefit as recommended by the Fifth Pay Commission
for Central Government employees of the ACP Scheme to all its Group
B, C and D employees was also felt by the DDA because there was
stagnation and a lack of adequate promotional avenues. The
respondents fall within the scope of this Scheme. After their
appointment as Stenographers, the next promotion for the
respondents was to the post of Private Secretary, and thereafter to
Deputy Director. Admittedly, this has not been attained by some
LPA No. 2115 of 2006 Page 8 of 16
officers of this cadre for 12 to 24 years. Under these circumstances,
for the DDA to contend that since the measures recommended by an
expert Committee to resolve an anomaly that was likely to arise in the
straight forward application of the decision of the Central Government
to implement the recommendations of the Fourth Pay Commission qua
Central Government employees, to the existing cadre of
Stenographers of DDA, cannot mean that while doing so, the DDA has
in fact given one promotion to some of the Stenographers.
Significantly, even the aforesaid Committee of the DDA which went
into this aspect, does not state that those officers who have been
recommended by it to be placed in the Senior Scale be deemed to be
promoted either to the post of Senior Stenographer or to the next
promotional post of Private Secretary in existence according to the
hierarchy when they were recruited. For that reason, therefore, the
contention of the appellants that the placing of the respondents in the
senior scale after the bifurcation of their own cadre amounts to
promotion, cannot be accepted.
7. In this context, we might also advert once again to the
conditions for grant of benefits under the ACP Scheme reproduced
above, which states clearly that the financial upgradations envisaged
under the Scheme, “shall be counted against regular promotion …..”
and that the same shall be available, “only if no regular promotions ….
have been availed by an employee”, and that the benefit shall not be
available to the employee in case he has already received, “two prior
promotions on regular basis …….” Clearly, the Scheme envisaged that
those who had received, “regular promotions” would not be entitled to
LPA No. 2115 of 2006 Page 9 of 16
its benefits. The word “regular” is defined by the Concise Oxford
Dictionary, 8th Edition, as, “1. conforming to a rule or principle;
systematic” and “done or recurring uniformly or calculably in time or
manner, conforming to a standard of etiquette or procedure;”
“according to convention, properly constituted or qualified” and the
word, “promote” is defined as “advance or raise (a person) to a higher
office, rank, etc.” In the expression, “regular promotion” employed in
the Scheme, the word ‘regular’ has been used as an adjective to
define the word ‘promotion’ which has been used as a noun. In other
words, the type of promotion that may disentitle an employee to the
benefit of the ACP Scheme must be one that can be regarded as one
that was given in a, “regular”, manner, i.e., conforming to a standard
of procedure according to convention or the Rules, for which the
officer is fully qualified and for which all formalities are complied with.
Here, conventionally, the next promotional post, to which the
respondents could have aspired after recruitment to the post of
Stenographer, was that of Private Secretary. Admittedly, they were
never promoted to this post. In addition, the Committee also did not
recommend any deemed or actual promotion for the respondents even
to the post of Senior Stenographers. In addition, admittedly, there is
no entry in their service record indicating that they have been granted
any promotion to any post. Furthermore, any doubt that we may
have had in this regard have also been removed by a clarification
issued by an office memorandum dated 10th February, 2000 issued by
the DoPT where it is pointed out that even in case where, as a result
of rationalization of pay-scales, two posts carrying different pay-scales
LPA No. 2115 of 2006 Page 10 of 16
constituting two rungs in a hierarchy have now been placed in the
same pay-scale, as a result of which, the feeder and promotion grades
in the pre-merged scenario have become one grade, for the purpose
of application of the ACP Scheme, the promotion from the lower to the
higher rung of the pre-merged pay-scales shall be ignored, and an
employee who got promoted from the lower pay-scale to the higher
pay-scale as a result of promotion before the merger of the pay-
scales, shall nevertheless be entitled under the ACP Scheme ignoring
that promotion. It, therefore, follows that if the intent is to grant
benefit even to those employees who have actually been duly
promoted from the feeder cadre to the next cadre before the two were
unified, then there can be no question of denying benefit to those who
were part of a single cadre which was split into two later on by
creating a feeder cadre and the promotion cadre, and some officers,
such as the respondents, were then merely, “placed”, in the higher
cadre at the time of the split and were not even promoted to the
same.
8. The expression, “cadre”, is ordinarily used to denote the
permanent establishment of a regiment forming the nucleus for
expansion at time of need. In service jurisprudence, the term has a
definite legal connotation and in Director General of Health
Services & Ors. vs. Bikash Chatterjee & Ors. AIR 1969 Calcutta
525, the expression “cadre” has been held to mean not a post but a
strength of the establishment and in State of U.P. and others vs.
J.P.Chaurasia and Ors. (1989 ) 1 SCC 121, it has been held that
promotion from one post to another is associated with advancement to
LPA No. 2115 of 2006 Page 11 of 16
a higher office, climbing one more ladder in the service career but a
different grade for persons for the same cadre even on seniority-cum-
merit with the same work and responsibility cannot amount to
promotion. In M.Umar Farooq Hussain and Ors. vs. The
Managing Director, Chennai Metropolitan Water Supply,
Sewerage Board and General Manager and Ors. decided by
Hon’ble Madras High Court in Writ Petition (C) Nos. 45840 of 2002 and
3626 of 2003 on 19th June, 2003, it was held that whatever benefits
accrue as a result of merger or re-designation cannot be interpreted
either as promotion or appointment in a new cadre. Here, in the
instant case also, in our view, the respondents were merely
re-designated on the recommendations of an Expert Committee with
the intention of resolving an anomaly in adopting the decision of the
Central Government to implement the recommendations of the Fourth
Pay Commission qua Stenographers in the DDA. Significantly, the
Committee itself had clarified that the placing of the Stenographers in
the Senior Scale will be personal to the officials and will not
tantamount to the creation of these posts in the Senior Scale. As we
understand it, apart from re-designating the post of the respondents,
no additional benefits were conferred upon them. Their salary, pay
and allowances remained the same. Consequently, to our mind, such
re-designation cannot be interpreted as a promotion.
9. It is also noteworthy that when the respondents were
appointed, both the posts of Stenographers and Senior Stenographers
did not exist. There was merely one post of Stenographer in the pay-
scale of Rs. 330-700. Over a period of time, this scale was revised
LPA No. 2115 of 2006 Page 12 of 16
from time to time on the basis of various pay commissions and orders
of the Ministry of Urban Development to Rs. 1640-2900. This was a
completely different post and the Committee looking into the matter of
the adoption of the recommendations of the Fourth Pay Commission
felt that all Stenographers could not have been put in a single cadre
equivalent to any existing Cadre in the Government of India. This is
because as noted above, the initial recruitment to the post of
Stenographers in the DDA, of persons such as the respondents, was in
a scale that was higher than that of the Junior Scale Stenographers
with the Government of India and lower than that of the Senior Scale
Stenographer. It is for this reason that the Committee was
constrained to recommend that persons such as the respondent be
merely, “placed” in the newly created cadre of Senior Stenographers.
What the Committee was doing was that it was merely working out an
equivalence within the newly created hierarchy and had determined
that the position held by the respondents be considered equivalent to
that of a Senior Stenographer. It is perhaps for this reason that no
recommendation of any deemed promotion of the respondents to the
post of Senior Stenographer was made. The object of the ACP
Scheme was to deal with stagnation and hardship faced by employees,
due to “lack of adequate promotion avenues”. Under the Scheme, if
the incumbent had not received any, “regular promotions”, during the
prescribed periods, he would be entitled to the financial upgradation
envisaged therein. Nothing prevented the aforesaid Committee
constituted by the DDA to recommend that officers such as the
respondents be promoted, or be deemed to be promoted, to the post
LPA No. 2115 of 2006 Page 13 of 16
of Senior Stenographer whilst recommending the division of the cadre
of Stenographers into two cadres of Stenographer and Senior
Stenographers, thereby disentitling these officers from the benefit of
ACP Scheme with regard to at least one regular promotion, but it did
not do so. Even the DDA restricted itself to merely accepting the
recommendations of the Committee and did not think it fit to make
any changes to those recommendations. In the absence of any
specific order promoting the respondents to the post of Senior
Stenographers, the only conclusion that follows can be that the
respondents’ post has merely been re-designated.
10. It is further noteworthy that even the establishment order
issued by the DDA on 28th August, 1992 dealing with the revision of
pay-scales of Stenographers whereby it had resolved to revise the
pay-scales of Stenographers to Rs. 1400-2600 with effect from Ist
January, 1986 made it clear that the Stenographers placed in the
scale of Rs. 1400-2300, to which the respondents belong, “will
henceforth be designated as Senior Stenographers”, and not that they
will stand promoted to that post”.
11. We might add that the Fourth Pay Commission was
concerned with adequacy of scales of pay of various employees and
with a view to implementing the same, the respondents were, “placed”
as, “Senior Stenographers”. There was no scope for any promotion in
this context and nor was any promotion granted. On the other hand,
the ACP Scheme is concerned with the lack of promotional avenues
and not with any scales of pay. Under it, certain ameliorative
packages have been granted to mitigate the frustration and
LPA No. 2115 of 2006 Page 14 of 16
inadequacy due to lack of promotion over a span of 12 to 24 years of
service. The two are independent of each other and, subject to the
terms and conditions mentioned in each of them, both must be applied
independently.
12. For all the aforesaid reasons, we do not agree with the
contentions of the appellants that the respondents have already
received one promotion and therefore, they are not entitled to the
benefit under the ACP Scheme. The facts show that the post on which
respondents are working was merely re-designated as that of Senior
Stenographer as recommended by the Committee itself, and that the
respondents were merely “placed”, in that post and not promoted to
that post. The other contention of the appellants that the
respondents, “are merely trying to take advantage of chance situation
that they joined DDA between 1st January, 1979 and 1st January, 1986
when there was a unified cadre of Stenographers,” has no force. We
are unable to really comprehend what the expression, “chance
situation” employed by counsel for the appellant in his synopsis really
means in the context. The respondents were recruited against a
particular post in a particular cadre. The fact that the cadre came into
existence after 1st January, 1979 is really of no consequence. The
terms and conditions of the recruitment were unequivocal and the
expert Committee has sought to resolve the dilemma by
recommending the creation of two cadres at par with the cadres of
Stenographers and Senior Stenographers with the Central
Government and recommended only the, “placement” of the
respondents to the post of Senior Stenographer. Even a “deemed
LPA No. 2115 of 2006 Page 15 of 16
promotion” was not recommended nor was any promotion actually
made. This has been done for good reasons.
13. Consequently, we do not find any infirmity in the decision
of the learned Single Judge and the same is upheld. The DDA is
granted three months’ time to implement the decision of the learned
Single Judge delivered on 2nd August, 2006.
14. The appeal is dismissed. Each respondent shall be paid
Rs. 7,000/- by the appellant towards costs.
SUDERSHAN KUMAR MISRA, J.
SANJAY KISHAN KAUL, J.
New Delhi
April 15, 2009.
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