Dharam Pal and Ors v. Delhi High Court

order). Upon restructuring of a cadre, Grade 'B' is abolished from a date subsequent to

9.8.1999. Employees recruited in Grade 'A', who are eligible for financial upgradation on or after The benefit of ACP Scheme is to be allowed as per the hierarchy existing, as on the date the employees become eligible for financial upgradation under ACPS. . Cadres/hierarchical structures are never static and are always subject to review based on recommendations of Pay Commissions/Expert Page 27

9.8.1999 but before the date of effect of restructuring, get first/second financial upgradation in Grade 'B' and Grade 'C' respectively but those who become eligible for financial upgradation after the restructuring has been effected are entitled to first financial upgradation in Grade 'C' and second financial upgradation in Grade 'D'. This is anomalous. The cases of earlier set of employees should be reviewed and they may be allowed financial upgradations as applicable to the latter category of employees." Committees or otherwise and it is not possible to review the entitlements under ACPS already earned every time a cadre is reviewed. ACPS is only a temporary solution to provide relief to stagnating employees and the lasting solution for stagnation lies in review of cadre structures, as regular promotions will be earned in such restructured grades. All the employees will benefit from such cadre restructuring.

¶33This explanation clarifies that since cadre-restructuring by Pay Commissions is a frequently undertaken exercise, privileges under ACPs should not be open to review, each time a cadre is restructured. The existing hierarchy itself is to be implemented. Because the ACP is required to be implemented in the "existing hierarchy", it is imperative to consider the hierarchy as it exists at the time the employee becomes eligible for upgradation.

¶34It is appropriate to note here that this Court in its judgment of

4.11.2003 in W.P. 740/2003, also ordered that the ACP scheme ought to be implemented keeping in mind the existing hierarchy. The Court Page 28 was of the opinion that the "existing hierarchy" at that time was that which was proposed by the 5th PC (though not sanctioned by the Central Government). The Court noted that the affidavit filed on behalf of the High Court stated that the Administrative Committee of the High Court had recommended the ACP's implementation, as it had already been implemented in the Supreme Court and the Subordinate Courts. The Screening Committee (constituted to work out the modalities, per the ACP scheme) reported that till pay scales of the Class III and Class IV employees are decided, their cases cannot be processed. A Committee of three judges subsequently considered the matter and was of the view that since the Supreme Court had implemented the ACP, the High Court was also in a position to implement it along the lines of the Supreme Court. This Court also notes that the affidavit of the Ministry of Personnel, Public Grievances and Pensions stated that the employees of the DHC enjoy special status under the Constitution and that it was for the High Court to evolve a suitable promotion scheme or to adopt the ACP in its stead. Consequently, only the administrative side of the High Court had powers in this area and there was no question of Central Government approval. However, the only requirement was sanction from the Central Government for replacement of pay scales in line with the 5th PC's proposed pay scales.

¶35The Court proceeded to note that on implementation of the 5th PC report, the High Court had requested the Ministry of Law and Justice vide letters dt. 22.12.1998 and 26.10.1999 to obtain sanction of the Government for the normal replacement of the pay scales in Page 29 respect of posts in Class III and Class IV, w.e.f. 1 Jan 1996. However, the Deputy Secretary of the Ministry without reasons, by letter dated

22.08.1999 stated it was not possible to do so. Once again, a letter was written on 4.4.2000 to the Ministry of Law and Justice for normal replacement of pay scales. The Union Law Minister by letter dated

26.6.2000 informed the Chief Justice that serious anomalies existed in the pay scales of the employees of the Delhi High Court owing to the many judgments and orders passed in the various writ petitions filed by employees. He stated that in order to remedy these anomalies, a Bill was pending in the Rajya Sabha. The Chief Justice sent another letter dated 11.9.2000, reiterating that only normal replacement of pay scales of the 4th Pay Commission's report in terms of the 5th PC report was being sought and that further revision of pay scales for the posts in question was not being sought.

¶36The judgment in W.P. 740/2003, then noted that akin to the request for sanction of the President for revision of pay scales in terms of the 4th Pay Commission report (which was, ultimately conveyed to the High Court on 21.9.1998 pursuant to directions of the High Court on 27.8.2998 in Chaman Lal Sharma v. Union of India), sanction was being sought only to effect a normal replacement of pay scales in terms of the 5th PC, for the categories of employees in question. Non-grant of sanction was forcing the employees to draw lower salaries than those of other posts of equal status, thus creating an anomaly. However, no reply was received. This being the situation, the High Court noted that under Art. 229, the Chief Justice is the sole authority in the matter of regulating conditions of service of the officers of the Page 30 High Court. Proviso to clause Art. 229(2) states that rules made with regard to salaries, allowances, leave, pensions of officers and servants of the High Court shall require the approval of the Governor of the State. After considering the law on the matter, particularly in Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187, the High Court directed in its judgment that the ACP be adopted and implemented on the basis of the proposed revised pay scales, pending approval of the Central Government of revised pay scales in line with the 5th PC's recommendations.

¶37At this point, it is necessary to note that, contrary to the judgment in W.P. 740/2003, the letter dated 22.12.1998 (Annexure R-4) did not in fact, request sanction for normal replacement of pay scales in terms of the 5th PC report. The first respondent admits this in its counter affidavit. It requests sanction for replacement of the old scale of ` 1000-1750/- with a new scale of ` 3000-5120/-, for the posts of Ushers/Daftries and Book Binders, while the 5th PC report did not recommend a replacement pay scale for this post. The 5th PC only provided the replacement scale of ` 3200-4900/- for the old scale of ` 975-1660/-. The same is the request made in the letters dated

25.8.2005 (391), 4.3.1999 (411), 3.11.2003 (420), 28.2.2004 (421),

18.5.2004

(423),

11.1.2005

(428),

28.3.2005

(432),

25.8.2005

(438).The Ministry's response letter dated 13.10.2005 also sanctioned the new pay scale of ` 3000-5120/-, and thus clearly did not sanction normal replacement of pay scales in terms of the 5th PC report.

¶38This concededly, was consistent with the High Court having notified the post of Usher as being a post to be filled only by Page 31 promotion (by order of the Chief Justice dated 1.10.2003, in which qualifications for appointment to the post of Usher was notified as being a minimum of 5 years' service in in any of the posts of Court Attendant, Room Attendant, Security Attendant, Safaiwala, Lawn Attendant, Library Attendant; as observed earlier, if one necessarily must have served for at least 5 years in one of these named posts, it is clear that a direct recruit candidate cannot possibly qualify for the post of Usher; the post is open to be filled only by promotion, after

1.10.2003.). The Court is of the opinion that having regard to the absolute right of the Chief Justice to control the establishment and employees of the High Court, under Article 229 of the Constitution, the decision to amend the Rules with effect from 01.10.2003 cannot be gone into. If any doubts about the feasibility of this existed, they were not voiced by the Central Government, which could have possibly indicated a different view, for good and valid reasons. This Court notes that the judgment of 4.11.2003 proceeded on an assumption-not entirely accurate-that all the requests for sanction sent by the Chief Justice to the Ministry of Law and Justice were for mere "normal replacement of pay scales" in line with the recommendations of the 5th PC. Having regard to the power of the Chief Justice under Article 229 of the Constitution, the change in hierarchy made subsequently through the amendment of 2003 has to be given due weightage in considering the issue of ACP benefits and the relevant pay scales applicable for the scheme.

¶39It is the argument of the petitioners that the sanction of pay scale of ` 3000-5120/- is contrary to the intent of the ACP. This Page 32 argument is premised on the assumption that the 5th PC merged two pay scales, thus rendering the scale of ` 3000-5120/- "non-existent". The argument, though not advanced in this form in Court, appears to be relying on clarification 1 issued in O.M. No. F.No.35034/1/97-Estt(D)(Vol.IV) issued on 10.2.2000 which stipulates that when two pay scales are merged, then the ACP should result in financial upgradation to the pay scale immediately above the merged pay scale. Thus, it is argued that the existing hierarchy is the hierarchy as it exists at the time the employee becomes eligible for upgradation. Since the ACP scheme was introduced on 9.8.1999 by the Department of Personnel and Training by DoPTM No. 35034/1/97-Estt. (D) and the 5th PC recommendations were introduced w.e.f. 1.1.1996, the existing hierarchy of posts at that time was that under the 5th PC recommendations.

¶40The Court has already dispelled this contention by holding that the hierarchies of posts and corresponding pay scales must be viewed differently prior to 1.10.2003 and post 1.10.2003. Prior to 1.10.2003, even though in practice, the post of Usher was treated as a selection grade as against the pay grades of Court Attendant, Room Attendant, Security Attendant etc., no qualifications had been stipulated in the Establishment Rules to expressly state this. Thus, for the period till

1.10.2003, the post of Usher must be considered a selection grade that is not a part of the defined hierarchy in Schedule II of the Establishment Rules. According to Clarification 2, (issued on

10.2.2000), this selection grade, for the purpose of the ACP scheme, must not be considered a promotional grade and must be treated as Page 33 withdrawn. Such being the case, in the hierarchy of posts as it existed when the ACP was introduced i.e. as of 09.8.1999, till the date of the Chief Justice's order of 1.10.2003, the post of Usher cannot be considered a promotional grade from the posts of Court Attendant, Lawn Attendant etc. After 1.10.2003, since the post of Usher was made a part of the existing, defined hierarchy in Schedule II of the Establishment Rules, even if only as a selection grade (since the only manner of appointment to the post of Usher is through promotion after satisfying the educational and experience requirements), the post of Usher must be considered as a promotional grade as against Court Attendant, Lawn Attendant, etc. The hierarchy of posts, pre and post the 2003 Amendment would be as follows: Old scales prior to the ACP scheme Replacement Scales Appointment between

9.8.1999 to

1.10.2003 Appointment after

1.10.2003 5500-9000 -- 1350-2200 4500-7000 4500-7000 1000-1750 3200-4900 3000-5120 975-1660 3200-4900

¶41From the above analysis, the following conclusions emerge: Page 34

(i) The ACP scheme must be implemented within the existing hierarchy of pay grades/pay scales, in keeping with the purpose of the Scheme i.e. to grant reprieve from stagnation due to lack of promotional posts, by way of financial upgradation.

(ii) The ACP scheme operates to grant two financial upgradations, i.e. to the two higher promotional grades, after 12 and 24 years in service respectively.

(iii) Any selection grade that is introduced in lieu of a higher pay scale, and which is not part of the defined hierarchy, cannot be considered as a promotional grade within the defined hierarchy, for the purposes of ACP.

(iv) The post of Usher was introduced as a selection grade in the Delhi High Court Establishment Rules only on 1.10.2003. Till then, it was a selection grade post outside the defined hierarchy.

(v) Consequently, for the purpose of ACP, between 9.8.1999 and

1.10.2003, the selection grade of Usher must be treated as withdrawn. All persons appointed to this selection grade, i.e. of Usher from other Class IV posts to Usher during this period, shall not be regarded as having received promotion grade pay for the purposes of the ACP. The ACP shall be granted for Class IV posts including Ushers first to the pay grade of ` 4500-7000/- and then to the next higher grade of ` 5500-9000/-.

(vi) After 1.10.2003, since the selection grade of Usher was introduced within the Delhi High Court Establishment Rules, as Ushers, the post of Usher is a promotional grade as against the feeder grade of the other Class IV posts. Thus, for all persons Page 35 appointed after 1.10.2003, ACP is granted to Class IV posts first to the promotional grade of Usher in the pay scale of ` 3000-5120/- and then the next higher pay grade of ` 4500-7000/-.

¶42Accordingly, the writ petition is allowed in part; a direction is issued to the respondents to ensure that all employees who were allowed the selection grade (i.e. of Usher from other Class IV posts to Usher) during this period between 1999 and 01-10-2003 shall not be regarded as having received promotion grade pay for the purposes of the ACP. The ACP shall be granted for Class IV posts including Ushers first to the pay grade of ` 4500-7000/- and then to the next higher grade of ` 5500-9000/-.In respect of those granted the post of Usher after 1-10-2003, the first ACP shall be `3000-5120/- and the second ACP shall be in the grade of ` 4500-7000/-. The respondent Delhi High Court establishment is directed to issue necessary and consequential orders, to comply with the findings of the Court, within six weeks from today. There shall be no order on costs. S. RAVINDRA BHAT (JUDGE) NAJMI WAZIRI (JUDGE) JULY 11, 2014

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 17.12.2013 Pronounced on : 11.07.2014 + W.P.(C) 5214/2011, C.M. APPL. 10579/2011 & 6798/2012 DHARAM PAL AND ORS. …..Petitioner Through: Ms. Jyoti Dutt Sharma, Sh. Piyush Sachdeva and Sh. Rahul Sharma, Advocates. Versus DELHI HIGH COURT ……..Respondent Through: Sh. Chetan Lokur, for Sh. Viraj. R. Datar, Advocate, for DHC. Sh. Baldev Malik with Sh. Arjun Malik, Advocates, for Resp. No.2. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT % 1. The petitioners, working as peons and Ushers in the Delhi High Court, seek directions to quash the Office Orders dated 16.4.2004 and 14.5.2004 issued by the first respondent, the Delhi High Court ("DHC") and the Report dated 18.7.2009 of the Committee constituted by the Hon'ble Chief Justice, DHC on 1.7.2009 to consider their Page 2 grievances. They claim a writ of mandamus directing the DHC to fix their pay at the pay scale which existed at the time of implementation of the recommendations of the 5th Pay Commission ("5th PC") i.e. ` 3200-4900/-, and, further a writ of mandamus directing the DHC to grant the benefit of the Assured Career Progression Scheme ("ACP") in the hierarchy as it existed when the 5th PC recommendations came into effect. The second respondent is the Union of India, through the Secretary, Ministry of Law and Justice, responsible for granting sanction to revised pay scales as proposed by the first respondent, the DHC. 2. The Petitioners were appointed as Ushers, Court Attendants, Gestetner Operator Grade II, Security Attendant, Lawn Attendant, Library Attendant, Sweeper and Farash in the establishment of the DHC.W.P.(C) 3464/1990 was filed before this Court, in 1990 by an Usher in a representative capacity for grant of higher pay scale. By judgment dated, 4.11.1991, that petition was allowed and the 4th Pay Commission pay scale recommendations were directed to be implemented for Class IV employees. Thus, all Class IV employees of this Court were placed in the pay scale of ` 975-1660/-. Subsequently, an application, C.M. 3715/1993 was filed by some Ushers, Daftries and Book Binders, seeking modification of the judgment in W.P.(C) 3464/1990, on the ground that parity of pay ought to be ensured between the employees of the High Court and the Supreme Court. The Court allowed the application and directed by order dated 10.12.1993, that the following pay scales be implemented for those posts: Page 3 Book Binders (Library Attendants) and Ushers ` 1000-1750/- Court Attendants, Lawn Attendants, Peons etc. ` 975-1660/- 3. The 5th PC recommendations were made effective on 1.1.1996 by which all Group D employees (Court Attendants, Ushers, Sweepers, Daftries, Book Binders, law attendants, library attendants etc.) were put on the pay scale of ` 3200-4900/-. This apparent merger of pay scale for all Group D employees into a single scale was, however, not challenged by the Petitioners. 4. It was in this background that a previous writ petition, W.P.(C) No. 740/2003 was filed by some Class III and Class IV employees claiming implementation of the "Assured Career Progression" (ACP) Scheme, introduced on 9.8.1999 by a memorandum of the Department of Personnel and Training by DoPTM No. 35034/1/97-Estt. (D). The Court held in its judgment of 4.11.2003 that despite repeated requests to the Central Government to sanction, what was termed "normal replacement of pay scales" in terms of the 5th PC's recommendations, the Central Government had not responded. Thus, pending approval of the revised pay scales of the staff of the High Court, the ACP was to be implemented on the basis of the "proposed revised pay scales". 5. The DHC issued the impugned office orders i.e. Office Order no. 144/Estt/E.IV/DHC and Office Order Endst. No. 222/C-4 Cash DHC on 16.4.2004 and 14.5.2004 respectively, granting the benefit of the 1st and 2nd financial upgradations under the ACP to the Petitioners Pag