Braham Prakash & Anr vs Union Of India & Ors

REKHA PALLI, J

The present batch of writ petitions under Articles 226 and 227 of the Constitution of India, have been filed by the petitioners who are presently

working as Inspectors (GD) in the CRPF. All the petitions raise common issues with similar prayers and are, therefore, being decided by a common

judgment. For the sake of convenience, only the facts of W.P.(C) No.3636/2016 are being referred to hereinbelow.

The petitioner, Mr.Braham Prakash, joined the CRPF as a Constable (GD) in the year 2003. Thereafter, on 30.10.2007, he was selected as a Sub-

Inspector (GD) upon clearing the Limited Departmental Competitive Examination (hereinafter referred to as “LDCEâ€) held in respect of the said

post. Before the petitioner was selected as a SubInspector (GD), the recommendations of the Sixth Pay Commission came into force and in

accordance with Rule 5 of the CCS (Revised Pay) Rules, 2008 (hereinafter referred to as ""CCS Rules""), the Central Government serving employees

were entitled to give an option stating as to whether they wished to switch over to a revised pay structure from a date later than 01.01.2006. The said

option was required to be exercised within a period of three months from the date of issuance of the Rules, and as per Rule 6(1), the option once

exercised, would be treated as final. It, however, transpires that keeping in view the new system of pay bands and grade pays introduced pursuant to

the CCS Rules, representations were made to the Government by various Government servants who were unable to exercise their options within the

stipulated period of 3 months, requesting for a further opportunity to exercise their options in accordance with Rule 5. The said request was acceded

to by the Department of Expenditure, Ministry of Finance and vide OM dated 05.07.2010, Government servants were granted an opportunity to revise

their initial option of pay fixation, by giving a fresh option in terms of Rule 5 on or before 31.12.2010.

Pursuant to the OM dated 05.07.2010 issued by the Ministry of Finance, the Pay & Accounts Office of the CRPF, vide its Signal dated 08.10.2010,

the respondents granted time to all the CRPF personnel to exercise their fresh options in accordance with Rule 5 of the CCS Rules, within the

extended time frame. In response to this Signal issued by the CRPF, the petitioner submitted his revised option on 03.12.2010 wherein, he elected to

continue to draw pay in the existing scale till the date of his next promotion, i.e., 30.10.2007, instead of his earlier option electing to be governed by the

revised pay structure w.e.f. 01.01.2006. The petitioner’s revised option form was forwarded to the DIG(P), CRPF by his unit, but no action was

taken thereon, compelling him to submit various representations which were initially rejected on the ground that he had not submitted any option before

31.12.2010. However, even upon the petitioner making further correspondence in this regard along with copies of the despatch register, evidencing the

options submitted by him on 03.12.2010, he received no further information, thus leading to the filing of the present petition.

Upon notice being issued in the present petition, the respondents have filed a counter affidavit. The only plea taken by the respondents in their

counter affidavit to deny the petitioner the benefit of the revised option exercised by him on 03.12.2010, is that the OM dated 05.07.2010, pursuant to

which the petitioner submitted his revised options, is not applicable to any persons appointed to a post on or after 01.01.2006. The plea of the

respondents, thus, in their counter affidavit is that the petitioner having been appointed as a Sub-Inspector (GD) through LDCE w.e.f. 08.11.2007, was

not entitled to submit any fresh revised option in terms of Rule 5 of the CCS Rules. Therefore, the option form submitted by him to fix his pay from the

date of his appointment as a Sub-Inspector (GD), was rightly not acted upon.

Arguing for the petitioners, Mr.Ankur Chhibber, learned counsel contended that the action of the respondents in treating the petitioner’s

appointment as a Sub-Inspector (GD) as a fresh appointment, is not only contrary to their own decision, but is also in the teeth of the decisions of this

Court wherein, it has been categorically held that appointment through LDCE is a mode of promotion and not direct recruitment. He contends that

once appointment through LDCE has been clearly held to be a mode of promotion, the plea of the respondents that the petitioner was freshly

appointed as a Sub-Inspector (GD) after 01.01.2006, is unsustainable. On the contrary, it was argued that in the light of the categorical

pronouncements of this Court, it was incumbent upon the respondents to have revised the petitioner’s pay in accordance with the fresh option

given by him on 03.12.2010. In support of the aforesaid contention, Mr.Chhibber has placed reliance on a judgment dated 21.12.2012 of a Coordinate

Bench of this Court in W.P.(C) No.2887/2012 entitled Man Singh v. Union of India & Ors.

On the other hand, Ms.Bidawat, learned counsel while defending the action of the respondents in not acting on the option form given by the

petitioner, submited that the petitioner, who was initially a Constable, had been freshly appointed as a Sub-Inspector (GD) after 01.01.2006 and,

therefore, he was not at all entitled to submit any revised option in terms of the OM dated 05.07.2010. By placing reliance on Explanation 2 appended

to Rule 5 of the CCS Rules, she submitted that the said option was not available to any person who was appointed to a post on or before 01.01.2006

and the fresh appointee in such cases was entitled to pay only in the revised pay structure. She further argued that merely because the option form

submitted by the petitioner was forwarded by his unit, it did not create any vested right in the petitioner to claim the benefits of the options exercised

by him in terms of Rule 5 of the CCS Rules.

We have heard the learned counsel for the parties and find that the only stand taken by the respondents to deny the petitioner the benefit of his

revised option dated 03.12.2010, is that he being a fresh appointee to the post of Sub-Inspector (GD) w.e.f. 08.11.2007, was not eligible to exercise

any option in accordance with Rule 5 of the CCS Rules as the said option was available only to persons who were already in service before

01.01.2006. It may be noted that it is undisputed before us that the petitioner had joined the CRPF on 23.02.2003 and was appointed as a Sub-

Inspector (GD) on 08.11.2007 by way of LDCE. Therefore, the question before us would be whether upon joining the post of SubInspector (GD) by

way of LDCE on 08.11.2007, it could be said that the petitioner had joined Government service after 01.01.2006.

Before we deal with the rival contentions of the parties, it is deemed it appropriate to refer to Rules 5 and 6 of the CCS (Revised Pay) Rules, 2008,

which read as under:-

Drawal of pay in the revised pay structure - Save as otherwise provided in these rules, a Government servant shall draw pay in the revised pay

structure applicable to the post to which he is appointed;

Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any

subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.

Provided further that in cases where a Government servant has been placed in a higher pay scale between 1.1.2006 and the date of notification of

these Rules on account of promotion, upgradation of pay scale etc., the Government servant may elect to switch over to the revised pay structure

from the date of such promotion, upgradation, etc.

Explanation 1 - The option to retain the existing scale under the provisos to this rule shall be admissible only in respect of one existing scale.

Explanation 2 - The aforesaid option shall not be admissible to any person appointed to a post on or after the 1st day of January, 2006, whether for the

first time in Government service or by transfer from another post and he shall be allowed pay only in the revised pay structure.

Explanation 3 - Where a Government servant exercises the option under the provisos to this rule to retain the existing scale in respect of a post held by

him in an officiating capacity on a regular basis for the purpose of regulation of pay in that scale under Fundamental Rule 22, or any other rule or order

applicable to that post, his substantive pay shall be substantive pay which he would have drawn had he retained the existing scale in respect of the

permanent post on which he holds a lienor would have held a lien had his lien not been suspended or the pay ofthe officiating post which has acquired

the character of substantive payin accordance with any order for the time being in force, whichever is higher.

Exercise of Option -

1)The option under the provisos to Rule 5 shall be exercised in writing in the form appended to the Second Schedule so as to reach the authority

mentioned in sub rule (2) within three months of the date of publication of these rules or where an existing scale has been revised by any order to that

date, within three months of the date of such order.

Provided that -

(i) in the case of a Government servant who is, on the date of such publication or, as the case may be, date of such order, out of India on leave or

deputation or foreign service or active service, the said option shall be exercised in writing so as to reach the said authority within three months of the

date of his taking charge of his post in India; and

(ii) where a Government servant is under suspension on the 1st day of January, 2006, the option may be exercised within three months of the date of

his return to his duty if that date is later than the date prescribed in this sub-rule.

(2) The option shall be intimated by the Government servant to the Head of his Office.

(3) If the intimation regarding option is not received within the time mentioned in sub-rule (1), the Government servant shall be deemed to have elected

to be governed by the revised pay structure with effect on and from the 1 day of January, 2006.

(4) The option once exercised shall be final Note 1 - Persons whose services were terminated on or after the 1st January, 2006 and who could not

exercise the option within the prescribed time limit, on account of discharge on the expiry of the sanctioned posts, resignation, dismissal or discharge or

disciplinary grounds, are entitled to the benefits of this rule

Note 2 - Persons who have died on or after the 1* day of January, 2006 and could not exercise the option within the prescribed time limit are deemed

to have opted for the revised pay structure on and from the 1 day of January, 2006 or such later date as is most beneficial to their dependents, if the

revised pay structure is more favourable and in such cases, necessary action for payment of arrears should be taken by the Head of Office

Note 3 â€" Persons who were on earned leave or any other leave on 1.1.2006 which entitled them to leave salary will be allowed the benefits of this

rule.â€​

A perusal of the aforesaid Rules clearly reveals that as per Explanation 2 to Rule 5, “those persons who are appointed to a post for the first time

in Government service on or after 01.01.2006"", are prohibited from exercising the option to switch over to the revised pay structure from a date later

than 01.01.2006. Thus, the entire claim of the petitioner hinges on whether he can be treated as a person who had joined Government service for the

first time, on or after 01.01.2006.

The question as to whether a person appointed by way of LDCE is a direct recruit or a promotee, need not detain us for too long as we find that a

Division Bench of this Court in the case of Man Singh (supra), has categorically held that appointment through LDCE is merely an appointment by

way of promotion albeit fast tracked. In arriving at the aforesaid decision, the Division Bench had relied upon the notings of the Ministry of Home

Affairs itself wherein, it had been clearly stated that LDCE is a mode of promotion. For the sake of ready reference, the relevant extracts of the

decision in the case of Man Singh (supra), are reproduced hereinbelow:-

“17. Learned counsel for the petitioner has drawn our attention to the stand of the Ministry of Home Affairs (Personnel), New Delhi as well as the

Department of Personnel and Training of the Government of India in their records which have been filed in a pending matter before the Supreme

Court of India. The first noting (dated 18th November, 2011) is extracted in extenso hereafter and reads as follows:-

“Department of Personnel & Training Estt (res)

Reference notes of Ministry of Home Affairs on pages 2-3/ante.

Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the

LDCE is a mode of promotion. On the issue of change in category of a person, who has been appointed on the basis of reservation, it is clarified vide

this Department’s OM dated 11.7.2002 that SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted

against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any.

-sd-

(Sharad Kumar Srivastava) Under Secretary (Res)â€​

This noting was reiterated by the Ministry of Home Affairs in a noting dated 22nd November, 2011 of Shri R.P. Sati, Under Secretary referring to a

writ petition filed in this court. The noting dated 22nd November, 2011 reads as follows:-

“Ministry of Home Affairs Pers â€" II

Reference note on pre-pages.

This is regarding Writ Petition(C)No.5460/2011 filed by Shri Sundeep Kumar Dubey, Constable )GD) of CRPF in the High Court of Delhi against

his nonselection for the post of Sub, Insp(GD) through Limited Department Competitive Examination (LDCE), 2010.

The matter was considered in this Ministry (p2/n) and DoP&T was requested to clarify the position as mentioned in para â€" 3(p-2/n). In this

connection DoP&T vide their UO dated 18.11.2011 (p-4/n) has clarified the following:-

“Regarding clarification whether LDCE is Direct Recruitment or a mode of promotion, the RR Branch of this Department has clarified that the

LDCE is a mode of promotion. On the issue of change in category of a person, who has been appointed on the basis of reservation, it is clarified vide

this Department‟s OM dated 11.7.2002 that SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against

unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any.â€​

We may convey the above mentioned clarification of DoP&T to CRPF.

-Sd-

(R.P. Sati)

Under Secretary

22.11.2011

Director (Pers)/DS(Pers-I)â€​

The correctness and authenticity of these notings have not been disputed before us by the respondents.

The respondents have urged in the present proceedings that appointments through the LDCE is a mode of fast tracked promotion. In the above

notings, the respondents have themselves taken the position that appointment through the LDCE is a mode of promotion. Given the stand of the

respondents in the notings aforesaid and before this Court it is clear that appointment to LDCE is merely an appointment by promotion, albeit fast

tracked. It would, therefore, follow that the recruitment rules or guidelines for appointments which would apply to appointments through the LDCE,

would have to be those which are applicable to appointment by promotions.â€​

The aforesaid extracts from the internal notings of the respondents themselves, as reproduced in the case of Man Singh (supra), leave no manner

of doubt that as per the respondents' own understanding, LDCE is treated only as a method of promotion and therefore, the appointment of the

petitioner on 08.11,2007 as a Sub-Inspector (GD) by way of LDCE has to necessarily be treated as a promotion and not a fresh appointment in

government service.

The petitioner had admittedly joined the CRPF on 25.02.2003, as a Constable (GD) and once we have come to the conclusion that his appointment

as a Sub-Inspector (GD) on 08.11.2007, cannot be treated as a fresh appointment, he must be treated as already being in Government Service as on

01.01.2006, i.e., the cut-off date which is relevant for the purposes of exercising the option under Rule 5 of the CCS Rules. In the light of the above,

the decision of the respondent in treating the petitioner as having joined government service for the first time after 01.01.2006, is clearly erroneous

and, therefore, the respondents’ reliance on the Explanation 2 to Rule 5 to hold that the petitioner was not entitled to exercise any option, is not

sustainable as the said provision which excludes the applicability of Rule 5 to persons who joined government service on or after 01.01.2006, is in

applicable to the petitioner.

What emerges from the above discussion is that the petitioner has been denied the benefit of the option exercised by him in accordance with Rule

5, on an erroneous presumption drawn by the respondents that he had joined government service for the first time after 01.01.2006. The respondents

have not raised any other ground to deny the petitioner the benefits of his revised option. In the light of the aforesaid conclusion, the denial on the part

of the respondents in extending the petitioner the benefits of his revised option, is found to be wholly erroneous, arbitrary and cannot be sustained.

For the aforementioned reasons, the respondents are directed to extend the benefits of the revised option exercised by the petitioners in each case

under Rule 5 of the CCS(RP) Rules, 2008 and grant them all the consequential benefits to which they would be entitled, within eight weeks.

The writ petitions are allowed on the aforesaid terms, with no orders as to costs.