Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6573 OF 2022
[Arising out of Special Leave Petition (Civil) No.27130 of
2012]
R.D. KAUSHAL AND ORS. ...APPELLANT(S)
VERSUS
UNION OF INDIA AND ORS. ...RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. Leave granted.
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This appeal challenges the judgment and order dated 18
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April, 2012 passed by the High Court of Judicature at Delhi, in
Writ Petition (Civil) No. 8503/2010, thereby setting aside the
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judgment dated 7 July, 2010 passed by the Central
Administrative Tribunal, Principal Bench, New Delhi
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(hereinafter referred to as “the learned CAT”) in Original
Application No. 3663/2009.
3. The facts leading to the present appeal are thus:
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3.1 Prior to the coming of force of the 5 Central Pay
Commission, there existed two distinct posts in the Language
Cadre of the Research and Analysis Wing, Cabinet Secretariat,
Government of India – the Group ‘B’ post of Assistant Foreign
Language Examiner (hereinafter, AFLE) and the Group ‘A’ post
of the Deputy Foreign Language Examiner (hereinafter, DFLE).
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Pursuant to the recommendations of the 5 Central Pay
Commission, in January 1999, the payscale of AFLEs was
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revised retrospectively from 1 January, 1996 to bring it at par
with the DFLEs. Thereafter, in September, 1999, the Cabinet
Secretariat ordered for the post of AFLE to be reclassified as a
Group ‘A’ post. For both these cadres, the next level of
promotion was to the post of Under Secretary (Language).
3.2 In 2001, the Research and Analysis Wing (Recruitment,
Cadre and Service) Rules, 1975 (hereinafter, the Recruitment
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Rules) were amended to equalize the required residency period
for promotion to the post of Under Secretary (Language) to 5
years for both posts. Additionally, the quota for promotion from
the AFLE stream and DFLE stream was amended to make it
60:40 from the earlier quota of 50:50. The Recruitment Rules
also provided for the diversion of seats from one quota to the
other on account of nonavailability of eligible candidates for
promotion from that quota.
3.3 The appellants herein joined the service as Interpreters
between April, 1985 and September, 1990, and were promoted
as AFLEs between March, 1995 and September, 1998. DFLEs,
however, were first recruited only in the year 1999. In 2002, on
account of vacancies that arose in the Under Secretary
(Language) cadre due to the noneligibility of DFLEs who had
yet to complete the 5 year residency requirement, the
Department of Personnel & Training (hereinafter, the DoPT), on
a proposal sent by the Cabinet Secretariat to divert the
vacancies to the candidates from the AFLE quota,
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recommended for both the posts to be merged since they were
identical in terms of the nature of their functions and duties,
their salaries as well as their promotional avenues. This
recommendation remained in cold storage until finally, vide
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Notification dated 13 March, 2008, the posts of AFLE and
DFLE were merged and redesignated as Senior Interpreter.
However, a footnote was added therein to the effect that the
merger would be effected in a manner that would not have any
adverse impact on the career prospects of the direct recruits,
i.e., the DFLEs, who would continue to maintain their distinct
identity till their promotion to the post of Under Secretary
(Language).
3.4 In the meanwhile, the vacancies that had arisen in the
post of Under Secretary (Language) were the subject matter of
litigation before the learned CAT. The learned CAT, vide order
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dated 26 May, 2008, observed that the distinction between the
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AFLEs and DFLEs had been removed with effect from 1
January, 1996, i.e., the date from which the recommendations
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of the 5 Central Pay Commission were implemented. Vide the
said order, directions were given to the Cabinet Secretariat and
the DoPT to reconsider the aspect of the merger of AFLEs and
DFLEs and the consequences thereof within a period of three
months from the date of the order. Promotions to the post of
Under Secretary (Language) were also put on hold until such
reconsideration.
3.5 In pursuance of the aforesaid direction, the Cabinet
Secretariat, through the Joint Secretary (Personnel) issued an
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Order dated 2 September, 2008, wherein it was held that the
distinction between the AFLEs and the DFLEs remained up till
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the official merger on 13 March, 2008, and thus, no
amalgamation of the two cadres had taken place by virtue of
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the operationalization of the recommendations of the 5 Central
Pay Commission.
Aggrieved by this order, one Vinod Kumar Jain, an AFLE,
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filed a contempt petition before the learned CAT, which, vide
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order dated 19 November, 2008, observed that the direction
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issued by the learned CAT in the order dated 26 May, 2008
had not been challenged and had therefore attained finality.
Another opportunity was granted to the Cabinet Secretariat to
pass a fresh order taking into account the observations made in
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the order dated 26 May, 2008.
3.7 Thereafter, the appellant nos. 1 and 2, filed O.A. No. 3663
of 2009 before the learned CAT along with three other AFLEs,
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challenging both the footnote in the Notification dated 13
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March, 2008 as well as the order dated 2 September, 2008.
The learned CAT allowed the original application vide order
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dated 7 July, 2010, thereby quashing and setting aside the
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order dated 2 September, 2008, with a further direction to
pass, within two months, a speaking order strictly in
accordance with the observations of the learned CAT in its
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order dated 26 May, 2008.
Aggrieved thereby, the Union of India preferred a writ
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petition before the High Court, in W.P. (C) No. 8503 of 2010,
which was allowed by the High Court vide the impugned
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judgment dated 18 April, 2012, thereby setting aside the
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learned CAT’s order dated 7 July, 2010. Being aggrieved
thereby, the appellants have approached this Court.
4. We have heard Mr. Rohit Sharma, learned counsel
appearing on behalf of the appellants and Mr. Vikramjit
Banerjee, learned Additional Solicitor General (“ASG” for short)
appearing on behalf of the respondents.
5. Mr. Rohit Sharma, learned counsel, submitted that the
High Court could not have reopened the learned CAT’s
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judgment and order dated 26 May 2008. He submitted that
the issue of merger also stood finally decided by the learned
CAT vide the same order, which was never challenged by any
party and had thus attained finality.
Mr. Sharma further submitted that the order of the
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Cabinet Secretariat dated 2 September, 2008 was totally
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contrary to the directions issued by the learned CAT dated 26
May 2008, which was not permissible in law. By order dated
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7 July 2010 passed by the learned CAT, which was impugned
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before the High Court, the learned CAT had only directed for
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the implementation of the order dated 26 May 2008. As such,
there was no occasion for the High Court to interfere with the
same.
On merits, Mr. Sharma submitted that both AFLEs and
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DFLEs performed the same responsibilities, carried the same
pay and were classified as Group A and both also had the same
residency period for promotion to the post of Under Secretary
(Language). He submits that once the AFLEs and DFLEs were
merged into the same cadre, a further classification on the
basis of their birthmarks was not permissible in law. He relies
on the judgment of this Court in the case of B. Manmad
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Reddy and others vs. Chandra Prakash Reddy and others
in support of his submission.
8. Shri Vikramjit Banerjee, learned ASG, submitted that the
learned CAT had erred in giving retrospective effect to the
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Notification dated 13 March 2008. He submits that it has been
1 (2010) 3 SCC 314
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specifically provided by the footnote in the said Notification that
on the merger of AFLEs and DFLEs and their redesignation as
Senior Interpreter, the same would not have any adverse
impact on the career prospects of the existing direct recruits in
the grade of DFLEs.
9. We find that, in the peculiar facts and circumstances of
the present case, it is not necessary to go into the question of
law as raised by the parties, since all the appellants have
superannuated.
The issue involved now is only restricted to the terminal
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benefits and pension payable in respect of the appellants
herein, who are only three in number.
11. Mr. Sharma, learned counsel, fairly states that the
appellants are willing to give up their claim for arrears and that
they would restrict their claim in the present appeal only
insofar as the terminal benefits and pension as payable to them
are concerned.
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12. In that view of the matter, we are inclined to dispose of the
present appeal with a direction to the respondents to calculate
terminal benefits as are payable to the appellants on the basis
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of the orders passed by the learned CAT dated 26 May 2008
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and 7 July, 2010. We are inclined to do so specifically in view
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of the fact that the order of the learned CAT dated 26 May
2008 was not challenged by the respondentUnion of India and
has, therefore, attained finality. The pension as calculated in
view of the aforesaid directions would be paid to the appellants
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with effect from 1 January 2023. The terminal benefits,
which the appellants are entitled to, would be cleared on or
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prior to 31 December, 2022. In the facts and circumstances of
the case, the appellants would not be entitled for arrears of
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pension from the date of their superannuation till 31
December, 2022. However, they will be entitled to interest at
the rate of 6% per annum on the terminal benefits payable to
them from the date of their superannuation till the date of
actual payment.
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13. The appeal is disposed of in the above terms. Pending
applications, if any, stand disposed of. However, there shall be
no order as to costs.
…….........................J.
[B.R. GAVAI]
………………….…….........................J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
SEPTEMBER 14, 2022.
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