HUKAM CHAND GUPTA vs. DIRECTOR GENERAL, I.C.A.R. .

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3580 OF 2009 Hukum Chand Gupta ...Appellant VERSUS Director General, ICAR & ORS. ...Respondent J U D G M E N T SURINDER SINGH NIJJAR,J. th 1. On 25 September, 2012, we passed the following order: “Having heard the appellant-in-person and the counsel for the respondent, we find no merit in the appeal and the same is hereby dismissed. The detailed reasons with conclusions shall follow.” JUDGMENT 2. Here are the reasons. 3. This appeal is directed against the judgment of the Division Bench of the High Court of Punjab and Page 1 2 Haryana at Chandigarh in Civil Writ Petition No.9595- th CAT of 2004 decided on 8 August, 2008. 4. The appellant was initially appointed as a Laboratory

National Dairy Research Institute (hereinafter referred th to as ‘NDRI’). On 13 January, 1966, he was promoted as a Lower Division Clerk (Junior Clerk) after qualifying limited departmental competitive th examination. He was further promoted on 10 May, 1973 as a Senior Clerk, again after qualifying limited departmental competitive examination. At that stage, his pay scale was Rs.1200-2040/-. Subsequently, on th 15 June, 1988, he was promoted to the post of JUDGMENT Superintendent in the pay scale of Rs.1640-2900/- after th passing the departmental examination. On 17 March, 1994, he was promoted as Assistant Administrative Officer on the basis of seniority-cum-fitness. The th respondent revised the pay scale of Assistants on 17 June, 1995 from Rs.1400-2600 to Rs.1640-2900/- Page 2 3 st w.e.f. 1 January, 1986. However, the pay scale of Superintendent was not revised.

th on 24 October, 1995 requesting that his pay scale may be revised on the ground that in Headquarters of Indian Council of Agricultural Research (ICAR), the post of Superintendent is a promotional post from that of Assistant which carries the pay scale of Rs.1640- 2900/-. The representation not having been decided, the appellant filed OA No.567-HR-96 before the Chandigarh Bench of Central Administrative Tribunal (hereinafter referred to as ‘the Tribunal’). By order JUDGMENT th dated 20 May, 1997 the Tribunal disposed of OA with the following observations :- “In this application, the agitation is for revision of pay scale of the applicant who is Superintendent in the scale of Rs.1640-2900/- to that of Rs.2000- 3500/- on the ground that the duties and responsibilities of Superintendent are much higher than the Assistants working at Headquarters office of ICAR and he should be given the higher pay scale. As per the recent judgment of the Hon’ble Supreme Court in the case of UOI and Anr. vs. Page 3 4

2. However, it was also brought to our notice that the matter is engaging the attention of the authority concerned and the representation filed by the applicant on 24.10.1995 (A-3) is under active consideration. 3. In view thereof, the OA is disposed of with a direction that respondents shall expedite the decision in the matter. OA disposed of accordingly.” A perusal of the aforesaid shows that the Tribunal JUDGMENT declined to entertain the claim of the appellant by relying upon the judgment rendered by this Court in Union of 1 India Vs. P.V.Hariharan & Anr. The Tribunal, however, directed that the respondent shall expedite the decision on the representation submitted by the appellant. 1 (1997) 3 SCC 568 Page 4 5 Subsequently, NDRI sent a copy of the memorandum to nd the appellant on 2 April, 1998 which reads as under:

“With reference to the Court Case filed by Sh.Hukum Chand Gupta Asstt. Administrative Officer, NDRI, Karnal, under OA No.567/HR/96 in the Central Administrative Tribunal, Chandigarh, regarding upgradation of the post of Superintendent in the higher scale of that the proposals based upon the recommendations of Dr. Raman Committee involving upgradation of posts including the Superintendent/Superintendent (A &A) and Sr. Stenographer in the existing pay scale of RS.1640-2900 (revised to Rs.5500-175-9000) to the next higher grades, the same have not yet been concurred to by the Ministry of Finance. Deptt. of Expenditure. Thus the decision in the matter is pending. This issue with reference to the ICAR letter No.9-16/96 Law dated the 11-March-1998. JUDGMENT Sd/- (J.K.Kewalramani) Senior Administrative Officer Admn.)” th 6. On 4 August, 2000, the appellant was further informed that ICAR, on the basis of the recommendation of the Cadre Review Committee, had Page 5 6 directed for upgradation of seven posts of Superintendents to the post of AAO, by letter dated th 17 December, 1998. Therefore, no further decision

representation of the appellant. th 7. It appears that on 12 December, 2000, the Screening Committee of respondent institute recommended the case of Shri J.I.P. Madan for financial upgradation in the scale of Rs.8000-13500/-. The aforesaid decision was taken on the basis of the instructions of the ICAR by which the post of Superintendent was merged with the post of Assistant as the post of Superintendent was treated as ‘dying cadre’. In the meantime, the JUDGMENT st appellant reached the age of superannuation on 31 th July, 2001 and duly retired from service. On 17 April, 2002, Shri J.I.P. Madan was granted second financial th upgradation w.e.f. 8 February, 2001 in the pay scale of Rs.8000-13500. At this stage, the appellant again moved the Tribunal through OA No.299/HR/2003. The appellant claimed that Shri J.I.P. Madan being Page 6 7 junior to him cannot be put in a higher pay scale. The nd OA was dismissed on 2 December, 2003.

claims. It was observed that the post at Headquarters cannot be compared with the post at Institutional level as both are governed by different sets of Service Rules. The second prayer with regard to the higher pay scale given to Shri J.I.P. Madan was rejected on the ground that he had been given the benefit of second upgradation in pay since he had earned only one promotion throughout his professional career. JUDGMENT 9. Aggrieved by the aforesaid, the appellant filed a writ petition C.W.P. No. 9595 CAT of 2004 before the High Court. The writ petition has also been dismissed by th judgment dated 8 August, 2008. This judgment is impugned in the present appeal. Page 7 8 10. We have heard the appellant, in person, and Mrs. Sunita Rao, on behalf of the respondents.

reached by the High Court. It is a matter of record that the claim of the appellant had been negated way back in 1997, when the Tribunal rejected the claim. The aforesaid order of the Tribunal was not challenged by the appellant. However, leaving aside the question of laches, we are of the opinion that the appellant has failed to establish that the action of the respondents is either discriminatory or beyond the purview of the rules. JUDGMENT 12. According to the appellant, the decisions rendered by the Tribunal as well as the High Court are based on a misconception. According to him, there can be no distinction in the pay scales of the posts in Headquarters on one hand and at institutional level on the other. He claims that the persons holding identical Page 8 9 posts performing identical and similar duties under the same employer cannot be treated differently in the matter of pay and allowances, depending on whether

Institution level. This, according to the appellant, violates Article 14, 16 and 39D of the Constitution of India. 13. Mrs. Sunita Rao, learned counsel appearing for the respondent has submitted that Shri J.I.P. Madan was rd appointed as a Lab Assistant w.e.f. 3 May, 1976 at NDRI. He was directly recruited thereafter th on 9 February, 1977 as an Assistant in the pay scale JUDGMENT of Rs.425-700. This was not a case of promotion from the post of Lab Assistant, a technical post to the post of Assistant which is in the general cadre. She, however, accepts that Shri Madan was further th promoted as Superintendent on 24 August, 1990 in the pay scale of Rs.1640-2900 revised to Rs.5500- st 9000 with effect from 1 January, 1996. He was Page 9 1 st further promoted to the post of AAO on 1 November, 1996 in the pay scale of Rs.6500-10500. She, however, points out that there was a merger of the post of

post of Superintendent was declared a dying cadre. Assured Career Progression Scheme (hereinafter referred to as ‘ACP Scheme’) was introduced in 1999. Some institutes had raised a point of doubt as to whether the promotion of Assistant to Superintendent may be ignored in terms of DOPT’s clarification vide th O.M. dated 10 February, 2000. Reference was, therefore, made to the DOPT for the necessary clarification. The clarification given by the DOPT was JUDGMENT communicated to the respondent institute by letter st dated 1 March, 2002. Learned counsel brought to our notice the relevant extract of the aforesaid letter, which is as under : - “In the given facts, the post of Assistant and Superintendent have been brought at par as incumbents of both are eligible for promotion directly to the grade of AAO and Assistant is no longer the feeder grades for Page 10 1

14. According to the learned counsel, the promotion of Shri Madan from the post of Assistant to the post of Superintendent had to be ignored on the basis of the above clarification. Consequently, he had been given th the second upgradation under the ACP on 26 March, 2000. 15. In our opinion, the explanation given by Mrs. Sunita Rao does not leave any room for doubt that the claim JUDGMENT made by the appellant is wholly misconceived. There is no comparison between the appellant and Shri J.I.P. Madan. The appellant had duly earned promotion in his cadre from the lowest rank to the higher rank. Having joined in Group D, he retired on the post of AAO. On the other hand, Shri J.I.P. Madan had been working in the same pay scale till his promotion on the Page 11 1 post of AAO. Therefore, he was held entitled to the second upgradation after 24 years of service. He had joined as an Assistant by Direct Recruitment and

After the merger of the post of Assistant with the Superintendent, the earlier promotion of Shri Madan was nullified, as Assistant was no longer a feeder post for the promotion on the post of Superintendent. Thus, a financial upgradation, in view of ACP Scheme, was granted to him since he had no opportunity for the second promotion. 16. The Assured Career Progression Scheme for the JUDGMENT civilian employees was introduced on the recommendations of the Vth Central Pay Commission. It was introduced with a view to provide a ‘Safety Net’ to deal with problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Under this scheme, it was decided to grant two financial upgradations on Page 12 1 completion of 12 years and 24 years of regular service respectively. It was further provided that isolated posts in Group A, B, C and D categories which

similar benefits. Grant of financial upgradations under the ACP Scheme was, however, made subject to the conditions mentioned in Annexure-I of the Office Memorandum No.35034/1/97-Estt(D) dated th 9 August, 1999. The conditions in Annexure-I indicate that ACP Scheme envisages only a placement in the higher pay-scale/grant of financial benefits (through financial upgradation). This is given to the Government servant concerned, on personal basis JUDGMENT only. It neither amounts to functional/regular promotion nor requires creation of new posts for the purpose. The aforesaid clarification makes it abundantly clear that the financial upgradation was granted to Shri Madan strictly inconformity with the aforesaid scheme. Therefore, the objections raised by Page 13 1 the appellant were without any basis and wholly misconceived.

made by this Court in Council of Scientific and 2 Industrial Research & Anr. Vs. K.G.S. Bhatt & Anr. in the following words: “It is often said and indeed, adroitly, an organisation public or private does not “hire a hand” but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See Principles of Personnel Management , Flipo Edwin B., 4th Edn., p. 246) Every management must provide realistic opportunities for promising employees to move upward. “The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of JUDGMENT 2 (1989) 4 SCC 635 Page 14 1

( system of promotions. See Management of Personnel in Indian Enterprises , Prof. N.N. Chatterjee, Ch. 12, p. 128)” 3 18. In the case of State of Tripura & Ors. Vs. K.K. Roy , this Court again observed that “it is not disputed that the other States in India/Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the Scheme of Assured Career Promotion in terms whereof the incumbent of a JUDGMENT post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues.” 3 (2004) 9 SCC 65 Page 15 1 19. As noticed earlier, the ACP Scheme was introduced in the ICAR by making the necessary provision in the statutory Service Rules. Admittedly, Shri J.I.P. Madan

Therefore, the decision taken by the respondent was within the purview of the Service Rules and can not be said to be arbitrary. That being so, the claim made by the appellant is clearly misconceived. 20. We are also not inclined to accept the submission of the appellant that there can be no distinction in the pay scales between the employees working at Headquarters and the employees working at the JUDGMENT institutional level. It is a matter of record that the employees working at Headquarters are governed by a completely different set of rules. Even the hierarchy of the posts and the channels of promotion are different. Also, merely because any two posts at the Headquarters and the institutional level have the same nomenclature, would not necessarily require that the Page 16 1 pay scales on the two posts should also be the same. In our opinion, the prescription of two different pay scales would not violate the principle of equal pay for

violate Articles 14, 16 and 39D of the Constitution of India. It is for the employer to categorize the posts and to prescribe the duties of each post. There can not be any straitjacket formula for holding that two posts having the same nomenclature would have to be given the same pay scale. Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the JUDGMENT incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. Neither the Central Administrative Tribunal nor a Writ Court would normally venture to Page 17 1 substitute its own opinion for the opinions rendered by the experts. The Tribunal or the Writ Court would lack the necessary expertise undertake the complex

JUDGMENT 4 (2009) 9 SCC 514 Page 18 1

JUDGMENT (Emphasis supplied) Page 19 2 21. In our opinion, the aforesaid observations would be a complete answer to all the submissions made by the appellant.

appeal and the same is dismissed. .………………….….….J. [Surinder Singh Nijjar] ………………………….J. [H.L.Gokhale] New Delhi; September 25, 2012. JUDGMENT Page 20