W.P.(C) Nos.4377/03 & 10121/09 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: April 07, 2011 Judgment Delivered On: April 26, 2011 + WP(C) 4377/2003 K.L.NOATAY ..... Petitioner Through: Mr.K.N.Madhusoodhanan, Advocate versus UOI & ORS. .....Respondents Through: Mr.K.P.S.Kohli, Advocate WP(C) 10121/2009 RAGHUBIR SINGH GHERA & ORS. ..... Petitioners Through: Ms.Rekha Palli, Ms.Punam Singh and Ms.Amrita Prakash, Advocates versus UOI & ORS. .....Respondents Through: Mr.R.V.Singh and Mr.A.S.Singh, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. The above captioned writ petitions under Article 226 of Constitution of India raise three issues; namely: (i) whether the administrative officers cadre of Border Roads Organization is required to be encadred as an organized cadre; (ii) whether W.P.(C) Nos.4377/03 & 10121/09 Page 2 of 27 the petitioners in W.P. (C) No.10121/1999 are entitled to the payment of special pay/headquarters allowance; and (iii) whether the initial pay of the petitioner in W.P.(C)No.4377/2003 in the post of Civilian Officer Grade-I (SG) was required to be fixed in terms of the provisions of F.R. 22(I)(a)(1). 2. Whereas issue No.(i) arises for consideration in both the writ petitions, issues Nos.(ii) and (iii) arise in W.P.(C) Nos.10121/1999 and 4377/2003 respectively. 3. Since one of the issues which arise for consideration in the two captioned petitions is common, arguments were heard in both the matters on 07.04.2011 and decision was reserved. The present judgment decides both the petitions. 4. We shall be dealing with each of the issues separately. Issue No. (I) 5. Border Roads Organization (hereinafter referred to as the “BRO”) was set up in March 1960 for the expeditious execution of Road Works for development of communication in North and North – Eastern border areas of the country. BRO is a civil engineering institution responsible to provide civil (construction) engineering cover to the Armed Forces of India and under the administrative control of Ministry of Road Transport and Highways, Government of India. BRO is staffed with a combination of Border Roads Engineering Services (BRES) officers from General Reserve Engineering Force (GREF) and officers from Corps of Engineering of Indian Army. Broadly, there are four cadres in BRO; namely: (i) Civil Engineering W.P.(C) Nos.4377/03 & 10121/09 Page 3 of 27 Cadre; (ii) Electrical and Mechanical Engineering Cadre; (iii) Administrative Officers (Non-Technical) Cadre and (iv) Medical Cadre. Out of the said four cadres, two cadres namely, civil engineering cadre and electrical and mechanical engineering cadre have been encadred as organized cadres. The petitioners in the two captioned writ petitions are/were the officers who are/were holding various Group A posts in the administrative officers cadre of BRO. 6. In the year 1991 the petitioner of W.P.(C) No.4377/2003, K.L.Noatay who was working on the post of Civilian Officer, Grade-I in the administrative officers cadre of BRO filed a petition bearing No.3210/1991 under Article 226 of Constitution of India before the Gauhati High Court, inter-alia praying for the relief(s) that :- (i) a direction be issued to the department to undertake a cadre review of the posts in the administrative officers cadre of BRO; and (ii) petitioner K.L.Noatay be promoted to a post higher than that of Civilian Officer, Grade-I, with effect from the date his counterpart working in engineering cadres was promoted to a higher post and to grant him incidental benefits of such promotion. 7. Noting that there are no promotional prospects for the persons working as Civilian Officers in BRO, vide judgment and order dated 14.07.1995 the Gauhati High Court directed the department to undertake a review of the cadre of Civilian Officers i.e. administrative officers cadre to improve promotional prospects of the post of Civilian Officer in BRO. The relevant portion of the judgment of the High Court reads as under:- W.P.(C) Nos.4377/03 & 10121/09 Page 4 of 27 “9. There is thus an immediate need to provide promotional prospects for persons working as Civilian Officers in the Border Roads Organization. The respondents have stated in their affidavit-in-opposition that it has been decided to carry out the cadre review of the Civilian Officer and grant relief to them, but the matter has been dragged for too long time. Since such cadre review of the Civilian Officers of Border Roads Organization is long over-due and the petitioner is about to retire from service within a year, I direct that the respondents shall within a period of 3 months from the receipt of a certified copy of this order from the petitioner review the cadre of Civilian Officers in the Border Roads Organization for the purpose of creating promotional posts for Civilian Officers and within two months thereafter consider the petitioner along with others for promotion to such promotional posts which may be created by the respondents. I further direct that while making such cadre review and granting promotional benefits, the respondents shall also decide as to whether, considering the fact that the Civilian Officers have stagnated in their respective posts for almost two decades, such promotional benefits should be given with retrospective effect. With these directions, the writ petition is disposed of, but there shall be no order as to costs.” (Emphasis Supplied) 8. Pursuant to the afore-noted directions issued by Gauhati High Court, on 08.11.1995 the department carried out a review of the posts in the administrative officers cadre of BRO. 9. All this while, the officers working in the administrative officers cadre of BRO were making representations to the department that in view of the lack of promotional prospects in the administrative officers cadre which has a sizeable strength inasmuch as it consists of 130 Group A officers and plays an W.P.(C) Nos.4377/03 & 10121/09 Page 5 of 27 important role in the working of BRO the same be encadred as an organized cadre. 10. In view of the representations made by the officers of the administrative officers cadre, on 30.09.2009 DDG (Pers), BRO forwarded a note to the Border Roads Development Board wherein he mooted a proposal for the encadrement of the administrative officers cadre of the BRO as an organized cadre. The said note reads as under:- “1. Ref Sectt BRDB ID Note No. PC-6 to BRDB/03/191/2007/GE-I dated 13 May 2009. 2. GO – 1349W Dir (Admn) RS Ghera of this Dte has submitted a representation requesting for making Administrative Officers Cadre as an organized cadre so that the benefits of Organized Cadre can also be extended to Administrative Officers Cadre, as in the case of Civil/E & M cadre. 3. The case has been examined in the light of the following aspects:- (a) Instruction from Deptt of Pers & Trng vide No. AB-14017/38/90-Estt (RR) dated 23 May 1990(F/B) which stipulates that all isolated posts should be encadred into Organized Cadre. (b) 130 Group A Officers are on the strength of the Administrative officers cadre in the Organization. Organized services like Indian Supply Service, Indian Inspection Service, P & T Building Works Service, etc have less strength that that of Administrative Officer Cadre. (c) In BRO, the Group A E&M Cadre who were having less strength (i.e. 117 Nos) had been made an Organized Service, during 1997. (d) A model Organized cadre Cadre should have the following level of posts. W.P.(C) Nos.4377/03 & 10121/09 Page 6 of 27 Ideal Holding SAG (Jt Secy or equivalent) Director (JAG) JAG (Dy Secy or equivalent) Jt Dir (JAG) STS (US or equivalent) SAO(STS) JTS (Admn Offr or equivalent) AO(JTS) 50% of JTS should be through direct recruitment. (e) Presently in the Administrative officers cadre, the lower three levels are available as against the SAG level, two posts of Director are available which are lower than SAG level. (f) In BRO there are broadly four arms/cadre of Officers:- (i) Civil Engineers (ii) Mech Engineers (iii) Medical Officers (iv) Administrative Officers (g) The cadres mentioned at (i) and (ii) of Para 3 (f) are organized cadre. The Medical Cadre which is small in strength, though not Organized, is covered by Dynamic Assured career progression and an Officer joined as MO-II(JTS) will get SAG Scale after completion of 20 years of Service. (j) The Administrative officers cadre, in fact, is large in strength and meets the requirements of an Organized Service and is presently deprived of benefits of both Organized Cadre as well as DACP. 4. Representation of Director (Admn) RS Ghera was also referred to the Cadre Review Committee constituted at this Dte for the purposes of cadre review of all categories of GREF officers. The Committee has opined that if Admn Officers Cadre is to be constituted as an organized cadre, then all the attributes of an organized service has to be satisfied, viz post at the level of JS equivalent has to be created, W.P.(C) Nos.4377/03 & 10121/09 Page 7 of 27 lateral entry to be stopped, Dir (Admn) post to be declared Non-Functional, entry at JTS level has to be from Civil Service Examination conducted by UPSC and the Gazette Notification of the Ministry will be required making Admn Officers of BRO as an organized service. 6. All organized cadres do not have posts strictly as per the model Organized Service and even Indian Legal Services do not have any post of JTS level. Therefore, the cadres which do not fit as per the model can also be declared as Organized cadre. In view of all the points elaborated above, it is recommended that the case for declaring Administrative Officers Cadre as an organized cadre be considered even if it involves excluding the SAG level post at present.” (Emphasis Supplied) 11. Vide office order dated 05.11.2009 the Border Roads Development Board rejected the afore-noted proposal mooted by DDG (Pers) for the encadrement of the administrative officers cadre of the BRO as an organized cadre, which office order reads as under:- “Subject: To encadre Administrative Officer of BRO as an Organized Group A Cadre Reference Dte.GBR‟s Note No.13822/SCR/Adm Cadre/DGBR/93/E1A dated 30.09.2009 on the above subject. 2. The proposal has been examined and the same has not been accepted due to the reasons given below:- (a) Border Roads Organization is a construction agency and engineers are the backbone of the organization and the main cadre for the execution of construction works, hence comparison of AOs with engineers is not tenable. W.P.(C) Nos.4377/03 & 10121/09 Page 8 of 27 (b) The Assistant Executive Engineers (entry level) are recruited through UPSC on the basis of Engineering Service Examination whereas Administrative Officers are recruited through interview basis only. Thus mode of selection for these two posts is not similar. (c) After implementation of recommendation of 6th Central Pay Commission, the Govt. has introduced Modified ACP Scheme for Group A officers also. Under this scheme, there will be three financial upgradation at intervals of 10, 20 and 30 years of continuous regular service and the same is also applicable to the officers of Administrative officers cadre. 3. This issues with the approval of secretary BRDB.” 12. Aggrieved by the decision of the department not to encadre the administrative officers cadre as an organized cadre the petitioners in both the petitions have filed the present petition(s) under Article 226 of Constitution of India inter-alia contending that in view of the lack of promotional prospects in the administrative officers cadre which has a sizeable strength inasmuch as it consists of 130 Group A officers and plays an important role in the working of BRO, the department be directed to encadre the said cadre as an organized cadre. In order to highlight the lack of promotional prospects in the administrative officers cadre, the petitioners laid emphasis on the fact there exists a wide disparity between the promotional prospects in the administrative officers cadre and the two cadres of BRO which have been encadred as organized cadre namely, civil engineering cadre and electrical and mechanical engineering cadre. To demonstrate the said W.P.(C) Nos.4377/03 & 10121/09 Page 9 of 27 disparity, following table(s) were pressed into service by the petitioners:- Comparison of Cadres in BRO Civil Engineering Cadre S. No Name of Official Date of Joining Senior Time Scale Junior Admn. Grade (Jt Dir/Dir) Senior Admn. Grade Higher Admn Grade 1. V.K. Yadav 09.05.1978 15.06.1992 13.12.1997 (Dir) 12.12.2002 17.11.2009 2. Anil Kumar 10.05.1983 23.07.1993 18.08.1999 (Dir) 01.12.2004 - 3. Vinod Kumar 05.04.1983 July 1993 14.06.1999 (Dir) 05.10.2005 - Electrical and Mechanical Engineering Cadre S. No Name of Official Date of Joining Senior Time Scale Junior Admn. Grade (Jt Dir/Dir) Senior Admn. Grade Higher Admn Grade 1. S. Sen 01.05.1982 22.03.1992 07.06.2001 (Dir) 31.05.2006 - 2. V.N. Singh 06.08.1985 09.11.1993 07.10.2003 (Dir) - - 3. Rajesh Kumar 08.09.1990 20.08.2000 28.11.2009 (Dir) - - Administrative Officers Cadre S. No Name of Official Date of Joining Senior Time Scale Junior Admn. Grade (Jt Dir/Dir) Senior Admn. Grade Higher Admn Grade 1. R.S. Ghera 18.03.1978 05.03.1993 20.02.2002 (Jt Dir); 30.11.2007 (Dir) - - 2. A.K. Chattopadhyay 14.03.1983 29.06.1995 06.09.2004 (Jt Dir) - - W.P.(C) Nos.4377/03 & 10121/09 Page 10 of 27 3. R.P. Singh 04.03.1983 12.04.1996 01.12.2006 (Jt Dir) - - 4. Rohtash Kumar 17.10.1979 08.06.1996 22.08.2007 (Jt Dir) - - 5. Alok Das 15.06.1982 09.09.1997 01.09.2007 (Jt Dir) - - 13. Per contra, the department contended that it is settled legal position that the courts should be very slow in interfering with the policy decisions of the State as it is a decision taken by the administrators on an examination of various facets before them and the inputs they receive from various sources. It was contended that in view of the said legal position, this Court should not interfere with the policy decision of the department not to encadre administrative officers cadre as an organized cadre. 14. Broadly speaking, there are two categories of posts in Group A services in the Central Government viz., those encadred in the organized cadres and those which do not form part of any organized cadre. In an organized cadre the posts belonging therein are arranged in a hierarchical and pyramidical manner representing different level of responsibilities or grades and the level of responsibilities increases with each senior level. There are six grades in an organized cadre viz., Junior Time Scale (JTS), Senior Time Scale (STS), Junior Administrative Grade (JAG), Non-Functional Selection Grade (NFSG), Senior Administrative Grade (SAG), Higher Administrative Grade (HAG) and Higher Administrative Grade-I (HAG-I). While the Junior Time Scale (JTS) is the lowest grade, Higher Administrative Grade-I (HAG-I) is the highest W.P.(C) Nos.4377/03 & 10121/09 Page 11 of 27 grade. The Pay Commissions recommend scales of pay (now known as pay bands) for different grades/levels of posts keeping in view the nature of responsibilities attached to the posts and the cadre structure i.e. the promotional avenues. As opposed to this, the posts belonging to an unorganized cadre are not arranged according to the level of the responsibilities attached to the posts. Since the posts belonging to the unorganized cadres are not arranged according to the level of the responsibilities/grades the recommendations made by the Pay Commissions do not apply to the unorganized cadres as a result whereof acute stagnation is caused in the said cadres. The instant case is a perfect example of the same. The tables noted in para 12 above depicting the career progressions of the officers working in the administrative officers cadre vis-à- vis their counterparts working in the two engineering cadres, the organized cadres of BRO. The afore-noted judgment dated 14.07.1995 passed by the Gauhati High Court also notices the stagnation of the officers of the administrative officers cadre. 15. In view of the acute stagnation in the administrative officers cadre of BRO due to non-encadrement of the said cadre as an organized cadre, is the decision of the department of refusing to encadre the administrative officers cadre as an organized cadre legally valid is the question which needs to be answered by us? 16. As already noted herein above, three reasons have been given by the department in refusing to encadre the administrative officers cadre as an organized cadre; namely: (i) the two engineering cadres play a pivotal role in the working of BRO, which is not the case with administrative officers cadre; W.P.(C) Nos.4377/03 & 10121/09 Page 12 of 27 (ii) the mode of selection for the entry level posts in the administrative officers cadre and the two engineering cadres are different; and (iii) the implementation of the recommendations of Sixth Central Pay Commission the Modified Assured Career Progression Scheme (MACPS) applies to all the Group A central government employees including the officers working in the administrative officers cadre of BRO and the same solves the problem of the lack of promotional prospects in the administrative officers cadre. 17. The first two reasons given by the department to refuse to encadre the administrative officers cadre as an organized cadre are wholly fallacious. The department has not correctly appreciated the tenor of the grievance raised by the officers working in administrative officers cadre in respect of non- encadrement of their cadre as an organized cadre. The grievance raised was that due to non-encadrement of the administrative officers cadre as an organized cadre there is lack of promotional prospects in the said cadre. It was not the grievance of the officers working in administrative officers cadre that they are being discriminated against their counterparts in the two engineering cadres and thus their cadre should also be encadred as an organized cadre like the two engineering cadres. The career progression of the officers working in the said two engineering cadres has only been referred to by the officers working in administrative officers cadre to demonstrate the lack of promotional prospects in their cadre. Thus, the approach of the department in drawing a comparison between administrative officers cadre and the two engineering cadres and thereby refusing encadrement to W.P.(C) Nos.4377/03 & 10121/09 Page 13 of 27 administrative officers cadre is totally non-focused. In any case, it is not correct to say that the administrative officers cadre does not play an important role in the working of BRO. BRO has a task force of approximately 42,000 personnel. The administrative officers cadre is responsible for assisting, advising and operating matters of discipline, administration and other matters relating to human behavior and motivation in personnel of BRO. The administrative officers cadre is also responsible for the general safety of unit lines, maintenance of regimental institutions, general administration matters, preservation of resources and liaison with other units on matters connected with execution of tasks assigned to them. 18. As regards the application of the Modified Assured Career Progression Scheme (MACPS) to the officers working in the administrative officers grade is concerned, relevant would it be to note that in order to remove stagnation, the Fifth Central Pay Commission recommended Assured Career Progression Scheme (ACPS) to all the general employees in the Central Government. The scheme of ACP recommended by the Fifth Central Pay Commission envisaged three time-bound promotions for Group A posts after 4, 8 and 13 years of service. For posts in Groups B, C and D, two time-bound promotions were to be provided on completion of 8 and 16 years of service for Group B, 10 and 20 years for Group C and 12 and 24 years for Group D. The Government accepted the said scheme in a modified manner and introduced the ACPS for Groups B, C and D and isolated posts in Group A where two financial upgradations were to be provided on 12 and 24 years of service. The financial upgradations were to be in the next W.P.(C) Nos.4377/03 & 10121/09 Page 14 of 27 higher grade in the existing hierarchy. The Sixth Central Pay Commission recommended certain modifications in the Assured Career Progression Scheme implemented by the Government. One of the recommendations made by the Sixth Central Pay Commission was that save and except organized Group A services, the benefit of ACPS be available to all posts belonging to Group A, whether isolated or not, which recommendation has been accepted by the Central Government. Grant of financial upgradation envisaged by Assured Career Progression Scheme is different from grant of higher scale of pay recommended by the Pay Commissions therefore the Assured Career Progression Scheme does provide a limited relief to the officers of the administrative officers cadre of BRO to a limited extent but is not a substitute for the benefits available to the said officers on encadrement of administrative officers cadre as an organized cadre. 19. It is trite that the courts should not ordinarily interfere with the policy decision of the State. But at the same time it is equally settled that the courts can interfere with a policy decision of the State if such decision is shown to be patently arbitrary, discriminatory or mala fide. 20. In view of the above discussion, we direct the department to encadre the administrative officers cadre of BRO as an organized cadre. 21. However the matter does not rest here. The further question which arises is whether the said encadrement would take effect from a prospective or retrospective date and if retrospective, then from which date. W.P.(C) Nos.4377/03 & 10121/09 Page 15 of 27 22. We direct the department to decide whether the encadrement of administrative officers cadre of BRO as an organized cadre would be given a prospective or retrospective effect. The decision would be taken within 16 weeks of the receipt of this judgment. In taking the said decision, the department shall take into account all the facts germane to the issue, particularly the fact that the officers working in the administrative officers cadre have been stagnating since a long time. Issue No. II 23. The petitioners in W.P.(C) No.10121/2009 who are holding various Group A posts in the administrative officers cadre in BRO have been posted at the headquarters of BRO in Delhi. 24. On 26.08.1974 Department of Expenditure, Ministry of Finance, Government of India issued following office memorandum to all the Ministries/Departments of Government of India:- “Subject: - Grant of special pay to class I senior scale (Rs.1100-1600)/junior Administrative Grade/inter Administrative Grade officers posted in headquarters organization of the various Departments-Recommendations of the Third Pay Commission. The undersigned is directed to invite a reference to the recommendations of the Third Pay Commission contained in paragraph 34 and 35 of Chapter 8 and paragraph 27(1) of Chapter 14 of its Report regarding grant of special pay to officers in the senior scale and the Junior/inter administrative grades of Central Class I Services while holding posts in their respective Headquarters organization. These W.P.(C) Nos.4377/03 & 10121/09 Page 16 of 27 recommendations have been accepted by the Government vide item No.8 of the Annexure to the Ministry of Finance to the Ministry Resolution No.F.11/35/74-IC dated 1.5.1974. The President is accordingly pleased to decide that special pay at the following rates to officers of Class I Non- technical, Technical, Scientific and Engineering Services when they are posted to the Headquarters Organizations of those Departments, i.e. to the highest office administratively in charge of the Department like the office of the C & A.G., office of the Controller General of Defence Accounts, P & T Board, Central Board of Direct Taxes, Central Board of Customs and Excise, etc. Rates of Special Pay Officers in the senior scale Rs.200/- per month (Revised scale Rs.1100-1600) Officers in the Junior Rs.300/- per month Administrative/Intermediate Administrative grade (Revised scales Rs.1500-1800/1800-2000/1500- 2000) The grant of special pay at the rates indicated above will be subject to the condition that the pay plus special pay does not exceed Rs.1700/- in case of senior scale officers and Rs.2250/- in case of Junior/Intermediate administrative grades.” 25. On 20.02.1979 the Director General Border Roads sanctioned the payment of special pay/headquarters allowance only with respect to the officers working in the “organized cadres” of BRO. W.P.(C) Nos.4377/03 & 10121/09 Page 17 of 27 26. Aggrieved by the action of the department of denying the payment