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[2014) 13 S.C.R. 17

VIRENDRA KRISHNA MISHRA

' v. . -

UNION OF INDIAAND OTHERS - (Civil Appeal No. 9979 of 2014)

OCTOBER3°1, 2014' . . .

 ····

 [ANIL R: DAVE, KURIAN JOSEPH AND 1 B

R. K.AGRAWAL, JJ.] . - . : Service Law - Encadrement oi posts Guarantee .•. -d ,. . . '

- -- -- ·- ' . . against discrimination u/Art.14 of the Constitution-National Capital Territory of Delhi; Andamanand Nicobar Islands, C Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Services_- Posts 'of Deputy Resident Commissioner (DRC), Tourist Information Officer (TIO) and Information Officer (10}- /n status, grade, scale of pay and professional content, the posts of 10, . TIO and DRC were same - Feeder D cadre for all the posts was PRO-:- Cadre Review Committee encadred only, the DRCs, ignoring T/Os and the /Os - Justification .. - Held: Not justified -:- Whole conduct of the Cadre Review Committee was arbitrary and a blatant violation of the guaranteed protection of equality u!Art.14 of E the Constitution - No justification for distinguishing persons who are grouped together - If posts of DRC only are . encadred, th_e juniors' in the feeder as well as promoted category will steal a march over their seniors, merely on F foituitous situation of posting as DRC- Direction issued.to. the Union of India to encadre all the posts which were treated -by the Andaman and Nicobar Islands under a common ·~ seniority ..;. Andaman and Nicobar Administration (lnformation.Officerin the Directorate of lnfomiatior; i, Publiity G and Tourism) Recruitment Rules, 1988 - Andaman and Nicobar Administration (Group 'B' Gazetted post of Tourist Information Officer and Deputy Resident Commissioner in .· the Directorate of Information, Publicity and Tourism) . /,·, .

17 H

A Recruitment Rules, 1997 - Constitution of India. 1950 - Art. 14.

Fundamental Rights- Right to equality- Held: Cannot be arbitrarily denied to equals in the absence of a valid B classification.

Allowing the appeal, the Court

HELD: 1.1. Equality before law and equal protection of laws is the quintessence of Right to Equality, a C Fundamental Right guaranteed under the Constitution of India. Equals cannot be treated unequally, nay, they are to be treated equally. Right to such equality cannot be arbitrarily denied to the equals in the absence of a

valid classification. [Para 2][19-F-G]

1.2. In the case at hand, one fails to understand, on elementary principles, as to how the Cadre Review Committee would encadre only the Deputy Resident Commissioners (DRCs), ignoring Tourist Information E Officers (TIOs), leave alone the Information Officers (IOs).

The whole conduct is arbitrary and a blatant violation of the guaranteed protection of equality under Article 14 of the Constitution of India. [Para 15][31-C-E]

F 1.3. There is no justification for distinguishing persons who are grouped together. The feeder cadre is

PRO for all the three posts of 10, TIO and DRC. Promotion is based on seniority. If 3 posts of DRC only are encadred, the juniors in the feeder as well as promoted G category will steal a march over their seniors, merely on fortuitous situation of posting as DRC. People who have burnt their boats should sail together. Therefore, the interest of justice would be protected and cause of justice would be advanced only if a positive direction is issued

VIRENDRA KRISHNA MISHRA v. UNION OF INDIA 19

to the Union of India to en cadre all the seven posts which A are treated by the Andaman and Nicobar Islands under a common seniority. [Para 17][32-DG] ·'

Budhan Choudhary and Ors. v. State of Bihar AIR 1955 SC 191 : 1955 SCR 1045 - referred to.

Case Law Reference:

1955 SCR 1045 referred to Para 16 ·

CIVIL APPELLATE JURISDICTION: Civil Appeal C No. 9979 of 2014.

From the Judgment and Order dated 14.03.2012 of the High Court at Calcutta, circuit at Port Blair, in COCT No. 01 of 2012. .

D J.S. Attri, Gurukrishana Ku'mar, Sr. Advs., Surajit Samanta, Sujoy Monda!, S. K. Poddar, Bijan Kumar Ghosh, Rupesh Kumar, Ms. Meenakshi Grover (For Ms. Sushma Suri), Mohan Prasad Gupta, R. Balasubramaniam, D.S. Mahra, B.K.

Prasad,.Hiren Dasar:i; Ms. Shanta Pandye, Avinash Singh, S.K.

E Bhattacharya, D.K. Mishra for the appearing parties.

The Judgment of the Court was delivered by

KURIAN, J. 1. Leave granted.

F 2. Equality before law and equal protection of laws is the quintessence of Right to Equality, a Fundamental Right guaranteed under the Constitution of India. Equals cannot be treated unequally, nay, they are to be treated equally. Right to such equality cannot be arbitrarily denied to the equals in the G absence of a valid classification. Had the first respondent borne in mind these elementary principles of one of the most sacred fundamental rights as indicated above, a long drawn three tier litigation of the appellant employee could have been averted.

3. Andaman and Nicobar Administration (represented by its various officers, respondent nos. 2 to 5) has been requesting the first respondent-Union of India in the Ministry of Home Affairs for encadrement of the post of Information Officer, Tourist Information Officer and Deputy Resident B Commissioner (hereinafter referred to as 10, TIO and DRC,

respectively) in the National Capital Territory of Delhi; Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Services (hereinafter referred to as DANICS). In Andaman and Nicobar Islands, there are C three posts of DRC, two posts of TIO and two posts of 10. The

appellant belongs to the 10 cadre. The Cadre Review Committee recommended encadrement only of three posts of DRCs and, accordingly, the qovernment vide notification D dated 01.10.2009, encadred three posts of DR Cs. The

appellant approached the Central Appellant Tribunal, which, by order dated 31.01.2012, held as follows:

"13 .... The decision of respondents not to include the post of Information Officer cannot therefore be sustained.

E The UOI is directed to reconsider the matter relating to their encadrement from the date of notification ....

14 .... The respondents UOI are directed to reconsider the matter relating to non-inclusion of the post of F Information Officer in the Schedule I. In case they are included they will be included wef the date of notification of revised Schedule I. ... "

(Emphasis supplied)

4. The appellant, finding that the directions are not

sufficient enough to protect his interest, moved the High Court of Calcutta on the Appellate Side leading to the impugned order dated 14.03.2012. It was held by the High Court as follows:

VIRENDRA KRISHNA MISHRA v. UNION OF INDIA 21

[KURIAN, J.]

" ... We are of the considered view that the Tribunal has A sufficiently protected the interest of the petitioner. The contention of Mr. Sa manta that the petitioner is an officer senior to the proforma respondents and if the selection process for induction of the Deputy Resident Commissioners in DANICS is not stayed, he may have B to work asjuniorto them, does not impress us, in view of the fact the Tribunal ha! directed that in the event the post of Information Officer is included in Schedule-I of DANICS, the same shall have effect from the date of notification of the revised Schedule -I dated 1st October, C

2009. Importantly, while entertaining the original application the Tr:ibunal had not stayed the selection process and directed that it would be subject to result of the original application.

D Therefore, we find no justification to restrain the official respondents from proceeding further with induction of the Deputy Resident Commissioners in DANICS in accordance with law, but make it clear that any action taken hereafter in this behalf shall abide by the decision E to be taken in terms of the Tribunal's order.

We may, however, record ttiat Mr. Das appearing for the respondent No. 1 has submitted before this Court that the process of reconsideration as directed by the Tribunal F would be completed within a period of three months. We hope and trust that the submission made before this Court shall be honoured in letter and spirit. ... "

(Emphasis supplied) G

5. Still not satisfied, the appellant approached this Court.

6. On 11.09.2013, this Court passed the following Order:

A "At the time of hearing of this petition, the learned ASG appearing for Respondent No. 1 - Union of India has submitted that the matter is being considered with regard to the encadrement of the post in question including Information Officers and Tourist Information B Officers. It has been further submitted by him that the process of review shall be expedited.

We wish that the prdcess be concluded by 28th February, 2014.

List on 4th March, 2014.

It is clarified that by an order dated 20.04.2012, it has been recorded that induction of any Deputy Resident Commissioner to DANICS shall be subject to the final result of the petition. This indicates that there is no stay with regard to the induction of Deputy Resident Commissioner to DANICS."

(Emphasis supplied)

7. In the counter affidavit filed on 27 .07 .2012, the Union of India has submitted before this Court that:

" ... the Ministry intends to stop the process of encadrement of DRCs till the final outcome of the present SLP, since the very process of en-cadrement is proposed to be reviewed ... ."

8. The Cadre Review Committee, in its meeting held on 09.01.2014 (Annexure-'C' produced with I.A. No. 11 of 2014), G took the following decision:

"5. The entire issue of encadrement, relevant rules and issues pertaining to cadre structure of DANICS was discussed in detail. The representations given by Officers for encadrement were also discussed. It was also noted

VIRENDRAKRISHNAMISHRA v. UNION OF INDIA 23

[KURIAN, J.]

that no court order makes it mandatory to en cadre any A particular post. After considering the recommendation . of the A& N Administration, all the grievances in various OAs/WPs/SLP, directions of the Hon'ble Supreme Court dated 11.09.2013, proceedings of the Cadre Review Committee and all the material on record, it is decided B to recommend 3 posts of DRCs for encadrement as decided by the earlier CRC and duly notified. It is also decided that the request of encadrement of the posts of IOs/TIOs of A& N Islands and other simila(requests from other outlying UT segments regarding encadrement of C posts of DANI CS will be considered as per administrative requirement, cadre structure and pyramid and the Rules during the next cadre review ..

Sd/- (Anuj Sharma) Director (Services)

Sd/-(Kailash Chandra) o Secretary

(Services) Sd/- (I S Chahal) Joint Secretary (UTs)"

(Emphasis supplied) E

9. It is disturbing if not shocking to note that the Cadre Review Committee has not applied its mind at all to any of the relevant aspects. It has virtually ignored the submissions made on behalf of the Government of India before the High Court F and this Court and the direction issued by this Court vide Order dated 11.09.2013.

10. The undisputed factual and legal position is as follows:

a. The finding by the Central Administrative Tribunal that G ·

"The decision of respondents not to include the post of Information Officer cannot therefore be sustained.

The Union of India is directed to reconsider the matter relating to their re-cadrement from the date of H

notification", has not been challenged so far by the Union of India.

b. Before the High Court, it was submitted that the process of reconsideration, as directed by the High Court, was being done.

c. In the affidavit filed on 27.07.2012 before this Court, the Union of India has submitted that" ... the Ministry intends to stop the process of en-cadrement of DRCs till the final outcome of the present SLP, since the very process of en-cadrement is proposed to be reviewed.

d. It was again submitted on behalf of the Union of India

before this Courton 11.09.2013 that ... "the matter is D being considered with regard to encadrement of posts in question including the Information Officers and Tourist Information Officers".

e. That the Andaman and Nicobar Islands maintains a E common seniority list of the Information Officers, Tourist Information Officers and Deputy Resident Commissioners. The final seniority list is of 07.02.2001 and a provisional seniority list thereafter was published in January 2014 (Annexure-'B' in I.A.

F No.11of2014).

f. Under both Rules, viz., the Andaman and Nicobar Administration (Information Officer in the Directorate of Information, Publicity and Tourism) Recruitment G Rules, 1988 and the Andaman and Nicobar Administration (Group B Gazetted Post of Tourist Information Officer and Deputy Resident Commissioner in the Directorate of Information,

Publicity and Tourism) Recruitment Rules, 1997, the H

VIRENDRA KRISHNA MISHRA v. UNION OF INDIA 25

[KURIAN, J,]

posts are cla_ssified as Group B Gazetted non- A ministerial with the same scale of pay.

g. In case, the method of appointment is promotion, it is from the feeder category of Public Relations Officer, a common feeder cadre.

h. The posts are interchangeable. It is the specific stand . of the administration that the personnel posted at

Kolkatta, Chennai and New Delhi, had to be designated as Deputy Resident Commissioner only C since the posts in those places are of the said category.

i. Rule 4(2) of DANICS, 2003 specifically provides that the Government may include in the service, such posts which are equivalent to the posts included in the D service in status, grade, scale of pay and professional _content. To quote:

"4. Grades, strength and their review.-

( 1) The duty posts included in the various grades, their E number and the scales of pay attached to them on the date of commencement of these rules shall be as specified in Schedule I:

Provided that ten per cent and twenty per cent F of the sanctioned strength of the posts in the Service shall be non functional grades of Junior Administrative Gradel and Selection Grade respectively, and these shall be operated within the respective number of posts specified in Parts Band C of Schedule I: • G

Provided further that the number of posts in Junior Administrative Grade I shall not exceed the total number of sanctioned posts in the Junior Administrative H

Grad!e in the scale of pay of Rs.12,000-16,500.

(2) Notwithstanding anything contained in sub-rule( 1 ), the

G<!vernment may-

( a) from time to time, make temporary additions or

alterations to the duty posts in various grades; •

(b) in consultation with the Commission include in the

Service such posts as are be deemed to be equivalent to the posts included in the Service in status, grade, scale of pay and professional content or exclude from the Service a duty post already included in the Service; and

(c) in consultation with the Commission appoint the

regular incumbent of the post which has been included in the Service as a duty post to the appropriate grade of the Service and fix his seniority taking into account the regular service rendered by him in the said post or analogous grade.

(3) Notwithstanding anything contained in clauses (b) and

(c) of subrule (2), in case any regular incumbent of the post which has been encadred in the Service is not found suitable for appointment to the Service under clause ( c) of sub-rule (2), he shall continue to hold the p, ost and for the purpose the post shall be treated to have been excluded from the Service till such time it is held by such incumbent. The suitability of such persons for induction into the Service will be reviewed every year."

• j. It is the specific stand of the administration that in status,

grade, scale of pay and professional content, the posts of Information Officer born in 1988 Rules and the posts

VIREN ORA KRISHNA MISHRA v. UNION OF INDIA 27

[KURIAN, J.]

of Tourist Information Officer and Deputy Resident A Commissioner born in the 1997 Rules, are the same.

k. The Cadre Review Committee, in its Report dated

. 24.10.2005, had resolved as follows:

"4(iv)b.Posts which are having duties and 8

responsibilities akin to the posts included in Schedule-I to the DANICS Rules, 2003, although different in designations, may be included in the Schedule in the corresponding C grade; followed by,

Posts which are executive and administrative in nature, but having no promotion grades may be included in the appropriate grade in Schedule-I to the DANICS Rules, 2003." D

(Emphasis supplied)

I. At the time of promotion to the post of 10 or TIO and DRC, there is no option available to the promotee. It E is simply fortuitous that one gets a p9sting as DRC depending upon the vacancy.

m. lnAnnexure-P7, letter dated 03.06.2009, the Ministry of Home Affairs in its letter addressed to the Union Public Service Commission has taken the specific F stand that:

"4. . .. In terms of the Rule 4(2) of the aforesaid Rules, the Government may from time to time, make temporary additions or alterations to the duty posts in G various grades, and in consultation with the Union Public Service Commission include in the Service such 'posts as are deemed to be equivalent to the posts included in the Service in status, grade, scale of pay H

A and professional content or exclude from the Service a duty post already included in the Service."

11. Despite such glaring factual and legal position, the Cadre Review Committee has casually, if not callously resolved B that the encadrement of the post of Information Officers and Tourist Information Officers of Andaman and Nicobar Islands will be considered during the next cadre review. By the submissions on behalf of the Union of India, which we have extracted hereinabove, before the High Court and this Court, c the first respondent has been clearly, if not cleverly, averting positive directions. The Cadre Review Committee had the temerity, if not audacity, to record in its minutes that there is no positive direction to encadre any post. Even at the risk of redundancy, it may be noted that despite the clarification by D this Court on 11.09.2003 that there was no stay operating in this case, they did not proceed with the encadrement of the three notified DRCs on the stand that the whole matter was being reconsidered.

12. Though an attempt is made by the party respondents to establish that there are two separate divisions, the Administration is of the unambiguous stand that for all practical purposes, the establishment continues to be one and the same.

Paragraph-12 of the order of the Central Administrative F Tribunal which entered a finding that there is practically no

bifurcation of the department, is also relevant in this context:

"12. The recruitment rules for the post of Information Officer and Deputy Resident Commissioner/Tourism Information Officer are framed in 1988 and 1997 respectively. The 2001 & 2003 recommendations were submitted before the framing of th.e 2003 rules. The 2003 recommendation recommended for their inclusion in Schedule II ie. Feeder grade for promotion rather than

VIRENDRA KRISHNA MISHRA v. UNION OF INDIA 29

[KURIAN, J.]

Schedule I ie the posts encadred. These posts were not A included in either of the Schedule. The 2005 proposal recommends inclusion of the posts of Deputy Resident Commissioner and Information Officers. The report of CRC does not refer to the post of Information Officers.

The UOI does not disclose in their reply as to whether B the proposal of Information officers was put up to CRC

and whether on receipt of CRC report and during its examination this aspect was looked into. There is a bifurcation of Directorate of Information, Publicity & Tourism into two divisions but the reply of A& N C Administration does not disclose, if as a result of it, the Cadre was bifurcated. The only ground given by UOI in the reply is that it was decided to increase the cadre strength by 25% and hence similarly situated posts were D left out. 7 posts have been included in the new schedule."

13. Respondents 2 to 5, in counter affidavit filed on 13.12.2012, submitted in paragraphs-3 and 4 as follows:

"3. That the duties and responsibilities of the posts of E

Information Officer (10), Tourist Information Officer (TIO) & Deputy Resident Commissioner (DRC) of the Directorate of Information. Publicity and Tourism of the Union Territory Administration of Andaman and Nicobar, are Executive/Administrative in nature with F same pay scale/grade pay. The d_uties include coordination in respect of wide varieties of subjects.

There is no separate cadre for the A & N Islands and the incumbents of the said posts of TIOs, I Os and DR Cs have no promotional avenues during their whole G service career which resulted.in their stagnating in the same post till retirement. ·

4. That therefore number of representations were H

received from the incumbents holding these posts for inclusion of UTCS, and in the year 2001, the A & N Administration, sent a proposal to the Ministry of Home Affairs, Government of India for simultaneous encadrement of 3 posts of Deputy Resident Commissioner, 2 posts of Tourist Information Officer and 2 posts of Information Officer in the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Service (DANICS) cadre stating therein that the said posts are inter-changeable having same/similar recruitment rules, same scales of pay and same nature of duties and responsibilities.

No bifurcation has taken place and all these posts are interchangeable."

(Emphasis supplied)

14. Be that as it may, the specific stand of the Union of India before this Court is that:

"All these applications were disposed of vide a common order dated 31.1.2012 by the Hon'ble CAT. The said order was challenged by Shri V.K. Misra in the High Court of Calcutta, Port Blair Bench in COCT No.001/2012 which was disposed of by the Hon'ble High Court vide order dated 14.3.2012. The Hon'ble High Court had upheld the order passed by the Hon'ble CAT. The said order passed by the Hon'b.le High Court is under challenge in the instant SLP filed by Shri Virendra Krishna Misra. Due to these developments, the Ministry intends to stop the process of encadrement of DRCs till the final outcome of the present SLP since the very process of encadrement is proposed to be reviewed.

Further no action in compliance of the CAT's order has

VIRENDRA KRISHNA MISHRA v. UNION OF INDIA 31

[KURIAN, J.]

been taken so far because the said order is under A challenge by one of the applicants."

(Emphasis supplied)

15. All that apart, the Andaman and Nicobar Administration (Group 'B' Gazetted post of Tourist Information B Officer and Deputy Resident Commissioner in the Directorate of Information, Publicity and Tourism) Recruitment Rules, 1997, provides for the name of the post in the Schedule as Tourist

Information Officer and Deputy Resident Commissioner. There C are no separate Recruitment Rules for Deputy Resident Commissioner. The post under the Rules is Tourist Information Officer and Deputy Resident Commissioner. If that be so, one fails to understand, on elementary principles, as to how the

Cadre Review Committee would encadre only the Deputy D Resident Commissioners, ignoring Tourist Information Officers, leave alone the Information Officers. The whole conduct is arbitrary and a blatant violation of the guaranteed protection of equality under Artide 14 of the Constitution of India.

16. Though it needs no elaborate discussion or reference E to the guarantees under Article 14 of the Constitution of India, against discrimination, we shall refer to one of the earliest constitution bench judgments delivered by a 7-JudgesBench in Budhan Choudhry and others v. State of Bihar1 wherein F it has been held at paragraph-5 as follows:

"(5) ... It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable

classification for the purposes of legislation. In order, however, to pass the test of permissible classification G two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are

1 AIR 1955 SC 191 H

grouped together from others left out of the group and

(ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also wellestablished by the decisions of this Court that article 14 condemns dis, crimination not only by a substantive law but also by a law of procedure .... "

17. No plausible explanation is forthcoming from the Union of India for the arbitrary and discriminatory conduct. There is no justification for distinguishing persons who are grouped D together. The feeder cadre is PRO for all the three posts of 10,

TIO and DRC. Promotion is based on seniority. If 3 posts of

DRC only are encadred, the juniors in the feeder as well as promoted category will steal a march over their seniors, merely on fortuitous situation of posting as DRC. All the posts carry E the same scale of pay. They come under the same category of Group B posts. Professional content, status and grade are the same. Thus, we have no hesitation in holding that they cannot be discriminated within the class. People who have burnt their boats should sail together. Therefore, we are of the F view that the interest of justice would be protected and cause of justice would be advanced only if a positive direction is issued to the Union of India to encadre all the seven posts which are treated by theAndaman and Nicobar Islands under G a common seniority. The first respondent-Union of India is hence directed to take the required action forth"'<'.ith for the encadrement of all the seven posts of Information Officer, Tourist Information Officer and Deputy Resident Commissioner under theAndaman and Nicobar lslandsAdministration. The process H shall be completed within a month from the date of

VIRENDRAKRISHNAMISHRAv. UNION OF INDIA 33

[KURIAN, J.] ·

communication of this Judgment. Needless to say, the A encadrement, as above, will be with effect from the same date.

18. The appeal is allowed. The appellant shall be entitled to costs of Rs.50,000/-. The costs shall be borne by the first respondent.

Bibhuti Bhushan Bose Appeal allowed: