PYARE LAL v. M/O URBAN DEVELOPMENT

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2. The facts relevant for purposes of the present OA are that the applicant was promoted as Superintending Engineer (Electrical) in January, 2002. On completion of three years' service as Superintending Engineer (Electrical) he became eligible to be promoted as Chief Engineer (Electrical) in the year 2005. However, he was not granted promotion on account of non-holding of DPC. It is stated that the vacancy was available w.e.f. 01.05.2011 for the vacancy year 2011-2012. He made representations. Ultimately, the applicant was promoted as Chief Engineer (Electrical) on 20.03.2012 in Pay Band-4 Rs.37,400-67,000 + Grade Pay Rs.10,000/-. He joined the promotional post of Chief Engineer (Electrical) on 30.03.2012.

3. The second grievance of the applicant as projected in the OA is for grant of NFU in the grade of Additional Secretary (HAG) in the pay scale of Rs.67,000-(annual increment @ 3%)-79,000. The Non Functional Upgradation was introduced by the DOP&T vide office memorandum No.AB-14017/64/2008-Estt.(RR) dated 24.04.2009 on the recommendations of the Sixth Central Pay Commission. Relevant extract of the NFU scheme reads as under:

"Subject:- Non-Functional upgradation for Officers of Organised Group 'A' Services in PB-3 and PB-4.

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Consequent upon the acceptance of the recommendations of the Sixth Central Pay Commission, the following orders are issued:-

(i) Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay band 3 or Pay Band 4, the officers belong to batches of Organised Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non- functional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre.

(ii) Grant of higher scale would be governed by the terms and conditions given in Annex-I."

Relevant terms and conditions referred to in the aforesaid memorandum and enumerated in Annexure-I thereto are noticed hereunder:

"TERMS AND CONDITIONS FOR GRANT OF HIGHER PAY SCALE ON NON-FUNCTIONAL BASIS TO OFFICERS OF ORGANISED GR. 'A'

SERVICES

1. The non functional up-gradation granted under these orders will be based on empanelment and posting of particular batch of IAS officer in the Centre. Such up-gradation would not be linked to the vacancies in the grade.

2. The up-gradation granted under these orders will be a purely non-functional up-gradation, personal to the officer and it would not bestow any right to the officer to claim promotion or deputation benefits based on non-functional up-gradation in such a manner.

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3. All the prescribed eligibility criteria and promotional norms including 'benchmark' for up- gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders."

4. From the aforesaid office memorandum, it is evident that such benefit is not vacancy-based, though the eligibility criteria is the same as for promotion. The respondents have also issued instructions from time to time laying down the crucial date for determining the eligibility. The consolidated instructions dated 27.03.1997 deal with the functions and composition of DPCs etc. Part-III of the instructions under the caption, "Preparatory Action"

also prescribes the crucial date for determining the eligibility. The relevant extract is reproduced hereunder:

"Crucial date for determining eligibility

The eligibility dates for determining the eligibility of officers for promotion would be the first day of the crucial year, i.e., January, 1 irrespective of whether ACRs are written financial yearwise or calendar yearwise.

The crucial dates indicated above would be applicable to only such services and posts for which statutory Service Rules do not prescribe a crucial date."

5. The claim of the applicant is that he became entitled to NFU on completion of one year's service as Chief Engineer (Electrical) as on 01.01.2013. Since he had not completed one year's

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service as Chief Engineer (Electrical) on the said crucial date having joined the post of Chief Engineer (Electrical) on 29.03.2012, he was not considered eligible. The instructions further provide that if a person is not found eligible on the crucial date of 1^stJanuary of a particular year, then he is entitled to be considered on the 1^stJanuary of the next year. The applicant thus became eligible and was entitled to be granted NFU on 01.01.2014 when he had already completed one year's service as Chief Engineer (Electrical). On account of non-grant of NFU, the applicant made a representation. The same has been rejected vide the impugned order dated 20/27.03.2014, which reads as under:

"Subject:- Grant of Non Functional Upgradation for the grade of Additional Secretary (HAG) w.e.f. 02-07-2013 - regarding.

I am directed to refer to your representation dated 6-3-2014 forwarded by EE(E) HQ, BFLZ, CPWD, New Delhi vide his letter No.42(101)/CE(E)BFLZ/2014/121 dated 06-03-2014 on the above subject, you have not been found to be eligible for grant of NFU to the Additional Secretary (HAG) level w.e.f. 02-07-2013, as you are not completing requisite qualifying service of 1 year as Chief Engineer on the crucial date viz 01-01-

2013.

2. Therefore, in terms of DOPT clarification dated 09- 09-2010, if an officer does not meet the eligibility requirement as on 1^stJanuary of the corresponding vacancy year then such officer is to be considered for grant of NFU in subsequent year on completion of qualifying service w.e.f. 1^stApril of the next vacancy year.

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3. This case is treated as settled now."

6. From a perusal of the impugned order, it appears that the claim of the applicant has been rejected for grant of NFU on the ground that the crucial date for eligibility of the applicant was 01.01.2013, however, he did not complete one year as Chief Engineer (Electrical) on the aforesaid crucial date, and for the next year the date for consideration was 1^stApril of the next vacancy year. Thus, according to the respondents, the eligibility of the applicant for next consideration was 1^stApril of the next vacancy year. The applicant retired on 31.03.2014 i.e. before 01.04.2014.

7. The stand of the respondents is contrary to the Government instructions. In the reply filed by the respondents though they have tried to explain the delay for non-promotion of the applicant as Chief Engineer (Electrical) for a considerable period, however, there is absolutely no explanation as regards non- consideration for grant of NFU w.e.f. 01.01.2014 when the applicant was in service. Mr. Nischal, learned counsel appearing for the respondents, has referred to DOPT office memorandum No.22011/6/2013-Estt(D) dated 28.05.2014 whereby the crucial date has been shifted from 1^stJanuary to 1^stApril of the vacancy year. We have perused this office memorandum. In para 3, the change of the crucial date from 1^stJanuary to 1^stApril has been effected from

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01.04.2015 for the vacancy year 2015-16. Otherwise also, these instructions were issued on 28.05.2014 and are not applicable to the applicant who was entitled to be considered for financial upgradation as on 01.01.2014. He has also referred to a document wherein answers to frequently asked questions on NFU are referred. This document is not an authenticated document and has no sanctity in the eyes of law. Serial number 14 of this document referred to by Mr. Nischal reads as under:

14. What is the due If an officer is not found date of upgradation eligible during a vacancy if found unfit on the year and is found fit in the date assigned to a next vacancy year, NFU may batch? be granted from the 1^stApril, i.e. the 1^stday of next

vacancy year.

Based upon this question and answer thereto, Mr. Nischal has tried to impress upon the Tribunal that where an officer is not found eligible on 1^stJanuary of the vacancy year, then the next consideration would be on 1^stApril of the next vacancy year. As noticed by us, this document is an unauthenticated copy and it is not evident whether this document was prepared after the new instructions came into being or prior to that. In any case, opinion of some body, that too the opinion maker's designation and authority not being disclosed, such question-answers are not substitutes for notified and valid Government instructions. No reliance can be

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placed on this document. In view of the existing instructions, at the time of eligibility of the applicant, once he was not found eligible as on 01.01.2013, he was entitled to be considered for NFU on 01.01.2014 when he was in service, as he retired on 31.03.2014. The eligibility of the applicant is not in dispute as per the impugned rejection letter. His claim has been rejected by shifting the crucial date from 01.01.2014 to 01.04.2014 without any lawful basis.

8. In this view of the matter, this OA is allowed. The respondents are directed to grant Non Functional Upgradation to the applicant in the grade of Additional Secretary (HAG) in the scale of Rs.67,000-(annual increment @ 3%)-79,000 w.e.f. 01.01.2014. Let all the financial claims of the applicant including the retiral benefits be calculated and re-determined and paid to him within a period of three months from the date of receipt of copy of this order. No costs.

( K. N. Shrivastava ) ( Permod Kohli ) Member (A) Chairman

/as/