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ARUN CHHIBBER AND ANR. v. UNION OF INDIA AND ORS.

Delhi High Court

Dec 14, 2020

Judgment

Subsequent
References

CaseIQ

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Structured Summary of the Provided Opinion

Factual and Procedural Background

Two petitioners, both of whom had retired from the rank of Inspector General in the Central Reserve Police Force (CRPF) — petitioner No.1 (Arun Chhibber) on 30 June 2007 and petitioner No.2 (Suresh Chander Sharma) on 30 August 2008 — challenged administrative actions refusing them the benefit of Non-Functional Financial Upgradation (NFFU) at the Higher Administrative Grade (HAG) level.

The petitioners impugned: (a) the CRPF order dated 1 November 2019 which, while granting NFFU to certain officers, excluded their names; (b) a Ministry of Home Affairs Office Memorandum (OM) dated 30 September 2019 which stated that NFFU is to be allowed in HAG only if HAG is a level in the promotional hierarchy of the concerned Central Armed Police Force (CAPF); and (c) they sought directions (mandamus) to amend Recruitment/Service Rules to align with various Department of Personnel & Training (DoPT) OMs, or alternatively immediate grant of NFFU with effect from 31 March 2006 and consequential reliefs including arrears, interest and recomputation of pension.

The petition was entertained, notice issued, and counter-affidavits and rejoinders were filed. The matter was argued and the Court delivered the written reasons and directions summarized below.

Legal Issues Presented

Whether the exclusion of the petitioners' names from the CRPF list granting NFFU in HAG (order dated 1 November 2019) was lawful.
Whether the OM dated 30 September 2019 (MHA) lawfully required that NFFU in HAG be allowed only if HAG is a level in the promotional hierarchy of the CAPF, thereby excluding the petitioners.
Whether the petitioners, being of the 1971 batch and having satisfied the residency/length-of-service criteria, are entitled to NFFU in HAG with effect from 31 March 2006.
Whether the respondents should be directed to grant NFFU and to recompute pension and other consequential benefits, including payment of arrears and interest.

Arguments of the Parties

Petitioners' Arguments

Both petitioners were directly recruited Assistant Commandants (joined December 1971) and were promoted to Inspector General in 2004; they retired on 30 June 2007 and 30 August 2008 respectively.
Following the 6th Central Pay Commission, NFFU benefits were made available to organized Group A services (OGAS); petitioners contended CAPFs are OGAS.
Reliance was placed on G.J. Singh v. Union of India (2015 SCC OnLine Del 11803 (DB)) which held CAPFs are OGAS, and on the Supreme Court's dismissal of appeals against that decision in Union of India v. Harananda ((2019) 14 SCC 126).
The Government issued an OM dated 12 July 2019 implementing those judgments by granting NFFU to CAPFs with effect from 1 January 2006; CRPF's impugned order of 1 November 2019 implemented this but excluded the petitioners.
The MHA OM dated 30 September 2019 imposed eligibility criteria, including a condition that “NFFU is to be allowed in HAG level, provided it is a level in the promotional hierarchy of the CAPF concerned.” Petitioners argued this was inconsistent with earlier OM dated 25 September 2009 which allowed NFFU to the HAG grade where such a grade existed in the service (i.e., availability of the grade, not promotional-hierarchy requirement).
The petitioners asserted that the promotional level corresponding to HAG — Additional Director General (ADG) — existed in CRPF since 25 May 1987 (creation of ADG post in pay scale Rs.7300-100-7600 which corresponds to S-30), and that the word “service” in OM 25 September 2009 includes posts filled by deputation as well as cadre (citing DoPT Monograph of 9 December 2010), hence petitioners satisfied the requirement.
Petitioners maintained they fulfilled residency period and total length of service criteria required for NFFU and therefore were entitled to NFFU w.e.f. 31 March 2006.

Respondents' Arguments

Respondents pointed out that the CRPF Recruitment Rules were amended in October 2008 and only from that date did a post of ADG become available to cadre officers; prior to October 2008 the ADG post in CRPF was intended to be filled on deputation and not by cadre officers.
On that basis, respondents contended petitioners could not be granted NFFU, because at the relevant time (prior to October 2008) the promotional eligibility for cadre officers to reach ADG (HAG level) did not exist.
Respondents highlighted OM dated 24 April 2009 (issued after acceptance of 6th Pay Commission recommendations) and its annexure which required that prescribed eligibility criteria and promotional norms, including benchmark for upgradation to a particular grade pay, must be met at the time of screening. They argued that because there was no eligibility for cadre promotion to ADG before October 2008, petitioners could not be said to have met such norms then.
However, respondents' counsel did not dispute that the term “service” in OM dated 25 September 2009 would include cadre officers even if the post was earlier filled by deputationists, and conceded that those who met the residency and total service criteria post-October 2008 had been given the benefit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
G.J. Singh v. Union of India (2015 SCC OnLine Del 11803 (DB))	Cited for the proposition that Central Armed Police Forces (CAPFs) are organized Group A services (OGAS) and thereby fall within the ambit of NFFU schemes following the 6th Pay Commission.	The opinion records this case as relied upon by petitioners to establish that CAPFs are OGAS and to support the grant of NFFU to CAPFs; the judgment formed part of the factual and legal background relied upon by petitioners. The Court's formal disposition references implementation steps and related OMs in that context.
Union of India v. Harananda ((2019) 14 SCC 126)	Cited to show that appeals against the decision in G.J. Singh were dismissed by the Supreme Court.	The opinion records that this Supreme Court decision resulted in government implementation (as per subsequent OM(s)) of the principle that CAPFs are entitled to NFFU; the case is noted as part of the sequence of events relied upon by petitioners in asserting entitlement.

Court's Reasoning and Analysis

The Court proceeded by examining the factual matrix, the administrative memoranda, and the parties' contentions without setting out full pleadings. The reasoning and analytical steps in the opinion are as follows:

The Court recorded the petitioners' submission that post-6th Pay Commission NFFU was made available to OGAS and that G.J. Singh and the subsequent Supreme Court decision in Union of India v. Harananda confirmed CAPFs are OGAS; the Government issued OMs implementing those outcomes and CRPF issued an order dated 1 November 2019 granting NFFU to certain officers but excluding the petitioners.
Petitioners challenged the exclusion relying on earlier DoPT OMs (including OMs dated 25 September 2009, 15 December 2009 and others) and argued that the MHA OM dated 30 September 2019 unlawfully changed the criterion — substituting a requirement that HAG be in the promotional hierarchy of the CAPF rather than that the HAG grade exist in the service.
The respondents answered that prior to October 2008 the ADG post (corresponding to HAG) in CRPF was to be filled on deputation only and only after the Recruitment Rules amendment in October 2008 did a post become available to cadre officers; on that basis they refused to extend NFFU to retired petitioners who had superannuated prior to October 2008.
The respondents relied on OM dated 24 April 2009 and its annexure which required that prescribed eligibility criteria and promotional norms be met at the time of screening for grant of the higher scale; they argued that because there was no cadre eligibility to be promoted to ADG before October 2008, petitioners could not have met those norms at the relevant time.
The Court noted, however, that the respondents did not contend that the petitioners failed to meet the eligibility criteria set out in the Recruitment Rules as amended in October 2008 or the criteria in OM dated 15 December 2009 (three years' regular service in SAG or 25 years' regular Group A service with at least one year in SAG). In other words, respondents did not assert that petitioners failed the material eligibility thresholds.
Given that lack of contest on core eligibility, and in view of policy OMs including OM dated 21 May 2009 (which treated earlier batches of organized Group A services as to be considered for NFFU from 31 March 2006), the Court concluded that the petitioners (being of the 1971 batch) satisfied the eligibility prerequisites and were therefore entitled to NFFU in the HAG grade with effect from 31 March 2006.
On the basis of the foregoing, the Court directed respondents to grant NFFU in HAG to the petitioners effective 31 March 2006, to recompute pension and other benefits consequentially, and to pay arrears within twelve weeks, failing which interest at 8% p.a. would be payable.

The Court's approach focused on whether the petitioners met the eligibility criteria contained in the relevant Recruitment Rules and DoPT OMs and on the fact that respondents did not dispute that the petitioners satisfied those eligibility norms. The Court therefore granted the substantive relief sought (grant of NFFU with retrospective effect) on that factual and legal footing.

Holding and Implications

Core Holding: The petition is allowed to the extent that the petitioners are entitled to NFFU in the HAG scale with effect from 31 March 2006, and the respondents are directed to grant this benefit and recompute pension and related dues.

Direct Consequences Ordered

Respondents to grant NFFU to the petitioners in the HAG scale, effective from 31 March 2006, within twelve weeks.
Respondents to recompute the petitioners' pension and other consequential benefits in light of the grant of NFFU and to pay arrears of salary, pension and other benefits found due on recomputation within the same twelve-week period.
If arrears are not paid within twelve weeks, interest at 8% per annum is to be applied to the unpaid amounts.
The petition is disposed of following these directions.

Broader Implications

The opinion addresses the petitioners' entitlement under existing OMs and Recruitment Rules based on their batch and demonstrated satisfaction of eligibility criteria. The judgment directs administrative action to grant retrospective NFFU and consequent benefits to the petitioners. The opinion does not state that it is setting a new legal precedent beyond resolving the parties' claims on the specific facts and documents before the Court.

Judges: Rajiv Sahai Endlaw (J.), Asha Menon (J.). Decision dated: December 14, 2020.

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HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON [VIA VIDEO CONFERENCING] JUSTICE RAJIV SAHAI ENDLAW

1. The two petitioners, having retired from the rank of Inspector General in the respondents No. 2 and 3 Central Reserve Police Force (CRPF) on 30th June, 2007 and 30th August, 2008 respectively, have filed this petition, (i) impugning the order dated 1st November, 2019 of the respondents CRPF, to the extent excluding the names of the petitioners from the list of those granted the benefit of the Non-functional Financial Upgradation (NFFU) for the Higher Administrative Grade (HAG) level; (ii) impugning the order/Office Memorandum (OM) dated 30th September, 2019, to the extent it states that NFFU is to be allowed in W.P. (C) 13599/2019 Page 2 of 7 HAG, provided it is a level in the promotional hierarchy of the Central Armed Police Force (CAPF) concerned; (iii) seeking mandamus, directing the respondents to amend the Recruitment Rules/Service Rules for Group A officers of CRPF and to make it in line with the Department of Personnel and Training (DoPT) OMs dated 24th April, 2009, 15th December, 2009, 18th January, 2011 and 8th July, 2011; (iv) in the alternative, pending the amendment of the Recruitment Rules, consider the petitioners for grant of benefit of NFFU w.e.f. 31st March, 2006 in HAG, by following the eligibility criteria provided in OM dated 15th December, 2009 and as has been done with respect to personnel in the Ministry of Mines, vide letter dated 2nd December, 2010; and, (v) seeking mandamus, directing the respondents to grant the benefit of NFFU to the petitioners w.e.f. 31st March, 2006, along with arrears, interest and all consequential benefits.

2. The petition was entertained and notice thereof issued. Counter affidavits and rejoinders have been filed.

3. In view of the manner in which the counsels have argued, need is not felt, to detail herein the pleadings of the parties.

4. The counsel for the petitioners has argued, that (i) both the petitioners joined the respondents CRPF, in the month of December of the year 1971, as directly recruited Assistant Commandants and were promoted to the rank of Inspector General, in the year 2004; (ii) the petitioner No.1 Arun Chhibber superannuated on 30th June, 2007 and the petitioner No.2 Suresh Chander Sharma superannuated on 30th August, 2008; (iii) with effect from the publication of the report of the 6th Central Pay Commission, the benefit of NFFU was made available to all the W.P. (C) 13599/2019 Page 3 of 7 organized group A services (OGAS); (iv) however, the respondents did not treat the CAPFs, including CRPF, as OGAS; (v) vide G.J.Singh Vs. Union of India 2015 SCC OnLine Del 11803 (DB), it was held that the CAPFs are also OGAS; (vi) vide judgment in Union of India Vs. Harananda (2019) 14 SCC 126, the appeals preferred to the Supreme Court against the judgment in G.J.Singh supra, were dismissed; (vii) that the Government of India, Ministry of Personnel, vide OM dated 12th July, 2019, implemented the judgments aforesaid, by grant of NFFU to the CAPFs, with effect from 1st January, 2006; (viii) in pursuance thereto, the respondents CRPF, vide impugned order dated 1st November, 2019 granted the benefit of NFFU in HAG pay scale to the officers mentioned therein but in which, the names of the petitioners were not included; (ix) the names of the petitioners were excluded from order dated 1st November 2019 on the basis of impugned OM dated 30th September, 2019 of Ministry of Home Affairs (MHA), which, while granting the benefit of NFFU to group A executive cadre officers of CAPFs in pursuance to the OM dated 4th July, 2019 (the counsel for the petitioners states that the OM dated 30th September 2019 was also in pursuance to the OM dated 12th July, 2019), granted the benefit to the officers who satisfied the criteria mentioned therein; (x) in the criteria so laid down in impugned OM dated 30th September, 2019, it was inter-alia stated that one year relaxation in the residency period prescribed under the Recruitment Rules, to the group A executive cadre is agreed to, subject to the following conditions:- and one of the conditions mentioned therein was as per guidelines, NFFU is to be allowed in HAG level, provided it is a level in the promotional hierarchy of the CAPF W.P. (C) 13599/2019 Page 4 of 7 concerned; (xi) the aforesaid criteria was/is contrary to the criteria as contained in the OM dated 25th September, 2009 which provided that the new HAG scheme of Rs. 67,000-79000/- has been introduced in replacement of the pre-revised S-30 scheme. It is clarified that consequent upon the carving out of the new HAG scale, non-functional upgradation under the scheme will be available to particular grade pays in PB-3 and PB-4 and also to the HAG scale. The SAG officers can be allowed non-functional upgradation to the HAG grade only where there is such a grade in the service; (xii) that though the OM dated 25th September, 2009 permitted grant of NFFU to the Senior Administrative Grade (SAG) officers, of the HAG grade, only where HAG grade was available in the service but in the OM dated 30th September, 2019, the condition of availability of HAG grade in the service was changed to the promotional hierarchy to the HAG level being available in the service;

(xiii) that the criteria laid down in OM dated 25th September, 2009 could not have been so changed in the OM dated 30th September, 2019 and the said change is illegal; (xiv) that the petitioners have been denied the NFFU to HAG scale, reasoning that there was no HAG level in the promotional hierarchy of CRPF; (xv) however, the said promotional level of HAG i.e. of Additional Director General (ADG), was available since 25th May, 1987, when the MHA conveyed the sanction to Director General of CRPF, of creation of one post of ADG in the scale of pay of Rs.7300-100-7600/- with effect from the dates the said posts were filled up and on the condition that two posts of Deputy Superintendent of Police in CRPF would be kept in abeyance till the post of ADG continues; (xvi) that the scale of pay of Rs. 7300-100-7600/- corresponds to the S-30 pay W.P. (C) 13599/2019 Page 5 of 7 scale and thus there was a level of promotion to the S-30 grade pay available in CRPF, since 1987; (xvii) that though the said post of ADG created in 1987, till the framing of the Recruitment Rules in October, 2008, was meant to be filled by deputation only and was not available to the cadre officers, but since the word used in the OM dated 25th September, 2009 is service, the same would include from whichever source i.e. from the cadre or by deputation; and, (xviii) reference in this regard is made to Section 3 clause 2 of the DoPT Monograph of 9th December, 2010 on Cadre Review of Group A Central Services. It is argued, that the petitioners fulfilled the criteria of residency period and total length of service, for being entitled to the benefit of NFFU.

5. The counsel for the respondents has contended that since the Recruitment Rules of the CRPF were amended in October, 2008 only i.e. after both the petitioners had superannuated and it is only w.e.f. October, 2008 that one post of Additional Director General in CRPF has become available to cadre officers, the respondents CRPF has been giving the benefit to all those fulfilling the criteria of residency period and total length of service thereafter, but since before October, 2008, there was no post of ADG for those from the cadre and it was only to be filled on deputation, the petitioners have not been granted the said benefit. The counsel for the respondents has however been unable to controvert that the use of the word service in OM dated 25th September, 2009 would include the cadre officers as the petitioners also, irrespective of the post being available before 2008 only to deputationists. On enquiry, the counsel for the respondents also affirms that even though under the Recruitment Rules w.e.f. October, 2008, only one post of ADG is W.P. (C) 13599/2019 Page 6 of 7 available for cadre officers but all those fulfilling the criteria of residency period and total length of service have been given the benefit.

6. The counsel for the respondents has however also drawn attention to the OM dated 24th April, 2009 issued consequent upon the acceptance of the recommendations of the 6th Pay Commission qua grant of NFFU, inter-alia providing that the grant of higher scale would be governed by the terms and conditions given in annexure thereto and to the clause in the annexure thereto, inter-alia providing that 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.. It is contended that since till October, 2008, there was no eligibility criteria for promotion of the cadre officers to the rank of Additional Director General, the petitioners cannot be said to have met the eligibility criteria and norms for promotion to the HAG level of Additional Director General.

7. However, it is not the argument of the respondents that the petitioners did not meet any of the eligibility criteria laid down in the Recruitment Rules amended in October, 2008 or that the eligibility criteria for deputationists to be appointed as Additional Director General in CRPF were not met by the petitioners. Once it is so and the petitioners are found to meet the eligibility criteria of three years regular service in the SAG or 25 years regular service in group A post and of which at least one year regular service should be in SAG, as found in OM dated 15th December, 2009 for promotion to HAG level, and both of which criteria, it is not the case of the respondents that the petitioners did not W.P. (C) 13599/2019 Page 7 of 7 satisfy, we are of the view that the petitioners are entitled to the benefit of NFFU w.e.f. 31st March, 2006 in accordance with OM dated 21st May, 2009 inter-alia providing that since the 1975 batch of IAS officers had been posted/empaneled as Additional Secretary w.e.f. 31st March, 2006 and thus batch of 1973 and earlier of organized Group A service are to be considered for NFFU; it is contended that thus the petitioners who are of 1971 batch, would be entitled to the NFFU benefit from 31st March, 2006 in the HAG grade.

8. The petition is thus allowed to the aforesaid extent. The respondents are directed to, within twelve weeks, grant NFFU to the petitioners in the HAG scale, with effect from 31st March, 2006 and to also re-compute the pension and other benefits payable to the petitioners as a consequence thereof and to, within the said time, also pay the arrears of salary, pension and other benefits, so found due on recomputation.

9. If the arrears are not paid within 12 weeks as aforesaid, the same shall also incur interest @ 8% p.a.

10. The petition is disposed of. RAJIV SAHAI ENDLAW (JUDGE) ASHA MENON (JUDGE) DECEMBER 14, 2020