W.P.(C)/5214/2011 of DHARAM PAL AND ORS Vs DELHI HIGH COURT

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 17.12.2013Pronounced on : 11.07.2014

+W.P.(C) 5214/2011, C.M. APPL. 10579/2011 & 6798/2012

DHARAM PAL AND ORS.…..PetitionerThrough: Ms. Jyoti Dutt Sharma, Sh. PiyushSachdeva and Sh. Rahul Sharma, Advocates.VersusDELHI HIGH COURT……..RespondentThrough: Sh. Chetan Lokur, for Sh. Viraj. R.Datar, Advocate, for DHC.Sh.BaldevMalikwithSh.ArjunMalik,Advocates, for Resp. No.2.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT

1.The petitioners, working as peons and Ushers in the Delhi HighCourt, seek directions to quash the Office Orders dated 16.4.2004 and14.5.2004 issued by the first respondent, the Delhi High Court(“DHC”) and the Report dated 18.7.2009 of the Committee constitutedby the Hon’ble Chief Justice, DHC on 1.7.2009 to consider their

grievances. They claim writ of mandamus directing the DHC to fixtheir pay at the pay scale which existed at the time of implementationof the recommendations of the 5[th]Pay Commission (“5[th]PC”) i.e. `3200-4900/-, and, further writ of mandamus directing the DHC togrant the benefit of the Assured Career Progression Scheme (“ACP”)in the hierarchy as it existed when the 5[th]PC recommendations cameinto effect. The second respondent is the Union of India, through theSecretary, Ministry of Law and Justice, responsible for grantingsanction to revised pay scales as proposed by the first respondent, theDHC.

2.The Petitioners were appointed as Ushers, Court Attendants,Gestetner Operator Grade II, Security Attendant, Lawn Attendant,Library Attendant, Sweeper and Farash in the establishment of theDHC.W.P.(C) 3464/1990 was filed before this Court, in 1990 by anUsher in representative capacity for grant of higher pay scale. Byjudgment dated, 4.11.1991, that petition was allowed and the 4[th]PayCommissionpayscalerecommendationsweredirectedtobeimplemented for Class IV employees. Thus, all Class IV employees ofthis Court were placed in the pay scale of ` 975-1660/-. Subsequently,an application, C.M. 3715/1993 was filed by some Ushers, Daftriesand Book Binders, seeking modification of the judgment in W.P.(C)3464/1990, on the ground that parity of pay ought to be ensuredbetween the employees of the High Court and the Supreme Court. TheCourt allowed the application and directed by order dated 10.12.1993,that the following pay scales be implemented for those posts:

3.The 5[th]PC recommendations were made effective on 1.1.1996by which all Group employees(Court Attendants, Ushers,Sweepers, Daftries, Book Binders, law attendants, library attendantsetc.) were put on the pay scale of ` 3200-4900/-. This apparent mergerof pay scale for all Group employees into single scale was,however, not challenged by the Petitioners.

4.It was in this background that previous writ petition, W.P.(C)No. 740/2003 was filed by some Class III and Class IV employeesclaiming implementation of the “Assured Career Progression” (ACP)Scheme, introduced on 9.8.1999 by memorandum of the Departmentof Personnel and Training by DoPTM No. 35034/1/97-Estt. (D). TheCourt held in its judgment of 4.11.2003 that despite repeated requeststo the Central Government to sanction, what was termed “normalreplacement of pay scales” in terms of the 5[th]PC’s recommendations,the Central Government had not responded. Thus, pending approval ofthe revised pay scales of the staff of the High Court, the ACP was tobe implemented on the basis of the “proposed revised pay scales”.

5.The DHC issued the impugned office orders i.e. Office Orderno. 144/Estt/E.IV/DHC and Office Order Endst. No. 222/C-4 CashDHC on 16.4.2004 and 14.5.2004 respectively, granting the benefit ofthe 1[st]and 2[nd]financial upgradations under the ACP to the Petitioners

in the pay scales of (i) ` 3500-5120/- and (ii) ` 4500-7000/- instead ofin (i) ` 4500-7000/- and (ii) ` 5500-9000/-. The petitioners argue thatthis new scale of ` 3500-5120/-, claimed to be corresponding to `1000-1750/- (which was granted pursuant to recommendations of thecommittee constituted in the judgment in W.P.(C) 3464/1990) wasnon-existent as it finds no mention in the records of the DHC’shierarchy of pay scales.

6.Aggrieved by the two office orders, the Petitioners subsequentlyfiled CM no. 11920/2004 in the disposed off W.P.(C) 740/2003 askingfor clarification of the judgment dated 4.11.2003 but then withdrewthe same. writ petition W.P. (C) no. 3929/2008 was instead filedbefore the Delhi High Court praying first, that the impugned orders bequashed as the benefit of the ACP was granted to the Petitioners in anon-existent pay scale, second, that directions be given to the DHC togrant the benefit of the 1[st]and 2[nd]financial upgradations in to the nextexisting pay scales in the hierarchy i.e. (i) ` 4500-7000/- and (ii) `5500-9000/-, and third, that arrears from the due dates be granted with9% interest. The Court by its order of 21.5.2008 directed thePetitioners to approach the administrative side of this Court with arepresentation, on the disposal of which they were permitted to movethe Court if they were aggrieved by such decision. The Court in anapplication,CMNo.3147/2009(filedbythePetitionersforclarification of the order dated 21.5.2008) also ordered that theirrepresentation should be disposed of within four weeks.

7.Pursuant to the above orders, the Chief Justice of this Courtformed Committee to consider the Petitioners’ grievances. The

Committee gave its report on 18.7.2009 and concluded that the post ofUsher was promotional post, using the following reasoning:

“It was the stand of the Ushers in the Writ Petition No.3464/1990 that they were promoted from Group asUshers. The said stand was accepted by the DivisionBench of this Court in the judgment dated 10thDecember, 1993 wherein it was observed under:

“In reply to this application the Deputy Registrar inhis affidavit on behalf of the High Court hasadmitted and stated that the posts of Usher andDaftri are promotional posts and only Peon, Frashand chowkidar are considered for promotion to thesaid posts of Ushers and Daftri. It is clear,therefore, that all of these categories cannot beplaced in the same scale and it is for this reason thattheSupremeCourtdirectedtheUsherandSafaiwala to be placed in the higher scale ofRs.1000-1750.IntheaforesaiddecisiontheSupreme Court in terms came to the conclusion thatthe pay-scale of Peon, Farash and Safaiwala ofRs.975-1660 has been fixed as it regarded the saidposts as corresponding to the posts of Peon, Farashand Sweeper in the Delhi High Court. As the postsof Peon, Farash and Sweeper of the Delhi HighCourt have been equated by the Supreme Court withtheir own employees in the categories of Peon,Farash and safaiwala, it must logically follow thatthe posts of Usher and Daftri in this Court which isalso promotional posts, should be regarded as equalto that of Farash and Safaiwalaa in the SupremeCourt and should have the same scales. As theBook-Binder is also in the same category as Usher,Daftri and Jamadar, the pre-revised scale of thesebeing the same it must follow that all of thesecategories, namely, Daftri, Usher, Jamadar andBook-Binder would be entitled to the pay-scale ofRs.1000-1750.Weaccordinglyallowthisapplication and modify the judgment dated 4thNovember, 1991 in so far as the employees falling inthe category of Daftri, Book-Binder, Usher andJamadar are concerned and we direct that their payscales should be fixed in the scale of Rs.1000-1750.The pay should be fixed within two months fromtoday and the other directions contained in thejudgment dated 4th November, 1991 shall ipso factoapply.”

On the strength of the above reasoning, the Committee recommendedthat scale of ` 3500-5120/- ought to be treated as corresponding tothe old pay scale of ` 1000-1750/-.

Petitioners contentions

8.The Petitioners submit that the Committee failed to appreciatethat the introduction of pay scale which is non-existent and notsanctioned scale in the 5[th]PC report, by the DHC unilaterally at thetime of the coming into force of the ACP scheme is illegal andprejudicial to their rights. They also argue that the scale of ` 3500-5120/- did not exist even in the pay scales of the Supreme Court andthat the Chief Justice of India had used his discretion in fixing the saidpay scale of Ushers of the Supreme Court, and thus, such Ushers couldnot be equated with the Ushers of the High Court

9.It is argued that salaries of Ushers were not being paid in thescale of ` 3500-5120/- since 1.1.1996, contrary to the Committee’sreport, but were in fact being paid in the pay scale of ` 3200-4900/- toall Group employees including Ushers, Daftaries and Book Binders,per the 5[th]PC recommendations. Only after this Court’s order dated

4.11.2003 was the scale of ` 3500-5120/- introduced. It is submittedthat the post of Usher could not possibly have been treated as apromotional post since first, the Committee had noted in the samereport that the Ushers/Daftries and Book Binders were given the payscale of `1000-1750/- because the nature of their duties was moreonerous than that of similar employees like peons etc., in CM 3715/93of WP 3464/1990; second, there are no rules to justify treating the postof Usher as promotional post from the post of Peon, as can be seenfrom the service list of Ushers, Court Attendants, Room Attendants,Safaiwalas, Security Attendants, Lawn Attendants, Library Attendantsand Photocopy Machine Operators; third, since 2004, no Peon orCourt Attendant whose educational qualification is below 8[th]standardhas been made an Usher even though juniors of such employeesoccupy the said post, thus clearly showing that the post of Usher wasnot promotional post to Peon or Court Attendant. If it were apromotional post, then the fact that juniors occupied the post of Usherindicates that the act of promotion is not only arbitrary, unjust,discriminatory but also illegal, malafide and against Art. 14 of theConstitution of India.

10.Ms. Jyoti Dutt Sharma, learned counsel for the Petitionerssubmitted that:

(i)a comparison of the pay scales for different posts in the HighCourt and those corresponding pay scales in the Supreme Court showsthat all the posts have higher salaries in the High Court in comparisonto those in the Supreme Court, with the exception of Ushers of theHigh Court whose pay was put at parity with those of the Supreme

Court. She placed strong reliance on the decision reported as Grade I,DASS Officers Association v. Secretary, GOI, 148(2008) DLT 342 andsubmitted that in view of the clarifications made in respect of the ACPscheme, especially clarification No. 1 and 2, pay scales or gradesoutside of the prevailing hierarchy of posts within an organization ordepartment should be disregarded for the purpose of conferring thebenefit of ACPs. It was submitted, therefore, that the decision to givethe first upgradation at ` 3500-5120/- and the next upgradation at `4500-7000/- is arbitrary and untenable;

(ii)The upgradation claimed could not be denied simply because itmay result in paying the High Court employees 50% higher salariesthan those payable to the Government of India employees, as the ACPclearly mandates that upgradation must take place in the next higherpay scales. In any event, the pay scales of the Central Governmentwere not applicable to the Petitioners and, therefore, there was no needfor comparison.(iii)On learning that the DHC Establishment hadrequested for introduction of the pay scale of ` 3500-5120/- to replacethe pre-revised scale of ` 1000-1750/- (based on the correspondingscales in the Supreme Court) in December 1998 itself, much beforethe ACP scheme and the order of 4.11.2003 came into being, thePetitioners had applied under the RTI to obtain access to thedocuments. They submit that requests were made eight times before22.12.2008 (4.3.1999, 26.10.1999, 4.4.2000, 3.11.2003, 28.2.2004,18.5.2004, 11.1.2005, 28.3.2005) to the Central Government, toreplace the pay scale as described above, all of which were rejected.The final request was sent on 25.8.2005 after joint meeting was

convened between the Registrar General of the Court and the officersfrom the Union Ministry of Law and Justice, Union Ministry ofFinance and the Department of Law, Justice and Legislative Affairs,Govt. of NCT of Delhi in which the need to replace scales wasimpressed upon the Government. Consequently, the Government on13.10.2005reverseditsstanceandaccordedsanctiontothereplacement of the pay scales with retrospective effect, thus creating anon-existent and non-functional pay scale without regard to the FifthPay Commission’s recommendations. This replacement of pay scaleshas not even been notified in the gazette.

(iv)Other departments sought clarifications from the government onhow the ACP is to be implemented when two posts in different payscales, one from the feeder grade and one from the promotion grade,are merged. The Government has stated that the ACP must facilitatefinancial upgradation to the subsequent pay-scale, in the hierarchy asit exists after the merger. Any person who was promoted from thefeeder post to the promotion post before the merger of pay scale, muststill be allowed benefits under the ACP without regard to his/herpromotion, failing which he/she would face disadvantage comparedto any new entrant starting in the merged grade.

11.In view of these arguments, the Petitioners submit that theordersgranting the ACP in non-existent pay scale and theCommittee Report dated 18.7.2009 which concluded that the post ofUsher was promotional post from Peon etc., thus meriting pay-scale of ` 3500-5120/- should be set aside or quashed. Counsel alsosubmits that direction to the DHC establishment to grant the first

upgradation to Peons, Ushers and all Group employees in the scaleof Junior Judicial Assistant (JJA)/Restorer, should be given.

Stand of DHC Establishment

12.The DHC in its counter affidavit stated that:

(i)the posts of Ushers, Court Attendants, Gestetner Operators –Grade II, Security Attendant, Lawn Attendant, Library Attendant,Sweeper and Farash (all termed “Group D” posts) are not in the samepay scale of ` 3200-4900/- as claimed by the Petitioners. Instead, theposts of Usher and Library Attendant are in the pay scale of ` 3500-5120/- (pre-revised) and the posts of Court Attendants, GestetnerOperator, Security Attendants, Lawn Attendants, Sweepers and Farashare Group posts and are in the pay scale of ` 3200-4900/- (pre-revised), as indicated in the Delhi High Court Establishment Rules.The claim of the Petitioners that the pay scale of ` 3500-5120/- is non-existent cannot be countenanced as this is the corresponding scale to `1000-1750/- which was granted at the request of some Ushers andBook Binders in the application CM No. 3715/93 (in W.P.(C)3464/1990) before this Court.

(ii).While disposing of CM No.3715/1993 in the order dated10.12.1993, this Court had observed that since the posts of Peon,Farash and Sweeper Court had been equated to the similar posts in theSupreme Court, parity ought to likewise be ensured for the posts ofUshers, Daftries, Book Binders etc. in the High Court. Thus theseposts were entitled to the pay-scale of ` 1000-1750/- while other ClassIV employees like Peons, Farash and Sweeper were to remain on the

pay scale of ` 975-1660/- (fixed pursuant to the judgment in W.P.(C)No. 3463/1990 dated 4.11.1991 in accordance with the 4[th]PayCommission Report).On the recommendation of Committeeconstituted by the Chief Justice of the DHC, these pay scales wereapproved and fixed by the Chief Justice of the Delhi High Court.(iii).There was no scale corresponding to ` 1000-1750/- in the fifthPC’s report, thus creating an anomaly. In order to remove this and toensure parity with the corresponding posts in the Supreme Court(which principle was directed to be complied with by the Delhi HighCourt in disposing of CM no. 3715/1993 in W.P.(C) 3464/1990), arequest to sanction the pay scale corresponding to the Supreme Courtscale of ` 3500-5120/-was made, to replace the pre-revised scale of `1000-1750/- by letter dated 22.12.1998 to the Central Government,through the Secretary, Ministry of Law and Justice.(iv).This letter clarified that the question of ` 3500-5120/- being thereplacement scale of ` 1000-1750/- arose well before the ACP wassought to be implemented, as well as before the Order dated 4.11.2003in W.P.(C) No. 740/2003. The Union Government granted sanction tothis revision of pay scales w.e.f. 01.01.1996 by its response letterdated 13.10.2005. Since some Ushers themselves sought parity withtheir counterparts in the Supreme Court in terms of pay scales, it isnow not open to the Petitioners to challenge as void this hierarchy ofpay scales, especially after having enjoyed the benefit of said payscale w.e.f. 01.01.1996. Further, the DHC Establishment states that theemployees of the same category (Group D) with the Government ofIndia are entitled to financial upgradations in the pay scales of ` 2610-

3540/- and ` 2650-4000/- as per the terms of the Fifth PC report.Should the Petitioners be granted the relief sought (financialupgradations in the pay scales of ` 4500-7000/- and ` 5500-9000/- inthe first and second ACP), it would lead to disparity between theemployees of the Delhi High Court and the Government of India; andlastly,

(v)that the same claim was made as representation before theAdministrative side of the High Court, which was rejected by aCommittee comprising two judges of the High Court, with reasons;this rejection was approved by the Chief Justice of the High Court on17.7.2009.

Analysis/Conclusions

13.Inthiscontext,theissuethatarisesforthisCourt’sdetermination is the proper manner of implementation of the ACP forthe posts of Ushers, Court Attendants, Lawn Attendants, Safaiwalas,Room Attendants, Security Attendants. This issue chisels down todiscerning the existing hierarchy of pay scales within the DHCestablishment.

14.Before proceeding to answer these questions, it would beappropriate to understand the hierarchy of posts and pay scales in theDelhi High Court Establishment (Appointment and Conditions ofService) Rules, 1972 (“Establishment Rules”), which were brought inby notification dated 15.9.1972. Schedule I of these Rules contains thehierarchy of posts in the DHC Establishment. The hierarchy of postsand the corresponding pay scales, in relevant part is:

GROUP ‘C’4[th]PC5[th]PC6[th]PC21.JuniorJudicialAssistant22.Restorer23.Chauffeur23.A. Despatch Van5200-Driver1350-22004500-700020200(Rider)23.B.DespatchRider24.GestetnorOperatorGrade — IGROUP ‘D’4[th]PC5[th]PC6[th]PC24AGestetnor975-16603200-49005200-Operator20200Grade — II25.DeletedXxx26.Library??Attendant3000-5120 (byrecommendation27.Usher1000-of the CJ of1750Delhi to theUnion Govt.)28.Court975-Attendant166029.Room5200-Attendant975-3200-490030.Security166020200Attendant31.Safaiwala32.Lawn

Attendant

15.The mode of “Appointment to the posts in Class IV” was laidout in Rule 9, which, as it currently stands, was brought in by anamendment on 08.03.1994 and reads:

“Appointment to the posts in Class – IV mentioned inSchedule – I shall be made by the Registrar unless the ChiefJustice otherwise directs.

Appointment to Class – IV posts mentioned in Schedule – Imay be made by one or more of the following methods,namely:-

a. By promotion of person already employed in the Court;b. By transfer or deputation of person serving outside theCourt in connection with the affairs of State or the Unionor of the Govt. of N.C.T. of Delhi;

c. By direct recruitment”

Prior to 8.3.1994, i.e. between September, 1972 and March, 1994,Rule 9 read as follows:

“Appointment to the posts in Class IV mentioned inSchedule I shall be made by the Registrar unless the ChiefJustice otherwise directs.”

16.It is pertinent to note that when Rule 9 was amended, Schedule

II -which comprises the conditions of eligibility/qualifications toposts, did not stipulate qualifications for Class IV posts i.e. Safaiwala,LawnAttendant,RoomAttendant,CourtAttendant,SecurityAttendant, Usher, Library Attendant, thus leaving unclear the mode ofentry into the posts of Usher etc. This was also acknowledged in therecommendations of the Committee of Judges dated 25.9.2003 (madein response to the matters referred to them by the orders of the Chief

Justice dated 22.08.2003 and 27.08.2003), in which they noted asfollows:

“We have noticed that there are no Recruitment Rules forappointment to the posts of Usher and other Class IV posts.We are of the view that these posts should be manned bypersons having some minimum educational qualification. Inview of this and in order to have consistence in the matter ofappointment to these posts, we recommend that followingminimum qualifications may be prescribed for futureappointment to these posts:

17.For the first time, the qualifications for appointment to theseposts was stipulated in Schedule II, by order of the Chief Justice dated1.10.2003. The qualifications for appointment for posts between serialnumbers 26-32 (i.e. Library Attendant, Usher, Court Attendant, RoomAttendant, Security Attendant, Safaiwala and Lawn Attendants) wasstipulated in the following manner:

“1. Usher - Middle Pass (Matric/Higher Secondary to bepreferred) with 5 years’ service in any of the posts ofcategories of Court Attendant, Room Attendant, SecurityAttendant, Safaiwala and Lawn Attendant.

2. Class-IV posts of Court Attendant, Room Attendant,Security Attendant and Lawn Attendant - Middle Pass

3.LibraryAttendant(BookBinder)–Matric/HigherSecondary(Graduatetobepreferred)withknowledge/experience of Book Binding.”

18.Thus,after1.10.2003,thequalificationsnecessaryforappointment to the post of Usher were minimum of five years’service in in any of the posts of Court Attendant, Room Attendant,Security Attendant, Safaiwala, Lawn Attendant. Prior service of at

least five years in one of these named posts became pre-requisite forthe appointment, thus excluding direct recruitment to the post of Usheraltogether. In other words, since all Class IV posts are to be filled ineither by direct recruitment, transfer or promotion, the absence ofstipulated qualifications for direct recruit aspirants to the post of Usherindicates that the post is open to be filled only by promotion, after1.10.2003.

19.This leaves open the question of whether, prior to 1.10.2003,the post of Usher was promotional post from the posts of LibraryAttendant,Usher,CourtAttendant,RoomAttendant,SecurityAttendant, Safaiwala and Lawn Attendant. It would be apposite tonote the Court’s decision dated 10th December, 1993, in CM No.3715/1993, which was filed by some Ushers, praying for higher paythan other Class IV employees in those writ proceedings:“It is alleged that according to the Delhi High Courtofficers and Servants (Salaries, Leave, Allowances andPension) Rules, 1970, there are 8 Class-IV employeescategories in the establishment of High Court of Delhi. Wefind from the First Schedule to the said Rules, aspromulgatedin 1970, thatDaftri,BookBinder andUsher/Jamadar were in the pay-scale of Rs. 75-1-85-EB-2-95 whereas Peon, Frash, Chowkidar and Sweeper were inthe pay-scale of Rs. 70-1-80-EB-1-85.In other words, thescale of Daftri, Book Binder, Usher and Jamadar washigher than the scale of Peon, Frash, Chowkidar andSweeper even though all of them were in Class IV.”

[emphasis supplied]

20.Clearly then, the DHC Establishment Rules envisaged thatUshers were considered to be in higher pay-scale than other Class-IV posts. The Deputy Registrar on behalf of the High Court, even

“admitted and stated that the posts of Usher and Daftri arepromotional posts and only Peon, Frash and chowkidar areconsidered for promotion to the said posts of Ushers andDaftri”

in those proceedings. Even the claim before the Court in CM No.3715/1993 was advanced by some Ushers who were aggrieved by thejudgment in WP 3464/1990, because it did not recognize the hierarchybetween the post of Usher and other Class IV posts, as well as thehierarchy in pay scales between the two categories. In absence ofexpress recruitment rules/qualifications for the post of Usher andgiven that the original Establishment Rules, the petitioners’ plea, aswell as the admission on the part of the DHC in the 1993 writproceedings affirm the hierarchy of posts between the posts of Usherand other Class IV posts, the compelling inference would be that theexisting hierarchy in practice till 1.10.2003 was that of treating thepost of Usher as promotional post from other Class IV posts.

21.Having concluded this, it would be necessary to understand themanner of implementation of the ACP. The Conditions for the Grantof ACP benefit are extracted below, in relevant part:

“1. The ACP Scheme envisages merely placement in thehigherpay-scale/grantoffinancialbenefits(throughfinancial upgradation) only to the Government servantconcerned on personal basis and shall, therefore, neitheramount to functional/regular promotion nor would requirecreation of new posts for the purpose;

7. Financial upgradation under the Scheme shall be given tothe next higher grade in accordance with the existinghierarchy in cadre/category of postswithout creating newposts for the purpose.”

22.The meaning of the phrase “existing hierarchy” as regards thehierarchy of pay, was made clear in Grade I, DASS OfficersAssociation v. Secretary, GOI, 148(2008) DLT 342. The questionbefore the Court was whether, in cases when the feeder and promotionpost are both allowed the same emoluments, the ACP would operate toonly ensure progression into the next higher post in the hierarchy,without regard to the fact that the pay scale is the same. This Courtheld that promotion to the next pay scale was mandatory, byinterpreting the requirement to allow progression in the “existinghierarchy” in these terms:

“25. Keeping in mind the letter and spirit of the ACPscheme it is crystal clear that the same was introduced toprovide relief to those employees who have put in manyyears of service with no promotion and no increments. Theobject and intention of the legislature in providing ACPscheme is to provide same financial reprieve to suchemployeeswhoarestagnatingwithnopromotion.Evidently, the term financial upgradation in the schememeans financial improvement and as is apparent in thepresent case there cannot be any improvement financially ifthe petitioners are granted this upgradation in the samescale which is the entry grade of DANICS and is also thescale of Grade-I DASS. In other words, the grant of scale ofRs. 6500-10500/- i.e. entry scale of DANICS means thatthey are continuing to get the same pay scale though onpaper they are said to have been granted benefit ofupgradation under the ACP scheme.26. Therefore, we are of the considered view that theTribunal erred in holding that the expression 'financialupgradation in accordance with the existing hierarchywithout creating new posts...' is rider to grant of financialupgradation to be granted under the ACP scheme. In fact itis natural and logical consequence of the scheme, theobjective of which truly is to remove stagnation and givebenefit under the ACP scheme of financial upgradation inthe next higher grade, though in accordance with theexisting hierarchy, to those employees who have not earnedany regular promotion in the 12/24 years of their regularservice. The scheme is breather for those employees whoare stuck in the same scale for 12/24 years. The logical andfavorable interpretation of the expression is that thehierarchy in the cadre as is existing is to be followed and nonew posts are to be created for the purpose of granting thebenefit under the ACP scheme.”

23.The import of this judgment is that while in the hierarchy ofposts, as it exists in the cadre, is imperative in the implementing of theACP, financial improvement by providing the emolument in the nexthigher grade in the defined hierarchymust be ensured. The “existinghierarchy” relevant for ACP benefit then is hierarchy of payscales/grades.However, this hierarchy must be understood in tandemwith Clarification 2.Clarification 2 to the ACP scheme issued inO.M. No. F.No.35034/1/97-Estt(D)(Vol.IV) on 10.2.2000 reads asfollows:

Sl.Point of doubtClarification

restructuredgradesrecommendedbytheFifthCentral Pay Commission.”

24.This clarification states that if (a) post is not part of thedefined hierarchyand(b) that post is selection grade post grantedin lieu of higher pay-scale, then promotion to that selection grade mustnot be considered “promotion” for the purposes of the ACPandsecond, that selection grade must be “treated as withdrawn”. Thus,both requirements must be fulfilled. Clarification 2, therefore, insistson the discerning of “hierarchy”, when selection grade is introducedoutside the establishment’s defined hierarchyof pay-scales/grades.25.To understand this clarification, the meaning of “selectiongrade” must be understood. It was made clear in Lalit Mohan Deb v.Union of India, (1973) 3 SCC 862:

“It is well recognised that promotion post is higher postwith higher pay.A selection grade has higher pay but inthe same post. selection grade is intended to ensure thatcapable employees who may not get chance of promotionon account of limited outlets of promotions should at leastbe placed in the selection grade to prevent stagnation on themaximum of the scale. Selection grades are, therefore,created in the interest of greater efficiency.”

The import of the post of Usher being selection grade is thatthose employees who are promoted from the other Class IV posts (i.e.Safaiwala, Court Attendant, Room Attendant, Security Attendant and

Lawn Attendant) are promoted to higher scale but not higher post,in being conferred the post of Usher.

26.This Court is of the opinion that the post of Usher is in reality, a“selection grade” vis-à-vis the other Class IV posts like Safaiwala,CourtAttendant,LawnAttendant,RoomAttendant,SecurityAttendant. This is because the post of Usher only confers higher pay,but is not higher postthan the other Class IV employees. Even theoriginal establishment rules of the DHC do not recognise it to be ahigher post, but merely higher grade/pay-scale. The writ proceedingsin 1993 also recognised the hierarchy of the post of Usher only interms of the higher pay scale, vis-à-vis the other Class IV employees.40.While it is true that the Court and the parties in CM 3715/1993to the 1991 writ proceedings termed the post of Usher as a“promotional post”, the Courts had, simultaneously, begun to beconsider selection grade posts as “promotional posts”. This wasrecognised for instance in State of Rajasthan v. Fateh Chand Soni,(1996) 1 SCC 562, in which the Supreme Court, following Union ofIndia v. S.S. Ranade, 1995 (4) SCC 462 defined 'promotion' thus:“The High Court, in our opinion was not right in holdingthat promotion can only be to higher post in the serviceand appointment to higher scale of an officer holding thesame post does not constitute promotion. In the literal sensethe word "Promote" means "to advance to higher position,grade,orhonour".Soalso"Promotion"means"advancement of preferment in honour, dignity, rank orgrade".[See:Webster'sComprehensiveDictionary,International Edition, p. 1009]. "Promotion" thus not onlycovers advancement to higher position or rank but alsoimplies advancement to higher grade. In service law also

the expression "Promotion" has been understood in thewider sense and it has been held that "Promotion can beeither to higher pay scale or to higher post."

The Court went on to explain that their decision was consistent withthe decision in Lalit Mohan Deb (supra) in these terms:

“9.In Lalit Mohan Deb … This Court observed that"provision of Selection Grade in the same category ofposts is not new thing" and that "a Selection Grade isintended to ensure that capable employees who may not geta chance of promotion on account of limited outlets ofpromotions should at least be placed in the Selection Gradeto prevent stagnation on the maximum of the scale" and that"Selection Grades are, therefore, created in the interest ofgreater efficiency". The Court took note of the fact that thebasis for selection of some of the Assistants to the SelectionGrade scale was seniority-cum-merit which is one of thetwo or three principles of promotion widely accepted in theadministration and, therefore, the creation of SelectionGrade in the category of Assistants was not open tochallenge. In that case, the Court had proceeded on thebasis that the appointment to the higher grade amounted topromotion.”

27.In S.S. Ranade (supra), the Court held:

“6. … The use of the word 'promotion' in Rule 6 and theConstitution of Departmental Promotion Committee forselection of Commandant (Selection Grade) in Rule 7, donot necessarily lead to the conclusion that the promotionwhich is contemplated there is necessarily promotion to ahigher post. Promotion can be either to higher pay scaleor to higher post. These two Rules and the use of the word'promotion' there do not conclude the issue.”

28.In any event, even assuming the Court in CM 3715/1993 wasnot using the term “promotion” in the wider sense as held in S.S.

Ranade (supra) and Fateh Chand Soni (supra), the absence of anyqualifications for promotion to the post of Usher in the Delhi HighCourt Establishment Rules till 1.10.2003, leads this Court to concludethat the post of Usher was merely higher pay scale/grade, and not ahigher postthan the posts of Court Attendant, Lawn Attendant etc.29.When selection grade post is outside the existing, definedhierarchy of posts, clarification 2 makes it clear that such selectiongrade cannot be considered “promotional post”.This conclusion isbuttressed further by clarification 53 issued by OM. F.No.35034/1/97-Estt(D)(Vol.IV) dated July 18, 2001:

30.This clarification makes it amply clear that ACP benefits areconferred in hierarchy of pay grades and not promotional posts i.e.,posts with higher pay, and not necessarily higher posts. The employeemust fulfill all the conditions of eligibility for the next higher gradelike additional educational qualifications or experience, whatever theymay be, in order to be eligible for ACP benefits. Given that the objectof the ACP Scheme is to provide reprieve from stagnation within theservices (be it due to fewer number of promotional posts or excessivenumber of employees in the feeder grades),it is logical that the ACP,once granted, results in the accrual of the higher pay of higher paygrade. This was also the reasoning in Grade I, DASS (supra).

31.This Court is thus of the opinion that the post of Usher till1.10.2003cannot be considered “promotional post” for the purposesof the ACP, because,firstly, it is outside the defined, existing hierarchyand secondly, it is clearly selection grade from the time of theoriginal Establishment Rules. The ACP benefits for these Ushers mustthus be granted by treating this selection grade as withdrawn, asrequired by Clarification 2. Once it is treated as withdrawn, the twosubsequent pay scales corresponding to the two higher posts are (i) `4500-7000/- and (ii) ` 5500-9000/-.

32.This Court holds that the position after 1.10.2003 is different,for the reason that on 1.10.2003, by the Chief Justice’s order,Schedule II was amended to introduce the post of Usher in the

existing, defined hierarchy,as promotional post, even if as merely aselection grade (with qualifications of minimum of 5 years’experience as Court attendants, Lawn Attendants, Safaiwala, SecurityAttendants, Room Attendants).Thus, for those Court Attendants, LawnAttendants, Room Attendants, Security Attendants and Safaiwalasappointed after 1.10.2003, the ACP benefits must be conferred in thetwo subsequent pay scales corresponding to the two higher posts,which are(i) `3500-5120/- and (ii) `4500-7000/-. This Courtacknowledges that this creates an anomalous position in that CourtAttendants, Lawn Attendants, Room Attendants, Security Attendantsand Safaiwalas appointed prior to 1.10.2003 are able to avail ofgreater or better ACP benefits than those appointed after 1.10.2003.However, this anomaly is one that service employees are required tolive with given the frequency of cadre restructuring and theunfeasibility of reviewing ACP benefits each time restructuringtakes place. This anomaly has been recognized and resolved inclarification 44, issued in Office Memorandum No. 35034/1/97-Estt(D)(Vol.IV) dated 18.7.2001:

9.8.1999 but before the dateCommittees or otherwise and itof effect of restructuring, getis not possible to review thefirst/secondfinancialentitlementsunderACPSupgradation in Grade ‘B’already earned every time aand Grade ‘C’ respectivelycadre is reviewed. ACPS is onlybutthosewhobecomea temporary solution to provideeligibleforfinancialrelief to stagnating employeesupgradationaftertheandthelastingsolutionforrestructuringhasbeenstagnationliesinreviewofeffected are entitled to firstcadrestructures,asregularfinancialupgradationinpromotions will be earned inGrade‘C’andsecondsuch restructured grades. Allfinancialupgradationinthe employees will benefit fromGrade‘D’.Thisissuch cadre restructuring.anomalous.Thecasesofearliersetofemployeesshould be reviewed and theymay be allowed financialupgradations as applicableto the lattercategory ofemployees.”

33.This explanation clarifies that since cadre-restructuring by PayCommissions is frequently undertaken exercise, privileges underACPs should not be open to review, each time cadre is restructured.The existing hierarchy itself is to be implemented. Because the ACP isrequired to be implemented in the “existing hierarchy”, it is imperativeto consider the hierarchy as it exists at the time the employee becomeseligible for upgradation.

34.It is appropriate to note here that this Court in its judgment of4.11.2003 in W.P. 740/2003, also ordered that the ACP scheme oughtto be implemented keeping in mind the existing hierarchy. The Court

was of the opinion that the “existing hierarchy” at that time was thatwhich was proposed by the 5[th]PC(though not sanctioned by theCentral Government). The Court noted that the affidavit filed onbehalf of the High Court stated that the Administrative Committee ofthe High Court had recommended the ACP’s implementation, as it hadalready been implemented in the Supreme Court and the SubordinateCourts. The Screening Committee (constituted to work out themodalities, per the ACP scheme) reported that till pay scales of theClass III and Class IV employees are decided, their cases cannot beprocessed. Committee of three judges subsequently considered thematter and was of the view that since the Supreme Court hadimplemented the ACP, the High Court was also in position toimplement it along the lines of the Supreme Court. This Court alsonotes that the affidavit of the Ministry of Personnel, Public Grievancesand Pensions stated that the employees of the DHC enjoy specialstatus under the Constitution and that it was for the High Court toevolve suitable promotion scheme or to adopt the ACP in its stead.Consequently, only the administrative side of the High Court hadpowers in this area and there was no question of Central Governmentapproval.However, the only requirement was sanction from theCentral Government for replacement of pay scales in line with the 5[th]PC’s proposed pay scales.

35.The Court proceeded to note that on implementation of the 5[th]PC report, the High Court had requested the Ministry of Law andJustice vide letters dt. 22.12.1998 and 26.10.1999 to obtain sanction ofthe Government for the normal replacement of the pay scales in

respect of posts in Class III and Class IV, w.e.f. 1 Jan 1996. However,the Deputy Secretary of the Ministry without reasons, by letter dated22.08.1999 stated it was not possible to do so. Once again, letter waswritten on 4.4.2000 to the Ministry of Law and Justice for normalreplacement of pay scales. The Union Law Minister by letter dated26.6.2000 informed the Chief Justice that serious anomalies existed inthe pay scales of the employees of the Delhi High Court owing to themany judgments and orders passed in the various writ petitions filedby employees. He stated that in order to remedy these anomalies, aBill was pending in the Rajya Sabha. The Chief Justice sent anotherletter dated 11.9.2000, reiterating that only normal replacement of payscales of the 4[th]Pay Commission’s report in terms of the 5[th]PC reportwas being sought and that further revision of pay scales for the postsin question was not being sought.

36.The judgment in W.P. 740/2003, then noted that akin to therequest for sanction of the President for revision of pay scales in termsof the 4[th]Pay Commission report (which was, ultimately conveyed tothe High Court on 21.9.1998 pursuant to directions of the High Courton 27.8.2998 in Chaman Lal Sharma v. Union of India), sanction wasbeing sought only to effect normal replacement of pay scales interms of the 5[th]PC, for the categories of employees in question. Non-grant of sanction was forcing the employees to draw lower salariesthan those of other posts of equal status, thus creating an anomaly.However, no reply was received. This being the situation, the HighCourt noted that under Art. 229, the Chief Justice is the sole authorityin the matter of regulating conditions of service of the officers of the

High Court. Proviso to clause Art. 229(2) states that rules made withregard to salaries, allowances, leave, pensions of officers and servantsof the High Court shall require the approval of the Governor of theState. After considering the law on the matter, particularly in SupremeCourt Employees Welfare Association v. Union of India, (1989) 4 SCC187, the High Court directed in its judgment that the ACP be adoptedand implemented on the basis of the proposed revised pay scales,pending approval of the Central Government of revised pay scales inline with the 5[th]PC’s recommendations.

37.At this point, it is necessary to note that, contrary to thejudgment in W.P. 740/2003, the letter dated 22.12.1998 (Annexure R-4) did not in fact, request sanction for normal replacement of payscales in terms of the 5[th]PC report. The first respondent admits this inits counter affidavit. It requests sanction for replacement of the oldscale of `1000-1750/- with new scale of ` 3000-5120/-, for theposts of Ushers/Daftries and Book Binders, while the 5[th]PC report didnot recommend replacement pay scale for this post.The 5[th]PC onlyprovided the replacement scale of ` 3200-4900/- for the old scale of `975-1660/-. The same is the request made in the letters dated25.8.2005 (391), 4.3.1999 (411), 3.11.2003 (420), 28.2.2004 (421),18.5.2004(423),11.1.2005(428),28.3.2005(432),25.8.2005(438).The Ministry’s response letter dated 13.10.2005 also sanctionedthe new pay scale of ` 3000-5120/-, and thus clearly did not sanctionnormal replacement of pay scales in terms of the 5[th]PC report.38.This concededly, was consistent with the High Court havingnotified the post of Usher as being post to be filled only bypromotion(by order of the Chief Justice dated 1.10.2003, in whichqualifications for appointment to the post of Usher was notified asbeing minimum of 5 years’ service in in any of the posts of CourtAttendant, Room Attendant, Security Attendant, Safaiwala, LawnAttendant, Library Attendant; as observed earlier, if one necessarilymust have served for at least 5 years in one of these named posts, it isclear that direct recruit candidate cannot possibly qualify for the postof Usher; the post is open to be filled only by promotion, after1.10.2003.). The Court is of the opinion that having regard to theabsolute right of the Chief Justice to control the establishment andemployees of the High Court, under Article 229 of the Constitution,the decision to amend the Rules with effect from 01.10.2003 cannot begone into. If any doubts about the feasibility of this existed, they werenot voiced by the Central Government, which could have possiblyindicated different view, for good and valid reasons. This Courtnotes that the judgment of 4.11.2003 proceeded on an assumption- notentirely accurate- that all the requests for sanction sent by the ChiefJustice to the Ministry of Law and Justice were for mere “normalreplacement of pay scales”in line with the recommendations of the 5[th]PC. Having regard to the power of the Chief Justice under Article 229of the Constitution, the change in hierarchy made subsequentlythrough the amendment of 2003 has to be given due weightage inconsidering the issue of ACP benefits and the relevant pay scalesapplicable for the scheme.

39.It is the argument of the petitioners that the sanctionof payscale of ` 3000-5120/- is contrary to the intent of the ACP. This

argument is premised on the assumption that the 5[th]PC merged twopay scales, thus rendering the scale of ` 3000-5120/- “non-existent”.The argument, though not advanced in this form in Court, appears tobe relying on clarification 1 issued in O.M. No. F.No.35034/1/97-Estt(D)(Vol.IV) issued on 10.2.2000 which stipulates that when twopay scales are merged, then the ACP should result in financialupgradation to the pay scale immediately above the merged pay scale.Thus, it is argued that the existing hierarchy is the hierarchy as itexists at the time the employee becomes eligible for upgradation.Since the ACP scheme was introduced on 9.8.1999 by the Departmentof Personnel and Training by DoPTM No. 35034/1/97-Estt. (D) andthe 5[th]PC recommendations were introduced w.e.f. 1.1.1996, theexisting hierarchy of posts at that time was that under the 5[th]PCrecommendations.

40.The Court has already dispelled this contention by holding thatthe hierarchies of posts and corresponding pay scales must be vieweddifferently prior to 1.10.2003 and post 1.10.2003. Prior to 1.10.2003,even though in practice, the post of Usher was treated as selectiongrade as against the pay grades of Court Attendant, Room Attendant,Security Attendant etc., no qualifications had been stipulatedin theEstablishment Rules to expressly state this. Thus, for the period till1.10.2003, the post of Usher must be considered selection grade thatis not part of the defined hierarchy in Schedule II of theEstablishment Rules. According to Clarification 2, (issued on10.2.2000), this selection grade, for the purpose of the ACP scheme,must not be considered promotional grade and must be treated as

withdrawn. Such being the case, in the hierarchy of posts as it existedwhen the ACP was introduced i.e. as of 09.8.1999, till the date of theChief Justice’s order of 1.10.2003, the post of Usher cannot beconsidered promotional grade from the posts of Court Attendant,Lawn Attendant etc. After 1.10.2003, since the post of Usher wasmade part of the existing, defined hierarchy in Schedule II of theEstablishment Rules, even if only as selection grade (since the onlymanner of appointment to the post of Usher is through promotion aftersatisfying the educational and experience requirements), the post ofUsher must be considered as promotional grade as against CourtAttendant, Lawn Attendant, etc. The hierarchy of posts, pre and postthe 2003 Amendment would be as follows:

Old scalesReplacement Scalesprior to theAppointmentAppointmentACPbetweenafterscheme9.8.1999 to1.10.20031.10.20035500-9000--4500-70001350-22004500-70003000-51201000-17503200-4900975-16603200-4900

41.From the above analysis, the following conclusions emerge:

(i)The ACP scheme must be implemented within the existinghierarchy of pay grades/pay scales, in keeping with the purposeof the Scheme i.e. to grant reprieve from stagnation due to lackof promotional posts, by way of financial upgradation.hierarchy of pay grades/pay scales, in keeping with the purposeof the Scheme i.e. to grant reprieve from stagnation due to lackof promotional posts, by way of financial upgradation.

(ii)The ACP scheme operates to grant two financial upgradations,i.e. to the two higher promotional grades,after 12 and 24 yearsin service respectively.i.e. to the two higher promotional grades,after 12 and 24 yearsin service respectively.

(iii)Any selection grade that is introduced in lieu of higher payscale, and which is not part of the defined hierarchy, cannot beconsidered as promotional grade within the defined hierarchy,for the purposes of ACP.scale, and which is not part of the defined hierarchy, cannot beconsidered as promotional grade within the defined hierarchy,for the purposes of ACP.

(iv)The post of Usher was introduced as selection grade in theDelhi High Court Establishment Rules only on 1.10.2003. Tillthen, it was selection grade post outside the defined hierarchy.Delhi High Court Establishment Rules only on 1.10.2003. Tillthen, it was selection grade post outside the defined hierarchy.

(v)Consequently, for the purpose of ACP, between 9.8.1999 and1.10.2003, the selection grade of Usher must be treated aswithdrawn. All persons appointed to this selection grade, i.e. ofUsher from other Class IV posts to Usher during this period,shall not be regarded as having received promotion grade payfor the purposes of the ACP. The ACP shall be granted for ClassIV posts including Ushers first to the pay grade of ` 4500-7000/- and then to the next higher grade of ` 5500-9000/-.1.10.2003, the selection grade of Usher must be treated aswithdrawn. All persons appointed to this selection grade, i.e. ofUsher from other Class IV posts to Usher during this period,shall not be regarded as having received promotion grade payfor the purposes of the ACP. The ACP shall be granted for ClassIV posts including Ushers first to the pay grade of ` 4500-7000/- and then to the next higher grade of ` 5500-9000/-.

(vi)After 1.10.2003, since the selection grade of Usher wasintroduced within the Delhi High Court Establishment Rules, asUshers, the post of Usher is promotional grade as against thefeeder grade of the other Class IV posts. Thus, for all personsintroduced within the Delhi High Court Establishment Rules, asUshers, the post of Usher is promotional grade as against thefeeder grade of the other Class IV posts. Thus, for all persons

appointed after 1.10.2003, ACP is granted to Class IV posts firstto the promotional grade of Usher in the pay scale of ` 3000-5120/- and then the next higher pay grade of ` 4500-7000/-.

42.Accordingly, the writ petition is allowed in part; direction isissued to the respondents to ensure that all employees who wereallowed the selection grade (i.e. of Usher from other Class IV posts toUsher) during this period between 1999 and 01-10-2003 shall not beregarded as having received promotion grade pay for the purposes ofthe ACP. The ACP shall be granted for Class IV posts includingUshers first to the pay grade of ` 4500-7000/- and then to the nexthigher grade of ` 5500-9000/-.In respect of those granted the post ofUsher after 1-10-2003, the first ACP shall be `3000-5120/- and thesecond ACP shall be in the grade of ` 4500-7000/-. The respondentDelhi High Court establishment is directed to issue necessary andconsequential orders, to comply with the findings of the Court, withinsix weeks from today. There shall be no order on costs.

S. RAVINDRA BHAT(JUDGE)

NAJMI WAZIRI(JUDGE)

JULY 11, 2014