Punjab-Haryana High Court
Suresh Kumar Batra vs Union Of India And Ors on 28 February, 2025
Neutral Citation No:=2025:PHHC:029341
CWP-329-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-329-2024
Date of Decision: 28.02.2025
Suresh Kumar Batra ......Petitioner(s)
Versus
Union of India and others .....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Rajiv Atma Ram Sr. Advocate,
with Mr. Brijesh Khosla, Advocate,
for the petitioners.
Mr. Satya Pal Jain, Addl. Solicitor General of India,
with Ms. Saigeeta Srivastava, Advocate,
for respondent No.1.
Ms. Neha Sharma, Sr. Panel Counel,
for respondent No.3.
Ms. Meghna Malik, Sr. Panel Counsel,
for respondent No.4.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226 and 227
of the Constitution of India is seeking setting aside of letter dated 04.07.2023
(Annexure P-17) and advice of Department of Personnel and Training (DOPT)
and Department of Legal Affairs (DOLA) dated 24.04.2023 (Annexure P-18)
whereby his request for reckoning of service as Member Judicial for pension
and other retiral benefits has been rejected. He is further seeking setting aside of
order dated 12.10.2022 (Annexure P-13) whereby his pay has been provisionally
fixed at Rs.1,76,550/- instead of Rs.2,25,000/- per month.
2. The petitioner was enrolled as an Advocate on 12.12.1994 with the
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Bar Council of Punjab & Haryana. He in February’ 2003 came to be selected as
Assistant Public Prosecutor (APP), Central Bureau of Investigation (CBI)
through UPSC. He, through proper channel, applied for the post of Public
Prosecutor (Group ‘A’) in CBI. He came to be selected as Public Prosecutor. He
joined as Public Prosecutor, CBI on 21.03.2006. In 2010, he applied through
proper channel for the post of Assistant Legal Adviser (ALA), Directorate of
Enforcement (ED). He joined as ALA on 20.07.2010. He came to be promoted
to the post of Deputy Legal Adviser (DLA) vide order dated 28.03.2018.
3. He through proper channel applied for the post of Judicial Member
in Central Administrative Tribunal (CAT). He came to be selected. ED relieved
him w.e.f. 31.08.2022 to enable him to join as Judicial Member with CAT. He
joined CAT at Jammu on 01.09.2022. In this way, he served for 19-1/2 years in
CBI and ED. He, in terms of 2nd proviso to Section 10 of The Administrative
Tribunal Act, 1985 (in short ‘1985 Act’) requested the respondent to count his
service as Judicial Member for the purpose of pension and other retiral benefits
in his service with previous organizations. He, for the said purpose, filed option
dated 18.10.2022. The respondent No.2 vide order dated 12.10.2022
provisionally fixed his pay in the pay scale of Rs.2,25,000/- per month.
Assuming that he is getting pension of Rs.48,450/- per month from his previous
organization, his salary was assessed as Rs.1,76,550/- (2,25,000-48,450). He
submitted his option in terms of 2nd proviso to Section 10 of the 1985 Act, thus,
he did not claim pension from his previous organization. He submitted reminder
dated 03.04.2023 requesting the respondent to count his service as Judicial
Member in the service rendered with CBI and ED for the purpose of pension
and other retiral dues. The respondent vide order dated 24.04.2023 rejected his
claim. The respondent is relying on the advice of DOPT and DOLA. The
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DOPT is of the opinion that service rendered as DLA in ED is ‘unorganized
service’, thus, cannot be reckoned for the purpose of pension and other benefits.
The petitioner would be governed by New Pension Scheme (NPS).
4. Mr. Rajiv Atma Ram, Senior Counsel for the petitioner submits that
as per impugned order as well as written statement, the service rendered as DLA
with ED was ‘unorganized service’ and as per Rule 13 of Tribunal (Conditions of
Service) Rules, 2021 (in short ‘TR 2021’), ‘organized service’ may be counted for
pension and other retiral benefits. The petitioner’s service as DLA/ALA was
unorganized service.
There is no dichotomy between organized and unorganized service
with Union of India. The petitioner had worked as Group-A Officer. The
service of petitioner was governed by Ministry of Finance, Department of
Revenue, Directorate of Enforcement, (Deputy Legal Adviser and Assistant
Legal Adviser), Group ‘A’ posts, Recruitment Rules, 2011 (in short ‘2011
Rules’). The said Rules categorically declare that post of DLA is a Group ‘A’
post. In the Schedule to aforesaid Rules, the post has been classified as
“General Central Service, Group ‘A’ Gazetted, Non-Ministerial”. The services
of Members of CAT are governed by 1985 Act. 2nd proviso to Section 10 of
1985 Act categorically provides that where a serving Government Officer is
appointed as Member, he shall be deemed to have retired from the service to
which he belonged on the date on which he assumed the charge as Member but
his subsequent service as Member shall, at his option, be counted for pension
and other retiral benefits in the service to which he belonged. In the said
proviso, the expression used is “service” whereas in Rule 13 of TR 2021,
expression “organized service” has been used. Rule 13 of TR 2021 cannot
override Section 10 of the 1985 Act. It is settled proposition of law that any
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Rule which is contrary to statutory provisions cannot sustain. From the conjoint
reading of 2nd proviso to Section 10 of 1985 Act and Rule 13 of TR 2021, it is
evident that as per 1985 Act, there is requirement of ‘service’ and it is only Rule
13 of TR 2021 which uses expression “organized service”. The said expression
“organized service” has not been defined either in 1985 Act or TR 2021. In the
absence of specific definition of ‘organized service’, the petitioner cannot be
denied benefit on the basis of office memorandum dated 19.11.2009 issued by
DOPT. The office memorandum cannot squeeze scope of statutory provisions.
The office memorandum may clarify doubt, however, it cannot change colour
and contour of a statutory provision. The office memorandum dated 19.11.2009
uses expression “organized and unorganized service”. It further provides that
posts not belonging to any service are classified as ‘General Central Service’.
Organized Group “A” service cannot have posts/grades classified as General
Central Service. There is no dispute that service of petitioner with CBI and ED
falls within expression “Service” and it was Group ‘A’, however, as per
respondent it does not fall within definition of “organized service” and as per
Rule 13 of TR 2021, organized service can be counted for the purpose of
pension and retiral benefits. The service of petitioner with ED was governed by
specific Rules and his post was considered as Group ‘A’ gazetted post.
Hon’ble Supreme Court of India in State of Mizoram and another
vs. Mizoram Engineering Service Association and another, (2004) 6 SCC 218
has clearly held that there is no difference in organized and unorganized service
so far as government service is concerned. In government service such a
distinction does not appear to have any relevance. Civil service is not trade
unionism.
5. Per contra, Mr. Satya Pal Jain, Addl. Solicitor General of India
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submits that petitioner was appointed after implementation of TR 2021 and his
appointment was made on the basis of his 10 years practice as an Advocate.
Supreme Court in Deepak Aggarwal vs. Keshav Kaushik and others, (2013) 5
SCC 277 has held that Public Prosecutor or Government Counsel, even though
employed full time by Government, continues to be an Advocate if he is
enrolled with the Bar Council and engaged in practice of law on behalf of the
Government in Courts. The petitioner worked with CBI and ED as Public
Prosecutor/DLA and his service with these organizations was counted as
experience of an Advocate. Rule 13 of TR 2021 categorically provides that if
Member of an organized service is appointed as Member of the Tribunal, the
service in the Tribunal shall be counted for pension to be drawn in accordance
with Rules of the service to which he belonged. The petitioner’s service with
CBI/ED was not organized service. It was General Central Service. As per
Rule 3(5) of TR 2021, different categories of persons are eligible for the post of
Judicial Member in CAT. The petitioner did not fall in Category (i) to (iii) and
his case was considered under Category-(iv) i.e. 10 years experience as an
Advocate in litigation in service matters in CAT, Armed Forces Tribunal, High
Court or Supreme Court. The office memorandum dated 19.11.2009
categorically provides for ‘organized’, ‘unorganized’ and ‘General Central
Service’. The past service of petitioner falls under General Central Service, thus,
it cannot be considered as “organized service”.
6. I have heard the arguments and perused the record.
7. From the pleadings and arguments of both sides, the following
questions arise for the consideration of this Court:-
(i) Whether second proviso to Section 10 of 1985 Act prevails over the
Rules framed by Central Government in terms of TR Act, 2021?
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(ii) Whether service of petitioner rendered with Directorate of
Enforcement falls within expression “organized service” as
contemplated by Rule 13 of TR 2021?
8. The respondent has denied claim of petitioner on the ground of
office memorandum dated 19.11.2009 which is reproduced as below:-
No. 1-11019/12/2008-CRD
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and TrainingRoom No. 341, Lok Nayak Bhawan,
New Delhi-110003.
November 19, 2009
Office Memorandum
Subject: Attributes of Organised Group ‘A’ Central Services
Clarification regarding.
The Department of Personnel and Training has been
receiving a number of references seeking clarifications
about the attributes and definition of the Organised Group
‘A’ Central Services. Many service associations have also
filed applications in various courts claiming the status of an
Organised Group “A” Service and the consequential
benefits. It appears that the difference between an
Organised Group ‘A’ Service and other Services/Cadres has
not been appreciated in its true sense. The attributes of an
Organised Group A Service are clearly laid down in the
existing Monograph on Cadre Management published by
this Department. In order, however, to remove any doubt,
the same are reiterated below:
(i) The highest cadre post in such services is not below
the level of Rs.37400-67000 plus Grade pay of Rs.
10000 (SAG);
(ii) Such services have all the standard grades namely,
Rs. 15600-39100 plus Grade pay Rs.5400 (JTS),
Rs.15600-39100 plus Grade pay Rs.6600 (STS),
Rs.15600-39100 plus Grade pay Rs.7600/Rs.37400-
67000 plus Grade pay of Rs.8700 (JAG/NFSG) and
Rs.37400-67000 plus Grade pay of Rs. 10000 (SAG);
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(iii) At least 50% of the vacancies in Junior Time Scale
(JIS) in such services are required to be filled by
direct recruitment;
(iv) All the vacancies above JTS and upto SAG level in
such services are filled up by promotion from the next
lower grade;
(v) While a service may comprise one or more distinct
cadre (s), all such cadres should be governed by
composite Service Rules facilitating horizontal and
vertical movement of officers of a particular cadre at
least upto SAG level. The cadre posts of an Organised
Service expressly belong to that service. The posts not
belonging to any service are classified as General
Central Service and, therefore, an Organised Group
Service cannot have posts/grades classified as
General Central Service; and
(vi) Such a service consists of two distinct components,
namely Regular Duty Posts and Reserves. The
Reserves are generally of four types, viz (1)
Probationary Reserves, (ii) Leave Reserve, (iii)
Training Reserve and (iv) Deputation Reserve. The
various types of reserves are usually created and
accounted for in the Junior Time Scale.
Note:- The existing Organised Group ‘A’ Services have
evolved over a period of time and may have minor
deviations owing to their respective functional requirements.
The services already declared as such need not, however, be
reviewed.
2. The above are certain basic attributes of an
Organised Group ‘A’ Service. There is, however, nothing to
suggest that the services/cadres fulfilling these criteria
would be automatically conferred the status of an Organised
Group ‘A’ Service. An Organised Group ‘A’ Service is one
which is constituted consciously as such by the Cadre
Controlling Authorities and such a service can be
constituted only through the established procedures.
(Pratima Tyagi)
Under Secretary to the Government of India”
9. Section 10 of 1985 Act provides that members of CAT shall be paid
salaries and allowances as prescribed by the Central Government. Relevant
extracts of Section 10 read as:-
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“10. Salaries and allowances and other terms and
conditions of service of Chairman, and other Members.–
The salaries and allowances payable to, and the other terms
and conditions of service (including pension, gratuity and
other retirement benefits) of, the Chairman, and other
Members shall be such as may be prescribed by the Central
Government:
Provided that neither the salary and allowances nor
the other terms and conditions of service of the Chairman, or
other Member shall be varied to his disadvantage after his
appointment.
Provided further that where a serving Government
officer is appointed as a Member, he shall be deemed to have
retired from the service to which he belonged on the date on
which he assumed the charge of the Member but his
subsequent service as Member shall, at his option, be
reckoned as a post-retirement re-employment counting for
pension and other retirement benefits in the service to which
he belonged.”
Section 10B of 1985 Act provides that members of CAT shall be
paid salaries and allowances as per Chapter II of Tribunal Reforms Act, 2021 (in
short ‘TR Act, 2021’). Section 10B reads as:-
10B. Qualifications, terms and conditions of service
of Chairman and Member.–Notwithstanding anything
contained in this Act, the qualifications, appointment, term of
office, salaries and allowances, resignation, removal and the
other terms and conditions of service of the Chairman and
other Members of the Tribunal appointed after the
commencement of the Tribunals Reforms Act, 2021, shall be
governed by the provisions of Chapter II of the said Act:
Provided that the Chairman and Member appointed
before the commencement of Part XIV of Chapter VI of the
Finance Act, 2017, shall continue to be governed by the
provisions of this Act, and the rules made thereunder as if the8 of 22
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provisions of section 184 of the Finance Act, 2017 had not
come into force.”
Section 33 of 1985 Act provides that provisions of this Act shall
have overriding effect. Section 33 reads as:-
33. Act to have overriding effect.–The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force or in any instrument having effect by virtue of
any law other than this Act.
10. The Central Government in exercise of power conferred by Section
35 of 1985 Act framed Central Administrative Tribunal (Salaries and
Allowances and Conditions of Service of Chairman, Vice-Chairman and
Members) Rules, 1985 (in short ‘1985 Rules’). These rules have provided for
salaries, allowances, pension, status of past service for pension & gratuity,
leave, pension, provident fund, travelling allowance, LTC, medical treatment
etc. Rule 5 provides for retirement from parent service on appointment as
Member. Rule 5 reads as:
“5. Retirement from parent service on appointment as
Members:-
(1) The Chairman, Vice-Chairman or a Member who, on
the date of his appointment to the Tribunal, was in service
under the Central Government or a State Government,
shall seek retirement from such service before his
appointment to the Tribunal and in the case
of a sitting Judge of a High Court who is appointed as
Chairman, a Vice-Chairman, his service in the Tribunal
shall be treated as actual service within the meaning of
para.11(b)(1) of Part”D” of the Second Schedule to the
Constitution, (2) On such retirement as is provided for in
sub-rule](1), the Chairman, Vice- Chairman and Member:
(i) shall be entitled to receive pension and gratuity in
accordance with the retirement rules applicable to him;
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(ii) shall not be allowed to carry forward his earned leave
but shall be entitled to receive cash equivalent to leave
salary,if any, in accordance with the rules applicable to
him prior to his retirement.”
From the reading of above rule, it is evident that it encompasses
service with State as well as Central Government. Second proviso to Section 10
uses expression ‘serving Government officer’. It means 2nd proviso to Section 10
as well as Rule 5 of 1985 Rules counts service as Member in the total service
rendered with State or Central Government.
11. The Parliament has introduced TR Act, 2021 which governs service
conditions of Members of different Tribunals. Sections 3 and 7 of TR Act, 2021
are relevant for the adjudication of present case. The relevant extracts of
Section 3 and 7 of TR Act, 2021 are reproduced as below:-
“3. (1) Notwithstanding anything contained in any
judgment, order or decree of any court, or in any law
for the time being in force, the Central Government
may, by notification in the Official Gazette, make rules
to provide for the qualifications, appointment, salaries
and allowances, resignation, removal and other
conditions of service of the Chairperson and Member of
a Tribunal after taking into consideration the
experience, specialisation in the relevant field and the
provisions of this Act:
Provided that a person who has not completed
the age of fifty years shall not be eligible for
appointment as a Chairperson or Member.
xxx xxx xxx
7.(1) Notwithstanding anything contained in any
judgment, order or decree of any court, or in any law
for the time being in force, and without prejudice to the
generality of the foregoing power, the Central10 of 22
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Government may make rules to provide for the salary of
the Chairperson and Member of a Tribunal and they
shall be paid allowances and benefits to the extent as
are admissible to a Central Government officer holding
the post carrying the same pay:
Provided that, if the Chairperson or Member
takes a house on rent, he may be reimbursed a house
rent higher than the house rent allowance as are
admissible to a Central Government officer holding the
post carrying the same pay, subject to such limitations
and conditions as may be provided by rules.
(2) Neither the salary and allowances nor the
other terms and conditions of service of the
Chairperson or Member of the Tribunal may be varied
to his disadvantage after his appointment.”
12. The Central Government has notified TR 2021 and as per Rule 13,
service rendered with previous department should be “organized service” for the
purpose of counting service rendered as Member Tribunal. The expression
“organized service” has not been defined either under 1985 Act or TR Act, 2021
or Rules made thereunder. Rule 13 reads as:-
“13. Pension, Provident Fund and Gratuity.– (1) In
case of a serving Judge of the Supreme Court or a High
Court or a Member of an Organized Service appointed as the
Chairperson or Member, the service in the Tribunal shall
count for pension to be drawn in accordance with the rules of
the service to which he belongs and he shall be governed by
the provisions of the General Provident Fund (Central
Services) Rules, 1960 or the Contribution Pension System, as
the case may be, and the rules for pension applicable to him.
(2) In all other cases, the Member shall be governed by
the provisions of the Contributory Provident Fund (India)
Rules, 1962 or the Contribution Pension System, as the case
may be.
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(3) Additional pension and gratuity shall not be
admissible for service rendered in the Tribunal.”
13. The petitioner is vehemently pleading that second proviso of
Section 10 of 1985 Act is intact and unfettered despite Section 10B of 1985 Act,
TR Act 2021 and Rules made thereunder. It is Rule 13 of TR 2021 which is
using expression ‘organised service’. This expression is not used in 2nd proviso
to Section 10 of 1985 Act, thus, expression ‘organised’ used in Rule 13 ought to
be ignored. A Rule made by Government cannot operate contrary to provisions
made by Parliament.
14. Non obstante clause is usually incorporated in the beginning with
intent to give the enacting part of the section, in case of a conflict, an overriding
effect over the provision or the Act mentioned in the non obstante clause. The
provisions embraced in the non obstante clause are not an impediment for the
operation of the enactment. Thus, a non obstante clause is a legislative device
used by legislature to give an overriding effect to what has been specified in the
enacting part of a section in case of a conflict with what is contained in the non
obstante clause as stated above. A non obstante clause may begin with
“notwithstanding anything contained in any other law for the time being in
force” or “notwithstanding anything contained in this Act”. The expression
“notwithstanding anything contained in this Act” has to be construed to take
away the effect of any provision of that particular Act in which the section
occurs but it cannot take away the effect of any other law.
15. A seven-Judge Bench of Supreme Court in Interplay Between
Arbitration Agreements under Arbitration & Conciliation Act, 1996 &
Stamp Act, 1899 (2024) 6 SCC 1, considered the implication of a non obstante
clause in a provision. The Court noticed its two judge bench judgement in
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447
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wherein it was observed:
“67. A clause beginning with the expression
“notwithstanding anything contained in this Act or in some
particular provision in the Act or in some particular Act or
in any law for the time being in force, or in any contract” is
more often than not appended to a section in the beginning
with a view to give the enacting part of the section in case of
conflict an overriding effect over the provision of the Act or
the contract mentioned in the non obstinate clause. It is
equivalent to saying that in spite of the provision of the Act
or any other Act mentioned in the non obstinate clause or
any contract or document mentioned the enactment
following it will have its full operation or that the provisions
embraced in the non obstinate clause would not be an
impediment for an operation of the enactment.”
16. In ICICI Bank Ltd. v. Sidco Leathers Ltd. (2006) 10 SCC 452, it
was observed that even if a non obstante clause has wide amplitude, the extent
of its impact has to be measured in view of the legislative intention and
legislative policy.
17. The utility of non obstante clause is where there is a conflict
between what is stated in a provision and any other law for the time being in
force or anything else contained in the said enactment. The object is to give the
enacting or operative portion of the section an overriding effect, in the case of
conflict. In other words, only in case of conflict, a provision in an enactment
containing a non obstante clause would be given its full operation and what is
stated in the non obstante clause will not be an impediment for the operation of
the particular provision in the enactment. This would mean that what is stated in
the non obstante clause would not take away the effect of any provision of the
Act which is consistent.
18. In Aswini Kumar Ghose v. Arabinda Bose (1952) 2 SCC 237
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Supreme Court observed that only when there is any inconsistency between
what is contained in a provision of an enactment and a non obstante clause. It is
only when the enacting part of the statute cannot be read harmoniously with
what is stated in the non obstante clause, would the non obstante clause result in
yielding to what is stated in the enacting part.
19. It is trite law that if any rule made by Government is contrary to
statutory provisions, it is invalid. No rule can be contrary to statutory provisions.
Section 10 of 1985 Act provides that salaries, allowances and the other terms
and conditions of the Members shall be such as may be prescribed by the
Central Government. First proviso to said Section provides that salary,
allowances and other terms & conditions shall not be varied after appointment.
Second proviso which was inserted w.e.f. 19.02.2007 provides for inclusion of
service as Member in the past service for the purpose of pension and other
retiral benefits.
From the conjoint reading of main part of Section 10 and both
provisos, it is evident that main part is a general provision with respect to salary,
allowances and other terms & conditions of the service whereas both provisos
are categorically dealing with two aspects of the service. Both provisos are in
the form of special provision. Main part is not specifying salary, allowances and
other terms & conditions of the service whereas it provides that Central
Government shall specify which in turn has framed Rules. It is settled law that
proviso neither can operate contrary to or enlarge scope of the main Section.
20. Section 10B provides that qualification, appointment, term of
office, salaries and allowances, resignation, removal and the other terms and
conditions of service of Chairman, Vice-Chairmen and Members shall be
governed by provisions of Chapter II of TR Act, 2021. Section 10B commences
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with non obstante clause. It uses expression ‘notwithstanding anything
contained in this Act’. Section 33 of 1985 Act is also a non obstante provision. It
provides “notwithstanding anything inconsistent therewith contained in any
other law”. The dichotomy between two non obstante provisions need to be
appreciated. As per Section 33, provisions of 1985 Act would prevail if there is
inconsistency between provisions of 1985 Act and any other law in force
whereas as per Section 10B, provisions of 1985 Act with respect to salaries,
allowances and other terms & conditions of service of Members shall become
inoperative after the commencement of TR Act, 2021. Section 10B is not
providing that provisions of 1985 Act would remain in force which are not
inconsistent with TR Act, 2021 whereas it has made provisions of 1985 Act
inoperative with respect to salary, allowances and other terms and conditions of
service of the Members. If contention of petitioner is upheld, second proviso to
Section 10 would become an independent provision.
In the wake of above discussion and findings, this Court is of the
considered opinion that second proviso to Section 10 of 1985 Act does not over-
ride Tribunal (Conditions of Service) Rules, 2021.
21. The respondent is relying upon Office Memorandum dated
19.11.2009 wherein attributes of Organized (Group -A) Central Services are
enumerated. As per respondent, the petitioner was part of General Central
Service while posted with ED. General Central Service though is a Group-A
service still is not organized service. As per aforesaid Office Memorandum, the
attributes of Organized Group-A Service are as below:-
(i) The highest cadre post in such services is not below the rank of
Rs.37,400-67,000 + grade pay of Rs.10,000/-.
(ii) Such services have all standard grades namely 15,600-39,100 +
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grade pay of Rs.5,400, Rs.15600-39100 + grade pay Rs.6600, Rs.15600-39100
+ grade pay Rs.7600/Rs.37400-67000 + grade pay of Rs.8700 and Rs.37400-
67000 plus Grade pay of Rs.10000.
(iii) At least 50% of the vacancies in Junior Time Scale in such services
are required to be filled by direct recruitment.
(iv) All the vacancies above JTS and upto SAG level in such services
are filled up by promotion from the next lower grade.
(v) The service may comprise of one or more distinct cadres, however,
all such cadres should be governed by composite Service Rules facilitating
horizontal and vertical movement of Officers of a particular cadre at least upto
SAG level. An Organized Group ‘A’ Service cannot have posts/grades classified
as General Central Service.
(vi) Such a service consists of two distinct components, namely Regular
Duty Posts and Reserves.
22. The service of petitioner with ED was governed by 2011 Rules.
The post of DLA/ALA is Group ‘A’. A DLA is entitled to pay scale of
Rs.15,600-39,100 (Grade Pay of Rs.7,600/-). There are 7 posts of DLA and
source of recruitment is by promotion, failing which, by deputation and failing
both, by direct recruitment. The feeder cadre of DLA is ALA who is also
entitled to pay scale of Rs.15,600-39,100 and Grade Pay of Rs.6,600/-. As per
Office Memorandum dated 20.11.2009, grade pay Rs.6,600 is Senior Time
Scale (STS). ALA is feeder cadre of DLA. 50% posts of ALA are filled by
direct recruitment. The posts of DLA are filled up by promotion from the lower
grade. The Office Memorandum dated 20.11.2009 notifies attributes of
Organized Group ‘A’ Central Services. Rule 13 of TR, 2021 uses expression
‘organized service’. It does not talk of Central Services. The services rendered
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by a candidate may be with State Government. If the expression ‘organized
service’ used in Rule 13 is tested in the light of Office Memorandum, it can be
concluded that if a service is Group ‘A’ service and has attributes as noticed in
said Memorandum, it would be ‘organized service’. From the scrutiny of
attributes of service of DLA, it is evident that it has prime attributes of
‘organized service’. The only difference is that it is General Central Service. In
the Rules governing service of DLA, it is specifically incorporated that the
service would be General Central Service.
23. The dispute remains whether a General Central Service having
attributes of organized service would be organized service as per Rule 13 of TR
2021 or it would be excluded from the said Rule.
It is settled proposition of law that circulars/instructions issued by
Government cannot over-ride statutory provisions. The Office Memorandum
was issued on 20.11.2009 whereas the TR, 2021 were framed in 2021. In the
Rules, neither expression ‘organized service’ has been defined nor Government
has been empowered to issue Office Memorandum to clarify any expression
used in the Rules. In the absence of power conferred on Central Government or
any other authority, any instructions/circular issued by any authority cannot be
binding.
In any case, it is trite law that circulars/instructions issued by
department are biding on department but Courts are not bound by those
instructions/circulars. In the absence of specific definition in the Rules, it would
be appropriate to rely upon judicial precedents. In Mizoram Engineering
Service Association (supra), Supreme Court has clearly held that in
Government services, distinction of ‘organized’ and ‘unorganized’ services does
not appear to have relevance. Civil Service is not trade unionism. Relevant
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extracts of the judgment in Mizoram Engineering Service Association (supra)
are reproduced as below:-
“6. Great stress was laid on the fact that Engineering
Service in the State was not an organised service and
therefore, it did not have categorisation by way of entrance
level and senior level posts and for that reason the higher
scale of Rs. 5900-6700 which was admissible for senior
level posts could not be given in the Engineering Service.
The main reason for dubbing Engineer Service as an
unorganized service in the State is absence of recruitment
rules for the service. Who is responsible for not framing
the recruitment rules ? Are the members of the Engineering
Service responsible for it? The answer is clearly ‘No’. For
failure of the State Government to frame recruitment rules
and bring Engineering Service within the framework of
organised service, the engineers cannot be made to suffer.
Apart from the reason of absence of recruitment rules for
the Engineering Service, we see hardly difference in
organised and unorganized service so far as Government
service is concerned. In Government service such as
distinction does not appear to have any relevance. Civil
Service is not trade unionism. We fail to appreciate what is
sought to be conveyed by use of the words ‘organized
service’ and ‘unorganized service’. Nothing has been
pointed out in this behalf. The argument is wholly
misconceived.”
In view of above-cited judgment, the service of petitioner with
CBI/ED falls within expression ‘organised service’ used in Rule 13 of TR, 2021.
24. The service of petitioner with CBI/ED was governed by Rules. It
was Group-A gazetted service. A person who has held post of Additional
Secretary or any equivalent or higher post in the Department of Legal Affairs or
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the Legislative Department is eligible for the post of Judicial Member. Any
person who has held post of Additional Secretary or any other post carrying the
pay scale which is not less than that of an Additional Secretary to Government
of India is eligible for the post of Administrative Member. In this manner,
Additional Secretary as per his experience is eligible for the post of Judicial or
Administrative Member. Post of Additional Secretary is a Group ‘A’ gazetted
post. Said officer after his appointment as Member of Tribunal is entitled to
pension and other retiral benefits as per Rule 13 of TR, 2021. As soon as an
Additional Secretary is appointed as Judicial or Administrative Member, he
becomes at par with other members. If petitioner’s service as Member CAT is
not counted in service with previous organization for pension and retiral dues, it
would be discriminatory and violative of Article 14 of the Constitution of India.
Rule 13 of TR, 2021 to the extent it makes discrimination between two similarly
placed members would be invalid. Said Rule needs to be read down instead of
declaring invalid. Accordingly, it is hereby held that ‘organised service’ includes
Group ‘A’ gazetted service either it is classified as Central Civil Service or
Central Civil Post or General Central Service.
25. The respondent has further attempted to link ‘organised’ service
with eligibility for appointment as Member CAT. Eligibility/Source of
appointment cannot be linked with pension and other retiral benefits. Under
1985 Act, there was no dispute with respect to nature of service as raised by
respondent post 2021 Rules. Eligibility Criteria or qualification makes a person
eligible to participate and being selected. It cannot be linked with his entitlement
to pension and other benefits which are liked with past service. Question of
inclusion of past or current service for pension and other retiral dues is an
independent question which ought to be determined on the basis of applicable
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Rules.
As per the Central Civil Services (Classification Control and
Appeal) Rules, 1965 (for short, ‘CCA Rules’), there are four classes of service
i.e. Group ‘A’ ‘B’ ‘C’ and ‘D’. The expression ‘Service’ has been defined under
Rule 2(m) of CCA Rules. As per said Rule, ‘Service’ means a Civil Service of
the Union. As per Rules 4, 6 and 7, there are three types of services i.e. Central
Civil Services, Central Civil Posts and General Central Services. Appointment
to Group ‘A’ Services and Posts is made by President of India. Rule 2(m), 4, 6, 7
and 8 of CCA Rules are reproduced as below:-
“2. Interpretation
In these rules, unless the context otherwise requires, –
(m) “Service” means a civil service of the Union.
4. Classification of Services
(1) the Civil Services of the Union shall be Classified as follows
:-
(i) Central Civil Services, Group 'A';
(ii) Central Civil Services, Group 'B';
(iii) Central Civil Services, Group 'C';
(iv) Central Civil Services, Group 'D';
(2) If a Service consists of more than one grade, different
grades of such Service may be included in different groups.
6. Classification of Posts
Civil Posts under the Union other than those ordinarily held by
persons to whom these rules do not apply, shall, by a general or
special order of the President, be Classified as follows :-
(i) Central Civil Posts, Group ‘A’;
(ii) Central Civil Posts, Group ‘B’;
(iii) Central Civil Posts, Group ‘C’;
(iv) Central Civil Posts, Group ‘D’;
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7. General Central Service
Central Civil posts of any Group not included in any other Central
Civil Service shall be deemed to be included in the General Central
Service of the corresponding Group and a Government servant
appointed to any such post shall be deemed to be a member of that
Service unless he is already a member of any other Central Civil
Service of the same Group.
8. Appointments to Group ‘A’ Services and Posts
All appointments to Central Civil Services, Group ‘A’ and Central
Civil Posts, Group ‘A’, shall be made by the President :
Provided that the President may, by a general or a special order
and subject to such conditions as he may specify in such order,
delegate to any other authority the power to make such
appointments.”
From the perusal of above quoted Rules, it is evident that there are
three sets of services i.e. Central Civil Services, Central Civil Posts and General
Central Services. All the services are further classified into four Groups i.e.
Group ‘A’ ‘B’ ‘C’ and ‘D’. The appointment to Group ‘A’ service is made by
President of India. There is no classification as ‘organised’ and ‘unorganised’
service. In the case in hand, the appointment of petitioner as ALA/ DLA was
made by President of India. Post of ALA/DLA is a Group ‘A’ General Central
Service. The said service cannot be called as ‘unorganised’ service.
26. In the wake of above discussion and findings as well as Supreme
Court judgment in Mizoram Engineering Service Association (supra), this
Court is of the considered opinion that the service of petitioner rendered with
Directorate of Enforcement falls within expression ‘organized service’.
Accordingly, the service rendered by petitioner as Member CAT needs to be
counted in the service rendered with Enforcement Directorate for the purpose of
pension, provident fund and gratuity.
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27. The petitioner is not receiving pension from his parent department
i.e. Enforcement Directorate, thus, respondent has no authority to retain part of
his salary on the ground that he is getting pension from his parent department.
The respondents are hereby directed to release full salary of the petitioner. The
salary already retained shall be released within 2 months alongwith interest @
6% per annum.
28. In the backdrop, it is hereby held:-
(i) Second proviso to Section 10 of Administrative Tribunal Act,
1985 does not override provisions of Tribunal Reforms Act, 2021 and Rules
made thereunder:
(ii) Expression ‘Organized Service’ used in Rule 13 of TR, 2021
includes service rendered by petitioner with CBI & ED.
(iii) Petitioner is not getting pension from ED, thus, respondent is
bound to release salary without deduction.
29. Allowed in above terms.
28.02.2025 (JAGMOHAN BANSAL)
shivani JUDGE
Whether reasoned/speaking Yes
Whether reportable Yes
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