Bindu Sehgal vs Union Of India & Ors

in the Border Road Development Board, under the

Department of Surface Transport, Ministry of Transport, the

appellant was selected and appointed against the said post

in September, 1986, and confirmed against the same w.e.f.

23rd October, 1988. The appellant's case is that persons

similarly situated and possessing similar educational

qualifications as the appellant who had been recruited

through the U.P.S.C. in the year 1986 and allocated to

Central Secretariat Official Language Service had been

promoted as Senior Hindi Officers/Varisth Hindi Adhikharis

after putting in a service of just about 8 years. Some of

them had even been promoted to the post of Joint Director

while the appellant continued to stagnate as a Hindi Officer

in her department. A representation made by the appellant

for grant of promotion appears to have been considered in

consultation with the Ministry of Defence (Finance), but the 3

appellant was advised to await the recommendations of the

Fifth Central Pay Commission. A work study was also

ordered although no such study, according to the appellant,

was conducted.

3. The appellant's further case is that even when the

Parliamentary Committee on Official language and the

Central Hindi Implementation Committee headed by the

Prime Minister have time and again recommended that a

separate cadre be formed for providing promotional avenues

to Hindi Officers working in subordinate offices in various

Ministries and undertakings and although the said

recommendations were accepted with the modification that

cadres be formed wherever the same were feasible yet the

same were ignored by the Border Road Organization, who

remained content with the introduction of what is known as

ACP Scheme. The scheme, according to the appellant,

envisages two financial upgradations the first falling due

after completion of 12 and the second after 24 years of

regular service in cases of acute stagnation. It is not in 4

dispute that the scheme was made applicable in the case of

directly recruited "B" Group Hindi Officers also.

4. Pursuant to the introduction of the scheme

aforementioned, the appellant submitted three

representations seeking financial upgradation to the pay

scale of Rs.10000-15200 in terms of the existing hierarchy

prevailing in the Ministry of Defence and in the Department

of Official Language (Ministry of Home Affairs). These

representations were considered but instead of granting,

what according to the appellant was legitimately due to her

under the scheme, she was given the pay scale of Rs.8000-

13500 admissible to those working as Assistant Executive

Engineers in the BRO.

5. Aggrieved by denial of the higher grade of Rs.10000-

15200 being enjoyed by similarly situated Hindi Officers

working in other Departments, the appellant approached the

High Court for redressal of her grievance, which writ petition

has been dismissed holding that the grant of higher pay 5

scale of Rs.10000-15200 claimed by the appellant was likely

to create anomalies in the departmental hierarchy. The High

Court was also of the view that the appellant was not

entitled to the scale of pay admissible to senior officers of

any particular Ministry or Department as that was not the

intent and object of the ACP Scheme. She could not,

observed the High Court, be allowed to steal a march over

persons placed in analogous pay scales in her department.

6. Appearing for the appellant Mrs. Shally Bhasin

Maheshwari, strenuously argued that the High Court had

failed to correctly appreciate the points urged on behalf of

the appellant and the basis of her grievances. She drew our

attention to the scheme and the clarifications issued in

regard to the same, to buttress her argument that the

scheme was intended to give relief against continued

stagnation on account of the absence of promotional

avenues to the employees serving in different cadres. She

also placed reliance upon the orders granting financial up-

gradation to officers serving in other Departments and 6

Ministries who are similarly situated and who possess similar

qualifications as the appellant. Denial of a similar benefit to

the appellant in the light of the said orders argued the

learned counsel, was unfair and unjustified.

7. Mr. Ashok Bhan, learned counsel appearing for the

respondents, on the other hand, contended that the post

held by the appellant was an isolated post to which the

financial up-gradation under the scheme was not applicable.

Alternatively, he contended that the High Court was justified

in declining the upgradation claimed by the appellant on the

analogy of similar upgradation granted to other officers

working in other departments as any such upgradation to

the appellant would result in an anomalous situation in as

much as the appellant would then draw a higher salary than

those serving in the Engineering Department of the BRO. He

further argued that the appellant was not entitled to the

benefit claimed by her as she had been granted the benefit

of previous service as an L.D.C. apart from two promotions

in that cadre.

7

8. We have given our careful consideration to the

submissions made and perused the record. The order passed

by the High Court does not, in our opinion, satisfactorily deal

with the following among other questions that arose for

consideration in the writ petition filed by the appellant:

1. Was the appellant directly recruited against the post of

Hindi Officer? If so, could she be denied the benefit of

the Assured Career Progression Scheme on account of the

fact that she had, before her recruitment, held the post of

a Lower Division Clerk and had been given two

promotions or on account of the fact that she had been

granted the benefit of her past service.

2. In case the benefit of Assured Career Progression Scheme

could not be denied to the appellant for the reasons

indicated in (1) above, was the post held by the appellant

an isolated post within the meaning of the Assured Career

Progression Scheme?

8

3. If the answer to (2) above be in affirmative whether the

appellant would be entitled to the benefit of the Assured

Career Progression Scheme. If so, to what effect?

4. Whether persons similarly situated as the appellant and

holding analogous posts in other Departments were

enjoying higher pay-scales. If so, whether the appellant

could claim financial upgradation under the Assured

Career Progression Scheme by reference to the said

higher pay-scales?

5. Whether any analogous grades were available in the

Border Road Organization, and in particular whether the

post of Assistant Executive Engineer in the said

Organization could be said to be analogous to the post

held by the appellant?

9. Answer to the above questions holds the key to the

grant or refusal of the relief claimed by the appellant in the

writ petition filed by her. Since, we do not have the

advantage of the opinion of the High Court on the above

questions we consider it unnecessary to examine or answer 9

the same in the present appeal. The proper course, in our

opinion, is to remit the matter back to the High Court for

proper determination of the matters in controversy afresh.

10. In the result we allow this appeal, set aside the order

under challenge and remit the matter back to the High Court

for a fresh disposal in accordance with law keeping in view

the observations made above. The matter being fairly old,

we request the High Court to dispose of the same as early

as may be practicable. No costs.

.......................................J. (MARKANDEY KATJU)

.......................................J. (T.S. THAKUR) New Delhi April 8, 2010 1