R.D. Kaushal vs Union Of India

CIVIL APPEAL NO. 6573 OF 2022 [Arising out of Special Leave Petition (Civil) No.27130 of 2012]

R.D. KAUSHAL AND ORS. ...APPELLANT(S)

VERSUS UNION OF INDIA AND ORS. ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. This appeal challenges the judgment and order dated 18 th

April, 2012 passed by the High Court of Judicature at Delhi, in

Writ Petition (Civil) No. 8503/2010, thereby setting aside the

judgment dated 7th July, 2010 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi

1 (hereinafter referred to as “the learned CAT”) in Original

Application No. 3663/2009.

3. The facts leading to the present appeal are thus:

3.1 Prior to the coming of force of the 5 th Central Pay

Commission, there existed two distinct posts in the Language

Cadre of the Research and Analysis Wing, Cabinet Secretariat,

Government of India – the Group ‘B’ post of Assistant Foreign

Language Examiner (hereinafter, AFLE) and the Group ‘A’ post

of the Deputy Foreign Language Examiner (hereinafter, DFLE).

Pursuant to the recommendations of the 5 th Central Pay

Commission, in January 1999, the pay­scale of AFLEs was

revised retrospectively from 1 st January, 1996 to bring it at par

with the DFLEs. Thereafter, in September, 1999, the Cabinet

Secretariat ordered for the post of AFLE to be reclassified as a

Group ‘A’ post. For both these cadres, the next level of

promotion was to the post of Under Secretary (Language).

3.2 In 2001, the Research and Analysis Wing (Recruitment,

Cadre and Service) Rules, 1975 (hereinafter, the Recruitment

2 Rules) were amended to equalize the required residency period

for promotion to the post of Under Secretary (Language) to 5

years for both posts. Additionally, the quota for promotion from

the AFLE stream and DFLE stream was amended to make it

60:40 from the earlier quota of 50:50. The Recruitment Rules

also provided for the diversion of seats from one quota to the

other on account of non­availability of eligible candidates for

promotion from that quota.

3.3 The appellants herein joined the service as Interpreters

between April, 1985 and September, 1990, and were promoted

as AFLEs between March, 1995 and September, 1998. DFLEs,

however, were first recruited only in the year 1999. In 2002, on

account of vacancies that arose in the Under Secretary

(Language) cadre due to the non­eligibility of DFLEs who had

yet to complete the 5 year residency requirement, the

Department of Personnel & Training (hereinafter, the DoPT), on

a proposal sent by the Cabinet Secretariat to divert the

vacancies to the candidates from the AFLE quota,

3 recommended for both the posts to be merged since they were

identical in terms of the nature of their functions and duties,

their salaries as well as their promotional avenues. This

recommendation remained in cold storage until finally, vide

Notification dated 13th March, 2008, the posts of AFLE and

DFLE were merged and re­designated as Senior Interpreter.

However, a footnote was added therein to the effect that the

merger would be effected in a manner that would not have any

adverse impact on the career prospects of the direct recruits,

i.e., the DFLEs, who would continue to maintain their distinct

identity till their promotion to the post of Under Secretary

(Language).

3.4 In the meanwhile, the vacancies that had arisen in the

post of Under Secretary (Language) were the subject matter of

litigation before the learned CAT. The learned CAT, vide order

dated 26th May, 2008, observed that the distinction between the

AFLEs and DFLEs had been removed with effect from 1 st

January, 1996, i.e., the date from which the recommendations

4 of the 5th Central Pay Commission were implemented. Vide the

said order, directions were given to the Cabinet Secretariat and

the DoPT to reconsider the aspect of the merger of AFLEs and

DFLEs and the consequences thereof within a period of three

months from the date of the order. Promotions to the post of

Under Secretary (Language) were also put on hold until such

reconsideration.

3.5 In pursuance of the aforesaid direction, the Cabinet

Secretariat, through the Joint Secretary (Personnel) issued an

Order dated 2nd September, 2008, wherein it was held that the

distinction between the AFLEs and the DFLEs remained up till

the official merger on 13th March, 2008, and thus, no

amalgamation of the two cadres had taken place by virtue of

the operationalization of the recommendations of the 5 th Central

Pay Commission.

3.6 Aggrieved by this order, one Vinod Kumar Jain, an AFLE,

filed a contempt petition before the learned CAT, which, vide

order dated 19th November, 2008, observed that the direction

5 issued by the learned CAT in the order dated 26 th May, 2008

had not been challenged and had therefore attained finality.

Another opportunity was granted to the Cabinet Secretariat to

pass a fresh order taking into account the observations made in

the order dated 26th May, 2008.

3.7 Thereafter, the appellant nos. 1 and 2, filed O.A. No. 3663

of 2009 before the learned CAT along with three other AFLEs,

challenging both the footnote in the Notification dated 13th

March, 2008 as well as the order dated 2 nd September, 2008.

The learned CAT allowed the original application vide order

dated 7th July, 2010, thereby quashing and setting aside the

order dated 2nd September, 2008, with a further direction to

pass, within two months, a speaking order strictly in

accordance with the observations of the learned CAT in its

order dated 26th May, 2008.

3.8 Aggrieved thereby, the Union of India preferred a writ

petition before the High Court, in W.P. (C) No. 8503 of 2010,

which was allowed by the High Court vide the impugned

6 judgment dated 18th April, 2012, thereby setting aside the

learned CAT’s order dated 7th July, 2010. Being aggrieved

thereby, the appellants have approached this Court.

4. We have heard Mr. Rohit Sharma, learned counsel

appearing on behalf of the appellants and Mr. Vikramjit

Banerjee, learned Additional Solicitor General (“ASG” for short)

appearing on behalf of the respondents.

5. Mr. Rohit Sharma, learned counsel, submitted that the

High Court could not have reopened the learned CAT’s

judgment and order dated 26th May 2008. He submitted that

the issue of merger also stood finally decided by the learned

CAT vide the same order, which was never challenged by any

party and had thus attained finality.

6. Mr. Sharma further submitted that the order of the

Cabinet Secretariat dated 2nd September, 2008 was totally

contrary to the directions issued by the learned CAT dated 26 th

May 2008, which was not permissible in law. By order dated

7th July 2010 passed by the learned CAT, which was impugned

7 before the High Court, the learned CAT had only directed for

the implementation of the order dated 26 th May 2008. As such,

there was no occasion for the High Court to interfere with the

same.

7. On merits, Mr. Sharma submitted that both AFLEs and

DFLEs performed the same responsibilities, carried the same

pay and were classified as Group A and both also had the same

residency period for promotion to the post of Under Secretary

(Language). He submits that once the AFLEs and DFLEs were

merged into the same cadre, a further classification on the

basis of their birthmarks was not permissible in law. He relies

on the judgment of this Court in the case of B. Manmad

Reddy and others vs. Chandra Prakash Reddy and others1

in support of his submission.

8. Shri Vikramjit Banerjee, learned ASG, submitted that the

learned CAT had erred in giving retrospective effect to the

Notification dated 13th March 2008. He submits that it has been

1 (2010) 3 SCC 314

8 specifically provided by the footnote in the said Notification that

on the merger of AFLEs and DFLEs and their redesignation as

Senior Interpreter, the same would not have any adverse

impact on the career prospects of the existing direct recruits in

the grade of DFLEs.

9. We find that, in the peculiar facts and circumstances of

the present case, it is not necessary to go into the question of

law as raised by the parties, since all the appellants have

superannuated.

10. The issue involved now is only restricted to the terminal

benefits and pension payable in respect of the appellants

herein, who are only three in number.

11. Mr. Sharma, learned counsel, fairly states that the

appellants are willing to give up their claim for arrears and that

they would restrict their claim in the present appeal only

insofar as the terminal benefits and pension as payable to them

are concerned.

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12. In that view of the matter, we are inclined to dispose of the

present appeal with a direction to the respondents to calculate

terminal benefits as are payable to the appellants on the basis

of the orders passed by the learned CAT dated 26 th May 2008

and 7th July, 2010. We are inclined to do so specifically in view

of the fact that the order of the learned CAT dated 26 th May

2008 was not challenged by the respondent­Union of India and

has, therefore, attained finality. The pension as calculated in

view of the aforesaid directions would be paid to the appellants

with effect from 1st January 2023. The terminal benefits,

which the appellants are entitled to, would be cleared on or

prior to 31st December, 2022. In the facts and circumstances of

the case, the appellants would not be entitled for arrears of

pension from the date of their superannuation till 31 st

December, 2022. However, they will be entitled to interest at

the rate of 6% per annum on the terminal benefits payable to

them from the date of their superannuation till the date of

actual payment.

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13. The appeal is disposed of in the above terms. Pending

applications, if any, stand disposed of. However, there shall be

no order as to costs.

…….........................J. [B.R. GAVAI]

………………….…….........................J. [PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

SEPTEMBER 14, 2022.

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