Union Of India vs Sukesh Kumar Nayak

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 231 OF 2005

UNION OF INDIA Appellant(s) :VERSUS: SURESH KUMAR NAYAK Respondent(s)

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment

and order dated 6.11.2003 passed by the High Court

of Delhi in Civil Writ No.3000 of 2003. Brief facts

which are necessary to dispose of this appeal are

recapitulated as under:

2. The Directorate General of Security (for short

'DGS') under Cabinet Secretariat had four units.

(1) (2) (3) (4) Special Aviation Special Chief Service Research Frontier Force Inspectorate Bureau Centre (ARC) (SFF) of Armament (SSB) (CIOA) 2

These four units had a common and combined DGS

(Secretarial) Service with inter-se seniority and

the inter unit transfer liability having 4 cadres:

1) Secretarial

2) Ministerial

3) Accounts

4) Stenographers

3. The respondent was directly recruited as

Assistant in the year 1995 in the Special Service

Bureau. In 1996, he requested for his transfer to

another unit Aviation Research Centre but he could

not be transferred for administrative reasons.

4. It may be pertinent to mention here that the

Union of India took a policy decision in January,

2001, to transfer the administrative control of the

Special Service Bureau and the Chief Inspectors of

Armaments from the Cabinet Secretariat to the

Ministry of Home Affairs vide Cabinet Secretariat

Order No.1/2/2001-EA-1 dated 15.1.2001 and merged

the ministerial staff of the Chief Inspectorate of

Armaments with that of Special Service Bureau. As a

consequence of transfer of Special Service Bureau 3

and the Chief Inspectorate of Armaments, two units

of the Cabinet Secretariat were transferred to the

Ministry of Home Affairs, vide Cabinet Secretariat

Order NO.I/2/201-EA-1-3483-A, dated 23.08.2001.

5. The office of Directorate General of Security

(Secretarial) Service was trifurcated into:

(i) Special Service Bureau (including Chief

Inspectorate of Armaments) (Secretarial)

Service;

(ii) Aviation Research Centre (Secretarial)

Service; and

(iii) Special Frontier Force (Secretarial)

Service.

6. The Secretarial/Ministerial Staff of the

Directorate General of Security (Secretarial)

Service was apportioned on "AS IS WHERE IS" basis

with the approval of the Directorate General of

Security (Secretarial), Home Secretary and the

Cabinet Secretary and the incumbents of the

appointed posts were made to continue in their

respective units on "AS IS WHERE IS" basis at the

time of trifurcation on 23.1.2001.

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7. The respondent challenged the validity of the

Cabinet Secretariat Order dated 23.8.2001 and the

Special Service Bureau Directorate's order dated

21.12.2001 containing the trifurcation orders of the

Directorate General of Security (Secretarial)

Service before the Central Administrative Tribunal,

Principal Bench, New Delhi.

8. The order was assailed on the ground that the

said orders did not provide opportunity to the staff

of the erstwhile Directorate General of Security

(Secretarial) Service to exercise option for

choosing an organisation of their choice out of the

three organisations.

9. According to the respondent, allocating staff

to other units in the cadre on the basis of "AS IS

WHERE IS" is arbitrary and violative of Article 14

and 16 of the Constitution. The respondent prayed

that the aforesaid orders dated 23.08.2001 and

21.12.2001 be quashed.

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10. The respondent also prayed that the appellant

Union of India be directed to provide an opportunity

to the incumbents of the erstwhile Directorate

General of Security (Secretarial) Service to opt any

of these trifurcated services in a fair and just

manner.

11. The Central Administrative Tribunal

("Tribunal", for short) by its order dated

13.11.2002 allowed the original application filed by

the respondent and held that the order dated

9.9.1993 by which the joint cadre has been done away

with is clearly violative of the rights of the

respondent under Article 16 of the Constitution.

12. The Tribunal also observed that once a joint

cadre is created under the orders of a competent

authority, it can only be dismembered if the

fundamental rights of the public servants are not

infringed. The Tribunal further observed as under:

"In this case we find that earlier these were four units which were trifurcated in three units. One unit is under the Ministry of Home Affairs and the other two remain 6

under the Ministry of Communication. This fact does not affect the right of the applicant to seek allocation to a particular unit. The infringement of the fundamental right of the applicant would definitely affect this service conditions. Thus, we find that the impugned order cannot be sustained. While allocating the cadres we hope the direction of DOPT as followed in the case of Ministry of Communication, will be taken into consideration. The OA is allowed in the aforesaid terms. No costs."

13. The appellant Union of India aggrieved by the

order dated 13.11.2002 passed by the Tribunal, filed

a writ petition before the Division Bench of the

Delhi High Court. The Division Bench relied on the

Circular dated 18.5.1994 issued by the Ministry of

Personnel, Public Grievances and Pension when the

two separate cadres in the Ministry of

Communications were created and came to the

conclusion that an opportunity to exercise the

option had to be granted to the respondent. The writ

petition filed by the Union of India was dismissed

by the High Court by the impugned judgment. 7

14. The appellant aggrieved by the impugned

judgments of the Tribunal and Delhi High Court has

preferred this appeal on the following questions of

law:

(a) Whether the High Court is justified in

setting aside the policy decision of the Government

of India of trifurcation of the Directorate General

of Security (Secretarial) Service into three

organisations on the principle of "AS IS WHERE IS"

basis only on the ground that the said decision did

not provide opportunity to the staff of erstwhile

Directorate General of Security (Secretarial)

Service to exercise option for choosing an

organisation of their choice?

(b) Whether the High Court is right in relying

upon the circular issued by the Ministry of

Personnel, Public Grievances and Pension, in May,

1994 at the time of bifurcation of Ministry of

Communication, which provided for an opportunity to

the staff concerned to exercise option for choice

between the bifurcated cadres?

15. The appellant submitted that the circular of 8

1994 related to bifurcation of the Ministry of

Communication and in that case the resultant units

still remained part and parcel of the parent

Ministry i.e. Ministry of Communication even after

the bifurcation. While the organisation of the

Directorate General of Security (Secretarial)

Service trifurcated into three different and

independent departments under the Ministry of Home

Affairs under the Cabinet Secretariat.

16. It was also submitted that the object of

bifurcation in the case of former is the

classification of the two cadres on the basis of

different functions to be performed by them for

better command and control, whereas in the present

transfer case, the trifurcation was related as a

consequence of transfer of administrative control of

the Special Service Bureau to the Ministry of Home

Affairs from Cabinet Secretariat, in the interest of

national security i.e. to guard international border

all along Indo Nepal border.

17. Special Service Bureau, Aviation Research

Centre, Special Frontier Force and the Chief 9

Inspectorate of Armaments (CIOA) were four units of

the Directorate General of Security under the

Cabinet Secretariat. These four units had a common

and combined Directorate General of Security

(Secretarial) Service comprising of four cadres,

namely Secretarial, Ministerial, Accounts and

Stenographers Cadres with inter-se seniority and

inter unit transfer liability as notified under the

Recruitment Rules vide Cabinet Secretariat

Notification No.EA/SE-115/70 dated 04.11.1975.

18. According to the appellant, the policy

decision of the Government of India taken at the

highest level in the interest of national security

ought not to have been interfered with by which two

units, namely, Special Service Bureau and Chief

Inspectorate of Armaments were transferred from the

Cabinet Secretariat to the Ministry of Home Affairs.

On transfer, the entire staff of the Special Service

Bureau enblock was alsotransferred to the Ministry

of Home Affairs. When the entire unit was

transferred, there was no question of giving an

option to the respondent and similarly placed other

employees.

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19. In the impugned judgment, the High Court was

not justified in relying on the Circular issued by

the Ministry of Personnel and Public Grievances and

Pension on 18.5.1994. In the instant case, the

entire two units were shifted from the Cabinet

Secretariat to the Ministry of Home Affairs. It was

decided not to give individual option.

20. The Central Administrative Tribunal

erroneously held that the respondent's fundamental

rights were infringed and accordingly it quashed the

order dated 9.9.1993. In the impugned judgment the

High Court was not justified in affirming the

judgment of the Central Administrative Tribunal

because, in our considered view, there has been no

infringement of any fundamental right or any other

right of the respondent.

21. The respondent has claimed that his chances of

promotion have been reduced by transferring his unit

to the Ministry of Home Affairs. According to the

appellant, even this is not factually correct. The

appellant filed an additional affidavit before the 11

High Court in which it was mentioned that as per the

combined common seniority of Assistants in the

Directorate General of Secretarial Service, as it

stood on 23.8.2001 i.e. before trifurcation,

respondent Suresh Kumar Nayak was placed at Serial

No.116 out of 176 Assistants shown in the seniority

list, excluding the Assistants on deputation. After

trifurcation of the Directorate General of

Secretarial Service in 2001, taking his

continuation in the Special Service Bureau as

Assistant, his placing in the seniority list of the

said unit is at Serial No.65 out of 112 Assistants.

Similarly, he was allotted/ transferred to Aviation

Research Centre on trifurcation of Directorate

General of Secretarial Service and is borne on

Aviation Research Centre's strength and his placing

in the the seniority list would be at Srl. No.28,

out of 46 posts of Assistants allotted to the

Aviation Research Centre. Suresh Kumar Nayak,

Assistant was not interested to be transferred/

allocated to Special Frontier Force on trifurcation.

22. According to the learned counsel for the

appellant, if the chances of promotion are affected, 12

even then it would not be a case where the Court

would be justified in allowing the original

application on the ground of infringement of the

respondent's fundamental rights under Articles 14

and 16 of the Constitution.

23. Learned counsel for appellant placed reliance

on a judgment of this Court in S.P. Shivprasad Pipal

vs. Union of India and Ors., (1998) 4 SCC 598. In

this case, by notification dated 3.2.1987, the

Central Labour Service was created by merging the

following three cadres:

(a) Central Industrial Relations Machinery consisting of Assistant Labour Commissioner (Central), Regional Labour Commissioner (Central), Deputy Chief Labour Commissioner (Central, Joint Chief Labour Commissioner (Central) and Chief Labour Commissioner (Central).

(b) Labour officers (Central pool) consisting of Labour Officers and senior labour Officers.

(c) Labour Welfare Commissioners' cadre consisting of Assistant Welfare Commissioner and Welfare Commissioner.

24. This Court observed as under:

"A decision to merge such cadres is essentially a matter of policy. Since the 13

three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres."

25. This Court laid down that when different

cadres are merged, certain principles have to be

borne in mind. These principles were enunciated in

the case of State of Maharashtra and Anr. vs.

Chandrakant Anant Kulkarni and Ors., (1981) 4 SCC

130 and have been approved subsequently in the case

of S.P. Shivprasad Pipal (supra) and they are

reproduced as under:

(1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but

(2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:-

(a) Nature and duties of a post;

14 (b) Powers exercised by the officers holding a post the extent of territorial or other charge held or responsibilities discharged;

(c) The minimum qualifications, if any, prescribed for recruitment to the post and;

(d) the salary of the post.

26. In the Chandrakant Anant Kulkarni (supra) this

Court has laid down the principle that mere chances

of promotion are not conditions of service and the

fact that there was reduction in the chances of

promotion did not tantamount to a change in the

conditions of service. A right to be considered for

promotion is a term of service, but mere chances of

promotion are not.

27. In the instant case, even according to the

appellant, the chances of promotion have in fact

been increased.

28. Mr. K.L. Bhandula, learned counsel appearing

for the respondent has not been able to make out

that his case falls in any of the four criteria 15

which have been laid down in the case of Shivprasad

Pipal (supra).

29. In this view of the matter, we are constrained

to set aside the impugned judgment dated 13.11.2002

of the Tribunal as well as the judgment dated

6.11.2003 passed by the High Court of Delhi in Civil

Writ Petition No.3000/2003.

30. Consequently, this appeal is allowed. The

original application filed by the respondent stands

dismissed. In the facts and circumstances of the

case, we direct the parties to bear their own costs.

.....................J (DALVEER BHANDARI)

.....................J (H.L. GOKHALE)

New Delhi;

November 25, 2010.