19/1/2023 Pers Policy [Pay (Promotion)]

1/3026765/2023
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training

North Block, New Delhi
Dated June, 2023

To
Shri Ramsahay Vijay
Email: rsvijayvargia [at] gmail.com

Subject: Grant of notional increment to Govt servants superannuated on 30th June or 31st December -reg

Sir,

I am directed to refer to your email dated 06.06.2023 in the matter involving grant of notional increment to the Central Government employees who superannuated on 30th June or 31st December in light of the Order of Hon’ble Supreme Court dated 11.04.2023 in the case of KPTCL v/s C.P. Mundinmanian and dismissal of SLP No.4722/2021 filed by UOI in order dated 19.05.2023.

2. In this regard it is informed that action in light of the Order dated 11.04.2023 of the Hon’ble Supreme Court in CA No. 2471 of 2023 (@SLP(C) No. 6185/2020) – Director (Admn and HR) KPTCL & Ors. Vs C.P. Mundinamani & Ors. and dismissal of SLP No. 4722/2021 filed by Union of India vide order dated 19.05.2023 in the matter relating to grant of notional increment to the Government Servants who superannuated on 30th June or 31st December is presently under examination in consultation with D/o Expenditure. Further action, as may be required in this regard, will be taken on completion of the consultation process.

3. This issues with the approval of the Competent Authority.

Yours faithfully

(Shukdeo Sah)
Under Secretary to the Govt. of India

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To all PAOs for release of final pension and all pensionary benefits to retiring/retired government employees of AIR/DDn immediately

F. No: V-11013/07/2021 -BAE
GOVERNMENT OF INDIA
MINISTRY OF INFORMATION AND BROADCASTING

‘A’ Wing, Shastri Bhawan, New Delhi – 01
 Date: 06.10.2022

To
Chief Controller of Accounts,
Ministry of 1&B, Shastri Bhawan,
New Delhi -110001.

Subject: Hon’ble CAT, PB, New Delhi order dated 05.07.2022 in OA No 100/2691/2021 filed by Shri Bhanwar Lal Rawal & Ors Vs Uol before Hon’ble CAT, PB, New Delhi.

Sir,

In supersession of this Ministry’s letter no V-11013/07/2018 -BAE dated 18.08.2021, approval of the Competent Authority is hereby conveyed for implementation of Hon’ble CAT PB order dated 05.07.2022 in OA No 100/2691/2021 filed by Shri Bhanwar Lal Rawal & Ors. regarding grant of final pension with all pensionary benefits to the retiring/ retired government servants.

2. However, before releasing the final pension and all pensionary benefits to the retiring/retired government servants, an undertaking may be taken from them that if any excess payment is made to an individual, then the same shall be recovered from him or her after the disposal of the WP No 9890/2019 pending before the Hon’ble High Court or any other similar litigation.

3. In view of the above, CCA, MIB may issue necessary instructions to all PAOs for release of final pension and all pensionary benefits to retiring/retired government employees of AIR/DDn immediately.

4. This matter may be accorded “Top Priority”.

Yours faithfully,
Under Secretary to the Govt. of India

Hon’ble CAT, PB, New Delhi order dated 05.07.2022 in OA No 100/2691/2021 filed by Shri Bhanwar Lal Rawal & Ors Vs Uol before Hon’ble CAT, PB, New Delhi PDF

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CPSEs – IDA pay pattern

No. W-05/0021/2020 -DPE(WC)
Government of India
Ministry of Heavy Industries & Public Enterprises
Department of Public Enterprises

Public Enterprises Bhawan,
Block No.14, CGO Complex,
Lodhi Road, New Delhi-110003.
Dated, the 08th January, 2021

OFFICE MEMORANDUM

Subject:- WP No. 5394/2020 – National Confederation of Officers Associations (petitioner) Vs. Union of India & Anr. before the Hon’ble High Court of Gauhati reg.

The undersigned is directed to refer to DPE’s OM No. W-02/0039/2017- DPE (WC) dated 19.11.2020 regarding freezing of Industrial Dearness Allowance w.e.f. 01.10.2020 in respect of Executives and Non-Unionised Supervisors of CPSEs following IDA pay pattern.

2. As no CPSE is under the administrative control of this Department, a copy of the Order dated 04.01.2021 of Hon’ble High Court of Gauhati at Gauhati , with respect to interim relief is enclosed for compliance.

3. This issues with the approval of the competent authority.

(Samsul Haque)
Under Secretary

Encl: As Above

To

All administrative Ministries/ Departments of the Government of India.

Freezing of DA of CPSEs employees drawing pay as per IDA pay revision – High Court Ernakulam Judgement 17.12.2020

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/5394/2020

NATIONAL CONFEDERATION OF OFFICERS ASSOCIATIONS
HAVING PPS REGISTERED OFFICE AT 19. SAKET CO-OP. HOUSING
SOCIETY. PANVED. RALGAD. MALLARASIEPR A AND REP. BY [TS
AUTHORIZED SIGNATORY SRIEISLAMUL ELLAQUE MANDAL. SON OF
SAKER UDDIN MANDAL. AGE- 57 YEARS. RESIDENT OF HOUSE NO. 8,
MIRZA GALIB PATH. SUUBARL P.O. AND PS. HATIGAON. GUWAHATI.
DIST.- KAMRUP(M), ASSAM, PIN- 781038.

VERSUS

THE UNION OF INDIA AND ANR.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HEAVY
INDUSTRIES AND PUBLIC ENTERPRISES, GOVT. OF INDIA, NEW DELHI-110003.

2: THE DIRECTOR
DEPARTMENT OF PUBLIC ENTERPRISE
GOVT. OF INDIA
PUBLIC ENTERPRISE BILAWAN
BLOCK NO. I4
CGO COMPLEX –
LODHI ROAD
NEW DELHI- 110003

Advocate for the Petitioner => MRSS DEY

Advocate for the Respondent : ASST US.G.L.

BEFORE

HONOURABLE MR. JUSTICE SUMAN SHYAM

ORDER

Date: 04/01/2021

Heard Mr. M. Nath, learned counsel appearing for the writ petitioner.

Assailing the office memorandum dated 19/11/2020 issued by the respondent no.2, suspending payment of Dearness Allowance for the periods mentioned therein, the present petition has been filed.

Mr. Nath submits that his clients are entitled to Performance Related Pay (PRP). Therefore, the impugned order is wholly arbitrary and illegal. That apart, by referring to the order dated 26/11/2020 (Annexure-7A), Mr. Nath submits that there is a move afoot to make recovery from the members of the petitioner association on the strength of the impugned notification dated 19/11/2020.

Mr. C.K.S. Baruah, learned CGC, appearing for the respondents has obtained instruction and submits that there is a policy decision of the Government of India preceeding the impugned notification. The learned CGC has, however, denied that there is a proposal for recovery from the employees.

Having heard the submission of learned counsel for both the parties, I am of the view that this matter would call for further examination.

Issue notice of motion returnable in six weeks.

Since the respondents are already represented by Mr. Baruah, no formal notice is required to be sent in this case. However, extra copies of the writ petition, requisite in numbers, be furnished to the learned departmental counsel within three days, so as to enable him to obtain instruction and file affidavit.

Heard on the prayer of interim relief.

The said prayer will be considered after the affidavits are brought on record. However, as a ad-interim measure, it is hereby provided that no recovery shall be made by the respondent no. 2 from the members of the petitioner association until the returnable date.

List this case again after six weeks…

JUDGE
Sukhamay
Comparing Assistant

Download PDF

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PREMATURE RETIREMENT

BY Speed Post.

No SG/BPS/notional/ 2020/5

Date: 16.10.2020

To
Dr. C. Chandramouli,
IAS

Secretary,
Department of Personnel and Training, North Block,
New Delhi – 110001

Subject: Contempt of Court.

Sir,

Since the year 1922 onwards FR 56 read with Article 14 of Civil Service Regulations provided that the date of retirement had to be the relevant date of birth on completion of the age of retirement on superannuation. In other words the date of (i) attaining the age of superannuation, (ii) retirement and (iii) commencement of pension used to be the same. This was the Rule governing retirement on superannuation prior to 3rd CPC.

Check: Premature retirement of central government employees before the date of superannuation

2 a) Subsequently 3rd CPC recommendation was accepted by the Government of India Based on the accepted recommendation, the then Department ofAdministrative Reforms (now DOPT),issued orders on the 24th November, 1973 laying down that the Government servants shall retire from service with effect from the afternoon of the last day of the month in which their date of retirement fell.

2 b) Clarificatory OM dated 29th June, 1974 was issued without the approval of the concerned State Minister, that all those born on the 1st would retire in the afternoon of the last day of the previous month.Accordingly FR56(a) created.

3. Consequently, those born on the 1st Jan, 1928/1938/1946/1956, were deprived of the benefits of the 4th/ 5th/6th/7th CPC respectively. However, those who could knock the door of the court got favorable judgements.Annexure2 gives the details of court cases with positive outcome.

Latest in the series is the case of Union Of India vs M L. Punshi & Am; IN THE HIGH COURT OF DELHI AT NEW DELHI in WP (C) No. 288512000 on the 191hJuly, 2010. In this case the court did not agree with the contention of the Union of India and observed ” In short, we are of the view that in the present cases the effective date of retirement would be 01.04.1995 and not 31.03.1995.” SLP filed by the Government against order of the High Court was dismissed by the Supreme Court.

Also check: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

4. In the case of lnder Pal Yadav Vs Union of lndia [ l985(2) SCC 648), in SLP-IA No. 77457/2017 dated 01.09.2017, in the Civil Appeal No. 3744 of 2016 UOI Vs Balbir Singh Tur & Anr dated 08.12.2017 and UOI VS Prithvi singh dated 24.4.2018 the Hon’ble Supreme Court observed that ” We find that there are several matters in which the aggrieved employees have been going to the Tribunal, then to the High Court and thereafter those matters are brought before this Court. Once the question, in principle, has been settled, it is only appropriate on the part of the Government of India to issue a circular so that people need not unnecessarily travel either to the Tribunal or the High Court or this Court and it will save the time of the Court and the Administrative Departments apart from avoiding unnecessary and avoidable expenditure”.

Also check: Retirement guide for a central government employees

5. The DOPT, has not so far honoured the supreme court pronouncement referred to above , consequently it has rendered itself liable to be taken-up for contempt of the court, as well as for putting lot of retirees(Sr Citizens) to financial loss. DOPT, contrary to the observation of the Supreme Court is forcing Pensioners who are in the evening of their lives to knock the doors of CAT, High court/Supreme court. Presently quite a number of cases filed by pensioners born on the 1st January,/ 30th of June are pending in the courts.

6. Kindly look into and ensure that the pronouncement of the Supreme court as brought out in foregoing line is implemented in letter & spirit so that that thousands of aggrieved who do not have means to approach the courts are not deprived of their legitimate dues.

Also check: Important Supreme court Judgement – MACP should be given effect from 01.01.2016

7. A detailed background note is annexed.

With regards
Yours truly,

DA/2.Annexures

S. C Maheshwari
Secy Genl. Bharat Pensioners Samaj
Mobile No 9868488199
Email id: bharatpensioner @gmail.com

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Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training

North Block, New Delhi
Dated; 30th September, 2020

OFFICE MEMORANDUM

Sub: Cases pending or decided by Hon’ble High Courts/ Tribunals regarding preponement of effective date of Modified Assured Career Progression (MACP) Scheme – reg.

The undersigned is directed to say that the matter relating to grant of benefits w.e.f. 01.01.2006 instead of w.e.f. 01.09.2008 under the MACP Scheme to civilian Central Government employees is presently sub-judice before the Hon’ble Supreme Court of India in a number of cases tagged with SLP Nos. 10811-10813/2018 in the matter of Union of India Vs. Shri Ranjit Samuel, and that all similar matters are being heard together by the Hon’ble Apex Court.

Also check: Delhi High Court Order – MACP is effective from 1.1.2006 as per 6th Pay Commission recommendation, as it forms part of Pay and NOT allowances

2. A large number of references are being received in this Department based on orders of the Hon’ble Tribunals (CAT Benches) and Hon’ble High Courts seeking advice on implementation of such orders allowing grant of benefits under the MACP Scheme from 1.1.2006, as against 1.9.2008, the date provided in the MACP Scheme.

3, Since such orders of Hon’ble Tribunals /High Courts are at variance with the extant MACPS guidelines and for the fact that the primary issue of date of effect of MACPS is sub judice before the Hon’ble Supreme Court of India, this Department is constrained to advise various Ministries/ Departments to either seek review or agitate the matter in higher courts, by challenging such orders.

Also check: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

4, Accordingly, Ministries /Departments are, therefore, advised to defend such cases or challenge the orders (where decision has been taken by the Hon’ble Tribunal/High Court) contrary to MACPS guidelines, by bringing the fact that the issue is pending before the Hon’ble Supreme Court of India, to the notice of Hon’ble Tribunals/High Courts.

(Rajesh Sharma)
Under Secretary to the Government of India

Also read: Important Supreme court Judgement – MACP should be given effect from 01.01.2016

The post Benefits under the MACP Scheme from 1.1.2006, as against 1.9.2008, the date provided in the MACP Scheme – Cases pending in High Courts appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

1. Nodal Departments/Ministries for the Development of SCs and STs

1.1 Reservation in Services and Posts: Department of Personnel & Training is responsible for implementation of policies of reservation in services and posts under the Central Government for Scheduled Castes, Scheduled Tribes, Other Backward Classes, Economically Weaker Sections and Persons with Disabilities (PwDs).

1.2 Social, Educational and Economic Empowerment: Department of Social Justice and Empowerment, Ministry of Social Justice and Empowerment is the nodal Department for the overall policy, planning and coordination of programmes including special schemes aimed at social, educational and economic empowerment of SCs e.g. scholarships, hostels, residential schools, skill training, concessional loans and subsidy for self-employment, etc.

1.3 Ministry of Tribal Affairs: Ministry of Tribal Affairs is the nodal Department for the overall policy, planning and coordination of programmes including special schemes aimed at social, educational and economic empowerment of STs e.g. scholarships, hostels, skill training, concessional loans and subsidy for self-employment, etc.

1.4 Department of Disability Affairs: Department of Disability Affairs is the nodal Department for the overall policy, planning and coordination of programmes including special schemes aimed at social & economic empowerment and welfare of Persons with Disabilities.

2. Constitutional and Legal Provisions on Reservation in Services and Posts

Objective of providing reservations to the Scheduled Castes(SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) in services is not only to give jobs to few persons belonging to these communities, but also aims at empowering them and ensuring their participation in the decision making process of the State. The Constitution has, therefore, made provisions for providing equality of opportunity to them in the matter of public employment. Clauses (4) and (4A) of Article 16 of the Constitution provide for reservation in appointments to posts and services in favour of backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

3. Implementation of Post based Roster in reference of the Supreme Court judgment in the case of R. K. Sabharwal Vs. State of Punjab

Reservation till 01.07.1997 was computed on the basis of number of vacancies to be filled. The Supreme Court in the case, titled R. K. Sabharwal Vs. State of Punjab, held that the reservation should be determined on the basis of number of posts in the cadre and not on the basis of vacancies. Accordingly, post based reservation was introduced w.e.f. 02.07.1997. The basic principle of post based reservation is that the number of posts filled by reservation for any category in a cadre should be equal to the quota prescribed for that category. Prior to introduction of post based reservation, there was a provision of exchange of reserved posts between SCs and STs. After implementation of the post based reservation such exchange is no more permissible.

Also check: Facility for Central Government Civil pensioners to store Electronic PPO in Digi Locker

4. Adequate reservation, not proportional representation- Extent of reservation as on date

A Nine judge Bench of the Hon’ble Supreme Court, in its judgment dated 16.11.1992 in the matter of ‘Indra Sawhney Vs. Union of India [WP(C) No. 930/1990]’, inter-alia, observed that clause (4) of Article 16 speaks of adequate representation and not of proportionate representation. The Apex Court has held that it is not possible to accept the theory of proportionate representation though the proportion of population of Backward Classes to the total population would certainly be relevant and held that the power conferred by clause (4) of article 16 should be exercised in a fair manner and within reasonable limits so that reservation does not exceed 50%. At present, reservation in case of direct recruitment on all India basis by open competition is 49.5% (i.e. 15% for SCs, 7.5% for STs and 27% for OBCs) and reservation in case of direct recruitment on all India basis otherwise than by open competition is 50% (i.e. 16.66% for SCs, 7.5% for STs and 25.84% for OBCs).

5. Reservation in promotion struck down in Indira Sawhney case – 77th (Seventy Seventh) Amendment

5.1. The Hon’ble Supreme Court, in the case of ‘Indra Sawhney vs. Union of India and Ors.’, inter-alia, held that reservation in promotion is ultra-virus, as much as, there is no provision in the Constitution to provide for reservation in promotions. However, it continued the provision of reservation in promotion to Scheduled Castes and Scheduled Tribes for five years from the pronouncement of the judgment i.e. upto 15.11.1997. Thus the reservation for Scheduled Castes and Scheduled Tribes after 15.11.1997 would have ceased to exist. In order to continue reservation in promotion beyond 15.11.1997, the 77th Amendment was made to incorporate clause (4A) in Article 16 of the Constitution. The Statement of Objects and Reasons appended to the Bill leading to the enactment of Constitution (Seventy Seventh Amendment) Act, 1995 stated that the object of the incorporation of Article 16 (4A) was to continue the then existing dispensation relating to reservation in promotion.

5.2. The 77th amendment inserted Article 16(4A) in the Constitution provides as under:

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

6. DoPT OM dated 13.08.1997

Accordingly, with Cabinet approval, the OM, dated 13.08.1997, was issued to convey the decision of the Government to continue the reservation in promotion for the SCs/STs in services/ posts under the Central Government beyond 15.11.1997, till such time the representation of each of the above two categories, in each cadre reaches the prescribed percentages whereafter the representation in promotion shall be continued to be maintained to the extent of the prescribed percentages for the respective categories.

7. Applicability at ‘Reservation in Promotions’

Reservation to the members of the Scheduled Castes and the Scheduled Tribes is provided in the matter of promotion when promotions are made:

(a) Through Limited Departmental Competitive Examination in Group B, Group C and Group D posts;

(b) By seniority cum fitness from Group B post to the lowest a Group A post or within Group B, Group C and Group D posts

However, reservation in promotion is not given in the grades in which the element of direct recruitment, if any, exceeds 75 per cent [36012/17/88- Estt.(SCT) dated 25/4/1989].

8. Backlog Vacancies to be treated as a separate class of vacancies – 81st (Eighty First) Amendment

8.1. Any vacancy/vacancies which was/were earmarked reserved in an earlier recruitment year but could not be filled in the previous attempt and remained vacant is/are treated as backlog reserved vacancy/vacancies in the subsequent recruitment year(s).

8.2. The Supreme Court, in the case of ‘Indira Sawhney Vs Union of India’, interalia held that the number of reserved vacancies in a year in any cadre, including backlog reserved vacancies, should not exceed 50 per cent of the total number of vacancies of the year.

8.3. In order to overcome the limitation imposed by the Judgement of the Supreme Court, the 81st (Eighty First ) Amendment was made to the Constitution, whereby Clause (4B) was incorporated in Article 16 of the Constitution.

Clause 16 (4B) reads as follows:-

“Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

8.3. After the above mentioned amendment to the Constitution, Department of Personnel & Training issued O.M. No. 36012/5/97-Estt (Res) Vol.II, dated 20.7.2000, laying down that the backlog reserved vacancies would be treated as a separate and distinct group and would not be considered together with the reserved vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. In other words, the ceiling of 50% on filling up of reserved vacancies would apply only on the reserved vacancies pertaining to that year in which the said vacancies arise and the backlog reserved vacancies of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling.

9. Vinod Kumar Vs Union of India and 82nd (Eighty Second) Amendment

The Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of relaxation in qualifying marks and standards of evaluation in the matters of reservation in promotion. The Supreme Court, in its judgment, dated 1-10-1996, in the case of ‘S. Vinod Kumar Vs. Union India’ held that such relaxations in matters of reservation in promotion were not permissible under article 16(4) of the Constitution in view of the command contained in article 335 of the Constitution. The Apex Court also held that the law on the subject of relaxations of qualifying marks and standards of evaluation, in matters of reservation in promotion, is the one laid down by the nine-judge Constitution Bench of the Supreme Court in the case of ‘Indira Sawhney and others Vs. Union of India’ and others. Para 831 of Indira Sawhney judgment also held that such relaxations, is not permissible under article 16(4) in view of the command contained in article 335 of the Constitution. In order to implement the judgments of the Supreme Court, such relaxations had to be withdrawn with effect from 22.07.1997. In view of the adverse impact of the order, dated 22.07.1997, on the interests of Scheduled Castes and Scheduled Tribes, the 82nd (Eighty Second) Amendment was made to the Constitution whereby in Article 335 of the Constitution, the following proviso was inserted:

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.

10. Virpal Singh Chauhan Vs. UOI and Ajit Singh Janjua Vs. State of Punjab – 85th (Eighty-Fifth) Amendment – Consequential Seniority.

10.1. The Hon’ble Supreme Court in the case of Indra Sawhney & Ors. Vs. Union of India & Ors, reported in 1992 Supp.(3) SCC 217, has held that Article 16(4) of the Constitution does not permit reservations in the matter of promotion. Thereafter, the Constitution (Seventy-Seventh) Act, 1995 came into force on 17.6.1995 (as explained in para 8 above). Later on, the Hon’ble Supreme Court in the cases of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., reported in (1995) 6 SCC 684, Ajit Singh Janjua & Ors, Vs. State of Punjab & Ors. (Ajit Singh-I), reported in (1996) 2 SCC 715 and & Ors. Vs. State of Punjab & Ors. (Ajit Singh-II), reported in (1999) 7 SCC 209, introduced the catch-up rule and did away with the principle of consequential seniority and held that when the senior general candidate is promoted, he will regain his seniority vis-a vis his junior reserved candidate, promoted to the higher post earlier than the general candidate as a result of reservation policy. It was also held that consequential seniority on promotion post is not covered by Article 16(4A).

10.2. The Government servants belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of consequential seniority on their promotion on the basis of rule of reservation. The above judgments of the Supreme Court would have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. In order to remove this inconsistency and to dilute & repeal the catch up principle, the Parliament of India, again amended the Constitution of India [85th (Eighty-Fifth) Amendment] whereby the term consequential seniority was added in Article 16(4A).

10.3. The amended Article 16 (4A) provides as under:-

Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

10.4. Apex Court judgment, dated 19.10.2006, on the legality off the above constitutional Amendment in the case of M.Nagaraj & Others Vs. Union of India & Ors.

The Apex Court ruled as follows:

“The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.

We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First  Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.

Reference is answered accordingly”.

11. Own Merit in reservation in promotion

11.1. The concept of ‘own merit’ was introduced, vide Department of Personnel and Training’s Office Memorandum No. 36028/17/2001-Estt (Res), dated 11.07.2002. The O.M dated 11.07.2002, inter- alia, provided that the SC/ST candidates appointed on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points. However, the said O.M did not clarify the following two points:

(i) The date of effect of the O.M No. 36028/17/2001-Estt (Res), dated 11.07.2002.

(ii) Whether the orders will apply in case of promotion made by non-selection method.

11.2. To clarify these above two points, an O.M No. 36028/17/2001-Estt (Res), dated 31.01.2005, was issued by the Department of Personnel and Training, which clarified that OM dated 11.07.2002 be applicable w.e.f. 11.07.2002. It also clarified that in case of promotions by non-selection, promotions are made on the basis of seniority-cum-fitness and the concept of own merit is not involved in such promotions.

11.3. The O.M. dated 31.01.2005 was challenged in the Hon’ble Central Administrative Tribunal, Madras Bench, in O.A No. 900/2005 [S.Kalugasalamoorthy vs Union of India & Ors]. The Hon’ble CAT quashed the O.M dated 31.01.2005, and held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against quota reserved for SCs does not arise. The Judgment of CAT, dated 14.9.2006, was challenged in the Hon’ble High Court of Madras which upheld the decision of the CAT Madras, vide judgment, dated 20.08.2009.

11.4. After consultation with D/o of Legal Affairs, the O.M No. 36012/45/2005-Estt (Res), dated 10.08.2010, was issued to withdraw the Office Memorandum No. 36028/17/2001-Estt(Res), dated 31.01.2005, and to, inter-alia, clarify that SC/ST candidates appointed by promotion on their own merit and seniority, and not owing to reservation or relaxation of qualifications, will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. It was also clarified that the OM dated 10.08.2010 will take effect from2.7.1997, the date on which post based reservation was introduced.

12. Punjab & High Court’s Decision on Own Merit in Jarnail Singh and Ors. Vs. Lachmi Chand Gupra & Ors.

12.1. The said O.M, dated 10.08.2010, was challenged in the Hon’ble High Court of Punjab & Haryana, in CWP No. 13218/2009 [Shri Lachhmi Narain Gupta & Ors Vs Jarnail Singh & Ors]. The Hon’ble High Court Punjab & Haryana, vide judgment, dated 15.07.2011, quashed the O.M dated 10.8.2010 stating as under:

“In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagaraj’s as well as in Suraj Bhan Meena’s case.”

12.2. Union of India through Department of Revenue has filed an SLP (C) No. 6915/2014 which has been clubbed with SLP(C) No. 30621/2011, filed by Shri Jarnail Singh in the matter. The Hon’ble Supreme Court, vide order, dated 03.02.2015, stated as under:

“…. Status quo existing as on today in respect of the promotional matters that are covered by the impugned judgment shall be maintained till thenext date of hearing”.

12.3. Subsequently, a Contempt petition was filed by the Samta Andolan Samiti alleging that DoPT and Ministry of Railways have reportedly implemented the provisions of OM, dated 10.08.2010, inspite of the abovesaid Interim Order dated 03.02.2015.

12.4. In order to preclude any interim order in the contempt case, the Ld. Solicitor General, in the hearing held in Supreme Court on 29.09.2016, has undertaken that till such time the main matter along with the Contempt Petition is decided, no further promotions of reserved category persons to unreserved posts will be made based on the DOPT O.M. dated 10.08.2010. Accordingly, instructions were issued by the Establishment (Reservation) Division to all departments, vide O.M.36012/11/2016-Estt.(Res.), dated 30.09.2016.

13. Delhi High Court Judgement dated 23.08.2017 on ‘Reservation in Promotion’

13.1. In WP(C) 3490/2010 & CM No. 6956/2010, filed by All India Equality Forum Vs Union of India, the Hon’ble High Court, Delhi vide para 15 of its judgment dated 23.08.2017, has held as under:-

“…The impugned OM No. 36012/18/95-Estt.(Res.) Pt. II dated 13.08.1997, issued by DOPT, is quashed and set aside. The respondents are restrained from granting any reservation, in promotion, to Scheduled Castes or Scheduled Tribes, in exercise of the power conferred by Article 16(4A) of the Constitution of India, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, of the said categories, in service, and evaluating the situation by taking into consideration the said data, along with the competing considerations of backwardness and overall efficiency in administration, and arriving at an empirical decision on the basis thereof.”

13.2 An SLP vide No. 31288/2017 has been filed by this Department against the judgment, dated 23.08.2017, of the Hon’ble Delhi High Court. This SLP has been tagged with the SLP No. 30621/2011 of Jarnail Singh.

13.3. Hon’ble Supreme Court, vide order, dated 14.11.2017, in CA No. 4562- 4564/2017, in the matter of the State of Tripura & Ors. Vs Jayanta Chakraborty & Ors and vide order, dated 15.11.2017 in SLP(C) No. 28306/2017 in the matter of the State of Maharashtra & Anr Vs Vijay Ghogre & Ors stated that the case of M. Nagaraj may be referred to larger Constitutional Bench to examine if the M. Nagaraj judgement needs reexamination.

14.1 In the mean time, promotion orders by many States were struck down by the Hon’ble Supreme Court, being non compliant with Nagaraj Judgement. Promotions were further withheld because of orders of the Hon’ble High Court of Delhi.

14.2 Hence, there was a big hue and cry. Promotions were withheld and People were retiring without getting benefit of promotion. As a result, an interim application was filed, requesting Supreme Court to allow holding of DPC and effect promotions. The Hon’ble Supreme Court, in the matter related to I.A. No. 25195/2018 in SLP (C) No. 30621/2011 (Jarnail Singh & Ors Vs Lachhmi Narain Gupta & Ors), on 17.05.2018 has passed the following Order:

“It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from ‘reserved to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merits. Post for further orders after summer vacation.”

15. In another interim Order, dated 05.06.2018, in SLP No. 31288/2017, the Hon’ble Supreme Court stated as follows:

“It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter. Tag to SLP (C) No. 30621/2011.”

16. Consequently, DoPT vide Office Memorandum No. 36012/11/2016- Estt.(ResI) {Pt-II}, dated 15.06.2018, issued instructions to all Ministries/Department to carry out promotions in accordance with the directions of the Hon’ble Supreme Court dated 17.05.2018, in the matter related to SLP (C) No. 30621/2011 and interim order dated 05.06.2018 in the matter related to SLP(C) No. 31288/2017.

17. Decision in Jarnail Singh Case – Whether it should be referred to Larger Bench

The Constitutional Bench on 26.09.2018, held that it is not required to be referred to Larger Bench and that the State is not required to collect quantifiable data on the backwardness of SCs/STs. However, it is required to collect data on the inadequacy of representation and to see that the efficiency is not affected. The major observations in the judgement are summarised below:-

(i) “……….. we have confined arguments on two points which requires serious consideration. The two points are (a) whether State has to collect quantifiable data as observed in Nagaraj judgment, which is contrary to nine-judge Bench in Indra Sawhney Vs Union of India and (b) whether creamy layer concept will be applicable in the case of SCs/STs.” (Para 3 of the judgment

(ii) “ …. When Nagaraj applied the creamy layer test to SCs and STs in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16 (4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revised…..”. (Para 17 of the judgment).

(iii) “….. Thus, we may make it clear that quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj on the inadequacy of representation, which can be tested by the Courts. We may further add that the data would be relatable to the concerned cadre. “ (Para 17 of the judgment)

(iv) “… According to us, Nagaraj has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a while is taken into account, to reduce the number of SCs and STs in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at evey time promotions are made. …. For this reason, we make it clear that Article 16 (4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question.” (Para 20 of the judgment)

(v) “…. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the SCs and STs being contrary to the nine-judge Bench in Indra Sawhney is held to be invalid to this extent “(Para 21 of judgment).

It was also held that the State is required to see the efficiency of administration while making provision for reservation.

18. Supreme Court judgment dated 27.8.2015 and 9.2.2017 in the case of S.Paneerselvam and B.K.Pavitra – Consequential Seniority issue

18.1. Subsequent to the judgment of the Supreme Court in M. Nagaraj case, the enactments/policy of various State Governments on the issue of consequential seniority to SC/ST candidates after fast track promotion through reservation/roster points were decided by the Supreme Court in the following two cases:

1) S.Paneerselvam and others Vs. Government of Tamil Nadu vide Supreme Court Judgement dated 27.8.2015.

2) B.K. Pavitra and others Vs. UOI and others vide Supreme Court
Judgment dated 9.2.2017

18.2. Both the judgements of the Supreme court, in the cases of S. Paneerselvam as well as B.K. Pavitra are based on the law laid down by the Supreme Court in M. Nagaraj i.e., the State has to collect quantifiable data indicating ‘backwardness of the class’, ‘inadequacy of representation’ and ‘overall efficiency of the State administration under Article 335. In other words, in the absence of such data, the State cannot provide ‘consequential seniority’ to those who are promoted against reservation/roster points.

19. Hon’ble Supreme in the case of B.K. Pavitra had held as under:

“It is clear from the above discussion that exercise for determining inadequacy of representation’, ‘backwardness’ and overall efficiency’, is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised……………………….In absence of exercise under Article 16(4A), it is the catch up’rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority.”

20. B.K. Pavitra and Ors vs. The Union of India and Ors (Pavitra -2)

In B.K. Pavitra and Ors. Versus The Union of India and Ors.( to be referred to as B.K. Pavitra 2), the validity of ‘the Karnataka Extension of Consequential Seniority to Governnment Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018’ was challenged on the grounds that the state legislature has virtually re-enacted the earlier legislation without curing its defects. Further, it is not open to legislative body governed by the parameters of a written constitution to override a judicial decision without taking away its basis. The State Government defended its legislation on the grounds that it has fulfilled the constitutional requirements of collecting quantifiable data before it enacted the law. The Hon’ble Supreme Court concluded its judgement in the following manner:

“……we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act 2018 is lacking in substance. Following the decision in B K Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature. It is Nagaraj and Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.” ( Para 144)

21. Interim Order dated 15.04.2019

21.1. In a hearing on 15.04.2019 in respect of SLP No. 31288/2017 related to Reservation in promotion and SLP No. 31621/2011 relating to own merit, alongwith other tagged cases, the Hon’ble Supreme Court made the following Order:

“Issue notice in the fresh matters. Until further orders, status quo, as it exists today, shall be maintained. List all the matters on 15.10.2019.”

21.2. In view of the above order of the Hon’ble Supreme Court, an application has been filed before the Hon’ble Court seeking clarification whether in the light of the Interim order dated 15.4.2019 the Government can go ahead with promotion

The post RESERVATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES – IMPORTANT CONSTITUTIONAL PROVISIONS, AMENDMENTS AND COURT CASES – Central Government Employees appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

Appeal to unfreeze the DA/DR is dismissed by Delhi High Court Order

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 3308/2020
HITESH BHARDWAJ ….. Petitioner

Through: Dr. Pradeep Sharma with Mr. Harsh,
Advs.
versus
MINISTRY OF FINANCE, UNION OF INDIA AND ANR
….. Respondent
Through: Mr. Jasmeet Singh, CGSC.
Ms. Shobhana Takiar, ASC, GNCTD.

CORAM
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

O R D E R
01.06.2020

CM APPL. 11606/2020
Exemption allowed, subject to all just exceptions.
The Court fees be paid within a week.
The application stands disposed of.

W.P.(C) 3308/2020
The present writ petition has been preferred in public interest seeking following reliefs:

“a) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to withdraw the notification issued by the Ministry of Finance, Government of India

b) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to withdraw the endorsement against the notification, issued by the Ministry of Finance, Government of NCT of Delhi.

c) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to defreeze and release the enhanced Dearness Allowance to the Central Government Servants and pensioners as per norms.

d) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to defreeze and release the enhanced Dearness Allowance to the Government Servants and pensioners of GNCTD as per norms.”

The respondent no. 1/Union of India issued an Office Memorandum dated 23.04.2020 which is the cause for the petitioner’s grievance in the present writ petition. The said Office Memorandum reads as follows:

Freezing of Dearness Allowance to Central Government employees and Dearness Relief to Central Government pensioners at current rates till July 2021.

The petitioner is also aggrieved by the consequent order issued by respondent no. 2/GNCTD dated 24.04.2020, whereby the GNCTD has followed suit in terms of the Office Memorandum dated 23.04.2020 issued by respondent no. 1. The Office Memorandum dated 23.04.2020, in effect, conveys the decision of the Central Government that Dearness Allowance due to the Central Government Employees and Dearness Relief due to the Central Government Pensioners from 01.01.2020 shall not be paid. It also states that additional installment of the Dearness Allowance and Dearness Relief due from 01.07.2020 and 01.01.2021 shall also not be paid. Pertinently, Dearness Allowance and Dearness Relief at the current rates would continue to be paid. The said Office Memorandum further states that as and when the decision to release future installment of Dearness Allowance and Dearness Relief due from 01.07.2021 is taken by the Government, rates of the Dearness Allowance and Dearness Relief as effective from 01.01.2020, 01.07.2020 and 01.07.2021 will be restored prospectively, and will be subsumed in the cumulative revised rate effective from 01.07.2020. No arrears from the period 01.01.2020 till 30.06.2021 shall be paid.

The first submission of the petitioner is that Central Government Employees and Central Government Pensioners have a vested right to receive the enhanced Dearness Allowance/ Dearness Relief which has already been declared effective from 01.01.2020. The said increase was declared at 4%. The petitioner also claims that such employees and pensioners also have vested right to continue to receive enhancement in Dearness Allowance/ Dearness Relief on and from 01.07.2020 and 01.01.2021.

To examine the merit of this submission, we may refer to the All India Services (Dearness Allowance) Rules, 1972. These statutory rules have been framed by the Central Government after consultation with the Government of the States concerned in exercise of powers conferred by SubSection (1) of Section 3 of All India Services Act,1952. Rule 3 of the said Rule is relevant and which reads as follows:

“3. Regulation of dearness allowance:
Every member of the Service and every officer, whose initial pay is fixed in accordance with sub-rule (5) or sub-rule (6A) of rule 4 of the Indian Administrative Service (Pay) Rules, 1954 or sub-rule (5) of rule 4 of the Indian Police Service (Pay) Rules, 1954 or sub-rule (6) of rule 4 of the Indian Forest Service (Pay) Rules, 1968, shall be entitled to draw dearness allowance at such rates, and subject to such conditions, as may be specified by the Central Government, from time to time, in respect of the officers of Central Civil Services, Class I.”

(emphasis supplied)

From the above Rule, it would be seen that Central Government servants shall be entitled to draw Dearness Allowance “at such rates, and subject to such conditions, as may be specified by the Central Government, from time to time, in respect of officers of the Central Civil Service, ClassI”. We may notice that there is no other statutory rule brought to our notice relating to payment of Dearness Allowance or Dearness Relief and it appears that the said Rule governs the payment of Dearness Allowance and Dearness Relief to Government servants and Government Pensioners of the Union in respect of all the classes of employees.

The above rule shows that the entitlement to draw Dearness Allowance and Dearness Relief is determined by the Central Government. The same may be specified by the Central Government from time to time, subject to whatever conditions the Government may deem fit to impose.

From the above Rule, it is clear to us that, firstly, there is no statutory rule which obliges the Central Government to continue to enhance the Dearness Allowance or Dearness Relief at regular intervals i.e. to revise the same upwards from time to time. Consequently, there is no vested right in the Central Government Employees, or Central Government Pensioners to receive higher Dearness Allowance or Dearness Relief on regular intervals.
Pertinently, by the impugned Office Memorandum, the Central Government has frozen – and not withdrawn, the Dearness Allowance and Dearness Relief being paid to Central Government Employees and Central Government Pensioners at the time of issuance of the said Office Memorandum.

Also check: Appeal to unfreeze the DA by the petitioner at Delhi High Court

So far as the submission with regard to increase of 4% Dearness Allowance or Dearness Relief with effect from 01.01.2020 is concerned, the impugned Office Memorandum does not seek to take it away. All that it does is to postpone its payment till after 01.07.2021. That power, in our view, resides with the Central Government, by virtue of Rule 3 of the All India Services (Dearness Allowance) Rule, 1972, since the Central Government is empowered to take the decision to make payment of Dearness Allowance / Dearness Relief, subject to such conditions as the Central Government may specify from time to time.

The submission of learned counsel for the petitioner is that the Central Government in the impugned Office Memorandum has referred to COVID19 pandemic as the reason for its decision contained in the said Office
Memorandum. However, the impugned Office Memorandum has not been issued by the competent authority under the Disaster Management Act. We do not find merit in this submission. The provisions of the Disaster Management Act are not the only repository of the power of the Government to take action in the light of the pandemic. As noticed above,
the power to determine as to how much Dearness Allowance is to be paid, i.e. at what rates, and subject to what condition, resides with the Central Government by virtue of Rule 3 of All India Services (Dearness Allowance) Rules, 1972. Merely because the said impugned Office Memorandum makes reference to the COVID-19 pandemic, it does not follow that the only provision which the respondents could have invoked are those contained in the Disaster Management Act. The Central Government, by referring to COVID-19 pandemic in the impugned communication, has merely provided
its reasons and justification for its decision contained in the said Office Memorandum.

The next submission of the learned counsel for the petitioner is that the impugned Office Memorandum is also in violation of Article 360(4) (a)(i) of the Constitution of India. Article 360 of the Constitution of India contains the provision as to financial emergency, and it provides that if the President is satisfied that a situation has arisen whereby the financial stability of credit in India or any part of the territory thereof is threatened, he may, by a proclamation make declaration to that effect. The submission is that President of India has not declared financial emergency. The further submission is that it is only during financial emergency declared by the
President, that by virtue of Sub-Article 4(a)(i) – a provision could be made requiring reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the State. Since no financial emergency has been declared, the Office Memorandum in question could
not have been issued which is referable to Article 360(4)(a)(i) of the Constitution of India.

We find this submission to be completely misplaced. This is for the reason that Article 360(4)(a)(i) deals with a situation where the Government seeks to reduce the salary or allowance of all, or any class of persons, serving in connection with the affairs of the State. In the present case, the Office Memorandum does not seek to reduce either the salaries or allowances, which includes Dearness Allowance and Dearness Relief in respect of serving Government servants, or its pensioners. All that it does is to freeze the payment of Dearness Allowance and Dearness Relief at the
pre-existing level, and to put in abeyance any increase in Dearness Allowance and Dearness Relief till July, 2021. The said freeze does not tantamount to reduction of either salary, or allowances, of persons serving in connection with the affairs of the State.

The further submission submission of learned counsel for the petitioner is that the Office Memorandum could not have been issued by mere issuance of an office order, and the same should have been either framed as a statutory rule, or by issuing a gazette notification. We do not find any basis for this submission. We have noticed Rule 3 of the All India Services (Dearness Allowance) Rules, 1972. The said Rule does not state that the Central Government can form, or communicate, its decision with regard to entitlement to draw Dearness Allowance, subject to conditions, only by framing another rule, or by a gazette notification. There is no such requirement in law. Therefore, we do not find any merits in this submission as well.

Also check: Expected DA 2020

So far as the right to receive the increase of Dearness Allowance / Dearness Relief already declared by the Government with effect from 01.01.2020 is concerned, it falls well within the domain of the Central Government to decide as to when to disburse the said increase. There is no
obligation in law upon the Central Government to disburse the increase in Dearness Allowance/ Dearness Relief within a time bound manner. Rule 3 of All India Services (Dearness Allowance) Rules referred to above, itself empowers the Central Government to lay down the conditions subject to
which Dearness Allowance may be drawn by officers of Central Government.

For the aforesaid reasons we do not find any merit in this petition and the same is, accordingly, dismissed.

VIPIN SANGHI, J
RAJNISH BHATNAGAR, J

JUNE 01, 2020

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Stepping up of salaries of senior Assistants of CSS earning less salary on promotion in the Section Officers Grade than their juniors

सं.-18/2/2014-CS-I (S)
भारत सरकार Government of India
कार्मिक,लोक शिकायत और पेंशन मंत्रालय /
Ministry of Personnel, P.G. and Pensions
कार्मिक एवं प्रशिक्षण विभाग /
(Department of Personnel & Training)

2nd Floor, A Wing, Lok Nayak Bhawan,
New Delhi -110003, the 01st June, 2020

OFFICE MEMORANDUM

Latest DoPT Orders 2020

Subject: Stepping up of pay of senior Assistants of CSS drawing less pay on promotion in the Section Officers Grade than their juniors – OM No. 18/2/2007- CS-I dated 20.05.2014 – Writ Petitions filed in the matter -regarding.

The undersigned is directed to refer to this Department’s OM of even number dated 01.07.2019 wherein instructions, for dealing with stepping up of pay cases consequent to directions of Hon’ble High Court of Delhi vide their interim orders in various Writ Petitions filed in the matter, were issued.

Also check: Relaxation in CCS Leave rules 1972 for central government employees – COVID19 – Latest DoPT Orders 2020

2. In this connection it is reiterated that the pay of the petitioners and similarly placed non-petitioners is to be restored only if they submit the ‘Affidavit of Undertaking’ as directed by the Hon’ble High Court of Delhi in the format attached with this Department’s OM under reference.

3. As regards the manner in which the pay is to be restored, it is clarified that the pay of the petitioners and non-petitioners, who submit the affidavit of undertaking in the prescribed format, may be restored notionally from the date with effect from which the stepping up of pay was granted earlier and regularly from the date of submission of the affidavit of undertaking as directed by Hon’ble High Court of Delhi subject to the outcome of the Writ Petitions or orders of any competent court in related matters.

4. If an officer, whose pay has been restored in accordance with the above instructions, superannuates or retires voluntarily, his/ her case may be dealt as per the provisions of CCS (Pension) Rules 1972 relating to provisional pension, payment of gratuity etc.

Also check: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

5. This issues in consultation with Ministry of Finance (Department of Expenditure) vide their ID No. 1(5)E-H1(A)/ 96 dated 27.05.2020 (eFTS 1377323).

(P Bairagi Sahu)
Under Secretary to the Govt. of India

To

All the Ministries/ Departments of Government of India
Ministry/ Department of …………………….
(Director/ Deputy Secretary (Admn./Estt.)
New Delhi

Source: DoPT

The post Stepping up of pay of senior Assistants of CSS drawing less pay on promotion in the Section Officers Grade than their juniors appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

Appeal to unfreeze the DA by the petitioner at Delhi High Court. Court case on DA. Keeping in view the Dearness Allowance be released immediately to the employees and its pensioners

IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL WRIT JURISDICTION

W.P. (CIVIL) No. of 2020

In the matter of A Public Interest Litigation:

N. Pradeep Sharma ….….. Petitioner

VERSUS

Ministry of Finance, Union of India and Anr. …….Respondents

SYNOPSIS:

Dearness allowance is received by government employees and pensioners to compensate for the rising inflation. By way of present Public Interest Litigation, the Petitioner is trying to draw the attention of this Hon’ble Court towards freezing of Dearness Allowance of the Govt. employees by the Ministry of Finance, Government of India and Ministry of Finance, Government of National Capital Territory of Delhi, despite of the fact that there is rising inflation and especially Delhi native have recently witnessed the hike in liquor, petrol and diesel prices and other essential commodities, which has a direct impact on common man, specially the Govt. servants and pensioners. The announcement of Govt. to freeze the Dearness Allowance against rising inflation without any financial emergency seems to be the violation of provisions of Article 360 of Constitution of India.

Also check: Appeal for review of decision Freezing of Dearness Allowance to Central Govt employees

Even otherwise, the freezing of Dearness Allowances of all or any class of
persons serving in connection with the affairs of a State, is in violation of the basic Principle of Article 21 of Constitution of India. The Article 21 of the
Constitution has a much wider meaning which includes the right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.

Right to life is fundamental to our very existence and includes all those
aspects of life which go on to make a man’s life meaningful, complete and worth living. It is further stated that right to receive salary is a property coming within the purview of Article 300A of the Constitution of India and the same can be deprived only by authority of law, the law means an Act of Parliament or an Act of Legislature. or at least a Rule having a statutory character. That even otherwise, the Disaster Management Act 2005 does not confer any power upon the Government to defer or deny salary at any time during a disaster. It is a settled preposition that deferment of salary even for a day, amounts to denial and that the right to receive salary cannot be left to an uncertain date or an uncertain event at the whims and fancies of the Government.

Also read: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

Payment of salary and wages, to an employee is certainly not a matter of
bounty. It is a right vested in every individual to receive it. It is also a statutory right as it flows from the Service Rules. Right to receive salary with perks, every month, is part of the service conditions emanating from Article 309 of Constitution of India.

It has come to the knowledge of the Petitioner by way of the office
memorandum issued by Govt. of India and various e-news papers, Social media and TV news etc., regarding the hardship being faced by the various employees of Govt. of India or govt. of GNCTD that the enhanced Dearness allowance of 4% which was supposed to be given by various Govt. to its employees and its pensioners has been deferred till July 2021. The Finance Ministry decided to put on hold increment in dearness allowance (DA) for 50 lakh Central Government employees and 61 lakh pensioners till July 2021 due to the COVID-19 crisis. The Govt. of NCT of Delhi also followed the Centre order on DA and DR.

In order to meet out the present financial crisis if any, the reserve amount
(Corpus) of approximately Rs. 3800 crore from PM National Relief Fund may be utilized. The overall corpus of PMNRF since it was established in 1948, stands at Rs. 3800 crore may be utilized. Likewise if the news are to be believed barely a week after the PM announced setting up of PM CARES (Prime Minister’s Citizen Assistance & Relief in Emergency Situations) fund on 28th March 2020, donations pledged to it have crossed over Rs.6500 crore.

Suffice it to add here that notification dated 23.04.2020 and 24.04.2020 by
Union of India and Govt. of NCT of Delhi, is abused of the powers granted to
central Government under section 62 of Disaster Management Act and is in
express violation of procedure prescribed under Article 360 of Constitution of India.

Keeping in view the Dearness Allowance be released immediately to the
employees and its pensioners. The released Dearness Allowance would even give morale boost to even the Health Warriors who are protecting us from deadly disease.

Petitioner
with
Harsh K Sharma,
Advocates for Petitioner
5, Jungpura Road,
Bhogal Jungpura,
New Delhi – 110014
Contact: 9899696333
e-mail: npradeepsharma30@gmail.com

Date: 11.5.2020
Place: Delhi

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The High Court Of Madhya Pradesh
WP-18030-2019

RAJENDRA PRASAD TIWARI
Vs
THE STATE OF MADHYA PRADESH

Jabalpur, Dated : 03-12-2019

Shri Prashant Singh, learned senior counsel assisted by Shri Anshul Tiwari, learned counsel for the petitioner.

Shri Deepak Kumar Singh, learned Government Advocate for the respondents-State.

Heard.

The petitioner has filed this petition under Article 226 of the Constitution of India seeking following relief:

(i) To issue a writ in the nature of mandamus by directing the respondents to pay the annual increment fell due on 01.07.2015 to the petitioner.

(ii) To direct the respondents to pay the annual increment i.e. pay scale of 20440-5400 and arrears due from 01/07/2015 with interest of 6% per annum.

(iii) To grant any other relief, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner.

On 30.09.2019, learned counsel for the respondents was granted time to seek instructions as to how the petitioner can be refused the benefit of grant of annual increment which is to be added on 1st of July of every year, but, no response has been filed.

Also check: Notional Increment on retirement 30th June DoPT – Madras High Court Order

The petitioner was retired from service w.e.f. 30.06.2015. The increment, which was to be granted on 1st of July, 2015 was denied to him on the ground that he retired on 30.06.2016 and was not in service on 1st of July, 2015.

Learned counsel for the petitioner has relied upon a decision of the Madras High Court in the case of P. Ayyamperumal vs. The Registrar, Central Administrative Tribunal and others-WP No.15732/2017 decided on 15.09.2017, which was later on affirmed by the Supreme Court. Considering the law laid down by the Division Bench of the Madras High Court it is clear that the petitioner cannot be denied the increment which was due on 01.07.2015 merely because he got retired on 30.06.2015, since he has completed full years of service and was eligible to get the said increment. Since the case on which the petitioner is placing reliance is squarely covered with the case of the petitioner, nothing is required to be adjudicated in this petition.

Accordingly, the petition is allowed directing respondents to extend the benefit of annual increment to the petitioner which was due on 01.07.2015 and accordingly the retiral dues of the petitioner be revised and he be also paid arrears within a period of three months from submitting certified copy of this order.

Also read: High Court Order transferring NPS Subscription into GPF account

Accordingly, this petition stands allowed and disposed of.

(SANJAY DWIVEDI) JUDGE
RAGHVENDRA

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