Monday 31 August 2015


Below placed is an OFFICE MEMORANDUM issued by DOPT vide F. No. 11013/08/2013-Estt(A-III) Dated August 31, 2015 on the above subject. It is an age old instruction.

The funny part of the OM is that contravention of the instruction is treated as misconduct under the conduct rules. But if the higher authority does not take any action, either forwarding or rejecting by informing the employee, there is not misconduct. So the provision is simply made to hush up the matter from the notice of the higher authorities. In my case this had happened in many occasions. This is well explained in my book ‘A FRAUD IN THE INDIAN CONSTITUTION’ in the chapter named ‘Whistle blower charge sheeted’. This may happen to anybody in any Government Office. So what is the use of making a representation if no action is taken on it?

Now go to the body of the OM:

“Subject: Representation from Government servant on service matters - reiteration of instructions - regarding.

The undersigned is directed to refer to O.M. of even number dated 6th June, 2013 wherein instructions have been issued on submission of representation by Government servants about their service matters. In spite of these instructions, it has been observed that Government servants including officers/ officials of para military forces and Army personnel continue to represent directly to the Prime Minister, Minister, Secretary (P) and other higher authorities, directly.

2. As per the existing instructions, wherever, in any matter connected with his service rights or conditions, a Government servant wishes to press a claim or to seek redressal of a grievance, the proper course for him is to address his immediate official superior, or Head of his office, or such other authority at the appropriate level who is competent to deal with the matter in the organisation.
3. Such submission of representations directly to other authorities by- passing the prescribed channel of communication, has to be viewed seriously and appropriate disciplinary action should be taken against those who violate these instructions. This can rightly be treated as an unbecoming conduct attracting the provisions of Rule 3 (1) (iii) of the Central Chill Services (Conduct) Rules, 1964. It is clarified that this would include all forms of communication including through e-mails or public grievances portal etc.

4. Attention in this connection is also invited to the provision of Rule 20 of CCS (Conduct) Rules, 1964 prohibiting Government servants from bringing outside influence in respect of matter pertaining to his service matter. Representation by relatives of Government servant is also treated as outside influence as clarified vide MHA OM No. F. 25/21/63-Estt.(A) dated 19.09.1963

5. It is reiterated that these instructions may be brought to the notice of all Govt servants including officers/ officials of para military forces and member of armed forcesand action taken against those who violate these instructions.”


Sunday 30 August 2015


It is held by the Supreme Court that in the absence of any provision for consequential seniority in the rules, the ‘catch up rule’ would be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reached the promotional level, general candidates would regain their seniority. By reversing the decision of the Division Bench of the Madras High Court, Supreme Court held that the Division Bench appeared to have proceeded on an erroneous footing that Article 16 (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and hence the judgment of the Division Bench could not be sustained.

As a result, the judgment of the Madras High Court was set aside by the SC and the appeals were allowed. State Government-respondent Nos. 1 and 2 were directed to revise the seniority list of Assistant Divisional Engineers applying the ‘catch up rule’ within four months. It was ordered that pursuant to the judgment ofthe Division Bench of Madras High Court, if any further promotion had been granted to the Assistant Divisional Engineers promoted from the rank of Junior Engineers following rule of reservation with consequential seniority, the same should be reversed. Further promotion of Assistant Divisional Engineers should be as per the revised seniority list.

(Reference: CIVIL APPEAL NOS. 6631-6632 of 2015 GOVERNMENT OF TAMIL NADU
AND ANR. ETC.ETC. V/s. V. VIVEKANANDAN & ORS. ETC.decided on August 27, 2015)

Saturday 22 August 2015


In a decision of the Supreme Court on 21/08/2015, it was held that for the purpose of denying promotion, all adverse ACRs to be communicated to the concerned persons. In its absence, the entire process was held to be invalid. This is a very interesting story to know how and to what extent a person could be harassed.

(NB:- I was also subjected to similar harassment. My story is now to be published as a book on 24/8/2015 in a public meeting.)

The brief facts of the case are as below :-

The dispute in this case arose when a letter dated 28.06.2000 was received by the appellant in this case before the Supreme Court, wherein the Annual Confidential Report (ACR) for the period 1.07.1999 to 31.03.2000 was rated his performance as ‘average’. This led to a representation dated 07.07.2000 before the DGP-cum-Commandant General, requesting the supply of documents on the basis of which his conduct and diligence was graded as ‘average’. But no satisfactory response was received by the appellant despite having been made reminder representations dated 18.08.2000 and 25.08.2000 for supply of the said documents. Rest of the facts are already covered the operative part of the judgement.

After hearing both the parties and considering the facts and rival legal contentions urged by them including the written submissions, and on perusal of record, the has stated that the promotion of the appellant to the post of Battalion Commander from the post of District Commandant was governed by Rule 8(1)(2)(i). The aforesaid rule contemplates that 75% of the promotional posts of the Battalion Commander be filled up by promotion amongst the Battalion second in command. The legal requirement for promotion to the post of Battalion Commander is that the claimant should have been working as a District Commandant for a period of 8 years and the appointment to the said promotional post shall be made by the Competent Authority on seniority -cum- merit basis. No person shall be entitled to claim promotion on the basis of seniority alone. As per the Punjab State Government Instructions issued on 06.09.2001, certain guidelines have been laid down for DPC to consider the cases of promotion to the post of Class-I and Class-II namely, group ‘A’ and ‘B’ posts. As per the said guidelines, an eligible candidate is promoted on the basis of the seniority-cum-merit criteria, where merit is determined on the basis of benchmark awarded to the various aspects contained in the ACR of the officer, wherein marks are awarded against such entries made in the ACRs of the officers concerned for the relevant period.

Further, as per the records obtained by the appellant from the respondents under the RTI Act at the time of his claim for promotion to the post of Battalion Commander was first considered, his ACRs from year 1996 were considered. The Instructions dated 29.12.2000 would be applicable prospectively to the ACRs of the appellant for relevant periods which were prepared after those Instructions were issued. According to the Instructions, officers obtaining 0-14 marks out of a total of 20 marks would be graded over all ‘Good’. Thus, the appellant was entitled to promotion as he had been awarded 10 marks as per the proceedings of DPC.

The High Court in the impugned judgment further observed that the final reporting authority had downgraded the appellant as an ‘average’ officer for the above relevant period. As per the executive Instructions dated 10.01.1985 issued by the State Government, the Commandant General is the final Authority for the rank of the District Commander. That being the factual position, the downgrading of the performance of the appellant in his ACR for the above relevant period by the respondent No. 4 was not valid as the same was done without any authority and competence. The adverse entries in the ACR have deprived the appellant of his right of promotion to the post in question and therefore, the said adverse entries in the ACRs against the appellant are not legal and valid.

A perusal of the ACR for the period 2000-2001 reveals that though the general remarks stated that “He is very good and responsible officer” respondent No. 4 had given a grade which read, “I agree. An average officer”. The said entry shows that he had agreed to all the remarks of the ACR given in respect of columns 1 to 18 for that year by the Competent Accepting Authority, but he further stated assessed the officer to be an ‘average’ officer without assigning any reason whatsoever apart from his competence to make such adverse entries. The overall grading of the ACR is based upon the observations made by the Reporting Authority, Reviewing Authority and final Accepting Authority. As per the entries made by the respondent No. 4, he had agreed to the overall grading as given by the Accepting Authority. In such a case, he could not have downgraded the overall grading in the ACR by using the words “an average officer”. Further, if the comments made on 20.05.2004 by the respondent No. 4 on the ACR for the year 2000-2001 are being sought to justify the stand of denial of promotion to the appellant to the post in question, then the clarification needs to take effect from that date, i.e 20.05.2004. In such a case, the appellant was to be assigned 3nmarks as per the instructions for the year 2003, when he was ignored for the promotion for the first time.

The SC further stated that a perusal of the copy of the ACR for the period 2003-2004 reflects a true picture of the injustice that has been perpetrated against the appellant. The ACR has been written by Mr. Tejinder Singh, respondent No. 4 who was the Reporting Authority as the Divisional Commandant. The very same officer was also the Reviewing Authority as Deputy Commandant General. Further, the same officer also happened to be the Final Accepting Authority as the Commandant General, as is evident from his comment dated 30.09.2004. The fact that in the said year also the performance of the appellant had been graded as ‘average’ clearly reveals the malafide intention of the respondent nos.1-4 in deliberately denying the promotion to the appellant to the post in question. According to the respondents themselves, the executive Instructions dated 06.09.2001 have not been superseded by any other Instructions or rules framed by the competent authority. If these illegal downgrading entries in the ACR for the relevant period are ignored, then the appellant would attain 14 marks. As per the Instructions dated 06.09.2001, 12 marks were required for promotion to the post as per the benchmark fixed. Further, the adverse remarks for the period 1999-2000 were conveyed to appellant vide communication dated 28.06.2000 by the D.G.P-cum Commandant General. The representations dated 18.08.2000 and 25.08.2000 made by the appellant against the same were submitted to respondent No. 4. The said representation was rejected on 07.05.2001. The appellant had challenged the same by filing Civil Suit No. 70 of 2001, wherein the respondent No. 4 was impleaded as defendant No. 3. The civil suit was decreed on 15.03.2002 in favour of the appellant. The said judgment and decree passed in favour of the appellant has not been implemented by the respondent Nos. 4 and 5, despite having attained finality, which clearly reflects the fact that the respondent No.4 was not fair in considering him for promotion to the post of Battalion Commander as provided under Rule 8(2) of the Rules. According to the Rules, the appointment to the promotional post shall be made on seniority-cum-merit basis. As per the ACRs placed on record, the appellant has fulfilled the aforesaid requirement of seniority-cum-merit by securing 14 marks, as per the Instructions in relation to all aspects entered in the ACR. Thestrong reliance placed upon the adverse remarks made by the respondent No.4, who has made the same without assigning any reasons, has resulted in the appellant being denied of the promotional benefit, even though the order of the respondent No. 4 was set aside by the judgment and decree in Civil Suit no. 70 of 2001. The action of respondent No. 4 in denying the promotional benefit to the appellant is tainted with malafides. It can further be observed from the record that it was respondent no.7 who had filed the reply on behalf of all the respondents in the writ petition proceedings before the High Court. It is important to note at this stage that respondent No. 7 happens to be an officer junior to the appellant, who was promoted to the post in question. The non-filing of written statement by respondent No. 4 traversing the allegations of malafide against him proves the malafide intention on part of the respondent No. 4. Therefore, there was no justification for the respondent No. 4 in denying the promotional benefit to the post of Battalion Commander to the appellant. SC also referred to an earlier case where it was held that if the ACR of the officer concerned is to be used for the purpose of denying promotion, then all such ACRs were required to be communicated to him, to enable him to make a representation against his adverse entries made in the ACRs.

As per the record submitted by the respondents, the appellant was given grade ‘A+’ for the year 2001-2002, but only 1 mark was assigned. According to the executive Instructions, the grade ‘A+’ is to be assigned 4 marks. Accordingly, if 4 marks are assigned for the ACR of the appellant for the period 2001-2002, then he would have scored 12 marks at the time of consideration for promotion in the year 2003, whereas admittedly, the appellant was required to achieve only 10 marks in order to be promoted to the post of Battalion Commander. Hence, if the calculation of marks made by the respondents on the various aspects in the ACR of the appellant is believed to be true, then also he has achieved the required benchmark. The action of the respondent No. 4 in deliberately ignoring the claim of the appellant is vitiated in law as the same is contrary to the Rules and records of ACR for the relevant period and Instructions issued by the State Government laying down certain guiding principles.

Therefore, the SC stated that the order of denial of promotion to the appellant, which had been affirmed by the High Court in its judgment and order passed in the Writ Petition and Review Application was liable to be set aside.

For the reasons stated above, the SC passed the following order:-

“(1) We set aside the impugned judgment and order passed by the High Court in both the Civil Writ Petition and the Review Application and also the order of denying the promotional benefit by the respondents-Department to the post of the Battalion Commander from the year 2001-2002;

(2) Further, we direct the respondent Nos. 1 to 5 to reconsider the claim of the appellant in the light of our findings and reasons recorded on the contentious factual and legal aspects so that he could get higher post of Battalion Commander notionally to get pensionary benefits as he has been prematurely retired from service on 31.7.2007; and

(3) The said direction shall be complied with within 8 weeks from the date of the receipt of the copy of this order and for the purpose of fixing his pensionary benefits and other monetary benefits for which he is legally entitled to and submit the compliance report to this Court.

The appeal is allowed in the above said terms with cost of Rs.10,000/- payable to the appellant by respondent Nos. 1 to 4.”

[ Reference:- CIVIL APPEAL NO. 6532 OF 2015 (Arising out of S.L.P. (C) NO. 1640 of 2014) DALJIT SINGH GREWAL Vs. STATE OF PUNJAB & ORS (SC) dated August 21, 2015]

Saturday 8 August 2015


The Gov. of India, Ministry of Finance Vide OM no. 21(2)/2015-E.II(B) dated 6th August, 2015 revised the Transport Allowance to Central Government Employees with effect from 1st April 2015. The rates are given below. For new classification of cities, refer to my earlier post dated 29th July, 2015.

Wednesday 5 August 2015


In a decision dated July 31, 2015 of the Supreme Court of India, it was held that the principle “NO WORK NO PAY” IS NOT APPLICABLE WHERE THE EMPLOYER IS AT FAULT for delay. In this case, the order of the High Court of Delhi in W.P. (C) No.6466 of 2002 dated 02.12.2004 was challenged whereby the High Court dismissed the writ petition filed against the order of denial of pay and allowances to the appellant for the period from 01.08.1997 till the date of his actual promotion i.e. 13.11.2000 and also the order dated 18.03.2005 dismissing the Review Application No.55 of 2005.

Background facts which led to the filing of this appeal are as under:- The appellant got enrolled in the Indian Army on the post of Store Keeper Technical/Sepoy on 19.03.1983 and was subsequently promoted to the rank of Havildar on 01.08.1989. While the appellant was so working, a Summary Court Martial (SCM) for the offences under Sections 41(i), 39 (a) and 63 of the Army Act was initiated against him. After completion of the inquiry and on proved charges by an order dated 03.06.1992, the appellant was sentenced to:- (i) reduction in rank; (ii) dismissal from service and (iii) rigorous imprisonment for one year in civil prison. Aggrieved by the Order passed in Summary Court Martial, the appellant preferred a statutory complaint under Section 164 of the Army Act. The Central Government vide Order dated 17.08.1994 commuted the punishment modifying it to one of severe reprimand and further remitted the sentence of dismissal from service directing reinstatement in service. However, it was held that the appellant was not entitled to any pay and allowances for the period between the date of dismissal and the date of reinstatement in service. In compliance with the Order passed by the Central Government, the appellant was reinstated in service w.e.f. 29.10.1994. The appellant was again put to Summary Court Martial for committing offence under Section 54(b) of the Army Act and by an Order dated 18.02.1995; the appellant was awarded severe reprimand/red ink entry for the offence of loosing identity card.

Case of the appellant for promotion to the rank of Naib Subedar came up for consideration before Departmental Promotion Committee (DPC) on 01.08.1997; but the appellant was not considered for promotion and according to the respondents, the appellant did not meet the discipline criteria for promotion as the appellant was having two red ink entries during preceding five years. On appellant’s repeated representations for his promotion as per his seniority, finally his claim was considered by the DPC held on 15.03.2000 and he was granted promotion w.e.f. 01.01.2000 with ante-dated seniority w.e.f. 01.08.1997 along with his batchmates. However, no direction was issued regarding any pay and allowances to the appellant in the higher rank of Naib Subedar from the back date; but his seniority was maintained from 01.08.1997 when his batchmates have been promoted. Aggrieved by the order of the DPC, denying pay and allowances in the promotional post for the period between 01.08.1997 to 13.11.2000, the appellant filed W.P.(C) No.6466 of 2002 before the High Court of Delhi. Vide impugned order dated 02.12.2004, the High Court dismissed the writ petition observing that the appellant has no legitimate claim for payment of pay and allowances from a retrospective date on the principle of “no work no pay”. The Review Application No.55 of 2005 also came to be dismissed on 18.03.2005. In this appeal the correctness of the above orders passed in the writ petition and also the review application was challenged.

Contention of the appellant was that subsequently when the fresh DPC was held on 15.03.2000, the appellant was declared fit for promotion to the rank of Naib Subedar w.e.f. 01.01.2000 with ante-dated seniority w.e.f. 01.08.1997 and while so, the appellant was arbitrarily deprived from getting pay and allowances and other benefits from 01.08.1997 and hence the appellant was entitled to get his pay and allowances for the period from 01.08.1997 till the date of his actual promotion on 13.11.2000. It was submitted that the respondents erroneously denied pay and allowances to the appellant when they themselves have granted him ante-dated seniority w.e.f. 01.08.1997.

The respondents contended that although the order imposing punishment on the appellant was passed by the Summary Court Martial on 03.06.1992 but the same was commuted only on 17.08.1994 and therefore the period of five years was rightly counted w.e.f. 17.08.1994 and therefore the appellant was not eligible to be considered for promotion prior to 17.08.1999. It was further submitted that on 01.08.1997, when the appellant’s case came up for promotion to the rank of Naib Subedar, he did not meet the criteria for promotion as he had incurred two red ink entries during preceding five years and rightly the appellant was not given the pay and allowances from 01.08.1997 which benefit was given to him w.e.f. 13.11.2000 when he actually joined the said rank of Naib Subedar, but to avoid any injustice, his seniority was maintained from 01.08.1997 along with his batch mates.

As per the policy of the respondents, an individual cannot be considered for promotion to the rank of Naib Subedar, if he has earned more than three red ink entries during the entire service and more than one red ink entry in the preceding five years of service. It is noticeable that when the case of the appellant came up for consideration on 01.08.1997, the first punishment/red ink entry had already expired i.e. on 03.06.1997 and only one red ink entry made on 18.02.1995 was on the record; but the DPC appears to have erred in ignoring the same. Considering the genuineness of the representations made by the appellant, DPC again considered the claim of the appellant and granted him promotion w.e.f. 01.01.2000 to the rank of Naib Subedar with a further direction that the seniority of the appellant will be maintained alongwith his batchmates from 01.08.1997. When appellant was granted ante-dated seniority w.e.f. 01.08.1997 alongwith his batchmates, we find no reason as to why he should be denied pay and allowances in the promotional post as Naib Subedar w.e.f. 01.08.1997 till the date of his actual promotion on 13.11.2000. The High Court has not properly appreciated these aspects and erred in holding that on 01.08.1997, the appellant was not eligible to be considered for promotion. When the respondents themselves have taken the view that the Order of the Government would be deemed to have taken from the date ofmoriginal sentence was passed i.e. 03.06.1992 and not from 17.08.1994, the date on which commutation/remission was granted by the Government, the High Court was not right in holding that the appellant was not eligible to be considered for promotion on 01.08.1997 and the impugned order cannot be sustained.

The respondents argued that the denial of pay and allowances was on the principle of “no work no pay” and no injustice had been done to the appellant since he had not actually worked in the promotional post of Naib Subedar during the aforesaid period. It was also submitted that the benefit of pay and allowances was rightly awarded w.e.f. 13.11.2000, the date on which the appellant actually assumed the rank of Naib Subedar but his seniority was maintained so as to protect his interest in his further promotions.

However, the Supreme Court even stated that, in the absence of a statutory provision, normal rule is “no work no pay”. In appropriate cases, a court of law may take into account all, the facts in their entirety and pass an appropriate order in consonance with law. The principle of “no work no pay” would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority along with his batch mates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar.

Hence, the SC set aside the impugned orders passed by the High Court and the appeal was allowed with order that the respondents should release the arrears of pay and allowances to the appellant for the period from 01.08.1997 till the date of his actual promotion that is 13.11.2000 in the promotional post of Naib Subedar within eight weeks from the date of judgement.

(Ref: Supreme Court CIVIL APPEAL NO. 811 OF 2007 RAMESH KUMAR ...Appellant Versus UNION OF INDIA & ORS. Respondents decided on July 31, 2015)