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Counter Affidavit in Service Matter in SC

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37 views29 pages

Counter Affidavit in Service Matter in SC

Uploaded by

Himanshu Yadav
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 29

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION


(Under Article 136 of Constitution of India)

SPECIAL LEAVE PETITION (C) Nos. 4828-4829 of 2020

IN THE MATTER OF:


MINISTRY OF LABOUR AND
EMPLOYMENT & ANR …Petitioners
Versus

ACHILESH NIGAM & ORS …Respondents

INDEX

S.
Particulars Page No.
No.
Counter affidavit on behalf of the
1. 1 – 27
Respondents (Respondent Nos. 1 to 12)
Annexure R1: The true copies of the Office
Orders dated 20.3.2002 and 7.10.2002
2. issued by the Petitioner No. 1 mentioning the 28 – 29
dates of appointment and regularisation of
the Respondents
Annexure R2: The true copy of the RR
3. governing the posts held by the 30 – 44
Respondents
Annexure R3: The true copy of the relevant
4. extract of the recommendations of the Vth 45 – 47
CPC

Annexure R4: The true copy of the SSS


5. 48 – 66
(Group C) Rules, 2002 dated 12.2.2002
Annexure R5: The true copy of the Office
6. Memorandum dated 15.3.2002 issued by 67 – 73
the Petitioner No. 1
Annexure R6: The true copy of the Office
7. Memorandum dated 7/8.1.2004 issued by 74 – 78
the Petitioner No. 2
Annexure R7: The true copy of the Office
8. Memorandum dated 7.5.20004 issued by 79 – 80
the Petitioner No.2
Annexure R8: The true copy of the Written
9. Representation dated 3.7.2009 sent by the 81 – 83
Respondent No. 1 to the Petitioner No. 1
Annexure R9: The true copy of the Office
10. Memorandum dated 10.12.2009 issued by 84 – 87
the Petitioner No. 1
Annexure R10: The true copy of the Office
11. Memorandum dated 8.2.2010 issued by the 88 – 89
Petitioner No. 2
Annexure R11: The true copy of the Letter
12. dated 23.8.2011 issued by the Petitioner No. 90 – 91
1
Annexure R12: The true copy of the Office
13. Memorandum dated 25.8.2011 issued by 92 – 96
the Petitioner No. 2
Annexure R13: The true copy of the SSS
14. 97 – 111
Rules, 2013 dated 31.5.2013

Place: New Delhi


Date: 4.12.2020

HINGORANI & ASSOCIATES


AOR CODE: A-1205
Advocate for the Respondents
40, Lawyers’ Chambers,
Supreme Court Compound, New Delhi
M: 9810006829
Email: [email protected]
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(Under Article 136 of Constitution of India)

SPECIAL LEAVE PETITION (C) Nos. 4828-4829 of 2020

IN THE MATTER OF:


MINISTRY OF LABOUR AND
EMPLOYMENT & ANR …Petitioners
Versus

ACHILESH NIGAM & ORS …Respondents

COUNTER AFFIDAVIT ON BEHALF OF THE


RESPONDENTS

I, Achilesh Nigam, s/o Sh. S.C. Nigam, aged 47 years,


r/o C-10/F-2, DLF Colony, Sahibabad-201005, Ghaziabad,
U.P., presently at New Delhi, do hereby solemnly affirm on
oath and state as hereunder:

1. That I am the Respondent No. 1 in the instant Special


Leave Petition and the Pairokar of the remaining
Respondents herein (Respondent Nos. 2 to 12). I say that I
have read and understood the contents of the Special Leave
Petition under reply and I hereby submit my Counter
Affidavit on behalf of the Respondents.

2. That, at the outset, I submit before this Hon’ble Court


that save and except those which are matters of record or
are admitted hereunder, the rest of the averments made in
2
the Petition under reply are denied. I further submit that any
omission to deal with any statement, contention, allegation
and/or averment made in the Petition should not be treated
as an admission thereof unless the same has been
specifically admitted herein. Nothing in the present Counter
Affidavit shall be deemed to have been admitted on the
ground of non-traverse.

PRELIMINARY SUBMISSIONS

3. That I say that I and the other Respondents were


directly recruited to the posts of Junior Computor/
Comptometer Operators between 2.4.1997 and 1.2.1999 by
the Petitioner No. 1 herein after following the due
recruitment procedure. Upon completion of probation of 2
years, the Respondents were given substantive
appointment on regular posts being Group C Statistical
Function Posts in the office of Directorate General of
Employment & Training (‘DGE&T’) of the Petitioner No. 1
ministry on or before 31.1.2001.

The true copy of the Office Orders dated 20.3.2002


and 7.10.2002 issued by the Petitioner No. 1 mentioning the
dates of appointment and regularisation of the Respondents
is annexed hereto as Annexure R1 (pages 28 to 29).

4. That I say that the at the time of their selection,


appointment and subsequent regularisation, the
Respondents were governed by the Recruitment Rules
3
(‘RR’) of the DGE&T of the Petitioner No. 1 prevalent at the
time. The said RR specifically provided promotion channels
for the Respondents detailing their career path within the
DGE&T. The chart showing the promotion channel and the
career prospects as per the RR is detailed below:
4
The said RR clearly provided the Respondents with
the time bound opportunity of upward mobility within the
DGE&T translating into 3 promotion levels and consequent
rise in income. Thus the Respondents were never recruited
to the services at isolated posts rather their promotional
avenues were subsequently taken away from them against
principles of natural justice. It is pertinent to note that the
said RR were never scrapped by the Petitioner No. 1 and
continue to exist till date, though the promotional avenues of
the Respondents had been taken away by the Petitioner No.
2.

The true copy of the RR governing the posts held by


the Respondents is annexed hereto as Annexure R2
(pages 30 to 44).

5. That I say that in the meanwhile, the


Vth Central Pay Commission (‘CPC’) recommended the
constitution of the Subordinate Statistical Service (‘SSS’)
comprising the posts with statistical functions spread over
different ministries/offices. The Vth CPC at Para 74.13 of its
said report had specifically recommended that the posts of
Senior Investigator and Junior Investigator (the promotional
posts of the Respondents) in DGE&T then in the scale of Rs
1640-2900 and Rs 1400-2300 respectively be placed in the
replacement scale of Rs 2000-3500 and Rs 1640-2900
respectively. Further, it recommended that the posts of
Computors (being held by the Respondents) should be
progressively abolished and be placed in the corresponding
5
replacement scale. Thus, the effect of the recommendation
of the Vth CPC was that the Respondents (being existing
Junior Computers/ Comptometer Operators) should have
been placed in the replacement pay scale so that they could
be considered as a feeder cadre for promotion to the said
restructured promotional posts of Junior Investigator and
Senior Investigator.

The true copy of the relevant extract of the


recommendations of the Vth CPC is annexed hereto as
Annexure R3 (pages 45 to 47).

6. That I say that in order to give effect to the aforesaid


recommendations of the Vth CPC, the Petitioner No. 2 (the
parent Ministry of Statistics and Programme
Implementation) vide its Office Memorandum dated
31.3.1999 (Annexure P1) circulated its proposed decision of
restructuring the services of statistical personnel into SSS
and prescribed the various ministries and departments to
upgrade the pay scales of the holders of various categories
of statistical posts for inclusion in restructured services.
Thus, Respondents had legitimate expectation that their
services at the posts of Junior Computor/ Comptometer
Operator (being Group C posts) would be properly placed in
the appropriate upgraded pay scale in the restructured
services.

The Petitioner No. 1, by the virtue of the said Office


memorandum issued by the Petitioner No. 2, should have
6
upgraded the pay scale of the posts held by the
Respondents which it failed to do, thereby causing
consequential loss of promotions avenues and income to the
Respondents.

7. That I say that the Petitioner No. 2 vide its notification


dated 12.2.2002 formed Subordinate Statistical Service
(Group C) Rules, 2002 by including within its ambit the
services with various ministries of the Government of India
(GoI) as mentioned in Schedule I to IV thereof. As per the
said notification, the SSS (Group C) shall include
restructured posts being

a) Statistical Investigator Grade III


(Pay Scale Rs 5500-9000)

b) Statistical Investigator Grade IV


(Pay Scale Rs 5000-8000) - being equivalent to the
post of Junior Investigator, the foremost
promotional post of the Respondents

8. That I say that the said SSS (Group C) Rules, 2002


clearly provided that the SSS shall be constituted initially
from amongst Group C statistical function posts spread over
different Ministries/ Departments/ Organisations of the GoI,
which had been offered for inclusion in the SSS (kindly refer
Rule 8(i) thereof). The DGE&T of the Petitioner No. 1
however only placed the posts of Junior Investigator
(equivalent to the restructured Statistical Investigator Grade
7
IV) and Senior Investigator (equivalent to the restructured
Statistical Investigator Grade II under Group B) in the
replacement scale and left the pay scale of the posts of
Junior Computors/ Comptometers as held by the
Respondents out of the replacement scale. The said biased
and arbitrary action of the Petitioners was in complete
violation of the Article 14 of the Constitution of India and
against the principles of natural justice. Further the said
action of the Petitioners was in teeth with the specific
recommendation of the Vth CPC (Annexure R3) and its own
Office Memorandum dated 31.3.1999 (Annexure P1).
Consequentially, the services of the Respondents were not
initially included in the restructured SSS Group C services.

Further, as per Rules 8(iv) and (v) thereof, the Group


C departmental candidates who were not absorbed at the
initial constitution of service (including the Respondents
herein) shall continue to work and shall be considered by the
Petitioner No. 2 (Controlling Authority) for appointment to the
service at a subsequent stage after their suitability was
determined. It is pertinent to note that the said consideration
for appointment of the unabsorbed departmental candidates
was notwithstanding to the future appointments to the
constituted Statistical Investigator Grade IV service which
provided only 10% vacant posts to be filled through
promotion from feeder cadres. However, the Petitioner No.
2, inspite of repeated representations qua the same, has
failed to consider the appointment of the Respondents in the
restructured SSS (Group C) services.
8

The true copy of the SSS (Group C) Rules, 2002 dated


12.2.2002 is annexed hereto as Annexure R4 (pages 48 to
66).

9. That I say that since the posts of Junior Computors/


Comptometers as held by the Respondents were never
placed in the replacement pay scale as recommended by
the Vth CPC (Annexure R3) and as prescribed by the
Petitioner No. 2 (Annexure P1), they also lost on the
opportunity of even being considered as a feeder cadre to
the future post of the restructured Statistical Investigator
Grade IV (equivalent to Junior Investigator as per RR) for no
fault of theirs. The Schedule III of the SSS (Group C) Rules,
2002 (Annexure R4) provided that only the officials in the
pay scale of Rs 4000-6000 and Rs 4500-7000 (revised as
per Vth CPC) and holding the posts in different Ministries with
8 and 3 years of regular service shall be considered a feeder
cadre for filing 10% of the future vacant posts through
promotion. The pay scale of the Respondents being less
than the one stipulated above made them virtually incapable
of securing a promotion ever in their whole service forcing
them to superannuate from their current post only.

10. That I say that in a complete arbitrary manner the


Petitioner No. 1 vide its Office Memorandum dated
15.3.2002 submitted all the promotional posts of the
Respondents (18 posts of Junior Investigator and 12 posts
of Senior Investigator) to be included in the SSS. The said
9
posts were filled up by promoting many numbers of Junior
Computors/ Comptometer Operators who were working with
the Petitioner No. 1 at that time.

The Petitioner No. 2, vide subsequent Office


Memorandum dated 7/8.1.2004, accepted the said proposal
of the Petitioner No.1 and correspondingly allotted 18 posts
of Statistical Investigator Grade IV and 12 posts of Statistical
Investigator Grade II to the Petitioner No. 1. The Petitioner
No. 2 had failed to specify the source for filling up any future
vacancy in these allotted posts and kept the same with itself
without providing the Respondents any opportunity of being
considered for the allotted posts.

The true copy of the Office Memorandum dated


15.3.2002 issued by the Petitioner No. 1 is annexed hereto
as Annexure R5 (pages 67 to 73). The true copy of the
Office Memorandum dated 7/8.1.2004 issued by the
Petitioner No. 2 is annexed hereto as Annexure R6 (pages
74 to 78).

11. That I say that the Petitioner No. 1, in light of the


representations of the Respondents, even addressed a
communication dated 31.3.2004 to the Petitioner No. 2 and
requested it to suggest a way to upgrade the pay scale of
Junior Computors/ Comptometer Operators (Respondents
herein) so that they can be considered as a feeder posts for
the Statistical Investigator Grade IV (Pay Scale Rs 5000-
8000) of SSS. The Petitioner No. 2 vide its Reply Office
10
Memorandum dated 7.5.2004 simply left the matter
undecided by stating that it could not consider the
Respondents for promotion as they were at a pay scale of
Rs 3050-4590 which was lower than the required pay scale
of Rs 4000-6000 for being considered as a feeder cadre for
future promotions to the SSS.

The true copy of the Office Memorandum dated


7.5.20004 issued by the Petitioner No.2 is annexed hereto
as Annexure R7 (pages 79 to 80).

12. That I say that I vide my written representation dated


3.7.2009 addressed to the Petitioner No. 1 once again
brought the plight of the Respondents to fore and requested
the Petitioner No. 1 to upgrade the pay scale of the post of
Junior Computors/ Comptometer Operators held by the
Respondents from Rs 3050-4590 (pre revised) to Rs 4000-
6000 (pre revised) so that they can be included in the feeder
cadre of SSS. It is worth mentioning that the Respondents
were already drawing more than Rs 4000-6000 (pre revised)
as basic pay and the proposed upgradation would not had
entailed any additional financial burden on the exchequer.

The true copy of the Written Representation dated


3.7.2009 sent by the Respondent No. 1 to the Petitioner No.
1 is annexed hereto as Annexure R8 (pages 81 to 83).

13. That I say that the Petitioner ministries had repeatedly


assured the Respondents about their inclusion in the feeder
11
cadre of SSS to avail the promotional avenues. However, as
it turned out, they have only passed the buck to each other
while keeping the Respondents in lurch and denying them
their rightful promotion and career progression for so many
years. The same is evident from the fact that

i) the Petitioner No. 1 vide its Office Memorandum


dated 10.12.2009 sent to the Petitioner No. 2
informed it that the post of Junior Computors/
Comptometer Operators had not been included in
the feeder cadre of SSS and the Respondents were
left with no posts on which they could be promoted
and thus requested the inclusion of the
Respondents in SSS on sympathetic grounds.

The true copy of the Office Memorandum dated


10.12.2009 issued by the Petitioner No. 1 is
annexed hereto as Annexure R9 (pages 84 to 87).

ii) the Petitioner No. 2 vide its Office Memorandum


dated 8.2.2010 in reply gave its no objection to the
inclusion of the posts of Junior Computors/
Comptometer Operators in the feeder cadre to SSS
provided their pay scale was upgraded to Rs 4000-
6000 (pre-revised) and they fulfill the eligibility
conditions as prescribed in recruitment rules of
SSS.
12
The true copy of the Office Memorandum dated
8.2.2010 issued by the Petitioner No. 2 is annexed
hereto as Annexure R10 (pages 88 to 89).

iii) the Petitioner No. 1 vide its Letter dated 23.8.2011


responded to the legal notice sent by the
Respondents and noted that in the restructured
services no promotional avenues had been left for
them. It further stated that the proposal of
encadering the Junior Computors/ Comptometer
Operators as Senior Computors with 8 years of
regular service was returned by the Petitioner No.
2 stating that the revised recruitment rules of SSS
were under finalization with DoPT and once the
same were approved, SSS division may be
approached for relaxation, etc.

The true copy of the Letter dated 23.8.2011


issued by the Petitioner No. 1 is annexed hereto as
Annexure R11 (pages 90 to 91).

iv) the Petitioner No. 2 vide its Office Memorandum


dated 25.8.2011 again stated that once the revised
recruitment rules of SSS were finalized the eligible
persons in the Grade Pay of Rs 2800/2400 along
with the passed in Grade Pay of Rs 1900/2000
(including the Respondents) would be considered
for one time relaxation.
13
The true copy of the Office Memorandum dated
25.8.2011 issued by the Petitioner No. 2 is annexed
hereto as Annexure R12 (pages 92 to 96).

14. That I say that the Petitioner No. 2 vide its notification
dated 31.5.2013 notified the new Subordinate Statistical
Service Rules, 2013. As per the said notification, the SSS
shall include the following restructured posts being
a) Statistical Investigator Grade I
(Designation – Senior Statistical Officer)
(Pay Band-II Rs 9300-34800 with Grade Pay- Rs
4600) – being equivalent to the earlier Statistical
Investigator Grade I and II

b) Statistical Investigator Grade II


(Designation – Junior Statistical Officer)
(Pay Band-II Rs 9300-34800 with Grade Pay- Rs
4200) – being equivalent to the earlier Statistical
Investigator Grade III and IV consisting of the
promotional posts of the Respondents

15. That I say that since the pay scales of the posts of
Junior Computors/ Comptometers as held by the
Respondents were never upgraded despite repeated
assurances by the Petitioner ministries, they again lost on
the opportunity of even being considered as a feeder cadre
to the future post of the restructured Statistical Investigator
Grade II (Junior Statistical Officer) for no fault of theirs. The
Schedule II of the SSS Rules, 2013 provided that only the
14
officials in Pay Band-1 of Rs 5200-20200 plus Grade Pay of
Rs 2400 with 10 years of regular service in the grade shall
be considered a feeder cadre for filing 10% of the future
vacant posts through promotion. The pay scale and the
Grade Pay of the Respondents being less than the one
stipulated above made them virtually incapable of securing
a promotion ever in their whole service forcing them to
superannuate from their current post only.

The true copy of the SSS Rules, 2013 dated 31.5.2013


is annexed hereto as Annexure R13 (pages 97 to 111).

16. That I say that despite the non-inclusion of the posts


of the Respondents as a feeder cadre in the SSS, as per the
2013 rules, the Petitioner ministries once again assured the
Respondents that their due promotion to the new post of
Junior Statistical Officer was under consideration by the
Petitioner No. 2. The Petitioner No. 1 had filed the Additional
Affidavit dated 18.10.2013 (Annexure P4) in OA No.
4620/2011 (Application filed by the Respondents before the
Hon’ble CAT, Delhi) to bring on record the fact that the
Petitioner No. 2 had proposed to relax the rules for the
Respondents to promote them to the post of Junior
Statistical Officer in SSS. Further, the proposal dated
12.5.2016 (Annexure P7) sent by the Petitioner No. 1
pleaded for a one-time relaxation to the Respondents for
their encaderment in SSS.
15
17. That I say that despite the repeated assurances by the
Petitioner ministries to grant one-time relaxation to the
Respondents to avail promotional avenues under SSS, no
respite has come to the Respondents and they are still being
left in lurch by the Petitioner ministries after having given
more than 20 years of regular service.

18. That I say that the impugned judgement passed by the


Hon’ble Delhi High Court is premised on the interest of
justice and passed on equitable considerations in the
peculiar facts and circumstances of the case. The Hon’ble
Delhi High Court vide the impugned judgment has rightly
held that the Respondents had not joined on isolation posts
and since the cadre of the Respondents is admittedly a
dying cadre the problem of stagnation is temporary. Thus,
the Hon’ble Delhi High Court has been pleased to innovate
to promote the Respondents to the posts of Junior
Investigator and Senior Investigator and to grant them
consequential monetary relief subject to them meeting the
norms laid down by the RRs of DGE&T. Thus, I respectfully
submit this Hon’ble Court be pleased to affirm the impugned
Judgement

PRELIMINARY OBJECTIONS

Misplaced reliance by the Petitioner ministries on the Letter


dated 11.5.2018 (Annexure P11) issued by the Ministry of
16
Finance, GoI and Letter dated 15.6.2018 (Annexure P12)
issued by the UPSC

19. That I say that the Petitioner ministries have wrongly


placed reliance on certain inter-departmental
communications to contend that one-time relaxation to the
Respondents to avail promotional avenues cannot be
granted since
a) Ministry of Finance, GoI vide its Letter dated 11.5.2018
(Annexure P11) rejected the proposal of the upgrading
the Grade Pay of the Respondents on the ground that
upgradation of posts involving upward revision of pay
scales is not considered for removing stagnation

b) UPSC vide its Letter dated 15.6.2018 (Annexure P12)


has stated that one-time mode is given for filling up the
posts in absence of recruitment rules/ statutory rules.
In the present case, since the SSS rules are available
one-time mode is not applicable

I further say that the said communication in no manner


bars the rights of the Respondents to seek promotional
avenues, rather it supplements their cause. The UPSC, vide
its Letter dated 15.6.2018 (Annexure P12) relied upon by the
Petitioners, had categorically advised the Petitioner No. 2 to
amend the SSS rules to ensure the inclusion of the Junior
Computors/ Comptometer Operators (Respondents herein)
at the appropriate level in hierarchy. The UPSC had even
requested the Petitioner No. 2 to prepare a proposal for
17
amendment of SSS Rules and after obtaining approval from
DoPT bring the same before it for due consideration. It is
submitted that once the Petitioner No. 2 amends the SSS
Rules to provide that the Junior Computors/ Comptometer
Operators with the required number of regular services can
be considered for the now existing post of Junior Statistical
Officer, the question of upgrading the Grade Pay of the
Respondents become superfluous and simply does not
arise.

Unjustified assertion by the Petitioner ministries that grant of


financial upgradation under MACP is justified in lieu of
promotion

20. That I say that the Petitioner ministries have


contended that the Respondents are provided the benefit of
financial upgradation under MACP, as per DoPT guidelines,
in lieu of promotion and thus they are not entitled for any
further monetary benefits. It is submitted that the Hon’ble
Delhi High Court has rightly observed on the facts that the
grant of benefit under MACP scheme cannot be considered
as a fair substitute more so when the Respondents joined
their posts in view of the promotional avenues associated
with them but were denied the same only on account of the
post facto transfer of the said promotional posts to SSS.

I further say that the Hon’ble Delhi High Court has


rightly stated that the benefit under MACP does not entail
the grant of the pay scale associated with the promotional
18
posts rather only the grant of higher grade pay which is
generally lower than the pay scale associated with the
higher post. I further say that the same is quite evident from
the fact that since the 3 levels of time bound promotional
avenues (Junior Investigator, Senior Investigator and
Research Officer) were taken away from the Respondents,
they are currently incurring a difference of Rs. 13,000/- p.m.
in their basic pay despite having received financial benefits
under MACP. The chart detailing the loss of pay scale and
income by the Respondents is tabulated below:

Particulars Basic pay Grade Pay Gross Pay

Salary of Junior
Computer (JC) /
Comptomoter Operator
(CO) at the time of joining 8190 2000 10190
DGE&T
(Pay Scale Rs.3050 as
per the 5th CPC)

Salary of the JC/ CO


upon being promoted to
Junior Investigator (JI) as
per RR with 12 years
9300 4200 13500
regular service
(Level 5 Pay band
Rs.9300-Rs.34800 as
per 6th CPC)
Salary of the JI upon
being promoted to Senior
Investigator (SI) as per
RR with 5 years regular
18340 4600 22940
service
(Level 6 Pay band
Rs.9300-Rs.34800 as
per 6th CPC)
Salary of the SI upon
being promoted to 50500 4600 55100
Research Officer (RO) as
19
per RR with 3 years
regular service
(Level 7 Pay band
Rs.9300-Rs.34800 as
th
per 6 CPC)
JC/ CO current salary
(November, 2020)
without a single
promotion for the last
37500 37500
22 years
(Level 2 Pay band
Rs.5200-Rs.20200 as
th
per 7 CPC)

21. That I say that the present Petition under reply is


devoid of any merits and is an abuse of the process of law
and thus liable to be dismissed.

PARAWISE REPLY

22. That I say that the contents of Para 1 of the Petition


under reply are matter of record and need no comments
except that the impugned judgement was passed after
considering the facts and circumstances of the present case.
The contents of the Preliminary Submissions and
Preliminary Objections are reiterated herein.

23. That I say that the contents of Para 1A of the Petition


under reply are matters of record and need no comments.

24. That I say that none of the questions of law, let alone
any substantial question of law, as framed under Para 2 of
the Petition under reply arise in the present case. The
20
contents of the Preliminary Submissions and Preliminary
Objections are reiterated herein.

(i) The contents of sub-para (a) are admitted to the extent


that they relate to matters of record and the rest is
denied as being incorrect. It is submitted that the
Hon’ble High Court was justified in directing the
Petitioners to hold DPC for considering the
Respondents for the promotion. It is submitted that the
Hon’ble Delhi High Court was justified in granting all
consequential monetary benefits to the Respondents.
It is specifically denied that the RRs of the Junior
Investigator had become infructuous as alleged. It is
submitted that the Respondents do not hold the pay
scale required for making them eligible for the feeder
cadre but the same is owing to the fact that the
Petitioner ministries arbitrarily put the pay scale of the
posts of Junior Computors/ Comptometers as held by
the Respondents out of the replacement scale. The
said biased and arbitrary action of the Petitioners in
complete violation of the Article 14 of the Constitution
of India was not only against the principles of natural
justice rather in teeth with the specific
recommendation of the Vth CPC (Annexure R3) and its
own Office Memorandum dated 31.3.1999 (Annexure
P1).

(ii) The contents of sub-paras (b) to (d) are admitted to the


extent that they relate to matters of record and the rest
21
is denied as being incorrect. It is denied that the
benefits under the ACP scheme cannot be granted to
the Respondents. It is submitted that the Respondents
are currently possessing the required length of service
of 12 years for granting the benefits as applicable to
them. It is submitted that the Hon’ble High Court has
directed the Petitioners to grant the Respondents pay
scales associated with the promotional posts of Junior
Investigator and Senior Investigator using the
parameters of ACP scheme and not perse under the
ACP scheme. The question of the ACP scheme not
being in practice at present has no relevance. It is
submitted that benefits under MACP does not entail
the grant of the pay scale associated with the
promotional posts rather only the grant of higher grade
pay which is generally lower than the pay scale
associated with the higher post. It is submitted that
since the 3 levels of time bound promotional avenues
(Junior Investigator, Senior Investigator and Research
Officer) were taken away from the Respondents, they
are currently incurring a difference of Rs. 13,000/- p.m.
in their basic pay despite having received financial
benefits under MACP. It is denied that the Hon’ble
High Court has exceeded its jurisdiction.

25. That I say that the contents of Para 3 of the Petition


under reply need no comments.
22
26. That I say that the contents of Para 4 of the Petition
under reply need no comments.

27. That I say that contents of the grounds as formulated


in Para 5 of the Petition under reply are admitted to the
extent that they relate to matters of record and the rest is
denied in its entirety.

(i) The ground at sub-para A under reply has no


relevance to the facts of the case. The contents of the
Preliminary Submissions and Preliminary Objections
are reiterated herein. The Hon’ble Delhi High Court
has directed the Petitioner ministries to grant the
Respondents pay scales associated with the
promotional posts of Junior Investigator and Senior
Investigator using the parameters of ACP scheme and
not per se under the ACP scheme. The question of
ACP scheme being not in existence w.e.f. 1.9.2008
has no relevance.

(ii) The ground at sub-para B under reply are admitted to


the extent that they relate to matters of record and the
rest is denied in its entirety. The contents of the
Preliminary Submissions and Preliminary Objections
are reiterated herein. It is submitted that the lower pay
scale of the posts of Junior Computors/ Comptometer
Operators making them ineligible for inclusion in
feeder cadre is owing to the arbitrary and biased
conduct of the Petitioner ministries. The said biased
23
and arbitrary action of the Petitioners is in complete
violation of the Article 14 of the Constitution of India
and against the principles of natural justice. Further
the same is in teeth with the specific recommendation
of the Vth CPC (Annexure R3) and its own Office
Memorandum dated 31.3.1999 (Annexure P1). It is
denied that the RRs of the post of Junior Investigator
in DGE&T had become infructuous. It is denied that no
post of Junior Investigator is available under the cadre
administered by DGE&T. It is denied that it is not
feasible to conduct DPC for promotion in respect of
Junior Computors/ Comptometer Operator to the post
of Junior Investigator.

(iii) The ground at sub-paras C to E under reply are


admitted to the extent that they relate to matters of
record and the rest is denied in its entirety. The
contents of the Preliminary Submissions and
Preliminary Objections are reiterated herein. It is
denied that the UPSC Letter dated 15.6.2018 rejected
the proposal. It is submitted that the said
communication in no manner bars the rights of the
Respondents to seek promotional avenues, rather it
supplements their cause. The UPSC vide its Letter
dated 15.6.2018 (Annexure P12) had categorically
advised the Petitioner No. 2 to amend the SSS rules
to ensure the inclusion of the Junior Computors/
Comptometer Operators (Respondents herein) at the
appropriate level in hierarchy. The UPSC had even
24
requested the Petitioner No. 2 to prepare a proposal
for amendment of SSS Rules and after obtaining
approval from DoPT bring the same before it for due
consideration. It is submitted that once the Petitioner
No. 2 amends the SSS Rules to provide that the Junior
Computors/ Comptometer Operators with the required
number of regular service can be considered for the
now existing post of Junior Statistical Officer, the
question of upgrading the Grade Pay of the
Respondents become superfluous and simply does
not arise.

(iv) The grounds at sub-para F under reply are


admitted to the extent that they relate to matters of
record and the rest is denied in its entirety. The
contents of the Preliminary Submissions and
Preliminary Objections are reiterated herein. It is
submitted that the Petitioner No. 1 vide its Letter dated
23.8.2011 responded to the legal notice sent by the
Respondents and admitted that in the restructured
services no promotional avenues had been left for
them. It further assured the Respondents for a
resolution stating that the proposal of encadering the
Junior Computors/ Comptometer Operators as Senior
Computor with 8 years of regular service was returned
by the Petitioner No. 2 stating that the revised
recruitment rules of SSS were under finalization with
DoPT and once the same were approved, SSS
division may be approached for relaxation, etc.
25
However, neither did the Petitioner provided for a
provision to the Respondents under the SSS Rules,
2013 nor the one time relaxation as assured to them
was delivered.

(v) The grounds at sub-para G to H under reply are


repetitive and the contents of the Preliminary
Submissions and Preliminary Objections and sub-para
(iii) hereinabove are reiterated herein.

(vi) The grounds at sub-para I to J under reply are


repetitive. The contents of the Preliminary
Submissions and Preliminary Objections and sub-para
(i) and (ii) hereinabove are reiterated herein.

(vii) The ground at sub-para K under reply is denied


as being incorrect. The contents of Preliminary
Submissions and Preliminary Objections are
reiterated herein. It is denied that the impugned
Judgement amounts to miscarriage of justice. It is
submitted that the impugned judgement is passed in
the interest of justice.

28. That I say that the contents of the Para 6 of the Petition
under reply are admitted to the extent that they relate to
matters of record and the rest is denied. The contents of
Preliminary Submissions and Preliminary Objections are
reiterated herein. It is denied that the Petitioners have a
26
prima facies case in their favour. It is denied that the
Petitioners will suffer irreparable loss if the impugned
judgment is not stayed. It is denied that the balance of
convenience lies in favour of the Petitioners. It is denied that
the Respondents are not eligible for benefits under ACP. It
is submitted that the Hon’ble High Court has directed the
Petitioners to grant the Respondents pay scales associated
with the promotional posts of Junior Investigator and Senior
Investigator using the parameters of ACP scheme and not
per se under the ACP scheme. The question of the ACP
scheme not being in practice at present has no relevance. It
is denied that on merits the Petitioners have a good case. It
is denied that the matter is of immense importance having
far reaching consequence affecting public interest.

29. That I say that in view of the above, it is submitted that


there is no ground for the Petitioners to claim any main relief,
as prayed for in Para 7 of the Petition under reply, or any
interim relief, as prayed for in Para 8 of the Petition under
reply, as they have failed to make out any justified ground
for the averments and prayer made by them in the present
Petition.

30. That I say that in light of the aforesaid submissions of


the Respondents, it is most respectfully prayed that the
present Petition filed by the Petitioners is liable to be
dismissed with exemplary costs in the interest of justice.
27
31. That I say that I have in Para 19 hereinabove
responded to the documents filed by the Petitioners with the
Special Leave Petition, and have, with a view to illustrate
before this Hon’ble Court the ongoing loss of pay scale and
income by the Respondents till date, set out in Para 20
hereinabove the same in the tabulated chart. No other facts
have been pleaded in this Counter Affidavit which were not
pleaded before the Hon’ble Courts below.

32. That I say that I crave leave to add or supplement the


present counter affidavit with further submissions as may be
considered necessary.

DEPONENT

VERIFICATION
I, the abovenamed Deponent do hereby solemnly
verify at New Delhi on this 4th day of December 2020 that
the contents of the Para 1 to 32 of this Affidavit are true and
correct to my knowledge, no part of it is false and nothing
material has been concealed.

DEPONENT

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