REPORTABLE          

IN THE SUPREME COURT OF INDIA          CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL Nos.9113-9126 of 2003

UNION OF INDIA & ORS.       ....Appellants   

Versus R.VASUDEVA MURTHY & ORS.            ...Respondents

W I T H Civil Appeal Nos. 9151-9153 of 2003;  Civil Appeal No. 3031 of 2004;  Civil Appeal No. 1590 of 2007; and  Civil Appeal No. 1778 of 2007.

J U D G M E N T   

Deepak Verma, J.  

1.In  these  and  connected  appeals,  we  are  required  to  consider  the  effect  and  implication  of  the  Office  Memorandum No.13(1)-IC/91 dated 19.10.1994 (hereinafter for  the sake of brevity shall be referred to as 'O.M.') issued  by Government of India, Ministry of Finance, with regard to  revision of pay scales of Draughtsmen Grade I, Grade II and  Grade III in all Government of India offices. As it was  felt that Draughtsmen of various Departments, even though  discharging same functions, were paid different pay scales,  thus to bring parity throughout the country with regard to  their  pay  scales, the aforesaid O.M. was issued. The said

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 2 - O.M.  came  to  be  considered  by  the  various  High  Courts  namely,  High  Court  of  Karnataka,  High  Court  of  Andhra  Pradesh, High Court of Madras and High Court of Gujarat as  many Draughtsmen had approached the different Benches of  Central  Administrative  Tribunals  for  extending  them  the  benefits of the O.M. Since the benefit was extended to them  by  the  different  Tribunals,  Union  of  India  and/or  Department  of  Telecommunications  had  approached  the  jurisdictional High Courts challenging it. However, there  have  been  divergent  views  with  regard  to  implementation  thereof. Thus, in nut shell we are called upon to set at  rest  the  controversy  by  giving  true,  correct,  proper,  meaningful and purposeful interpretation of the said O.M. 2.Various  judgments  of  the  High  Courts  would  also  be  considered at a later stage.  Prior to issuance of the said  O.M., a notification was issued on 23rd August 1993 by the  Ministry of Communication, Department of Telecommunications  dealing  with  the  same  subject  as  mentioned  hereinabove.  This Notification was issued in the light of various orders  passed by the Central Administrative Tribunal and various  High  Courts  from  time  to  time.  On  account  of  several  representations received from Draughtsmen for introduction  of Grades and pay scales at par with those working in CPWD,  by the said Notification three grades in the pre-revised  payscale   of   Rs.330-560,     Rs.425-700  and  Rs.550-750

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 3 - designated as Draughtsmen Grade III, Draughtsmen Grade II  and Draughtsmen Grade I respectively were fixed. The said  notification  further  fixed  ratio  of  60:30:10  for  Draughtsmen  Gr.III,  Gr.II  and  Gr.I  respectively.   The  number of posts for Grade II and Grade I were to be worked  out on Circle basis as these are Circle cadres. 3.It further contemplated that the revised pay scales will  be admissible to these officials notionally from 22.8.1973  but  actual  financial  benefit  would  accrue  to  them  from  16.11.1978 or from the date of appointment / promotion in  each grade, whichever is later.  4.Another  Notification  dated  6.7.1994  was  issued  by  the  same Ministry in exercise of powers conferred by proviso to  Article  309  of  the  Constitution  of  India  and  in  supersession  of  the  Telecommunications  Department  Draughtsmen  (Recruitment)  Rules  1986.   By  this  Notification, the Rules with regard to regulating method of  recruitment to the post of Draughtsmen Grade III, Grade II  and Grade I in the Department of Telecommunication were  notified,  known  as  the  Telecommunications  Department  (Draughtsman  Grade III, Grade II and Grade I) Recruitment  Rules, 1994.  They were to come into force from the date of  its publication in the official gazette.  Schedule appended  thereto mentions that total number of 900 posts would be  available  with regard to  Draughtsmen Grade III in the pay

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 4 - scale  of  Rs.1200-30-1560-EB-40-2040,  450  posts  of  Draughtsmen Grade II would be available in the pay scale of  Rs.1400-40-1800-EB-50-2300 and 150 posts would be available  for  Draughtsmen Grade I in the pay scale of Rs.1600-50- 2300-EB-60-2660 as on 31.12.1992.  However, it was subject  to  variation  as  per  the  requirement  and  need  of  the  Department.   5.All these posts were categorised as Group 'C' and DPC of  the officers was to be constituted as projected in the said  schedule.  As  already  mentioned  hereinabove,  all  the  aforesaid cadre posts were in the ratio of 60:30:10. 6.Impugned  O.M.  Dated  19.10.1994  clearly  mentioned  that  minimum period of service for Grade III, Grade II and Grade  I would be 7 years, 5 years and 4 years respectively, so as  to make them entitled to earn upgradation  or revision of  their salary. 7.For proper appreciation and examination of O.M., the same  is reproduced hereinbelow:

 " No.13(1)-IC/91

Government of India Ministry of Finance

Department of Expenditure ___________ New Delhi, the 19th Oct., 1994

OFFICE MEMORANDUM Subject:- Revision of pay scales  of Draughtsmen Grade I,  

II and III in all Government of India offices on  the basis of Central Public Works Department.

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 5 -       The undersigned is directed to refer to this  department's  O.M.No.F.5(59)-E.III/82  dated  13.3.1984 on the subject mentioned above and to day  that a Committee of the National Council (JCM) was  set up to consider the request of the Staff Side  that the following scales of pay, allowed to the  Draughtsmen Grade I, II and III working in CPWD on  the basis of the Award of Board of arbitration may  be extended to Draughtsmen Gradw I, II and III,  irrespective of their recruitment qualification, in  all Government of India offices:   Original Revised Scales  Scale    on the basis of the   Award       (Rs.)              (Rs.) Draughtsmen Grade I    Rs. 425-700    Rs. 550-750 Draughtsmen Grade II   Rs. 330-560    Rs. 425-700   Draughtsmen Grade III  Rs. 260-430    Rs. 330-560 2. The  President  is  now  pleased  to  decide  that  the  Draughtsmen  Grade  I,  II  and  III  in  offices/departments of the Goverment of India other  than in CPWD may also be placed in the scales of  pay mentioned above subject to the following:

(a) Minimum period of service for  placement  from  the  post  carrying scale of Rs.975-1540  to  Rs.1200-2040  (pre-revised  Rs.260-430 to 330-560)

: 7 Years

(b) Minimum period of service for  placement  from  the  post  carrying scale of Rs.1200-2040  to  Rs.1400-2300  (pre-revised  Rs.330-560 to 425-700)

: 5 Years

(c) Minimum period of service for  placement  from  the  post  carrying scale of Rs.1400-2300  to  Rs.1600-2660  (pre-revised  Rs.425-700 to 550-750)

: 4 Years

 C.A.Nos.9113-9126/03 etc. .... (contd.)

- 6 - 3.Once the Draughtsmen are placed in the regular  scales, further  promotions would be made against  available  vacancies  in  higher   grade  and  in  accordance  with  the  normal  eligibility  criteria  laid down in the recruitment rules. 4.The benefit of this revision of scales of pay  would  be  given  with  effect  from  13.5.1982  notionally and actually from 1.11.1983.

Sd/-  Under Secretary to the Govt. Of India"

1.Clause  3  thereof  clearly  stipulates  that  once  the  Draughtsmen  are  placed  in  regular  scales,  their  further  promotion  would  be  made  against  available  vacancies  in  higher Grade and in accordance with criteria laid down in  the  Recruitment  Rules.  Plain  and  simple  reading  of  the  aforesaid  Clause  3  makes  it  clear  that  upgradation/  revision of pay scale is not as of right by putting in  minimum period of service of 4 years, 5 years and 7 years  as the case may be but is attached with riders. To get  upgradation,  it  is  necessary  that  the  vacancies  are  available, only then the said upgradation would be allowed  and  it  is  further  subject  to  the  Recruitment  Rules  applicable to the case of each employee. 2.However, different High Courts have interpreted the O.M.  differently.  In fact, Karnataka High Court and High Court  of  Gujarat  have  held  that  once  a  Draughtsman  puts  in  requisite length of service, he would automatically become  entitled  for upgradation of his salary as per the O.M. but  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 7 - Madras High Court and full Bench of Andhra Pradesh High  Court have held that it would be applicable only if there  exists a vacancy in the respective cadres. Thus, we are  required to consider the said matter in the light of the  judgments of various High Courts, which we shall do now.    3.The Union of India, feeling aggrieved by the Order passed  by Central Administrative Tribunal, Bangalore had  filed a  Writ Petition before a Division Bench of the High Court of  Karnataka at Bangalore which came up for consideration on  29.6.2001.  On the said date, while disposing of the said  petition, Division Bench passed the following order:

"Respondents  had  completed  four  years  of  service for being put in the higher grade as per  the Notification dated 19.10.1994 much earlier to  the  withdrawal  of  the  said  Notification  on  19.2.1997.   The Tribunal has rightly granted the  benefit  of  the  G.O.  Dated  19.10.1994  to  the  respondents.  No merit. Dismissed.  Sd/-

Sd/-"

4.Thus, the High Court of Karnataka held that the Tribunal  was  justified  in  granting  the  benefit  of  G.O/O.M  dated  19.10.1994, to the respondents working as Draughtsmen.  5.The Union of India, feeling aggrieved by the order passed  by  the  Central  Administrative  Tribunal,  Ahmedabad  was  pleased  to  file  several  Special Civil Applications  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 8 - before a Division Bench of the High Court of Gujarat.  The

same came to be heard and disposed of on 4.7.2002. 6.The operative and relevant part of the said judgment is  reproduced hereinbelow:    

 "It is, therefore, amply clear that after  the implementation of the revised scales at par  with  CPWD  Draughtsmen  and  in  light  of  the  publication of statutory rules for recruitment  of  Grade-III,  II  and  I  Draughtsmen,  the  proposition of ratio of 60:30:10 introduced by  the O.M. Dated 23rd August, 1993 shall obviously  stand  obliterated.  Therefore,  it  cannot  be  contended   at  this  stage  that  the  ultimate  consequences recorded by the Tribunal in three  impugned judgments based on factual matrix and  correct interpretation of the government's O.M  are in any way, unjust, unreasonable, illegal,  perverse  or  in  any  way  vulnerable.   In  our  opinion, this group of three petitions at the  instance  of  the  Union  of  India  against  identical three judgements of the Tribunal on  common  issues  in  exercise  of  extraordinary,  prerogative and discretionary writ jurisdiction  under Articles 226 and 227 of the Constitution  of India are devoid of any merits and deserve  to be thrown overboard at the admission stage.  Therefore, they are rejected at the threshold,  Notice shall stand discharged without any order  as to costs.

Sd/- Sd/-"  

The  result of the said judgment is that the order of the  Tribunal  was  upheld  and  the  respondents  were  granted  benefit  of  the  O.M.  However,  it  has  not  taken  into  consideration the clause regarding availability of posts or  eligibility criteria laid down in the relevant Recruitment  Rules.

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 9 - 7.The Union of India was also constrained  to file W.P.

No.597 of 2000 before a Division Bench of High Court of  Judicature  at  Madras  challenging  the  order  passed  by  Central  Administrative  Tribunal,  whereby  the  application  filed by respondent therein R. Jothimani was allowed. The  Tribunal had directed that salary of respondent Jothimani  be  fixed in the higher pay scale on the basis of his  having completed 4 years of service in the post of Grade II  Draughtsmen. The said Writ Petition also came to be allowed  and the order of the Tribunal was quashed. The operative  and  relevant  para  of  the  said  judgment  of  the  Division  Bench of High Court of Madras is reproduced hereinbelow:

 "The  first  respondent  did  not  in  any  manner  show  that  actually  the  posts  were  available in Grade I and that in spite of such  availability, his claim was not accepted which  was made by making a specific representation.  We, therefore, are unable to agree with the  Tribunal and more particularly its reasoning  that since there is no ratio provided in the  Office  Memorandum  dated  19.10.1994  therefore  the  first  respondent  automatically  became  entitled to be fixed in the higher grade or to  be taken to the Grade I Draughtsmen post on  the completion of his four years of service.  According to us, even if the first respondent  became entitled by reason of his continuous  service of four years in Grade II yet he could  be entitled to the higher emoluments or the  higher  pay  scale  only  if  the  post  was  available in Grade I in terms with the ratio  provided  for  by  the  rules  and  more  particularly  by  office  memorandum  dated  23.8.1993.   That being the case, we must hold  that  the  Tribunal was in error in taking the  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 10 - view that it held. We accordingly set aside

the  order  of  the  Tribunal  and  order  the  dismissal of the original application.   The  writ  petition  is  allowed.   However,  there  shall be no orders as to the costs.  W.M.P.  No. 869 of 2000 is closed."

8.Admittedly, against the order passed by the Madras High  Court, in the aforesaid matter, the respondent therein did  not  challenge  the  same  before  this  Court  by  filing  a  Special Leave Petition. Thus, the order of the Madras High  Court had attained finality.   9.In  the  High  Court  of  Andhra  Pradesh  at  Hyderabad,  on  account  of  difference  of  opinion  between  two  Division  Benches,  matter  was  referred  to  a  Full  Bench  of  three  learned  Judges.  It  pronounced  its  opinion  on  24.9.2004.  There  also  the  Union  of  India  had  preferred  the  Writ  Petitions against the order of the Central Aministrative  Tribunal Hyderabad, whereby  benefit of the O.M. was given  to  Draughtsmen.  Relying on the relevant portion of the  judgment of the Division Bench of the High Court of Madras  quoted hereinabove,  the Full Bench answered the reference  in  favour  of  the  Union  of  India  and  against  the  Draughtsmen.  10.In the light of the opinion expressed by the Full Bench,  matter was placed before the Division Bench of the said  High Court, which allowed the writ Petition filed by the  Union of  India and dismissed the Original Application  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 11 -

filed by the respondents, Draughtsmen. 11.In the light of the aforesaid judgments of the Division  Benches and opinion expressed by the full Bench of the High  Court of Andhra Pradesh, we are now required to consider  what  would  be  the  true  correct,  proper,  meaningful,  effective, operative and purposeful interpretation of O.M.  dated 19.10.1994 reproduced hereinabove. 12.Learned  counsel  appearing  for  the  Draughtsmen  argued  before us with vehemence that necessary implication of the  O.M. is, as soon as Draughtsman Grade II completes 4 years  of service, automatically, he would be entitled, if not for  promotion,  at  least  for  upgradation  in  his  pay  scale  equivalent to that of Draughtsman Grade I.  They further  contended that there was no embargo created under the O.M.  or  any  of  the  service  regulations  applicable  to  these  employees to deprive them of the benefit of upgradation of  pay as the same was necessary consequence and implication  of issuance of O.M. dated 19.10.1994.   13.On the other hand, learned counsel appearing for the  Union  of  India  and  Department  of  Telecommuication  forcefully opposed the said contention and submitted that  irrespective  of  whether  an  employee  has  fulfilled  the  eligibility  criteria  of  minimum  years  of  service,  upgradation of scale and/or promotion to the respective  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 12 - grade  would  be  available  subject  to  availability  of

vacancies as per the O.M.  For the said purposes, they have  placed  great  reliance  on  the  Rules  which  have  been  formulated in  exercise of power conferred by proviso to  Article  309  of  the  Constitution  of  India.  These  Rules  clearly  stipulate  that  the  total  number  of  posts  of  Draughtsmen Grade III would be 900, posts of Grade II would  be  450  and  that  of  Grade  I   would  be  150  only  as  on  31.12.1992 circlewise and this would be of course, subject  to variation depending on workload.  No other Notification  or Rules were brought to our notice meaning thereby that  ever  since  23.08.1993,  when  the  aforesaid  ratio  of  Draughtsmen  was  fixed  at  60:30:10,  there  has  not  been  enhancement or modification in the same.  Thus, we have to  proceed on the assumption that even on this date, the total  circlewise cadre strength of the  Draughtsmen  Grade III,  Grade II and Grade I stands as mentioned hereinabove.  14.Now, coming to the O.M., Clause 3 thereof is relevant  which clearly stipulates that only when the Draughtsmen are  placed in the regular scales, they would be entitled to  further  promotion  against  available  vacancies  in  higher  grade  and  that  too  in  conformity  with  the  normal  eligibility criteria laid down in the Recruitment Rules. 15.Despite our repeated and persistent requests made to the  learned counsel  appearing for  the Union of India and  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 13 - the Department, they were not able to inform us if the

aforesaid strength fixed on 31.12.1992 has been enhanced or  not. We were of the opinion that more than 18 years have  elapsed  and  workload  having  increased  considerably,  strength must have been increased, but no positive answer  was  given  to  us.  It  appears  little  surprising  that  the  posts have not been enhanced for a period of last 18 years,  which is indeed not very appealing. 16.It is well settled that the Courts must lean against a  construction which reduces a statute to a nullity. In our  considered opinion, the O.M. must be so construed to make  it effective and operative, on the principle expressed in  the maxim:  "Ut res magis valeat quam pereat" meaning thereby that  the thing may rather have effect than be destroyed.

When the words employed in the O.M are clear, plain  and unambiguous, then they are reasonably susceptible to  only one meaning. Courts are bound to give effect to the  said  meaning  irrespective  of  consequences.  Necessary  consequence of the reading of the O.M. leaves no amount of  doubt  that  particular  length  of  service  alone  is  not  sufficient to entitle an employee to earn upgradation or  revision of pay, it would accrue only if the posts exist,  not otherwise.

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 14 - 17.In our considered opinion, the said O.M. does not give

an absolute and blanket right to these Draughtsmen to claim  upgradation/revision in the salary as soon as they put in  requisite  years  of  continuous  service  on  the  respective  post to become eligible either for higher pay scale or for  promotion.   Unless, there are requisite vacancies in the  respective cadres of Draughtsmen Grade III, Grade II and  Grade I, the Draughtsmen cannot be granted the said relief.  This is what we have been able to decipher from the O.M.  dated 19.10.1994, after critical and thorough examination  thereof.  18.Thus, in our opinion, the true, effective, operative and  correct interpretation of the said O.M is that, as and when  vacancy arises in the cadre of Grade I Draughtsmen, after  putting  in  requisite  minimum  service  as  per  said  Notification, then and only then the Draughtsmen Grade II  would be entitled for the higher pay scale not otherwise.  To clarify it further, we hold that the entitlement for  upgradation  of  salary  is  dependent  on  the  number  of  vacancies available and not otherwise.  It is also to be  noted  that  eligibility  to  claim  higher  pay  scale/upgradation is one thing but availability of vacancy  is another. One may be eligible  to claim higher pay scale  or upgradation but it is of course subject to availability  of posts. If posts are not available then, no benefit could  

C.A.Nos.9113-9126/03 etc. .... (contd.)

- 15 - be accrued to the Draughtsmen.

19.We make it clear that if any of the employees have been  given the benefit of the O.M. and payments have been made  by  the  Union  of  India  and/or  Department  of  Telecommunication,  it  would  not  be  entitled  to  recovery  thereof from the Draughtsmen as it would be too harsh and  unreasonable to ask for refund after such a long lapse of  time. 20.In the light of this, the appeals preferred by Union of  India  and  Department  of  Telecommuication  are  hereby  allowed.  The  Orders  passed  by  different  Benches  of  the  Central Administrative Tribunal and of Gujarat High Court  and Karnataka High Court are set aside and quashed and the  appeals preferred by  Draughtsmen are dismissed. 21.Looking to the facts and circumstances of the case, no  order as to costs.

......................J. [DALVEER BHANDARI]

  ......................J. [DEEPAK VERMA]

New Delhi. August 06, 2010.