Central Administrative Tribunal - Delhi
L. N. Rao vs Union Of India Through on 14 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI 1) O.A. NO.162/2008 2) O.A. NO.170/2008 This the 14th day of January, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) O.A. NO.162/2008 L. N. Rao, Assistant Commissioner of Police, Delhi Police, R/O C-4/4013, Vasant Kunj, New Delhi-110070. Applicant ( By Shri Naresh Kaushik, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Lt. Governor, Government of NCT of Delhi, Raj Niwas, Delhi. 3. Commissioner of Police, Delhi Police, Police Headquarters, IP Estate, New Delhi. Respondents ( By Shri R. N. Singh, Advocate ) O.A. NO.170/2008 Ravi Shankar, Assistant Commissioner of Police, Delhi Police, R/O 1637, Sector 23, Gurgaon, Haryana. Applicant ( By Shri Naresh Kaushik, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Lt. Governor, Government of NCT of Delhi, Raj Niwas, Delhi. 3. Commissioner of Police, Delhi Police, Police Headquarters, IP Estate, New Delhi. Respondents ( By Shri Ram Kawar, Advocate ) O R D E R Justice V. K. Bali, Chairman:
By this common order, we propose to dispose of two connected Original Applications bearing OA Nos.162/2008 and 170/2008, as common questions of law and facts are involved in both the matters. Learned counsel representing the parties also suggest likewise.
2. Applicants L. N. Rao in OA No.162/2008, and Ravi Shankar in OA No.170/2008, are Assistant Commissioners of Police (ACP) in Delhi Police. They initially joined Delhi Police as Sub Inspectors and because of their outstanding performance in discharge of duties, have got two out of turn promotions one as Inspector and the other as ACP. Even though, they have got the pay scale initially admissible to an ACP on his appointment to the said post, they are not getting the non-functional grade admissible to an ACP who has put in four years of service in the post, on the sole ground that their promotion to the post of ACP is on out of turn basis and, therefore, they are not in the cadre of the service, to whom alone such non-functional grade would be applicable. The only question of some significance that needs adjudication is as to whether denial of non-functional grade to the applicants admissible to their counter-parts is illegal and/or unjustified.
3. Before we may take into consideration the rival contentions of learned counsel representing the parties on the issue framed above, it would be appropriate to advert to the factual matrix of the case, which we have extracted from OA No.162/2008 in the matter of L. N. Rao v Union of India. The applicant joined as Sub Inspector in Delhi Police in 1977 on the basis of selection through Staff Selection Commission. He was promoted to the post of Inspector on out of turn basis on 13.3.1989. The said promotion came in his way due to outstanding meritorious services rendered by him. The conduct of the applicant and outstanding performance of duty was further accentuated by the intensive efforts displayed through commitment and sincerity by him towards his duties. He was recommended for out of turn promotion to the post of ACP on the basis of the achievements and galantine performance of duty which is reflected in the citation, which was sent as recommendation for out of turn promotion. Sr. Additional Commissioner of Police vide his letter Annexure-4 addressed to the Secretary (Home), Government of NCT of Delhi proposing out of turn promotion of the applicant, enlisted several achievements of the applicant in performance of his duties. We may not refer to such events, as the high credentials of the applicant in performance of his duties are an admitted and established fact. Suffice it to say that the citation or achievements referred to in Annexure-4 do reveal outstanding performance of the applicant in discharge of his duties, possessed by a handful of persons who would be not only be highly skilled, but would risk their lives for the cause of the Nation. The applicant got his second out of turn promotion on the post of ACP on 14.2.1995. He was given ad hoc promotion against a non-cadre post on purely temporary basis. He was neither to be called a DANIPS officer nor was eligible to claim seniority in DANIPS. He was to be considered for appointment to Grade-II of DANIPS by promotion in his own turn in due course. It is the case of the applicant that DANIPS Rules would reveal that there are 297 sanctioned posts of ACPs, which include ex-cadre/non-cadre posts also. 255 posts out of 297 are for DANIPS and remaining 42 are for the technical (non-cadre) as well as ex-cadre/non-cadre and others. This, according to the applicant, would be reflected in the additional affidavit filed by the respondents in OA No.528/1998 before this Tribunal, in which the break-up of the cadre and non-cadre/ex-cadre posts is as under:
(i) DANIPS 255 (ii) Technical (non-cadre) 13 (iii) Ex-cadre/Non-cadre & ors. 29 Total 297
Copy of the additional affidavit referred to above has been annexed with the Application as Annexure-7. It is the case of the applicant, not denied by the respondents, that he is discharging duties exactly on par and identical terms as is being done by regular cadre DANIPS officers. In fact, the case of the applicant is that he has been called upon to discharge more arduous and responsible duties than most of the regular DANIPS officers. The applicant has placed on records orders of his posting in addition to the particulars of rendition/discharge of duties as reflected in the citation at Annexure-8 (colly.). Members of DANICS as well as DANIPS were allowed the benefit of higher grade and selection grade on completion of four years and eight years of service respectively. The said benefits have been made applicable to members of DANICS first and then to members of DANIPS, vide different order/notification. The respondents have thus allowed the benefits of higher grade and scale to the Grade-I officers of DANICS as well as DASS. It may be clarified that employees of Grade-I (DASS) are promoted to DANICS, and it is the case of the applicants that Grade-I (DASS) employees who have been promoted to DANICS on ad hoc basis have been granted the relief asked for by them. Formation of service in DANICS is stated to be on same lines as DANIPS, the only difference being that whereas, employees of DANICS constitute civil service, DANIPS consists of employees of police service. Insofar as, however, the applicant is concerned, he has been denied the said benefits. He has also been denied the benefit of DANIPS Rules, 2003 available to him after completion of eight years of service as entry grade officer. Denial of the said benefit, the applicant states, is highly arbitrary, discriminatory and unsustainable in the eyes of law being contrary to the mandate of Article 14 and 16 of the Constitution of India.
4. In the context of the facts as mentioned above, the applicant prays for issuance of writ in the nature of mandamus directing the respondents to grant him the benefits of non-functional grade of Rs.8000-13500 by fixation of his pay in the non-functional grade with effect from the date of completion of four years from the date of appointment to the post of ACP, i.e., 14.2.1995, which the applicant completed in February, 1999, and to grant actual benefit w.e.f. 1.1.1996 which has been allowed to his counterparts vide notifications dated 1.2.2007 and 19.10.2007, and further to direct the respondents to grant him further benefit of DANIPS Rules, 2003 on completion of eight years of service in the entry grade, by fixation of pay and by granting next higher grade available to him in the selection grade, with all consequential benefits.
5. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing separate written statements contested the cause of the applicant. By way of preliminary objections, it is pleaded in the written statement filed on behalf of the first respondent that the applicant, an entry grade officer of the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu & Dadra and Nagar Haveli Police Service (DANIPS), has filed the present Application in the Tribunal without availing the remedies available to him. While giving the background of the case, it is pleaded that the applicant was initially appointed as Sub Inspector (Exe.) on 12.4.1977 and confirmed on 2.7.1990. He was promoted on out of turn basis to the rank of Inspector (Exe.) on 10.3.1989 purely on temporary and ad hoc basis under rule 19(ii) of Delhi Police (Promotion and Confirmation) Rules, 1980 vide Police Hqrs. order dated 13.3.1989 for his gallant act and the ad hoc promotion was regularized w.e.f. 13.9.1990 vide order dated 11.5.1992. He was confirmed in the rank of Inspector (Exe.) w.e.f. 13.9.1992, and was promoted to the rank of ACP on ac hoc basis (non-cadre) on purely temporary basis with immediate effect vide Government of NCT of Delhi order dated 14.2.1995 for his gallant act. It was made clear in the order that the applicant would neither be called a DANIPS officer nor would be eligible to claim seniority in DANIPS, and would be considered for appointment to Grade-I of DANIPS by promotion in his own turn in due course. Sub-rules (2) and (4) of rule 7 of DANIPS Rules, 2003 provide that 50% of the posts in the entry grade shall be filled up by direct recruitment and the remaining 50% by promotion, and vacancies in the promotion quota shall be filled by selection from amongst officers holding the posts of Inspector in DANIPS with three years regular service in the grade. A meeting of the Departmental Promotion Committee (DPC) was held on 21.9.2007 to consider the cases of eligible Inspectors of Police for their appointment by promotion to the entry grade of DANIPS against the vacancies pertaining to the year 2007. The committee after scrutiny of records of the officers in the eligibility list, recommended the applicant, amongst others, for appointment to the entry grade of DANIPS, and accordingly vide order dated 1.11.2007 he was appointed to the entry grade of DANIPS in the scale of Rs.6500-10500 on probation for a period of two years, subject to outcome of CWP No.4210/2007 in the matter of Jagdish Chand v Union of India & Another. Consequent on restructuring of the pay and grades of DANIPS w.e.f. 1.1.1996, Grade-II of the said Service is being operated in two scales of pay, namely. Rs.6500-10500 on initial appointment and Rs.8000-13500 on completion of four years approved service in Grade-II, subject to vigilance and integrity clearance. In Schedule-I to the Rules of 2003, following scales of pay in respect of entry grade are in vogue:
Entry Grade (Group B) (i) Rs.6500-200-10500 (on initial appointment)
(ii) Rs.8000-275-13500 (on completion of four years approved service subject to vigilance and integrity clearance). The term approved service has been defined in the DANIPS Rules, 1998, which reads as follows:
Approved service in relation to any grade means period or periods of regular service rendered in that grade, including period or periods of absence during which he could have held a post on regular basis in that grade but for his being on leave or otherwise not being available to hold such post, from the first day of July of the year
(a) following the year in which the examination was held in respect of an officer appointed to that grade;
(b) for which the recruitment was made on regular basis in respect of an officer appointed to that grade by promotion. It is pleaded that the applicant having been appointed on regular basis against a vacancy that arose in the year 2007, would complete the requisite eligibility condition of four years approved service on 1.7.2011 and would become eligible to be considered for placement in the scale of Rs.8000-13500 with effect from that date, subject to his integrity and vigilance clearance. Reply on merits is no different than the one reflected in the preliminary objections, and would thus need not be reiterated.
6. Respondents 2 and 3 have filed a separate reply wherein, there is reference with regard to litigation pertaining to out of turn promotion of Inspectors in Delhi Police, which was quashed by this Tribunal, but against which a writ is pending before the Honble Delhi High Court, wherein vide interim orders it has been directed that the petitioners who were promoted on out of turn basis against ex-cadre posts would not be reverted. We need not further delve on this aspect of the matter as during the course of arguments learned counsel representing the parties were ad idem that the said controversy would have no bearing on the merits of present case. In the reply filed on behalf of respondents 2 and 3, the defence projected is no different than the one projected by respondent No.1.
7. The applicant has filed rejoinder to both the written statements. We may only make a mention of the rejoinder filed by the applicant to the written statement filed on behalf of respondent No.1. It has inter alia been pleaded in the rejoinder that the benefit of non-functional grade has been extended to ex-cadre post of ACP (Communication), Delhi Police and consequently promotion of the applicant against the ex-cadre post cannot constitute a valid excuse for non-extension of similar benefit to him, and further that ad hoc promotion of the applicant continued uninterrupted and fructified in regular promotion subsequently and the benefit of entire service including ad hoc service deserves to be granted for the purpose of grant of benefit of non-functional selection grade in terms of the judgment of the Honble Supreme court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra & Others [(1990) 2 SCC 715]. Insofar as, non availing of other remedies available to the applicant is concerned, it is stated that there is no remedy available to the applicant. It is further pleaded that the applicant is not seeking what has not been allowed to him in terms of his promotion order, i.e., seniority in DANIPS; he is only asking for the pay which is admissible after rendering four and eight years of service.
8. When the matter came up for hearing before us on 3.12.2008, counsel for the applicant sought to place on records an additional affidavit taking such grounds that may be available to him. It may be mentioned that during the course of arguments, the learned counsel had produced an order dated 5.2.2008 to show that the benefit as claimed by the applicant is being extended to ex-cadre officers in the Communication Wing of the Delhi Police. The applicant was allowed to file additional affidavit, which has been filed. In the affidavit aforesaid, it is mentioned that benefit as claimed by the applicant has been extended to ex-cadre officers in the Communication Wing, and there are documents already on records which would show that such benefit has been extended to ad hoc appointees in respect of DASS officers. The applicant along with the affidavit aforesaid has also annexed order dated 3.6.2008 (Annexure-B) vide which benefit of non-functional scale of Rs.8000-13500 has been accorded to ACP (Communication), Delhi Police. On the basis of pleadings made in the additional affidavit, it is pleaded that denial of the relief as claimed by the applicant on account of the fact that he was not appointed on a cadre post would not be justified. No counter to the additional affidavit has been filed.
9. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
10. At the very outset, we may mention that even though, the learned counsel representing the parties are unanimous that the earlier litigation referred to in the reply filed on behalf of respondents would have no bearing upon the controversy involved in the present Application, we are, however, of the view that it may not be entirely correct. The earlier litigation pertained to out of turn promotion of Inspectors in Delhi Police. It appears that the plea raised by confirmed Inspectors in Delhi Police complaining about failure of the respondents to convene DPC for effecting promotion to the rank of ACP and adopting pick-and-choose policy to promote large number of Inspectors to the rank of ACP on ad hoc/out of turn basis, was accepted by the Tribunal in its order dated 27.5.1998 in OA No.528/1998 in the matter of Nem Datt Bhardwaj & Others v Union of India & Others. Orders of ad hoc promotion issued after 9.12.1995 up to 10.7.1998, which included out of turn promotion, were set aside. The aggrieved parties, i.e., those who had been given ad hoc promotion on the post of ACP, approached the Honble High Court of Delhi by way of CW No.4582/1999, which passed the following order on 1.12.1999:
CW No.4582/99Rule D.B. CM No.8684/99 Counsel for respondents 2 and 3 i.e. Govt. of NCT of Delhi as well as Union of India state that Lt. Governor of Delhi with confirmation of Central Government created from time to time 29 ex cadre posts of the ACP for Delhi. Mrs. Avnish Ahlawat for N.C.T. of Delhi will produce the sanction orders of these 29 ex cadre posts of ACP created in Delhi Police, within two weeks. Mr. H. S. Phoolka Sr. counsel appearing for the Union of India states that the Tribunal has already given directions to the respondents to hold the DPC within eight weeks for making regular appointments of ACP in Delhi Police including those who were appointed on ad hoc basis. In case these petitioners also fall in the zone of consideration they will be considered for regular appointments. The Tribunal has granted stay of eight weeks of reversion of those ACPs who were appointed on ad hoc basis. These petitioners were appointed out of turn as ACP against the ex cadre posts on account of their gallantry work. We feel that till the disposal of this writ petition these petitioners who were promoted against ex cadre post may not be reverted.
Parties are at liberty to apply for early hearing. Perusal of the order aforesaid would manifest that the first three respondents arrayed in the writ petition, i.e., Union of India through Secretary, Ministry of Home Affairs; Lt. Governor, Delhi; and Commissioner of Police, Delhi, urged before the High Court that the Lt. Governor, Delhi with confirmation of the Central Government created from time to time 29 ex cadre posts of ACP for Delhi. One of the points raised in the present Application is that DANIPS would include both cadre and ex cadre posts. Since the learned counsel representing the parties have chosen to seek decision from us on the basis of material placed on records of the present case, we are of the view that it would not be in the interest of justice as also parties to keep this matter pending till decision of the High Court in WP No.4582/1999. A period of ten years has already gone by, and because of heavy pendency in the High Court, it is not sure that the decision would be rendered by the High Court in near future.
11. Shri Kaushik, learned counsel representing the applicants, has raised three-fold contentions before us. It is first urged by the learned counsel that if the DANIPS Rules may envisage appointment to the post of ACP for both cadre and non cadre/ex cadre posts, those appointed on non cadre or ex cadre posts cannot be discriminated in the matter of pay scales. The second plea of the learned counsel is that while discriminating in the matter of pay scales pertaining to persons equally situate, respondents have violated provisions of Articles 14 and 16 of the Constitution, and lastly, that in any case, if a person is made to work on a particular post, he has to be given emoluments commensurate/admissible to the said post, irrespective of his posting thereat, be it temporary, officiating, ad hoc or even simply to look after the duties of the said job. It is only the first point raised by the learned counsel, as mentioned above, which may have some bearing on the controversy involved in OA No.528/1998 subject matter of decision by the Delhi High Court in WP No.4582/1999. However, as mentioned above, we may deal with this issue on the basis of existing material before us.
12. With a view to determine the issue as mentioned above, it would be first appropriate to take into consideration the pleadings made by the parties. The applicant in para 4 (c) of the OA has averred that it would be seen from perusal of DANIPS Rules that there are 297 sanctioned posts of ACP, including ex cadre/non cadre posts, out of which 255 posts are for DANIPS and rest 42 are for technical (non cadre) as well as ex cadre/non cadre and others. The said number, it is averred, has been duly reflected in the additional affidavit filed by respondents in OA No.528/1998 before this Tribunal. Copy of the additional affidavit aforesaid has been annexed as Annexure-7 (page 81 of the paper book). The affidavit has been given by Deputy Secretary in the office of Lt. Governor, Delhi. In paragraph 2 of the affidavit, it has been mentioned that respondent No.12 in the OA aforesaid and Shri H.P.S. Cheema, arrayed as newly impleaded respondent, were granted out of turn promotion to the rank of ACP against ex cadre/non cadre posts available to Delhi Police on account of their gallant/exemplary act on recommendation of the commissioner of Police. The cadre position existing in the rank of ACP in DANIPS, as well as ex cadre/non cadre, has been given as follows:
(i) DANIPS 255 (ii) Technical (non-cadre) 13 (iii) Ex-cadre/non-cadre & ors. 29 Details of technical posts are as under: (i) Motor Transport 3 (ii) Communication 6 (iii) Finger Print 1 (iv) Transport Engineer 1 (v) Programmer 2
There are 255 posts in DANIPS and 29 other posts of ACsP in general category. Out of 29 posts, 14 are temporary and remaining 15 consist of Women, Ministerial etc. The details of 14 temporary posts are as under:
(i) Security 6 (ii) P.C.R. 1 (iii) Spl. Branch 4 (iv) Headquarters 2 (v) Traffic 2 Total 14
It has further been pleaded that Shri Swatantra Kumar as well as Shri H. P. S. Cheema were granted out of turn promotion in ex-cadre/non-cadre posts, without affecting the rights of the applicants, who came in the regular cadre of DANIPS, and that not even a single post of DANIPS cadre has been encroached upon or filled up to accommodate these two respondents. The other relevant averments in the affidavit are extracted below:
(v) As far as finance for these non-cadre posts are concerned, the Cadre Controlling Authority is Ministry of Home Affairs who has already sanctioned these posts and the finances are being allowed with regard to these posts.
(vi) That as far as the rights of the applicants to these non-cadre posts are concerned, the DANIPS Cadre for Delhi has a sanctioned strength of 255 posts and against which these applicants will be considered by the Departmental Promotion Committee (DPC) keeping in view their service record and Seniority. The posts available for non-cadre are not at all disturbing either the seniority or right of the promotion of the applicants.
(vii) That the post of ACP is Group B post and the power of appointment to non-cadre post is derived from Sub-rule 9(ii) of CCS (CCA) Rules, 1965. We find from the records yet another additional affidavit filed in OA No.528/1998 by respondents 2 and 3 therein (page 85 of the paper book), relevant averments wherein read, thus:
(i) It is most respectfully submitted that there exists an organized service called NCT of Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu & Dadra and Nagar Haveli Police Service governed by Rules notified vide Notification No. F.14016/31/92-UTS dated 14th August, 1998 superseding 1995 rules. As per Schedule-I of the said rules, there are 255 specific posts under the Government of NCT of Delhi and thus as of now, only 255 posts are duty posts which are included in the cadre of DANIPS. Thus all posts of ACPs beyond 255 posts already included in the cadre shall continue to remain outside the cadre till they are included in the cadre by amending the schedule. There are 297 sanctioned posts of ACPs under Govt. of NCT of Delhi out of which 13 posts are technical posts and 255 posts are already included in the cadre leaving the balance 29 posts of ACPs outside the cadre which is termed as ex-cadre. It is against these 29 ex-cadre posts, out of turn promotions for gallantry acts were given without any benefit of seniority in the rank of ACP. This additional affidavit, it appears, came to be filed on the directions issued by this Tribunal seeking clarification regarding ex-cadre/non-cadre posts, as well as out of turn promotions. In the reply filed on behalf of the respondents, the averments made in the pleadings in the OA supported by documents and in particular, additional affidavits, have not been denied. In the OA, para 4 has been divided into six parts (a to f). Relevant averments are in para 4 (c). The respondents in their written statement, have given reply to all parts of para 4 in the corresponding para 4, wherein, as mentioned above, there is no denial to the facts as mentioned in the Application. The learned counsel representing the respondents has not been able to pin point if there is any denial to the averments made by the applicants with regard to the DANIPS Rules consisting of cadre, ex-cadre/non-cadre posts. It appears that there could not be any such denial as this has been the case of the respondents themselves, as would be clearly reflected from the interim order passed by the Delhi High Court on 1.12.1999 in CW No.4582/1999. The position being admitted one, it would be futile to go into the DANIPS Rules, 2003 (Annexure-1). We may, however, hasten to mention that cadre has been defined under rule 2(f) of the Rules aforesaid to mean the group of posts in the grades as specified in rule 3. Composition of service and its classification has been dealt with in rule 3. Initial constitution and future maintenance of the service, have been provided in rules 6 and 7. Grades, strength and their review have been dealt with in rule 4. Members of the service, as per rule 5, would be (a) persons appointed to duty posts under rule 6, and (b) persons appointed to duty posts under rule 7. In Schedule-I, grades and sanctioned strength of the service has been mentioned to be 355. Whereas, it may not be clear from the Schedule as to which out of 355 posts would be ex-cadre/non-cadre posts, it would be, however, made out from the affidavit referred to above that all posts of ACPs beyond 255 posts already included in the cadre would continue to remain outside the cadre till they are included in the cadre by amending the Schedule, and there are 297 sanctioned posts of ACPs under Govt. of NCT of Delhi out of which 13 posts are technical posts and 255 are already included in the cadre, leaving the balance 29 posts of ACPs outside the cadre which is termed as ex-cadre. What thus transpires is that the service, as per Schedule and the clarificatory affidavit given by none other than the respondents themselves, would have cadre, ex-cadre/non-cadre posts. Once, the applicants can be members of the service by virtue of their appointment against ex-cadre or non-cadre posts, and once their service is regular and continuous for a period of four years, we have no doubt in our mind that they would be entitled to the non-functional grade of Rs.8000-13500. It may be recalled that in Schedule-I to the Rules of 2003, two scales have been mentioned. One pay scale which is entry grade (Group B) is of Rs.6500-10500 (on initial appointment). The other is of Rs.8000-13500 (on completion of four years approved service subject to vigilance clearance). The applicants are concededly in the entry grade of Rs.6500-10500, and are continuing to be in same eversince their appointment. Approved service has been defined in the DANIPS Rules, 1998, and the same, in relation to any grade, would mean to be the period or periods of regular service rendered in that grade. Once, the applicants are in the entry grade of Rs.6500-10500 and the same is continuous, they, in our considered view, would be entitled to the non-functional grade of Rs.8000-13500 after completion of four years of service. The only discordant view expressed by the learned counsel representing the respondents is that in the definition of approved service, mention is only of regular service, and inasmuch as, the applicants were appointed on ad hoc basis, it cannot be said to be regular service. We do not find any merit in this contention of the learned counsel. The regular service has to be in a grade and not the nature of appointment. We have already reproduced the definition of the term approved service. We may only reiterate that mention there is in relation to a grade, and the words regular service are both pre-fixed and suffixed with the word grade. It has to be thus regular service in the grade and not the nature of service, as mentioned above.
13. The applicants, in our view, have made out a case on discrimination as well. It is the positive case of the applicants that they have been denied the benefit of non-functional grade of Rs.8000-13500, whereas it has been extended to all government servants similarly situate, including members of DANICS who have been promoted from Grade-I (DASS) on ex cadre posts. The notifications to that effect have been placed on records as Annexure-2 (colly.). It would be seen from order dated 1.2.2007 passed by Government of NCT of Delhi that it has been decided to grant non-functional scale of Rs.8000-275-13500 to Grade-I (DASS)/Sr. PA and also to Grade-I (DASS)/Sr. PA who have been appointed to ex-cadre posts of DANICS on ad hoc basis, on completion of four years of regular service as Grade-I (DASS)/Sr. PA, w.e.f. 1.12.2006. Vide notification dated 10.10.2007, in partial modification of order dated 1.2.2007, it has been decided to grant the non-functional scale of Rs.8000-13500 to Grade-I (DASS)/Sr. PA and also to the Grade-I (DASS)/Sr. PA who have been appointed to ex-cadre posts of DANICS on ad hoc basis, retrospectively with effect from 1.1.1996 on notional basis with actual benefit on account of such re-fixation of pay w.e.f. 1.12.2006. The averments to the effect aforesaid have also been made in para 4(e) of the OA. There is no denial to the facts as mentioned in the pleadings in the OA, either in the written statement filed on behalf of the first respondent or in the one filed on behalf of second and third respondents. As mentioned above, the applicant has filed an additional affidavit with copies of orders dated 5.2.2008 and 3.6.2008. In the additional affidavit aforesaid, it has been averred that the benefit as claimed by the applicant is being extended to ex-cadre officers in the Communication Wing of Delhi Police, and that vide order dated 3.6.2008 the benefit of non-functional grade of Rs.8000-13500 has been granted to ACP (Communication) Delhi Police. In the order dated 5.2.2008 the Government of NCT of Delhi has approved the grant of the non-functional grade of Rs.8000-13500 to ACPs (Communication) in Delhi Police who have been appointed to ex-cadre post of ACP (Communication), on completion of four years regular service as such in the pay scale of Rs.6500-10500. The non-functional grade has been made admissible with effect from the date of completion of four years of regular service on notional basis and actual benefit on account of such re-fixation of pay w.e.f. 31.12.2007. Pursuant to orders aforesaid, Shri Satyawan Gautam and Shri Shiva Keshari Singh have been accorded the non-functional grade of Rs.8000-13500. The said grade has been made over to them effective from the date of completion of four years regular service on notional basis and actual benefit on account of such re-fixation w.e.f. 31.12.2007. There is no reply to this additional affidavit.
14. What thus emerges is that the respondents have accorded the benefit of non-functional grade of Rs.8000-13500 after four years of service to Grade-I (DASS) who have been appointed to ex-cadre posts of DANICS, which service has been constituted at par with DANIPS. So much so, even in the department of the applicants itself, this benefit has been accorded. If ad hoc ACPs in the Communication Wing of Delhi Police itself are entitled to the non-functional grade, it would be a case of invidious discrimination in our view, if the same benefit is denied to the applicants.
15. Coming to the last limb of the case, we may only make a mention of the judgment of the Honble Supreme Court in Selvaraj v Lt. Governor of Island, Port Blair & Others [(1998) 4 SCC 291]. The question that came up for decision before the Honble Supreme Court was as to whether the petitioner in the said case would be entitled to draw salary attached to the post of Secretary (Scouts) during the time he actually worked on that post pursuant to order dated 28.1.1992, and if so, what would be his scale of pay. It is significant to mention that the employee in the said case was only called upon to look after duties of Secretary (Scouts). His pay was to be drawn against the post of Secretary (Scouts) under GFR 77. While mentioning that it may be true that the employee was not regularly appointed to the post of Secretary (Scouts) and that his regular posting was in the scale of Rs.1200-2040 and he was asked to look after the duties of Secretary, and that had this arrangement not been done, he would have to be transferred to the interior islands, the Honble Supreme Court still held that the fact remained that he had worked on the higher post, though temporarily and in an officiating capacity and, therefore, on the principle of quantum meruit, the respondent authorities ought to have paid him as per the emoluments available in the higher pay scale during the time he actually worked on the higher post, though in an officiating capacity and not as regular promotee. It is admitted position that the applicants are performing the duties of ACPs, and would be entitled to benefits, if not at par with Grade-I (DASS) officers appointed to ex-cadre posts of DANICS, then at least at par with their counterparts in DANIPS on ex-cadre posts. On the principle of quantum meruit also, we are of the view that the applicants are entitled to the non-functional grade of Rs.8000-13500.
16. We have pondered over as to in the facts and circumstances of this case what relief should be granted to the applicants. Should they be granted the non-functional grade of Rs.8000-13500 immediately on completion of four years of service, or they should be granted such scale on notional basis, which may be otherwise effective from 31.12.2007, as has been made applicable in the case of ex-cadre ACPs of Communication Wing of Delhi Police. The case of the applicants is primarily based upon discrimination. So much so, even the prayer is to grant the benefit as allowed to their counterparts vide notifications dated 1.2.2007 and 19.10.2007. Be it the case of grant of non-functional scale of Rs.8000-13500 to Grade-I (DASS) officers who have been appointed to ex-cadre posts of DANICS, or the ex-cadre ACPs (Communication) in Delhi Police, it may be recalled that only notional benefit of pay fixation of the non-functional grade has been given to them. The actual benefit is to accrue in the case of Grade-I (DASS) officers who have been appointed to ex-cadre posts of DANICS w.e.f. 1.12.2006, and in the case of ex-cadre ACPs in Communication Wing of Delhi Police w.e.f. 31.12.2007. In our view, the case of applicants is more comparable with ACPs from their own department. The applicants had put in four years of regular service on the post of ACP by the year 1999, whereas present Applications have come to be filed in the year 2008. There may not be any merit in the defence projected by the respondents that the applicants have not availed alternative remedies, as none has been suggested. Nonetheless, the applicants indeed have approached this Tribunal at a very late stage. Grant of relief to the applicants of actual payment after four years of regular service may also open flood-gates for litigation. We thus confine the relief to the applicants to grant non-functional grade of Rs.8000-13500 notionally from four years of completion of service by them on ex-cadre posts, but actual benefit thereof shall accrue to them w.e.f. 31.12.2007. It may be recalled that the prayer of the applicants is also the same even though, it has been wrongly mentioned that vide notifications dated 1.2.2007 and 19.10.2007, the actual benefit has been granted from 1.1.1996. The orders would rather reveal that the benefit of non-functional grade of Rs.8000-13500 was accorded to Grade-I (DASS) employees, even though with retrospective effect from 1.1.1996, but the same was on notional basis and not on actual basis. Insofar as, prayer of the applicants for the scale admissible after eight years service is concerned, the same, as would be reflected from the pleadings, was made admissible with effect from 2003. The pay scale admissible after eight years of service in next higher grade is selection grade. The same cannot be automatically granted to the applicants. However, a direction has to be issued, which we hereby do, that the respondents would consider the case of the applicants for grant of the next higher grade after completion of eight years of regular service, and if the applicants are found fit for the next higher grade, the same too would be fixed notionally after eight years of service, which would be effective from the same date, i.e., 31.12.2007. Let the directions as issued above be complied with by the respondents as expeditiously as possible and preferably within a period of three months from today. In the facts and circumstances of the case, costs of this litigation are made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/