Central Administrative Tribunal - Delhi
S.I. Surender Singh Yadav No.D/2798 ... vs Commissioner Of Police on 12 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
OA No.3392/2012
Reserved on 05.05.2014
Pronounced on 12.05.2014
HONBLE SHRI SUDHIR KUMAR, MEMBER (A)
HONBLE SHRI A.K.BHARDWAJ, MEMBER (J)
S.I. Surender Singh Yadav No.D/2798 (OBC)
S/o Shri Ishwar Singh
R/o A-39, Shri Balaji, CGHS Ltd.
Plot No.37, Sector-6, Dwarka,
New Delhi. ..Applicant
(By advocate: Shri Arun Singh and Shri Rajiv Bakshi)
VERSUS
1. Commissioner of Police
Police Head Quarters, Indraprastha Estate,
New Delhi.
2. Additional Deputy Commissioner of Police (Establishment)
Police Head Quarters, Indraprastha Estate,
New Delhi.
3. Deputy Commissioner of Police (South)
Hauz Khas, New Delhi. Respondents.
(By advocate: Shri Vijay Pandita)
ORDER
Shri A.K.Bhardwaj, Member (J) As has been captioned in the counter reply of the respondents, the applicant was selected to the post of Sub Inspector (Exe.) on the basis of examination conducted by the SSC during the year 1994 as an OBC candidate. Since there was some impasse regarding the status of the applicant as OBC candidate, he could not be offered appointment, despite selection. He filed OA No.1551/1997 before this Tribunal and the OA was decided in view of the order dated 12.12.1997 passed in OA No.2410/1996. The order of the Tribunal was challenged before the Honble Delhi High Court by way of CWP No.4706/1998. Initially the High Court stayed the order of the Tribunal but subsequently vacated the interim order. Thus, the applicant was appointed as Sub Inspector (Exe.) in Delhi Police provisionally subject to final outcome of CWP Nos. 4706/1998 and 1073/1998. He joined for training on 18.11.1999 and completed the basic training course with Batch No.25 in August 2002. The respondents assigned him seniority on the basis of his merit position in 1994 Select List and placed him at Sl.No.9A of the Seniority List of Sub Inspector (Exe.). The applicant filed OA No.4304/2011 claiming the same pay, as granted to his juniors. The OA was disposed of with the following orders:
In the present case, of course, in view of the order of this Tribunal passed in OA No. 1515/1997 adjudicating the claim of applicant regarding his appointment as SI (Exe.) in DP which was finally upheld by Honble Delhi High Court, no interference from us at this stage could br called for. However, in assigning seniority of the applicant at serial no. 9-A of the seniority list of SI (Exe), i.e., above those who were appointed as SI (Exe) from a date earlier than the date of appointment of applicant and by fixing the pay of applicant lower than at the level lower than the pay of junior, respondents have given rise to anomalous situation. In the circumstances OA is disposed of with a direction to respondents to have a re-look over the entire matter and take a view regarding resolving the aforementioned anomalous situation of the applicant, in accordance with rules and instructions. The view so taken shall be communicated to applicant by way of speaking order.
OA stands disposed of.
2. In implementation of the aforesaid order, the respondents passed a speaking order dated 03.08.2012 taking a view that the applicant cannot be granted the benefit of fixation of notional pay retrospectively with reference to his seniority position. There is no infirmity in the order passed by the respondents. In terms of the provision of FR-26 (a), all duty in a post on a time-scale counts for increments in that time scale. Thus, the period during which an employee does not perform duty or remains under training, he does not earn any increment. The seniority of the applicant was fixed by the respondents as per his position in the merit list and his date of joining was kept only on 18.11.1999. Thus, there can be no justification to grant him increment with the Sub Inspectors (Exe.) of 1996 Batch. It is different issue that an employee may be given the benefit of step up of pay at par with his juniors. There is no such rules/instructions, which provide for notional increments or fixation of pay from the date when an employee had not even entered into the service of the organization at all. Nevertheless, in the counter reply filed by them, the respondents themselves have referred to the Supreme Court judgment in the case of State of Haryana and Others vs. O.P.Gupta and Others reported in 1996 (7) SCC 533 wherein the earlier judgment in Paluru Ramkrishnaiah vs. Union of India reported in (1989) 2 SCC 541 has been referred to. In view of the said judgment of the Honble Supreme Court, senior is entitled to step up the scale of pay with reference to the date of promotion of his junior. For reference, Para-2 of the reply filed by the respondents is extracted herein:
That the Honble Supreme Court judgment in the case of State of Haryana and Others vs. O.P.Gupta and Others reported in 1996 (7) SCC 533. In that case, it was held though promotion may be given retrospectively but since he had not worked on the post no claim of arrears is made out. That the Apex Court further in para 7 of State of Haryana and Others vs. O.P.Gupta and Others held as follows:
7. This Court in Paluru Ramakrishnaiah v. Union of India, (1989) 2 SCR 92 at page 109 : (AIR 1990 SC 166 at p. 195), considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar v. Avinash Chandra Chand, (1990) 3 SCC 472 : (AIR 1991 SC 958), in paragraph 16. (Emphasis supplied)
3. In terms of Government of Indias order under FR 22, read with GI MF OM No.F.2 (78)-E.III (A)/66, dated 04.02.1966, in order to remove the anomaly in the pay of a Government servant promoted or appointed to a higher post on or after 01.04.1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, the pay of the senior officer should be stepped up to a figure equal to the pay as fixed for the juniors officers in that higher post.
4. In the circumstances, once the applicant has been assigned seniority of 1996 Batch of SI, his claim for stepping up the pay needs to be examined by the respondents. Thus, the OA is disposed of with a direction to the respondents to consider stepping up pay of the applicant with reference to the pay of his immediate juniors, in view of the judgment referred to by them in Para-2 of their counter reply and take a decision within a period of three months from the date of receipt of a certified copy of this order under intimation to the applicant. OA stands disposed of. No cost.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /kdr/