Central Administrative Tribunal - Delhi
Mr. Dinesh Singh Dhanik vs Telecom Regulatory Authority Of India on 25 May, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1030/2014
Reserved on : 15.05.2015.
Pronounced on : 25.05.2015.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Mr. Dinesh Singh Dhanik,
S/o late Sh. Bahadur Singh Dhanik,
Aged: about 41 years,
R/o 889, Sector 1-3, LIC, Vasundhara,
Ghaziabad, (UP)-201012
(working as Section Officer (Hindi),
Telecom Regulatory Authority of India,
Mahanagar Doorsanchar Bhawan,
J.L.N. Marg, Old Minto Road,
Near Zakir Hussain College,
New Delhi-2. .. Applicant
(through Sh. R.N. Singh, Advocate)
Versus
1. Telecom Regulatory Authority of India,
Mahanagar Doorsanchar Bhawan,
Jawahar Lal Nehru Marg,
Old Minto Road, New Delhi-2
(Through : its Secretary/Registrar)
2. Union of India,
Ministry of Telecommunication and Information
Technology, Department of Telecommunication,
Sanchar Bhawan,
20, Ashoka Road,
New Delhi-1.
(Through: its Secretary)
3. Central Reserve Police Force,
Block No.1, CGO Complex,
Lodhi Road,
New Delhi-3.
(Through : Director General)
4. Smt. P. Janki,
Section Officer under the
Respondent No.1
(to be served through respondent
No.1 herein) . Respondents
(through Sh. Saket Singh and Sh. M.S. Seen, Advocates)
O R D E R
Mr. Shekhar Agarwal, Member (A) Respondent No.1 herein called for applications for filling up the post of Section Officer (Hindi) on deputation basis in April, 2011. The post of Section Officer was in the pay scale of Rs.9300-34800 in PB-2 with Grade Pay of Rs.4600. Officers working in the Central Government, Public Sector Undertakings, Statutory and Autonomous Bodies were eligible to apply subject to fulfillment of the following conditions:-
(a) Holding equivalent post on regular basis, or
(b) Having six years of regular service in PB-2 with Grade Pay of Rs. 4200.
2. The applicant applied for the same and was selected. On 07.07.2011 he joined the respondents as Section Officer (Hindi). On his so joining, his pay was fixed without any change in PB-2 with Grade Pay of Rs.4600. Thereafter, between May to July, 2013, the respondent No.1 decided to absorb the applicant permanently and directed him to tender his technical resignation from services of respondent No.3. Accordingly, the applicant submitted his technical resignation, which was accepted w.e.f. 02.07.2013 (A/N). The respondent No.1 appointed the applicant on permanent basis with effect from that date. On his permanent absorption, the applicant was granted four increments in accordance with the rule which provided that absorbees coming in a higher scale shall be granted two increments whereas absorbees joining at the same level shall get four increments.
3. According to the applicant, Rule-22(iia) of TRAI (Staff & Employee appointment) (7th Amendment) Rules, 2008 reads as under:-
In the case of a person who is initially taken on deputation and absorbed later, his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already )on the date of absorption) the same or equivalent grade on regular basis in his parent department such regular service in the grade shall also be taken into account in fixation of his seniority, subject to the condition that he will be given seniority from:-
(a) the date he has been holding the post on Deputation, or
(b) the date from which he has been appointed on a regular basis to the same or equivalent grade in parent department, whichever is earlier, Provided that the fixation of seniority of a transferee in accordance with the above principles will not, however affect any regular promotions to the next higher grade made prior to the date of such absorption. 3.1 Accordingly, the applicant submitted representations on 23.08.2013, 05.12.2013, 01.01.2014 and 12.02.2014 to fix his seniority in accordance with the aforesaid rule by giving him benefit of his past service rendered in the same scale. The representation of the applicant was, however, rejected by the impugned order dated 26.02.2014. The aforesaid order reads as follows:-
sub: Fixation of seniority of Shri Dinesh Singh Dhanik absorbed after being on deputation representation regarding With reference to his representations dated 23.08.2013, 05.12.2013, Shri Dinesh Singh Dhanik, Section Officer (Hindi), TRAI is hereby informed that his representations have been examined by the competent authority in consultation with O/o DG, CRPF, CGO Complex, New Delhi. Upon examination, it has been found that the request to grant him seniority w.e.f. 25.4.2005 in the grade of Section officer of TRAI Cadre above that of Smt. P. Janaki is not tenable due to the following reasons:
(i) Shri Dhanik before joining in TRAI as Section Officer was working in CRPF in the grade of Inspector (Hindi Translator). The duties and responsibilities of the Section Officer, TRAI is equivalent to the post of Section Officer in the Ministry in Government of India (GoI) and is of higher responsibility than that of Inspector/Hindi Translator of CRPF.
(ii) The report or clarification given by CRPF does not justify Shri Dhanik seeking equivalence to that of Section Officer. It is, however, established from the report of CRPF that while working in CRPF, he was reporting to grades which are equivalent to the grade of Section Officer in GoI.
2. Incidentally, it has come to notice that before taking absorption in TRAI as Section Officer, Shri Dhanik in his request dated 10.12.2012 had himself admitted that the post of Section Officer in TRAI is of higher responsibility than the post of Inspector in CRPF though both are in the same scale of pay.
3. Accordingly, his representation dated 12.2.2014 is also disposed of.
4. This issues with the approval of Competent Authority. 3.2 Hence, the applicant has filed the present O.A. before us seeking the following relief:-
(a) Call for the original file(s)/record(s) of the respondents No.1 dealing with the initially selection of the applicant on deputation and further his absorption under the respondent No.1 and other related records of the applicant herein, including the records pertaining to the impugned order.
(b) Declare the order i.e. order No.I-13/2007-A&P(Pt-III) dated 26.2.2014 (Annexure-A Impugned) as illegal, arbitrary and discriminatory and consequently quash the same.
(c) Declare that the applicant is entitled for counting of past services as Inspector (Hindi Translator) under the respondent No.3 from where he had come initially on deputation under the respondent No.1 as Section Officer and later on absorbed as such under the respondent No.1 with al consequential benefits, viz., issuance of fresh seniority list in the grade of Section Officer under the respondent No.1 by counting the past services of the applicant as Inspector (Hindi Translator) under the respondent No.1.
(d) Award cost of this application and proceedings against the Respondents and favour of the Applicant.
(e) May also pass further order(s) as be deemed just and proper to meet the ends of justice.
4. The contention of the applicant is that the impugned action of the respondents was illegal, arbitrary and discriminatory. It is a result of colourable exercise of powers by respondent No.1. It is also in violation of the law laid down by Honble Supreme Court in a catena of cases, such as, R.S. Mokashi & Ors. Vs. I.M. Menon & Ors, 1982(1) SCC 379, K. Madhva & Anrs. Vs. UOI, AIR 1987 SC 2291, SI Roop Lal & Anr. Vs. Lt. Governor through Chief Secretary, Delhi & Ors., AIR 2000 SC 594. Learned counsel for the applicant argued that in the case of SI Rool Lal (supra) Honble Supreme Court has clearly laid down that length of service in parent department of persons from different sources drafted to serve in a new department should be respected and preserved by taking the same into account for determining their seniority. Learned counsel has also relied on the judgment of this Tribunal in OA-3245/2009 (Sh. D.M. Sharma Vs. UOI, decided on 18.01.2011 in which the applicant was allowed to count his service as Inspector in CRPF on his absorption as an Inspector in CBI.
5. Respondents No.2 and 3 have filed their reply. However, they are only proforma parties as no relief has been sought against them. Private respondent No.4 has been served but has chosen not to file reply. Respondent No.1, which is the main contesting respondent have filed a detailed reply in which they have disputed the arguments of the applicant. While conceding that the applicant was working in PB-2 with Grade Pay of Rs.4600 at the time of joining respondent No.1 on deputation, they have stated that it was a mere co-incident that the pay scale of the post of Inspector (Hindi Translator), which the applicant was holding in his parent department was identical to the pay scale of Section Officer in TRAI. However, that does not justify that the two posts were analogous and equivalent. They have submitted that prior to the implementation of 6th Central Pay Commission recommendations, the pay scales of Section Officer of TRAI and Ministries of Central Government were identical. Thus, prior to implementation of 5th CPC, the pay scale was Rs.2000-3500, After 5th CPC, it was Rs.6500-10500 w.e.f. 01.01.1996. However, after 6th CPC Section Officers in TRAI have been placed in PB-2 with Grade Pay of Rs.4600 whereas Section Officers of Central Ministries have been placed in PB-2 with Grade Pay of Rs.4800. This, according to the respondent No.1 is an aberration and the TRAI cadre employees have filed OA-1209/2014 (Azad Singh Khandsaiya & Ors. Vs. UOI & Ors.) before this Tribunal. Thus, this matter is sub-judice.
6. Respondent No.1 has further submitted that as per relevant TRAI Regulations in case of a person, who is initially taken on deputation and absorbed later, his seniority will normally be counted from the date of absorption unless on the date of absorption he has been holding the same or equivalent grade on regular basis in his parent cadre. The respondent No.1 then contended that the post of Inspector (Hindi Translator), which the applicant was holding in his parent cadre was Group-B non-gazetted post whereas the post of Section Officer in TRAI since its inception is a Group-B gazetted post. Further, they have stated that the promotional post of Inspector was Subedar Major, which also is a non-gazetted post. The respondents have in their reply submitted the following chart in support of their claim that the two posts were not equivalent:-
Name of the post 4th Pay Commission [from 7.2.1996] 5th Pay Commission 6th Pay commission Promotional Post with scale of pay Section Officer in TRAI 2000-3500 6500-10500 PB-2 Rs.9300-34800+ GP 4600 Technical Officer PB-3 Rs.15600-39100+GP 5400 [Pre-revised scale Rs.8000-13500] Inspector (Hindi Translator) in CRPF 2000-3200
-----
PB-2 Rs.9300-34800+ GP 4600 Subedar Major PB-2 Rs.9300-34800+ GP 4800 [pre-revised 6500-10500]
7. In his rejoinder, the applicant has disputed the claim of respondent No.1 that Section Officer in TRAI and Section Officer in Ministries of Central Government were equivalent. According to him, TRAI is a body Corporate and therefore the status of staff cannot be termed as equivalent to the post of Section Officer in Government of India.
8. We have heard both sides and have perused the material on record. In our opinion, the stand taken by the respondent No.1 is misconceived. The seniority of the applicant admittedly has to be fixed under Rule-22(iia) of TRAI Rules, 2008, which has been extracted in earlier part of the judgment. The rule states that in case of a person, who is initially taken on deputation and absorbed later, his service in the parent department shall be taken into account for fixation of his seniority provided it is on regular basis and in the same grade in which he has been absorbed. It is noteworthy that in the above quoted rule what has been laid down is equivalence of the grade and not equivalence of the post. In the instant case, admittedly, the position is that the applicant at the time of applying for deputation was working in PB-2 with Grade Pay of Rs.4600. It is also admitted that the post of Section Officer (Hindi) against which the applicant was absorbed in TRAI also carried the same pay scale on the date of his absorption. Thus, as per this Rule the applicant was entitled for fixation of seniority after counting of his entire service rendered in this scale in his parent department for the purpose of fixation of seniority.
9. In our opinion, the arguments advanced by respondent No.1 regarding the two posts, namely, the post of Inspector (Hindi Translator) and Section Officer in TRAI not being equivalent and carrying different duties and responsibilities are not relevant in the instant case since equivalence of the posts was not to be considered as per the provisions of the above quoted rule. This exercise was wholly unnecessary. Even the argument that TRAI cadre employees were seeking parity with the Section Officers of Ministries by filing OA-1209/2014 before this Tribunal would not be relevant in this case because as far as the applicant was concerned on the date of his absorption, the pay scales of the two posts were equivalent and should form the basis for determining his seniority. His seniority cannot be determined on the presumption that OA-1209/2014 will be allowed. Even if this O.A. is allowed the applicant cannot be made to suffer because of the same as that would amount to altering terms of his absorption to his detriment retrospectively.
10. We, therefore, find merit in the contention of the applicant and allow this O.A. We quash the impugned order dated 26.02.2014 and direct the respondent No.1 to re-fix the seniority of the applicant in accordance with observations made above by counting his past service as Inspector (Hindi Translator) under respondent No.3. This exercise will be completed within eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/