Central Administrative Tribunal - Delhi
Manikant Gairola vs Union Of India on 11 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.548/2007 New Delhi, this the 11th day of February, 2009 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Manikant Gairola, S/o Shri Shambhu Prasad, WZ-352, Nangal Rai, New Delhi 110 046 Applicant (By Advocate: Shri Shyam Babu) VERSUS 1. Union of India Through its Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pension, New Delhi 2. Directorate General Doordarshan, Through its Director General, Mandi House, New Delhi 3. Director of Canteens, Through its Director, Ministry of Personnel, Public Grievances and Pension, Lok Nayak Bhawan, Khan Market, New Delhi Respondents (By Advocate: S/Shri Rajeev Sharma with Akshit Agarwal) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, an ex-Manager in Delhi Doordarshans Canteen (Respondent No.2), through this OA seeks a direction for fixation of his pay in the grade of General Manager/Manager Grade-I (Rs.5000-8000) w.e.f. 17.9.1998 till 15.7.2005 with payment of arrears with interest and all consequential benefits. Besides, a prayer for setting aside the impugned order dated 1.2.2007 rejecting the aforesaid claim of the applicant has also been made. The present OA is second in the series. The earlier OA No.351/2006 had been disposed of by the Tribunal vide its order dated 9.11.2006 directing the Respondents for reconsideration of the matter. In pursuance of the direction of the Tribunal, the Respondents had passed the impugned reasoned order dated 1.2.2007, which has given rise to the present OA.
2. Briefly stated, the applicant had been appointed as Manager in the aforesaid Canteen in 1979. In the same year, the posts in the Canteens and Tiffin Rooms run departmentally by the Government of India were declared as posts in connection with the affairs of the Union. This Canteen was upgraded in the year 1987 and categorized as Departmental Canteen Type-2-A. The applicants case is that upgradation of this Canteen entailed the post of a General Manager. Further, considering the urgency of work, he and one Ram Kirpal Pandey were promoted as General Manager and Auditor respectively in the year 1987 itself. The promotion order in respect of the applicant was issued vide OM dated 17.9.1987 (Annexure-F). However, despite the order of promotion and his actually functioning as such, the applicant was not granted the higher pay scale of General Manager. His representations in this regard to the authorities have been of no avail. The Canteen was closed on 15.7.2007.
2.1 In support of the OA, the learned counsel, Shri Shyam Babu would aver regarding upgradation of this Canteen vide DOP&T order dated 10.7.1987 (Annexure-C). He would further state that this was a simple upgradation of the post against which the applicant had been promoted as such by the orders of the Management Committee. The learned counsel would refer to the relevant office notings and the decision communicated in this regard under the order of the Honorary Secretary of the Managing Committee. It would further be averred that the applicant was eligible for this post and had, in fact, been functioning as such till the closure of the Canteen. The learned counsel would however, admit that this was meant to be a stop gap arrangement. Further, the learned counsel would draw our attention to the letter dated 18.3.2005 by the Respondent No.2 forwarding necessary proposal to the DoP&T.
3. The stand of the Respondents is that the said order of promotion being relied upon by the applicant was not lawful nor was it issued by a competent authority. The learned counsel, Shri Rajeev Sharma appearing on behalf of the Respondents would contend that the order of upgradation of the Canteen had stipulated that no additional hands could be recruited during the currency of the ban on recruitment unless exemption for the same was obtained from the Ministry of Finance as per the prescribed procedure (Annexure-C). The counter affidavit avers that obtaining such a clearance was the responsibility of the Management Committee only which in this case was not done. It would further be averred that the order of promotion relied upon by the applicant was issued by the then Honorary Secretary, Managing Committee, who was not competent in the matter. The learned counsel for the Respondents would draw our attention to the executive instructions under which the post of General Manager was admissible only for a group of more than one A type Canteens under one Management (Annexure-D). It is also averred that the claim of the applicant regarding functioning as a General Manager cannot be legally sustained as there was no such post nor was the appointment made as per the Recruitment Rules or by the competent authority in accordance with the prescribed guidelines.
4. We have heard both the learned counsels and also perusal the material on record.
5. From a perusal of the administrative instructions referred to by the Respondents and appended as Annexure-D, the contention of the learned counsel is found to be factually correct since only the post of Manager Grade-II was admissible for normal canteens. Only in case of a group of two or more A type Canteens under one Management, in lieu of a Manager, a General Managers post was authorized. Hence even after the upgradation of the Canteen to Grade-2-A, that by itself did not carry with it the admissibility of the post of a General Manager. It is not the case of the applicant that the Canteen in question fell in the category of a group of more than one A type Canteens under the same Management. It also follows thereby that the Management Committee while taking this view had misconstrued the admissibility. Further, the issue of competence of the Management Committee also merits attention. In this situation, the argument that the applicant had actually functioned as General Manager would not be any help to the applicant. It is trite that in absence of a duly sanctioned existing post, a Government servant cannot entertain any legally indefeasible claim.
6. For the foregoing reasons, we do not find any merit in the OA, which is dismissed. There shall be no order as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/