Central Administrative Tribunal - Delhi
Nandan Singh Mahalwal vs Mcd on 1 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2136/2011 AND MA 3402/2011 ORDER RESERVED ON: 23.07.2012 ORDER PRONOUNCED ON: 01 .11.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) 1. Nandan Singh Mahalwal, S/o Late Shri Harphool Singh 2. Yogesh S/o Shri Nandan Singh, 3. Aruna W/o Vinod Sindhu, 4. Madhu W/o Rajesh Saroha, 5. Jyoti D/o Sh. Nandan Singh, 6. Lokesh S/o Sh. Nandan Singh Mahalwa Applicants- (Legal Heirs of Late Prem Mahalwal). (All residents of House No. 62, Madangir, New Delhi-62) (By Advocate Shri A.K. Mishra) Versus MCD Through its Commissioner, Civic Centre, Minto Road, New Delhi. Respondent. (By Advocate Shri R.V. Sinha with Shri K.M. Singh) O R D E R Mr. Sudhir Kumar, Member (A):
The present applicants of this OA are the Legal Representatives (LRs) of the deceased applicant Late Smt. Prem Mahalwal, who had approached this Tribunal by filing this O.A. on 01.06.2011 not on the basis of any adverse orders against her rights having been passed by the Respondent, but on the basis of information supplied to her under the Right to Information Act, 2005, through Annexure A-2 dated 17.03.2011. Her prayers also did not relate to any immediate cause of action, which may have been pointed out in this OA to have been the reason for this OA to be filed, and she had prayed for the following reliefs:-
8.1 Call for the records of the case for perusal;
8.2 Direct the Respondents to re-fix the pay of the applicant on the post of Headmistress and pension accordingly after giving her the benefit of FR22-(I)(a)(1)/FR 22-C alongwith 12% interest thereon and pay the same to the applicant in a time bound manner;
8.5(3) Allow costs of application;
8.6(4) Pass any other order(s), which this Honble Tribunal may deem just and equitable in the facts and circumstances of the case.
2. It is, therefore, clear that no immediate cause of action had been pointed out by the deceased applicant to have given rise to this OA.
3. However, one document had been filed at Annexure A-1 dated 05.01.2011, stating that the arrears of her pension were being disbursed to her through cheque dated 31.12.2010 for Rs.14574/-, which she had accepted under protest, without prejudice to her rights and intentions, and she had also added that the details of the payment may be supplied to her. This, perhaps, can be taken to be the cause of action, because of which it is imperative upon us to decide the OA on merits.
4. The applicant had been initially appointed as an Assistant Teacher in Gandhi Harijan Vidhalaya, Madangir Camp, New Delhi, an aided school, on 01.12.1965. On 18.07.1972, the Primary section of that school was taken over by the Municipal Corporation of Delhi (MCD, in short), and as such the services of all the teachers including the applicant stood transferred to the MCD. Many other schools in Delhi were also taken over by the MCD, but the teachers of such taken over schools were denied the benefit of seniority from the date of their initial appointment in the aided schools, and were accorded seniority from the dates of their schools having been taken over.
5. Feeling aggrieved, a number of such teachers filed Writ Petitions in the Honble High Court of Delhi, which were allowed but when the MCD approached the Division Bench, and then the Honble Apex Court, and lost its case in both the fora, the Respondents No. 1 fixed the seniority of the teachers from the date of their initial appointment in the respective aided schools. However, when the Headmistress of M.C. Primary Girls School, Madangir sent files of the Primary Teachers, who were appointed up to 31.02.1967, to the Assistant Education Officer for the purpose of considering their promotion against the available vacancies of Head Masters/Head Mistresses, along with the file of the deceased applicant also, the Assistant Education Officer took the view that her initial date of appointment under the MCD could be reckoned only w.e.f. 30.11.1972, the date of taking over the school, and through his order dated 27.03.2000, he rejected the case of the deceased applicant for promotion.
6. The deceased applicant has cited in this O.A.the names of a few other teachers in whose case a different stand had been taken by the MCD while considering their seniority from the date of initial appointment. The deceased applicant thereafter filed two Writ Petitions before the Honble High Court, in CWP No.2122/2001 and CWP No.5897/2001, seeking promotion on the post of Head Mistress w.e.f. February, 1999 when her junior was given promotion, with all consequential benefits. The first CWP No.2122/2001 was disposed of by the Honble High Court on 30.03.2001, on the basis of the undertaking given by the counsel of the respondents that they were considered the case of the deceased applicant. But then she again moved the Honble High Court in CWP No. 5897/2001, which was ultimately allowed on 05.12.2001, with the Honble High Court setting aside the order of the respondents, and directing them to consider the representation of the deceased applicant on merits in the light of various judgments rendered by the Honble Apex Court.
7. The respondents, however, again rejected the representation of the deceased applicant on 18.02.2002. The deceased applicant then filed another third CWP No. 1310/2002, which later on came to be transferred to this Tribunal, and was registered as TA No.1061/2009, and was allowed by this Tribunal on 10.11.2009, directing the respondents to consider her service from the date of her initial appointment, and to consider her claim for promotion on notional basis as Headmistress from 1999, and further ordered that in such an event, if eligible, her retiral benefits on the higher post shall be fixed from 28.2.2002, with arrears, in accordance with law.
8. When the respondents still did not implement the order, the deceased applicant filed a Contempt Petition No.281/2010, whereafter the respondents issued an order dated 12.05.2010 (Annexure A-4), granting her promotion to the post of Headmistress w.e.f. 09.02.1999 on notional basis, after considering her past service from 1966. It was also ordered that terminal benefits of the deceased applicant on the higher post would also be fixed from 28.02.2002, with arrears.
9. When the respondents again did not take any action, the deceased applicant again filed another Contempt Petition No.786/2010, which was disposed of by this Tribunal on 24.12.2010, on the assurance that the payment of the balance dues will be made to the applicant. However, only the cheques of Rs.14,574/- and Rs.3688/- as arrears of pension were given to the applicant on 05.01.2011 (Annexure A-1), which the deceased applicant contends through this OA as to be improper, as she was entitled for much more amount.
10. She made a representation on 27.01.2011, through Annexure A-7, praying that she should be given the benefit of FR 22(1) (a) (1). In making out her claim, the deceased applicant had relied on Annexure A-8 letter dated 03.11.1997 issued by the Ministry of HRD, Department of Education to the Chief Secretary, Delhi Administration, and the Annexure A-9, being the letter dated 18.2.1988 regarding the fixation of pay of Teachers/Officers on promotion having identical scales, and on the clarification Circular issued by the MCD, Finance and General Branch on 26.07.2001, clarifying the conditions to be satisfied for the benefit of fixation of pay under FR 22 (1) (a) (1).
11. When the deceased applicant was still dissatisfied with the payments received by her on 05.01.2011, she filed an RTI application on 09.03.2011, in response to which the Annexure A-2 mentioned above was issued, providing to her the following clarificatory information:-
As regards to the benefit of the promotional post of the HM it is informed to you that when a teacher is provided from the initial grade or senior grade then only benefit of FR22(1)(a)/FR221(C) is admissible when a teacher is promoted to the post of HM from selection grade then no financial benefit is admissible. The above grade is as per the clarification issued vide no. F 5/180/86/UT9 Govt. of India, Ministry of Human Resource Development (------Edu) dt 03/11/1987, In Para No.7.
As it has been already was granted Selection Grade 6500 Grade 6500-200-10500 to the applicant which is the senior scale of the initial scale 5500-175-9000 of HM w.e.f. 01/01/1998, So she cannot be given the benefit of the pay benefit of the promotion to the post of HM.
The amount to which is due in this regards the MCD have already paid i.e. sum of Rs.14574/- and Rs.3688/- as the arrear/Difference of Pension.
12. Heard. We have given our anxious consideration to the facts of this case. For the applicability of and fixation of pay under FR 22 (1)(a) (i), two mandatory requirements have to be fulfilled, as conditions precedent, and both of which have to be necessarily satisfied:-
(i) The employees should shoulder higher responsibilities and;
(ii) The promotional cadre should be in a higher scale, as compared to the lower scale from which the employee was promoted.
13. In 1997 Supreme Court Cases (L&S) 1852, Union of India & Others vs. R. Swaminathan and Others, the Honble Apex Court has held clarifying the applicability of FR 22 (1) (a) (i) as follows:-
Where junior staff officiating for different periods on account of adhoc promotion granted to him, and were given higher pay than their seniors, the difference in pay of a junior and a senior is a result of application of FR 22 (1) (A) (i).
14. The Honble Apex Court had further held that the increased pay drawn by a junior because of adhoc officiating or regular service rendered by him in higher post for periods earlier or longer that the senior is not an anomaly, because pay does not depend on seniority alone, nor is seniority alone a criterion for stepping up of pay.
15. Apart from the case of R. Swaminathan (supra) decided by the Honble Supreme Court, we have also had the benefit of examining the applicability of the next below rule (NBR) for considering stepping up of pay [under FR 22 [C] as it stood earlier] under FR 22 [1][a][i] in the following cases:-
[1] 1995 (2) (CAT) All India Services Law Journal page 405, CAT Bombay Bench, T.P. Shyamalan vs. Union of India & Ors., [2] CAT Hyderabad Bench order dated 21.9.1998 in OA 316 of 1997, Smt. Kusuma Jaya Kumar vs. Union of India & Ors., [3] CAT Hyderabad Bench order dated 6.9.2001 in OA 1917 of 2000, V. Venkata Muni vs. Union of India & Ors., [4] CAT Hyderabad Bench order dated 10.10.2001 in OA 1917 of 2000, A. Venkata Muni vs. Union of India & Ors., which was pronounced, after the matter was examined by Full Bench for deciding the points for authoritative decision.
11. In these four cases concerned, the point of second stepping up of pay relying upon the Govt. of India, Ministry of Finance OM dated 4th February, 1966, was examined, which has laid down the conditions for stepping up of pay of seniors in 3 situations reproduced below:-
Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior-
As a result of application of FR 22-C [Now FR 22[1][a][i] In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1.4.1961 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, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-
(a) Both the junior and senior officers belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical
(c) The anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officers draw from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
[G.I., M.F., O.M.No.F.2[78]-E.III] (A)/66, dated the 4th February, 1966]
12. In the case of Venkata Muni in the judgment dated 6th September, 2001, the Bench observed as follows:-
Thus, it is seen that the above order was issued by the Government only to set right pay anomaly which arose directly as a result of application of FR 22-C, between a senior and his junior, on their promotion from a lower post drawing same salary to a higher post in the same cadre. It is significant to observe that the FR 22-C itself does not speak of such stepping up of pay. It was a benefit that was given by the Government in its decisions in the OM. It can also be said that prior to 4.2.1996, such stepping up of pay was not allowed under FR 22-C, in spite of existence of such anomalies of pay. Further, the stepping up of pay is allowed only in cases fulfilling the conditions stipulated in the above O.M. and not in all cases of pay anomaly between a senior and junior, working in the same cadre. Thus, it is not a result of the principle of equality or equity; the fixation of pay being always referable to individual employees.
13 Stepping up of pay was a benefit allowed by the Government in certain situations as contained in O.M. Dated 4.2.1996. The foundation for the claim of stepping up did not lay on the principle of equality of pay between two employees in a cadre. It was a decision taken by the Government in 1966 only to set-right anomaly that arises directly as a result of pay fixation under FR 22-C. If a junior gets higher pay, that does not mean that invariably a senior to him should also get it without foundation for such claim in law. The difference in pay may arise due to several fortuitous circumstances which are not common in service. High pay due to adhoc promotion {Swaminations case 1997 SCC [L&S)] 1852], drawing running allowance while performing duty of Drivers [O.P. Saxenas case 1997 [6] SCC 360] in the lower cadre by junior and not drawing by a senior or wrong fixation of pay in the lower cadre to a junior, can be such instances claimed by stepping up in all these cases, were disallowed by Courts. Equal protection means the right to equal treatment in similar circumstances. Different treatment does not per se one of discrimination of violative of Article 14. It denies equal protection only when there is no basis for differentiation. The stepping up of pay however, would be a valid claim under law only if it equality falls within OM dated 4.2.1966 and that too such a stepping up was allowed only once. 15. The arguments based upon Article 14 of the Constitution also fell for consideration by the Hyderabad Full Bench of the Tribunal, in B.K. Somayajulus case [supra] and it was disposed of as under:-
7. If a junior gets a higher pay, that does not mean that the senior also should necessarily get it without a foundation for such a claim in law. Fortuitous events are part of life. Fixation of pay is generally with reference to an individual. Various reasons may account for the grant of a higher pay to a junior. Fro example undergoing a vasectomy operation or achieving excellence in sports or belonging to a certain community or even a wrong fixation of pay may bring about a situation where a junior gets a higher pay. If a junior is granted a higher pay for any of these reasons, that will not confer a corresponding right if a senior to get the same. If, for example, wrong fixation of pay in the case of a junior is to bring about a corresponding fixation in the case of a senior by applying the principle of equality, that would be an instance of using Article 14 to perpetuate illegality. If a senior is denied what he is entitled to get, he must challenge that denial or that preferment extended to a junior. He cannot acquiesce in a wrong, and make a gain from that wrong by a comparison. Without disguise the attempt of the senior, is to get the benefit of a higher pay, by comparison. Without challenge the wrong, he cannot claim a remedy from a wrong. Such collational reliefs are alien to law. The decision of the Supreme Court in Chandigarh Administration vs. Jagjit Singh [1995] SCC 745 supports this view.
8. Ultimately the question boils down to this, what is the right of the senior and where does he find that right. Certainly he does not find that right in any law. The law governing the subject is FR 22{I]{a][i]. Incidentally this rule is not challenged. It follows that only those anomalies that are directly referable to that rule, are amenable to the curative process thereunder, namely stepping up, and no other. Equity does no offer a cause of action, as we have already pointed out. Discrimination arises only vis-`-vis law. Difference on facts often non actional basis facts, does not give rise to a cause of action in law. The Supreme Court in India in comparable circumstances held [State of A.P. and others vs. G. Sreenivasa Rao and others [1989] 10 ATC 61, that difference per se, is not discrimination.
13. Thus, it is clear from these cases, any higher pay drawn by a junior due to fortuitous circumstance does not automatically entitled the senior to lay a claim for stepping up of his pay, unless the conditions as laid down by the OM dated 4.2.196 are satisfied. Life is full of fortuitous circumstances.
13. In the instant case, while the deceased applicant had already been promoted as Selection Scale Primary Teacher in the pay scale of Rs.1640-2900 w.e.f. 01.01.1998, on the date of her promotion as Head Mistress on 10.11.2009, she fulfilled only the first of the two conditions precedent requisite for the applicability of FR 22 (1) (a) (i), that the employee should shoulder higher responsibilities. On the other hand, as the deceased applicant was already drawing exactly the same pay scale as Selection Scale Primary Teacher, which is the pay scale of the Head Mistress also, the post which she got to occupy on 10.11.2009, there was no movement to any new higher pay scale as compared to the earlier pay scale, which is the second condition precedent, both of which have to be necessarily satisfied for the applicability of FR 22 (1) (a) (i).
14. Therefore, it is clear that the deceased applicants case is not at all covered by FR 22 (1) (a) (i), and she was not entitled to any re-fixation of her salary under the said FR 22 (1) (a) (i), since the second condition precedent of movement on promotion to a higher pay scale was not fulfilled in her case.
15. In the result, the OA filed by the deceased applicant deserves to be rejected, and is, therefore, dismissed, but there shall be no order as to costs.
(Sudhir Kumar) (G.George Paracken) Member (A) Member (J) cc.