Central Administrative Tribunal - Delhi
M.L.Chabra vs Union Of India Through Its Secretary on 14 October, 2011
Central Administrative Tribunal Principal Bench O.A.No.3438/2010 New Delhi, this the 14th day of October, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) M.L.Chabra s/o Late Sh. B.R.Chhabra presently r/o QU-210A, Pitampura New Delhi. Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through its Secretary Department of Agriculture & Cooperation Ministry of Agriculture, Government of India Krishi Bhawan New Delhi. The Plant Protection Advisor Directorate of Plant Protection, Quarantine & Storage Department of Agriculture & Cooperation Ministry of Agriculture N.H.IV, Faridabad. The Chief Administrative Officer Directorate of Plant Protection, Quarantine & Storage Department of Agriculture & Cooperation Ministry of Agriculture N.H.IV, Faridabad. Respondents (By Advocate: Sh. Satish Kumar) O R D E R By Shailendra Pandey, Member (A):
In this OA, the applicant, who was a Staff Car Driver in the respondents department, has challenged the order dated 23.11.2009, rejecting the request of the applicant for fixation of his pay in the grade of Staff Car Driver Grade-I w.e.f. 29.01.2004.
2. The brief facts of the case, as set out in the OA, are that the applicant was initially appointed as Staff Car Driver on 08.04.1995 and was subsequently promoted to the post of Staff Car Driver Grade-II. On 29.01.2004, orders were issued promoting six Grade-II drivers (the applicant was at Sl. No.1 in the list) to the post of Staff Car Driver Grade-I in the pay scale of Rs.4500-125-7000 with effect from the date of their joining on the post of Staff Car Driver Grade-I. He was further promoted to the post of Staff Car Driver Grade-I. It is stated by the applicant that, he joined duty as Staff Car Driver Grade-I on the same day, i.e., 29.01.2004. Vide order dated 03.03.2004, the applicant was assigned driving duty on `Rangapuri Indent, i.e., outside the city. On 4.3.2004 and 8.3.2004 the applicant requested the respondents to assign him only local duties instead of outside duties as he was suffering from `epilepsy. He also requested for a change of his category to any other equivalent post due to his health problems but states that the respondents have not considered the said request for change of his category and he continuing to perform duty as Staff Car Driver. It is stated by the applicant that the respondents never reverted him to the post of Staff Car Driver Grade-II and his promotion order to Grade-I was also not withdrawn. The applicant submitted a notice for Voluntary Retirement vide his letter dated 8.10.2009 and the same was accepted vide order dated 06.01.2010 and he was allowed Voluntary Retirement w.e.f. 08.01.2010. It is stated that although the applicant had made several requests (14 in number) upto 1.7.2009 to fix his pay in the post of SCD Grade I, the respondents did not do so and continued to treat him wrongly as a Staff Car Driver Grade-II without any formal order of reversion to Staff Car Driver Grade-II. However, for the first time vide impugned order dated 23.11.2009 they rejected his claim for grant of pay in the promotion grade of Staff Car Driver Grade-I on the ground that he had not been taken on the strength of Staff Car Driver Grade-I due to his sickness and that is why his pay has not been fixed in the post of Staff Car Driver Grade-I. Hence, the present OA has been filed seeking the following relief:
to quash the impugned order dated 23.11.2009 declaring to the effect that the same is illegal, arbitrary and against the principle of natural justice and consequently pass an order directing the respondents to re-fix the pay of the applicant w.e.f. 29.01.2004 in the grade to the post of Staff Car Driver Grade-I with all the consequential benefits including re-fixation of retirement benefits of the applicant with arrears of difference of pay and allowances.
3. The main grounds raised in support of the above relief are as under:
that during the year 2003-04 the applicant was the senior most Staff Car Driver Grade-II and that is why he was considered for and promoted to the post of Staff Car Driver Grade-I along with five other (junior) persons by the competent authority vide order dated 29.01.2004 w.e.f. the date of joining the higher post. It is submitted that there was no difference in the nature of duties of Driver Grade-I and Grade-II, but the applicant submitted his joining on the same day i.e. on 29.1.2004 and the same was accepted by the competent authority meaning thereby the applicant was promoted w.e.f. 29.1.2004. Therefore, not charging the pay of the applicant on the promotional post of Grade-I is totally illegal, arbitrary and discriminatory, as the pay of the junior persons were charged from the same date.
That due to his medical problem, the applicant submitted a representation for change of category after promotion and that this has no relation with non-fixation of pay on promotion post w.e.f. 29.1.2004 and, therefore, the whole action of the respondents is illegal.
That till date no show cause notice or any order has been communicated withdrawing the promotion of the applicant as SCD Grade-I and, therefore, till retirement the applicant was SCD Grade-I and, therefore, his pay should be fixed in the grade of SCD Grade-I. That once persons junior to him enjoyed the benefits of promotion to Staff Car Driver Grade-I from 29.1.2004, there is no justification for not granting the same benefit to him due to his health problems, and would constitute discrimination under Articles 14 and 16 of the Constitution of India and is, therefore, illegal.
4. The respondents have opposed the OA and have stated that the applicant was given a mere offer of promotion vide OM dated 29.01.2004 and was to be on probation for a period of two years from the date of joining the post of Staff Car Driver Grade-I. The applicant, however, never joined as Staff Car Driver Grade-I, therefore, the question of completing his probation period never arise. It is further stated that mere writing of Staff Car Driver Grade-I in the joining report by the applicant is meaningless as he was never willing to perform the duties of Diver and was pestering the respondents for change of his duties to any other equivalent post, and that he refused to perform the duties of a Driver. It is also denied that there is no difference in the nature of duties and responsibilities between Driver Grade-I or Grade-II. It is further stated by the respondents that the applicant in his request for VRS from Government service made on 08.10.2009 had written his designation as Staff Car Driver Grade-II and the same was even accepted vide OM dated 06.01.2010 by the respondents. He has also not challenged the legal competence of OM dated 06.01.2010. It is further stated that there are no documents from 2004 till 23.11.2009 in which designation of the applicant is mentioned as Staff Car Driver Grade-I. It is also stated that under the garb of pay fixation, the applicant is actually seeking promotion to the grade of Staff Car Driver Grade-I for which the cause of action arose in 2004; the OA is, therefore, time barred, as repeated representations will not extend limitation nor will the rejection of his representation dated 1.09.2009 vide impugned order dated 23.11.2009 give him any fresh cause of action. In view of this, according to the respondents, the OA should be dismissed as time barred.
On merits they have stated that the applicant has no case as he never successfully completed the period of probation in terms of initial offer of promotion to the post of Staff Car Driver Grade-I dated 29.01.2004. He never completed his probation on the post of Staff Car Driver Grade-I and he even accepted VRS without any demur w.e.f. 08.01.2010. In view of this, according to the respondents, the OA should be dismissed even on merits.
5. We have heard the learned counsel for both the parties and have been through the pleadings on record, including the original records which, as per our directions, have been produced by the respondents counsel.
6. It will be useful at the outset to extract (as done below) Office Order dated 29.01.2004 issued with reference to the promotion of the applicant:
On the recommendation of Departmental Promotion Committee (Group `C held on 07.01.2004, the following Staff Car Driver Grade-II are promoted to the post of Staff Car Driver Grade-I in the pay scale of Rs.4500-125-7000/- with effect from the date of their joining in the post of Staff Car Driver Grade-I:-
S.No. Name of the Official with present place of posting Category to which belong Place of posting
1. Shri Manohar Lal Chhabra, Headquarter Fardidabad General Headquarter, Faridabad
2. Shri Kanti Lal Guman Bhai Patel, CIPMC, Baroda General CIPMC, Baroda
3. Shri Shyamal Dass, RPQS, Kolkata General RPQS, Kolkata
4. Shri Ganpat Lal, LOP, Shergarh ST LOP, Shergarh
5. Shri Santosh Kumar Tewari, RPTL, Kanpur General RPTL, Kanpur
6. Shri Ram Suresh, CIPMC, Gorakhpur SC CIPMC, Gorakhpur
2. The above officials will be on probation for a period of two years with effect from the date of their the post of Staff Car Driver Grade-I.
3. Joining reports of the officials may be forwarded to this Directorate. 6.1. It is noticed that the order clearly stipulates the following:
(i) promotion to be effective from the date of joining the post of Staff Car Driver Grade-I.
(ii) probation for a period of two years.
(iii) forwarding of joining reports of the promoted officials to the Directorate.
The applicant had submitted his joining report as Staff Car Driver Grade-I vide his letter dated 29.01.2004 to Chief Administrative Officer, Directorate of Plant Protection, Quarantine & Miscellaneous, NH-IV, Faridabad, which was also duly received by the respondents vide diary No.106/2004/Admn.II of 29.01.2004. However, no order accepting and forwarding the joining report (as directed in the order dated 29.01.2004) has been produced by the applicant and for this reason, no pay fixation order in Grade-I (SCD) in respect of the applicant was issued by the respondents.
6.2. It is true that the applicant had made a representation on 2.08.2004 for fixation of his pay in the Grade-I (SCD), which was also received by the respondents vide diary No.915/2004/Admn.II of 02.08.2004 (Page 271 of the personal file) and he also subsequently made several reminders/representations in this regard but there was no fixation done in the higher scale. Finally the respondents rejected the claim of the applicant in his representation dated 1.09.2009 by the impugned order dated 23.11.2009.
6.3. Thereafter, the applicant sought Voluntary Retirement w.e.f. 8.10.2009 due to his illness vide his letter dated 8.10.2009, and the same was accepted by the competent authority w.e.f. 08.01.2010(FN) vide Office Order dated 06.01.2010 and thereafter his retirement benefits were also released treating him as Staff Car Driver Grade-II.
7. It is noticed from the department file pertaining to the promotion from the post of Staff Car Drivers Grade-II to Staff Car Drivers Grade-I, that after issuance of the promotion order dated 29.01.2004 and after receiving the joining reports of the persons concerned, the following Office Order dated 31.03.2004 was issued in respect of the persons who were also promoted along with the applicant vide their order dated 29.01.2004 stating that they are appointed as Staff Car Driver Grade-I in the pay scale of Rs.4500-125-7000 w.e.f. the date of their joining and until further orders:
Sr.No. Name & Designation of the official Whether SC/ST Date of joining in SCD (Grade-I) cadre Present place of posting
1. Sh. Kanti Lal Guman Bhai Patel, SCD (Grade-II), CIPMC, Baroda - 04.02.2004 CIPMC, Baroda
2. Sh. Ganpat Lal, SCD (Grade-II), LOP, Shergarh ST 10.02.2004 LOP, Shergarh
3. Sh. Santosh Kumar Tiwari, SCD (Grade-II), RPTL, Kanpur - 04.02.2004 RPTL, Kanpur
4. Sh. Ram Suresh, SCD (Grade-II), CIPMC, Gorakhpur SC 04.02.2004 CIPMC, Gorakhpur However, in respect of the applicant no such Office Order appointing him as Staff Car Driver Grade-I was issued by the respondents and thus the cause of action for him not being accorded promotion and resultantly pay in the higher grade of Staff Car Driver Grade-I arose on 30.03.2004. He should, therefore, have filed the OA within one year, i.e., by 01.04.2005 and allowing for a representation to be made and 6 months time thereafter for a decision on the same, the case should have been taken up by the applicant towards the end of 2005 but the OA has been filed only on 08.10.2010. Subsequent repeated representations/reminders would not extend the period of limitation. The case would, therefore, attract limitation under Section 21 of the Administrative Tribunals Act, 1985 and the OA is liable to be dismissed on this ground as in a recent Judgement of the Honble Apex Court in the matter of D.C.S. Negi v. Union of India & Ors. decided on 07.03.2011 in SLP (C) No.7956/2011(CC No.3709/2011) the Apex Court, while dismissing the Appeal, has emphasized that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation, and that an application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
8. There is another reason why the relief claimed cannot be granted. This is that the applicant had sought Voluntary Retirement vide his application dated 08.10.2009 in which he had himself shown his designation as Staff Car Driver (Grade-II). The submission of the applicant in his rejoinder that the Section Officer refused to accept the same by saying that as the applicant is getting the pay and allowance to the post of Driver Grade-II and, therefore, the applicant should mentioned his designation as Grade-II and then only his representation will be forwarded to higher authority and that is why the applicant submitted his representation by mentioned his designation as Grade-II Driver, cannot be accepted as he should have mentioned that he was doing so under protest. What is more, the order dated 06.01.2010 issued by the competent authority, accepting his Voluntary Retirement w.e.f. 08.01.2010, also shows him as Staff Car Driver Grade-II. The applicant has not challenged the order and has accepted the retirement benefits as Staff Car Driver Grade-II. Having done so, by challenging of the order dated 23.11.2009 [rejecting his request for pay fixation in the Grade-I (SCD)], he cannot now claim promotion from 29.01.2004. What has actually been denied to him by the respondents is not pay fixation as Staff Car Driver Grade-I but promotion to Staff Car Driver Grade-I in terms of order dated 29.01.2004 due to his `not attending to/being able to attend to duties assigned to drivers, after their promotion to Grade-I (Also there is no formal order of his having assume charge and of confirmation on completion of probation). He has also acquiesced in this all along, including while accepting Voluntary Retirement.
9. In view of the above discussion, the OA is dismissed with no order as to costs.
(Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /nsnrsp/