Central Administrative Tribunal - Delhi
Presently Posted At vs Govt. Of N.C.T. Of Delhi on 27 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.3966/2013 OA No.3971/2013 New Delhi this the 27th day of February, 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur Member (A) OA 3966/2013 V.K. Verma, Shri O.P. Verma, R/o B-702, Apex Green Valley Apartments, Sector-9, Vaishali, Ghaziabad (UP). Presently posted at: GND Polytechnic, Rohini, New Delhi. .. Applicant (By Advocate: Shri Sourabh Ahuja) Versus 1. Govt. of N.C.T. of Delhi, Through its Chief Secretary, Delhi Sachivalaya, Players Building, New Delhi. 2. Secretary/Principal Secretary, (Technical Education), Department of Training & Technical Education, GNCT of Delhi, Muni Maya Ram Marg, Pitam Pura, Delhi-110088. 3. Union Public Service Commission, Through its Secretary, Shahjahan Road, New Delhi. 4. Principal, Guru Nanak Dev Polytechnic, Rohini, New Delhi-85. .. Respondents (By Advocate : Mrs. Renu George) OA 3971/2013 Lokpal Singh Negi, Shri Late Shri Bachan Singh Negi, R/o 131-B, Sunder Apartments, Paschim Vihar, (GH-10), New Delhi. Presently posted at: Aryabhatt Polytechnic, Opposite Shakti Nagar Telephone Exchange, G.T. Karnal Road, New Delhi. .. Applicant (By Advocate: Shri Sourabh Ahuja) Versus 1. Govt. of N.C.T. of Delhi, Through its Chief Secretary, Delhi Sachivalaya, Players Building, New Delhi. 2. Secretary/Principal Secretary, (Technical Education), Department of Training & Technical Education, GNCT of Delhi, Muni Maya Ram Marg, Pitam Pura, Delhi-110088. 3. Union Public Service Commission, Through its Secretary, Shahjahan Road, New Delhi. 4. Principal, Aryabhatt Polytechnic, Opposite Shakti Nagar Telephone Exchange, G.T. Karnal Road, New Delhi. .. Respondents (By Advocate : Mrs. Renu George) O R D E R (Oral) Mr. A.K. Bhardwaj, Member (J):
The common issue raised in these two applications is whether the respondents are justified in adopting a lackadaisical approach and attitude in filling up the post of Principal in the wake of finalization of the recruitment rules for the post, as suggested by All India Council for Technical Education (AICTE) in terms of letter No.F.No.1-65/CD/NCE/98-99 Dated 30.12.1999, thus the same are taken up for disposal in terms of a common order.
2. Shri Sourabh Ahuja, learned counsel for the applicants submitted that in terms of the recruitment rules for the post of Principal (Boys Polytechnic) in vogue as on 01.04.1969, the Head of Department (HoD) in Boys Polytechnic is eligible for promotion to the post and since the applicants had been granted Selection Grade with effect from 26.12.1994, i.e. the grade equivalent to the HoD, they had become eligible for promotion for the year 1999 and the respondents ought to have filled up the available post of Principal (Boys Polytechnic) by following the existing recruitment rules. The further submission put forth by him is that when both the applicants and Dr. Amita Dev, HoD, Computer Engineering, are substantive incumbents of the same post and are in the same seniority list, when Dr. Amita Dev has been granted adhoc promotion and pay scale applicable to the post of Principal the applicant in OA No.3971/2013 has been made to officiate on the post without any additional benefits.
3. On the other hand, Ms.Renu George, learned counsel for the respondents submitted that once way back in the year 1999 the AICTE had recommended amendment in the recruitment rules for the post of Principal and in the wake of the recommendation the Department moved a proposal for amending the recruitment rules to incorporate the qualification as per the AICTE norms and amalgamation of the Principal (Boys Polytechnic), Lady Principal and the Principal (ICP), the vacancies could not have been filled up as per old rules. According to her, once the recruitment rules for the post of Principal in Diploma level technical institutions are finalized, the claim of the applicants shall be considered. The averments made in paras 4.6 and 4.7 of the reply read thus:
4.6 & 4-7 In reply to the contents of paras 4.6 & 4.7, it is submitted that the pay scale of Principal of Polytechnics under DTTE was upgraded on the recommendation of AICTE-1999. AICTE in its Notification dated 30.12.1999 mentioned that implementation of the revised scale will be subject to the acceptance of all the conditions mentioned in the scheme including qualification and recruitment procedure as well as other term and condition issued by the AICTE in this behalf. The qualification and experience for the post of Principal as per AICTE notification dated 30.12.1999 is as under:-
Masters Degree in appropriate branch of Engg./Technology with a first class Masters of Bachelors level & 15 years experience in teaching out of which 5 years shall be at the level of HOD or equivalent OR Ph.D. in appropriate branch of Engineering/Technology with a 1st class at Masters or Bachelors level and 10 years exp. in teaching out of which at least 3 years, shall be at the level of Head of Department or equivalent. On the basis of AICTE Notifications (1989/1999/2010) the Department moved a proposal for amending the existing RRs incorporating the qualification as per AICTE norms.
Further, it is submitted that the Posts of Principal (Boys Polytechnic), Lady Principal and Principal (ICP) have been amalgamated as Principal and Principal (ICP) have been amalgamated as Principal in r/o Diploma level technical institutions under DTTE vide order No.F.5/110/06/RR/TE/AD/ Part-I/1947-1952, dated 22.09.2010. Hence no such post of Principal (Boys Polytechnic) exist at present. However, the RRs to the Post of Principal in Diploma level technical institute are about to be finalised in a short time, the applicants claim shall be examined accordingly.
4. We heard the learned counsel for the parties and perused the records. It is not in dispute that vide letter dated 30.12.1999 the AICTE recommended the revised pay scale and recruitment rules for the post of Principal. Relevant excerpts of the letter read thus:
1.0 PREAMBLE The Government of India, Ministry of Human resource Development, Department of Education has issued orders vide letter No-7-104/95-TS-II, dated October 9, 1998 and of even No. dated January 14, 1999 implementing a Scheme of revision of pay scales of teachers of degree level Technical Institutions, following revision of pay scales of Central Government employees on the recommendation of Fifth Central pay Commission. The Government orders require that AICTE notify other terms and Conditions of Service of such teachers with the approval of Ministry of Human Resource development.
In line with the revised-Scales of teachers of degree level technical institutions and the associated service conditions, ACITE has now revised the pay-scales and associated service conditions of teachers, librarians and physical education personnel in diploma level technical institutions, with the concurrence of Ministry of Human resource Development. The revised pay scales and associated service conditions are given in this notification.
2.0 .
2.1 2.2 Date of Effect:
The revised pay-Scales, career Advancement Scheme and incentives for higher qualification given in this notification shall be effective from January 1, 1996. All other terms and conditions come into force with effect from the date of this notification.
Principal Qualification and Experience Masters Degree in appropriate branch of Engineering/Technology with First Class at Masters or Bachelors Level.
OR Ph.D. in appropriate branch of Engineering/ Technology Technician Education.
NOTE : Candidates from industry/with First Class Bachelors Degree in appropriate branch of Engineering / Technology, & with industrial experience which is equivalent to Masters degree, with total 15 years of experience of which at least 5 years would be at a level comparable with Head of Department, will also be eligible.
15 years experience in teaching out of which 5 years shall be at the level of Head of Department or equivalent.
10 years experience in teaching out of which at least 5 years shall be at the level of Head of Department or equivalent
5. Admittedly, in acceptance of the said recommendations, the Government of NCT of Delhi initiated a proposal for amalgamation of the different posts of Principal and amendment in the recruitment rules. Such amendment in the recruitment rules is sine qua non for granting higher pay scale to the Principal, as recommended by the AICTE. It is also not in dispute that after the proposal was initiated, the respondents have not taken any steps to fill up the post of Principal (Boys Polytechnic), Lady Principal and the Principal of ICP. May be to prescribe the higher pay scale for the post of Principal and to have a unified post the respondents could have amended the recruitment rules, but there was nothing to prevent them from filling up the existing post of Principal (Boys Polytechnic), Lady Principal and the Principal of ICP for such a long period. It is not so that the higher qualification was prescribed for requirement of the system (Institute) or to improve the efficiency. The qualification was introduced only because the higher pay scale was recommended for the post of Principal by the 5th Central Pay Commission. Nevertheless, we are conscious that in terms of the law declared by the Honble Supreme Court in catena of cases i.e. Baij Nath Sharma vs. Hon'ble Rajasthan High Court At Jodhpur & Anr., (1998) 7 SCC 44 and State of Uttaranchal & Anr. vs. Dinesh kumar Sharma, (2007) 1 SCC 683 as well as the guidelines of DoP&T in this regard promotion to a post has to be effective either from the date of DPC or from the date of assumption of the charge of the post whichever is later and there is no concept of retrospective promotion except in a situation, where a junior is found promoted from such date. At this stage, if we give direction to the respondents to fill up the vacancy in accordance with the rules in vogue at the time the vacancies became available, the only ramification would be that the respondents would be compelled to fill up the post of Principal (Boys Polytechnic), Lady Principal and the Principal of ICP, which will have the effect disturbing the unification of the post of Principal and the prescribed higher pay scale for the post. The respondents have already taken enough time in the process and have now stated in their reply that the recruitment rules would be finalized in a short time and the claim of the applicants for promotion shall be examined accordingly.
6. In the backdrop, we are of the view that it would be in the fitness of things, if the respondents are directed to finalize the recruitment rules within the specified time limit and examine the claim of the applicants for promotion as Principal in accordance with the amended rules. As far as the claim of the applicants for the pay admissible to the post of Principal is concerned, such claim is espoused only by the applicant in OA No.3971/2014 (Lokpal Singh Negi). We find that when Dr. Amita Dev, who is made to officiate the Principal, BPIBS/Ambedkar Polytechnic has been granted the Pay Band of Rs. 37400-67000 with Grade Pay of Rs.10000/- along with Special Allowance of Rs.2000 per month, the said applicant has been made to discharge the function of the post in his existing pay scale of HoD only. Such an approach of the respondents is discriminatory. In B.K. Basnotra vs. The Honble the Chief Justice, Delhi High Court & Another in CWP 1799 of 1987, the Honble Delhi High Court viewed that a person, who is made to work on higher post for a long period, is entitled to get salary for the said post. The relevant excerpts of the order read thus:
The fact remains that the petitioner did work as a Court Master for about 16 years. This was, certainly, not on his own. It must have been on the directions of some authority in the High Court. It is not as if an employee of the High Court decides one day that he wants to work as a Court Master and he does so, for as long as 16 years. Since the Petitioner was made to work in the post of a Court Master for about 16 years, surely he is entitled to get salary as a Court Master for this period.
It is contended that the Petitioner did not make any representation for getting such salary and if he had made a representation during that time, he could have been shifted out and posted in his substantive post of Senior Translator. I am afraid this is not the correct way to look at the matter. An employee does not have to make a representation for equal pay for equal work. It is for the establishment to see where its employees are posted and whether they have been rightly posted there or not. Obviously, since the Petitioner worked for about 16 years without any objection from the establishment, it was with the tacit acceptance of the establishment and, of course, with its full knowledge that he worked as a Court Master. Whether he made a representation for equal pay for equal work is irrelevant.
7. In view of the aforementioned, we are convinced that the respondents need to examine granting the pay scale admissible to the post of Principal to the applicant in OA No.3971/2013 for the period during which they have made him to discharge the function of the post.
8. In view of aforementioned stand taken by the respondents in their counter reply, the OAs are disposed of with direction to the respondents to finalize the recruitment rules for the post of Principal within 8 weeks from the date of receipt of a copy of this order and examine the claim of the applicants for promotion within further four weeks thereafter. In the meantime, the respondents would also examine the claim of the applicant in OA No.3971/2013 for the pay admissible to the post of Principal, keeping in view the order No.F.2/44/94/TE/AD/ dated 05.07.2013 whereby Pay Band of Rs. 37400-67000 with Grade Pay of Rs.10000/- along with Special Allowance of Rs.2000 per month has been granted to Dr. Amita Dev as also aforementioned order of the Delhi High Court in CWP No.1799 of 1987 within four weeks. The respondents would also examine giving Officiating/adhoc promotion to the applicant in OA No.3971/2013 subject to availability of vacancy and his suitability. No costs.
9. Let a copy of this order be placed in both the files.
(V.N.Gaur) (A.K. Bhardwaj) Member (A) Member (J) February 27, 2015 /kdr/