Central Administrative Tribunal - Delhi
Shri D.S. Patial vs Government Of National Capital on 17 August, 2009
Central Administrative Tribunal Principal Bench TA No. 1202/2009 New Delhi this the 17th day of August, 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri D.S. Patial, S/o Shri Dalip Singh Patial, R/o Vill. Panial, PO Masroor, Tehsil Dehra, Distt. Kangra, Himachal Pradesh -Applicant (By Advocate: Shri Zafar Sadique) -V E R S U S- 1. Government of National Capital Territory of Delhi, through its Chief Secretary, 5-A, Shamnath Marg, Delhi-110 054 2. Delhi State Mineral Development Corporation Limited, Through its Chairman-cum-Managing Director, N-36, Bombay Life Building, Connaught Circus, New Delhi-110 001 -Respondents (None) O R D E R Dr. Veena Chhotray, Member (A):
The TA No. 1202/2009 arising from the WP (C) No. 4978/1998 has been transferred to the Tribunal vide the Delhi High Courts order dated 09.04.2009. This is a case in which despite opportunity no counter affidavit has been filed by the respondents. As the claims in question are quite old, the right to file counter affidavit is forfeited. For want of appearance of the respondents counsel, the matter is being disposed under Rule 16 of the CAT (Procedure) Rules 1987.
2. The applicant, an ex employee of the Delhi State Mineral Development Corporation Limited (DSMDC, for short) (respondent No.2) since wound up and re-deployed as a Head Clerk under the Government of NCT of Delhi in 1994 superannuated w.e.f. 31.1.1996. Through this WP/TA, the following reliefs have been sought:
(a) Declaring the petitioner as entitled to be granted the pay scale 2200-4000 for holding and working on the post of Store Keeper for the period from 18.9.1987 to 23.11.1994 instead of the scale Rs.1640-2900 given to him. In the minimum grant of the scale of Rs.2000-3500 as decided by the then CMD with all consequential benefits has been sought.
(b) Declaring the petitioner as entitled to be voluntarily retired from service w.e.f. date of his application and before his being declared surplus, with all consequential benefits.
(c) A declaration regarding his re-deployment under the GNCT to be in the scale 2200-4000/2000-3500 instead of the scale 1400-2300 presently given to him.
For want of the counter affidavit or any oral submissions by the respondents, the present case is being decided on the basis of the records made available along with the TA, as examined in the light of established law.
3.1 The brief facts of the case are: that the applicant had been appointed initially in 1974 under the Delhi State Industrial Development Corporation (DSIDC) as Assistant Store Keeper to be promoted in 1977 as a Store Keeper. The scale of the post of Store Keeper at that time was Rs.330-560. Subsequently, however, the petitioner was appointed as a Store Keeper in a higher scale of 550-900 for Bhatee Mines Project. The petitioner had joined there in 1984. Along with the WP, a copy of the relevant appointment order has been attached as Annex. P-1. In the wake of the IVth CPC, the scale of Rs.550-900 was revised to Rs.1640-2900.
3.2 In 1985 the Bhatee Mines separated from DSIDC and converted into a separate corporation called Delhi State Mineral Development Corporation Limited. While working under the DSMDC, the petitioner was re-designated as a Store Officer vide the letter dated 18.9.1987. A copy of the relevant Office Order (Annexed P-2) reveals that this was stated to be on his existing terms of service. The applicant, however, had made a series of representations pleading for the grant of a higher scale of Rs.2200-4000. The arguments cited in support were: his outstanding performance, devotion to duty and higher nature of responsibilities. Along with the WP, a copy of the Office Order dated 5.10.1987 has been annexed showing that the applicant had been given independent charge of the store (Annex. P-3). The other ground taken was that the higher scale of 2200-4000 was, in fact, being given to all corresponding posts of Store Offices in various departments of Government of India as also in the GNCT and equivalent or identical bodies like the Delhi Milk Scheme, Delhi Engineering College etc.. Though the para 8 of the Writ Petition makes a mention regarding annexing copies of the relevant documents, the only document that we find, in fact, is a copy of advertisement by the UPSC showing inter alia the post of a Store Officer under the Delhi Milk Scheme under the scale 2200-4000. It is averred that the matter had been processed in the DSMDC and the decision taken at the level of CMD to upgrade the post in the scale of 2000-3500. In support copies of the relevant notings from the official records have also been enclosed as P-6.
As per the notings, it is revealed that on 14.6.1993, the CMP had approved a proposal in principle for up-gradation of the post of Store Keeper to the scale 2000-3500. This was further processed by the respondents in consultation with their financial advisors who had expressed serious reservations and consequently the proposal had been kept in abeyance. The relevant extracts are as hereunder:-
FA In my view the restructuring should be done after considering all the departments and divisions. Selecting only one post in a department for upgradation should in my view discouraged. The DSMDC is passing through a very bad financial period. Often we find it difficult to make payments of salary. There has been hardly any improvement in the production and consequently financial and hence the creation of the post and the upgradation of the incumbent should be kept in abeyance.
Submitted.
Sd/-ADISH JAIN Financial Advisor 28.10.93 GM As advised by FA, this may be kept in abeyance.Sd/- GM 28/10
A.M. (P) Even though the WP does not disclose the modus operandi or source of assessing these extensive office notings in the pre-RTI days, even treating the same as authentic, we do not find an official decision on the subject to support the claim of a higher scale. In any case, as per the Office Order issued, the re-designation in question had been done on the Officers existing terms of surplus. It is also trite that the DSMDC being a PSU, would not be automatically guided by the terms and conditions followed under the Government of India or under the other departments of GNCT or even the other bodies unless there are specific rules and decisions to that effect. Needless to say the contention of alleged discrimination or violation of the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution of India does not hold true also.
4. The DSMDC had been wound up and the name of the applicant was included in the list of surplus staff vide the circular dated 27.8.1992. The Writ Petition, however, avers that even before the applicants services were rendered surplus, he had vide his representation dated 25.6.1991 applied for voluntary retirement. The documents have been enclosed in support to show that the scheme of voluntary retirement circulated by the Union Ministry of Industry, Bureau of Public Enterprises vide their OM dated 5.10.1988 had been adopted by the DSIDC (Annex. P-8). It is averred that since DSMDC had not framed its own rules and had been following the rules and circulars issued by DSIDC, the same would be applicable to the DSMDC. The applicant had pursued the matter for voluntary retirement but to no avail.
In the meanwhile, however, vide the Government of NCT of Delhis order dated 1.6.1994, the services of the applicant were re-deployed under the GNCT as Grade II DASS Head Clerk in the scale 1400-2300 (Annex. P-11).
The applicants contention is that since he had applied for voluntary retirement, he should have been allowed the benefit of the scheme. Since we do not have before us the feedback from the respondents as to what had transpired at their end and whether there was any formulated response on the representation for voluntary retirement, we are constrained to take view in the matter only on the basis of the documents before us and the general law in this regard. As per the relevant OM regarding the scheme of voluntary retirement, the benefit under the scheme was not made automatic. As per Clause B, the management of the enterprise had a right not to grant voluntary retirement for reasons to be recorded in writing. In this case, according to the records, no communication had been received from the respondents and the applicant had continued to be with them and subsequently had also accepted the redeployment. In the given situation, we find it hard to accept that the claim of the applicant for a mandatory acceptance of voluntary retirement and for grant of benefits retrospectively, despite his having working with the respondents subsequently would have any legal force.
5. The third relief claimed is with regard to the pay scale in the redeployed post being lower than what the applicant had been getting previously. The claim of the applicant is that he should have been granted the higher scale of 2200-4000 appropriate for the post of Store Officer or in the list, the scale of 2000-3500 claimed to have been granted by the CMD, DSMDC. The WP also refers to the relevant rules regarding redeployment of surplus staff of 90 and avers that as per these rules not only his pay scale but also the status of the earlier post needed to be protected.
The services of the applicant had been redeployed vide the Government of NCT of Delhi an order dated 1.6.1994 a copy of the relevant order has been annexed as P-11. The absorption of the employee listed therein, including the applicant is said to be subject to fulfillment of the CCS (Redeployment of Surplus Staff) Rules 1990. A copy of the relevant rules has also been annexed as P-12. A perusal of these documents shows that the redeployment order contained a specific Clause 5 regarding pay protection of the current pay scale of the redeployed staff:-
5. In case the absorbed staff has been appointed on a lower pay scale than that he was holding at the time being declared surplus shall be allowed to carry his current pay scale to the re-deployed post as personal to him. Further the records reveal a circular No. P.F. 6/11/92-S.II 25.4.1995 from the Government of NCT of Delhi on the subject of clarification regarding absorption of surplus staff in the Government. The following is directly relevant to the point under adjudication:-
a) Protection of Pay Scale and Pay:
The surplus employees are normally to be redeployed in a post carrying a matching pay scale but where such matching is not possible, in that event, if the pay scale of the recipient post is lower, the surplus Government servant who is redeployed on such a post should be allowed the facility of drawing pay in his previous pay scale while working on the new post. Admittedly, before being rendered surplus, the applicant had been working as Store Officer under the DSMDC in the scale 1640-2900. However, on re-deployment, he had been granted lower scale of 1400-2300. As per the clear provisions from the circulars cited above, his current pay scale and the pay drawn in it ought to have been protected. Even though there are records before us, we do not have any factual averment of the applicants drawls on redeployment, from the averments before us, it can logically be inferred that they have been limited to the scale 1400-2300. If that be the case, to this extent, the claim of the applicant is found to be tenable as per law.
To conclude of the three reliefs claimed, the first two regarding grant of higher scale as a Store Officer for the period 18.9.1987 to 23.11.1994 under the DSMDC and regarding a mandatory conferring of benefits under the Voluntary Retirement Scheme, are not found to be tenable. However, the third relief regarding pay protection of the previous pay scale is found to be in accordance with the instructions on the subject. Therefore, the TA is allowed partly and disposed of with a direction to the respondent No.1 to ensure that in his redeployed capacity, the previous pay scale and pay drawn by the applicant is protected. In the event of this not having been done, the recalculations of the arrears and the intervening increments, if any, would be done. Since the applicant has, in the meanwhile, superannuated, such a change would also have an impact on his retiral dues. As the matter is lingering for a long time, it must be ensured that the applicant is not put to any further harassment in this regard. The needful is to be done within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) /lg/