Central Administrative Tribunal - Delhi
Shri Krishan Kumar & Others vs Govt. Of Nct Of Delhi on 3 July, 2009
Central Administrative Tribunal Principal Bench OA No.1505/2008 MA No.920/2009 New Delhi this the 3rd day of July, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) Shri Krishan Kumar & Others -Applicants (By Advocate Shri S.K. Gupta) -Versus- 1. Govt. of NCT of Delhi through its Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110 002. 2. Principal Secretary (Home), Govt. of NCT of Delhi, Delhi Secretariat, I.P. Estate, New Delhi-110 002. 3. Chief Fire Officer, Delhi Fire Service, Fire Headquarters, Connaught Circus, New Delhi. -Respondents (By Advocates Ms. Rashmi Chopra and Shri Chandramani Bhardwaj) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicants, numbering 55, working as Firemen and Drivers in various fire stations of Delhi, have impugned respondents order dated 17.4.2008, whereby their demand for grant of higher pay scale after 10 years of service has been turned down.
2. A long history of litigation suggests that the applicants had approached the Tribunal in OA-1988/2006 for grant of pay scale of Rs.1320-2040 as Driver Grade-II/Leading Fireman. An order passed on 2.1.2008 directed consideration of representation of applicants for promotion to the higher posts after ten years of service in a particular grade after taking into account the acceptance or otherwise of ACP Scheme for the Drivers of DFS and also taking into account the new Recruitment Rules, if any, for the post of Driver in DFS. In the aforesaid order while taking cognizance of the fact that the respondents have failed to produce any rules for promotion it was observed that the respondents have not clarified whether ACP Scheme has been adopted for DFS, especially for Drivers. The stand of the respondents in summarily rejecting the representations of the applicants for promotion cannot be justified. Concededly, there exist three tiers in the cadre of Drivers, as approved by the Standing Committee of MCD for proposal dated 17.3.1994 and 21.3.1994 of Commissioner, MCD. It is also conceded by the respondents that a Scheme for time bound promotion had been approved by MCD, which envisaged promotion after every ten years subject to certain conditions mentioned in the proposal of 21.3.1994. In the absence of rules for recruitment and promotion of Drivers of DFS, the Resolution of the Standing Committee would remain operative. However, the respondents in pursuance of the directions of the Tribunal rejected the representation vide the impugned order, holding that the nomenclature of the post of Fireman/Driver has been changed and after the transfer of DFS from MCD to the Govt. of NCT of Delhi in 1994 new recruitment rules have been framed where the seniority list has been prepared in cadres and as per it promotion would be accorded. Till then they are entitled to financial benefits under the ACP Scheme, which has been adopted in the DFS for all the employees under its control. It is also observed that the resolution of MCD has become infructuous.
3. Learned counsel of applicants states that the Drivers who have been appointed prior to 21.3.1994 have approached the Tribunal where they have been granted benefit of ACP and when the aforesaid was challenged before the High Court of Delhi in Civil Writ Petition No. 6194/2001 an order passed on 13.5.2008 relying upon trifurcation scheme of MCD vide resolution dated 21.3.1994 accorded benefits to the respondents therein by modifying the order of the Tribunal, but insofar as post-1994 appointee Drivers are concerned, they were directed to be placed in the pay scale of Rs.975-1660 and judgment in OA No.424/1996 dated 1.12.1999 by the Tribunal was reiterated. In the above view of the matter, it is stated that since the applicants are on the same footing, having been appointed in 1995, but the scheme was available till 1999 when the ACP scheme was promulgated trifurcation scheme should have been introduced and applied to the applicants to grant them the benefit of the pay scale of Rs.1320-2040 (pre-revised) in Grade-II of the Drivers with all consequences.
4. Shri Gupta further states that the post of Driver still exists in the DFS, where applicants are working and recruitment rules dated 19.2.1999 have been framed independently without supersession of the earlier resolution dated 21.3.1994. Learned counsel would contend that applicants being recruited as Firemen/Drivers as a result of direct recruitment where the pay scale prescribed was Rs.1320-2040 but were forced to accept the lower pay scale of Rs.975-1660. Their claim though rejected by the Tribunal and also upto the level of Apex Court, yet it is stated that the resolution of MCD dated 21.3.1994, which was in vogue till 1999, prescribes on completion of 10 years service as Driver in Grade-III the pay scale of Grade-II. Learned counsel would also contend that the respondents are precluded from approbating and reprobating simultaneously, as in the counter reply to OA-424/1996 the Govt. of NCT of Delhi adopted the standing order dated 21.3.1994, yet now it is stated to be superseded.
5. Learned counsel lastly stated that the ACP Scheme dated 9.8.1999 has not superseded the earlier scheme of promotion, which is germinated from the office of the MCD and is deemed to have been adopted by the Govt. of NCT of Delhi.
6. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that the nomenclature of the post of Fireman/Driver has been changed to Fire Operator and after the transfer of DFS from MCD to the Govt. of NCT of Delhi in the year 1994 the Govt. of NCT of Delhi has framed recruitment rules for the post of Fire Operator, Leading Fireman and Sub Officer vide notification dated 19.2.1999, 28.9.1998 and 19.2.1999. It is stated in this regard that seniority list has been prepared and circulated with other Fireman/Fire Operators and they will be considered for promotion to the post of Leading Fireman along with other Fire Operators as per seniority and till then they are entitled to financial benefits under ACP Scheme.
7. On careful consideration of the rival contentions of the parties it appears that in pursuance of directions issued by the Tribunal on 2.1.2008 though there has been cognizance of trifurcation scheme promulgated through MCD resolution dated 21.3.1994, in paragraphs-9 and 10, following observations have been made by the Tribunal in OA-1988/2006:
9. We have given our careful consideration to the rival contentions and have perused the record placed before us with the assistance of counsel. The Applicants have placed reliance on the approval of the Standing Committee of the proposal dated 21.03.1994 of the Commissioner, MCD regarding promotion from Grade-III to Grade-II and Grade-II to Grade-I after ten years of service in each grade. However, if subsequently Rules have been framed by GNCTD for promotion of Drivers of DFS, then the Resolution of MCD becomes infructuous. However, the Respondents have not produced any Rules in this regard. Further, in case the ACP Scheme has been adopted for DFS, then it would not be possible for Delhi Fire Service to have another time bound promotion Scheme as envisaged in the aforesaid proposal dated 21.03.1994. The Respondents have not clarified whether ACP Scheme has been adopted for DFS, especially for Drivers. The stand of the Respondents in summarily rejecting the representations of the Applicants for promotion cannot be justified. Concededly, there exist three tiers in the cadre of Drivers, as approved by the Standing Committee of MCD for proposals dated 17.03.1994 and 21.03.1994 of Commissioner, MCD. It is also conceded by the Respondents that a Scheme for time bound promotion had been approved by MCD, which envisaged promotion after every ten years subject to certain conditions mentioned in the proposal dated 21.03.1994. In the absence of Rules for recruitment and promotion of Drivers of DFS, the Resolution of the Standing Committee would remain operative.
10. On the basis of above discussion, the OAs succeed partly. We set aside the impugned orders dated 18.08.2006. The Respondents are directed to consider the representation of the Applicants for promotion to the higher posts after ten years of service in a particular grade after taking into account the acceptance or otherwise of ACP Scheme for the Drivers of DFS and also taking into account new Recruitment Rules, if any, for the post of Driver in DFS. The Respondents will pass a detailed speaking order taking into account the above said observations within three months of the receipt of a certified copy of this order. If the grievance of the Applicants still survives, they would be at liberty to take appropriate action under law. There will be no order as to costs.
8. Having regard to the above, on non-production of record the resolution of standing committee was found to be operative.
9. In an identical matter when pre-21-3-1994 Drivers were accorded ACP by the Tribunal, the respondents have approached the High Court of Delhi in Civil Writ Petition No. 6194/2001, where the following observations have been made:
We are unable to accept this submission of Mr. Tandon. While contending this the petitioners lose sight of trifurcation scheme which was introduced in the year 1994 and was available in 1999 when the ACP Scheme was introduced. We have already extracted above the relevant portion of the said trifurcation scheme as per which the existing personnel already working as driver in the pay scale of Rs.1320 ? 2040 were to be place in Grade ? I on their fulfilling the conditions as stipulated therein. These conditions inter alia included rendering of 10 years of service as driver. Thus, all existing drivers who were appointed in the pay scale of Rs. 1320-2040 were to be given the pay scale of Rs.1600 ?
2660 after 10 years of service and on satisfying the contention mentioned at Sl. No. 1 to 4 of that order namely passing of prescribe test and achieving the benchmark in their ACRs, as described above. This aspect is not even looked into by the petitioners while passing office order dated 5th July, 2000.
The appropriate exercise therefore would have been in the following sequence: -
(a) The existing drivers on completion of 10 years of service should have first been considered for promotion to Grade ? I, i.e., in the pay scale of Rs.1600-2660 and those who qualify for the said promotion should have been given the pay scale of Rs.1600-2660 (revised pay scale of Rs.5,000 -8,000) .
(b) Those who would be able to get promotion in the aforesaid manner would be entitled to upgradation of their pay scale after 12 years of service from the date of promotion and in the pay scale of Rs.6,500-10,500/-. It is obvious that after those who get promotion would not be entitled to the benefit of both the ACPs Scheme but would get only upgradation to next higher scale.
(c) Those existing drivers who are not able to get the promotion to the pay scale of Rs.1600-2660 would continue in the pay scale of Rs.1320- 2040. In their cases, the upgradation as given by the office order dated 5th July, 2000 would be just and proper. We may note from the impugned judgment of the learned tribunal that even the Tribunal has not discuss the matter in the aforesaid perspective and has simply directed that the first upgradation be given from Rs.4000-6000 to 5000-8000 and second upgradation to 6500-10500. The order of the Tribunal is modified and substituted by our aforesaid directions. Proper exercise shall be undertaken by the petitioners in this behalf and appropriate orders be passed within six months from today. We may clarify that we have discussed the issue of only those drivers who were in service in the year 1994 when the trifurcation took place. Those drivers who were appointed thereafter had to be placed in the pay scale of Rs.975-1660. This has been so held by the Tribunal in its judgment rendered in another case, i.e., the judgment dated 1st December, 1999 in OA No. 424/1996,the writ petition thereagainst was dismissed by this court and the judgment of this court was upheld by the Supreme Court.
10. Having regard to the above, though post appointed Drivers of 1994 were directed to be placed in the pay scale of Rs.975-1660 and their next pay scale is open through promotion, yet what has been the ratio is that from 1994 till 1999 when the ACP scheme was promulgated and when there were no recruitment rules the MCD resolution of 21.3.1994, which promulgated trifurcation of the cadre and methodology of grant of promotion after 10/20 years of service has been applied.
11. Present is a case where the decision of the High Court could not have been taken into consideration being delivered after the decision of the Tribunal dated 2.1.2008 and the decision of the respondents dated 17.4.2008. The aforesaid could not be considered while rejecting the claim of the applicants. However, the analogy, which emanates as a binding ratio is that from 1994 till 1999 when the ACP was not available what has been applied is the resolution of MCD dated 21.3.1994. The same mutatis mutandis extends to the Drivers appointed after 1994 but in whose case no promotional avenues in the form of recruitment rules were in vogue before promulgation of the Scheme for ACP in 1999. In such an event, there has to be a reconsideration by the respondents to apply trifurcation scheme promulgated vide resolution dated 21.3.1994, which despite a specific plea taken before the High Court that it is rendered infructuous and superseded was repelled.
12. In the result, for the foregoing reasons, OA is partly allowed. Impugned order is set aside. Respondents are directed to reconsider the claim of applicants for grant of promotion in the higher pay scale, in the light of the observations made by us and also the High Court of Delhi in the Writ Petition (supra), by passing a detailed and speaking order, 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) San.