Central Administrative Tribunal - Delhi
Sh. Panna Lal vs Union Of India Through on 29 January, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2788/2012
With
OA-3714/2012
Reserved on : 13.01.2014.
Pronounced on :29.01.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
OA-2788/2012
Sh. Panna Lal,
S/o late Sh. Hira Lal,
R/o 1516, Laxmi Bai Nagar,
New Delhi. . Applicant
(through Sh. S.K. Anand, Advocate)
Versus
1. Union of India through
Secretary,
Ministry of Science and Technology,
New Mehrauli Road, New Delhi.
2. The Surveyor General,
Survey of India,
Block-B, Hathi Barkala Estate,
Dehradun-248001(Uttarakhand).
3. The Deputy Survey (Air) & Delhi
GEO Spatial Data Center, Survey of India,
2nd Floor, West Block No.4,
R.K. Puram, New Delhi. .Respondents
(through Sh. T.A. Ansari, Advocate)
OA-3714/2012
Sh. Jai Pal Singh
(Draftsman Gd.II retired)
S/o late Sh. Shri Ram,
R/o 61, Sector-1, Sadiq Nagar,
New Delhi. . Applicant
(through Sh. S.K. Anand, Advocate)
Versus
1. Union of India through
Secretary,
Ministry of Science and Technology,
New Mehrauli Road, New Delhi.
2. The Surveyor General,
Survey of India,
Block-B, Hathi Barkala Estate,
Dehradun-248001(Uttarakhand).
3. The Deputy Survey (Air) & Delhi
GEO Spatial Data Center, Survey of India,
2nd Floor, West Block No.4,
R.K. Puram, New Delhi. .Respondents
(through Sh. T.A. Ansari, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) These two OAs are identical and are, therefore, being disposed of by a common order. For the sake of convenience, facts of OA-2788/2012 are being discussed.
2. Following relief has been sought in this O.A.:-
(a) declare that order No. LC-4560/1196C (MS Meena)/572-D dated 5.4.10 passed by the Director, Admn and Finance, for Surveyor General of India is wrong, illegal and arbitrary and not proper compliance of order dated 26.3.04 in OA No. 1777/03.
(b) direct the respondents for giving promotion of Draughtsmen Div I to the applicant from 1.1.87 or any subsequent date with all the consequential benefits in the interest of justice.
(c) direct the respondents to pay exemplary cost of litigation to the applicant.
(d) any other and further order/direction as this honble court deems fit and proper in the present facts and circumstances of the case be passed in favor of the applicant. Facts of the case are that the applicant joined the respondents as Draftsman (TTB) on 20.03.1971. On 01.10.1972 he was classified as Draftsman Grade-V. On 01.01.1973 he was promoted to Draftsman Grade-IV and to Draftsman Grade-III on 01.01.1978. He was further promoted as Draftsman Grade-II w.e.f. 01.01.1983. On 26.03.2003 he along with other Draftsmen filed OA-1777/2003 titled M.S. Meena and Ors. Vs. UOI for quashing Circular No. 439 and declaring that they will be governed by O.M. 19.10.1994 issued by Government of India, Ministry of Finance regarding revision of pay scales of Draftsmen in all the departments of Government of India other than CPWD. This was allowed on 26.04.2004. On 15.04.2009 the respondents filed CWP No. 2233/2005 before the Honble High Court of Delhi against the order dated 26.04.2004. The same was dismissed on 15.04.2009. However, the respondents did not implement the orders dated 26.04.2004. Consequently, the applicants filed CP-27/2010 in OA-1777/2003. On 05.04.2010 the respondents passed an order by which the applicants were given the pay scale of Rs.425-700 (3rd CPC) Rs.1400-2300 (4th CPC) and Rs.5000-8000 (5th CPC). But the respondents did not give the pay scale of O.M. dated 19.10.1994. The respondents have also not considered the applicants for promotion to the post of Draughtsman (Div.I) despite the fact that the applicants had been promoted in Grade-II on 01.01.1987 and had completed 04 years of required service much before his retirement on 28.02.2002. When the CP was considered by this Tribunal liberty was given to the applicants to file fresh O.A. in case he still felt aggrieved. The applicant filed OA-3405/2011 for grant of scale of Rs.550-750 in terms of O.M. dated 19.10.1994. The same was dismissed with liberty given to the applicants to file a fresh O.A. in view of the orders of Honble Supreme Court dated 06.08.2010 in the case of UOI & Ors. Vs. R. Vasudeva Murthy & Ors. (CA No. 9113-9126 of 2003). Accordingly, the present O.A. has been filed.
3.1 The main contention of the applicant is that he was promoted as Draftsman Grade-II w.e.f. 01.01.1983 notionally and 01.11.1983 actually. He was, therefore, entitled for promotion to the post of Draftsman (Div.I) after completing 04 years of service i.e. w.e.f. 01.01.1987. However, this promotion was denied to him despite the fact that during the period from 1987 to 2001 several vacancies existed and various Draftsmen including juniors of the applicant were promoted.
4. In their reply the respondents have stated that the Apex Court while interpreting the O.M. of 1994 delivered a judgment on 06.08.2010, the operative part of the judgment is as hereunder:-
1. O.M. under clause 3 thereof is relevant which clearly stipulates that only when Draftsmen are placed in the regular scale, they would be entitled to further promotion against available vacancies in the higher grade and that too in conformity with the normal eligibility criteria laid down in Recruitment Rule.
2. Despite our repeated and persistent requests made to the learned counsel appearing for Union of India and the Department they were not able to inform us if the aforesaid strength fixed on 31.12.1992 has been enhanced or not. We were of the opinion that more than 18 years have elapsed and workload having increased considerably strength must have been increased but no positive answer was given to us. It appears little surprising that the posts have not been enhanced for a period of last 18 years, which is indeed not very appealing.
3. In our considered opinion, the said OM (dated 19.10.1994) does not give an absolute and blanket-right to these Draftsman to claim upgradation/revision in the salary as soon as they put in requisite years of continuous service on the respective posts to become eligible for higher Pay Scale or for promotion, unless there are requisite vacancies in the respective cadres of Draftsman Gde.III, Grade II and Grade I. The Draftsman cannot be granted the said relief. This is what we have been able decipher from the O.M. dated 19.10.1994, after critical and thorough examination thereof.
4. Thus, in our opinion, the true, effective, operative and correct interpretation of the said O.M. is that, as and when vacancies arise in the cadre of Grade I Draftsman, after putting in requisite minimum service as per said notification, they and only then Draftsman Grade II would be entitled to the higher pay scale, not otherwise. To clarify it, further, we hold that the entitlement for upgradation of salary is dependent on the number of vacancies available and not otherwise. It is also to be noted that eligibility to claim higher pay scale/upgradation is one thing but availability of vacancies is another. One may be eligible to claim higher pay scale or upgradation but it is, of course subject to availability of posts. If posts are not available, then no benefit could be accrued to the Draftsman.
5. Case of benefit of upgradation of pay scale given earlier to the issue of this OM, no recovery need be made of the excess payment if any, to keep reasonableness to avoid harsh treatment.
6. Thus with the above decision, the appeals of Union of India and Department of Telecommunication are allowed setting aside the orders passed by lower Courts in this connection. Thus, the Apex Court has clearly held that promotion of Draftsmen to higher scales would be vacancy based. In the case of the applicant he was upgraded to the post of Draftsman Grade-II vide order dated 18.11.2009. He had never worked as Draftsman Grade-II in a substantive capacity. When the promotion orders were issued during the period from 1987 to 2001 the present applicant was engaged as Draftsman Grade-III whereas those promoted were working as Draftsmen Grade-II on substantive basis. Therefore, the applicant is not similarly placed as those who were promoted. Moreover, the applicant superannuated from service on 28.02.2002. Even his upgradation to the post of Draftsman Grade-II was done more than 07 years after his retirement, which indicates that this was not a substantive promotion. Therefore, the applicant is not entitled to get seniority and further promotion.
5. We have considered the submissions of both sides and have perused the material on record. It appears that the earlier practice was to give the next higher scale to Draftsmen as soon as they completed the requisite years of service without any reference to the number of vacancies available in that grade. However, the Apex Court vide its order dated 06.08.2010 in Civil Appeal Nos. 9113-9126 of 2003 have interpreted the O.M. dated 19.10.1994 and have clearly held that upgradation to next higher scale is to be dependent on number of vacancies available and not otherwise. Further, they have held that mere eligibility to claim higher pay scale/upgradation is one thing but availability of vacancy is another and therefore if the posts are not available no benefits could be accrued to the Draftsmen. In this case the respondents have claimed that during the period from 1987 to 2001 the applicant was substantively working on the post of Draftsman Grade-III. He was, therefore, not entitled for promotion to the post of Draftsman Grade-I as he had not put in the requisite years of service in a substantive capacity in Grade-II. This being the case, we do not see any merit in the contention of the applicant that he should be promoted to the post of Draftsman Grade-I. While he has mentioned in his O.A. that his juniors have been promoted, the respondents have denied this and have stated that those promoted during the period from 1987 to 2001 were those who were working as Draftsmen Grade-II in substantive capacity. Since the applicant at that time was in Draftsman Grade-III, it follows that those promoted were senior to him. Had any junior of the applicant been promoted to the post of Draftsman Grade-I before superannuation of the applicant then he would have certainly had a grievance; but in this case the applicant except for vaguely stating in his O.A. that his juniors were promoted has not quoted example of any of his juniors who had been promoted to the post of Draftsman Grade-I before the date of superannuation of the applicant. The applicant has not even made available the seniority list of Draftsmen to establish that those promoted were junior to him.
5. Under these circumstances, we hold that the applicant has failed to establish his claim. We, therefore, dismiss this O.A. No costs.
OA-3714/2012
6. Following relief has been sought in this O.A.:-
(a) set aside the impugned orders No. LC-4560/1196C (MS Meena)/572-D dated 5.4.10 and C-4545/1800 dated 10.09.01 and C-180/1800 dated 16.01.02 and 5.7.12 passed by the respondents in the interest of justice.
(b) direct the respondents to grant higher scales of pay of drafughtsman Div I (Rs.550-750) to the applicant wef 13.5.82 notionally and actually from 1.11.83 as permissible under para 2(C) of OM dated 19.10.94 with all consequential financial benefits and interest.
(c) impose exemplary cost on the respondents for deliberate flouting of the lawful provisions and unnecessary and motivated denial of said legitimate higher scale of pay to the applicant.
(d) any other and further order/direction as this honble court deems fit and proper in the present facts and circumstances of the case be passed in favour of the applicant.
7. The facts of this case are connected with OA-2788/2012 which has already been dealt with by us in the earlier portion of the order. The only difference is that the applicant of this O.A. was actually offered promotion to the post of Draftsman Div-I on 10.09.2011 and posted at Jammu. The applicant, who had undergone heart bypass surgery on 09.07.2001 at AIIMS, Delhi and was under their continuous medical treatment requested for retaining him in Delhi on promotion. He further prayed that he had been left with less than one year service and should therefore be accommodated in Delhi on promotion. The applicant again submitted a reminder on 31.12.2001. However, on 16.01.2002 the respondent No.2 cancelled the promotion order of the applicant and also debarred him from further promotion for one year. On 14.06.2002 the applicant again requested the respondents for giving him promotion but with no result. The applicant retired from service on 31.07.2002.
7.1 The applicant has claimed that while his request for retention in Delhi on promotion was turned down by the respondents, many others were retained in Delhi on promotion. He has given examples of the following cases:-
a. Sh. Kishal Lal Wahi D/M Div I 94 party, Delhi 28.5.01 Retired on 31.8.01 b. Smt. Premwati Devgun Div I 65 party Delhi 31.8.01 (retired) c. Sh. VN Shukla Div I promoted to C/D 65 party Delhi 8.7.01 d. Sh. Chandra Bose C/D DS Air 31.7.01 e. Sh. Smar Chand Naithani Div I DS Air retired 31.7.01 f. Sh. SK Aggarwal Div I DS Air retired on 31.7.01 g. Sh. Hari Chand Div I DS Air retired on 30.9.01 h. Sh. Sri Ram C/D DS Air retired on 31.7.01 i. Sh. DS Rawat Div I to C/D DS Air transferred to boundry cell Delhi.
j. Sh. Kishan Kumar Div I DS Air posted to EZ Calcutta (retained in DS AIR New Delhi) k. Smt. Promla Rani Div I 73 party posted to 17 (DONWC) Jammu but retained at Delhi.
l. Sh. ML Sagar Div I 73 party posted to 17 (DONWC) Jammu but retained at Delhi.
m. Sh. Gian Chand Sahgal Div I, 66 party, N. Delhi to 17 (DONWC) jammu 30.5.01 but retained 4.7.01.
n. Sh. Ram Niwas Misra promoted to Div I, 66 party, N. Delhi to NEC shilong 30.5.01 but retained DS AIR 4.7.01.
o. Sh. Ganga Prasad Div I to C/D no. 66 Party (SA) dt. 14.9.01 posted to no.10 DO(SEC) Bhubneshwar but post was transferred to DS Air p. Sh. IS Rana Div I to C/D DS Air posted to Lucknow but post was got transferred to Delhi. 7.2 Thus, the additional issue in this O.A. is whether the respondents were right in turning down the request of the applicant for retention in Delhi on promotion and debarring him for further promotion for one year and whether the applicant was discriminated against in any manner.
7.3 On this issue, the respondents have taken a preliminary objection that the promotion was refused to him on 16.01.2002 i.e. more than 10 years back from November, 2012 when this O.A. was filed. Hence this issue is now time barred. Moreover, they have stated that his request for retention in Delhi was considered sympathetically. Only some of the senior-most promotees were given promotion at Delhi station at their request. The applicant was junior-most out of them. In fact, it was communicated to a total of 38 officers that their requests could not be accepted. The respondents have gone on to state that on account of functional requirement and administrative exigencies it had not been possible to accommodate the applicant in Delhi on promotion.
8. We have considered the submissions made by both sides. We agree with the respondents that this issue is hopelessly time barred. The applicant has not moved any application for condonation of delay nor has given any satisfactory explanation as to why he is agitating this claim now. We also agree with the respondents that the applicant could not have claimed retention in Delhi on promotion as a matter of right. Since many others similar request had come the respondents were not able to accommodate him in Delhi and were right in turning down his request. Accordingly, we find no merit in this O.A. and it is also dismissed. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/