Central Administrative Tribunal - Delhi
D K Sharma vs Govt. Of Nctd on 14 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 439/2014
MA 402/2014
Reserved on: 8.07.2016
Pronounced on:14.07.2016
Hon'ble Mr. P.K. Basu, Member (A)
Hon'ble Dr. Brahm Avtar Agrawal, Member (J)
D.K. Sharma (Aged about 48 years)
S/o Shri K.P. Sharma
R/o C-07, Mahatama Gandhi Institute,
Delhi-110036
Presently posted as: Assistant Engineer (Civil)
In DSIIDC ... Applicant
(Through Shri R.A. Sharma, Advocate)
Versus
1. Govt. of NCT of Delhi
Through the Secretary (Services)
Services-II Department
5th Level, A-Wing, Delhi Secretariat,
I.P. Estate, New Delhi-110002
2. Delhi Energy Development Agency (DEDA)
Through its Chairman/ Secretary (Environment)
Govt. of NCT of Delhi, Delhi Secretariat
Players' Building, 6th Level,
A-Wing, I.P. Estate,
New Delhi-110002
3. Directorate of Education
Through its Director
(Govt. of NCT of Delhi)
Old Secretariat, Delhi-110054
4. Delhi State Industrial & Infrastructure
Development Corporation Ltd. (DSIIDC)
Through its Chairman-cum-Managing Director
N-36, Bombay Life Building,
Connaught Circus,
New Delhi-110001 ... Respondents
(Through Shri Vijay Pandita, Advocate for respondents 1-3
Ms. Ishita Baruah for Sh.Gaurag Kanth, for respondent no.4)
2
OA 439/2014
ORDER
Mr. P.K. Basu, Member (A) The applicant joined Delhi Energy Development Agency (DEDA) as Junior Engineer (JE) (Civil) on 1.05.1986. He was promoted as Assistant Engineer (AE) (Civil) on 31.01.1994.
2. On 6.05.2002, DEDA issued a letter to Secretary (Services), Government of National Capital Territory of Delhi (GNCTD) informing about decision to close DEDA and absorption of DEDA staff in various departments of GNCTD wherever matching vacancies exist. Through this letter, request was made for absorption of additional 97 employees, including the applicant.
3. Ultimately, vide office order dated 5.10.2004, DEDA declared 97 personnel as surplus for redeployment by the Services Department of GNCTD (Annexure A-8) The name of the applicant appeared at serial number 9 in the aforesaid office order.
4. Vide order dated 2.12.2005, in consequence of office order dated 5.10.2004, the applicant along with few others was redeployed in Education Department of GNCTD. His name figures at serial number 4 in the order and he was redeployed as Grade II (DASS) in the pay scale of Rs.5000-8000. The applicant is aggrieved by this order as he has been redeployed on a post which is lower than his existing post of AE (Civil) in the pay scale of Rs.6500-10500.
3OA 439/2014
5. Learned counsel for the applicant referred to Annexure A- 10 on the subject of "Redeployment of Surplus Employees" and specifically drew our attention to Rule 3 (iv), Rule 4 and Rule 6 to establish that when declared surplus, the applicant could not have been placed in the post and pay scale lower than that in which he was declared surplus. Our attention was also drawn to the Census of Employees of Govt. of Delhi and Autonomous Bodies 2005 (Annexure A-12) with specific reference to the chart on employment situation in GNCTD as on 31.03.2005, in which 6885 posts in Group `B' have been shown to be vacant. Similarly, 600 posts have been shown to be vacant in autonomous bodies as on 31.03.2005.
6. The applicant has also filed Annexure A-13, which is a letter dated 17.03.2006 by DEDA to the Joint Secretary (Services), GNCTD, wherein the name of the applicant and two others has been mentioned stating that in view of their considerable service on the post of AE, they may be considered for fruitful utilization of their engineering qualification and experience in some engineering department.
7. The applicant approached the Hon'ble High Court of Delhi in WP (C) no. 8194/2006 and the Hon'ble High Court passed the following interim order on 24.05.2006:
"It is directed that any thing done by the respondent during pendency shall be subject to final outcome of the writ petition."4 OA 439/2014
However, it is alleged that despite this interim order, the applicant along with two others was relieved by DEDA on 23.11.2006 to join their respective departments.
8. The applicant thereafter filed representation dated 11.04.2007 requesting that since the matter was sub judice before the Hon'ble High Court, extension of joining time may be allowed till the outcome of the court case. The Hon'ble High Court transferred the matter to this Tribunal and the Tribunal disposed of the matter on 5.08.2009 in T.A. 900/2009 by passing the following order:
"6. Accordingly, this TA is allowed insofar as redeployment of applicants on a lower post with lesser pay scale is declared illegal. Respondents are directed to accommodate applicants on any of the vacant posts that may be equivalent in status and pay scale with the posts held by applicants in DEDA, within a period of three months from the date of receipt of a copy of this order. No costs."
9. Thereafter, the Secretary (Services) issued a letter dated 11.11.2009 addressed to the Managing Director, Delhi State Industrial and Infrastructure Development Corporation (DSIIDC), communicating that services of the applicant and two others should be utilized in the Corporation by absorbing them as AEs. On 2.12.2009, the applicant gave his joining report in DSIIDC. The applicant thereafter filed a representation dated 7.04.2010 making the following prayer:
"1) That my services as Assistant Engineer (C) in DEDA from January, 1994 till date should be reckoned for seniority purpose in DSIIDC.
2) That my Pay Scale should be revised with effect from 1st 5 OA 439/2014 January, 2006 and salary/ arrears paid to me as per recommendations of 6th Pay Commission. Besides, considering my seniority as Assistant Engineer (C) from January, 1994; I may be elevated to the post Executive Engineer (C) as per my admissibility at par with other similarly placed employees in DSIIDC."
This was followed by representations dated 29.08.2010, 15.09.2010, 4.10.2010, 16.11.2011 and 6.10.2012. The applicant states that he has not received any reply to these representations but only received copy of office order dated 16.02.2010 by which DSIIDC has fixed his pay with effect from 2.12.2009 (F.N.) i.e. the date he joined DSIIDC in the pay scale of Rs.6500-10500. This OA has, therefore, been filed seeking the following reliefs:
(i) A declaration that the applicant shall be deemed to have continued uninterruptedly in service of DEDA (Respondent No.2) upto 02.12.2009, i.e., upto the date of his absorption in the DSIIDC (Respondent No.4) by way of redeployment.
(ii) A declaration that the past service rendered by the applicant in DEDA including the period from 23.11.06 to 2.12.09 shall be counted for all consequential benefits of service including pensionary benefits.
(iii) Direct the DEDA (Respondent No.2) to pay arrears of salary including increments and other benefits for the period from 23.11.06 to 02.12.09 and remit the prorata amount of Leave Salary and Pensionary Charges to the DSIIDC (Respondent No.4) in respect 6 OA 439/2014 of applicant's service rendered in DEDA from 01.05.86 to 2.12.09.
(iv) Direct the DEDA (Respondent No.2) to issue Last Pay Certificate after payment of arrears of salary for the period from 23.11.06 to 2.12.09 as mentioned in para 8 (iii) above.
(v) Direct the DSIIDC (Respondent No.4) to pay arrears of pay and allowances till date by refixing the pay based on the Last Pay Certificate to be issued by the respondent No.2 as stated in para 8 (iv) above.
(vi) Pass any other order or orders as deemed fit and proper in the facts and circumstances of the case in favour of the applicant.
10. The applicant has cited the following judgments in support of his claim:
i) Chattar Singh Vs. The State of Haryana and another, CWP No.3709/1988 decided by Hon'ble Punjab and Haryana High Court on 12.02.2003. In this case, the petitioner Chattar Singh was compulsorily retired from service at the age of 55 years because of his involvement in embezzlement case. On his representation, he was found innocent and consequently was allowed to continue in service beyond 55 years of age. The Hon'ble High Court held him entitled to all the emoluments for the entire period between 10.02.1984 and 2.02.1985 during 7 OA 439/2014 which he remained out of job. Clearly the facts of the case are completely different and this judgment would not apply in the present case;
ii) M.G. Ansari Vs. Secretary, Ministry of Human Resources and Development, New Delhi and others, O.A. 261/2011 decided by the Tribunal on 20.12.2012. The facts of the cited case are different as the applicant therein was removed from service.
The Tribunal quashed the order of removal from service and allowed the absence period to be treated as duty;
iii) Shiv Nandan Mahto Vs. State of Bihar and others, (2013) 11 SCC 626 - The petitioner in this case was a Clerk and was wrongly shown as a Librarian. His services were not taken over when the Bihar Government took over his school as the post of Librarian was not approved. Later on, this error was detected and he was directed to be posted as a Clerk. However, his matter got tossed around to locate a vacancy for him and he received no salary. The High Court wrongly recorded that he was out of service on account of suspension. The Supreme Court noted this discrepancy and directed full back wages. It would be clear that the facts of the cited case are completely different from the facts of the case in hand and this judgment is not applicable in the present case;
iv) Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, (1987) 2 SCC 107 - The appellant in this case sought condonation of delay in filing appeal. The Hon'ble Supreme Court held that Courts should adopt a liberal and justice- oriented approach. However, the delay in the cited 8 OA 439/2014 case was only of four days. The facts and circumstances of the two cases are again totally different;
v) R.S. Gramopadhya Vs. Union of India and others, (1988) 8 ATC 804 - This judgment has been cited primarily to state that unless representations are replied to, the time of limitation did not begin to run and since the applicant herein has filed several representations with no reply, there was actually no delay;
vi) Byomkesh Ghosh Vs. Union of India and others, (1993) 25 ATC 552 - The same view as in R.S. Gramopadhya (supra) has been held by the Tribunal in the cited case. Specifically, the Tribunal held as follows:
"..........In this case, applicant's claim cannot be denied by taking shelter of S. 21 (2) because this Section comes into operation when the grievances arises out of an `order'. If there is no `order', this Section will not be applicable. The applicant is claiming benefit of a judgment of the Tribunal. His representation dated 28-12-1989 remained unreplied. There was therefore no `order' as mentioned in S. 21 (2). The applicant is entitled to arrears of higher scale from 1-10-1975."
vii) M.R. Gupta Vs. Union of India and others, (1995) 5 SCC 628 - The Hon'ble Supreme Court in this case held as follows:
"In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified, Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches 9 OA 439/2014 etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
This judgment basically states that if it a continuous cause of action such as fixation of pay, then this right continues. In short, the Hon'ble Court held that:
"Such application to the extent of proper pay fixation, held, not time barred although the applicant's claim to consequential arrears would be subject to the law of limitation."
viii) Union of India and others Vs. Tarsem Singh, (2008) 8 SCC 648 - In this judgment, relying on M.R. Gupta (supra), the Hon'ble Supreme Court held as follows:
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re- opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or 10 OA 439/2014 pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
11. The learned counsel for the respondents, first of all, raised the question of limitation and the OA being barred by time as the relieving order is dated 21.11.2006. The applicant filed a writ, as stated earlier, which was transferred to the Tribunal and registered as T.A. 900/2009. The said T.A. was decided by the Tribunal on 5.08.2009. In compliance of the Tribunal's direction, order dated 16.02.2010 was issued whereas the applicant has filed the instant OA on 23.01.2014 and thus it is barred by time. The respondents argued that repeated representations do not condone delay between 2009 to 2014. The respondents press reliance on the following judgments in this regard:
i) Union of India and others Vs. M.K. Sarkar, (2010) 2 SCC 59
ii) Karnataka Power Corporation Ltd. through Its Chairman & Managing Director and another Vs. K. Thangappan and another, AIR 2006 SC 1581
12. On merits of the case, it was stated that there is no requirement in the rules that in the course of readjustment, past 11 OA 439/2014 service has to be protected. In this regard, our attention was drawn to Rule 5 (4) (a) and (d) which read as follows:
"5 (4) (a) The surplus employee shall have no claim to count his past service, including that rendered in the post of his provisional redeployment, towards fixation of seniority in the post in which he is readjusted.
xxxx xxxx xxxx 5 (4) (d) A surplus employee already redeployed in a post carrying a higher pay scale may be readjusted in a post carrying a pay scale matching his original pay scale and shall have no claim for being readjusted in a post carrying such higher pay scale nor shall he be entitled to protection of such higher pay scale in the new post."
13. Lastly, it is stated that it is an admitted fact that between 23.11.2006 and 1.12.2009, the applicant neither worked in DEDA nor in the Education Department and, therefore, there is no question of counting that period for payment of salary or for any other purpose.
14. Ms. Eshita Barua, arguing on behalf of respondent no.4 i.e. DSIIDC, has adopted the arguments on behalf of respondents 1 to 3 by Shri Vijay Pandita, learned counsel, as regards delay. It was also stated that as far as DSIIDC is concerned, since the applicant joined the department only on 2.12.2009, there can be no claim against DSIIDC for any past period. Learned counsel also produced before us copy of order dated 22.01.2016 in OA 1372/2014, Ashok Mudgal Vs. Govt. of NCT of Delhi and others. The applicant in the cited case was an AE in DEDA and declared surplus and absorbed as Head Clerk in the lower pay 12 OA 439/2014 scale of Rs.5000-8000. In that case, the issue before the Tribunal was whether under the CCS (Redeployment of Surplus Staff) Rules, 1990, when surplus staff is redeployed and appointed, their past services could be counted for the purpose of ACP/MACP, merit pay scale and promotion and it was held that past service cannot be counted for the purpose of seniority, merit pay scale and promotion. However, the respondents would have to count past service of the applicant as regards ACP.
15. We have heard learned counsel for the parties, gone through the pleadings available on record and perused the judgments cited by either side.
16. On non-applicability of some of the judgments, we have already recorded reasons at appropriate place and these need not be reiterated.
17. The applicant's case is that his redeployment on the lower post with lesser pay scale has been declared as illegal in T.A. 900/2009 (supra). It is argued that this also will imply that relieving order dated 21.11.2006 also is illegal because it is in pursuance of an illegal order. Thus, the applicant should be deemed to have continued in DEDA till he got absorbed on 2.12.2009 in DSIIDC and the period of 23.11.2006 to 1.12.2009, during which he was neither in DEDA nor in the Education Department, that period should be counted as on duty and he should be given salary, arrears as well as other benefits as claimed in the prayer clause. On the question of delay, he 13 OA 439/2014 mainly relies on M.R. Gupta (supra) stating that since this is a matter of fixation of his salary which has been wrongly done, it is a continuous cause of action and, therefore, limitation will not apply.
18. The issue was finally decided by the Tribunal in its order in T.A. 900/2009 (supra). Thereafter, DSIIDC fixed his pay vide order dated 16.02.2010. The applicant kept on filing representations, the last being dated 6.10.2012. Thereafter, the applicant chose to do nothing and filed the OA on 23.01.2014 i.e. after a period of more than one year. On the prayer of condonation of delay, the main argument advanced is that he had been filing representations to which there was no response and that in this case, no third party rights are involved nor it is related to seniority, promotion etc. affecting others.
19. In view of the judgment of the Hon'ble Supreme Court in M.R. Gupta (supra) and considering the fact that this is indeed a matter where there is continuous cause of action as each month the applicant would be drawing lesser salary, we are of the opinion that this is a fit case for condonation of delay. In fact, if the respondents had replied to his various representations, the last one being dated 6.10.2012, the applicant would have known the reasons why he is being denied salary. Therefore, we condone the delay and discuss the merits of the case.
20. As regards merits, when the applicant was aggrieved by the order dated 2.12.2005 posting him to the Education Department in the lower pay scale as Head Clerk, he had every 14 OA 439/2014 right to approach the Court which he did but what is relevant is that when he approached the Hon'ble High Court, vide order dated 24.05.2006, the Hon'ble High Court merely stated that "any thing done by the respondent during pendency shall be subject to final outcome of the writ petition." The High Court did not stay the operation of the order dated 2.12.2005 nor directed that the applicant should be allowed to continue in DEDA. The applicant is making out a case that in view of the interim order of the Hon'ble High Court, the respondents could not have relieved him on 23.11.2006 from DEDA. We find it difficult to accept this contention. The Hon'ble High Court merely stated that whatever action the respondents take, shall be subject to final outcome of the writ petition. Therefore, by absenting himself from duties, the applicant made a grave error. He should have joined the post according to order dated 2.12.2005 and after the outcome of TA 900/2009 (supra), he would have been restored back to his original position as the Tribunal had held this order to be illegal. In fact, we need not go into the aspect of whether in case of redeployment, the surplus staff has to be given the post equivalent to the same pay scale which he was holding in his parent department as the Tribunal held that posting of the applicant to scale lower than that which he was holding, was illegal. This order is said not to have been challenged and therefore holds. But based on this order, the absence of the applicant between 23.11.2006 and 1.12.2009 cannot be treated as his having been on duty in DEDA. There 15 OA 439/2014 was no interim order to this effect by the Hon'ble High Court nor the applicant has shown any such interim order by the Tribunal.
21. Therefore, there is no ground for us to approve the service between 23.11.2006 and 1.12.2009 in DEDA or for counting this period for consequential benefits such as pensionary benefits. In fact, in view of this Tribunal's order in Ashok Mudgal (supra), in any case, the applicant is not entitled for benefits of service in DEDA nor can we hold that he is entitled for salary for that period when he has not worked at all. The OA is, therefore, dismissed. No costs.
( Dr. Brahm Avtar Agrawal ) ( P.K. Basu ) Member (J) Member (A) /dkm/