Central Administrative Tribunal - Delhi
Inspector Aas Mohammad vs Commissioner Of Police on 11 October, 2011
Central Administrative Tribunal Principal Bench OA No.1121/2011 MA No.809/2011 New Delhi, this the 11th day of October, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Inspector Aas Mohammad No.D-1/935, RI/Main Security Line, New Delhi. Applicant. (By Advocate : Shri Vijay Sharma) Versus Commissioner of Police Delhi Police Headquarters, I. P. Estate, New Delhi. .. Respondent. (By Advocate : Shri B. N. P. Pathak) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Through this OA, the applicant is seeking direction of the Tribunal to the respondent to step up his salary at par with Inspector Vimal Kumar and to pay him the difference of salary from the date of his promotion.
2. The facts in brief are that the applicant joined in Delhi Police as Constable on 28.06.1975 and was appointed as Sub Inspector in Delhi Police on 30.06.1979. He was promoted to the post of Inspector along with his junior Vimal Kumar (who was appointed as SI on 3.07.1979) by order dated 13.01.1995 with effect from 18.08.1994. He has submitted a representation dated 26.08.2009 (Annexure-A1) wherein he has raised the issue that he and Vimal Kumar have been promoted on the same day as Inspector. His submission was that their pay was fixed less than other batchmates. Vimal Kumar noticed the anomaly and approached the Tribunal in OA No.2531/2006 seeking to rectify the said anomaly. The Tribunal decided the OA in favour of the Vimal Kumar vide the order dated 06.08.2008. He received information under Right to Information Act, 2005 that Vimal Kumar, Inspector No.DI/1041 had been receiving more salary than the applicant due to refixation of his salary pursuant to the direction of the Tribunal in the order dated 6.08.2008 in OA No.2531/2006. It is the case of the applicant that Vimal Kumar is getting basic pay of `22140 whereas his basic pay is `21710. Consequently, the difference of gross salary and allowances per month has been continuing. The applicants grievance is that he being senior to Vimal Kumar in the rank of SI is getting less salary and prays to be stepped up. The applicant has, therefore, in his representation prayed the respondent to grant him salary equivalent to that of Vimal Kumar. In support of his claims he has submitted a copy of the Tribunal order in OA No.2531/2006 and seeks equal treatment with Vimal Kumar.
3. Shri Vijay Sharma, the learned counsel for the applicant has submitted that (i) the applicant is senior to Vimal Kumar and deserves to get the same pay as Vimal Kumar is getting and (ii)the grounds taken by Vimal Kumar in the OA No.2531/2006 are also relevant for the applicant. Shri Sharma contended that there was no indication in the order of promotion that the promoted officer had to give an option within one month for fixation of pay which was mandatory as per the circular dated 17.11.1997. He contended that in the context of pay fixation following the acceptance of the recommendations of 5th Central Pay Commission, the employees were given an option by circular dated 31.06.1999 to get their pay fixed in the promoted post under FR.22(I) (a) (1) if they were promoted after 1.01.1995 but before 01.01.1996 and whose date of next increment in the lower post falls on or after 1.01.1996. He would contend that on similar consideration the applicant should also be given relaxation for giving his option for pay fixation at the belated stage.
4. On the other hand, Shri B. N. P. Pathak, learned counsel for the respondent would submit that the applicant was not senior to Shri Vimal Kumar in the rank of Sub Inspector (Exe.) but both of them were promoted to the rank of Inspector w.e.f. 18.08.1994. However, the respondents hold the view that the applicant is junior to Vimal Kumar. On promotion as Inspector (Exe.) Vimal Kumar was fixed on option at `2375 per month w.e.f. 01.10.1995 in the pay scale of `2000-60-2300-EB-75-3200 as per the option exercised by him pursuant to the direction of the Tribunal in OA No.2531/2006. But, as the applicant did not exercise his option, his pay in the rank of Inspector was fixed at `2375pm in the same pay scale as on 01.08.1995. The applicant is getting less pay than Shri Vimal Kumar mainly on the ground of applicant not exercising his option for pay fixation in the rank of Inspector after getting his increment in the previous post of SI.
5. We have carefully considered the contentions of the learned counsel for both the parties and perused the records. The main issue for our determination is whether claim of the applicant to step up his pay on par with Vimal Kumar is legally tenable.
6. The Department has issued a circular No.28176-246/CR-II(PHQ) dated 17.11.1997 (Page-47) which it was mentioned that the orders of promotion made by the department did not mention that the officers were required to exercise their option for fixation of pay on promotion in terms of Government of Indias decision number 19 below FR-22. It goes on to state that as a result of this, officers remain ignorant about the provision of such option to be exercised which stipulated period of one month. A direction is given in this circular that in all orders of promotion to be issued in future there should be clear mention of the above provision. It is seen from the circular issued by the Police Headquarters on 17.11.1997 that the fact of availability of option for choosing date for fixation of pay on promotion should be indicated in the promotion order. We have indicated above briefly on the aforesaid circular. The Department of Personnel & Training in the OM No.13/2/97-Estt.(Per.I) dated 12.12.1997 has given the same guideline, we reproduce below from Swamys Compilation of FR & SR, 18th Edition, the said OM :
16 Availability of option for choosing date for fixation of pay on promotion should be indicated in the promotion order In terms of the orders contained in Dept. of Per. & A.R., O.M. No. F. 13/26/82-Estt. (P-I), dated 8-2-1983 (nor printed) and saving clause of FR 22 (I) (a) (1), in all cases, except in cases of appointment on deputation to an ex cadre post or to a post on ad hoc basis (or on direct recruitment basis vide notification, dated 10-8-2000), the Government servant subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, on his appointment to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, has an option to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage on a time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of lower grade or post. In the order of appointment or promotion, a clause to this effect is required to be incorporated. Some instances have, however, come to the notice of the Department where the administrative Ministries/ Departments, etc., have failed to incorporate such a clause in the promotion order resulting in the requests from the promoted officers at a subsequent stage for condonation of delay in exercise of option for fixation of pay. It has, therefore, been decided to reiterate these instructions to ensure that in the order of promotion / appointment covered by FR 22 (I) (a) (1), a clause should invariably be incorporated to this effect with a view to avoiding undue hardship to the officials as well as unnecessary references to this Department.
2. The Ministries of Agriculture and Co-operation, etc., are requested to bring these instructions to the notice of all concerned for guidance and strict compliance.
7. It is admitted fact that no mention about the option had been made in the order of promotion for the applicant. The applicant could not have been expected to know about the aforesaid provision under FR 22 and for this reason that the instructions were issued both by the DOP&T and the Police Headquarter that provision regarding option for fixation of pay should be mentioned in the order of promotion. Applicants representation is still pending and no order has been passed. The applicant is suffering monetary loss every month for the fault which can be attributed to the Respondent and not for his own fault. The applicant, as we have noted above had given a representation on 26.08.2009. Similar provision for giving second option exists in cases where the promotion is made between 01.01.1995 and 01.01.1996 by circular dated 31.06.1999. It is only a hyper-technical objection that the applicants promotion was with effect from 18.08.1994, although the order of promotion was issued on 13.01.1995.
8. The applicants claim of seniority over Shri Vimal Kumar has been disputed by the respondent inasmuch as the PHQ Memo No.2374/CR-II(PHQ) dated 16.2.2010 indicates that applicant is junior to Inspector Vimal Kumar. Stepping up of pay on the ground Vimal Kumar is getting higher pay than the applicant would not be admissible on the basis of senior-junior angle. But the grounds of exercise of an option to get pay fixed in the Inspector grade after getting the increment in the Sub Inspector grade at the time of promotion is available for the applicant, more specifically, on the analogy of Tribunals order dated 6.08.2008 in Vimal Kumars case (supra).
9. Taking into account the totality of facts and circumstances of the case and noting that the present case is fully covered by the orders in Vimal Kumars case, we direct the respondents to get applicants fresh option in order to refix the salary of the applicant in the rank of Inspector by taking into consideration his representation dated 26.08.2009. The applicant will be eligible for all consequential benefits. The above directions should be complied with within a period of three months from the date of receipt of a certified copy of this order.
10. In the result, the Original Application is allowed in terms of our above directions and observations. There will be no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/