Central Administrative Tribunal - Delhi
Shri Rabinder Kumar Pattanayak vs Union Of India on 11 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1869/2011 Order reserved on: 06.12.2013 Order pronounced on: 11.12.2013 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shri Rabinder Kumar Pattanayak S/o Late M.M. Patanayak R/o DB-701, Block-2A, Transit Flat, HUDCO Place, Andrews Ganj, New Delhi-110 049. ..Applicant By Advocate: Shri Yogesh Sharma Versus 1. Union of India Through the Secretary, Ministry of Law and Justice, Legislative Department, Shastri Bhawan, New Delhi. 2. The Deputy Secretary to the Govt. of India, Ministry of Law and Justice, Legislative Department, Shastri Bhawan, New Delhi. 3. The Director (PW), Department of Pension and Pensions Welfare, Ministry of Personnel, Public Grievances and Pension, 3rd Floor, Lok Nayak Bhawan, Khan Market, New Delhi. 4. Union Public Service Commission, Through its Secretary, Dholpur House, Shahjahan Road, New Delhi. ..Respondents (By Advocate: Shri Rajesh Katyal for Respondents No.1 to 3. Shri J.B. Mudgil for Respondent No.4) ORDER
By Honble Mr. G. George Paracken, Member (J) The main relief sought by the Applicant in this Original Application is for granting him proforma appointment/deemed appointment from the date his junior and similarly placed persons from the same panel have been appointed and consequently, to admit him to the benefits of CCS (Pension) Rules, 1972, as in their cases.
2. The brief facts of the case are that Applicant was a candidate for the post of Assistant Legislative Council (ALC for short) in the Legislative Department of Ministry of Law and Justice advertised by the Union Public Service Commission (UPSC for short) vide its advertisement No.14/2002. There were 4 posts, out of which, 3 were for general category candidates and one reserved for OBC candidate. The UPSC conducted the interview for the aforesaid post in the year 2003 and the Applicant was also duly interviewed. However, the UPSC did not consider one candidate, Ms. Sunita Anand, not suitable for the aforesaid post. She filed OA No.1379/2003 before this Tribunal challenging the aforesaid decision of the Respondent-UPSC. Vide order dated 27.05.2003, this Tribunal directed the Respondent-UPSC to provisionally interview her subject to the final outcome of the aforesaid OA. Thereafter, the Applicant was to be considered for the third general category post kept unfilled awaiting the decision of the aforesaid Original Application. However, the other two general category candidates and one reserved category candidate were given the appointments on 19.11.2003, 04.12.2003 and 16.09.2003 respectively. Finally, the OA filed by Ms. Sunita Anand was decided on 11.08.2003 and the Tribunal allowed her case. The UPSC challenged the aforesaid decision before the Honble High Court of Delhi in Writ Petition No.6829/2003 and it was disposed of vide order dated 12.01.2006 as infructuous as Ms. Sunita Anand was not finally selected. Finally, the Applicant was given the offer of appointment for the aforesaid post of ALC vide the Respondents letter dated 04.10.2004 and asked him to communicate his acceptance in writing on or before 02.11.2004. Immediately on receipt of the aforesaid offer of appointment, he communicated his acceptance but the Respondents issued him the letter of appointment only on 23.06.2005. Since the Applicant was already working under the State Government of Orissa, he sought extension of time up to 21.10.2005 to join duty and the Respondents, vide their letter dated 04.07.2005, allowed his request. Thereafter, he joined the post on 17.10.2005, i.e., within the prescribed time limit. As the Applicant was at No.3 in the select list of candidates appointed for the aforesaid post of ALC, the Respondents themselves have assigned him the seniority at Sl.No.3 which was above his junior belonging to the reserved category candidate who joined the post in 2003 itself.
3. Thereafter, he made a representation on 27.03.2009 to step up his pay with his batchmates and juniors and also to grant him also the pensionary benefits in terms of CCS (Pension) Rules, 1972 as in the case of his other batchmates. He has pointed out that he could not join as ALC at the time his batchmates have joined but he could join only on 17.10.2005 for none of his fault and it was entirely due to delay in recommending his name by the UPSC due to the pending litigation. He has, therefore, requested to treat him at par with all his other batchmates who joined in 2003, for all purposes including the benefits under the CCS (Pension) Rules, 1972.
4. The learned counsel for the Applicant has also relied upon an order of the co-ordinate Bench of this Tribunal in OA No.1205/2012 Vijay Prakash and Others Vs. The Chief Secretary, Govt. of NCT of Delhi and Others decided on 23.11.2012 wherein it has been held that when the Applicant therein was denied appointment along with his batch mates for none of his fault he cannot be visited with any adverse effect on his career except the salary and allowances as he has not already worked for that period. The operative part of the said order reads as under:-
2. Respondents have filed reply denying the submissions of the applicants. However, the fact of the matter is that this Tribunal has already decided the issue involved in this case in OA No.1795/2011 - Lalit Kumar & others Versus Municipal Corporation of India & others through the Commissioner, Town Hall, Delhi vide order dated 01.08.2012. The operative part of the said order reads as under:-
5. We have heard the learned counsel for the applicant, Sh. H.D. Sharma and the learned counsel for the respondents Sh. Rahul Singh and Mrs. Sumedha Sharma. The undisputed fact in this case is that the DSSSB had advertised 2195 vacancies (consisting 421 vacancies for UR candidates, 465 vacancies for OBC candidates, 647 vacancies for SC candidates and 662 vacancies for ST candidates). The applicants have qualified the competitive examination and they have been included in the merit list. But the DSSSB has declared the result of only 246 UR candidates who have qualified the examination vide its order dated 27.12.2002 and withheld the results of the SC/ST categories only on the ground that the dispute regarding their eligibility to get appointment was pending before the High Court of Delhi. However, the aforesaid dispute was settled by the Honble High Court in favour of the SC/ST candidates vide its judgment dated 13.05.2005 referred above. It was thereafter that the applicants who belonged to the SC/ST categories have been given appointment in the MCD.
6. It is a well settled law that the seniority of the employees depends upon their respective positions in the merit list, which is common to all. The candidates who are appointed in terms of an earlier merit list will be treated enblock senior to the candidates who have been appointed on the basis of the merit list of a subsequent selection. However, the fact of the matter in the present case is that the applicants who belonged to the SC/ST category could not be appointed along with the general category candidates not because of any of their fault, rather it is also not because of any fault of the respondents. It was only due to the pendency of dispute before the Honble High Court regarding the eligibility of the SC/ST candidates for appointment in the MCD, NDMC and GNCT of Delhi etc., which was beyond the control of both parties. Once that dispute has been settled in favaour of the applicants, the applicants should not be visited with any other adverse effects in their career. However, it is also a fact that the applicants have not worked from the date their counterparts belonging to the general category candidates who have been given appointment earlier have been working. Therefore, they cannot claim any salary and allowances for the period they have not worked but in all other respect they have to be treated at par with the general category candidates who secured their appointment earlier.
7. It is also a well settled position of law that because of the mere pendency of a case in a Court of Law, no litigant, whether the petitioner or the respondent, can BE deprived of any benefit unless otherwise ordered by the court itself. As a corollary of the said principle, no person needs to suffer for the act of the Court and in case an interim order has been passed, the petitioner can take advantage thereof. Rather, in such cases law permits promotion with retrospective effect. The aforesaid position of law has clearly been laid by the Apex Court in Kalabharati Advertising versus Hemant Vimalnath Narichania & others 2010 (9) SCC 437 and Amarjeet Singh & others versus Devi Ratan & Others 2010 (1) SCC 417. In Kalabharati Advertising (supra), the Apex Court has held as under:-
15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide: Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).
8. Again in Amarjeet Singh & Others, the Apex Court has held as under :-
26. There is another aspect of the matter. The appellants and the respondents have been considered by the DPC held on 19.12.1998 to fill up 42 vacancies under the unamended rules. However, at the cost of repetition, it may be pertinent to mention here that only 30 candidates/appellants were found suitable by the DPC held on 19.12.1998 and had been promoted, under the unamended Rules on the criterion of "merit". The respondents had been promoted under the amended rules by carrying forward 12 vacancies, by another DPC held subsequently on 22.1.1999 on different criterion, i.e., "Seniority subject to rejection being unfit". Indisputably, these 12 officers/respondents were found unsuitable for promotion under the unamended rules by the DPC held on 19.12.1998. Subsequent thereto, both set of officers had been promoted notionally from the back dates. The appellants had been given promotions as AEC against the vacancies for the year 1994-95 while the respondents were given notional promotions against the vacancies for the years 1996 and 1997. The seniority list dated 12.7.2000 was prepared accordingly. As the appellants had been given notional promotion w.e.f. 6.12.1995 and the respondents w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly been determined while issuing seniority list dated 12.7.2000.
9. In the above facts and circumstances of the case, we allow this OA with the direction to the respondents to grant notional seniority to the applicant as per their respective positions in the merit list prepared by the DSSSB in the year 2002. They shall also be given appointments on notional basis from the dates the first general category official has joined duty. Consequently, they will be entitled for notional increments and fixation of pay and other benefits like GPF, Pension, etc. as admissible to their batch mates belonging to the unreserved category. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. There shall be no order as to costs.
3. In view of the above position, learned counsel for the respondents Ms. Alka Sharma, fairly admitted that the aforesaid judgment squarely covers the present case also. We, therefore, allow this OA and direct the respondents to extend the same benefits to the applicants herein as given to the applicants in OA No.1795/2011 (Supra) within a period of two months from the date of receipt of a copy of this order.
4. There shall be no order as to costs.
5. The Respondents have referred the case of the Applicant to the Department of Pension and Penioners Welfare for their advice. The Legislative Department requested the Department of Pension and Pensioners Welfare to clarify whether the benefit of deemed date of appointment and pay and allowances have been considered by the Department or not? If that has not been considered, the Department to intimate the reason why it has not been allowed/not allowed so that the question of applicability of the CCS (Pension) Rules, 1972 could be considered. After having received the advice from them, the Respondents, vide the impugned letter dated 28.02.2011, informed the Applicant that in accordance with the Rule 2 of the CCS (Pension) Rules, 1972, as amended vide Notification dated 30.12.2013, the CCS (Pension) Rules apply to Government servants appointed on or before 31st December, 2003. However, in the case of Applicant his date of appointment is in the year 2005 and since he has not been given the deemed date of appointment earlier on the date earlier than 01.01.2004, his request for admitting to the Old Pension Scheme cannot be accepted.
6. The Respondents also have filed their reply on the above lines. Their preliminary objection is that this is a time barred case as the Applicant has approached this Tribunal after 7 years, after he has joined as ALC on 17.10.2005. Therefore, he cannot claim any benefits of proforma fixation of his seniority or any benefits under the Old Pension Scheme at this belated stage.
7. The learned counsel for the Respondents has also submitted that Applicants case is covered under FR 17 (1) which says that (1) Subject to any exceptions specifically made in this rules and to the provision of sub rule (2), an officer shall being to draw the pay and allowance attached to his tenure of the post with effect from the date when assumes the duties of that post, and shall cease to draw as them soon as he ceases to discharge those duties. He has also submitted that there is no anomaly in his pay fixation so fixed and there is no question of any stepping up of his pay.
8. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri Rajesh Katyal and Shri J.B. Mudgil. It is an admitted fact that the Applicant was the batchmates of other three ALCs selected by the UPSC in the year 2002. Out of 4 vacancies, the dispute was with regard to the third post ear-marked for the general category candidate. Since there was no dispute with regard to the other vacancies, those three candidates recommended by the UPSC could join service on 19.11.2003, 04.12.2003 and 16.09.2003 respectively. The dispute with regard to the third post was resolved only on 12.01.2006 when the High Court has pronounced its judgment in that regard in W.P. No.6829/2013 (supra). The other contender of the said post Ms. Sunita Anand was accordingly declared not eligible for the said post. It was only thereafter on 28.09.2004 the UPSC recommended the Applicant for appointment to the said post to the Department only. The Respondent-Department has thereafter issued the offer of appointment on 04.10.2004. The Applicant immediately accepted the said offer. However, the Respondents issued appointment letter only on 23.06.2005 to join by 22.07.2005. As the Applicant was already working with the State Government, he sought three months time to join the duty and the Respondents, vide their letter dated 23.06.2005 allowed him to join by 21.10.2005. He joined well within the time on 17.10.2005. Thereafter, the Applicant has made a representation to the Respondents to grant him provisional appointment from the date his junior has been appointed with all consequential benefits including those under CCS (Pension) Rules, 1972. However, the Respondents, however, granted him only the seniority above the last selected candidate as in the order of merit in select list who joined the post on 16.09.2003 and nothing else.
9. It is seen that the Applicant was denied appointment at the right time along with his batch mates only because of the pendency of the case filed by another candidate Ms. Sunita Anand before this Tribunal and it has reached up to the High Court of Delhi. There was no fault on his part. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one followed by the Apex Court in the case of Kalabharati Advertising (supra) and relied upon by the co-ordinate Bench of this Tribunal in the case of Vijay Prakash and Others (supra) shall equally apply in this case also.
10. We, therefore, allow this OA and direct that the Respondents shall treat the Applicant at par with his batchmates for all consequential purposes except back wages. He shall, therefore, be treated as joined the ALC with effect from 16.09.2003, i.e., the date his junior has joined the said post. He will also be entitled for notional annual increments and fixation of pay accordingly. However, we make it clear that the Applicant will not be entitled for any actual monetary benefits till 17.10.2005. Again, as a matter of consequence, he is also entitled to be governed by the Old Pension Scheme under the CCS (Pension) Rules, 1972. Respondents shall pass appropriate orders in compliance of the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order.
11. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh