Central Administrative Tribunal - Delhi
Kailash Chand Joshi vs Union Of India Through on 3 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1753 of 2010 This the 3rd day of January, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Kailash Chand Joshi, U-186, Street No.7, Arvind Nagar, Ghonda, Delhi-110053. Applicant ( By Shri Padma Kumar S., Advocate ) Versus Union of India through Secretary, Ministry of Social Justice & Empowerment, Shastri Bhawan, New Delhi-110001. Respondent ( By Shri R. V. Sinha, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Kailash Chand Joshi, the applicant herein, admittedly discharged the duties attached to the post of Principal Private Secretary (PPS) on the dint of order dated 1.10.2007 from the very date the order was passed, up to 15.5.2008. He has not been paid the salary attached to the post mentioned in the order itself for the reason that his appointment on the said post was irregular. The applicant on the principle of quantum meriut and judicial precedents based thereon would contend that once he was asked to shoulder the responsibilities of a higher post, the respondents are duty-bound to give him the pay scale attached to the post on which he actually worked. The respondents would, on the other hand, deny him the salary of the said post on the ground that his appointment was irregular.
2. Brief facts of the case as culled out from the pleadings of the parties reveal that the applicant who is a graduate was appointed as Personal Assistant (PA) in the pay scale of `5500-9000 in the National Commission for Denotified Nomadic & Semi-Nomadic Tribes (Ministry of Social Justice & Empowerment) vide office order dated 10.7.2007. While so working, he was appointed as Principal Private Secretary in the pre-revised pay scale of `10000-15200 with effect from 1.10.2007, and he joined the Commission as such on the same day. The order appointing the applicant on the post of PPS reads, thus:
NATIONAL COMMISSION FOR DE-NOTIFIED, NOMADIC & SEMI-NOMADIC TRIBES MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT GOVERNMENT OF INDIA, NEW DELHI (OFFICE OF THE MEMBER) Mr. Kailash Chand Joshi S/o Shri Nand Ram Joshi R/O U-186, Street No.7, Arvind Nagar, Ghonda, Delhi-110053 working in my personal section as Personal Assistant has been appointed as Principal Private Secretary on co-terminus basis in the scale of Rs.10000-325-15200 with effect from 01st October, 2007.
Kindly issue necessary order accordingly.
Sd/-
(Laxmanbhai Patni) 1-10-2007 Sd/- 9.10.07 CHAIRMAN N.C.D.N. & S.N.T. It is the case of the applicant that the Government of India having notified a resolution in the Gazette of India to constitute a National Commission to study the developmental aspect of the Denotified Tribes, Nomadic and Semi-Nomadic Tribes, issued Presidential sanction vide order dated 8.6.2005 for creation of 30 posts for one year, which included two posts of PPS and four posts of PA. The two posts of PPS were to be attached to the Member of the Commission and the Member Secretary. Before the applicant came to be appointed as PPS to the Member of the Commission on 1.10.2007, one Shri Chaudhari Rakesh Eknath was posted as PPS to the Member. Despite the fact that the applicant was appointed on higher post of PPS w.e.f. 1.10.2007, he has not been paid the pay and allowances attached to the said post all through he worked as such up to 15.5.2008. In fact, he was given no salary at all for a period of 7= months, and all his entreaties to give him the salary, it is his case, fell on deaf ears. The applicant made specific request in writing on 4.8.2008, followed by letters dated 23.10.2008, 18.12.2008 and 26.3.2009, but with no result. He came to know that the Commission had not released his pay and allowances as it did not receive the same for want of clearance for his appointment from the Ministry. The Commission wrote a letter dated 7.3.2008 to the Deputy Secretary (BC-II), Ministry of Social Justice & Empowerment, wherein it is mentioned that the applicant fulfills the minimum eligibility criteria prescribed for the post of PPS, and that as had already been explained in the office notings referred to the Ministry, the posts of personal staff in the personal section of Chairman/Members in the Commission are excluded from the purview of the Central Secretariat Service, and the Chairman/Members would have the privilege of appointing persons of their choice on co-terminus basis against these posts. The extracts of the office notes in that regard, it is stated in the letter aforesaid, were available in the concerned file sent to the Ministry. It is further mentioned that to make it more clear it was also being intimated that the initial term of the Commission was up to 5.2.2007 which was extended for one year up to 5.2.2008, and the appointment of the applicant as PPS to Member was made w.e.f. 1.10.2007, and further that keeping in view that limited period of the Commission was left, the Commission did not circulate the vacancy of PPS to Member before appointment of the applicant, and now that the term of the Commission had been extended further up to 5.8.2008, it was requested that the approval for his appointment to the post of PPS may be obtained up to 5.8.2008 and communicated to the Commission. The applicant received a letter dated 24.3.2009, which he has impugned in the present OA, wherein it has been stated that since the appointment of the applicant as PPS was made by Member Secretary, who is not empowered to approve such appointments, the applicant could not be given the pay of the said post on which he worked from 1.10.2007 to 15.5.2008. It is, however, stated that the Ministry has agreed to retain the applicant as PA for the said period, and that his pay would be settled accordingly. A cheque was thereafter dispatched to the applicant representing the pay of the post of PA, which was returned by the applicant. In wake of the facts and circumstances as mentioned above, the applicant seeks setting aside of the orders dated 24.3.2009 and 31.7.2009 whereby salary for the post on which he worked has been denied. In consequence of setting aside the order aforesaid, the applicant seeks a direction to be issued to the respondents to release his salary in the pre-revised scale of `10000-15200 for the period from 1.10.2007 to 15.5.2008 based on the Sixth CPC pay scales forthwith. He also claims interest at the rate of 12% and exemplary costs to be paid to him by the respondents.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and have filed their reply contesting the cause of the applicant. It is inter alia pleaded that a short-term Commission, i.e., the Commission aforementioned, was reconstituted vide resolution dated 16.3.2005. Thirty posts were sanctioned to man the office of the Commission. As per Government norms, these posts (excluding Chairman, Member and Member Secretary) were to be filled either by deputation or on contract basis/outsourcing. One such appointment made was of the applicant as PA to the Member in the scale of `5500-9000. He worked as PA from 16.3.2007 to 30.9.2007, whereafter his services were terminated vide order dated 15.10.2007 with effect from 30.9.2007. On 1.10.2007, Member of the Commission sent a note to the Member Secretary through Chairman of the Commission that the applicant who was working in his personal section as PA had been appointed as PPS on co-terminus basis w.e.f. 1.10.2007. The said note was signed by the Chairman on 9.10.2007. No order appointing the applicant as PPS was issued. It is the case of the respondents that the Commission sent a note with approval of the Chairman on 30.10.2007 to the Ministry of Social Justice & Empowerment for appointment of the applicant as PPS. The matter was under examination of the Ministry and at no point of time the appointment of the applicant was regularised by the Ministry. It is pleaded that the post of PPS is a Group A (Gazetted) post and the appointing authority for the post is the President, which power is exercised by the Minister-in-charge of the concerned Ministry, and, therefore, appointment of the applicant by the Member-Secretary of the Commission would not be in order. Member-Secretary, it is further pleaded, is not the competent authority to make such appointment, and accordingly a decision was taken not to regularize the services of the applicant as PPS for the period 1.10.2007 to 15.5.2008. However, it was agreed that the applicant would be paid pay in the scale attached to the post of PA for the said period.
4. During the course of arguments, it is not in dispute that the applicant actually worked on the post of PPS for the period as mentioned above. The only dispute is that whereas, in the view of the Commission, appointment of the applicant could be made by it, the respondents would, however, plead that the Commission would have no power to make appointment of the applicant on a Group A post.
5. Having heard the learned counsel representing the parties and examining the records of the case, we are of the view that once, an employee is made to shoulder responsibilities of a higher post, on the principle of quantum meriut he would be entitled to the pay scale attached to that post. The applicant, in the circumstances as mentioned above, would not be concerned whether the Commission was competent to make his appointment or the same had to be made by the Minister concerned. The Honble Supreme Court in Selvaraj v Lt. Governor of Island, Port Blair and Others [JT 1998 (4) SC 500], on the principle of quantum meriut allowed salary to the concerned employee of the higher post on which he was made to work. The facts of the said case reveal that the appellant therein looked after duties of Secretary (Scouts) from the date of order and was yet not paid salary for the work done by him as such. It was admitted position that the appellant was not regularly promoted to the post of Secretary (Scouts). He was regularly posted in the pay scale of Rs.1200-2040 and was asked to look after the duties of Secretary (Scouts). The facts of the case would further reveal that had the arrangement not been done, the appellant would have to be transferred to the interior islands where the post of PST was available, but inasmuch as, he was keen to stay in Port Blair, the arrangement, as mentioned above, was made. Despite the fact as mentioned above, it was held that the fact remained that the applicant had worked on the higher post though temporarily and in officiating capacity and that his salary was to be drawn during that time against the higher post. It was also not in dispute that the salary attached to the post of Secretary (Scouts) was in pay scale of `1640-2900. Consequently, on the principle of quantum meriut the authorities were directed to pay the appellant as per the emoluments available in the higher pay scale during the time he actually worked on the said post, though in officiating capacity. Following the principle of quantum meriut, we allowed OA No.1166/2009 vide orders dated 6.10.2009 in the matter of S. C. Gupta & Others v Government of NCT of Delhi & Others. The facts of the case aforesaid reveal that the applicants therein during their posting as Vice Principal, performed duties of Principal/Head of Office/Head of School in senior secondary schools for various periods. Even though, they performed the duties of Principal/Head of Office/Head of School, but they were paid salary in the scale of pay attached to the post of Vice Principal. They claimed salary admissible to the post of Principal on the principle of quantum meriut. While opposing the cause of the applicants, it was urged that since the applicants had been given the designation of head of office and there was no declaration in their case that they were to work as Principal, they would not be entitled to the salary attached to the post of Principal. The contention of the counsel was repelled primarily on the basis of the judgment of the Honble Supreme Court in the case of Selvaraj (supra). We also mentioned that the Tribunal had allowed similar OA No.3230/2001 vide orders dated 24.10.2002 in the matter of M. P. Singh v Government of NCT of Delhi & Others, against which a writ was preferred which came to be dismissed by the Honble High Court of Delhi vide detailed orders dated 22.3.2007, against which even the SLP filed before the Honble Supreme Court was also dismissed. Our decision dated 6.10.2009 in OA No.1166/2009 was challenged before the High Court of Delhi in WP(C) No.724/2010, which came to be dismissed vide order dated 6.9.2010. The High Court relied upon its earlier judgment in WP(C) No.8111/2002 in the matter of M. P. Singh (supra) while upholding the view taken by this Tribunal. The High Court in the case of M. P. Singh relied upon the judgment of the Honble Supreme Court in Judhistir Mohanty v State of Orissa & Others [1996 VIII AD (SC) 733 = (1996) 10 SCC 531], wherein it was held as follows:
It is a settled position that if the Government, for want of candidate, directs an officer in the lower cadre to perform the duties of the post in the higher cadre, during that period, necessarily, the incumbent would be entitled to the payment of the salary attached to the post if the incumbent had performed the duties in that post. Similarly where the officer concerned is on promotion from lower cadre to the higher cadre, though on ad hoc or even temporary basis, the incumbent would be entitled to the payment of the salary attached to the post for the period of his discharging the duty in that post. The Division Bench also placed reliance upon the judgment of the Honble Supreme Court in Selvaraj (supra). It is pertinent to mention here that in the order of the applicants in S. C. Gupta & Others (supra) to discharge duties of head of office, it was clearly mentioned that they would not be entitled to pay of the post of Principal, and yet they were allowed salary of the said post.
6. Whether the power to make appointment on the post of PPS was with the concerned Minister or the commission, in our view, would be of no concern to the applicant. The Commission, as mentioned above, was of the view that it had the power to make appointment of the applicant as PPS. This issue ought to have been sorted out before making appointment of the applicant. Surely, once the appointment was made, the applicant would be entitled to the pay of the post on which he actually worked.
7. For the reasons as mentioned above, we allow this Original Application, and while quashing orders dated 24.3.2009 and 31.7.2009, direct the respondents to make over the pay of the post of PPS to the applicant for the period from 1.10.2007 to 15.5.2008. Now that the applicant has been made over the payment admissible to the post of PA, the respondents would only make over to him the difference between the pay scale of PPS and PA. The applicant would be made over the payment as mentioned above within a period of six weeks from today. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/