Central Administrative Tribunal - Delhi
Shri Prakash Keswani vs Delhi Development Authority on 19 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1732/2011
New Delhi this the 19th day of January, 2012
Honble Dr. Veena Chhotray, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
Shri Prakash Keswani,
S/o Shri B.D.Keshwani,
R/o B-1025, Palam Vihar
Gurgaon (Hayana)
Presently posted as Assistant Engineer (Civil),
CGD No.5, DDA, Siri Fort Complex,
New Delhi. Applicant
(By Advocate Shri R.A.Sharma )
VERSUS
1. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan ( B-Block), Ist Floor,
Near INA, New Delhi.
2. Superintending Engineer,
Civil Circle M-22, Public Works Department,
Delhi Secretariat, IP Estate, New Delhi.
3. Superintending Engineer (Coordination),
Civil Circle (Northern Region)
CPWD, East Block-I, Level-6
RK Puram, New Delhi-110066. Respondents
(By Advocate Shri KaruneshTandon and Shri B.N.P. Pathak))
O R D E R
Mr. A.K.Bhardwaj, Member (J):
Applicant joined as Junior Engineer (Civil) in CPWD in the pay scale of Rs. 425-700 w.e.f. 1.04.1977. Subsequently he applied for the post of JE (Civil) in DDA. On being selected he was appointed on said post of JE (Civil) in DDA in pay scale of Rs.425-700. He joined on the said post in the forenoon of 31.12.1979. He has filed present Original Application seeking issuance of direction to respondent No. 1, i.e. DDA to give him the benefit of past service rendered by him in CPWD from 01.04.1977 to 31.12.1979 by protecting his last pay drawn, i.e., Rs.455/-, taking into account the said service for the purpose of ACP benefits and time bound up-gradation.
During the course of arguments, learned counsel for applicant contended that the aforementioned services rendered by the applicant in CPWD should also be taken into account while determining his pensionary benefit on retirement. In support of his claim for pay protection, learned counsel appearing for applicant has relied upon decision of Honble Delhi High Court in LPA no 690/2001 dated 3.03.2009 ( 158 (2009) DLT 39 (DB). In the said case appellants were earlier working as JE in CPWD and after some time, on selection, they were appointed as JE in DDA. They made representation for fixation of their pay under Fundament Rule 22 by giving them benefit of their past service. On rejection of said representation they filed WP (C) no. 1768/1988 before Honble Delhi High Court. Honble Single Judge of Honble Delhi High Court dismissed the Writ Petition (C) taking the view that appellants were initially appointed on probation and provisions of FR 22 were not applicable to them. Taking a view that appellants were entitled to benefit of FR 22 B, Honble Division Bench disposed of the LPA.
2. Fundamental Rule 22 B as noted in aforementioned judgment of the Honble High Court provides that a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre, during the period of probation, shall draw pay at the minimum of the time scale or at the probationary stage of the time scale of the service or post, as the case may be. On confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant needs to be fixed in the time scale of the service or post in accordance with the provisions of Rule 22 or Rule 22C, as the case may be. In terms of proviso to FR 22B (1)(b), the pay of Government servant was not to be fixed under Rule 22 or Rule 22C with reference to the pay he could have drawn in the previous post, which he was holding in temporary capacity. In such situation he shall continue to draw pay in the time scale of the service or post held by him. From the aforementioned it is clear that the pay of Government servant was not to be fixed under Rule 22 or Rule 22 C with reference to the pay that he would have drawn in the previous post which he was holding in temporary capacity.
In para 4.20 of the counter reply filed on behalf of respondents No. 2 & 3, it is specifically mentioned that the applicant was working in PWD from 1.4.1977 to 30.4.1979 as JE (C) on temporary basis. Relevant excerpts of said reply read as under:-
.It is further submitted that in reply SE PWD M-22( on behalf of respondent No.2) replied vide his letter no. 9(4)/PWD circle M-22/DA/866 19.6.2008 wherein he verified service rendered by applicant in PWD NCTD from 1.4.77 to 30.12.79 as JE (Civil) on temporary basis, sent photocopy of service record of applicant and informed that the leave encashment and GPF balance already been paid to the applicant and that nothing more is to be paid to the employee as per rules. SE M-22 PWD informed DDA that LS/PC (with interest) cannot be paid to employee as per rules of Govt. of India. He also asked DDA to quote the rules under which PWD (DA) should pay LS/PC (with interest) to DDA.
Thus in terms of proviso to FR 22B (1)(b) the pay of the applicant was not to be fixed with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he was to be continued to draw the pay in the time scale of the service or post. For easy reference FR 22 B (1) is extracted below:-
F.R.22-B. (1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequent confirmed in that service or cadre-
during the period of probation, he shall draw pay at the minimum of the time-scale or at the probationary stage of the time-scale of the service or post, as the case may be:
Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clause, he shall draws the presumptive pay of the permanent post;
On confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time scale of the service or post in accordance with the provisions of Rule 22 or Rule 22-C, as the case may be:
Provided that the pay of Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time scale of the service or post.
(2) The provisions contained in sub-rule (1) shall apply mutatis mutandis to cases of Government servants appointed on probation with definite conditions against temporary posts in another service or cadre where recruitment to permanent posts of such service or cadre is made as probationers, except that in such cases the fixation of pay in the manner indicated in Clause (b) of sub-rule (1) shall be done under Rule 31 of these Rules immediately on the expiry of the period of probation and on regular officiating appointment to a post, either permanent or temporary, in the service or cadre.
(3).Notwithstanding anything contained in these Rules, a Government servant appointed as an apprentice in another service or cadre shall draw-
during the period of apprenticeship, the stipend or pay prescribed for such period, provided that if the presumptive pay of the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien had not been suspended, should at any time be greater than the stipend or pay fixed under this clause, he shall draws the presumptive pay of the permanent post.
on satisfactory completion of the apprenticeship and regular appointment to a post in the service or cadre, the pay as fixed in the time scale of the service or post under Rule 22 or 22-C or 31, as the case may be, of these Rules:
Provided that the pay of the Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time-scale of the service or post. In the case of G.R.Chawla & Ors Vs. DDA, Honble Delhi High Court had directed that during the probation period, the pay of the appellants was to be fixed under FR 22B and thereafter under the normal rules. The normal rule refers to rule 22. In Circular dated 28.01.2008, in terms of which representations were called from JEs to consider their cases for giving them benefit of past service rendered by them in other pensionable establishment under the Central Government/State Government/Autonomous bodies before joining DDA for pensionary benefits as well as for upgradation under the ACP, it was clearly provided that the past service rendered by JEs in other pensionable establishments could be taken into account, subject to the following conditions:
1.That they have applied through proper channel.
2. That Technical Resignation is submitted by the officers in their parent departments and joined the DDA in continuity of the Technical resignation &
3. That their parent departments pay the LS & PC to the DDA. Applicant has assailed order dated 9.03.2011 in terms of which his claim for grant of benefit of past service was rejected on the ground that he did not fulfill conditions No.2 & 3 i.e. his resignation was not technical resignation and his parent department did not pay LS & PC to DDA. The term technical resignation is defined in general instructions issued by Department of Personnel and Training vide OM no. 11.02.1988. In term of said definition in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a technical formality. The said definition reads as under:-
When resignation is a technical formality - In cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a technical formality.
3. In the counter reply filed on behalf of respondents No. 2 and 3 it is admitted that the applicant submitted his application through proper channel and respondents no. 2 and 3 were aware of the fact at the time of resignation that the applicant had resigned due to selection in DDA. Para 4.24 of the said reply reads as under:
That in reply to the contents of the corresponding para it is submitted that the applicant submitted his resignation from CPWD/PWD on his selection in DDA as JE (Civil) and nowhere in the record the resignation was recognized by competent authority as Technical Resignation. At the same time, it is also true that the applicant submitted his application to DDA through proper channel and respondent no. 2 and 3 were aware of the fact at the time of resignation, that the applicant had resigned due to his selection in DDA, the resignation may be considered as Technical formality.
As per the Govt. of India decision No. 4,5, 6 below Rule 14 of the CCS (Pension) Rules 1972 the practice of realization of LS & PC has been dispensed with. Therefore payment of LS & PC by the respondent no. 2 and 3 to respondent no. 1 is not required. However, in paras 4.20, 4.22 and 4.23 of the reply of respondents no. 2 and 3, it has categorically been stated that LS/PC (with interest) would not be paid to DDA and it was for the DDA to quote the rules under which PWD (DA) was required to pay the LS/PC to DDA. In para 4.24 of reply filed by CPWD/PWD it is stated that, as per Govt. of India decision 4,5 & 6 below rule 14 of CCS (Pension) Rules, 1972, the practice of realization of LS/PC has been dispensed with and, therefore, PWD was not required to pay the said amount to DDA. In para 4.23 of the reply filed by PWD it was categorically stated that the applicant had not even completed the period of probation in CPWD before joining DDA.
4. In view of aforementioned, we deem it appropriate to dispose of the present Original Application with a direction to respondents to examine and decide the claim of applicant for giving him the benefit of past service rendered by him in PWD keeping in view the aforementioned averments made by respondents No. 2 and 3 in their counter reply, particularly the fact that the applicant was only a probationer in CPWD, he had applied for post of JE (Civil) in DDA through proper channel and also the fact that as per decision no, 4,5 and 6 below Rule 14 of CCS (Pension ) Rules, 1972, the practice of realisation of LS/PC had been dispensed with. While doing so, respondents shall also keep in view the proviso to Rule 22 B (1)(b) of fundamental Rules. Decision so taken shall be communicated to applicant. OA stands disposed of. No costs.
( A.K.Bhardwaj) ( Dr. Veena Chhotray )
Member (J) Member (A)
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