Central Administrative Tribunal - Delhi
Anil Kumar vs Union Of India on 31 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3155/2012 NEW DELHI THIS THE 31st DAY OF OCTOBER, 2013 HONBLE MR. JUSTICE SYED RAFAT ALAM, CHAIRMAN HONBLE MR. P.K. BASU, MEMBER (A) Anil Kumar House No. 30, Village Kamruddin Nagar, Nangloi, New Delhi Applicant (Through Ms. Preeti Gupta, Advocate) VERSUS 1. Union of India Through the Secretary to the Govt. of India, Ministry of External Affairs, South Block, New Delhi-110011 2. Indian Council for Cultural Relations (ICCR) Through Director General, Azad Bhawan, I.P. Estate, New Delhi-110002 Respondents (Through Shri M.K. Bhardwaj, Advocate) ORDER
MR. P.K. BASU, MEMBER (A) The applicant was appointed as Lower Division Clerk (LDC) by the respondents as a daily wager initially in 1998. In 2004, he was granted temporary status as Class IV employee. Vide order dated 8.05.2006, the respondents appointed the applicant as Chowkidar in the pay scale of Rs.2550-3200/-. With effect from August, 2011, he was given the designation as Multi Tasking Staff (MTS) in the same pay scale as that of a Chowkidar. The applicant applied for interview in August, 2005 for the post of Assistant Programme Officer. However, though the applicant possessed Masters degree with seven years experience, whereas the minimum qualification required was Bachelors degree with three years experience, he was not called for interview. It is alleged that persons who have joined at much later date as LDC, have been given promotion either as Assistant or any other equivalent post but the applicants case was overlooked. The applicant has filed representation before the respondents requesting for the status of LDC/ Data Entry Operator/ Junior Librarian dated 3.06.2009 but his grievance is that the respondents did not reply to his representation.
2. It is stated by the applicant that all through out from the date of his first appointment, he has been discharging the duties of a Data Entry Operator and has been awarded honorarium from time to time for his good work. Moreover, the applicant is B.Com. with Bachelor of Library and Information Sciences. He has also obtained Masters degree in Library and Information Sciences; one year diploma in Computer Application with Grade A+ and has computer knowledge of MS-Dos, Fox Pro, Computerized Accounting Programme and MS-Office etc. The applicant, therefore, prays that in the above background, the respondents be directed to promote/ appoint the applicant to the post of Assistant Programme Officer/ Junior Librarian in the pay scale of Rs.25000/- to 30000/- or any other equivalent post. The applicant emphasize that this matter should be considered as that of grant of equal pay for equal work. The order of the Honble Apex Court in Mewa Ram Kanojia Vs. All India Institute of Medical Sciences and others, (1989) 2 SCC 235 was cited in his support. Our attention was drawn to the following portion of the order in which the Court held as follows:
In judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative difference and the measures of responsibility prescribed for the respective posts. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of `Equal pay for equal work would not apply.
3. The respondents in their reply have stated that along with Shri Anil Kumar, the applicant, nine other similarly situated daily wagers were conferred temporary status in January 2004 and later in 2006, they were adjusted in Group `D posts in accordance with the Department of Personnel & Training OM dated 10.09.1993. The same was accepted by the applicant without any resentment. The applicant was also given honorarium as and when he did some extra work subject to need basis. During the course of arguments, it was made clear that there was no post of Data Entry Operator in the respondents office nor was there any provision in the recruitment rules to appoint a Group `D employee as Data Entry Operator or to any other post. Therefore, the request of the applicant could not be acceded to and the decision was conveyed to him after due consideration. It is further explained that the post of LDC is filled by dual method of recruitment i.e. direct recruitment by open competition and by promotion of the MTS staff as prescribed in the recruitment rules. Out of ten group `D employees mentioned above, seven possessing the eligibility conditions have been promoted as LDC as per provisions in the recruitment rules. In their reply, the respondents have assured that the remaining eligible MTS will be considered for promotion whenever vacancies arise.
4. The respondents point out that the applicant has been raising the same issue again and again at different times but the reply of the respondents had been same that posts pertaining to category `C cannot be filled by appointing persons, appointed on daily wages earlier as Chowkidar merely because they possessed the required qualifications. The respondents have further stated that in 2005, applications for the post of Programme Officer and Assistant Programme Officer were also advertised and selections made. N.S. Singh and others filed WP ) No.3589/2008 in the Honble Delhi High Court challenging these appointments. The applicant has incorporated in his case the contentions raised in the said W.P.(C). The Honble High Court transferred the petition to the Principal Bench of the Central Administrative Tribunal at New Delhi, which came to be registered as TA 1422 & MA 2522/2009. In the said TA, it appears from the memo of parties that Shri Anil Kumar son of Shri Shrikrishan, resident of House No.30, Village Kamruddin Nagar, Nangloi, New Delhi-110041 (same as the applicant in this OA) is arrayed as party no.25. This Tribunal decided that TA is not maintainable. Para 15 and 16 of the said order is reproduced below:
15. We are in agreement with the Respondent-ICCR that the TA is not maintainable because the Applicants have failed to show how they have been prejudiced by the process of selection. The publication of the advertisement through the private consulting firm has not caused any prejudice, as the Applicants were aware of the selection, as discussed above. The selection has been made from the direct recruitment quota and not the quota for promotion. Some of the internal candidates, who applied for the posts, had been selected. It has not been shown that some eligible employees had applied for the posts but were not called for interview. There is no foundation laid for such contention.
16. We are confining ourselves only to the above argument, although other contentions of both the parties have been noted, because the TA would fail only on this basis. The TA is dismissed. No costs. This order was challenged in the High Court in WP ) No.2820/2011 and the High Court decided as under:
It is directed that any appointment given in the meantime shall be subject to result of the writ petition.
5. During the course of arguments, the learned counsel for the applicant had also raised the issue that the respondents had not considered and called for the applicant for interview for the post of Librarian which was filled up by them even though the applicant possesses the degree in Library and Information Sciences. However, it has not been mentioned in the OA nor in the relief sought. Therefore, this cannot be raised as an issue at this stage. The applicant should have raised it at the time the department was undertaking the process of filling up the post of Librarian.
6. It is seen that the applicant was first appointed on daily wages vide order dated 9.01.2004 in which it was clearly mentioned that his services can be dispensed with any time by giving one months notice. Similarly, the applicant could also quit the service by giving a written notice of one month. Thereafter, the department regularized his appointment in group `D post of Chowkidar vide order dated 8.05.2006 as per DoP&T instructions dated 10.09.1993. It is admitted position that there are no posts of Data Entry Operator. The recruitment rules for Group `C posts (Data Entry Operator) do not provide for recruitment of Group `D employees directly. Moreover, it is settled position that promotion cannot be claimed as a matter of right. Just because the applicant has Masters degree and seven years experience, he cannot claim promotion, that too on the post of Data Entry Operator, which does not exist in the organization. The applicant has been raising the same issues time and again knowing well that there was no way under the rules that he, who was appointed on Daily Wager post earlier as Chowkidar, could be appointed in Group `C category just because he possessed required qualifications. In fact, he has raised the same issues in this OA which were raised by him in WP) No. 2820/2011. In TA 1422 & MA 2522/2009, the Tribunal while finding the TA not maintainable had observed that the applicants have failed to show how they have been prejudiced by the process of selection. In that case, some of the internal candidates who had applied for the post had been selected. It was not shown that some eligible employees had applied for the post but were not called for interview. In the above TA, the respondents had stated that the applicants have not even disclosed specifically about the posts held by them in order to ascertain whether they were eligible to the posts from LDC to Programme Officer. From paragraph 3 of the OA, it would appear that some of the employees would not even be eligible for the post of Assistant Programme Officer. Interestingly, it is observed that in para 3 of the TA, it is stated as follows:
That the petitioner nos. 1 to 25 were/ are working with respondent no. 1 on different positions as Data Entry Operator, Lower Division Clerk, Upper Division Clerk, Steno-Typist, Stenographer, Assistant, Senior Stenographer, Asst. Prog. Officer after passing the examination conducted by Staff Selection Commission/ Central Employment Exchange and were/ are entitled to be considered for the post of Assistant Programme Officer and Programme Officer under the recruitment Rules. Since the applicant in this OA, Shri Anil Kumar was the petitioner in the aforesaid TA as well, the statement itself is wrong because he was only a Chowkidar. We, therefore, find that the applicant has been raising the issue of his absorption even earlier and on not succeeding, attempts to find new avenues to achieve his goal of somehow getting into group `C posts citing that he has relevant qualifications, knowing pretty well that the recruitment rules do not provide for it and there is no rule by which his request can be acceded to by the respondents. In fact, this can only be viewed as abuse and misuse of the process of law by the applicant as he has failed to point out any infringement of his legal right by the respondents in violation of any instructions, rules and regulations. In fact, the department was very fair to him by timely giving temporary status and then adjusting him against a group `D post of Chowkidar. The department in its reply have clearly stated that out of the list of ten MTSs, seven have already been accommodated and promoted as LDCs and the remaining eligible MTSs would be considered for promotion whenever vacancies arise.
7. The argument of the applicant regarding equal pay for equal work does not apply in this case because the facts are completely different from the facts in the case of Mewa Ram Kanojia (supra). This is a case where the applicant is seeking appointment to a post because of his qualifications and not because he holds similar posts discharging the same duties and responsibilities as somebody else and getting lesser pay. Therefore, we see no merit in the OA and it is accordingly dismissed. However, we direct the respondents to consider the case of the applicant for promotion whenever vacancies arise in future.
(P.K. Basu) (Syed Rafat Alam) Member (A) Chairman /dkm/