Central Administrative Tribunal - Delhi
Mrs. Nirmal Kanta vs New Delhi Municipal Council (Ndmc) on 12 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1313/2011 Order Reserved on 04.10.2012 Order Pronounced on: 12.03.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Mrs. Nirmal Kanta Wife of Shri Rajesh Taneja Employee Code No. 242793 DG Block, Sarojini Nagar, NDMC School, New Delhi-110023 -Applicant (By Advocate: Shri P.K. Sharma) Versus New Delhi Municipal Council (NDMC) Through its Chairman/Director (Personal) Town Hall, Parliament Street, New Delhi-110001. -Respondent (By Advocate: Shri Piyush Gaur for Shri Arun Bhardwaj) O R D E R Mr. Sudhir Kumar, Member (A):
The applicant of this OA is before this Tribunal since she is aggrieved by the respondents not granting the pay scale to her correctly, while they have granted a different and correct pay scale to the other similarly placed employees.
2. The applicant was appointed initially as a part-time Craft Teacher on ad hoc basis on a consolidated salary through orders dated 24.03 1987 (Annexure A-2). Through Annexure A-1 dated 09.03.1988, based upon the Resolution of the concerned Committee of the respondents, New Delhi Municipal Committee (NDMC, in short) from 13.10.1987, she was deemed to have been appointed as full-time Craft Teacher at Rs.950/- in the pay scale of Rs.950-20-1150-EB-25-1500, plus usual allowances, including HRA, and was posted in the Social Education Department against one of the five posts of Craft Teachers sanctioned for absorption of part-time Craft Teachers vide Resolution No.6 dated 13.10.1987. The applicant has claimed that she possesses all due qualifications for such appointment because of which her case was favourably considered by the respondents. However, in Para 4.5 of her OA, the applicant has made an averment that before and even after joining the service, she did not have knowledge that the respondents have appointed other employees on the same post of Craft Teachers in the higher pay scale of Rs.1200-2040/- instead the pay scale of Rs.950-1500/- offered and sanctioned for her.
3. The applicant has claimed that she came to know about this recently only, when she received a reply to her RTI query dated 02.12.2010 through the reply dated 24.12.2010 furnished by the respondents (page-12 of the OA), through which she learnt that the pay scale of Craft Teachers was Rs.1200-2040/- in the year 1987. She was also supplied, through the same RTI reply, the copies of the Committee Resolution sanctioning five posts of Craft teachers to be created, and the Recruitment Rules for the Senior Social Education Teachers in the Social Education Department (page-13 of the OA), in which it is clearly shown that the IV Central Pay Commission pay scale for such post is Rs.1200-2040/-.
4. The applicant has submitted in Para 4.6 of her OA that as per the Office Order of April 2008 (Annexure A-4 of the OA), when the Junior Social Education Teachers of the Social Education Department were selected and placed on the panel for the post of Sr. Social Education Teachers in the pay scale of Rs.4000-6000/-, apart from the five persons, who were already working as Sr. Social Education Teachers on ad hoc basis, she was also promoted, and it was ordered that the pay of the six persons so substantively promoted would be fixed on their personal files, after they had exercised their option for fixation of pay under F.R.22 (1) (a) (i), within one month of that order, and that they would be on probation for a period of one year.
5. The applicant has submitted that she had no knowledge about the difference in pay scale granted to her, and the other employees working with the respondents, till the point of time when the respondents granted ACP to the applicant in the lower pay scale of Rs.4000-6000/-, instead of the correct pay scale of Rs.4500-6500/-, which had been granted to the other employees, who were working on the same post as Craft Teachers. The applicant represented against this through Annexure A-5 dated 01.01.2010, but the respondents did not furnish her any reply in respect of her representation. It was only after this that she had sought the information under the RTI Act on 2.12.2010, and obtained the same through the reply dated 24.12.2010, already mentioned above.
6. In this OA, the applicant has raised the grounds that the respondents cannot deny to her payment of salary in accordance with the principle of equal pay for equal work, and that they should have paid her the salary as a Craft Teacher equal to all other employees, who were working on the same post of Craft Teachers. The applicant has, therefore, assailed the actions of the respondents as being arbitrary, and without any basis, submitting that as a responsible State, the respondents were obliged to act fairly and free of discrimination, which they have not done. In the result, the applicant had prayed for the following reliefs:-
a) This Honble Tribunal be pleased to direct the Respondents to pay/grant with all consequential benefits the correct pay scale (i.e. Rs.1200-2040) of Craft Teacher to the applicant from the date her initial appointment on regular basis and re-fix the pay accordingly.
b) Be further pleased to allow the application with costs.
c) Be proper under to facts and circumstances of the case.
7. The respondents filed their counter reply on 29.02.2012. It was submitted that the applicant was placed in the pay scale of Rs.950-1500/- on 09.03.1988, and now through present OA filed in the year 2011, she is claiming the pay scale of Rs.1200-2040/- from the year 1988 onwards, and, therefore, the present application is hopelessly barred by limitation, and needs to be rejected on this ground alone, as the same has not been filed within the period prescribed under Sections 20 & 21 of the Administrative Tribunals Act, 1985.
8. On merits, it was submitted that the submissions of the applicant in the OA are incorrect inasmuch as there are two different posts of Craft Teachers in the respondent office, namely Junior Social Education Teachers (pay scale Rs.950-1500/-), and Senior Social Education Teachers (pay scale Rs.1200-2040/-). It was submitted that since the applicant was appointed, and was working as a Junior Craft Teacher, she was placed in the correct pay scale. It was further pointed out that the applicant has only made a general averment that some other persons similarly placed as her were at that time itself being paid the higher pay scale of Rs.1200-2040/-, but she has not given any specific details of any such case. It was specifically denied that any person in the employment of the respondents, who had joined on the same post as the applicant, was ever placed in a higher pay scale.
9. It was pointed out that prior to 1991 itself, there were two pay scales of Craft Teachers, which had been mentioned in the Recruitment Rules concerned, which were produced by the respondents also once again at Annexure R-1, to prove that at the time of joining of the applicant in the year 1988, her regular appointment in the junior scale of Rs.950-1500/- was regular and correct. It was submitted that even the Committee of the respondent-NDMC had vide its Resolution No.22 dated 20.03.1991 approved the Recruitment Rules for the post of Junior Social Education Teacher to be only in the pay scale of Rs.950-1500/-, and Senior Social Education Teacher to be in the pay scale of Rs.1200-2040/- separately, while replacing the old Recruitment Rules. Therefore, while the nomenclatures of the posts got changed from that of Craft Teachers to that of Social Education Teachers, but the posts remained the same, with the same nature of duties, but with two levels of posts with different pay scales and nomenclature.
10. Since as per the latest Recruitment Rules, the two categories of Craft Teachers and Social Education Craft Teachers were found to be having the same nature of duties, but different nomenclatures, in order to remove the technical errors, and to fill up the vacant posts as per the latest approved Recruitment Rules, all the persons holding posts in Social Education Wing in the pay scale of Rs.1200-2040/- were re-designated as Senior Social Education Teachers, and those in the scale of Rs.950-1500 were re-designated as Junior Social Education Teachers through Annexure R-2 colly, Resolution dated 20.03.1991. It was, therefore, submitted that later, in the year 2008, the applicant was rightly placed in the pay scale of Rs.4000-6000/-, which was the promotional scale of Senior Social Education Teachers. The respondents had submitted the correspondence of pay scales as follows:-
IV CPC Vth CPC VIth CPC Rs.950-1500 Rs. 3050-4590 Rs.5200-20200+ Rs.1900 Grade Pay Rs.1200-2040 Rs.4000-6000 Revised to Rs.5200-20200+ Rs.2400/- Grade Pay
11. It was, therefore, submitted that the applicant was initially appointed as Craft Teacher in the pay scale of Rs.950-1500 (IVth CPC) revised to that of Rs.3050-4590 (Vth CPC) and further revised to that of Rs.5200-20200 + Rs.1900/- GP (VIth CPC) though the other employees were initially appointed as Social Education Teacher (Craft) in the pay scale of Rs.1200-2040 (IVth CPC) revised to that of Rs. 4000-6000 (Vth CPC) and further revised to that of Rs.5200-20200 + Rs.2400/- GP (VIth CPC) and as such the applicant was granted Ist ACP in the next available scale of Rs. 4000-6000 (vth CPC) in the year 2008. It was, therefore, prayed that the OA has no merit, as the respondents have not acted arbitrarily and discriminatorily, and that none of the rights of the applicant under Article 14 of the Constitution of India had been violated, and it was prayed that the OA may be dismissed accordingly.
12. The applicant filed a rejoinder on 07.05.2012 more or less reiterating her contentions as raised in the OA. It was submitted that no document has been filed by the respondents, which may go to show that prior to 1991 there were two pay scales of Craft Teachers before the Resolution No.22 dated 20.03.1991 was passed by the concerned Committee of the Respondent-NDMC. It was admitted that there were two different posts namely, Craft Teachers and Social Education Teachers, but it was submitted that the respondents are trying to mislead this Tribunal by filing irrelevant documents regarding a distinction between Junior and Senior Education Teacher, and, therefore, it was prayed that since it is a matter of record that the applicant was granted a wrong pay scale of Rs.950-1500/- instead of the correct pay scale of Rs.1200-2040/- at the time of her appointment, the OA deserves to be allowed, and it was once again prayed that this Tribunal may direct the respondents to grant the applicant the correct pay scale of Rs.1200-2040/- from the date of her initial appointment on regular basis, and re-fix her pay accordingly, with all consequential benefits, and that the OA may be allowed with costs.
13. We have heard the case in detail, and have gone through the averments and the pleadings also in detail.
14. The case of the applicant is in respect of her salary fixation from the date of her initial appointment in 1988 onwards, though she claims to have learnt about the wrong fixation of her salary only when she sought information under the RTI Act on 02.12.2010, and the information was supplied to her on 24.12.2010. However, it is seen that in between also, in the year 2008, Office Order as at Annexure A-4 was issued, in which the applicants name appeared at Sl No.6, and it was mentioned in that order that Sl Nos. 1 to 5 were already working as Sr. Social Education Teachers, which was not indicated in front of the name of the applicant. There has been no averment on the part of the applicant that she had ever challenged the Office Order No. (P-735)/2322/JC-II/Edn Estt. II of April 2008 at Annexure A-4, which reads as follows:
NEW DELHI MUNICIPAL COUNCIL PALIKA KENDRA : NEW DELHI No.(P-735)/2322/JC-II/Edn.Estt.-II Date : 04.08.
OFFICE ORDER The following Jr. Social Edn. Teachers, Social Edn. Deptt. On having been selected and placed on panel approve by the Chairperson, N.D.M.C. for the post of Sr. Social Edn. Teacher in the scale of Rs.4000-6000 are promoted as Sr. Social Edn. Teacher in the scale of Rs.4000-100-6000 with immediate effect and posted in Social Edn. Deptt. against the available vacant posts.
Sh. Ashok Kumar Already working as Smt. Prem Kumari Bhalla Sr. Social Edn. Smt. Saroj Gupta Teacher on adhoc Smt. Sudesh Rani basis. Smt. Tasneem Shah Smt. Nirmal Kanta
Their pay will be fixed separately on their personal files. They may exercise their option for fixation of pay under F.R.22 1(a) 1 within one month of this office order. They will be on probation for a period of one year. Their relieving/joining reports be sent to this office urgently for further necessary action.
Sd/-
(S.C. Sharma ) ASSTT.SECRETARY (EDN.)
15. It is only through Annexure A-5 dated 01.01.2010 that the applicant had, for the first time, represented that her initial pay fixation itself was done wrongly, in the pay scale of Rs.950-1500, whereas the pay scale of Craft Teachers was Rs.1200-2040, which should have been given to her in the year 1988, and was given to her juniors, who were appointed afresh later, in the year 1992. It appears that it was for the first time in this representation that the applicant also questioned the grant of Ist ACP benefit to her in the pay scale of Rs.4000-6000/-, and she claimed that she should instead have been placed in the pay scale of Rs.4500-6500/-.
16. The factum of Sl. No.1 to 5 in the Office Order of April, 2008, already having been functioning as Sr. Social Education Teachers on ad hoc basis prior to the applicant has never been questioned by her. In any case, it was ordered in this Office Order that all the Junior Social Education Teachers, who had been selected and placed on the panel for the post of Senior Social Education Teachers, are promoted and posted against the available vacant posts, and that their pay will be fixed separately on their personal files, after they exercise their option for fixation of their pay under F.R. 22 (I) (a) (1).
17. In this connection, the issues which arise are as to whether the OA is barred by limitation, and as to whether the pay anomaly has arisen as a consequence of the option exercised by employees in terms of F.R. 22 (I) (a) (1) saving clause, and in such circumstances, can a person, claiming to be senior, claim stepping up of pay.
18. It is obvious that the applicant has never questioned the initial fixation of her salary in 1988 till the year 2010 (Annexure A-5). She has not also questioned the seniority of the five people shown above her in Annexure A-4 of April 2008, to have been promoted Senior Social Education Teacher on ad hoc basis already, prior to her. Therefore, it is clear that at this distance of time, the applicant cannot be allowed to claim that her fixation of seniority was done wrongly initially itself, when she was appointed in the year 1998.
19. As was held by the Honble Apex Court in Ex. Capt. Harish Uppal vs. Union of India, JT 1994 (3) 126, delay defeats equity, and the Court should help those who are vigilant, and not those who are indolent. Also, in the cases of S.S. Rathore vs. State of M.P. AIR 1990 SC 10 and D.C.S. Negi vs. Union of India and Ors. [S.L.P. (Civil) CC No. 3709 of 2011], the Honble Apex Court has mandated this Tribunal to first consider the issue of limitation under Section-21 (2) of the Administrative Tribunals Act, 1985. Further, the Honble Apex Court has in Ratam Chandra Sammanta & Ors. vs. Union of India & Ors. JT 1993 (3) SC 418 held that delay deprives the person of the remedy available in law. A person who has lost his remedy by lapse of time, loses his right as well.
20. It appears to us that in this particular case, the applicant has indeed been sleeping over her rights, if any, and did not agitate them in time, even when an opportunity was first available to her in 1988, when she was initially appointed, and later on also, at least in April 2008, when Annexure A-4 was issued. She has chosen to file this OA now on the sole basis of claiming to have received information under the RTI Act, 2005. Therefore, prima-facie it appears that the claim of the applicant is barred by limitation.
21. Even on merits also, we may borrow the following comments from the judgment of the same Bench in OA No.4122/2011 pronounced on 12.02.2013 Smt. Sanju Gupta vs. Govt. of NCT of Delhi, which states as follows:-
5. As has been provided in G.I, M.F. O.M. No.F.F.2 (78)-E.III (A)/66 dated 4.02.1966, as a result of application of FR 22-C [ later FR 22 FR 22 (I) (a)(1) and now GID (1) below FR 22 (1)] (G.I. M.F.O.M.No. 1(14)-E-III/89 dated 16.06.1989] in order to remove the anomaly of a Government servant promoted or appointed to higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, the pay of senior officer in higher post was required to be stepped up to a figure equal to the pay as fixed for junior officer in that higher post. The stepping up was to be done with effect from the date of promotion or appointment of the junior officer and was subject to the following conditions:-
Both the junior and senior belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
The anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. Said position was reiterated in note 9 below Rule 7 of CCS (RP Rules, 1997, which read as under:-
Such stepping up is permissible if the anomaly has arisen as a result of the application of provisions of FR 22-C (now 22 (1) (a) (1) or any other rules or order regulating pay fixation on such promotion in the revised scale vis-a=vis the fulfillment of other conditions mentioned therein. The anomaly can be said to exist only if a senior employee, drawing equal or more pay than his junior in the lower post and promoted earlier starts drawing less pay than such junior promoted later on regular basis. Further, two employees are said to be drawing equal pay if they have been drawing pay at the same stage with same date of increment. In the case the junior has been drawing the same pay with date of increment earlier than senior, then senior cannot be said to have been drawing equal pay and hence no anomaly.
Instances have come to notice where the pay of a senior Government servant has been allowed to be stepped up equal to junior even though there was no anomaly because the senior had no occasion to draw more or equal pay than junior in the lower post. Such stepping up wherever allowed should be rectified.
2. It has also come to notice that in certain cases, where anomaly arose not because of application of Rule 22-C [ Now FR 22 (1) (a)(1)] or any other rule/order regulating pay fixation on promotion, pay has been stepped up under Note 7 below Rule 7 of CCS (RP) Rules, 1986. These are the cases where the junior Government servant started drawing enhanced pay in lower post itself because of increments under Provisos 3 and 4 of Rule 8 of CCS (RP) Rules, 1986 and then on promotion his pay fixed under FR 22-C ( Now FR 22 (1) (a) (1) ] but more pay as a result of increments in lower post under Provisos 3 and 4 of Rule 8 ibid. Note 7 below Rule 7 ibid is not attracted, and stepping up of pay under these provisos is not in order.
3. Nevertheless, the Government is of the view that even if the anomaly is as a result of increments in terms of Provisos 3 and 4 of Rule 8 of CCS .) Rules, 1986, combined with application of FR 22-C ( Now FR 22 (1)(1)(1)] anomaly may be rectified by stepping up the pay of senior promoted before 1-1-1986, equal to junior promoted on or after 1-1-1986 subject to fulfillment of following conditions:-
both the junior and the senior Government servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre.
The pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical, and The senior Government servant promoted before 1-1-1986, has been drawing equal or more pay in the lower post than his junior promoted after 1-1-1986.
4. Further, it has also been decided that where a senior Government servant was promoted after reaching the maximum of the pre-revised scale of the lower post before 1-1-1986, he should be deemed to have been drawing equal pay vis-`-vis his junior, who was also drawing pay at the maximum on that date (viz., date of promotion of senior) and promoted after 1-1-1986. From the aforementioned, it is clear that stepping up could be allowed if only on the date of promotion the junior starts drawing higher pay, but if the junior starts getting higher pay from the date of next increment due to him as a consequence of option given by him/her to fix his pay in promotional grade, the pay of the senior may not be stepped up. In G.I.M.F.,O.M.No.1(14)-E.III/89 dated 16.06.1989, it is provided that stepping up is permissible only if a senior employee drawing equal or more pay than his junior in the lower post and promoted earlier and starts getting less pay than his junior later on regular basis. In terms of said OM the two employees are said to be drawing equal pay if they have been drawing pay at the same stage with same date of increment. In the case of junior has been drawing the same pay with date of increment earlier than senior, than senior cannot be said to have been drawing equal pay and hence no anomaly.
6. In view of the aforementioned, it is held that once Smt. Asha Rani started drawing higher basic pay than the applicant on account of option exercised by her for fixation of pay in the pay of TGT from the date of next increment, applicant cannot be held entitled to stepping up of her pay.
7. In OA No. 1763/2007 decided on 4.02.2008 (Smt. Santosh Kumari Goel Vs. GNCT of Delhi), it was not so that junior started higher pay periodically on account of exercised of option for fixation of pay from the date of next increment. In the said case Mrs. Santosh Kumari Goel (applicant) was drawing her higher pay in the pay scale (pre-revised) of Rs.1200-2040 prior to her promotion to the post of TGT while her junior counterpart, Mrs.Archala Aggarwal, was drawing her pay in the pay scale of Rs.1400-2600 being granted senior pay scale w.e.f. 24.02.1994 prior to her promotion of TGT. It was in view of this fact that Smt. Santosh Kumari Goel was granted stepping up of pay. In the present case also it appears so that before her promotion w.e.f. 8.09.1999, Smt Asha Rani was granted senior scale as Assistant Teacher (Rs.1400-2600) from 28.11.1995. It also appears that Smt. Asha Rani got benefit of ACP w.e.f. 28.11.2007, i.e. after revision of pay scale pursuant to 6th Pay Commissions recommendation. There might be other reasons resulting in anomaly of pay of applicant and Smt. Asha Rani. However, no pleadings have been exchanged by the parties on the said issue. It is not for this Tribunal to diagnose the issue on behalf of the parties and adjudicate the same, more so for the reason that such diagnoses may be incorrect also. However, if the applicant believes that her junior started drawing higher pay on account of her getting pay in senior scale w.e.f. 28.11.1995 or on account of grant of ACP w.e.f. 28.11.2007, it would be open to her to work out her rights separately in accordance with rules and instructions on the subject.
8. As far as the plea of limitation taken by respondents is concerned, the fixation of pay is recurring cause of action and the limitation would apply only to arrears of pay. However as has been concluded hereinabove, we find force in the submission of the respondents that in that event of junior drawing higher pay on account of option exercised by him/her in terms of provision of FR 22 (1) (a)(1), applicant would not be entitled to stepping up of her pay. OA is dismissed. No costs.
22. Here, in this case also, the applicant has not been able to bring on record as to how the exercise of option allowed to her under F.R. 22 (I) (a) (1) through Annexure A-4, issued in April 2008, has impacted the salary, which was being paid to her. Therefore, it appears that the applicant has also not been able to make out a case for claiming benefit of stepping up of her pay under the Next Below Rule. In the case of Union of India and Another vs. R. Swaminathan & Ors. 1997 SCC (L&S) 1852, in the judgment delivered on 12.09.1997, the Honble Apex Court, speaking through Justice Sujata V. Manohar, had laid down the law that when juniors were officiating on a promotional post on account of their local adhoc promotions, while seniors were not so officiating before their regular promotion, by operation of proviso to FR 22, the juniors already officiating on a promotional post were rightly given higher pay than their seniors, who were not so officiating on a promotional post, and it was not an anomaly. It was also held that in such cases higher pay of juniors was not amenable to application of FR 22-C/FR 22 (I) (a) (1). It was held by the Honble Apex Court that pay is not a criterion of seniority, and seniors are not entitled to seek stepping up of their pay with reference to the pay of their juniors, without being able to make out a legal claim for their case.
23. Further, in the context of applicability of FR 22 (I) (a) (1) the Honble Apex Court had in the case of Union of India vs. Ashoke Kumar Banerjee 1998 (2) AJT 661 (SC), held that for determining the applicability of FR 22 (I) (a) (1), it was not merely sufficient that officers get a promotion from one post to another involving higher duties and responsibilities, but the other condition must also be satisfied, that he should move from a lower pay scale attached to a lower post, to a higher scale of pay, attached to the higher post. When the ratio of this judgment is applied to the case of the applicant herein, she had got her promotional benefit in April 2008 through Annexure A-4, and also an entitlement to apply for an option under FR 22 (I) (a) (1), and, therefore, she cannot now be allowed to assail the fixation of her pay beyond what had been fixed as a result of the fixation of her pay after the exercise of an option by her under Annexure A-4.
24. It is only a fortuitous circumstance that the applicant finds herself in a pay scale for which she was appointed in the year 1988, and which she failed to challenge till the filing of this OA. However, as held by a Coordinate Bench at Hyderabad Bench of this Tribunal, in the case of A. Venkatmuni vs. Union of India (OA No.1917/2000 decided on 06.09.2001), that there are several fortuitous circumstances which are common in service, and that fortuitous circumstances are a part of ones service career. Therefore, in this particular case, it appears that the applicant is not entitled to any relief from this Tribunal, both on account of delay and laches on her own part, as well as on merits also. The OA is, therefore, rejected, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.