Central Administrative Tribunal - Delhi
Ashok Malik S/O Bhim Singh Malik vs Union Of India Through on 26 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2524 of 2011 Misc. Application No.1787/2011 with Original Application No.2654 of 2011 This the 26th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) O.A. No.2524/2011 1. Ashok Malik S/o Bhim Singh Malik, R/o B-704, Antriksh Apartment, Sector-4, Dwarka, New Delhi-75. 2. Asif Mohd. Ali S/o Mohd. Sharful Haq, R/o1054, Sector-8, R.K.Puram, New Delhi-110022. 3. Pramod Singh Kushwa S/o Rajendra Singh, R/o E-9, Type IV, New Police Lines, Kingsway Camp, New Delhi-09. 4. Amit Roy S/o V. N. Roy, R/o 6478, B-9 Vasant Kunj, New Delhi-110070. 5. Mangesh Kashyap S/o A. N. Jha, R/o 255, Laxmi Bai Nagar, New Delhi-23. 6. Shivender Kant Tiwari S/o S. K. Tiwari, R/o 2384, Sector-C, Pocket-2, Vasant Kunj, New Delhi-70. 7. Sanjay Bhatia S/o N. D. Bhatia, R/o C-56, Malviya Nagar, New Delhi-67. 8. Dinesh Kumar Gupta S/o J. R. Gupta, R/o D-7/7217, Vasant Kunj, New Delhi-70. 9. Varsha Sharma W/o Ajay Sharma, R/o Flat No.6, Type-IV, DCP Office Complex, Hauz Khas, New Delhi-16. 10. Rajender Singh Sagar S/o Dharam Singh Sagar, R/o Flat No.8, Type-IV, DCP Office Complex, Hauz Khas, New Delhi-16. 11. Dr. Joy Tirkey S/o Jaipal Tirkey, R/o V/D-4, Police Colony, Pitampura, Delhi-34. Applicants ( By Ms. Jyoti Singh, Sr. Advocate and with her Shri Ajesh Luthra, Ms. Bajwa, Shri Padma Kr. S., Advocates ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Commissioner of Police, Delhi Police Headquarters, I.P.Estate, MSO Building, New Delhi. 3. Shri L. N. Rao, R/o C-4/4013, Vasant Kunj, New Delhi-110070. 4. Shri Ravi Shankar, R/o 1637, Sector-23, Gurgaon Haryana. Respondents ( By Shri K. M. Singh for Respondents 1 & 3; Shri Naresh Kaushik with Ms. Joymoti Mize for respondents 3 & 4, Advocates ) O.A. No.2654/2011 1. Ashok Malik S/o Bhim Singh Malik, R/o B-704, Antriksh Apartment, Sector-4, Dwarka, New Delhi-75. 2. Asif Mohd. Ali S/o Mohd. Sharful Haq, R/o1054, Sector-8, R.K.Puram, New Delhi-110022. 3. Pramod Singh Kushwa S/o Rajendra Singh, R/o E-9, Type IV, New Police Lines, Kingsway Camp, New Delhi-09. 4. Amit Roy S/o V. N. Roy, R/o 6478, B-9 Vasant Kunj, New Delhi-110070. 5. Mangesh Kashyap S/o A. N. Jha, R/o 255, Laxmi Bai Nagar, New Delhi-23. 6. Shivender Kant Tiwari S/o S. K. Tiwari, R/o 2384, Sector-C, Pocket-2, Vasant Kunj, New Delhi-70. 7. Sanjay Bhatia S/o N. D. Bhatia, R/o C-56, Malviya Nagar, New Delhi-67. 8. Dinesh Kumar Gupta S/o J. R. Gupta, R/o D-7/7217, Vasant Kunj, New Delhi-70. 9. Varsha Sharma W/o Ajay Sharma, R/o Flat No.6, Type-IV, DCP Office Complex, Hauz Khas, New Delhi-16. 10. Rajender Singh Sagar S/o Dharam Singh Sagar, R/o Flat No.8, Type-IV, DCP Office Complex, Hauz Khas, New Delhi-16. 11. Dr. Joy Tirkey S/o Jaipal Tirkey, R/o V/D-4, Police Colony, Pitampura, Delhi-34. 12. Harender Singh S/o Ram Bachan Singh, R/o 12-LF Tansen Marg, Bengali Market, New Delhi. Applicants ( By Ms. Jyoti Singh, Sr. Advocate and with her Shri Ajesh Luthra, Ms. Bajwa, Shri Padma Kr. S., Advocates ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Commissioner of Police, Delhi Police Headquarters, I.P.Estate, MSO Building, New Delhi. 3. Shri L. N. Rao, R/o C-4/4013, Vasant Kunj, New Delhi-110070. 4. Shri Ravi Shankar, R/o 1637, Sector-23, Gurgaon Haryana. Respondents ( By Shri K. M. Singh for Respondents 1 & 3; Shri Naresh Kaushik with Ms. Joymoti Mize for respondents 3 & 4, Advocates ) O R D E R Justice V. K. Bali, Chairman:
O.A. No.2524/2011 Shri L. N. Rao and Shri Ravi Shankar, arrayed in the present Original Application as respondents 3 and 4 respectively, started their career as Sub Inspectors in Delhi Police. For their outstanding performance in discharge of duties, they earned two out of promotions one as Inspector and the other as Assistant Commissioner of Police. The 3rd respondent was promoted to the post of ACP against a non-cadre post on purely temporary basis vide order dated 14.2.1995. As per the order aforesaid, he was neither to be called a DANIPS officer nor was to be eligible to claim seniority in DANIPS. He was to be considered for appointment to Grade-II of DANIPS by promotion in his own turn in due course of time. The 4th respondent vide order dated 21.11.1995 was promoted to the post of ACP on same terms and conditions as the 3rd respondent. When despite the respondents aforesaid carrying out their duties as ACP, and having been given pay scale initially admissible to ACP, they were not getting the non-functional grade admissible after putting in four years of service in the post, they came to this Tribunal by way of two Original Applications bearing OA Nos.162 and 170/2008, only complaining about denial of non-functional grade which was being made admissible to their counterparts. The relief to the extent as mentioned above was granted by this Tribunal vide orders dated 14.1.2009. Even though, our order has been challenged by the Union of India in the Honble High Court of Delhi in WP(C) 11908/2009, which is pending adjudication, vide orders dated 6.7.2010, direction has been given to the Union of India to implement the order passed by this Tribunal, subject to further orders to be passed in the writ petition. Vide order dated 11.8.2010, in compliance of the order passed by this Tribunal and the interim order dated 6.7.2010 passed by the High Court, the 3rd and 4th respondents were given the non-functional scale of Rs.8000-13500 notionally with effect from 14.2.1999 and 21.11.1999 respectively with actual benefit thereof accruing from 31.12.2007. In purported compliance of the same very orders, impugned order dated 18.2.2011 has now been passed to include the 3rd and 4th respondents in the seniority list of DANIPS officers and giving them seniority over and above the applicants Ashok Malik and others. The applicants in this Original Application filed by them under Section 19 of the Administrative Tribunals Act, 1985 would take serious exception to the said order.
2. Ms. Jyoti Singh, learned Senior Advocate representing the applicants, would contend that on one hand, the official respondents have challenged the orders of this Tribunal granting non-functional grade to the 3rd and 4th respondents, whereas on the other hand, they would give to the said respondents something which was not even prayed for by them in the OA, and further that if the orders of the Tribunal were to be implemented as ordained by the Honble High Court, the official respondents first proceeded in correct direction when they passed order dated 11.8.2010 clearly stating that the pay scale granted to 3rd and 4th respondents would not entitle them to claim any seniority in DANIPS, but in volte face, on the basis of the same very orders, included them in the seniority list of DANIPS, and that too over and above some of the applicants without even putting them to notice. The learned counsel in her endeavour to demonstrate that the impugned order cannot sustain, raised the contentions as noted in our order dated 15.7.2011 while issuing notice. The order aforesaid reads, thus:
Inter alia, contends that this Tribunal while disposing of OA No. 162/2008 and OA No. 170/2008 on 14.01.2009 had only granted non-functional grade to L.R. Rao and Ravi Shankar, who have been arrayed as respondents in present Original Application. There was no issue as regards seniority nor the same was gone into. Against the order aforesaid a writ petition came to be filed wherein Honble Bench of High Court while dealing with the matter directed the respondents to first implement the order. The same was implemented, vide orders dated 11.08.2010 by which the respondents aforesaid have only been given non-functional grade notionally w.e.f. 21.11.1999 and 14.02.1999 whereas the actual benefit shall accrue to them w.e.f. 31.12.2007. It is specifically mentioned in the order that pay scale of Rs.8000-13,5000 granted to them on ex cadre basis was personal to them, and further that this would not entitle them to make any claim for seniority in the DANIPS and it would be subject to further orders which may be passed by the High Court in the writ petition or by the higher Court.
3. The same very writ came up for hearing before the Honble High Court on 06.07.2010, when C.Ms were disposed of directing the implementation of the order impugned in the writ petition, which would be subject to further orders which may be passed in the wit petition. The writ is still pending. The orders passed in the Civil Miscellaneous Applications read as follows:-
CM No.12041/2009 & CM No. 15093/2009
1. A perusal of the impugned order shows that the parties misled the Tribunal as if WP (C) No. 4582/1999 is still pending in this Court. The fact is that the said writ petition stands disposed of way back in the year 2008.
2. It is unfortunate that the petitioner i.e. the Union of India who is a respondent in the said writ petition did not give the correct position to the Tribunal.
3. Be that as it may, the applications stand disposed of directing that the implementation of the impugned order would be subject to further orders which may be passed in the writ petition, meaning thereby, that action taken pursuant to the WP(C) No.11908/2009 impugned decision would be subject to the orders passed by this Court.
4. On the basis of the interim order dated 06.07.2010, it is urged that it does not call for conferring any additional rights to the respondents. A fresh order has been passed wherein the respondents named above have been given seniority, which would be over and above the applicant. Counsel further contends that the writ petition bearing No. 4625-26/2005 referred to in the impugned order dated 18.02.2011 is still pending and the orders passed therein are only to the effect that the existing seniority of 2005 would be operative. In the seniority list of the year 2005, the respondents named above do not figure anywhere.
5. On the basis of the contentions as made above, it is urged by learned senior counsel representing the applicant that there is no question of according seniority to the respondents.
6. Issue notice to the respondents returnable on 22.07.2011.
7. A copy of this order be sent to the respondents along with the summons so that they may be prepared on the points involved in the case as have been raised by the learned counsel as noted above.
8. Counsel for the applicant presses for interim relief, which is not to promote the respondents named above. We would rather issue short notice to the respondents and deal with the interim relief sought for after hearing them. Inasmuch as, a short date is given, the process would be DASTI only.
3. Pursuant to notice issued by this Tribunal, whereas one counter has been filed on behalf of the 1st respondent, another has been filed on behalf of the 3rd and 4th respondents. There would be no need to refer to the pleadings made in the counter replies in view of the controversy that came to be limited during the course of arguments. Whether the impugned order could be passed in purported compliance of the orders passed by this Tribunal in OA Nos.162 and 170/2008 decided on 14.1.2009 and the interim order dated 6.7.2010 passed by the High Court, reproduced above, is the only question debated for adjudication, and in our view rightly so, as there would be no need to go into the relevant rules at this stage to find out the validity of induction of the 3rd and 4th respondents into DANIPS and their seniority to be fixed vis-`-vis the applicants. This question may be gone into if they may seek fixation of their seniority in DANIPS from the official respondents by making representation on that behalf, wherein decision may be taken after putting the applicants to notice.
4. Coming to the only issue as mentioned above, we may first refer to the promotion orders of respondents 3 and 4 on the post of ACP dated 14.2.1995 and 21.11.1995 respectively. We may reproduce only the order dated 14.2.1995 as both the orders are identically worded. The same reads, thus:
Lieutenant Governor, Government of National Capital Territory of Delhi is pleased to promote Inspector L. N. Rao No. D-I/398 on ad hoc basis to the post of Assistant Commissioner of Police (against non-cadre) on purely temporary basis with immediate effect. Inspector L. N. Rao No. D-I/398 will neither be called a DANIPS officer nor be eligible to claim the seniority in DANIPS. He will be considered for appointment to Grade-II of DANIPS by promotion in his own turn in due course of time. It would be seen from the orders passed in OA Nos.162 and 170/2008 filed by the 3rd and 4th respondents, that the only contention raised therein was that even though, the applicants had got the pay scale initially admissible to ACP on their appointment to the said post, they were not getting the non-functional grade admissible to ACP who had put in four years of service in the post, on the sole ground that their promotion to the said post was on out of turn basis and, therefore, they were not in the cadre of the service, to whom alone such non-function grade would be applicable. We have noted at the outset of our judgment that the only question of some significance that needs adjudication is as to whether denial of non-functional grade to the applicants admissible to their counter-parts would be illegal and/or unjustified. The prayer made by them was for issuance of writ in the nature of mandamus directing the respondents to grant them the benefits of non-functional grade of Rs.8000-13500 by fixation of their pay in the non-functional grade with effect from the date of completion of four years from the date of appointment to the post of ACP. The applicants specifically pleaded in their rejoinder that they were not seeking what had not been allowed to them in terms of their promotion order, i.e., seniority in DANIPS, but were only asking for the pay which was admissible after rendering four and eight years of service. We may quote the pleading made by them, mention whereof has been made in our order, thus:
It is further pleaded that the applicant is not seeking what has not been allowed to him in terms of his promotion order, i.e., seniority in DANIPS; he is only asking for the pay which is admissible after rendering four and eight years of service. Shri Naresh Kaushik, learned counsel representing the applicants in the OAs aforesaid (now respondents 3 and 4) raised three-fold contentions before us, which have been noted in para 11 of the judgment, which read as follows:
11. Shri Kaushik, learned counsel representing the applicants, has raised three-fold contentions before us. It is first urged by the learned counsel that if the DANIPS Rules may envisage appointment to the post of ACP for both cadre and non cadre/ex cadre posts, those appointed on non cadre or ex cadre posts cannot be discriminated in the matter of pay scales. The second plea of the learned counsel is that while discriminating in the matter of pay scales pertaining to persons equally situate, respondents have violated provisions of Articles 14 and 16 of the Constitution, and lastly, that in any case, if a person is made to work on a particular post, he has to be given emoluments commensurate/admissible to the said post, irrespective of his posting thereat, be it temporary, officiating, ad hoc or even simply to look after the duties of the said job. In para 16 of the judgment, we have clearly confined the relief to the applicants to grant non-functional grade of Rs.8000-13500 notionally from four years of completion of service by them on ex-cadre posts, but actual benefits thereof were to accrue to them w.e.f. 31.12.2007. In ultimate analysis, the directions that came to be issued, read thus:
We thus confine the relief to the applicants to grant non-functional grade of Rs.8000-13500 notionally from four years of completion of service by them on ex-cadre posts, but actual benefit thereof shall accrue to them w.e.f. 31.12.2007. It may be recalled that the prayer of the applicants is also the same even though, it has been wrongly mentioned that vide notifications dated 1.2.2007 and 19.10.2007, the actual benefit has been granted from 1.1.1996. The orders would rather reveal that the benefit of non-functional grade of Rs.8000-13500 was accorded to Grade-I (DASS) employees, even though with retrospective effect from 1.1.1996, but the same was on notional basis and not on actual basis. Insofar as, prayer of the applicants for the scale admissible after eight years service is concerned, the same, as would be reflected from the pleadings, was made admissible with effect from 2003. The pay scale admissible after eight years of service in next higher grade is selection grade. The same cannot be automatically granted to the applicants. However, a direction has to be issued, which we hereby do, that the respondents would consider the case of the applicants for grant of the next higher grade after completion of eight years of regular service, and if the applicants are found fit for the next higher grade, the same too would be fixed notionally after eight years of service, which would be effective from the same date, i.e., 31.12.2007. Let the directions as issued above be complied with by the respondents as expeditiously as possible and preferably within a period of three months from today. In the facts and circumstances of the case, costs of this litigation are made easy.
5. The interim orders passed by the High Court have since already been reproduced hereinbefore, and we may only mention that the direction could be to implement our order as it was, and the same was only as regards grant of non-functional grade to respondents 3 and 4. Official respondents, after the interim orders passed by the High Court, as mentioned above, proceeded in correct direction when they passed orders dated 11.8.2010. The said order reads as follows:
In terms of the interim order dated 6th July, 2010 of the High Court of Delhi in WP (C) No.11908/2009 and 11944/2009, the non functional scale of Rs.8,000-13,500 is granted to the following officers notionally w.e.f. 21.11.1999 and 14.02.1999 respectively, but actual benefit thereof shall accrue with effect from 31.12.2007.
S.N. Name of the officer (S/Shri) Presently posted with 1 Ravi Shankar Delhi Police 2 L. N. Rao Delhi Police
2. The pay scale of Rs.8000-13500/- granted to them will be on ex-cadre basis and personal to them. Further, this would not entitle the officers to any claim for seniority in DANIPS and will be subject to further orders which may be passed by the High Court in the writ petitions or by the higher Court.
3. The Govt. of NCT of Delhi/Delhi Police are requested to ensure that the aforesaid officers continue to remain free from vigilance angle before placing them in the scale of pay of Rs.8000-13500. The impugned order that has now been passed, reads as follows:
In compliance of the order dated 6.07.2010 passed by the Honble High Court of Delhi in Writ Petition No.11908/2009 filed by this Ministry and after taking into consideration the advice of the Department of Personnel and Training and Ministry of Law, it has been decided to include the following officers in the seniority list of DANIPS officers as per the details given below S.N. Name of the officer Position in the seniority list prepared in compliance of the Directions of the Honble High Court of Delhi in W.P. No.4625-26/2005 1 Shri L. R. Rao Sl. No.479 (Immediately after Shri Arjun Singh and immediately before Shri Deepak Purohit) 2 Shri Ravi Shankar Sl. No.490* (immediately after Shri Norbu Tshering and immediately before Shri Rajinder Singh Bindra) *Sl. No.489 in the actual list.
2. This is, however, subject to final order in Writ Petition No.11908/2009 filed by this Ministry and the outcome of W.P. No.598/2004 pending in the High court of Delhi at New Delhi.
3. This issues with approval of competent authority.
6. Having heard the learned counsel representing the parties and with their assistance examining the records of the case, we are convinced that the impugned order based upon our orders dated 14.1.2009 in OA Nos.162 and 170/2008 and the interim order dated 6.7.2010 passed by the High Court in the writ carried against the order aforesaid, cannot possibly sustain. There was no question debated or adjudicated upon as regards induction of respondents 3 and 4 into DANIPS and fixation of their inter se seniority between them and the applicants. The only argument raised by Shri Naresh Kaushik, learned counsel representing the 3rd and 4th respondents is that the order has not been passed on the dint of order dated 6.7.2010 passed by the Honble High Court, but it is based on the order passed in WP No.4625-26/2005, mentioned in the impugned order itself. There is some remote reference to sustain the order on the basis of WP No.598/2004 stated to be pending in the High Court of Delhi. We had an occasion to go through the decision of the High Court in WP (C) No.4625-26/2005 decided on 10.9.2005, annexed with the reply filed on behalf of the 3rd and 4th respondents. Perusal of the same would reveal that a writ came to be filed in the High Court challenging order dated 1.2.2005 passed by the Tribunal in OA No.229/2005 which was filed by the petitioners in the writ petition seeking quashing of order dated 27.1.2005 whereby the private respondents arrayed therein were given look after charge of the post of Additional Deputy Commissioner of Police. When confronted with the position that the controversy involved in the writ petition aforesaid would have no relevance or connection whatsoever with the controversy involved in the present case, no further arguments were raised based upon the decision of the High Court in the said writ petition. So is the position as regards WP No.598/2004. We may, however, mention that insofar as, the official respondents are concerned, their clear stand reflected in the counter reply is that the impugned order has been passed in compliance of the interim order dated 6.7.2010 passed by the High Court, and order dated 14.1.2009 passed by this Tribunal in OA Nos.162 and 170/2008.
7. Ms. Jyoti Singh, learned Sr. Advocate has handed over to us an order dated 31.5.2010 recorded in CM No.7589/2010 in WP(C) No.598/2004. The same reads, thus:
Issue notice to the non-applicant/petitioner. Mr. A. K. Bhardwaj accepts notice on behalf of the Union of India and seeks time to file the reply. Learned counsel for the petitioner states that Union of India is entitled to make regular promotions on the basis of seniority list of 13.10.2005. However, it may be subject to outcome of the present writ petition. Considering the facts and circumstances and various contentions raised, the petitioner/UOI shall be entitled to consider the eligible respondents for regular promotion according to seniority list of 13.10.2005. However, promotion, if any, shall be subject to the outcome of the present petition and on account of any regular promotion granted to the respondents, the respondents shall not be entitled to claim any special equities. Learned counsel for the petitioner/non-applicant also seeks time to file the reply. Reply be filed within four weeks. Rejoinder, if any, before the next date of hearing. List on 13th July, 2010. It is urged that the respondents 3 and 4 were nowhere in the seniority list of the year 2005. As mentioned above, it could not be disputed that the proceedings in 4625-26/2005 and the interim order dated 31.5.2010 in WP(C) No.598/2004 would have no relevance in the controversy involved in the present case.
8. In view of the discussion made above, the Original Application is allowed. The impugned order dated 18.2.2011 is quashed and set aside. Respondents 3 and 4 would, however, be at liberty to seek their induction and seniority in DANIPS from the official respondents by making representation, if they may so choose, and if such a representation is made, all concerned DANIPS officers shall be put to notice and orders that may be passed ultimately would reflect reasons for taking decision either way. There shall, however, be no order as to costs.
9. During pendency of this OA, another Application bearing OA No.2654/2011 by the same very applicants came to be filed, wherein challenge is also to our orders recorded in OA Nos.162 and 170/2008 as well. When questioned as to what was the necessity of filing the OA, it is stated that the same has been filed as a matter of abundant caution that if this Tribunal may come to the conclusion that the impugned orders could be passed on the basis of the orders passed by this Tribunal, wherein the applicants were not party respondents, the same may need to be re-visited, even though by a larger Bench. Since we have quashed the impugned order dated 18.2.2011, this OA would be rendered infructuous and is disposed of as such.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/