Central Administrative Tribunal - Delhi
Subhash Chandra vs Union Of India on 26 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi T.A.No. 50/2010 This the 26th day of August 2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Subhash Chandra S/o Shri Masih Charan R/o WZ 1503, Baggichi, TAulsi Ram Nangal Raya, Delhi-110046. Applicant (By Advocate: Sh. Praveen Kumar) Versus 1. Union of India Through its Secretary, Ministry of Health and Family Welfare, (Department of Indigenous System of Medicine), Red Cross Building, New Delhi-110001. 2. Morarji Desai National Institute of Yoga, Through its Director, 68, Ashok Road, New Delhi. 3. Darshan Singh LDC, Group-C, Morarji Desai National Institute of Yoga, 68, Ashok Road, New Delhi-110001. Respondents (By Advocate: Sh. Rakesh Gosain) O R D E R
Honble Shri George Paracken:
This case was transferred from the Honble High Court of Delhi by its order dated 13.4.2010 in CWP No.6133/2002 after the respondents Institute has been brought under the jurisdiction of this Tribunal in service matters. During the pendency of the aforesaid writ petition before the Honble High Court itself, Sh. Darshan Singh, LDC has got himself impleaded as a respondent.
2. Earlier this Tribunal, vide its order dated 19.10.2010, has decided the matter invoking Rule 15 of the CAT Procedure Rules, 1987. By the said order, this TA was dismissed. The applicant challenged the aforesaid order before the Honble High Court vide WP (C) No.4162/2011 on the ground that his counsel did not have the opportunity to address the arguments on facts before the Tribunal. Considering the aforesaid submission, the Honble High Court, vide its order dated 3.6.2011 set aside the earlier order of this Tribunal and remanded the case for hearing the matter afresh on merits.
3. The applicant has sought the following reliefs in this case:
a) issue writ(s), order(s)/ direction(s) in the nature of mandamus directing the respondents to promote the petitioner to the post of Group `C service with all consequential benefits w.e.f. 17.5.1991 since when the petitioner has been performing the job of Group `C post.
b) issue/pass appropriate directions/ orders as this Honble Court may deem fit and proper in the facts and circumstances of the case.
4. The facts in this case are that the applicant was appointed as a Kitchen servant by respondent No.2 in the scale of pay of Rs.196-332 w.e.f. 1.1.1983 and while he was working in the said capacity, the respondents have issued Annexure P-3 office order dated 17.5.1991 stating that henceforth he will assist the Accounts Section till further orders but without any extra remuneration/honorarium. Again, vide Annexure P-5 order dated 25.5.1993, when the work in the Section was re-distributed amongst the staff members, the applicant was assigned the work of maintenance of day book, ledger account, bank reconciliation and preparation of expenditure details. According to the applicant, since 17.5.1991 he has been discharging the work of the Lower Division Clerk but the respondents, in utter violation of the principles of equal pay for equal work, are paying him only the salary payable to a Group D employee. He has also submitted that after working for over 12 years continuously without any break he is eligible to be considered for absorption for the post of LDC with retrospective effect from 17.5.1991 in terms of the recruitment rules for the post of LDC/Clerk-cum-Typist/Hindi Typist according to which 50% of the vacancies have to be filled up by promotion from amongst the qualified Class-IV employees of the Institute.
5. In support of his aforesaid contention, he has relied upon the judgment of the Apex Court in Harjeet Singh Vs. Union of India and others, 1980 (3) SCC 205 wherein it has been held that an employee who starts continuous officiation in a senior post from a date earlier than the other may gain seniority. The relevant part of the said judgment reads as under:
17. ...It must, therefore, necessarily follow that an officer who is junior to another in the State Police Service but, who starts continuous officiation in the senior post from a date earlier than the other may frog-leap and gain seniority by the consequential assignment of an earlier year of allotment. There is nothing in the Indian Police Service (Regulation of Seniority) Rules, which has the effect of depriving an officer the benefit of continuous officiation on the ground that someone senior to him in the State Police Service did not so continuously officiate. Nor are we able to discover any other rule in the innumerable Rules and Regulations governing the recruitment, appointment and Regulation of Seniority of officers of the Indian Police Service which is designed to deprive an officer the benefit of continuous officiation in a senior post.
6. He has also relied upon the judgment of the Apex Court in Selvaraj Vs. Lt. Governor of Island, Port Blair and others, (1998) 4 SCC 291 where it has been held that if an employee is required to look after duties of higher post, his pay will be drawn against higher post under GFR 77. The relevant part of the said judgment reads as under:
3. ....... It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.
7. The respondent No.2 in its reply, has submitted that the applicant himself has volunteered to do the work in Accounts Branch without any extra remuneration and honorarium and accordingly he was posted to assist the Accounts Section vide office order dated 17.5.1991. Further, it was made clear in the said office order itself that he will not be paid extra remuneration/honorarium which he had accepted without any demur. As regards the work relating to diary and dispatch was concerned, according to them, it was assigned to the applicant only for a period of two months and it was to assist in Establishment Section as the concerned person was entrusted with some other official work. Further, the work assigned to the applicant, vide orders dated 17.5.1991 and 25.5.1993, were withdrawn vide office order dated 7.10.2002 and he has been assigned his original duties attached to the post of Kitchen servant. However, when the applicant came to know about it, he filed a writ petition in the Honble High Court to stall it by not receiving the said order and absenting himself from duty from 7.10.2002 onwards. Again the aforesaid order was sent to him by Speed Post and by UPC on 10.10.2002 and the same were also not received by him. He received the same finally only on 19.10.2002 and resumed duty on 5.11.2002.
8. As regards the promotion to the post of LDC is concerned, according to the existing recruitment rules, the method of selection was by holding a written examination followed by typing test from amongst the qualified employees of the Institute. There were many Class IV employees who were senior to the applicant but they could not be appointed as LDCs for want of vacancies. In 1995 one post of LDC has arisen. The name of the applicant was also considered along with other eligible class IV employees. However, he was not selected by the DPC but one of his seniors Sh. Darshan Singh who is, respondent No.3 in this case, was selected and appointed on ad hoc basis. In March 2000, one more post of LDC has arisen. The petitioner along with other eligible employees has applied for the same. They were required to appear in the written test on 16.6.2000 and typing test on 17.6.2000 but the applicant did not appear both for written and the typing test.
9. The applicant in his rejoinder has stated that in the DPC held on 28.8.2000, none of the candidates appeared in the written test and typing test, including Sh. Darshan Singh, was found suitable by the DPC. Therefore, the DPC did not recommend to consider any of them for regular appointment. Sh. Darshan Singh was already working as LDC on ad hoc basis. However, the respondent No.2 without following any rules made his appointment later. In this regard, the applicant has referred to the respondents own admission in para 6 of their additional affidavit filed on 22.4.2003 which reads as under:
6. That DPC for filling up above post of LDC was convened on 28.8.2000. The DPC considered the typing test and written test and observed that all the three candidates who appeared for the test including one already working on ad-hoc basis have failed in typing test and 2 (two) candidates out of them have qualified in written examination. The DPC was of the view that none of them should be considered for promotion. DPC also desired that recruitment rules should be amended first and then the post should be filled up on regular basis. Accordingly, a letter No.12-23/95-Estt. Dated 15th September, 2000 was sent to the Ministry giving full details for their consideration and approval, but no reply was received from the Ministry.
10. Respondent No.3 filed a separate counter affidavit stating that he was initially appointed as Peon on 23.10.1980 and thereafter, promoted as LDC on ad hoc basis for a period of six months or till a regular candidate joins the post, vide office order dated 27.9.1995. Later, he was asked to appear for typing test on 23.2.1998 and subsequently, vide order dated 18.3.1998, on qualifying the same, he was allowed to draw increment. Later, vide order dated 1.5.2001, he was regularised to the post of LDC retrospectively w.e.f. the forenoon 15.9.1999.
11. We have heard the learned counsel for the parties. The Applicant has raised the following issues in this TA:-
(i) Since he was performing the duties attached to the post of LDC w.e.f. 17.1.1991 he is entitled to be promoted to the said post w.e.f. the said date with all consequential benefits.
(ii) Though he was performing the duties attached to the post of LDC from 17.1.1991 to 17.10.2002, the respondents have not paid him the salary and allowances attached to the post of LDC for the aforesaid period.
(iii) Even though the DPC held on 28.8.2000 found that none of the candidates including the Applicant and respondent No.3 Shri Darshan Singh were not fit for regular promotion as LDC, the respondents, later regularized the service of Respondent No.3 as LDC respectively w.e.f. 15.9.99. However, as observed earlier, the Applicant has made only one prayer in this case, that is to direct the respondents to promote him to the post of Group C service with all consequential benefits from 17.5.1991 on the ground that he has been performing the duties of a Group C post from that date. According to the respondents, the applicant was asked to assist the Accounts Section vide order dated 17.5.1991 as he himself has volunteered for the same and agreed to work without any extra remuneration/honorarium as was made clear in the said order but he continued to assist the Accounts Section without any claim for salary for the post of LDC. Later, vide order dated 25.5.1993, he was assigned the duties of maintenance of Day Book, Ledger Accounts, Bank Reconciliation and preparation of expenditure details. He filed writ petition WP (C) No.6133/2002 seeking a direction to promote him as LDC before the Honble High Court of Delhi on 19.9.2002 and the Court issued notice to the Respondents in it on 25.9.2002. Immediately, thereafter the Respondent No.2 reverted him back to his original post of Kitchen Servant w.e.f. 7.10.2002. As regards his claim for promotion as LDC w.e.f 17.5.1991, i.e., the date from which he has been assisting the Accounts Section without any extra remuneration or honorarium in terms of the office order of the same date is concerned, it is a fact that he was working only as an ad hoc arrangement and there were many other qualified Class IV employees senior to him, waiting for promotion but they could not be promoted for want of vacancies. Further, the Respondent No.2 has held the selection for appointment as LDC twice earlier, i.e. once in 1995 and later in 2000. Applicants case was considered in 1995 but he was not found fit by the Selection Committee. In the year 2000, he applied for the post but he did not participate in the written test and typing test. In such a solution, the judgment of the Apex Court in Harjeet Singh (supra) relied upon by the Applicants counsel has no application. Therefore, there is no question of his promotion as LDC on regular basis based on his continuous ad hoc service as LDC leave alone his prayer for regular promotion to the said post with retrospective effect i.e. from 17.5.97.
13. As regards the 2nd issue of pay and allowance attached to the post of LDC payable to the applicant for the period from 17.1.1991 to 17.10.2002 is concerned, as observed earlier, the appellant has not made any specific prayer to that effect in this petition. But it is an admitted fact that he was discharging the duties of LDC during the aforesaid period by assisting the Accounts Section and performing the work of maintenance of Day Book, Ledger Accounts, Bank Reconciliation and preparation of expenditure details etc. It is immaterial that it was stated in the order assigning him the duties of LDC that he will not be entitled for any extra pay and allowances. Further, it is seen that he was reverted to his substantive post of Group D (Kitchen servant) vide order dated 7.10.2002 as a retaliatory measure for his filing this case originally before the Honble High Court as writ petition No.6133/2002 on 19.9.2002. Hence, in terms of the Apex Court judgment in Selvarajs case (supra), the respondent was required to pay him the salary attached to the post of LDC for the aforesaid period. Even though the applicant has not made any specific prayer in this regard, in view of the fact that he has raised the issue elsewhere in the TA, we are inclined to allow the same in terms of his 2nd prayer, in the interest of justice.
14. As regards the third issue of the appointment of respondent No.3 Shri Darshan Lal as LDC on regular basis is concerned, it is seen that he is admittedly senior to the applicant in the Group D cadre. Both of them have been considered for promotion as LDC when the first vacancy became available in the year 1995 and when the second vacancy became available in the year 2000. Both of them were not recommended by the DPC in its meetings held in 1995 and 2000. Since Shri Darshan Lal was senior to the applicant, he was appointed as LDC on ad hoc basis w.e.f. 27.9.95. In the DPC held in 2000 he passed the written test but did not pass the typing test. Later, he qualified the typing test and he was appointed as LDC retrospectively w.e.f. 15.9.99 vide respondents order dated 1.5.2001. We, therefore, do not find any valid reasons for the applicant to feel agitated about the appointment of Shri Darshan Singh on regular basis.
15. To conclude, we do not find any merit in the contention of the applicant that he should be appointed on regular basis as LDC on the ground that he was performing the duties attached to the post of LDC w.e.f. 17.5.1991. However, if there are any vacancies of LDC available, the department may consider him for his continued appointment as LDC on ad hoc basis as in the case of Shri Darshan Singh subject to his position in the seniority list of Group D staff and fulfilling the other requisite conditions. However, the applicant is entitled for the pay and allowances attached with the post of LDC for the period from 17.1.1991 to 17.10.2002 during which he performed duties attached to the said post. Consequently, the respondents shall calculate the difference of pay and allowances payable to the applicant for the aforesaid period and pay the same to him within a period of two months from the date of receipt of a copy of this order.
16. Accordingly, this OA is partly allowed. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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