Central Administrative Tribunal - Delhi
Ram Krishan vs M/O Labour on 27 October, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 2000/2014
With
O.A. No. 2001/2014
Reserved on : 21.10.2016
Pronounced on : 27.10.2016
HON'BLE MR. P.K. BASU, MEMBER (A)
HON'BLE MR. RAJ VIR SHARMA, MEMBER (J)
O.A. No.2000/2014
Ram Kishan,
Aged 50 years,
Computer Operator,
S/o Shri B.L. Chauhan,
R/o Flat No.3, Type-II,
VV Giri, NLI Campus,
Sector-24, Noida. .. Applicant
(By Advocate: Shri B.L. Wanchoo)
Versus
1. Union of India,
Through Secretary,
Ministry of Labour & Employment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi.
2. Director General,
V.V. Giri National Labour Institute,
Sector-24, Noida. .. Respondents
(By Advocate : Shri Subhash Gosai)
O.A. No.2001/2014
Ram Kishan,
Aged 50 years,
Computer Operator,
S/o Shri B.L. Chauhan,
2 OA 2000/2014 with OA 2001/2014
R/o Flat No.3, Type-II,
VV Giri, NLI Campus,
Sector-24, Noida. .. Applicant
(By Advocate: Shri B.L. Wanchoo)
Versus
1. Union of India,
Through Secretary,
Ministry of Labour & Employment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi.
2. Director General,
V.V. Giri National Labour Institute,
Sector-24, Noida. .. Respondents
(By Advocate : Shri Ravinder Kumar Sharma)
ORDER
By Hon'ble Mr. P.K. Basu Both the O.A. Nos. 2000/2014 and 2001/2014 pertain to the same applicant and the issues are linked. Therefore, they are being disposed of by this common order.
2. The applicant was initially appointed as Desk Top Publishing (DTP) Operator on consolidated salary of Rs.2500/- p.m. w.e.f. 25.11.1992 in Child Labour Cell, supported by the UNICEF, for a period of six months. The post of DTP Operator was required for the project period only and the post was to be terminated on completion of the project. His service was extended from time to time to work in the Child Labour Cell till 31.01.1994.
3 OA 2000/2014 with OA 2001/2014
3. For appointment of DTP Operator in the project funded by UNICEF, the institute received 19 applications, but interview letters were sent to 5 candidates only. The then Director of the Institute constituted a Selection Committee comprising four members. One of the Committee Member, viz. Dr. K.V.E. Parsad, remarked that "the applications so far received are not suitable for the post. Can we expand our coverage." The then Director replaced Dr. K.V.E Parsad by another member in the Committee. The applicant was then selected as DTP Operator in the project on consolidated salary basis. He was offered the post of DTP Operator in the pay scale of Rs.1400- 2600 vide offer letter dated 25.01.1994. The offer letter made it clear that the post of DTP Operator is temporary, likely to be made permanent and the applicant will be on probation initially for a period of one year w.e.f. the date of his joining the post. He was allotted residential accommodation vide letter dated 05.04.1994. His pay was fixed at Rs.1400/- p.m. Thereafter, on revision of pay scale on the recommendation of the 5th CPC, his pay was fixed in the pay scale of Rs.5000-8000 vide order dated 30.03.1998 at Rs.5000/- and after adding increment at Rs.5150/- as on 01.01.1997 and Rs.5300/- as on 01.01.1998. As per order dated 19.02.2007, he was granted annual increment w.e.f. 01.01.2007.
4. It is the respondents' case that the applicant was appointed against the vacant post of Stenographer Grade-II, which carried the 4 OA 2000/2014 with OA 2001/2014 pay scale of Rs.1200-2040. Despite Dr. Parsad's objection, not only was he recruited but he was wrongly appointed as DTP Operator on temporary basis in the pay scale of Rs.1400-2600. In fact, it has been stated by the respondents in their counter reply that the extracts of the noting of the recommendation of the then Fellow (In- charge Administration), which was approved by the competent authority, was as under:
"I would propose that Director may appoint Shri Ram Kishan, as DTP Operator against one of the two vacant post of Stenographers Grade-II. The scale of Stenographer Grade-II is Rs.1200-2040 whereas the proposed scale of DTP Operator is Rs.1400-2600. This little variation has to be approved ex-post- facto by the Government of India.
Before the post of Stenographer Grade-II will be technically deemed to be vacant, it is necessary that Director may kindly restore the vacancy as the post has been lying vacant for more than a year and hence stand abolished as per the Ministry of Finance, Department of Expenditure O.M. No. 7(7)-E (Coord.)/93 dated 3.5.93. Director is the competent Authority to restore as per the aforesaid O.M. To sum up, Director may kindly restore the vacancy of Stenographer Grade-II (1200-2040) and appoint Shri Ram Kishan (who was recruited through a duly constituted Selection Committee) as DTP Operator in the scale of Rs.1400-2600 against the restored post. The variation in the pay scale can be approved ex-post-facto by the Government of India."
However, no letter was sent to the Ministry of Labour for its approval. Later, when the Ministry of Labour, which is the administrative Ministry for the Institute, carried out Work Measurement Study in November, 2000, on recommendation of the Work Study Unit for abolition of the post of DTP Operator, the increment of the applicant was stopped to take suitable action for implementation of the order of Work Study Unit.
5 OA 2000/2014 with OA 2001/2014
5. On 28.11.2011, the applicant made a representation in which he made the following statement:
"I have not been confirmed in my post. It is therefore, requested that I may please be considered for a suitable regular post available in the Institute in any grade. However, I may kindly be given pay protection."
He was granted the post of Stenographer Grade-II in the pay Band of Rs.5200-20200 + GP Rs.2400/- w.e.f. 01.01.2012 vide order dated 30.12.2011. The applicant is aggrieved by this order in O.A. 2000/2014 and he has sought the following relief:
"(i) To quash and set aside the impugned orders No.Adm/1(003)/11-Pers dt. 30.12.2011 as well as No.Adm/1(003)/11-Pers dt. 16.04.2011 to the extent of reduction of Grade Pay @ Rs.4200/- to Rs.2400/-.
(ii) To direct Respondent No.2 to restore the Grade Pay of Rs.4200/- of the applicant on reclassification as Asst. Steno Grade-II in the Pay Band of Rs.5200-20200 which the applicant was already drawing.
(iii) To direct Respondent No.2 to grant interest @ 12% from the due date to the actual date of payment to the arrears of Grade Pay @ Rs.4200 and consequential benefits accruing subsequent to grant of Grade Pay @ Rs.4200 wef 01.01.2012 onwards till actual payment.
(iv) Any other relief as deemed fit and just in the circumstances of the case, by this Hon'ble Tribunal."
6. The applicant has filed O.A. No.2001/2014 with the following prayer:
"(i) To direct Respondent No.2 to grant annual increment to the applicant in the Scale of Rs.9300-34800 + GP 4200 wef 01.01.2007 till 01.01.2011 with all consequential benefits.
(ii) To direct Respondent No.2 to grant interest @ 12% from the due date to the actual date of payment to the arrears of increment and consequential benefits accruing subsequent 6 OA 2000/2014 with OA 2001/2014 to grant of annual increments wef 01.01.2007 onwards till 2011.
(iii) Any other relief as deemed fit and just in the circumstances of the case, by this Hon'ble Tribunal."
7. The applicant's case is that he has been appointed by the respondents' institute as a DTP Operator in the scale of Rs.1400- 2600 for which the replacement scale after 5th CPC is Rs.5000-8000 and after the 6th CPC, the replacement scale is PB-2 Grade Pay Rs.4200/- and he has been drawing the pay according to this pay fixation till the order dated 30.12.2011 was issued and his pay band and grade pay were reduced to PB-1 and Rs. 2400 GP. Moreover, the respondents stopped granting him increments from 01.01.2007 till 01.01.2011.
8. The 1st question to be decided is whether the action of the respondents in issuing order dated 30.12.2011 appointing him as Stenographer/Assistant Grade-II in PB-1 + GP Rs.2400/- w.e.f. 01.01.2012 is valid or not. As has been brought out by the counsel, the Institute clearly violated all norms and procedures initially appointing the applicant as DTP Operator despite the objection of one of the members of the Selection Committee, Dr. Prashad. Moreover, while the vacant post was that of Stenographer/Assistant Grade-II in the scale of Rs.1200-2040. The Institute appointed him as DTP Operator in the scale of Rs.1400-2600. Clearly, the Institute did not have authority to do so and should have obtained prior 7 OA 2000/2014 with OA 2001/2014 permission of Govt. of India in the Ministry of Labour. When in 2001, the Staff Work Management Unit recommended the abolition of post of DTP Operator, then the applicant made a request that he be appointed on another alternative post in any grade. The respondents made a 2nd mistake by again appointing him as Stenographer/Assistant Grade-II vide order dated 30.12.2011 without following any procedure and norms, perhaps out of sympathy for the applicant and that he should not be rendered jobless after about 17 years of service. But the fact remains that the initial appointment itself was illegal.
9. Shri R.K. Sharma, learned counsel for the respondents, states that the applicant was never regularised and, in fact, relied on the judgment of the Hon'ble Supreme Court in State of Haryana & others vs. Ram Kumar Mann, (1997) 3 SCC 321, wherein the Hon'ble Supreme Court has held as follows:
"A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."
10. Heard the learned counsel and perused the various documents/judgments cited by the respondents.
11. We are convinced that the initial appointment itself was not legally valid, as no norm and procedure was followed. In fact, when one of the Members of the Selection Committee objected, the 8 OA 2000/2014 with OA 2001/2014 Director chose to remove him from the Selection Committee. Instead of terminating his service in 2001 as a result of abolition of post of DTP Operator and because of appointment by fraud, the respondents showed mercy and magnanimity and appointed him as Stenographer Asstt. Grade-II vide order dated 30.12.2011, so that he could continue in service.
12. In view of the judgment of the Hon'ble Supreme Court in Ram Kumar Mann (supra), the appointment which is, ab initio, illegal cannot sustain. However, in view of the fact that the respondents have taken a lenient view and allowed him to continue in the lower post of Stenographer/Assistant Grade-II, we do not wish to interfere in this matter but the claims of the applicant cannot be allowed as no benefit can be given when the initial appointment itself is illegal.
13. In view of above, both the O.As. are dismissed. No order as to costs.
(Raj Vir Sharma) (P.K. Basu) Member (J) Member (A) /Jyoti/