Delhi High Court
Amir Raza Zaidi vs Municipal Corporation Of Delhi And Anr on 17 January, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: January 17, 2013
+ W.P.(C) 4763/2012
AMIR RAZA ZAIDI ..... Petitioner
Represented by: Mr.Rajat Aneja and Ms.Swati
Gupta, Advocates
versus
MUNICIPAL CORPORATION OF DELHI AND ANR
.... Respondents
Represented by: Mr.Anshuj Dhingra and
Mr.Anubhav Mehrotra,
Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (ORAL)
W.P.(C) 4763/2012 and CM No. 9852/2012 (for directions)
1. The petitioner Amir Raza Zaidi along with his colleagues who were appointed as Compounder (Unani) by MCD between various dates in the year 1975 and 1979 had a grievance pertaining to they not being promoted in view of the fact that they had the requisite degree or diploma to be appointed as Unani Hakims. When they joined service, 50% posts of Unani Hakims were to be filled up by direct recruitment and the remainder 50% posts by promotion. The eligibility condition to be considered for promotion was five years regular service in the grade of a Compounder (Unani).
2. Unfortunately, for the petitioner and his colleagues, before they completed five years regular service, the recruitment rules to the post of Unani Hakims were amended; 100% posts were required to be filled up by WP(C) 4763/2012 Page 1 of 7 direct recruitment. In other words, nothing was available to be filled up by promotion.
3. Misfortune struck the petitioner and his colleagues twice over inasmuch as the Recruitment Rules in question stipulated the age limit of 30 years for direct recruits with a power to relax the same by 5 years for departmental candidates and unfortunately, at that time, all of them had crossed the age of 35 years. They were left with no promotional avenues. The petitioner and his colleagues filed W.P.(C) No. 2414/1998 bringing to the notice of the Court that when they joined service, they did so on the expectation that the existing Recruitment Rules had a promotional avenue for them and before they could achieve the qualifying service, the rules got amended leaving them with no promotional avenues.
4. Disposing of the writ petition as per order dated September 10, 2007, a Division Bench of this Court noted various judgments on the point that unless a government servant had an incentive to earn a promotion, his work would be below average and this would not serve public purpose. The public purpose is better served when people have avenues to work and earn promotions.
5. Accordingly, the writ petition was disposed of directing as under:-
"7. Learned counsel for the respondent argued that the petitioners could apply for the post of Unani Hakim in terms of the amended rules as departmental candidates. This is also not possible for the petitioners as the petitioners, with their long service, have crossed the age limit of 25 years prescribed under the rules and have, therefore, become ineligible. It would also be relevant to point out that 2 out of 4 petitioners had become eligible for promotion to the post of Unani Hakim before the promulgation of the 1984 Regulations. Therefore, their cases, in any event, are to be considered as per the 1979 Regulations. In respect of the other two petitioners, keeping in view the peculiar position, it would be appropriate for the respondents to consider giving relaxation in the rules so that they do not WP(C) 4763/2012 Page 2 of 7 stagnate and retire on the same post on which they were appointed, without obtaining a single promotion in their entire service career. We may note that these petitioners are the only persons left in the service who are holding the post of Compounder and keeping in view all these peculiarities, we are giving these directions. While doing so, we have also kept in mind that by interim orders passed in this petition, the respondents were directed not to fill four posts of Unani Hakims on the basis of the advertisement issued earlier. These orders are valid till ate and, therefore, four posts of Unani Hakims are available with the respondents. The respondents are, therefore, directed to fill up these posts by considering the candidature of the petitioners. This exercise shall be done within two months from the date of receipt of copy of this order. If the petitioners are considered fit for promotion, they shall be given the notional promotions from the dates they became eligible. Their pay shall be fixed accordingly. However, they shall not be paid arrears of pay for the intervening period."
6. Nothing was done by the Corporation, resulting in the petitioner and his colleagues filing Contempt Case (Civil) being No.172/2008 which was disposed of on March 31, 2008 noting that with respect to the opinion of the Division Bench, the Corporation had initiated the process to tabulate the ACR grading of the four officers and convene a Departmental Promotion Committee (DPC). The DPC was thereafter constituted which met on March 13, 2009. Based on the recommendations of the Committee, the Commissioner, MCD passed an order on March 25, 2009 which reads as under:-
"On recommendation of Departmental Promotion Committee in its meeting held on 13.3.2009, the Commissioner, MCD vide order dated 17.3.2009 has approved the notional promotion/placement of the following Medical Officer (Unani) as indicated against each:-
Sl. Name of the Date of notional Date of notional No. Medical Officer promotion/place promotion/place WP(C) 4763/2012 Page 3 of 7 (Unani) ment in the scale ment in the scale of Rs. 10,000- of Rs. 12,000-
15,200 16,500
1. Dr. Ashok Kumar 05.12.1991 25.01.1999
Vaid
2. Dr. Mahendra Pal 05.12.1991 25.01.1999
Sharma
3. Dr. Amir Raza 05.12.1991 25.01.1999
Zaidi
4. Dr. Mohd. 05.12.1991 25.01.1999
Ahmed Ansari
Sd/-
(Manoj Kumar Jangir)
Admn. Officer (Estt.)-II"
7. Learned counsel for the respondents would concede that the result of the notional promotion/placement of the four officers as per the order dated March 25, 2009 with effect from the two dates mentioned in the order would require the petitioner to be placed in the under-noted pay scales with basic pay recorded thereunder as under:-
Existing Scale Promoted/Placement Scale Rs. 2200-75-2800-EB-100-4000 3000-100-3500-125-4000 BP-2725/- as on 5/12/1991 5/12/1991 Rs. 3000/-
(FR-22 I a II) 1/12/1992 - Rs. 3100/-
1/12/1993 - Rs. 3200/-
1/12/1994 - Rs. 3300/-
1/12/1995 - Rs. 3400/-
Pay fix in the VCPC in the Pay Scale of 10000-325-15200 (SMO) BP-3400 + DA 5180 + 100 (1st IR) + 340 (IInd IR) + 1360 (40% of BP)= 10380 Next Stage Rs. 10650 1/1/1996 - Rs. 10650/-
1/12/1996 - Rs. 10975/-
1/12/1997 - Rs. 11300/-
1/12/1998 - Rs. 11625/-
Placement in the Pay Scale 12000-375-16500 (CMO) w.e.f. 25.1.1999 WP(C) 4763/2012 Page 4 of 7 Pay is fixed as under:-
Existing Scale Granted Scale
10,000-325-15200 12000-375-16500
24.1.1999 - 11625 25.1.1999 Rs. 12000/-
(FR-22 Ia-II)
1/1/2000 - Rs. 12375/-
1/1/2001 - Rs. 12750/-
1/1/2002 - Rs. 13125/-
1/1/2003 - Rs. 13500/-
1/1/2004 - Rs. 13875/-
Retired on 31/12/2004
8. Recording that the aforesaid tabulation noted by us is as per an office order dated May 21, 2009, copy whereof has been handed over by learned counsel for the respondents, we note that the order has been passed by the „AO (H & P)‟.
9. We highlight now, that the petitioner had superannuated on December 31, 2004. The effect of the notional promotion/placement order dated March 25, 2009 would be that as of December 5, 1991, the petitioner would be required to be notionally placed in the pay scale `10,000-325-
15,200/- and with effect from January 25, 1999 in the pay scale `12,000- 375-16500/- and basic pay fixed accordingly. Upon being given notionally benefit of placement in the pay scale, it would mean that when the petitioner superannuated on December 31 2004 in the pay scale `12,000-375-16500/-, the basic pay of the petitioner would come `13,875/-. Had things been in place, the petitioner would have then earning a basic pay of `13,875/- when he superannuated. But this did not happen. What happened was that the petitioner retired in the pay scale applying to a Compounder (Unani). When he superannuated, he was receiving a basic pay which was much less than `13,875/-.
WP(C) 4763/2012 Page 5 of 710. Rule 33 of the CCS (Pension) Rules, 1972 reads as under:-
"33. Emoluments The expression „emoluments' means basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practising allowance granted to medical officer in lieu of private practice."
11. Notwithstanding, the office orders dated March 25, 2009 and May 21, 2009 being issued, learned counsel for the respondents states that pension being disbursed to the petitioner has to be with reference to the emoluments he was receiving when he superannuated; a language used in Rule 33 of the CCS (Pension) Rules, 1972.
12. Now, where a person is being given benefit of notional promotion to a post with a retrospective date and the date when the order so granting notional promotion is issued is after the person had superannuated one has to treat the person as having superannuated receiving emoluments which he would have received as per the order granting notional benefit same holds true to a case of notional grade/pay-scale placement.
13. It is settled law that where something is notional or deemed to be in existence, the existence thereof has to be carried to its logical conclusion and imagination has not to be bogged down at any stage.
14. So applying the law, and keeping in view the orders dated March 25, 2009 and subsequent office order dated May 21, 2009, we clarify that for the purpose of Rule 33 of the CCS (Pension) Rules, 1972, the petitioner would be entitled to be disbursed pension with reference to his emoluments calculated with reference to his basic pay being fixed at `13,875/-.
15. The respondents would do the needful. The arrears would be calculated and paid to the petitioner after adjusting the pension which he has received.
WP(C) 4763/2012 Page 6 of 716. We make it clear that if the arrears are not paid to the petitioner within six weeks from today, the same would be paid along with interest (simple) @ 12% per annum reckoned six weeks from today till when the payment is made. Future pension would be made as per the directions passed. Needless to say, the family pension payable if at all upon the death of the petitioner shall be computed accordingly.
17. No order as to costs.
(PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE JANUARY 17, 2013 sd WP(C) 4763/2012 Page 7 of 7