Central Administrative Tribunal - Delhi
B. S. Jarial vs Government Of Nct Of Delhi Through on 26 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2447/2009 This the 26th day of April, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHAILENDRA PANDEY, MEMBER (A) B. S. Jarial, Superintendent of Prison, Central Jail No.1, Tihar, New Delhi. Applicant ( By Shri A. K. Bhardwaj, Advocate ) Versus 1. Government of NCT of Delhi through Principal Secretary, Department of Home, New Delhi. 2. Secretary, Union Public Service Commission, Dholpur House, New Delhi. 3. Director General (Prisons), Prison Headquarters, New Delhi. Respondents ( By Shri Vijay Pandita for Respondents 1 and 3; Ms. Alka Sharma for Respondent No.2, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Primary grouse of the applicant raised in this Original Application filed by him under Section 19 of the Administrative Tribunals act is that the respondents have delayed finalization of the recruitment rules for years together, and that pending framing of rules, and particularly with regard to promotions, the respondents are resorting to giving current duty charge or look after charge to employees on the promotional posts for years, and yet paying them the pay scales admissible to feeder posts. The prayer of the applicant is thus to direct the respondents to finalize the recruitment rules for the post of Superintendent (Jail), declare the act of the respondents in not holding year-wise DPCs for promotion to the said post as illegal and arbitrary, to direct them to consider the applicant for regular promotion to the post of Superintendent (Jail), as also to direct them to pay him salary for the post on which he is officiating with the formal order of DG (Prison) since 21.5.2003 with interest on arrears of difference of pay and allowances. There are other reliefs asked for as well, which need not be mentioned, having not been pressed during the course of arguments.
2. Brief facts as set out in the Application would reveal that way back on 22.7.1997, this Tribunal passed order in OA No.276/1997 in the matter of Mahavir Singh v Union of India & Others, directing the respondents to hold DPC without further delay for the post of Deputy Superintendent, Grade-I according to the year-wise panel after 1st June, 1990 and thereafter consider the case of the applicant therein for promotion on the post of Superintendent (Jail). The respondents in another OA No.127/1998 in the matter of Mahavir Singh had filed an affidavit, and while seeking vacation of interim order dated 9.1.1998 passed therein, pleaded that the Government had taken decision to assign some of the posts of Superintendent (Jail) to Deputy superintendent, Grade-I and that they had also initiated action for amendment in the recruitment rules. It is the case of the applicant that a decade has gone by since the affidavit aforesaid was filed in this Tribunal, but the respondents have not finalized the recruitment rules for the post of Superintendent. It is pleaded that in a meeting dated 11.10.1998 convened under chairmanship of Shri Ashok Nath, then Principal Secretary (Home), attended by Shri R. S. Gupta (IPS), then IG Prisons and other senior officers of the Services Department and Home Department, it was decided that 75% posts of Superintendent (Jail) would be filled from DANICS. On 7.10.198 the then Chief Minister of Delhi convened a meeting with IP (Prison), Joint Secretary (Home), Secretary (Services) and other Officers at Delhi Jal Board headquarters. In the said meeting, various matters like implementation of the order dated 22.7.1997 were discussed, and it was decided that in order to provide promotional avenues to prison staff, the recruitment rules for the post of Supdt. (Jail) should be finalized immediately. It was also decided that in view of various recommendations of different expert committees, i.e., All India Committee on Prison Reforms (Mulla committee 1983), report of group of officers on Prison Administration (Kapoor Committee 1986), report of Shri P. V. sinari, IPS (1987), National Expert Committee on Women Prisoners (Justice Krishna Iyer Committee Report 1987) in respect of pay scales, 13th month pay, washing allowance, risk allowance, etc., the parity of prison staff with Delhi Police should be considered. It was decided that all aforementioned issues should be examined and implemented immediately. On 3.9.2001, the Chief Minister of Delhi constituted a cadre review committee to review the service matters of prison staff. While constituting the said committee, the Chief Minister required that the amendment in the recruitment rules for the post of Supdt. (Jail) pending since 1998 should be expedited so as to give promotional avenues to the prison officers, as also that the action taken report in the matter should be put up within 25 days. On 28.3.2002, the Principal Secretary (Home) re-constituted a cadre review committee under chairmanship of Secretary (Services) to expedite various service matters of prison staff. In the cadre review committee meeting held on 22.5.2003 it was decided and accepted that 25% of posts of Supdt. (Jail) be filled from prison staff having eight years of service and 75% be filled up from DANICS officers with four years service. In the year 2005-06 again, the matter was taken up in the cadre review committee and it was further decided and accepted that only 20% of the posts of Supdt. (Jail) would be filled from prison officers having eight years of service, and 80% of the posts would be filled from DANICS officers with four years of service. The proposed amendment in the recruitment rules for the post of Supdt. (Jail) as approved by the Services Department in October, 2000, it is the case of the applicant, is pending with UPSC since 18.7.2007 for consideration and vetting. In another OA No.2561/1990 decided vide order dated 8.1.1993, this Tribunal observed as follows:
In our considered opinion, adequate opportunity for advancement is a requirement of progress of any organization. This has been authoritatively stated by the Supreme Court of India in Raghunath Prasad Singh Vs. State of Bihar, AIR 1988 SC 1033 and CSIR Vs. K.G.S. Bhatt, AIR 1989 SC 1972, para 24 (19) of Justice A. N. Mulla Committees report on Jail Reforms, deals with the question of promotion of the Jail Staff. It has been stated therein that Promotional prospects in the present service should be such that newly recruited persons be in a position to look forward to at least three grade promotions in the total span of their service of about 30 years.
It is true that ordinarily, it is for the Government to consider the stagnation in a particular service or cadre and take appropriate steps to remove such stagnation. In the instant case, even though the Mulla Committee had recommended adequate promotional avenues to be provided to the Jail Staff, no steps have been taken by the Respondents in this regard. The position, as it exists, is that even Dy. Supdts., Grade-II will have to stagnate in that post from the date of their appointment to the date of their superannuation as there is no channel for promotion of Dy. Supdt. Grade-II to that of Dy. Supdt., Grade-I. To our mind, suitable provision should be made in the Recruitment Rules, keeping in view the recommendation of the Mulla Committee. The respondents should consider the question of providing a channel for promotion to Dy. Supdts., Grade-II to the post of Dy. Supdt. Grade-I at least to the extent of 33=% of the total number of posts. The same was changed to 50% by UPSC as per norms. It is further the case of the applicant that since 21.5.2003, more than six years have gone by and he is working as Supdt. (Jail) of different jails. He is working in such position in terms of orders of Director General of Prisons (Head of Department). Details of such working of the applicant have been given as under:
1) 21.5.03 to 22.2.05 Supdt. (Offtg) of Central Jail No.4
2) 17.1.05 to 21.2.05 Addl. Charge of Central Jail No.8
3) 17.2.05 to 18.7.06 Supdt., Central Jail No.8/9
4. 1.4.06 to 16.5.06 Supdt., Central Jail No.7 (additional charge)
5. 16.5.06 to till date supdt., centralJail No.1 (with additional charge of Supdt., CJ-8/9 till 18.7.06) DG (Prison) had written number of DO letters to Principal Secretary (Home) to fill up 25% of posts of Supdt. (Jail) in terms of the decision taken in the meeting, particulars whereof have been given as follows:
(i) D.O. letter No.PS/DG(P0/2002/140 dated 9.5.2005.
(ii) D.O. letter No.F.10(366)/Estt./CJ/2011/ 18.9.2002.
(iii) D.O. letter No. F.10(571)/CJ/Legal/2001/ 775-777 dated 13.3.2002.
(iv) D.O. letter No.PS/DG(P)/2003/343-45 dated 6.1.2003. Vide letter dated 1.6.2004, the proposal for ad hoc promotion of the applicant to the post of Supdt. (Jail) was sent to Principal Secretary (Home) by DG (Prison). Once again, a detailed note dated 23.7.2004 was sent by DG (Prison) to Chief Minister, Chief Secretary, GNCT of Delhi and Principal Secretary (Home). The applicant made representation to Principal Secretary (Home) requesting to finalize the recruitment rules for the post of Supdt. (Jail) in the meantime, on 12.6.2008. He sent another representation dated 17.12.2008 to DG (Prison) for the purpose. In the meeting held on 13.10.2006, the Chief Secretary, Govt. of NCT of Delhi had suggested that only 20% posts of Supdt. (Jail) be filled from Prison Officers and 80% posts be filled from DANICS. On 18.7.2007, Joint Secretary (Home), GNCTD had written to Secretary, UPSC for consideration/vetting of proposed amendment in the recruitment rules of Supdt. (Jail) as approved by the Services Department. However, in the cadre review committee meeting held on 23.10.2007 it was unanimously agreed that promotional quota of 20% is sufficient for the prison officers though UPSC had suggested that considering the number of posts available in the grade of Dy. Supdt. the method of recruitment for the post of Supdt. may be reviewed as 40% by promotion failing which by deputation and 60% by deputation conveyed. Since then, the matter is pending for finalization seriously affecting the career prospects of the applicant.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance. Separate counter replies have been filed on behalf of respondents 1 and 2. With regard to finalization of the recruitment rules, it is pleaded in the reply filed on behalf of respondent No.1 that the matter regarding amendment in recruitment rules for the post of Supdt. (Jail) has already been taken up by Government of NCT of Delhi with the competent authority and it is near finalization. In the meantime, recommendations of the 6th Central Pay Commission were accepted by the Government of India. Revised Pay Rules, 2008 were adopted by the Government of NCT of Delhi. UPSC returned the proposal with the remarks that the revised recruitment rules may be reframed with reference to the revised guidelines being issued by DOP&T consequent to acceptance of the report of 6th CPC. Revised guidelines were issued by DOP&T vide OM dated 24.3.2009. The proposed revised recruitment rules for the post of Supdt. (Jail) were reframed on the lines of revised guidelines and submitted to Services Department for vetting before forwarding it to UPSC, and after approval of the amendments by UPSC, it would be notified with the approval of the Lt. Governor. There is no specific denial with regard to some of the meetings that were held to finalize the recruitment rules, even though it is stated that the applicant has not filed the minutes of the meetings nor are they available on the office records, and, therefore, the respondents would not be in a position to comment upon them, whereas with regard to other meetings, there is no denial. Insofar as, appointment of the applicant on the post of Supdt. (Jail) is concerned, it is pleaded that no such office order dated 21.5.2003 is available on records, nor the appointing authority had ever permitted the applicant to be appointed as Supdt. (Jail), as there is no such provision under the recruitment rules for the post of Supdt. (Jail).
4. In the reply filed on behalf of UPSC, 2nd respondent, after referring to the contentions of the applicant, it has been inter alia pleaded that proposal for amendment of recruitment rules was received in the commissions office on 25.7.2007 and clarification was sought vide letter dated 23.8.2007, and the Government of Delhi in their communication dated 14.11.2007 furnished certain clarification. However, as the position was not clear, it was decided to have discussion with the representatives of the Government of Delhi. Accordingly, in the meeting held on 9.1.2008 all the issues with regard to proposal for amendment of recruitment rules for the post of Supdt. (Jail) were discussed. The Government of Delhi in their communication dated 12.8.2008 reiterated the stand taken by them in their proposal. The Commissions office had examined the proposal and considering the fact that there are 11 Deputy Superintendent Grade-I in the cadre (feeder posts) as against 11 posts of Superintendent, it was felt that the proposed promotion quota of 20% for the feeder grade would be on the lesser side. It was also felt that giving adequate promotional avenues to the incumbent Dy. Superintendents, particularly when promotional posts are available in the cadre, would avoid any potential frustration/demoralization for the frontline category of Jail staff. Accordingly, it was suggested that promotional avenue to higher post from lower post should be fixed at the ratio of 1:2 (i.e. against 50% of 11 posts of Superintendent (Jail), 5= posts,, 11 posts of Deputy superintendent (Jail) are available), which would be in conformity with the DOP&T guidelines. It was emphasized that the promotional quota for the feeder grade may be prescribed as 50% by promotion failing which by deputation and 50% by deputation. Subsequently, consequent upon implementation of the 6th CPC recommendations, it was found that the post of Deputy Superintendent Grade-II in the scale of pay of Rs.5500-9000 and Deputy Superintendent Grade-I in the scale of Rs.6500-10500 were merged and, therefore, it became all the more necessary for further modification of the proposal of the Government of Delhi. Accordingly, the Department was informed of the position vide DO letter dated 6.2.2009, and a reminder dated 30.10.2009 was also issued to the Department to expedite their response. However, no response from the Government of NCT of Delhi, nor any fresh proposal in this connection has been received from the Department. Under the circumstances, it is stated that it is for the Government of NCT of Delhi to initiate further action for amendment of the recruitment rules.
5. Before we may deal with the contentions raised by the learned counsel representing the parties for and against the reliefs asked for in the present Application, we may refer to the orders placed and not specifically denied, by which the applicant was to work on the post of Supdt. (Jail). The applicant has placed on records office order dated 21.5.2003, which has been issued from the office of Director General of Prisons, which reads as follows:
I am directed to convey the sanction of D.G.(P) for grant of leave, indicated as under in respect of Sh. Kamal Malhotra, Superintendent, Central Jail, No.4.
FROM TO KIND OF LEAVE 21.05.03 21.06.03 32 days earned leave BALANCE=22 Sh. B.S. Jarial, Dy. Superntendent, Gr.-I, CJ-4 will officiate as Superintendent, CJ-4 in place of Sh. Kamal Malhotra, SJ-4, in addition to his own duties during the above mentioned leave period without any extra remuneration Even though, the applicant was to officiate during the leave period of Shri Kamal Malhotra, it is his case, which is not controverted, that he continued to officiate up to 22.2.2005. On 17.1.2005, an order came to be issued from the office of Director General (Prisons), which reads as follows:
Shri B. S. Jarial, Superintendent, Central Jail No.4 will also look after the charge of Jail No.8 in addition to his own duties till further orders. The applicant held this additional charge undisputedly up to 21.2.2005. The applicant worked as Superintendent, Jail nos. 8 & 9 up to 18.7.2006. Before that, i.e., between 1.4.2006 and 16.5.2006, he was given additional charge of Jail no.7 as well. Available on records is order dated 15.5.2006 issued by the office of Director General of Prisons, effecting transfers/postings of four Superintendents (Jail). The same, insofar as is relevant, reads as follows:
S.No. Name of Present Transferred to the Officer posting xxx
4. Sh. B.S.Jarial CJ-8 & 9 CJ-1 Sh. B.S. Jarial will look after working of Central Jail No.8 in addition to his assigned duties till further orders.
This issues with the prior approval of DG(P). It would appear from the order aforesaid that the applicant who was holding charge of Superintendent of Jail 8 & 9, was shifted to Jail-1. It is the case of the applicant that he is continuing to hold the said post till date.
6. From the facts as fully detailed above, what clearly emerges is that in addition to the fact that this Tribunal has passed orders from time to time to finalize the recruitment rules so as to provide promotional avenues to prison staff, the respondents are themselves contemplating change in recruitment rules so as to provide such promotional avenues. We need not reiterate the efforts made on that behalf, having been fully detailed hereinbefore. We may only mention that it is admitted at all ends that efforts are going on to provide promotional avenues, and in particular, promotion on the post of Superintendent Jail. The matter appears to have stuck off for some time because of the recommendations of the 6th CPC, for which there is likely to be some change with regard to opening of promotional venues, including on the post of Superintendent Jail. It is the positive case of UPSC, engaged in bringing about required provisions for promotion, that the department has been informed of the quota for promotion from the feeder cadre vide DO letter dated 6.2.2009, adverted to above, and that reminder too was sent on 30.10.2009 to the department to expedite their response, but no response so far has been received from the Government of NCT of Delhi, nor any fresh proposal in this connection has been received. UPSC blames the Government of NCT of Delhi in delaying the matter with regard to finalization of the recruitment rules. What further emerges from the pleadings and accompanying documents is that there is indeed requirement by the respondents of many more posts of Superintendent (Jail), and persons like the applicant are being made to work on the post of Superintendent (Jail) without giving them the pay scale as may be admissible on the said post. In the scenario as mentioned above, when the Government has remained remiss in formulating the rules for more than a decade, and out of sheer necessity, persons like the applicant are made to work on higher posts, those who are working on higher posts and shouldering higher responsibilities should be at least made over the pay that may be admissible for the post on which they are working, whether on temporary, ad hoc, current duty charge or on look after basis. We have given our serious thoughts to the contention raised by the learned counsel representing the applicant that in the circumstances as mentioned above, the applicant will be entitled to the pay scale admissible to the post on which he is working, and are of the firm view that as long as the respondents may take work from the applicant of the higher post of shouldering higher responsibilities, the applicant would have right to wages commensurate to the post on which he is working or is made to work. The issue in hand is not res integra. It stands clinched in favour of the applicant by a decision recorded by this Tribunal in OA No.6/2009 decided on 16.12.2009 in the matter of Subhash Chandra Lather v Union of India & Others, where we held that a person working on higher post and shouldering higher responsibilities would be entitled to salary attached to that post. While so holding, we placed reliance upon some decisions rendered by the Honble Supreme Court. We may reproduce the part of the judgment dealing with the issue in hand:
It stands rather clinched in favour of the applicant by an authoritative judgment of the Honble Supreme Court in Secretary-cum-Chief Engineer, Chandigarh v Hari Om Sharma & Others [(1998) 5 SCC 87]. The facts of the said case reveal that the employee was not promoted on regular basis, but was working on the promotional post. He successfully claimed pay of the higher post from the Tribunal. Aggrieved, the Secretary-cum-Chief Engineer, Chandigarh filed an appeal before the Honble Supreme Court. We may refer to the relevant observations of the Honble Supreme Court on the issue, which read thus:
6. Having regard to these facts, we are of the view that the Tribunal was fully justified in ordering that the respondent shall be promoted on the basis of quota fixed for non-diploma holders with 10 years of service and not on the basis of integrated seniority. The Tribunal was also justified in ordering payment of salary to the respondent for the post of Junior Engineer-I with effect from 1990 when he was made to work on that post. It is true that the respondent, to begin with, was promoted in stop-gap arrangement as Junior Engineer-I but that by itself would make no difference to his claim of salary for that post. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer-I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement. Promotion of the employee, it would appear, was by way of stop-gap-arrangement. Pertinent observations in that regard are, however, that If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. Insofar as, the order requiring the applicant to look after the work of FA&CAO, DMS in addition to his own duties without any additional remuneration, is concerned, we may mention that in Hari Om Sharma (supra) the employee had given an undertaking that on the basis of stop-gap-arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The contention raised on that basis by the Government before the Honble Supreme court was repelled by observing that The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. What has been observed in regard to the agreement, in our view, would equally apply to the condition placed in the order dated 13.10.2008, as mentioned above. In a recent decision rendered by this Tribunal in OA No.162 & 170/2008 decided on 14.1.2009 in the matter of L. N. Rao & Another v Union of India, wherein Even though, the applicants had got the pay scale initially admissible to ACP on appointment to the said post, they were not granted the non-functional grade admissible to an ACP who had put in four years of service in the post, on the sole ground that their promotion to the post of ACP was on out of turn basis and, therefore, they were not in the cadre of the service, to whom alone such non-functional grade would be applicable, relying upon the judgment of the Honble Supreme Court in Selvaraj v Lt. Governor of Island, Port Blair & Others [(1998) 4 SCC 291], we held that on the principle of quantum meruit the applicants were entitled to the non-functional grade. Relevant part of the order passed by the Tribunal reads as follows:
15. Coming to the last limb of the case, we may only make a mention of the judgment of the Honble Supreme Court in Selvaraj v Lt. Governor of Island, Port Blair & Others [(1998) 4 SCC 291]. The question that came up for decision before the Honble Supreme Court was as to whether the petitioner in the said case would be entitled to draw salary attached to the post of Secretary (Scouts) during the time he actually worked on that post pursuant to order dated 28.1.1992, and if so, what would be his scale of pay. It is significant to mention that the employee in the said case was only called upon to look after duties of Secretary (Scouts). His pay was to be drawn against the post of Secretary (Scouts) under GFR 77. While mentioning that it may be true that the employee was not regularly appointed to the post of Secretary (Scouts) and that his regular posting was in the scale of Rs.1200-2040 and he was asked to look after the duties of Secretary, and that had this arrangement not been done, he would have to be transferred to the interior islands, the Honble Supreme Court still held that the fact remained that he had worked on the higher post, though temporarily and in an officiating capacity and, therefore, on the principle of quantum meruit, the respondent authorities ought to have paid him as per the emoluments available in the higher pay scale during the time he actually worked on the higher post, though in an officiating capacity and not as regular promotee. It is admitted position that the applicants are performing the duties of ACPs, and would be entitled to benefits, if not at par with Grade-I (DASS) officers appointed to ex-cadre posts of DANICS, then at least at par with their counterparts in DANIPS on ex-cadre posts. On the principle of quantum meruit also, we are of the view that the applicants are entitled to the non-functional grade of Rs.8000-13500. In some other judgments also, similar view has been taken, but there would be no need to mention the same as that would unnecessarily burden the judgment.
7. Before we may part with this order, we may mention that the plea raised by the first respondent that there is no order dated 21.5.2003 available on records, nor the appointing authority had ever permitted to appoint the applicant as Superintendent Jail, appears to be totally against records. The applicant has demonstrated by orders placed on records that he was asked to work on the post of Superintendent Jail, and eversince 2003 till date, he is looking after the charge the said post.
8. In view of the discussion made above, we direct the respondents to frame the required recruitment rules, for which the exercise is already on since last more than a decade, as expeditiously as possible and preferably within a period of three months from today. If there be any difficulty in complying with the directions within the time frame, as mentioned above, the respondents may seek extension by moving an application, showing sufficient cause. We further direct the respondents to make over to the applicant salary admissible on the post of Superintendent Jail from 2003 till date. No case for grant of interest has, however, been made out. The applicant will be made over the arrears of salary within a period of six weeks from today.
9. The Application is allowed in the manner fully indicated above, leaving, however, the parties to bear their own costs.
( Shailendra Pandey ) ( V. K. Bali ) Member (A) Chairman /as/