Central Administrative Tribunal - Delhi
Sh. Rakesh Semalty vs Govt. Of Nct Of Delhi Through on 1 December, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3372/2010
New Delhi this the Ist day of December, 2011.
Honble Mr. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Rakesh Semalty,
Lecturer/PGT(English)(ID-19880617)
Rajkiya Sarvodaya (Co-Ed) Vidyalaya
Gazipur, Delhi-96. . Applicant
(through Sh. S.M. Garg, Advocate)
Versus
1. Govt. of NCT of Delhi through
Its Chief Secretary,
Govt. Secretariat,
I.P. Estate, New Delhi.
2. The Directorate of Education,
Govt. of NCT of Delhi through
Its Director, Old Secretariat,
5, Sham Nath Marg,
Delhi. . Respondents
(through Ms. Alka Sharma, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The grievance of the applicant is that his representation for protection of pay was rejected by the respondents in their Memorandum dated 16.12.2009 which has been impugned in this O.A.
2. The applicant was working with Kendriya Vidyalaya Sangathan (KVS) as Trained Graduate Teacher (TGT) (English). He applied for the post of PGT (English) advertised by the respondents. On selection, he joined on the post of PGT (English) under the Directorate of Education, Government of NCT of Delhi. Ultimately, on completion of his lien, he resigned from KVS and was absorbed with the respondents. The respondents also permitted counting of the applicants past service with KVS for pensionary benefits vide their order dated 23.04.2009. However, his repeated representations to grant him protection of pay at the time of fixation of his salary at the time of his joining the services of the respondents were not allowed. The impugned order dated 16.12.2009 states that his request could not be acceded to as his case was not permissible as per Govt. of India decision Nos. 29 and 31 with regard to fixation of pay under FR-22(1)(a)(i).
3. At the time of hearing, learned counsel for the applicant draws our attention to the clarification issued by the Ministry of HRD on 02.12.1992 which states as under:-
2. It has been clearly indicated in the circular dated 31.5.1991 that the pay of such employees working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies to be protected on their joining another higher posts as direct recruits. 3.1 Since KVS is an autonomous body under the administrative control of Govt. of India, it is contended that the applicant is entitled to the benefits which have been extended by the Ministry of HRD in their Circular dated 31.05.1991.
4. Per contra, learned counsel for the respondents submits that the case of the applicant was examined with reference to the provisions of FR-22(1)(a)(i) clarified in Govt. of India decision (GID) No.29, the relevant part of the decision is extracted below:-
3. The benefit of pay protection is available to the Government servants on their recruitment by selection through UPSC, subject to fulfillment of certain conditions. The benefit under the O.M., dated 7-8-1989 was extended to the candidates working in Central PSUs/State PSUs/Universities/Semi-Government Institutions/Autonomous Bodies, etc., with a view to drawing talent, which is available in those organizations. The question whether the objective underlying the above orders could be achieved through Open Competitive Examination in which the employees from Public Sector Undertakings, etc., also appear, has been considered. It is clarified that the benefit of pay protection under the above orders is available only, if the selection is through interview and not through an Open Competitive Examination. Wherever the protection under the above orders is to be given, the Commission will indicate in its recommendation letter to the Ministry concerned that pay of such candidate(s) should be fixed as per the guidelines laid down in the above orders. Further, the benefit would be available to an officer coming from PSU, etc., only if the officer has completed the period of probation successfully for being regularized/confirmed in the post in the parent organization.
5. This clarification was issued on 10.07.1998. It has taken into consideration the earlier OMs dated 07.08.1989, 28.02.1992 and 08.06.1993 issued by the Department of Personnel on the subject.
6. It has analyzed the rationale for granting the benefit of pay protection on the ground that such benefits would attract better talent from the autonomous bodies. But, since this objective itself is achieved when candidates join the departments after participating in open competitive examination, there was no need to provide the incentive any more. For that reason, the Govt. decision dated 10.07.1998 restricted the admissibility of this benefit only to those who were selected through the simple process of interview where there was no element of open competition. Further, it was hemmed in with the rider that such protection, if it was to be given, will be on the basis of recommendation of the UPSC made at the time of forwarding the cases of candidates to the Ministries concerned.
6.1 Since the present applicant has been selected through Open Competitive Examination, it is contended by the respondents that he was not entitled to any pay protection. Neither has there been any recommendation by the Selection Board in favour of grant of pay protection in his case.
7. Learned counsel for the applicant submits that the Govt. of India decision No.29 refers to cases which are recommended by UPSC. It has no application to the applicant who was selected by Delhi Subordinate Services Selection Board (DSSSB). On the other hand, he would be governed by the Circular of the Ministry of HRD dated 31.05.1991 and the clarification dated 02.12.1992. He has not filed a copy of the original Circular dated 31.05.1991. It is true that the instruction of Ministry of HRD would have relevance in respect of teachers of respondent authorities. Nevertheless, the whole issue was examined by the nodal department i.e. DoP&T and the clarification was issued in the aforesaid letter dated 10.07.1998 of DoP&T which is to be followed by all other departments.
8. The impugned order is cryptic in nature. Therefore, the O.A. is disposed of by directing the competent respondent authority to re-examine the issue in the light of the instructions of Ministry of HRD and the submission made by the learned counsel for the applicant about restrictive applicability of Govt. of India decision No.29 under FR-22(1)(a)(i) only to the candidates sponsored by UPSC and take a fresh decision in the matter. Accordingly, the matter is remanded to respondent No.2 to decide the issue by passing a speaking and reasoned order within a period of two months from the date of receipt of a certified copy of this order. No costs.
(Dr. A.K. Mishra) (G. George Paracken)
Member (A) Member (J)
/vinita/