Central Administrative Tribunal - Delhi
K C Gupta vs Govt. Of Nctd on 9 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 3553/2012
Order Pronounced on: 09.03.2016
Hon'ble Mr. A. K. Bhardwaj, Member (J)
Hon'ble Mr. V.N. Gaur, Member (A)
1. Sh. Kailash Chand Gupta,
S/o Sh.Murari Lal,
R/o H.No.Gurudwara Road,
Mukti Asharam, Keshav Nagar,
Burari, Delhi-36.
2. Sh. Banwari Lal Solanki
S/o Sh. Ram Bharosi
R/o Q.No.258, Type-I,
Baba Sahab Ambedkar Hospital,
Rohini, Delhi.
- Applicants
(By Advocate: Sh. Ajesh Luthra)
Vs.
1. Govt. of N.C.T. of Delhi,
Through the Secretary,
5th Floor, Delhi Sachivalaya,
New Delhi.
2. Health & Family Welfare Department,
Through its Principal Secretary,
GNCT of Delhi,
9th Level, A-Wing,
Delhi Secretariat, New Delhi-2.
3. The Medical Superintendent
G.B.Pant Hospital,
1, J.L.N.Marg, New Delhi-110002.
- Respondents
(By Advocate: Sh. Vijay Pandita)
2 OA No.3553/2012
ORDER
Hon'ble Shri V.N.Gaur, Member (A) The two applicants in the present case were appointed as Drivers in Delhi State Aids Control Society (DSACS) in 1999 on a consolidated salary of Rs.4000/-. They were later appointed as Messengers on temporary basis in the scale of pay of Rs.2550-3200 on 17.07.2000 and regularised by DSACS, with the approval of Chairman DSACS/Chief Secretary, Govt. of NCT of Delhi (GNCTD), w.e.f. 17.07.2002 vide order dated 08.08.2007. On 07.01.2008 DSACS issued an order stating that in view of the orders of Chief Secretary/ Chairman DSAC regularising the services of the applicant; that the State Government could bear the cost for such regularisation; and, that as there was no post of Messenger available in DSACS, the services of the applicants were placed at the disposal of Principal Secretary, Health and Family Welfare (H&FW) Department, GNCTD. The H&FW Department vide order dated 10.01.2008 posted the two applicants as Messengers at the G.B.Pant Hospital against the vacant posts of Messengers w.e.f. 07.01.2008 though they would continue to work in the H&FW Department on diverted capacity. On 03.11.2008 referring to an order of Addl. Secretary-II (H&FW) GNCTD dated 13.06.2008, G.B.Pant Hospital issued an order, regularising the services of the applicants as Messengers as 3 OA No.3553/2012 the employees of GNCTD under New Pension Scheme with effect from their date of joining i.e. 07.01.2008. The applicants have been representing to the respondents since the year 2009 for counting of their services rendered in DSACS, an autonomous body, for granting appropriate pay scales, arrears of salary, ACP/MACP benefits etc. By order dated 29.10.2010 the respondent no.3 rejected the representation of applicant no.2 stating that the applicant no.2 was regularised as an employee of State Government as a fresh recruit, therefore, he could not get the benefit of his past service. The representations of applicant no.1 starting from 14.05.2010 remain un-responded till date.
2. Learned counsel for the applicants submitted that it is settled law that the service rendered in an autonomous body would count for the purposes of pay fixation, ACP etc. if the employee is absorbed in the Government. According to the DOP&T instructions contained in OA dated 09.08.1999, an employee who is declared surplus in an organisation and transferred to another Government organisation, the regular service rendered by him in the previous organisations shall be counted along with his regular service in the new organisation for the purpose of giving financial upgradation under the ACP scheme. In this case it is an admitted fact that the applicants were regularised in the DSACS with the approval of Chief 4 OA No.3553/2012 Secretary, GNCTD in his capacity as Chairman, DSACS. It is also on record that there was no post of Messenger in DSACS and that is why applicants have been transferred to the State Government. The two conditions mentioned in the aforesaid DOP&T instructions are therefore met and that the respondents have clearly flouted the rules in depriving the applicants of all the benefits that would accrue to them consequent to counting of their past service in DSACS. He relied on a judgment of Hon'ble High Court of Delhi in WP (C) no.5145/2005 Govt. of NCT of Delhi through its Secretary (Services) vs. Shri Dinesh Verma decided on 21.03.2011 and GNCT of Delhi vs. Shri Sunil Kumar & ors., WP(C) no.10561/2004 decided on 21.03.2011.
3. Learned counsel for the respondents strongly contested the submission made by the learned counsel for the applicants and stated that OA was not maintainable for non-joinder of parties as the DSACS, who appointed the applicants initially, has not been made a party. Further being appointee of DSACS the applicants cannot claim regularisation of the period served in that organisation as it is not a sub office of GNCTD. The applicants were never absorbed or re-deployed as per Redeployed Rules 1990, which is applicable in the case of Government departments. They were only assigned duties in the GNCTD when the DSACS was not in a position to pay their 5 OA No.3553/2012 salary. The respondents are also not aware in what manner they were appointed and under what circumstances their services were regularised. The Finance and Services Departments of the State Government had examined the representations of the applicants but were of the view that the case of the applicants would fall in the category of fresh appointment in 2008 when they were transferred from DSACS, and therefore, the benefit of the past service can be given.
4. We have heard the learned counsels of both the parties and perused the record.
5. MA No. 2986/2012 filed by the application for condonation of delay is allowed for the reasons stated therein.
6. The two applicants were appointed initially on a consolidated salary of Rs.4000/- and later appointed as Messenger in the running pay scale of Rs.2550-3200. Nowhere in the record placed before us it is mentioned as to what was the method of recruitment followed for engaging the two applicants on consolidated pay, later for placing them in the regular scale, and regularising them as Messenger in DSACS with effect from 17.07.2002 by letter dated 08.08.2007. As mentioned in the letter dated 07.01.2008 issued by the Project Director of DSACS the regularisation of the applicants was done with the stipulation that the State Government would 6 OA No.3553/2012 bear the cost of such regularisation and since there was no post of Messenger in DSACS the services of both the applicants were to be placed at the disposal of Principal Secretary, H&FW department. The questions that would arise are:
(i) Since the applicants were regularised w.e.f. 17.07.2002 on the post of Messenger, obviously the posts of Messenger did exist in DSACS. What is not on record, is the stage at which these posts were either abolished or transferred or simply vanished.
(ii) If for some reason the post was not available, why DSACS did not formally declare the applicants surplus.
(iii) Though the regularisation of their transfer to the State Government was agreed to by the Chief Secretary, GNCTD in his capacity as Chairman, DSACS, records do not indicate issuance of any order by the Government conveying the consent of the State Government to accept the applicants on their rolls.
7. Notwithstanding the above questions, the record show that both the DSACS and the State Government were unanimous on the point that there was nothing wrong with the regularisation of the applicants in DSACS even if there was no post of Messenger in DSACS; and they had no budget to pay the salary; and, that the State Government would bear the cost 7 OA No.3553/2012 of regularisation. The order dated 07.01.2008 whereby the applicants were directed to report to Addl. Secretary-II, H&FW department and the letter dated 10.01.2008 placing the services of the applicants at the disposal of H&FW department read as follows:
"Govt. of National Capital Territory of Delhi OFFICE OF THE PROJECT DIRECTOR DELHI STATE AIDS CONTROL SOCIETY Dr. BSA Hospital, Dharamsala Block, Sector-06, Rohini, Delhi-110085.
No.F.2(47)/DSACS/Admn./99/5436-43 Dated: 7.1.2008 ORDER In view of orders of the Chief Secretary/Chairman (DSACS), dated 2-8-2007, regularizing the services of Sh. Kailash Chand Gupta and Sh. Banwari Lal Solanki, Messengers, Delhi State AIDS Control Society (in the pay scale of Rs.255-3200/-) and the stipulation that the State Government could bear the cost of such regularization and further, as there is no post of messengers available in DSACS, the services of both employees are placed at the disposal of Principal Secretary, Health & Family Welfare Department, Govt. of NCT of Delhi with direction to report to Addl. Secretary-II, Health & Family Welfare Department.
(Rashmi Krishnan) Project Director (DSACS) No.F.2(47)/DSACS/Admn./99/5436-43 Dated: 7.1.2008"
___ ___ ___ ___ "GOVT. OF NCT OF DELHI HEALTH & FAMILY WELFARE DEPARTMENT TECHNICAL RECRUITMENT CELL 9TH LEVEL, A-WING, DELHI SECRETARIAT, NEW DELHI No.F.4(77)/Class-IV/TRC/9617-25 Dated: 10/01/08 ORDER Consequent upon their joining in H&FW Department, Govt. of NCT of Delhi, the services of Sh. Kailash Chand Gupta and Sh. Banwari Lal Solanki, Messengers have been placed at the disposal of 8 OA No.3553/2012 H&FW Department, Govt. of NCT of Delhi w.e.f. 07.01.2008 vide Project Director, Delhi State AIDS Control Society office order No.F.2(47)/DSACS/Admn./99/5436-43 dated 07.01.2008 (copy enclosed).
Accordingly, these officials are hereby posted at GB Pant Hospital against the vacant post of Messengers w.e.f. 07.01.2008. However, they will continue to work in H&FW Department on diverted capacity from GB Pant Hospital and draw their salary from GB Pant Hospital.
Their further placement is as under:-
S.No. Name Place of posting
1 Sh. Kailash Chand Personal branch of ASH-II
Gupta
2 Sh. Banwari Lal Solanki EPC, H&FW Department
(RASHMI KRISHNAN)
ADDL. SECRETARY (H&FW)
No.F.4(77)/Class-IV/TRC/9617-25 Dated: 10/01/08"
8. It is thus clear that though there was no formal order issued by either DSACS or the State Governments in declaring the applicants as surplus employees or taking them on the rolls of the State Government in 2008 without any break, the G.B.Pant Hospital on whose strength the applicants were appointed in the Government of NCTD, issued an order on 03.11.2008 again regularising the services of the applicants with effect from the date of joining i.e. 07.01.2008.
9. From the aforementioned facts, the argument of the respondents that they were not aware how the applicants were regularised and that the applicants were taken on fresh recruitment, do not carry any conviction. It is true that DSACS as well as the State Government did not follow the laid 9 OA No.3553/2012 down procedure for declaring certain staff as surplus and then re-deploying them in other organisations but the penalty for not following the procedural requirements cannot be imposed on the applicants. For all practical purposes the two applicants were considered as surplus since there was no post of Messenger with DSACS with the full knowledge of the State Government as is evident from the letter dated 10.01.2008. It could not have been a routine transfer from an autonomous body which the State Government accepted without a demur at that time and "assigned duties" to G.B.Pant Hospital as the respondents would have us believe. The respondents have not place on record the relevant rules that permit assignment of duties to an employee of an autonomous body in the State Government in this manner. The applicants were subsequently regularised as Government employees in 2008. It can be concluded that the applicants were regular employees of DSACS from 2002, who were transferred to the State Government after being considered as surplus with the implicit knowledge and understanding of the State Government. We, therefore, do not find any justification for denying them the benefit of regular service rendered by the applicants in DSACS prior to joining the State Government.
10. In Dinesh Verma (supra) and Sunil Kumar (supra) Hon'ble High Court has dealt with a similar situation but the 10 OA No.3553/2012 major difference is that in that in that case the employees were formally declared surplus and formally deployed by the State Government. In such a situation, Hon'ble High Court took a view that the benefit of service rendered in the autonomous organisation prior to their redeployment will have to be taken into account while considering the benefits of ACP scheme. In the present case also having come to the conclusion that the applicants were surplus since there was no post of messenger in DSACS, and their redeployment with the full knowledge and consent of the DSACS and the State Government, we find no reason for denying the benefits of the period served in DSACS in accordance with the law on the subject. In our view the ratio laid down in the afore-quoted judgments of Hon'ble High Court would be applicable in this case also.
11. Considering the entire conspectus of the case and for the reasons discussed in the preceding paras, the OA is allowed and the respondents are directed to give the benefit of regular service rendered by the applicants in DSACS for the purpose of ACP/MACP and pay fixation.
( V.N. Gaur ) ( A.K.Bhardwaj ) Member (A) Member (J) March 09, 2016 'sd'