Central Administrative Tribunal - Delhi
Bhupinder Singh vs Govt. Of Nct Of Delhi & Ors. Through on 11 July, 2014
Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.4157/2010
Order Reserved on: 24.04.2014
Order pronounced on 11.07.2014
Honble Shri V. Ajay Kumar, Member (J)
Honble Shri P. K. Basu, Member (A)
1. Bhupinder Singh, S/o Shri Gyan Singh,
R/o C-115, Tomar Colony, Burari, Delhi.
2. Achal Kumar, S/o Deeg Ram,
House No.102,
Village & Post Office Jounti, Delhi.
3. Dharmvir Singh, S/o Shri Suresh,
D-37, D-Block, Shyam Vihar, Phase-1,
Dinderpur njf, Delhi-110043.
4. Vimal Kumar, S/o Baban Singh,
E-19/5, Sec.-3, Rohini, Delhi-110085.
5. Padam Singh, S/o Shri Ramesh Kumar,
Sec-23, Home No.801, Sonipat.
6. Pankaj Kumar, S/o Sh. Narayan Singh,
F-578, Madipur Colony, Delhi-110063.
7. Hemant Kumar, S/o Late Sh. Yogendra,
F-8/126, Sec-15, Rohini, Delhi-110085.
8. Love Kumar, S/o Shri Narendra Singh,
B-1447, Yamuna Vihar, Delhi.
9. Rajaneesh Dabas,
S/o Sh. Virendra Kumar Dabas,
166, P-2, Sec-23, Rohini, Delhi-110085.
10. Sandeep Dabas, S/o K.S. Dabas,
Plat No.100, Tarun Apartment,
Sec-13, Rohini, Delhi.
11. Manoj Kumar Ambasta,
S/o Late Sh. C.P. Ambasta,
134, Neelgiri Apartment,
Sec-9, Rohini, Delhi-110085.
12. Sunil Kumar, S/o Shri Dharm Pal,
C-598, Sec-1, Rohini, Delhi.
13. Naveen Hinduja, S/o Shyam Lal,
F-4/116, Sec-16, Rohini, Delhi-110089.
14. R.R. Upadhyay, S/o K.M. Upadhyay,
Kamla Nehru Nagar, Ghaziabad.
15. Mukesh Solanki, S/o Mahavir Singh,
378, Pooth Kalan, Delhi.
16. Mukesh Kumar, S/o Shri J.D. Verma,
D.D.A. (S.F.S.) Flat No.73, Sec-5,
Pocket-1, Dwarka, Delhi-110075.
17. Sachin Sharma, S/o R.L. Sharma,
B-292, Timarpur, Delhi-110054.
18. Devendra Kumar, S/o Shri Nain Singh,
A-27A, Jain Park Matiala, Uttam Nagar,
Delhi-110059.
19. Narender, S/o Sh. Ram Nath,
W-2-165, Tilak Nagar, Delhi.
20. M.L. Pushkar, S/o Arjun Pandit,
C-1/305, Yamuna Vihar, Delhi-110053.
21. Jitendra Kumar, S/o Rajendra Singh,
Village Mungesh Pur, Delhi-110039.
22. Tej Ram, S/o Late Sh. Hari Singh,
D-34, Shiv Vihar, Karala, Delhi-110081.
23. Om Prakash, S/o Sh. Hukam Singh,
610, V.P.O. Jounti, Delhi-110081.
24. Sanjay Kumar, S/o Sh. Anup Singh,
H.No.1533, Sec-3, Rohtak, Haryana.
25. Sumit Shokhanda, S/o S.P. Shokhanda,
99, Harsukha Apartment, Plot No.4,
Sec-7, Dwaraka, Delhi.
26. Ramesh Kumar Verma, S/o Hanuman Prasad,
C-9/234, Sultanpuri, Delhi-110086.
27. Rajesh Kumar, S/o Madan Lal,
B-1523/1, Shastri Nagar, Delhi-110052.
28. Hariom, S/o Shori Lal,
House No.644/25,
Patel Nagar, Rohtak, Haryana.
29. M.P. Singh, S/o Bala Prasad,
193/C-9, Sec-7, Rohini, Delhi-110085.
30. Desh Raj, S/o Babu Lal,
F-62, Madi Pur Colony.
31. Kapil, S/o Dhan Singh Yadav,
House No.202, V.P.O. Haider Pur,
Delhi-110033.
32. Shrikant Gautam, S/o Rakesh Kumar Gautam,
277, Hastal Village, Delhi-110059.
33. Pawan Kumar Parashar, S/o D.L. Parashar,
House No.32/8, Indira Vikas Colony,
King Way Camp.
34. Kamal Kishor, S/o Ramesh Kumar,
C-650, J.J. Colony, Hastsal Road, Uttam Nagar.
35. Ravindra Dalal, S/o Karatar Singh,
House No.38, C.P.O. Nilothi, Delhi.
36. Sandeep, S/o Shri Prakash,
Galla Khurd, Delhi-110071.
37. Dharmender, S/o Devender Singh,
233, Village Pitam Pura, Delhi-110034.
38. Jogendra Singh Rana,
S/o Shri Fate Singh Rana,
House No.698, Vill. Post Khera Khurd,
Delhi-110082.
39. Amitabh, S/o Naveen Chandra,
F D 26 C Pitampura, Delhi.
40. Hemant Yadav, S/o Rakesh Kumar Yadav,
C-296, Surajmal Vihar, Delhi-110092.
41. Balwant Singh, S/o Late Sh. Raghuvir Singh,
D2A/91, Janak Puri, Delhi.
42. Rudal Prasad, S/o Sh. Jagannath Prasad,
42-F, Hari Nagar, Delhi.
43. Amit Chhabaria,
S/o Jagadish Chhabaria,
G-12 B, Street No.5,
West Arjun Nagar, Delhi-110051.
44. Sanjeev Kumar, S/o Sh. Pritam Singh,
58, Sharda Apartment, West Enclave,
Pitampura, Delhi.
45. Sunil Kumar, S/o Sh. Umaraw Singh,
RZ-A-122, Phase 4, Prem Nagar,
Najaf Garh, Delhi-110043.
46. Jashvinder Singh, S/o Gurbir Singh,
1039, New Post Office Road,
Gandhi Nagar, Delhi-110031.
47. Aravind Kumar, S/o Gopal Prasad,
C-160, Sec-18, Rohini, Delhi-110089.
48. Avanish Kumar, S/o Sh. Balmiki Sharma,
C-3/59, Yamuna Vihar, Delhi-110054.
49. Amar Kumar, S/o Sh. B.D. Vikal,
B-335, Delhi Admin Flats,
Timar Pur, Delhi-110054.
50. Brijesh Kumar, S/o Sh. Virpal Singh,
L-149, J.J. Calony, Wazir Pur,
Delhi-110052.
51. Virendra Pal Singh,
S/o Sh. Jasawant Singh,
G-5/1/1040, Mansarowar Park,
Shahadara, Delhi. .. Applicants
(By Advocate : Shri M.K. Bhardwaj)
Versus
Govt. of NCT of Delhi & Ors. Through
1. The Lt. Governor,
Govt. of NCT of Delhi,
New Delhi-54.
2. The Chief Secretary,
Govt. of NCT of Delhi,
Delhi Secretariat,
New Delhi-02.
3. The Principal Secretary, Services Deptt.
Govt. of NCT of Delhi,
Delhi Secretariat,
New Delhi-02.
4. The Principal Secretary, Finance Deptt.
Govt. of NCT of Delhi,
Delhi Secretariat,
New Delhi-02. .. Respondents
(By Advocate : Shri Vijay Pandita)
O R D E R
By V. Ajay Kumar, Member (J):
The applicants, who are 51 in number, and working as Assistants/Head Clerks/Inspectors/Naib Thasildar in Grade-II (DASS), in the respondent-NCTD, filed the present OA seeking a direction to the respondents, to grant the Grade Pay of Rs.4600 in Pay Band-II of Rs.9300-34800 (Revised) with pre revised scale of Rs.6500-10500 retrospectively with all consequential benefits, including arrears of pay.
2. It is submitted that in exercise of the power conferred under the proviso to Article 309 of the Constitution of India read with the Government of India, Ministry of Home Affairs, Notification No.F.27/59-HIM(i) dated 13.07.1959, Delhi Administration Subordinate Services were constituted with 4 Grades, namely, Grade-I, Grade-II, Grade-III and Grade-IV. The said posts were treated as Central Civil Posts. The recruitment in the aforesaid Grade II (DASS) was made through Staff Selection Commission (SSC), like Central Subordinate Services (CSS)/Central Secretariat Subordinate Services (CSSS). Since there was no difference in the nature of duties, functions in the aforesaid Grade as well as similar cadres under Central Government, recruitment was made on the basis of common competitive examination. The respondents are maintaining historical pay parity between the Grade-II (DASS) of NCTD and the CSS/CSSS. Further, whenever any disparity arose, the same was immediately removed on making representations.
3. When disparity was caused by not giving the pay scale of Rs.5500-9000 to the applicants as well as Stenographers Grade-II at par with their counter parts in Central Government, a letter dated 18.03.2005 was written by the Govt. of NCTD to the Government of India, for restoring the historical pay parity between the two. In the meanwhile, the pay scale of Assistants and Personal Assistants in CSS and CSSS was again revised to Rs.6500-10500. Representations were made requesting to revise the scale of Grade-II (DASS) to Rs.6500-10500 w.e.f. 15.09.2006.
4. Though the Government of NCTD admitted in the year 2004 itself that Grade-II (DASS) of Delhi Government discharge the same duties and responsibilities like their counter part Assistants in Government of India, but no effective steps were taken to maintain the pay parity.
5. After considering all the facts, the respondent-NCTD revised the pay scale of the applicants to Rs.5500-9000 w.e.f. 01.12.1996 vide Order dated 01.02.2007 (Annexure A7). However, the request of the applicants, for granting of the pay scale of Rs.6500-10500, was finally granted, by maintaining the pay parity and by implementing the 6th CPC recommendations, w.e.f. 01.01.2006 and accordingly the applicants were placed in the same Pay Band of PB-2 of Rs.9300-34800 (Revised) with grade pay of Rs.4200.
6. After implementation of the recommendations of the 6th CPC, the Government of India issued OM No.1/1/2008-1C dated 16.11.2009 (Annexure A1) vide which pay structure of Grade Pay of Rs.4600 in the Pay Band PB-2 was extended to Assistants belonging to CSS/AFHQ Services, Ministry of External Affairs, Services B and Railway Board Secretariat Services and Personal Assistants w.e.f. 01.01.2006. In the said OM, it has been categorically mentioned that one of the reasons due to which Assistants of Central Secretariat are being granted Grade Pay of Rs.4600 is the fact that there is an element of direct recruitment to the post and that to through an all India competitive examination. After the aforesaid OM, the respondents were required to grant the Grade Pay of Rs.4600 to the applicants also as they were also fulfilling the aforesaid condition of having an element of direct recruitment through all India competitive examination, even otherwise the pay parity between the two cadres was also to be maintained.
7. Since the representations made by the applicants were unanswered by the respondents, they filed the present OA.
8. The respondents vide their counter denied the OA averments. It is submitted that fixation of pay scale and maintaining parity in pay are the functions of the executive and that the Courts, ordinarily shall not interfere with the same. Considering the representations of the applicants, the respondents vide Order dated 01.02.2007, granted the pay scale of Rs.5500-9000 to Grade-II (DASS) and Stenographer Grade-II of Government of NCTD, w.e.f. 01.12.2006, initially, and later the said scale was granted w.e.f. 01.01.1996 on notional basis with actual benefit w.e.f. 01.12.2006. However, the Ministry of Home Affairs vide letter Annexure R4 dated 09.04.2010 (Annexure R4) stated that the Ministry of Finance (Department of Expenditure), Govt. of India is the competent authority for creating / upgrading of posts and granting higher pay scales, and, therefore, any case of grant of higher pay scales to any posts, including grant of higher pay scales on non-functional basis without the approval of Ministry of Finance is ab initio invalid. In the same letter the respondent-NCTD was advised to immediately withdraw its orders regarding upgradation of the pay scale of Grade-II (DASS) from Rs.5000-8000 to Rs.5500-9000, and make recoveries if any. It was also categorically stated that since DASS Grade-II was placed in the pre-revised pay scale of Rs.5000-8000 the said post has to be placed in the corresponding Pay Band in PB-2 with grade pay of Rs.4200. The letter dated 02.09.2013 written by the respondent-NCTD to the Government of India explaining the circumstances and the identical duties and responsibilities of the post of Grade-II (DASS), with their counter parts in the Government of India while bringing to their notice about the recommendations of the 6th CPC at Para 7.57.5, is unanswered till date. Hence, it is submitted that in view of Annexure R4 dated 09.04.2010 of the Govt. of India, Ministry of Home Affairs that the Ministry of Finance (Department of Expenditure) is the competent authority to grant higher pay scales to the applicants and that the present OA filed without impleading Government of India as one of the party is liable to be dismissed on the sole ground of non-joinder of necessary party.
9. Heard Shri M.K.Bhardwaj, learned counsel for the applicants and Shri Vijay Pandita, learned counsel for the respondents, and have been through the pleadings on record.
10. The 6th Central Pay Commission in its recommendation at Para 7.57.5 recommended as follows:
Secretariat Staff 7.57.5. The Commission has recommended parity between Central Secretariat and field staff in all Central Government organizations. This parity justifiably has to be extended to the Secretariat staff of the UTs whose pay scales are generally on par with those in the field organizations of the Central Government. The Commission, accordingly, recommends pay scales on par with those existing in the Central Secretariat for the Secretariat staff of various U.Ts.
11. The learned counsel for the applicants vehemently pursued this Tribunal to convince that the respondent-NCTD itself is the competent authority to grant higher pay scales to them, but not taken any steps to implead the Government of India as one of the respondents to the OA.
12. When it is the case of the Union of India as stated by itself in its Annexure R4 letter dated 09.04.2010, and as admitted and contended by the respondent-NCTD against which a direction is sought to be issued, that the competent authority for granting higher pay scales is the Government of India, and in the absence of the said party as one of the respondents to the OA, no finding can be given either on that issue or on the merits of the case.
13. In J.S.Yadav vs. State of UP, (2011) 6 SCC 570, the Honble Supreme Court observed as under:
32. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order I Rule 9, of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the plaintiff/petitioner may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail.
14. In view of the aforesaid observation and discussed as above, we dismiss the present OA on the ground of non-joinder of necessary party, however, without going into the other merits of the case.
15. It is made clear that this order shall not preclude the applicants from filing a fresh OA by making all the necessary parties as respondents, if they are so advised, in accordance with law. There shall be no order as to costs.
(P.K.Basu) (V. Ajay Kumar) Member(A) Member(J) /nsnrvak/