Central Administrative Tribunal - Delhi
Shri Amit Kumar Jain vs Govt. Of Nct Of Delhi on 8 February, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.517/2011 MA No.26/2012 Reserved on 31.01.2012 Pronounced on 08.02.2012 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Amit Kumar Jain, S/o Shri Aridaman Garg, Aged about 37 years, Presently posted as Assistant Commissioner (G-I & II), R/o C-9/42, Yamuna Vihar, Delhi-110053. Applicant (By Advocate : Shri Nilansh Gaur) Versus 1. Govt. of NCT of Delhi, Thorough Chief Secretary, Delhi Govt. Secretariat, Players Building, I.P. Estate, New Delhi. 2. Chief Executive Officer, Delhi Jal Board (DJB) Varunyalaya Phase-II, Karol Bagh, New Delhi-110005. Respondents. (By Advocate : Shri Nishakant Pandey) : ORDER :
Dr. Ramesh Chandra Panda, Member (A) MA No.26/2012 For the reasons stated in the MA, we recall the order dated 20.10.2011 whereby the adjournment request was declined and the OA was dismissed in default; and restore the OA to its original number. As the notice was issued to the parties on MA and OA, with the consent of the counsel for the parties, we finally heard the case on 31.01.2012.
OA No.517/2011Shri Amit Kumar Jain working as Zonal Revenue Officer (ZRO) in Delhi Jal Board (DJB), the applicant herein is aggrieved by the inaction on the part of the 2nd respondent in not granting him the salary attached to the post of Assistant Commissioner/Deputy Director of Revenue which he has been discharging vide order dated 13.2.2009 (Annexure-A1) on Current Duty Charge (CDC). It is his case that he has been found fit for the said higher post, by the Departmental Screening Committee and was entrusted the CDC by the Competent Authority. Despite his frequent representations and the last being on 21.7.2011, his grievance remained unredressed. Therefore, he has approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with following prayers :-
8.1 To allow this OA and direct respondents to disburse to applicant salary in the higher post of Assistant Commissioner/Deputy Director with difference of emoluments with effect from the 13.02.2009 with arrears.
8.2 To direct the respondents to continue to pay to the applicant salary attached to the higher pay scale of the posts on which he is current duty charge.
8.3 Any other relief, with this Honble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted.
3. Shri Nilansh Gaur, learned counsel for the applicant would submit that as per Fundamental Rules 49, if a Government servant holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of the independent posts at one time under the Government he would be entitled to ten percent of the presumptive pay of the additional charge if the said charge is held for a period of more than 45 days. The applicant holding the CDC of a higher post is entitled to the additional remuneration w.e.f. 13.2.2009. Denial of such additional pay and allowance, it is contended, is against the public policy as held by Honble Apex Court in Secretary-cum-Chief Engineer, Chandigarh Versus Hari Om Sharma [1998-2-SC SLJ-39]. It is further submitted that the applicant has been duly selected by the Committee for the higher post and as such he is entitled to the pay and allowances of the higher post and his case is fully covered by the judgment of this Tribunal in Sumer Kumar Datta Versus Government of NCT of Delhi [OA No.853/2007 decided on 13.12.2007]. Shri Gaur, therefore, urges to allow the OA with appropriate direction to the respondents.
4. While issuing notice to the respondents on 02.02.2011, it was stated by the Tribunal that the applicant has been entrusted the CDC of the post of Assistant Commissioner and even though it may be mentioned in the order that the entrustment of CDC will be in the same pay scale but the same shall not be binding. Such clause would be against the principles of natural justice.
5. The respondents, on receipt of the notice, have entered appearance through Shri Nishakant Pandey, learned counsel and submitted the reply affidavit opposing the grounds taken by the applicant. We heard the parties on 12.9.2011 and reserved the judgment. However, on conclusion of arguments Shri Nishakant Pandey handed over to us a copy of the recent judgment of Honble Supreme Court in Surendra Nath Pandey and Others Versus Uttar Pradesh Cooperative Bank Ltd. and Another [2010-12-SCC-400]. While preparing the judgment, we thought that the matter would need further clarification in view of the said judgment. Accordingly, on 14.9.2011, we put the matter to the parties for hearing on 28.9.2011. On 17.01.2012, when the case came up for hearing, the respondents were allowed to file an additional affidavit to bring on record that the applicant was being paid regular pay scale of Assistant Commissioner (Revenue) from the date he had been promoted on ad hoc basis. The said affidavit was filed on 27.1.2012 and the case was finally heard on 31.1.2012.
6. The respondents through their additional affidavit have furnished a copy of the order dated 01.07.2011, as per which the applicant has been promoted on ad hoc basis to the post of Assistant Commissioner/Deputy Director of Revenue/Secretary to Chairperson/Secretary to CEO in the Pay Band of Rs.15,600-39100/- with grade pay of Rs.6600 plus usual allowances as admissible under the Rules. It is noticed that the applicant has been given promotion on adhoc basis to the level of the post which he was claiming as he was under the current duty charge with the admissible pay scale meant for the higher post. It is contended by Shri Nishakant Pandey, learned counsel for the respondents that the applicant is not entitled to the pay scale of Assistant Commissioner for the period that he has been on current duty charge, as the applicant himself accepted the offer to act on current duty charge and the said current duty charge was a stop gap arrangement till the formalities are to be completed for his promotion on adhoc basis. He submits that granting the applicant higher salary for the period spent on current duty charge would be a far reaching consequences which he submits that the Tribunal should avoid .
7. Having heard the contentions of the rival parties, we perused the pleadings and have gone through the judgments.
8. Admittedly, the fact is that applicant has accepted the offer of his appointment on current duty charge in the post of Assistant Commissioner, the order of CDC inter alia has one of the conditions that the entrustment of current duty charge shall be in his own pay scale of the post he is holding. Once the applicant has accepted the offer of appointment to work on CDC in the said post for a short period, he cannot claim the salary of the said post. It is also noticed that he on promotion as the Assistant Commissioner has issued the appointment letters to nine such officers who have been put in current duty charge as late as July, 2011. This indicates that DJB has been following the practice for temporary/ stop gap arrangement of current duty charge of a higher post. The current duty charge is not additional charge. The applicant on CDC got the pay of his previous post and discharged the function of the CDC post. Therefore, the FR 49 would not be applicable as the applicant was not holding dual charges but was only holding one charge of a higher post with current duty charge. We have also perused the judgment of Honble Supreme Court in Surendra Nath Pandeys case (supra). The relevant part of the judgment reads as follows :-
9. We are of the view that the real issue is whether persons employed on stop gap or ad hoc basis were entitled to the benefit of pay scales with increments during the period of service on daily or stop-gap or ad hoc basis. Unless the appellants are able to establish that either under the contract, or applicable rules, or settled principles of service jurisprudence, they are entitled to the benefit of pay scale with increments during the period of their stop-gap/ad-hoc service, it cannot be said the appellants have the right to claim the benefit of pay scales with increments.
10. Admittedly, the appellants do not claim the said relief on the basis of any rules or contract. This Court in a series of decisions [See for example -- State of Haryana vs. Jasmer Singh- 1996(11) SCC 77 and State of Haryana vs. Tilak Raj - 2003 (6) SCC 123], has held that the daily wage or ad hoc employees were not entitled to the benefit of regular pay scales with increments, by claiming parity with regular employees. Therefore, it is clear that the appellants did not have a right to claim the said relief.
9. Thus, the above judgment indicates that when the persons are employed as a stop gap or temporary arrangement, they will be entitled to the benefits of pay scales with increments during the period of service on daily or stop gap or ad hoc basis only if they are able to establish that either in the contract or applicable rules, or settled principles of service jurisprudence are entitled to the benefits of payscales with increments during the period of their stop gap arrangements. As per the Rules of DJB, current duty charge does not grant the higher pay scales and the order issued for current charge does not permit pay scale of higher post. But the, promotion on adhoc basis to the said post, as per DJB order grants him the pay scales for the post of Assistant Commissioner. The respondents exactly have done the same.
10. Taking into the account the totality of facts and circumstances of the case and taking note of the fact that the applicant has already been promoted to the post of Assistant Commissioner and is drawing the pay scales of the said post w.e.f. his ad hoc promotion, we are of the considered view that the applicant would not be entitled to pay and allowances of the Assistant Commissioners post held by him on current duty charge.
12. Finding no merits in the OA, the same is dismissed leaving the parties to meet their respective costs.
( Dr. Ramesh Chandra Panda ) ( V.K. Bali )
Member (A) Chairman
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