Central Administrative Tribunal - Delhi
Mahavir Singh vs Government Of Nct Of Delhi Through on 23 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1891/2010
New Delhi, this the 23rd day of May, 2011
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE DR. A.K. MISHRA, MEMBER (A)
Mahavir Singh
S/o Sh. Behari Lal,
R/o Flat No.1179, Pocket-3,
Sector-19, Dwarka,
New Delhi-110075. Applicant.
(By Advocate: Shri Satish Kumar)
versus
1. Government of NCT of Delhi through
its Chief Secretary,
Secretariat, ITO,
New Delhi.
2. D.G., Prison
Government of NCT of Delhi,
Tihar Jail, New Delhi-110064.
3. UPSC,
Through its Secretary,
Dholpur House,
Shahjahan Road, New Delhi. Respondents.
(By Advocate: Shri Vijay Pandita, Counsel for respondent No.1 &2.
Ms. Alka Sharma, Counsel for respondent No.3).
ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has sought the following relief:-
(8.1) direct the respondents to frame the required recruitment rules as expeditiously as possible and preferably within a period of 2 months from today;
(8.2) direct the respondents to pay to the applicant salary admissible on the post of Superintendent Jail from 9.5.2007 till date with interest;
(8.3) direct the respondents to grant promotion to the post of Superintendent on regular basis on finalization of the Recruitment Rules with all consequential benefits.
(8.4) direct the respondents to consider the applicant for promotion to further higher post in accordance with the recruitment rules with all the consequential benefits;
(8.5) direct the respondents to pay cost to the applicant for compelling him to long litigation almost throughout his service career;
(8.6) direct the respondents to pay compensation to the applicant for suffering mental tension & agony, financial loss and physical pain.
2. It is submitted by the applicant that he was working as Deputy Superintendent Grade-I with respondents. The Recruitment Rules (hereinafter referred to as RRs) for the post of Superintendent have not been framed so far as a result of which respondents are giving ad hoc promotions to the Deputy Superintendent Grade-I. In view of above, vide order dated 9.5.2007, applicant was given ad hoc promotion to the post of Superintendent and further asked to look after the charge of CJ-2 till further orders in addition to his own duties vide order dated 31.3.2009.
3. Grievance of the applicant is that similarly situated person Shri B.S. Jarial had filed OA No. 2447/2009 before this Tribunal which was disposed of vide judgment dated 26.4.2010 giving directions to the respondents to frame the required RRs, for which the exercise is already on for more than a decade, as expeditiously as possible and preferably within a period of three months from today and in case there be any difficulty in complying with the directions within the time frame, to seek extension by moving an application. Respondents were further directed to make over the arrears of applicants salary admissible on the post of Superintendent Jail from 2003 till that date. The request for interest was however rejected.
4. It is submitted by the counsel for the applicant that it was as a result of judgment in Jarials case that applicant has been reverted back to the post of Deputy Superintendent vide order dated 10.5.2010 (page 20) which is absolutely wrong because he cannot be made to suffer for inaction on the part of the respondents.
5. Respondents have stated that applicant was never promoted to the post of Superintendent (Central Jail). He was merely asked to look after the work of SCJ-7 in addition to his own duties till a substitute is provided by the Services Department vide order dated 9.5.2007, therefore, it cannot be stated that applicant has either been reverted or demoted. They have further stated that claim for salary was not admissible under FR 49.
6. As far as amendment of RRs for the post of Superintendent is concerned, they have stated it has already been taken up by the Government of NCT of Delhi with the competent authority and it is still under finalization. They have further stated that other similarly situated persons have also been transferred to HQ vide order dated 22.7.2010. It is, therefore, wrong to state that other similarly situated persons are allowed to continue on the post of Superintendent.
7. As far as the directions given by this court in the case of B.S. Jarial (supra) are concerned, Government of NCT of Delhi had moved an application seeking extension of time and time has been granted vide order dated 7.9.2010. They have thus prayed that the OA may be dismissed.
8. We have heard all the counsel and perused the pleadings as well.
9. As far as prayer No.(8.1) and (8.2) are concerned, it has already been dealt with in extenso by the Court No.I in B.S. Jarial Vs. Government of NCT of Delhi and others (OA No. 2447/2009) in its judgment dated 26.4.2010. Perusal of the same shows that a direction has already been given to frame the required RRs for the post of Superintendent and also to pay salary for the post of Superintendent from the date he had held this post. The judgment dated 26.4.2010 in B.S. Jarials case was carried by the Department to the Honble High Court of Delhi by filing Writ Petition No. 5742/2010. The said Writ Petition was dismissed by observing as follows:-
2. It is no doubt true that in the order directing him to work as a Superintendent (Jail) it has been indicated that he would not be paid salary for the post in question, but we agree with the Tribunal that if a person is made to work for years together and discharge the functions and duties of a higher post, it would be most unjust to deny him wages in the said post. Needless to state, estoppel has no place in a situation of the kind for the reason the employee has no option but to work at a post at the dictate of the employer for his not so doing would attract penalty proceedings against him.
3. We can certainly appreciate a stop-gap arrangement for a limited duration when a person is told to discharge the functions and duties of a higher post till the same is filled up and till then is paid wages to the post he holds substantively, but when the same acquires dimensions of working for years together, and as in the instant case, for more than 7 years it certainly would amount to a usurious act on the part of the employer.
4. We concur with the reasoning of the Tribunal and hence dismiss the writ petition in limine.
meaning thereby that the direction given by the Tribunal has already been upheld by the Honble High Court of Delhi by passing a reasoned order. The respondents did not rest here. They carried the matter to the Honble Supreme Court by filing SLP ( Civil) No.4057/2011, which too has been dismissed on 11.3.2011 by giving 4 weeks time to the respondents herein to implement the orders passed by the Tribunal on 26.4.2010. We were informed by the counsel for the respondents that the SLP was limited to the question of payment of salary to Shri B.S. Jarial, who was to work on the post of Superintendent in addition to his work. The very fact that SLP has been dismissed by the Supreme Court means that as far as direction to pay the salary to Shri B.S. Jarial for the post of Superintendent is concerned, it has been upheld up to the Honble Supreme Court. Since applicant was also made to work on the higher post of Superintendent as back as on 9.5.2007 and he continued to perform the duties of Superintendent till May, 2010, we give same directions to the respondents, namely, to give the salary of Superintendent to the applicant from 9.5.2007 till 9.5.2010, the date he has been posted back as Dy. Superintendent. We would like to clarify that applicant would not be entitled to any interest.
10. As far as the second direction is concerned, i.e., to frame the required RRs, we have already noted above that direction has already been given by the Co-ordinate Bench to frame the rules for the post of Superintendent in which the time has been extended by the Tribunal itself vide order dated 7.9.2010, therefore, that part is already taken care of in the case of B.S. Jarial. We need not repeat the same direction.
11. Coming to the third prayer of the applicant, namely, to quash the order dated 10.5.2010, we find no force in the contention because vide order dated 9.5.2007 (page 45), applicant was only directed to look after the work of Superintendent in addition to his own duties till a substitute is provided by the Services Department. By no stretch of imagination it can be stated that the applicant was promoted on ad hoc basis to work as Superintendent. Since he was only directed to look after the work of Superintendent vide order dated 9.5.2007, he would not get an indefeasible right to work as Superintendent. By the impugned order dated 10.5.2010 applicant has only been transferred to PHQ and shown as Dy. Superintendent. Since applicant had no right to continue on the post of Superintendent as a matter of right, it can neither be termed as reversion nor demotion because he has only been placed in his substantive post. In other words, the look after charge has been discontinued, therefore, we find no force in the contention of the applicant that he has been treated arbitrarily. Similarly his prayer that respondents be directed to consider him for promotion to the post of Superintendent can also not be granted at this stage because RRs for the post of Superintendent have not yet been finalized. In the absence of RRs, no direction can be given. However, once the RRs are published and if applicant is within the zone of consideration and fulfills the requirement of the RRs, we are sure respondents would consider him for the post of Superintendent in accordance with law.
12. With the above directions, this OA stands disposed of. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh