Central Administrative Tribunal - Delhi
Mohd. Ahmed Ansari S/O L.A. Ansari vs Municipal Corporation Of Delhi on 17 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1310 of 2010 This the 17th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Mohd. Ahmed Ansari s/o L.A. Ansari, R/o C-1/104, Taj Enclave, Delhi-110051. Applicant ( By Shri Pradeep Dahiya, Advocate ) Versus Municipal Corporation of Delhi through its Commissioner, Town Hall, Chandni Chowk, Delhi. Respondent ( By Shri K. M. Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Mohd. Ahmed Ansari, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a direction to be issued to the respondents to consider him for grant of grade/scale of Rs.12000-16500 (pre-revised scale Rs.3700-5000) after completion of two years service in 1993; Specialist Grade-I scale of Rs.14300-18300 (pre-revised scale Rs,4500-5700) after completion of six years service in 1999; and Supertime scale of Rs.18400-22400 (pre-revised scale Rs.5900-6700) in 2002 after completion of three years service in terms of the office order dated 14.5.1992, and if found fit, to grant such grade/scale with all consequential benefits including pay and allowances. The applicant also seeks a direction to be issued to the respondent to grant him financial benefits of promotional post for the period from October, 2007 to 31.5.2008.
2. Brief facts of the case as projected in the Application for the reliefs as indicated above, would reveal that the applicant along with three others filed a writ petition bearing WP(C) No.2414/1998 in the Honble High Court of Delhi challenging the recruitment regulations for the post of Unani Hakim notified on 10.1.1983 taking away the avenue of promotion for the departmental candidates. The applicant also prayed that he along with others be also considered for promotion to the post of Unani Hakim on the basis of earlier regulations of the year 1979. Vide judgment dated 10.9.2007 the writ aforesaid was disposed of with directions to the respondents to fill up four vacant posts of Unani Hakim by considering the candidature of the applicant and others, and if they were considered fit for promotion, they be given notional promotions from the dates they were found eligible, and that their pay be fixed accordingly, but they were not to be paid arrears of pay for the intervening period. Pursuant to directions given by the High Court, vide office order dated 13.6.2008 the applicant was promoted to the post of Medical Officer (Unani)/Unani Hakim in the pay scale of Rs.8000-13500 w.e.f. 22.11.1984. Vide another office order dated 7.11.2008 the pay of the applicant was fixed at Rs.650/- w.e.f. 22.11.1984 in the promoted scale of Rs.650-1200; Rs.2275/- + Rs.600/- NPA w.e.f. 1.1.1986 in the pay scale of Rs.2200-4000; and Rs.10200/- w.e.f. 1.1.1996 in the pay scale of Rs.8000-13500. Vide yet another office order dated 18.8.2009, the applicant was granted promoted/placement scale of Rs.3000-4500 w.e.f. 5.12.1991 in the post of SMO, which was revised to Rs.10000-15200 in the 5th CPC w.e.f. 1.1.1996, and further placement in the pay scale of Rs.12000-16500 in the post of CMO w.e.f. 25.1.1999, which has been revised to Rs.15600-39100 + Rs.7600/- Grade Pay in the 6th CPC w.e.f. 1.1.2006. It is the case of the applicant that as per office order dated 14.5.1992 issued by Commissioner, MCD all Specialist Gr.-II officers were to be promoted to the scale of Rs.3700-5000 on completion of two years of service in the scale of Rs.3000-5000, subject to seniority-cum-fitness. The order further provided that the Specialist Gr.II officers with six years service in the scale of Rs.3700-5000 would be placed in the scale of Rs.4500-5700 according to existing guidelines which inter alia provided for overall good assessment and at least two very good assessments during the preceding five years. On their placement in the scale of Rs.4500-5700, they were to be designated as Specialist Grade-I officers. The order further provided that all Specialist Grade-I officers would be eligible for consideration for promotion to the Supertime Grade (Clinical) level posts (Rs.5900-6700) subject to availability of vacancies, provided that they have completed at least three years of regular service in the scale of Rs.4500-5700 irrespective of whether the said service was performed in the Functional Grade or Non Functional Grade of Rs.4500-5700. The Honble High Court, it is the case of the applicant, had given directions to the respondents to consider the candidature of the applicant within two months from the date of receipt of the order. The order by the High Court was passed on 10.9.2007, whereas the order came to be passed by the respondents on 13.6.2008. The time prescribed by the High Court would expire on 10.11.2007, and from that date till such time the applicant retired, the applicant claims actual pay and not notional pay.
3. During the course of arguments, Shri Pradeep Dahiya, learned counsel representing the applicant would not dispute that the pay of the applicant as mentioned in two orders dated 7.11.2008 and 18.8.2009 (Annexure A-3 and A-4) has been correctly fixed, but it is urged that the applicant would be entitled to such pay fixation after having spent the period in service as mentioned above, and if worked out accordingly, the applicant would be given pay scales as given by the respondents, from earlier dates.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. It has inter alia been pleaded that Medical Officers in ISM, Homeopathy and Unani have been given time-bound promotion as per Tikku Committee recommendations only up to the pay scale of Rs.4500-5700 (pre-revised) as there is no post in Health Department in respect of ISM & Homeopathy cadre above the scale of Rs.4500-5700 (pre-revised). It is further pleaded that the grades sought by the applicant cannot be considered as these grades would pertain to Specialist cadre and these are not applicable to ISM cadre to which the applicant belongs. It is then pleaded that the applicant was promoted to the post of Medical Officer (Unani) on notional basis w.e.f. 22.11.1984 in compliance of the order/judgment of the Honble High Court dated 10.9.2007.
5. This matter had earlier also come up for hearing before us, when after hearing the arguments we reserved the judgment on 10.5.2011. While, however, preparing the judgment, we found some difficulty and required clarifications, as may be made out from our order dated 12.5.2011.
6. We have heard the learned counsel representing the parties afresh and find no merit whatsoever in the plea raised by the applicant that he would be entitled to pay scales as mentioned above from the dates as asked for by him. The case has to be looked in the background under which the directions came to be passed by the High Court. The judgment recorded by the Honble Division Bench of the High Court in that regard would reveal that the applicant and three others were appointed as Compounder (Unani) in the pay scale of Rs.1385-2200 by the respondent MCD and posted in various dispensaries. They were appointed between 11.12.1975 and 23.11.1979. MCD framed recruitment regulations for the posts of Vaids, Hakims and Homeopathic doctors vide resolution dated 9.2.1979 whereby the earlier regulations were amended and as per these regulations, post of Unani Hakim was to be filled 50% by direct recruitment and 50% by departmental promotion. Prior to the said amendment, whereas 75% posts were used to be filled by direct recruitment, 25% posts were filled by promotion. The colleagues of the petitioners before the High Court, who were appointed as Compounder/Unani, were promoted in the 50% quota. The eligibility for promotion prescribed under rules was five years experience as Compounder with degree or diploma in Unani System of Medicines. Whereas, two of the petitioners before the High Court completed five years before the rules of 1984 came into being, other two became eligible after the rules aforesaid came to be notified. Before the case of the petitioners for promotion could be considered, new rules came about in 1984 whereby the quota for promotion was abolished. All promotional posts of Unani Hakims were to be filled by direct recruitment. It is in wake of facts and circumstances as mentioned above that the writ challenging the validity of the rules of 1984 came to be filed. The challenge to the vires of the rules was repelled. The High Court then focused upon the peculiar facts of the case before it. It was noted that with the amendment in rules, the petitioners were totally debarred from getting promotion or even appointment as direct recruits to the post of Unani Hakims. The Honble Division Bench further noted that the promotional quota had been abolished and, therefore, the petitioners could not get promotion to the said post through this channel, and with this channel having been closed for the petitioners, they would not get even one promotion in their service career. The petitioners, it was observed, had 18 to 22 years of service at their credit by the time they had filed the writ petition. While taking into consideration the judicial precedents in the case of Council of Scientific and Industrial Research v K. G. S. Bhatt [AIR 1989 SC 1972] and some other decisions of the Honble Supreme Court, wherein it was observed that there should be at least one promotion available to an employee in his service career, it was observed that insofar as, two of the petitioners were concerned, they had become eligible for promotion to the post of Unani Hakim before the promulgation of the 1984 regulations, and, therefore, their cases had to be considered as per the unamended rules, and further that keeping in view the peculiar position, it would be appropriate for the respondents to consider giving relaxation in the rules so that they may not stagnate and retire on the same post on which they had been appointed, without obtaining even a single promotion in their entire service career (emphasis supplied). What clearly transpires from reading of the judgment of the High Court, by which relief was given to the applicant and others, is that they were to be entitled for consideration for one promotional post, that too in the peculiar facts and circumstances of the case and the law laid down by the Honble Supreme Court that an employee deserves at least one promotion during his entire service career. Despite the fact that the applicant deserved only one promotion, he has been given pay fixation in all promotional scales. The applicant started his career as Compounder (Unani) in the pay scale of Rs.1385-2000. In compliance of the orders passed by the High court dated 10.9.2007 in WP(C) No.2414/1998, vide order dated 13.6.2008 the applicant has been promoted to the post of Medical Officer (Unani)/Unani Hakim in the pay scale of Rs.8000-13500 on notional basis from 22.11.1984. The applicant in paras 4.5 and 4.6 of the OA has himself stated that he has been placed in promotional/placement scales. Vide Annexure A-3 order dated 7.11.2008 the pay of the applicant has been fixed in the scale as may be admissible to him as per recommendations of the 4th and 5th Central Pay Commissions. Vide order dated 18.9.2009 (Annexure A-4), the applicant has been even placed in the promoted/placement scale, and thereafter his pay has been fixed in the pay scale as may be admissible to him on the recommendations of the 6th Pay Commission. The applicant would, however, claim benefit of order dated 14.5.1992 which is meant for Specialist grade. It is the positive case of the respondents that Medical Officers in ISM, Homeopathy and Unani have been given time-bound promotions as per Tikku Committee recommendations only up to the pay scale of Rs.4500-5700 (pre-revised) as there is no post in Health Department in respect of ISM & Homeopathy cadre above the scale of Rs.4500-5700 (pre-revised), and that the grades sought by the applicant cannot be considered as these grades would pertain to Specialist cadre and are not applicable to ISM cadre to which the applicant belongs.
7. In the rejoinder filed on behalf of the applicant, it is averred that even if it is taken as if the applicant is entitled to time-bound promotion as per Tikku Committee recommendations only up to the pay scale of Rs.4500-5700 (pre-revised) as per office order dated 27.12.1999, yet his pay has not been revised as per the said office order inasmuch as, the first time-bound promotion from the level of Medical Officer (Rs.8000-13500) to the level of Senior Medical Officer (Rs.10000-15200) is on completion of four years of regular service. The applicant appears to be asking for something to which he may not be entitled to at all. In our considered view, as per directions given by the Honble High Court, the applicant was entitled to one promotion, which would be in the post of Medical Officer (Unani). He was entitled to pay fixation on the said promotional post and pay fixation from time to time as per the enhancement made in his pay, be it by the respondents of their own, or on recommendations of the Pay Commissions. He could not be entitled to pay scales meant to be given to posts higher than Medical Officer (Unani). The applicant would ask for the pay scale of Senior Medical Officer, and even above. It may be recalled that the applicant has been given promotional/placement scales as well, but he is demanding the same from earlier dates as the Specialists may be entitled to by virtue of order dated 14.5.1992. In our considered view the applicant cannot be given the said benefit. As regards the claim of the applicant for actual payment after expiry of the period of two months within which the respondents were to pass orders, and up to the time the order was actually passed, it is the case of the respondents that matter like this needs to be referred to many departments, and in the very nature of things, it takes some time before orders may be passed. We do not find any intentional delay in passing of the orders. The delay is explained and is only of few months.
8. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/