Central Administrative Tribunal - Delhi
O.P.Srohe vs Union Of India on 2 July, 2014
Central Administrative Tribunal
Principal Bench, New Delhi
OA NO. 1728/ 2012
Order Reserved on: 26.05.2014
Pronounced on: 02.07.2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. V.N. Gaur, Member (A)
O.P.Srohe,
Director (Retd)
Group A
Aged 60 years
S/o Late Shri Dattu Ram,
R/o B-8/74,
Sector -3, Rohini,
Delhi. -110085.
-Applicant
(By Advocate: Shri Asish Nischal)
VERSUS
1. Union of India
Through its Secretary
Ministry of Women and Chiled Development,
Shastri Bhawan, New Delhi-110001.
2. Union of India
Through its Secretary
Department of Personnel & Training,
North Block, New Delhi-110001.
-Respondents
(By Advocate: Sh. R.N.Singh)
ORDER
By Honble Shri V.N.Gaur, Member (A) This OA has been filed by the applicant with the following prayer:
a. Direct the respondents to pay additional remuneration to the extent of difference between the pay of Secretary (CARA) and pay of Deputy Secretary for holding the additional charge, as Secretary (CARA), for the period with effect from 22.11.2007 to 08.07.2009;
b. pass any other relief that this Honble Tribunal may consider fit in the interest of justice.
2. Briefly stated, the case of the applicant is that while working as Dy. Secretary in the Ministry of Women and Child Development, respondent no.1, he was given the additional charge of the post of Secretary, Central Adoption Resource Agency (CARA) with effect from 22.11.2007 to 08.07.2009. The CARA is a society registered under the Societies Registration Act. According to the applicant, he was given the additional charge against his wishes and directed to take up the additional assignment. As Dy. Secretary, he was working in the pay scale of Rs.15,600-39,100 with grade pay Rs.7600 in PB-3 while the pay of Secretary, CARA carried at that relevant time a pay scale of Rs.37,400-67,000 with grade pay of Rs.8700 in PB-4. The applicant submitted representations to respondent no.1 but the same has been rejected vide order dated 27.10.2012 on the ground that the post held by him as additional charge was in an autonomous body and, therefore, he was not eligible for additional remuneration for holding the dual charge under FR 49.
3. Learned counsel for applicant submitted that respondent no.1 had referred the request of the applicant to the DoP&T for concurrence but the respondent no.2 rejected the request of the applicant. The applicant had filed an OA No.1981/2011 before this Tribunal but the same was withdrawn by the applicant with liberty to file a fresh OA. Learned counsel referred to the following provision of FR 49.
Combination of Appointments F.R.49 The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:
(iii) Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds charge of more than two posts, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding [49] days but not exceeding 3 months:
Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the [Department of Personnel and Training] shall be obtained for the payment of the additional pay beyond the period of 3 months; (iv) where an officer is formally appointed.
4. It was contended that the applicant was given the additional charge by the competent authority as an order which he had to comply. In such a situation, the respondents cannot deny the applicant the pay of the higher post, i.e., Secretary, CARA under the provision of FR 49. The sole ground for rejection of the request of the applicant is that the FR 49 does not permit additional charge of public sector undertakings, autonomous bodies and registered societies etc. This instruction issued by DOPT with regard to PSU, autonomous bodies etc. cannot override the provision of rule which has got statutory force. Learned counsel relied on GNCT of Delhi vs. B.S.Jarial and anr., WP (C) No.5742/2010 wherein the Honble High Court has held that if a person was 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.
5. Per contra, learned counsel for the respondents raised the preliminary objection with regard to the limitation and non-joinder of parties. It was submitted that the applicant had challenged the order dated 27.10.2010 while the present OA was filed on 17.05.2012. Again the period for which the applicant claimed higher pay as he held additional charge of CARA, and therefore, CARA was necessary party and on these two grounds alone the OA deserves to be dismissed. Learned counsel relied on S.S.Rathore vs. State of Madhya Pradesh, (1989) 4 SCC 582, Union of India and others vs. M.K.Sarkar, (2010) 1 SCC (L&S) 1126, D.C.S.Negi vs. Union of India & ors., WP(C) No.6350/2007 decided on 11.04.2008 and Ms. Shukantala Sharma vs. Govt. of NCT through Lt. Governor of Delhi and ors., OA-101/2001 decided on 25.08.2005. With regard to the merit of the case, it was submitted that there was no illegality or infirmity in the impugned order dated 27.10.2010 as in terms of OM no. 4/4/49 Estt. Pay II dated 28.1.2000 of DOP&T, appointment of Government servants to hold additional charge in Public Sector Undertakings/ Autonomous bodies/Registered Societies etc. was not permissible under FR 49 and no additional remuneration would be allowed for the same.
6. We have heard the learned counsels and perused the record. It is observed that FR 49 starts with the words:
The Central Government may appoint a Government servant already holding the post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government.
(emphasis supplied)
7. The FR 49 (iii) has to be read in the context of the stipulation in the opening para that when the Government servant holds the additional charge of a post that post also must be under the Government. FR 49 (iii) would be applicable only when the condition stipulated in the opening para of FR 49 is fulfilled. In addition vide OM dated 28.01.2000 DOP&T has clarified as follows:
2. Instances have come to notice of this department when the Government servants have been given full charge of the post outside the Government, viz, Public Sector Undertakings, Autonomous Bodies, Registered Societies, etc. The question of entitlement to additional pay under FR-49 to the Government servants formally appointed with the approval of Competent Authority to hold the full additional charge of the posts in PSUs, Autonomous Bodies, etc., has been considered in this Department in consultation with the Ministry of Finance and it is clarified that neither such appointments nor the additional pay for holding additional charge in such cases is permissible under FR-49.
8. In his oral submission learned counsel for applicant has argued that under FR 49 (iii) the additional charge can be held by the government servant only for a period not exceeding 45 days and in case the same exceeds a period of three months, the concurrence of DOP&T is a must. He pointed out that the order through which the applicant was given additional charge was dated 22.11.2007 in which it was specifically mentioned that the order has been issued with the approval of the competent authority. Thus, it was for the competent authority to have taken the approval of the DOP&T, if the rule required so. In our view, this argument becomes infructuous in the background of the preceding discussion because even if the DOP&Ts approval had been taken for the extended period of additional charge held by the applicant, his claim for additional remuneration would still be hit by the first para of FR 49 as the post of Secretary, CARA was not under the Government.
9. In the light of the above discussion and for the aforesaid reasons, we do not find any merit in the OA and the same is dismissed. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd