Central Administrative Tribunal - Delhi
Shri J.B. Saxena vs Govt. Of Nct Of Delhi on 7 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2792/2009 M.A.1506/2009 New Delhi, this the 7th day of December, 2010 Coram: Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri J.B. Saxena, S/o Late Shri R.B. Saxena, R/o E-225, Amar Colony, New Delhi Applicant (By Advocate:Shri Sarvesh Bisaria) Versus 1. Govt. of NCT of Delhi, Through Chief Secretary, Delhi secretariat, I.P. Estate, New Delhi 2. Principal Secretary, Department of Training & Technical Education, Muni Maya Marg, Pitam Pura, Delhi 110088 Respondents (By Advocate: Shri Padma Kumar for Ms Jyoti Singh) O R D E R
By Dr. Veena Chhotray:
The applicant, a retired Drawing Instructor who had been working in the Polytechnic in the Directorate of Training and Technical Education under the GNCTD, is aggrieved at denial of the benefit of in-situ promotion in the grade Rs.2375-3500 (pre-revised) w.e.f. 1.4.1991. The applicant who had retired in the year 1992 is seeking quashing of the impugned orders dated 8.1.2007, 9.9.2008 and 19.9.2008. Besides, a direction for grant of aforesaid in-situ promotion and fixation of pay with all consequential benefits has been sought. Additionally, the prayers for award of interest @ 18% per annum and exemplary costs against the respondents have also been made.
This is the second OA in the series, filed by the applicant. We are passing the present order after hearing the matter at length and carefully considering the respective submissions of Shri Sarvesh Bisaria and Shri Prakash Chandra Sharma, learned counsels for the applicant, as well as Shri Padma Kumar, the learned counsel appearing for the respondents counsel Ms. Jyoti Singh. We have also examined the material on record.
2. The brief service history of the applicant is that he had been appointed as a Polytechnic Drawing Instructor under the DTTE in the year 1961. Though promoted to the post of Sr. Drawing Instructor in 1967, he had been subsequently in the year 1968 reverted to the original post of Drawing Instructor. The applicant had been granted Selection Grade w.e.f. 14.7.1975. On the revision of this pay scale, to Rs.2000-3200 w.e.f. 1.1.1986, his pay had been fixed at Rs.2975/-. The applicant had remained stagnated at Rs.3,275/- as on 1.1.1991. He had retired on superannuation on 30.9.1992.
In the year 2000, vide an order dated 4.1.2000 the applicant along with several others had been granted in-situ promotion in the higher scale of Rs.2375-3500 (pre-revised) w.e.f. 1.4.1991 (Annex. A/5). However, this order was not given effect to by the respondents.
On the applicant approaching the Tribunal for redressal of certain service grievances, which, inter alia included consideration of his past service with the Govt. of U.P. for purposes of granting in-situ promotion, as a follow up to the order passed in the OA, an order dated 21.8.2008 was passed by the Tribunal in the CP 43/2005. In pursuance of these directions, a speaking order dated 8.1.2007 was passed, which stated that the applicant was not entitled to the benefit of the in-situ promotion as per the relevant instructions.
The consequential review through the DPC was undertaken in the year 2008. After a detailed consideration, the Committee found the earlier grant of in-situ promotion contrary to the instructions on the subject, and recommended for withdrawal of the same. While doing so, the Committee had also taken into account the order passed by the Tribunal dated 12.5.2003 in another case of Shri A.R. Dahiya vs GNCTD. With the approval of the competent authority i.e. the Secretary TTE, the in situ promotion granted in favour of the applicant vide the earlier order dated 4.1.2000 was withdrawn vide the order dated 9.9.2008.
All these three orders i.e. 8.1.2007, 9.9.2008 and 19.9.2008 have been challenged in the present OA.
3. The OA contends the impugned action of the respondents as illegal and prompted by mala-fide motives. It is also averred to be completely ignoring the instructions and clarifications issued by the GOI. As per the OA the earlier decision had been taken after convening DPC and the benefit of in-situ promotion had been given to the applicant along with 61 other employees. Whereas the juniors of the applicant as well as several other similarly situated persons are stated to be enjoying the benefits of promotion, the applicant has been denied of the same. The review in this case after 9 years has also been questioned. Another plea taken is that the respondents have failed to give reasons for their decision of withdrawal of their promotions.
The learned counsel, Shri Bisaria would argue about the decision of withdrawal of the promotion having been taken without convening a review DPC. Further, taking us through the relevant instructions, the learned counsel would also endeavour to prove his stand about the category of his post being included under the relevant instructions for whom the grant of in-situ promotion had been allowed. The learned counsel would also rely upon certain extracted office notings obtained under the RTI and filed as an additional affidavit along with the MA 1506/2010 to reinforce his contention. As regards the decision in A.R. Dahiyas case, the learned counsel would submit the same as not posing an impediment in consideration of its case on merit in view of the additional material being submitted now, which had not been considered in Dahiyas case.
4. By their detailed counter affidavit, the respondents have contested the claims in the OA as utterly misconceived. According to them, the earlier grant of in-situ promotion had been erroneously given, which had now been rectified after a due reexamination in the light of the relevant instructions. Correction of mistakes is contended to be within the legitimate domain of the respondents. The learned proxy counsel, Shri P. Kumar would highlight the fact about the 2000 order never having been implemented. Further, the detailed and the reasoned character of the impugned order would also be emphasized by the learned counsel. As per the respondents, the present issue has already been examined by the Tribunal in Dahiyas case and the instant OA deserves to be dismissed.
5. The issue for adjudication in this case essentially is the entitlement of the applicant for grant of in-situ promotion. This is a factual matter needing examination in the light of the relevant instructions. In the following paragraphs, a brief summing up of these instructions and their relevance for the applicants case while examining the rival contentions is being done.
5.1 The Scheme for in-situ promotion had been introduced by the GOI, Ministry of Finance, Department of Expenditure OM dated 13.9.1991 (Annex. II). It had been conceived as a Scheme for career advancement of Group C & Group D employees in the post - 4th CPC scenario. The objective of the Scheme was to ensure at least one promotion in service career to each Group C and D employees. The applicability of the Scheme even to Group C & D employees was subject to the following basic conditions: (i) employees who are directly recruited to a Group C or Group D post; (ii) employees whose pay on appointment to such a post, is fixed at the minimum of the scale; and (iii) employees who have not been promoted on regular basis even after one year on reaching the maximum of the scale of such post.
Further, the GOI circulated another OM dated 25.5.1992 clarifying that Group C employees stagnating at the maximum pay scale for more than a year cannot be allowed in-situ promotion to the next higher scale, which happens to be a Group B scale. The relevant para-8 of this OM, which is directly relevant to the facts of the present case, is extracted as hereunder:
8. Whether a Group C employee stagnating at : No the maximum of the scale of pay for more than a year can be allowed in-situ promotion to next higher scale which happens to be a group B scale It is these basic instructions that the respondents are relying upon. According to them, the applicant was not entitled for the benefit of in-situ promotion on the aforesaid ground.
5.2 The applicant, however, has placed reliance on the Circular dated 22.7.1998 by the Union Ministry of HRD, Department of Education. This had pertained to a special decision, as a one time relaxation measure, for grant of in-situ promotion to certain categories of officials working on the posts below Lecturer in various Polytechnics in Delhi Administration, who had not been able to get promotions based on the Madan Committee recommendations, as they did not possess the prescribed qualifications for the post of Lecturer. A copy of this order has been enclosed with the OA as Annex.4. The relevant extracts are reproduced as hereunder:
Subject: Regarding grant of higher pay-scales to the Workshop Instructors / Demonstrators / Jr. Lecturer / Sr. Drawing Instructor in various Polytechnics in Delhi Admn.
keeping in view the totality of circumstances, it has been decided to allow in-situ promotion to the left-out Demonstrators/Jr. Lecturers in the following manner based on the Ministry of Finance, Department of Expenditure OM No.10 (1) E.III/88 dated 13.9.1991, subject to the fulfillment of the conditions as laid down therein.
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Post Existing Scale Scale on in-situ Promotion Demonstrator Rs.1640-2900 Rs.2000-3200 Jr. Lecturer/Sr. Drawing Instructor Rs.2000-3200 Rs.2375-3500
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The earlier order dated 4.1.2000 (Annex. 5) while communicating the decision of in-situ promotion had inter alia, mentioned the MHRD Order dated 22.7.1998. The contention of the learned counsel for the applicant would be that the in-situ promotion granted to the applicant had been covered under the left out categories stated in this order. To meet our specific query that the applicant had been reverted to the post of a Drawing Instructor, which had not been covered under this order; the learned counsel would advert to the extracted notings from the file processing this matter and obtained under the RTI. It would be contended by the learned counsel that the notings at various levels, indicated about the intention for covering various left out categories, which included the applicants category also.
We do not find the above contention as tenable considering the trite law that the various observations or opinions expressed by different authorities as a part of the decision making process do not indicate any finality, nor do they confer any legal right on an applicant. In any case, the fact that even these extracted notings pertain only to the handling of the matter in the Directorate, which had ultimately culminated into the decision by the Ministry of HRD, referred to above. We also do not find the tenor of the learned counsels argument seeking to impress about the category of the applicant being latently implied in the MHRD Circular dated 22.7.1998, as convincing. The basic proposition of law regarding interpretation of statutes was ruled as following by the Honble Apex Court in Bhakra Beas Management Board vs. Krishna Kumar Vij & Anr {2010 (2) SCC (L&S) 694}:
When words of a statute are clear, plain or unambiguous, and are reasonably susceptible to one meaning only, Courts are bound to give effect to that meaning which serves the cause and purpose irrespective of consequences.
We hold the considered view that the averment of being included in the left out categories coming within the purview of the HRD Circular of 22.7.1998 cannot be inferred, but has to be expressed; which evidently is not the case in the present OA.
6. The DPC while recommending withdrawal of the in-situ promotion granted in 2000, had also referred to the decision of the Tribunal in the OA 1308/2002 (A.R. Dahiya vs GNCTD & Anr.) decided vide the Tribunals order dated 12.5.2003. This was an order in which also the applicant, a retired employee of the DTTE, was challenging withdrawal of the benefit of in-situ promotion granted to him by an earlier order in 2000. The Single Bench of the Tribunal, after going through the clarification dated 25.5.1992, which stated that the Group C employees stagnating at the maximum pay scale for more than a year cannot be allowed in-situ promotion to the next higher scale which happens to be a Group B scale, had dismissed the OA. Further, even the contention put-forth by the applicants counsel that similarly circumstanced persons had still been enjoying the benefit of in-situ promotion, had been rejected on the ground that a wrong order cannot be allowed to perpetuate and cannot be the basis of seeking parity under Article 14 of the Constitution of India. Besides, a wrong order cannot ensure the consequences inadmissible in law. The Coordinate Bench had also observed that nothing precluded the Govt. from rectifying such mistakes, if the action was based on a wrong interpretation of the rule or was against the law.
We find the basic issue raised in the present OA identical to the one already decided in A.R. Dahiyas case, which admittedly has attained finality. We find ourselves unable to appreciate the contentions of the learned counsel for the applicant regarding the same not being applicable in the present one.
7. The other pleas raised regarding the decision of reversal of promotion having been taken without its consideration by the DPC is not found to be borne out by even a cursory perusal of the impugned orders dated 9.9.2008 and 19.9.2008 passed by the respondents. They show that the matter had been duly considered by the DPC and the final decision taken with the approval of the competent authority i.e. the Secretary, TTE.
On the point of invidious discrimination, also we take note of the mention in the order dated 19.9.2008 about non-revision of the pension of Shri S.C. Bhutani. Besides, it is mentioned that the Department is initiating process to review all such cases by convening review DPCs and take action as per rule.
8. In view of the foregoing, we do not find the claims in the OA for grant of in-situ promotion to the applicant as tenable considering the relevant instructions on the subject. Further, the issues raised are identical to the one already decided against such claims by a Coordinate Single Bench of the Tribunal in A.R. Dahiyas case. The earlier order of 2000 regarding grant of in-situ promotion has been found to be a case of an erroneous decision not only by the administrative authorities but also corroborated in judicial findings. As per the settled law, the State is always within its legitimate domain to rectify a wrong decision. The other pleas raised in the OA are also found to be without any basis. Resultantly, finding the OA as devoid of merit, it is dismissed hereby with no order as to costs.
With the above, MA 1506/2010 also stands disposed.
(VEENA CHHOTRAY) (SHANKER RAJU) MEMBER (A) MEMBER (J) /PKR/