Central Administrative Tribunal - Delhi
Smt. Asha Rani Sharma vs Union Of India on 20 April, 2011
Central Administrative Tribunal Principal Bench OA No.4127/2010 New Delhi, this the 20th day of April, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Smt. Asha Rani Sharma W/o Shri R. D. Sharma R/o Pocket H-18, Flat No.84, Sector-7, Rohini, Delhi. Applicant. (By Advocate : Shri A. K. Trivedi) Versus 1. Union of India Through its Secretary Ministry of Defence, South Block, New Delhi. 2. The Scientific Advisor Defence Research & Development Organisation, Ministry of Defence, A Block, DRDO Bhawan, 5th Floor, Rajaji Marg, New Delhi 110 015. 3. The Director Laser Science &Technology Centre, Metcalfe House, Delhi 110 054. Respondents. (By Advocate : Shri D. S. Mahendru) : O R D E R (ORAL) : Dr. Ramesh Chandra Panda, Member (A) :
Smt. Asha Rani, the Applicant herein, has come before this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with the following prayers:-
(a) Declare the order dated 01/10/2010 and action of the Govt./Respondents as illegal, arbitrary, discriminatory, violative of article-14 & 16 of the constitution of India & judicial pronouncement on the subject and set aside the same.
(b) Direct the respondents to protect the pay of the applicant in the pay scale of Rs.330-560/- and protect the pay of the applicant to Rs.340/- w.e.f. 06/01/1975 by regularizing the period of absence for the period from 15/10/1974 to 05/01/1975 if required and consequently the applicant may be entitled for revision of her pay with arrears of difference of pay with all consequential benefits with interest by way of extending the benefit of Judgment dated 14/12/2001 in OA No.200/2001, Smt. Kusum Sharma Vs. UOI and judgment dated 03/12/2003 in OA No.983/2003 in the case of Jitendra Singh vs. UOI.
(c) Any other relief which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
(d) Award costs.
2. The Applicant joined as Assistant Examiner in the office of Army Headquarters, G.S. Branch w.e.f. 2.06.1972 in the pay scale of Rs.330-560. She was declared surplus and transferred as Lower Division Clerk in the pay scale of Rs.260-400 vide order dated 30.03.1974 and was directed to report to AMN Depot, Hissar. The Applicant was further transferred to DSL-presently known as Laser Science & Technology Centre (LASTEC) w.e.f. 6.12.1974 in the same pay scale as LDC which post she joined on 6.01.1975 and furnished her Medical Fitness Certificate. It is the case of the Applicant that Mrs. Kusum Sharma who was then working as Examiner along with the Applicant became surplus and was transferred in the lower pay scale and she filed OA No.200/2001 before this Tribunal which was disposed of on 14.12.2001 directing the Respondents to restore the original basic pay instead of lower pay scale to her and the same was implemented by the Respondents. It is further the case of the Applicant that one Shri Jitender Singh who was also rendered surplus and visited the Tribunal in OA No.983/2003 which was considered and disposed of vide order dated 3.1.2003 by directing the Respondents to protect the pay scale of the Applicant which was also implemented by the Respondents. Having known the above facts of the two similarly placed persons, the Applicant submitted a representation dated 6.07.2009 to the Respondents requesting to revise her basic pay by protecting her last pay drawn at Rs.340/- with effect from 6.01.1975 seeking similar treatment as was extended to Smt. Kusum Sharma and Shri Jitender Singh. The Respondents rejected the Applicants representation on the ground that the relief granted to them was based on the directions of the Court and accordingly, she was advised to approach the Tribunal. Thus, the Applicant filed OA No.3279/2009 which was disposed of by the Tribunal on 10.05.2010 directing the Respondents to extend the same benefit as she was similarly situated to the Applicants in OA No.200/2001 and OA No.983/2003. However, the Respondents requested the Applicant to furnish a separate application for regularization of the leave period. Accordingly, the Applicant submitted a representation dated 20.07.2010 wherein it was mentioned that she had submitted for medical fitness certificate at the time of her joining on 6.01.1975. However, the Respondents rejected the Applicants representation vide their impugned order dated 1.10.2010 wherein it was mentioned that the Applicant could not be extended the same benefit as was extended to Smt. Kusum Sharma and Shri Jitender Singh since she is not similar in all respects as others. It was also mentioned that there was break in service w.e.f. 16.10.1974 to 6.01.1975 between her ad hoc appointment and regular appointment with the Respondents, as the Applicants in other two OAs there was no break in service between their ad hoc appointment and regular appointment. Feeling aggrieved by the above order dated 1.10.2010 (Annexure-A1), the Applicant moved a Contempt Petition (CP No.779/2010) which the Applicant withdrew with a liberty to challenge the order in fresh proceedings. Accordingly, the Applicant is before us in the present OA.
3. We heard Shri A. K. Trivedi, learned Counsel for the Applicant who submits that the Applicants period of absence was on medical ground from 15.10.1974 to 15.01.1975 and she has furnished the medical certificates and has given representation which was not considered and belatedly the request of the Applicant to protect her pay scales was rejected. He submits that the Applicants case should have been taken up in two parts, firstly, her absence period on medical ground should have been regularized and thereafter pay protection could have been granted as has been granted to the similarly placed ad hoc employees appointed on regular basis. He, therefore, submits that the Respondents need to be directed to re-examine her case.
4. Shri D. S. Mahendru, Learned Counsel for the Respondents submits that the Applicants case was not similar to that of Smt. Kusum Sharma and Shri Jitendra Singh. In the Applicants case there was break in service between ad hoc period and regular appointment. Therefore, her appointment was taken up as fresh one in the pay scale applicable to the said post. He submits that the Respondents would examine the issue of regularization of the period of absence from 15.10.1974 to 05.01.1975 but the law of limitation would be an impediment against her case as she is approaching the Tribunal after a long period of nearly 30 years.
5. We have given our careful consideration to the contentions raised by the counsel for the parties and perused the pleadings.
6. Law of limitation would not be applicable in the present case as the Applicants pay has been depressed by not protecting her pay when she was appointed on regular basis in 1975. As the pay drawn is less in subsequent years and even today the Applicant is suffering from the recurring cause of action, we are of the considered opinion that the law of limitation would not hit the case of the Applicant.
7. A close and careful perusal of the pleadings would reveal that Applicant has submitted her Medical Fitness Certificate and other associated documents in January, 1975 when she returned from her treatment due to illness during the period 15.10.1974 to 5.01.1975. There is not even a whisper on the part of the Respondents to say as to how that period in October, 1974 to January, 1975 has been treated. Just to term the said period as break in service would not suffice. The Applicants claim for regularization of her period of absence due to medical treatment needs to be examined properly as per law. Non consideration of the same has stood as an impediment against her in getting her pay protected as has been stated in the impugned order dated 1.10.2010 passed by the Respondents. In case the absence period gets regularized as the leave to which the Applicant would be eligible, no break in service would exist. The logic of break in service stands against her to get pay protection would thus disappear. This aspect needs to be properly examined by the Respondents.
8. In view of the above facts, we direct the Respondents to examine the case of the Applicant sequentially at two stages, first to take up the case of Applicant for regularization of her absence period from 15.10.1974 to 5.01.1975 as per the extant Rules. In case the Applicants said absence period gets regularized for the leave to which the Applicant would be otherwise entitled, there would be no break in service. The second stage will be the pay protection issue to be decided. The pay protection from ad hoc to regular appointments is admissible and similar treatment has been extended to similarly placed employees. As such, the Applicant would be able to carry her pay at `340/- per month w.e.f. 6.01.1975. This aspect needs to be examined by the Respondents and pass an appropriate order. In case the order goes in her favour, she would get pay protection. However, regarding her differential salary for the period from 1975, we make it very clear that as the Applicant has not agitated before the Tribunal on both the aspects before she filed the OA No.3279/2009 which was decided by the Tribunal on 10.05.2010, she would be entitled to the protection of pay w.e.f. 6.01.1975 notionally, but after granting appropriate increments in the pay scales/pay bands she would be entitled to get actual amount w.e.f. the date on which the OA No.3279/2009 was filed by the Applicant before this Tribunal.
9. With the above directions, the Original Application stands disposed of, leaving the parties to bear their own costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/