Central Administrative Tribunal - Delhi
Head Constable Jagdish Chander vs Government Of N.C.T.D on 25 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. NO.1750/2008 New Delhi this the 25th day of February, 2011 Honble Mr. Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Head Constable Jagdish Chander No. 329/C, S/o Shri Chandan Singh, R/o Village & P.O.- Munda Khera, Distt- Jhajjar, Haryana. -Applicant (By Advocate: Shri Sachin Chauhan) Versus 1. Government of N.C.T.D., Through the Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 2. Addl. Dy. Commissioner of Police, Central District, Through the Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. -Respondents (By Advocate: Mrs. Sumedha Sharma) O R D E R
Honble Mr. Shailendra Pandey, Member (A) The grievance of the applicant, Head Constable (Exe) in the Delhi Police, relates to his pay fixation in terms of the revision of pay scales w.e.f. 1.1.1996 under the CCS (Revised Pay) Rules, 1997. As per these Rules, the pre-revised pay scale of Rs.975-25-1150-30-1540/- of the applicant was replaced by the scale Rs.3200-85-4900/- w.e.f. 1.1.96 and it appears that there was an option to opt for the revised scale with effect from the date of next increment, failing which it would be revised w.e.f. 1.1.96. The pay of the applicant was fixed/revised @ Rs.3710/- per month w.e.f. 1.1.96 and he was given the next annual increment of Rs. 85/- raising his pay from Rs. 3710/- to Rs.3795/- w.e.f. 1.3.96 in the pay scale of Rs.3200-85-4900/- (taking into account the basic pay of Rs.1210/- in the pre-revised pay scale) vide order dated 21.10.1997. After that his pay was again fixed as Rs.3880/- per month w.e.f. 1.3.1996 in the pay scale of Rs.3200-85-4900/- w.e.f. 1.3.1996 vide order No.2440-44/CR/C dated 18.2.1998.
2. The audit party of Govt. of NCT, Delhi raised an objection that the pay had wrongly been fixed w.e.f. 1.3.1996, on option, in respect of the applicant and was against the provisions of rules, as no option was found in his Ch. Roll. Accordingly, the pay fixation of the applicant was corrected @ Rs. 3710/- per month w.e.f. 1.1.1996 in the pay scale of Rs.3200-85-4900/- with date of next increment as 1.1.1997 vide order dated 12.09.2003. Aggrieved by this order, the applicant made a representation to the DCP/Security but the same was rejected vide Office Memo No.27882/CR-II/C dated 13.10.2004. Hence this OA has been filed.
3. It is submitted by the learned counsel for the applicant that with the issue of the CCS (Revised Pay) Rules, 1997 by the Govt. of India, the respondents were under an obligation to fix the pay of the applicant in the revised scale on the basis of his option from the date of annual increment in the pre-revised scale and that vide an order dated 09.02.98, the respondents had sought options from various similarly placed Head Constables for re-fixation of the pay under the revised pay Rules. However, this benefit has been wrongly denied to the applicant on the ground that the option was not exercised by him in time. This is denied by the applicant who states that he had exercised his option in time and that even after the period prescribed in the rules, the respondents had issued an order seeking options. It is also submitted that in any case the respondents have condoned the delay in respect of exercise of option in several other cases and thus denial of the same to the applicant would amount to hostile discrimination, which is violative of Articles 14 & 16 of the Constitution of India.
4. The applicant has also placed reliance on the judgment of the coordinate Bench of this Tribunal in OA No.1371/2005 decided on 25.09.2006 HC Ranbir Singh Vs. Govt. of NCTD to contend that being similarly placed as the applicants therein, similar treatment should be meted out to him also. The relevant observations of the Tribunal in this case are extracted below:-
6. If the option under rule 6 of CCS (RP) Rules 1997 exercised by the applicant on 5.1.1998 is excluded from consideration there does not seem any flaw in the impugned order. But in the present case the delay in exercise of option was barely 7 days. Moreover, the applicants department gave another opportunity for exercising the option under Rule 6 on 9.2.1998 and took into consideration the applicants option filed on 5.1.1998. The pay of the applicant was re-fixed after adding next increment on 1.5.1996, which order has been cancelled by the impugned order on the ground that audit party has issued objection to it. The department has not considered the relaxation of the Rule 3 ibid in the peculiarity of the fact of this case. They have to approach the competent authorities for relaxation of Rule and extension of time upto 9.2.1996 for exercising Rule 6 ibid option. This has not been done. In the peculiarity of facts we are of the view that the respondents should have adopted this course to avoid pecuniary loss to the applicant and similarly situated persons.
7. In view of this, we dispose of this OA with a direction to the respondents to reconsider and decide the matter after examining whether powers of relaxation given under Rule 13 of the CCS (RP) Rules can be exercised to give relief to the applicant. The decision be conveyed to the applicant within three months from the date on which the certified copy is received by the respondents. OA is accordingly disposed off. No order as to costs.
He has also referred to similar judgments of this Tribunal in HC Rajendra Prasad Vs. NCT of Delhi, OA-1577/2002 decided on 07.06.2002, HC Om Prakash Vs. Govt. of NCT of Delhi OA-2785/2005 decided on 06.02.2007. It is also stated that although he had submitted his option, the representation against the action of the respondents in withdrawing the earlier fixation after raising of the audit objection can be treated as an option of the applicant and his pay fixed accordingly and that not doing so would cause considerable prejudice to him and will affect all his future increments also.
5. The respondents have opposed the above submissions and have submitted that they had issued circular dated 09.02.1998 calling for options but the applicant had not submitted any options in response thereto. However, his pay was fixed at Rs. 3880/- w.e.f. 1.3.96 vide order dated 18.2.98 inadvertently, and after the audit party pointed this out during audit in 1999, his pay was corrected at Rs.3795/- in the revised pay scale. Thereafter on receipt of representation from the applicant, he was informed that his case could not be considered now being time barred. As regards cases mentioned by the applicant, it is stated that these had been done as the Tribunal had advised taking of a decision as per relaxation given in the Rules. Also, in these cases the applicants therein had submitted their options late but in the instant case the applicant had not submitted an option at all.
6. We have considered the rival contentions of both the parties and been through the pleadings.
7. It is seen that in terms of Rule-6 of the CCS (RP) Rules, 1997, officials were required to exercise their options within three months of the date of publication of the rules, for fixation of their pay in the revised scale from the date of next annual increment. The time limit of three months to exercise the option expired on 31.12.1997. Thereafter, a Circular is stated to have been issued on 09.02.98 seeking options from different Head Constables working in the pay scale of the applicant for fixation of their pay with the benefit of one increment as per the recommendation of the Vth Pay Commission. Whereas the applicant states that he had submitted an option for re-fixation from the date of next increment, the respondents have denied this and have rejected his request as being time barred.
8. It is, however, noticed that vide order dated 21.10.97, the respondents refixed the pay of the applicant at Rs.3710/- w.e.f. 1.1.96 and after granting him one increment (raising his pay to Rs. 3795/- w.e.f. 1.3.1996) fixed his pay at Rs. 3880/- w.e.f. 1.3.1996 in the revised pay scale of Rs.3200-85-4900/-. This fixation was later recalled/corrected after the audit party, during audit, objected to this fixation on the ground that there was no option available in the Ch. Roll of the applicant and, therefore, the applicants pay was corrected at Rs.3710/- per month w.e.f. 1.1.96 in the revised pay scale of Rs.3200-85-4900/-, vide order dated 12.09.2003.
9. The simple issue to be decided in this case is whether the applicant had, in fact, submitted his option in time and if not, whether he should be given the chance to get the benefit, which admittedly had been accorded by the Pay Commission and which has been allowed by the respondents to persons similarly placed. As already stated, whereas the applicant submits that he had submitted his option but the respondents state that he had not. However, without going into the factual aspect of the matter, it is pertinent to notice two points:
(i) that on 09.02.98, the respondents had issued a Circular calling for options in this regard from employees who had not opted within the initial time allowed for giving options as per the report of the 5th Pay Commission. Prior to the issue of this Circular, i.e., prior to 09.02.98, the applicants pay had already been fixed in the revised scale giving him the benefit of increment and in these circumstances, it is not unreasonable for the applicant (who is only a Constable in the Delhi Police and who would normally not be familiar with the technical requirements of fixation of pay/options etc.) to have assumed that as his pay had already been fixed giving him the benefit, he was not required to submit any further option.
(ii) The CCS (RP) Rules, 1997 themselves give power to the respondents to relax the conditions. In this connection, the provisions of Rule 13 of the CCS (RP) Rules 1997 are extracted below:-
13. Power to relax Where the President is satisfied that the operation of all or any of the provisions of these rules causes undue hardship in any particular case, he may, by order dispense with or relax the requirements of that rule to such extent and, subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner.
11. Thus there is an enabling provision and in view of the facts and circumstances of this case, and particularly in view of (i) above, we are of the considered view that the respondents should have considered invoking the power of relaxation in this case so as to avoid denial to the applicant of a benefit sought to be given to him by the Vth Pay Commission. It is noticed that in cases of persons similarly placed, the benefit had been given.
12. In view of the above discussions, we dispose of this OA with a direction to the respondents to re-consider the representation of the applicant, treating it if necessary as an option, and take action for re-fixing of the pay of the applicant in accordance with the rules so that he is not deprived of the pecuniary benefits that would accrue to him under the CCS (RP) Rules, 1997. Action as above should be completed within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
cc.