S.C. Sharma, Acting Chairman:
1. Instant Original Application has been instituted for the following reliefs:
“(1) Quash and set aside the impugned order dated 25.11.2009 and pass a fresh order granting pay scales of Lecturer and Reader to the applicant from due dates at par with his other similarly placed colleagues/teachers working in the College with grant of benefits of V-th and VI-th C.P.C. recommendations correspondingly;
(2) Direct the respondents to work out/calculate consequential pay fixation in the UGC pay scale which the applicant had been enjoying from the start of his career as Demonstrator in the College with further promotions of Lecturer and Reader at par with his other similarly placed colleagues/teachers who have since long been paid the benefits of the V-th and VI-th Pay Commission recommendations;
(3) Direct the respondents to pay interest @ 12 per cent per annum as per settled law on the dues/arrears accruable to the applicant from the due date till the date of actual payment; and
(4) Direct the respondents to pay the cost of the uncalled for litigation thrust upon the applicant; and
(5) Pass such further or other order(s) in favour of the applicant as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
2. Pleadings of the parties may be summarized as follows:
The applicant has come with the assertion that he was appointed on the post of Demonstrator in the UGC pay scale of Rs.1740-3000 w.e.f. 02.11.1988 vide order dated 01.11.1988 on compassionate grounds after the sad demise of his father. UGC pay scale of Rs.1740-3000 was made applicable to the teaching faculty of the College with prior sanction and approval of the Lt. Governor, Delhi, vide Delhi Administration order dated 30.03.1988, effective from 01.01.1986. Thereafter, the post of Demonstrator in the pay scale of Rs.1740-3000 in AandU Tibbia College was re-designated as Lecturer in the pay scale of Rs.2200-4000 as per the mandate of the Central Council of Indian Medicine, New Delhi, the apex body to regulate education in Indian medicine, vide order dated 09.05.1991, in order to maintain parity in the teaching posts recommended by the University Grants Commission (UGC). The AandU Tibbia College changed the nomenclature and re-designated the post of Demonstrator as Lecturer of all incumbents working as Demonstrators, re-designating them as Lecturers and placing them in the UGC pay scale of Rs.2200-4000. However, the applicant was left out as the lone person to work as Demonstrator, which, according to the applicant, would show the biased and discriminatory attitude of the respondents, and would be violative of Articles 14 and 16 of the Constitution of India. The applicant has been denied the pay scale granted to his similarly placed colleagues/teachers working in the College. It is pleaded that the case of the applicant is covered by the judgment of the Hon’ble Apex Court in M. R. Gupta v Union of India and others [1995 SCC (LandS) 1273]. The Lecturers so designated and placed in the pay scale of Rs.2200-4000 were further promoted under Merit Promotion Scheme to the post of Reader in the pay scale of Rs.3700-5700+NPA w.e.f. 01.12.1996, but the applicant has been deprived of his genuine and legitimate right to promotion at par with his other similarly placed colleagues/teachers working in the respondent institution. The Lecturers were promoted under Merit Promotion Scheme, but the applicant was denied the pay scale of Rs.2200-4000 (pre-revised) and further promotion as Reader in the pay scale of Rs.3700-5700 (pre-revised), solely on the ground that his appointment as Demonstrator in the UGC pay scale was on compassionate ground and ad hoc. It is pleaded that the compassionate appointment is always regular appointment and is given against a sanctioned post, but the respondents deliberately and willfully adopted harassive attitude towards the applicant with the intention to stagnate the applicant on the same post right from the date of appointment till his superannuation. AandU Tibbia College and its allied units were taken over by the Government of NCT of Delhi under the ‘Delhi Tibbia College (Takeover) Act, 1997’ with effect from 01.05.1998, and the employees of the College who had been working on the aforesaid date were regulated by Section 7 of the said Act. Appointment of the employees of the College as employees of the Government was to be treated as part of the initial constitution. It is alleged that thereafter the applicant was placed under suspension with mala fide intention and a disciplinary enquiry was initiated against him, but he was exonerated and his suspension was revoked vide order dated 01.09.2009 with consequential benefits. However, an order was passed by the respondents on 25.11.2009 fixing the pay of the applicant lowering his UGC pay scale at the time of appointment in the post of Demonstrator, i.e., Rs.1740-3000 [later re-designated as Lecturer in the pay scale of Rs.2200-4000/8000-13500 (Group ‘A’)] to Rs.5500-175-9000 (Group ‘B’ non-gazetted) arbitrarily, whereas all his other colleagues/teachers working in the college were granted the pay scale of Rs.2200-4000/8000-13500 (Group ‘A’) and they were re-designated as Lecturer from Demonstrator, but the applicant continued to remain in the lower pay scale of Rs.5500-9000 (Group ‘B’). That the attitude of the respondents is discriminatory and hostile, and hence the O.A.
3. The respondents have contested the case and filed their counter reply denying the allegations made in the O.A. However, it has been pleaded that the applicant was appointed as Demonstrator on ad hoc basis in the UGC pay scale on compassionate ground on the demise of his father while in service. As a consequence of taking over of the institution by the Government of NCT of Delhi with effect from 01.05.1998, all the staff is drawing salary as per the recommendations of the Fifth and Sixth Pay Commission. It is pleaded that the pay of the applicant has also been fixed as per the recommendations of the Pay Commission, and that there is no anomaly in the fixation which may give rise to filing of the O.A. The post of Demonstrator was never re-designated as Lecturer by the Government of NCT of Delhi. One post of Demonstrator still exists in the institution, for which continuation of post is still obtained from the competent authority. According to the Tibbia College Act, 1952, the posts of Reader, Sr. Lecturer Grade-I, Jr. Lecturer and Demonstrator were in existence. In 1985, the posts of Sr. Lecturer Grade-I and Jr. Lecturer were amalgamated as Lecturer. CCIM is the apex body to regulate education in Indian medicine. There had not been any change of nomenclature of the post of Demonstrator as Lecturer. Other colleagues of the applicant were promoted as Lecturer and they cannot be equated with the applicant. The Demonstrators were promoted as Lecturers in the pay scale of Rs.2200-4000 against the vacant posts of Lecturers. It is a fact that the appointment on compassionate ground is against regular post. At the time of the appointment of the applicant, a post of Demonstrator was lying vacant and the applicant was possessing the qualification, and hence he was appointed. The post of Demonstrator is Group ‘B’ post and as per rules as regards compassionate appointments, an applicant may get job of Group ‘C’ and ‘D’ posts, and, therefore, the applicant was appointed on ad hoc basis, which fact he never disputed. Whatever has been alleged in the OA is denied and the OA is sought to be dismissed being devoid of merit.
4. In response to the counter reply filed on behalf of the respondents, the applicant has filed rejoinder reiterating the facts which have been alleged in the OA. It is not necessary to repeat the same facts which we have stated hereinabove in the pleadings of the applicant. It has, however, been alleged that the respondents have illegally treated the applicant on a different footing, and that it would be wrong to allege that for the last 23 years the applicant is continuing on ad hoc basis vis-Ã -vis his other colleagues who were appointed as Reader, which is to humiliate the applicant. Reliance has been placed on the judgment of the Hon’ble Supreme Court reported in (2000) 8 SCC 25 Rudra Kumar Sain and others v Union of India and others. Whatever has been alleged in the counter reply is stated to be against the facts and record.
5. We have heard Shri K. K. Sharma, Advocate, for the applicant and Ms. Sumedha Sharma, Advocate, for the respondents, and perused the entire facts of the case. From perusal of the pleadings as stated above, it is an undisputed fact that the applicant was appointed on 02.11.1988 on the post of Demonstrator in the UGC pay scale of Rs.1740-3000, but it has been alleged by the applicant that the post of Demonstrator was re-designated as Lecturer in the pay scale of Rs.2200-4000 as per the mandate of the Central Council of Indian Medicine (CCIM), the apex body to regulate education in Indian medicine. It is averred that the applicant would be entitled for the grade of Lecturer and thereafter also for promotion on the post of Senior Lecturer and Reader, and that his colleagues have also been promoted, whereas it is the categorical stand of the respondents that it is wrong to allege that the applicant was re-designated as Lecturer by the Government of NCT of Delhi. Initially the applicant was appointed on the post of Demonstrator, and he is still continuing on the post of Demonstrator. However, it has been admitted that according to the Tibbia College Act, 1952, the posts of Reader, Senior Lecturer Grade-I, Junior Lecturer and Demonstrator were in existence, and that in the year 1985 the posts of Senior Lecturer Grade-I and Junior Lecturer were amalgamated as Lecturer.
6. We have to adjudicate as to whether the post of Demonstrator was re-designated as Lecturer, and whether the applicant is entitled for the scale of Lecturer as per the rules of UGC, and thereafter for further promotion on the post of Senior Lecturer and Reader. Learned counsel for the applicant in this connection placed reliance on a letter dated 02.05.1991 issued by the Central Council of Indian Medicine, New Delhi. It was not addressed to the Tibbia College, but it was a general notification issued by the Council. From perusal of this letter, it cannot be inferred that it has got a binding force. It has been provided in the letter, ‘Accordingly, the provision for post of Demonstrator has been discontinued and the same has been redesignated as Lecturer. The existing post of Lecturer has been redesignated as Senior Lecturer. Under this changed pattern of teaching posts, the post of Demonstrator may not be treated as abolished but it may be redesignated as Lecturer. This change/redesignation of post will not affect the duty of any post. The duties of Demonstrator will be performed by the redesignated Lecturer’. From perusal of the said letter, it is amply clear that the Council while issuing the same were conscious that only the post of Demonstrator is to be re-designated, but the post of Demonstrator shall continue and the duties of Demonstrator shall be continued to be performed by the incumbent of the re-designated post of Lecturer. Specifically, it has been provided that the post of Demonstrator, so re-designated, will not be treated as a teaching post, but the post will continue to remain as of Demonstrator with the re-designated post of Lecturer. It is wrong argument of the learned counsel for the applicant that when the post of Demonstrator was re-designated as Lecturer, then the post of the applicant would stand converted in the post of teaching staff and would be entitled for the pay scales and benefits which are provided to the teaching posts. Moreover, it has also been clarified in the letter aforesaid that the existing post of Lecturer has been re-designated as Senior Lecturer. The difference created was that the earlier post of Lecturer will be abolished and it will be re-designated as Senior Lecturer in order to show the distinction from the working of a Demonstrator, re-designated as Lecturer, and the Lecturer. The argument of the learned counsel for the applicant cannot be justified to this extent that when the post of Demonstrator has been re-designated, then the applicant would be entitled for all the benefits of promotion on the post of Lecturer as well as the pay scale. Duties of Demonstrator remained the same, which were performed by him as Demonstrator. The only difference was of re-designation of the post. Nothing has been alleged that afterwards the applicant will be entitled to the pay scale of the post of Lecturer, i.e., Rs.2200-4000, as per recommendations of the UGC. The initial appointment of the applicant was on the post of Demonstrator in the pay scale of Rs.1740-3000. Ipso facto the post of Demonstrator, re-designated as Lecturer, will not carry the same emoluments as may be admissible to the post of Lecturer in view of the fact that even though the post of Demonstrator was re-designated as Lecturer, but continued to perform the same duties of Demonstrator, and it cannot be inferred that the applicant will be entitled to the scale of Lecturer as per the recommendations of UGC of Rs.2200-4000 (pre-revised). We are also concerned whether the administration of Tibbia College prior to the take over, adopted the recommendations of CCIM dated 02.05.1991. No document has been produced by the applicant to show that in pursuance of the CCIM letter dated 02.05.1991, the administration of Tibbia College adopted the recommendations of CCIM. It has been alleged by the applicant that the Tibbia College changed the nomenclature and re-designated the post of Demonstrator as Lecturer. There is only averment to this effect in the OA, but no document has been filed to supplement this contention, and mere assertion in the OA is not to be relied because there must be some cogent evidence to prove this fact, especially in the circumstances when the respondents have disputed this fact.
7. This has also been alleged by the applicant that in the year 2006, Section 7 of the Takeover Act was substituted by the Delhi Tibbia College (Takeover) (Amendment) Act, 2006, vide notification dated 04.12.2006, providing for ‘Appointment of Employees of the College as employees of the Government as a part of the initial constitution’, but it is not going to make any difference insofar as the change of nomenclature of the post of the applicant and admissibility of the scale of Lecturer is concerned. The respondents have admitted in the counter affidavit that it is a fact that with effect from 01.05.1998 AandU Tibbia College along with its allied units was taken over by the Government of NCT of Delhi, and thereafter a notification was issued in the year 2006. Annexure A-6 is the copy of the notification dated 04.12.2006. Amended Section 7, which will be relevant, reads thus:
“7. Appointment of Employees of the College as employees of the Government as a part of the initial constitution. (1) The Government may, having regard to the requirements of the College, appoint an employee who has been immediately before the appointed day employed in the College, as an employee of the Government as a part of the initial constitution.
(2) The pay of an employee of the College appointed as an employee of the Government, as on the appointed day, shall be protected by granting the difference in pay under the Government and that drawn by the individual while in service of the College, as personal to individual to be absorbed against future increments.
(3) The pay and the terms and conditions of an employee appointed as an employee of the Government under sub-section (1) shall be dealt in accordance with the provisions of the Fundamental Rules, the Supplementary Rules and other rules as applicable to other employees of the Government.
(4) The pension of an employee appointed as an employee of the Government shall be on the same terms as are given to other equivalent employees of the Government.”
However, the amendment in the Act is not going to benefit the applicant insofar as conferring the status of Lecturer and admissibility of the pay scale of Lecturer is concerned. The only inference that can be drawn from the amended provision is that the employees of the Tibbia College shall be the employees of the Government and shall hold office or service in the Government with the same rights and privileges as to pension, gratuity and other matters, as would have been admissible to them. We are concerned whether the post of Demonstrator was re-designated by the respondents in pursuance of the letter of the CCIM dated 02.05.1991, and whether the scale of Lecturer was allowed to the applicant. As we have stated above, not a single document has been produced by the applicant to supplement this argument. If in the year 1991, CCIM issued a notification for re-designation of the post of Demonstrator as Lecturer, and as a consequence of such re-designation of the post, the applicant is entitled for the scale of Lecturer, then it is not understandable as to why the applicant kept mum for such a long period of about twenty years, and never raised or agitated this point, and it can be said that the OA is also barred by limitation.
8. Much reliance has been placed by the learned counsel for the applicant on the judgment of the Hon’ble Apex Court reported in 1995 SCC (LandS) 1273 M. R. Gupta v Union of India and others. It has been provided in this ruling that if a person has joined on a promotional post, then he is entitled for all avenues of promotion. For this purpose, it is required to be seen whether the applicant was appointed on a promotional post, or whether there were no avenues of promotion. Although it has been alleged by the respondents that as the applicant was appointed on compassionate ground under dying in harness rules on ad hoc basis in the year 1988, and he continues as an ad hoc employee, but no sane person is going to agree with this contention of the respondents. However, the respondents have also admitted in the counter reply that the applicant was appointed against an existing regular post. Hence, the post was existing at the time of appointment of the applicant on compassionate grounds, and as he was possessing the requisite qualifications, he was appointed under dieing in harness rules. There are, however, no promotional avenues for the post of Demonstrator. Merely on the ground that in view of the letter of the CCIM, the post of Demonstrator was re-designated as Lecturer, the applicant would not be entitled for the promotional avenues, like Lecturer in the teaching line. This is a wrong notion of the applicant. In the letter of the CCIM it has also been clarified that even after re-designation of the post of Demonstrator as Lecturer, he will continue to discharge duties of Demonstrator and not of a Lecturer in the teaching line. In order to make a distinction, the post of Lecturer was re-designated as Senior Lecturer and thereafter Reader, etc. Merely on this pretext the applicant cannot claim that the post of the applicant on which he was appointed has got promotional avenues. The judgment of the Hon’ble Apex Court would have been helpful to the applicant in the circumstances if the applicant was appointed on a post having promotional avenues, but the applicant was appointed on the post of Demonstrator, and he joined on that post fully knowing that there are no promotional avenues for the post of Demonstrator, hence the judgment of the Hon’ble Supreme Court would be of no help to the applicant.
9. Learned counsel for the applicant also cited the judgment of the Hon’ble Supreme Court reported in (2000) 8 SCC 25 Rudra Kumar Sain and others v Union of India and others. We have perused the facts of the judgment of the Hon’ble Supreme Court, and we are of the opinion that this judgment is also of no help to the applicant. It is regarding the situation where a person has been appointed as ad hoc/fortuitous/stop-gap, but the applicant was appointed on a regular post of Demonstrator, and there is no other post of Demonstrator, and hence there is no question of dispute as regards seniority of the applicant. The applicant cannot claim seniority vis-Ã -vis Lecturers of the teaching line so as to give him the benefit of the promotion on the post of Senior Lecturer and Reader. It is unthinkable that a Demonstrator can assume the work of a teacher or lecturer of the teaching line. The functions and duties of Demonstrator are of entirely different nature from Lecturer in the teaching cadre. The function of a Demonstrator is only to work in laboratory and to demonstrate to the students regarding certain technical exercises. Much has been argued by the learned counsel for the applicant that the applicant had been working as Lecturer of the teaching cadre, but mere argument is not sufficient, and he must produce some evidence that the applicant had been designated as Lecturer and has been converted to the teaching cadre, and thereafter he will be entitled for promotion, but neither in the OA a single word has been stated about it, nor is there an iota of evidence that the applicant ever performed duties of Lecturer in the teaching line. Under these circumstances, it is an established fact that the applicant was appointed on the post of Demonstrator in the pay scale of Rs.1740-3000 on 02.11.1988 under the dying in harness rules on compassionate grounds, and the respondent institution had never adopted the circular dated 02.05.1991 issued by the CCIM for re-designating the post of Demonstrator as Lecturer, and continuously since 1991, the applicant has been working on the post of Demonstrator. Hence, the applicant cannot be called a Lecturer and he cannot be said to be entitled for the scale of Lecturer and for further promotion on the post of Senior Lecturer and Reader. Moreover, as we have stated above, at no point of time since 1991, has the applicant agitated this issue, hence the OA is also barred by limitation.
10. For the reasons mentioned above, we are of the opinion that the OA is devoid of merits and is liable to be dismissed. The applicant is not entitled for any relief.
11. The OA is dismissed. There shall, however, be no order as to costs.