Jagbir Singh Daiya, Delhi and Another Vs. Govt. of Nct of Delhi, Through Its Chief Secretary Delhi Secretariat and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1150367
CourtCentral Administrative Tribunal Principal Bench New Delhi
Decided OnJan-06-2014
Case NumberOA No.1568 of 2012 MA No.1399 of 2012
JudgeTHE HONOURABLE MR. V. AJAY KUMAR, MEMBER (J) & THE HONOURABLE MR. V.N. GAUR, MEMBER (A)
AppellantJagbir Singh Daiya, Delhi and Another
RespondentGovt. of Nct of Delhi, Through Its Chief Secretary Delhi Secretariat and Others
Excerpt:
v.n. gaur, member (a): 1. the applicant in this oa is one of the candidates in the panel list of 1492 candidates prepared on 27.01.1984, which was later the subject matter of ca no.1900/1987 in the case of union of india and another v. ishwar singh khatri and ors. in compliance of the directions issued by the honble supreme court in that case the applicant was appointed to the post of tgt (science) on 17.09.1989. after further litigation in the matter by the similarly placed candidates of the aforesaid panel the applicant was also granted notional pay fixation and seniority w.e.f. 27.01.1984. the present oa has been filed with the prayer that for the purpose of granting acp/macp the approved service of the applicant should be counted from 27.01.1984 and not from 27.01.1989 as the respondents have done. the main ground taken by the applicant is that once it has been accepted that his appointment will count from 27.01.1984 for the purpose of granting seniority and notional pay fixation, it is only logical that for the purpose of acp also œthe approved? service should be counted from 27.01.1984. by not doing that, the respondents have created a situation where the applicant is drawing less pay as compared to other candidates who were appointed from the same panel list of 1984. the applicant has also sought parity with one smt. krishna kumari in oa-1790/2008 and cp-608/2009 which was upheld by the honble high court of delhi vide orders dated 21.12.2009 and 07.01.2011. 2. the applicant has also moved ma-1399/2012 for condonation of delay on the ground that the final decision on a petition submitted by the applicant claiming parity with smt. krishna kumari is yet to be disposed of by the respondents. the applicant has also pleaded that the matter of wrong fixation of pay and delay in granting acp is a continuing cause of action as ruled by the honble supreme court in m.r. gupta v. union of india, air 1996 sc 669 and by the honble high court of delhi in ex. sepoy trilochan v. union of india, w.p.c. no.173/2012 and r.k. kapoor v. union of india, w.p.c. no.3992/2011. 3. the learned counsel for the respondents questioned the oa on the ground of limitation, as the applicant was granted senior scale w.e.f. 27.01.1996 whis is being questioned nearly 16 years later. even the 1st acp order was issued on 26.10.2005 which was 7 years ago. relying on the law laid down by the honble supreme court in the matter of union of india v. m.k. sarkar, 2010 (2) scc 59, the learned counsel argued that the present oa was barred by limitation. 4. on merits also it was pointed out that in a similar oa, no.1986/2011, this tribunal in the matter of smt. krishna kumari v. gnctd had dismissed the oa vide order dated 12.03.2012 and, therefore, the present oa was also liable to be rejected. at this stage the learned counsel for the applicant drew attention to the averment made in the rejoinder filed by the applicant where it has been pointed out that the judgment passed by this tribunal in oa-1986/2011 dated 12.03.2012 is under challenge before the honble high court of delhi by virtue of w.p.c. no.3534/12, which squarely covers the issue which is the subject matter of this oa. 5. we have gone through the pleadings placed on record and also taken into account the arguments put-forth by the learned counsels of rival sides. since the matter relating to grant of higher scale and pay fixation is a continuing cause of action, ma-1399/2012 for condonation of delay is allowed. 6. the sole issue to be considered is whether the approved service of the applicant for the purpose of granting acp is to be counted from the actual date of joining, i.e., the date of the panel list prepared in 1984. this issue has already been addressed by the honble high court of delhi in w.p.c. 3534/12 (supra), which was referred to by the learned counsel for the applicant vide order dated 09.12.2013. the relevant portion of the order reads as follows: 10. in our opinion the issue is squarely covered by the decision of the supreme court in ca no.3250/2006 commissioner and secretary to government of haryana and ors. vs. ram swaroop ganda and ors. wherein it was categorically held that if as per acp scales seniors receive salary less than the junior the salary of the senior has to be stepped up. 11. indeed, fr-22(i)(a)(1) requires pay of a senior to be stepped up if his junior receives salary more than him requiring the salary of the senior to be brought at par with that of the junior. the instruction no.18 under the fr reads as under:- œ(18) removal of anomaly by stepping up of pay of senior on promotion drawing less pay than his junior? (a) as a result of application of fr22-c. [now fr22(i)(a)(1)] in order to remove the anomaly of a government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another government junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. the stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:- (a) both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre; (b) the scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical; (c) the anomaly should be directed as a result of the application of fr 22-c. for example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. the orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under fr27. the next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.? 12. thus, krishna kumari would be entitled to her pay being stepped up when applying the acp scheme the person immediately junior to her got the benefit. 13. we accordingly allow the writ petition and set aside the impugned order dated may 09, 2012 and dispose of the writ petition as also oa no.1986/2011 directing the respondents to step up krishna kumaris pay when person immediately junior to her got benefit firstly of the acp and then of the macp scheme and bring the same at par with the said immediately junior person. arrears be calculated and paid to krishna kumari within 12 weeks from today. 14. cost imposed under the impugned order in sum of `25,000/- which krishna kumari has paid to the central administrative tribunal bar association new delhi shall be refunded to her by the bar association within 2 weeks of an application filed enclosing therewith a certified copy of the present decision. 7. in the aforesaid background as the facts of the present oa are identical to the case of krishna kumari we allow the oa and direct the respondents to grant benefits to the applicant on the lines of the direction given by the honble high court of delhi in w.p.c. 3534/12 (supra) within a period of 03 months from the date of receipt of a copy of this order. no costs.
Judgment:

V.N. Gaur, Member (A):

1. The applicant in this OA is one of the candidates in the panel list of 1492 candidates prepared on 27.01.1984, which was later the subject matter of CA No.1900/1987 in the case of Union of India and another v. Ishwar Singh Khatri and Ors. In compliance of the directions issued by the Honble Supreme Court in that case the applicant was appointed to the post of TGT (Science) on 17.09.1989. After further litigation in the matter by the similarly placed candidates of the aforesaid panel the applicant was also granted notional pay fixation and seniority w.e.f. 27.01.1984. The present OA has been filed with the prayer that for the purpose of granting ACP/MACP the approved service of the applicant should be counted from 27.01.1984 and not from 27.01.1989 as the respondents have done. The main ground taken by the applicant is that once it has been accepted that his appointment will count from 27.01.1984 for the purpose of granting seniority and notional pay fixation, it is only logical that for the purpose of ACP also œthe approved? service should be counted from 27.01.1984. By not doing that, the respondents have created a situation where the applicant is drawing less pay as compared to other candidates who were appointed from the same panel list of 1984. The applicant has also sought parity with one Smt. Krishna Kumari in OA-1790/2008 and CP-608/2009 which was upheld by the Honble High Court of Delhi vide orders dated 21.12.2009 and 07.01.2011.

2. The applicant has also moved MA-1399/2012 for condonation of delay on the ground that the final decision on a petition submitted by the applicant claiming parity with Smt. Krishna Kumari is yet to be disposed of by the respondents. The applicant has also pleaded that the matter of wrong fixation of pay and delay in granting ACP is a continuing cause of action as ruled by the Honble Supreme Court in M.R. Gupta v. Union of India, AIR 1996 SC 669 and by the Honble High Court of Delhi in Ex. Sepoy Trilochan v. Union of India, W.P.C. no.173/2012 and R.K. Kapoor v. Union of India, W.P.C. no.3992/2011.

3. The learned counsel for the respondents questioned the OA on the ground of limitation, as the applicant was granted senior scale w.e.f. 27.01.1996 whis is being questioned nearly 16 years later. Even the 1st ACP order was issued on 26.10.2005 which was 7 years ago. Relying on the law laid down by the Honble Supreme Court in the matter of Union of India v. M.K. Sarkar, 2010 (2) SCC 59, the learned counsel argued that the present OA was barred by limitation.

4. On merits also it was pointed out that in a similar OA, no.1986/2011, this Tribunal in the matter of Smt. Krishna Kumari v. GNCTD had dismissed the OA vide order dated 12.03.2012 and, therefore, the present OA was also liable to be rejected. At this stage the learned counsel for the applicant drew attention to the averment made in the rejoinder filed by the applicant where it has been pointed out that the judgment passed by this Tribunal in OA-1986/2011 dated 12.03.2012 is under challenge before the Honble High Court of Delhi by virtue of W.P.C. no.3534/12, which squarely covers the issue which is the subject matter of this OA.

5. We have gone through the pleadings placed on record and also taken into account the arguments put-forth by the learned counsels of rival sides. Since the matter relating to grant of higher scale and pay fixation is a continuing cause of action, MA-1399/2012 for condonation of delay is allowed.

6. The sole issue to be considered is whether the approved service of the applicant for the purpose of granting ACP is to be counted from the actual date of joining, i.e., the date of the panel list prepared in 1984. This issue has already been addressed by the Honble High Court of Delhi in W.P.C. 3534/12 (supra), which was referred to by the learned counsel for the applicant vide order dated 09.12.2013. The relevant portion of the order reads as follows:

10. In our opinion the issue is squarely covered by the decision of the Supreme Court in CA No.3250/2006 Commissioner and Secretary to Government of Haryana and Ors. Vs. Ram Swaroop Ganda and Ors. wherein it was categorically held that if as per ACP scales seniors receive salary less than the junior the salary of the senior has to be stepped up.

11. Indeed, FR-22(I)(a)(1) requires pay of a senior to be stepped up if his junior receives salary more than him requiring the salary of the senior to be brought at par with that of the junior. The instruction No.18 under the FR reads as under:-

œ(18) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior?

(a) As a result of application of FR22-C. [Now FR22(I)(a)(1)] In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-

(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;

(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;

(c) THE anomaly should be directed as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.?

12. Thus, Krishna Kumari would be entitled to her pay being stepped up when applying the ACP Scheme the person immediately junior to her got the benefit.

13. We accordingly allow the writ petition and set aside the impugned order dated May 09, 2012 and dispose of the writ petition as also OA No.1986/2011 directing the respondents to step up Krishna Kumaris pay when person immediately junior to her got benefit firstly of the ACP and then of the MACP Scheme and bring the same at par with the said immediately junior person. Arrears be calculated and paid to Krishna Kumari within 12 weeks from today.

14. Cost imposed under the impugned order in sum of `25,000/- which Krishna Kumari has paid to the Central Administrative Tribunal Bar Association New Delhi shall be refunded to her by the Bar Association within 2 weeks of an application filed enclosing therewith a certified copy of the present decision.

7. In the aforesaid background as the facts of the present OA are identical to the case of Krishna Kumari we allow the OA and direct the respondents to grant benefits to the applicant on the lines of the direction given by the Honble High Court of Delhi in W.P.C. 3534/12 (supra) within a period of 03 months from the date of receipt of a copy of this order. No costs.