Sh. Dwarka Prasad Sharma vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 970 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner herein had filed the Original Application No. 1788/95 before the Central Administrative Tribunal, Principal Bench, New Delhi. His grievance was that though he had been working as Caretaker in Press Information Bureau, Ministry of Information and Broadcasting since 1973 (i.e. for more than 24 years when he filed the said Original Application), he had not been given a single promotion. The relief was claimed primarily on the ground that at the time of his appointment, he was not informed that the post of Caretaker was an ex-cadre post and in any case in all the sister offices of the respondent No. 1 even the ex-cadre posts of Telex Operators were placed at the bottom of the LDC seniority list and they were made eligible for promotions to the posts of UDCs. It was also his case that since 1990 the respondents were actually taking the work of Assistant from him, and therefore, he should be inducted Along with his post into the Assistant cadre of the Central Secretariat Service (CSS for short) with seniority from the date he was appointed as the Caretaker.

2. The respondents had contested the aforesaid Original Application on the ground that the petitioner was holding an ex-cadre post, and therefore, could not be inducted into the Assistant grade of CSS. He had in fact made a request to this effect in 1989 whereupon he was asked as to whether he would be interested for being considered for induction into the Central Secretariat Clerical Service (CSCS) with seniority determined from the date of induction and in reply to this the petitioner had expressed his unwillingness. In any case since there was no provision for induction of the post of Caretaker into the UDC and it was not found to relax the rules, the post of Caretaker being the isolated post, the decision was communicated to him rejecting his request.

3. After hearing both the sides, the learned Tribunal dismissed the Original Application as the prayer of the petitioner was found to be legally unsustainable. However, before parting with the case, the learned Tribunal made the following observations:

"In the conspectus of the above discussion, we come to a somewhat unhappy conclusion that the O.A. has to be dismissed. Before parting with the case, however, we would like to observe that it is the duty of the respondents to ensure that its employees have suitable avenues of career progression. Prospectus of promotion are not only desirable for the satisfaction of employees but are also a means of increasing efficiency. We note the statement of the Ld. counsel for respondents that the matter was placed before the 5th Pay Commission but he is not aware as to what recommendations have been made. We hope and trust that the Government will find some method to provide at least two promotions even in ex-cadre posts."

4. Aggrieved against the aforesaid judgment of the learned Tribunal, the present writ petition has been filed. Before us the learned counsel for the petitioner reiterated almost the same submissions which were made before the learned Tribunal. He submitted that his pay scale as Caretaker was higher than that of the UDC and lower than that of the Assistant. He had worked as Caretaker from 1973 to 1990 and since 1990 he was discharging the duties of Desk Officer and to substantiate this he referred to various documents. He, therefore, made a fervent plea to either induct the petitioner as Assistant who may be placed at the bottom in the seniority list of the Assistants, his pay scale being lower than that of the Assistants, or alternatively, he may be inducted as UDC and placed at the top in the seniority of the UDC, his pay scale being higher than that of the UDC. This according to him, should be done w.e.f. 1973 when he was appointed as Caretaker.

5. The learned counsel for the respondents on the other side submitted that the observations made by the learned Tribunal, as quoted above, were duly considered by the Government wherein the learned Tribunal had expressed the desirability for providing atleast two promotions even in ex-cadre posts. His submission was that the Government, pursuant to the recommendations of the Fifth Central Pay Commission had come out with the 'Assured Career Progression Scheme' (ACP for short) as per which such persons who were stagnating in their posts and were not getting the promotions, they were to be given two financial upgradations; one on completion of 12 years and other on completion of 24 years. The relevant portion of the said ACP Scheme reads as under:

"GROUP 'B', 'C' AND 'D' SERVICES/POSTS AND ISOLATED POSTS IN GROUP 'A', 'B', 'C' AND 'D' CATEGORIES:

3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group 'C' and 'D' employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group 'B', 'C' and 'D' employees on completion of 12 years and 24 years (subject to condition No. 4 in Annexure-I) of regular service respectively.

Isolated posts in Group 'A', 'B', 'C' and 'D' categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), adh-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial upgradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I. (emphasis added)"

6. It was submitted that pursuant to the aforesaid scheme, the petitioner was in fact granted two financial upgradations, and therefore, there was no cause for any grievance.

7. We have considered the rival submissions of the parties. It cannot be disputed that the petitioner was appointed as Caretaker and the post of Caretaker is an isolated post in ex-cadre.

8. The question, therefore, is as to whether the petitioner can be inducted in CSS.

9. It is undisputed that all appointments in the Assistant's Grade are made as per the Central Secretariat Rules, 1962. As per the CSS Rules, all appointments are made either by direct recruitment on the basis of the competitive examinations held by the Staff Selection Commission from time to time or from the persons who are in the select list of the Assistant's Grade for which a select list is prepared from among the officers who have rendered requisite years of service in the Upper Division Grade of CSSC. Therefore, the petitioner may not be having any legal right to be inducted in CSS. In fact as noted above, the petitioner's representation to this effect was considered in the year 1995 but rejected by the Government in view of the rule position prevailing as noticed hereinabove.

10. The petitioner, however, claims induction on the ground that the persons working as Telex Operators and Teleprinter Operators were inducted into the bottom of the seniority list of LDC w.e.f. 1989 by the Government, and therefore, the benefit can be granted to him also. The respondents have explained that the pay scales of Telex Operators and Teleprinter Operators were indicated to that of the LDCs and a policy decision was taken, on the demand from the staff, for their encadrement. In the case of the petitioner his scale is not equivalent to any pay scale in the notified post and further that it is an isolated post, the request could not be considered. It is further explained that for such isolated posts in Group 'A', 'B', 'C' and 'D' categories the ACP Scheme was introduced on the recommendations of Fifth Central Pay Commission. There appears to be merit in the stand taken by the respondents because of which the petitioner could not be encadred which was accepted by the learned Tribunal as well. We do not see any reason to take a different view.

11. Merely because the petitioner had been doing some other work, would not give him right to be regularised on such a post or be encadred in CSS. As per his own admission, the petitioner was appointed as Caretaker and continued to hold the post of Caretaker all through. Although this tendency of the employer to take work from an employee, like the petitioner, of a post other than the post to which he is appointed, has to be deprecated nonetheless having regard to the position in law as laid down by the Apex Court, no relief can be granted to the petitioner on this ground. The learned Tribunal, rejecting this very contention of the petitioner, observed as under:

"The Ld. counsel also submitted that if the applicant is doing the work as is done by other Assistants, then he has to be regarded as working as an Assistant. He cited the case of UOI and Anr. v.

Harish Chandra Bhatia and Ors. 1995 (1) ATJ 293 in which it was held that an officiating appointment for over a decade cannot be treated as a fleeting appointment with no service benefits to be given. We are unable to find any force in this argument nor do we consider that the case relied upon by the Ld. counsel is relevant to the issue at hand. There is no claim that any appointment of the applicant has been made as an Assistant. The respondents deny the claim that the applicant is working as an Assistant. The Tribunal cannot go into any fact finding investigation to see whether or not the work being done by the applicant is exactly the same as that of an Assistant. It may be or may not be in its entirety. The only fact that is admitted on both sides is that the official appointment of the applicant is as a Caretaker and he has been drawing the pay of that post and not that of an Assistant."

12. There are statutory recruitment rules for filling up the posts of the Assistants. Such statutory recruitment rules cannot be given go-by and the court cannot give a direction which would be violative of the Articles 14 and 16 of the Constitution of India.

13. In so far as observations of the learned Tribunal in paragraph 7 of the impugned judgment are concerned, since the petitioner has been given two financial upgradations under the ACP Scheme which was promulgated on the recommendations of the Fifth Central Pay Commission, inter alia, to take care of such cases, we are not in a position to grant any further relief to the petitioner.

14. This writ petition is accordingly dismissed.