Sh. G.R. Nigam vs Govt. Of N.C.T. Of Delhi And Ors.
2002 Latest Caselaw 1638 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner in this writ petition feels aggrieved by a judgment and order dated 31st August, 2001 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in Original Application No.697/2000 which Original Application was filed by him seeking grant of benefit of pay in the senior scale of Rs.2,200-4,000/- to be effective from 1st March, 1986 with all consequential benefits including 18 per cent interest and recalculation of retiral benefits. He submits that while dismissing his aforesaid Original Application the learned Tribunal has not adhered to judicial discipline inasmuch as it has ignored its other judgment of Co-ordinate Bench granting such benefits to similarly situated persons and thus acted contrary to the dicta laid down by the Supreme Court.

2. The petitioner is claiming the aforesaid benefits in the following circumstances:

3. He was appointed as Post Graduate Teacher (PGT) under the Directorate of Education, Government National Capital Territory of Delhi on 19th August, 1961 and was granted PGT selection grade (which was subsequently considered as senior scale of the revised pay scale) with effect from 1st March, 1974. On completion of 12 years' service in the grade, he was accorded the senior scale with effect from 1st March, 1986, on the basis of the respondents' order dated 29th October, 1998. The petitioner went to foreign assignment with the Government of Nigeria in the year 1981 and remained there for three years, i.e., from 25th November, 1981 to 24th November, 1984. While on foreign assignment he waspromoted as Vice Principal on adhoc basis with effect from 2nd March, 1983. After finishing his foreign assignment he resumed duties with the Directorate of Education again. On 6th December, 1990 he was promoted as the Principal of the school and retired from the services of the respondents on 30th June, 1996 after attaining the age of superannuation.

4. However, much after his retirement he was sanctioned selection scale of PGT in the scale of Rs.2,200-4,000/- with effect from 1st March, 1986. This was in accordance with the instructions contained in the Ministry of HRD dated 12th August, 1987 and clarification dated 3rd November, 1987 as per which on completion of 12 years' service in the selection grade/senior scale a person was entitled to be put in selection scale of PGT. The relevant portion of this order dated 29th October, 1998 is as under;

"The following substantive, selection Grade/Senior Scale PGT's (Male/Female) belonging to Administrative Cadre are hereby granted Selection Scale of PGT in the scale of Rs. 220-75-2650-EP-75-2800-100-3200-EB-100

-3500 w.e.f. the date shown in Govt. of India, Ministry of H.R.D., New Delhi, Letter No. F5-180/8-UTI dated 12.8.97 and clarification dated 3.11.87 subject to the conditions:

i) That they have completed 12 years of service in Selection Grade/Senior Scale of Rs.200-3500 and are/were working as/Vice-Principals on the date of grant of Selection Scale. The service of 12 years is to be counted on the lines as service is counted for the grant of an increment. The service rendered on foreign assignment/deputation and EOL & does non shall not qualify for the same and subject to non compliance of the terms and conditions of foreign assignment is pending."

5. The list enclosed with this order contains 102 names. The name of the petitioner finds placeat S.No.71. This was followed by Office Order dated 23rd December, 1999 as per which the pay of the petitioner was fixed in the revised scale of Rs.2,200-4,000/-. Some modification was issued in this Office Order dated 23rd December, 1999 vide corrigendum dated 17th February, 2000. However, thereafter vide Office Order dated 15thNovember, 2000 the respondents withdrew Office Orders dated 30th November, 1998, 23rd December, 1999 and 17th February, 2000 and thus deprived the petitioner the selection scale of Rs.2,200-4,000/- granted to him earlier which was to be effective from 1st March, 1986.

6. It may be mentioned at this stage that certain other persons had approached the learned Tribunal by filing Original Application No. 206/2000 titled as Sh. Inderjeet and three others Vs. Chief Secretary, Director of Education and Deputy Controller of Accounts, Directorate of Education, Govt. of NCT of Delhi. This Original Application was decided by the learned Tribunal vide judgment dated 26th July, 2000. The order dated 15th November, 2000 states that the case of the petitioner was considered and examined pursuant to the aforesaid judgment of the learned Tribunal dated 26th July, 2000 in the case of Inderjeet (supra), in the light of the instructions of the Government of India as well as Directorate of Education and the detailed examination of the case revealed the following position:

"I. The instructions of the Govt. of India circulated vide letter No.F.6-180/86/U.T.I. dated 12/8/87 for the grant of Selection Scale to the teachers after that:-

a) While Senior Scale will be granted after 12 years service as PGT, TGT/H.M. of Primary School and PGT/Head Master of Middle School, the Selection Scale will be granted after 12 years of service in the senior scale of the respective cadres.

b) The number of posts in the Selection Scale will be restricted to 20% of the number of posts in the senior scale of the respective cadre.

c) The teacher would be required to participate in In-Service-Training Programme of at least three weeks duration before he/she is promoted to Senior Scale i.e. once in six years.

II. Sh. G.R. Nigam was awarded Selection Grade PGT w.e.f. 1.3.75. He was promoted to the post of Vice-Principal w.e.f. 2/3/83 on adhoc basis and he got the benefit of Stepping up w.e.f. 26/1/86 as Vice-Principal which can be given only to a regular employee.

III. Before the completion of 12 years as PGT Sh. G.R. Nigam was promoted as Vice-Principal and therefore, he did not meet the requirement as laid down in the instructions issued by the Govt. of India referred to above."

7. Keeping in view the aforesaid position, the respondents came to the conclusion that the petitioner was not covered for the grant of selection scale and for this reason his case for grant of such scale was rejected.

8. The petitioner challenged the aforesaid order dated 15th November, 2000 by filing Original Application No.697/2000which has been dismissed by the learned Tribunal as noted above. A perusal of the impugned judgment of the Tribunal would reveal that the learned Tribunal accepted the reasons given in order dated 15th November, 2000 for denying the petitioner the senior scale. The learned Tribunal observed:

"The respondents by applying the aforesaid criteria as laid down in OM dated 5.5.2000 decided in the case of the applicant that he is not entitled for accord of the pay scale as he failed to fulfilll the eligibility criteria of 12 years of service in the senior scale. As the applicant was awarded the PGT selection grade w.e.f. 1.3.75 and having promoted on adhoc basis on 2.3.83 and further regularised as Vice-Principal on 29.1.86 has failed to complete requisite 12 years of service in the senior scale and should have been working as Vice-Principal and service rendered on foreign assignment shall not be taken into reckoning for the purpose of counting the period of 12 years. By the aforesaid memorandum dated 5.5.2000 this has been clarified that senior scale will be granted after 12 years to PGT in senior scale of respective cadre and as the applicant has not been found to have completed 12 years of service and was promoted on regular basis as Vice Principal before 12 years he would not be eligible for consideration. The contention of the applicant that once the period has been reckoned on deputation as for increments the same should be treated for according the eligibility criteria cannot be acceded to as under the relevant rules the applicant was not having lien as soon as he was promoted as Vice-Principal and his pay was stepped up. The provisions would have application only when there has been a joining of a new post with the Government and till confirmation the lien is maintained after coming into operation of 1989 instructions the confirmation has been restricted to entry grade and as such the resort of the applicant to contend that before confirmation as would retain his lien as PGT and this period would be treated as eligibility criteria is not legally tenable. After from it,

as per the decision the foreign deputation cannot be treated as qualifying service for the criteria of accord of senior scale. The period of deputation has been rightly deducted for the purpose of fixation of payby the respondents. As the applicant has failed to have the necessary eligibility condition of completion of 12 years in the PGT scale he cannot be accorded the benefit and has been rightly withdrawn by the respondents. We do not find any fault with the action of the respondents."

9. There is no dispute that for entitlement to selection grade, an employee who renders12 years' service in PGT grade as per the extant rules/guidelines is eligible. The petitioner was awarded the PGT grade with effect from 1st March, 1974. He was promoted to the next higher post with effect from 2nd March, 1983; albeit on adhoc basis. Although the learned Tribunal has observed in the impugned judgment that he was regularised as Vice Principal on 29th January, 1986, this is disputed by the petitioner. We would revert to this aspect at appropriate stage. According to the learned Tribunal, since the petitioner was promoted on adhoc basis on 2nd March, 1983 and regularised as Vice Principal on 29th January, 1986 he failed to complete requisite 12 years of service in the senior scale, and therefore, could not be granted the selection grade. The other reason given by the learned Tribunal is that the period spent on deputation (in this case on foreign assignment with Government of Nigeria) would also be not counted.

10. The main plank of attack, to the aforesaid reasoning adopted by the learned Tribunal in denying the petitioner his prayer, was that the learned Tribunal erred on both counts. In the first place, it was argued, the period spent on deputation will have to be counted once it is shown that the petitioner had earned his increments during this period. For this purpose herelied upon Division Bench judgment of this court in the case Lt. Governor of Delhi and two others Vs. Nand Kishore reported in 1974 (2) SLR 894.

11. In so far as petitioner's promotion to the post of Vice Principal with effect from 2nd March, 1983on adhoc basis is concerned, the learned counsel contended that since it was only an adhoc appointment and he kept his lien on the lower post, for the purpose of grant of selection grade even the period after his promotion as Vice Principal on adhoc basis would be counted in the lower scale and in this manner he had completed12 years of service on 1st March, 1986. The learned counsel, in support of the plea that in the absence of confirmation to the higher post no benefit accrues to such a person in the higher post, relied upon the Supreme Court judgment in the case of Jagdish Lal and Ors. Vs. State of Haryana & Ors. .

12. The learned counsel argued that in Jodha Ram Vs. Director, Directorate of Education (OA No.1295/2000) decided by the learned Tribunal on 25th May, 2000 the benefit of such selection grade was given to similarly situated persons and the petitioner was deprived of the same which not only amounted to violation of Article 14 of the Constitution of India, the learned Tribunal in any case could not have ignored the aforesaid judgment rendered by a Co-ordinate Bench.

13. Admittedly the position as per rules is that before the petitioner becomes entitled to selection grade he has to complete 12 years of service in the senior scale. If the petitioner was promoted as Vice Principal on regular basis with effect from 29th January, 1986 as claimed by the respondents, in that case the period from 1st March, 1974 (when the petitioner was given selection grade) to 29th January, 1986 would be less than 12 years. However, although it is claimed by the respondents that the petitioner was promoted as Vice Principal on regular basis, this is disputed by the petitioner and there is nothing on record to verify this aspect. However, it is admitted by the petitioner himself in the writ petition that on 6thDecember, 1990 he was promoted to the post of the Principal and retired on 30th June, 1996 as Principal. This fact militates against the contention of the petitioner inasmuch as the petitioner could not have been promoted as Principal, if in the first instance, he was not promoted as the Vice Principal. Be as it may, even on admitted fact, i.e., the petitioner was promoted as Vice Principal on adhoc basis on 2nd March, 1983, we are of the opinion that he shall not be entitled to the senior scale. We proceed to discuss this aspect of the matter.

The petitioner was admittedly promoted on adhoc basis on 2nd March, 1983 and till that date he had not completed 12 years of service. The petitioner submits that adhoc promotion would be of no avail as he continued to hold substantive rank in the lower post, the period spent as Vice Principal on adhoc basis would count in the lower post for the purpose of completing 12 years for grant of senior scale.

14. We may note here that we have before us the order of promotion of petitioner to the post of Vice Principal. This order reveals that the petitioner was promoted as Vice Principal on adhoc basis after the recommendation of the Departmental Promotion Committee. Thus the promotion was made after following proper procedure. Not only this he started getting pay in the higher scale attached to the post of Vice Principal. Para 3 of the said order further reveals that some writ petitions were pending and the appointment was made subject to the final decision in those writ petitions. It is clear that because of pendency of these writ petitions the promotion was made on adhoc basis although after following the procedure as per rules and conferring of the benefits of the higher post. In these circumstances, such a promotion even if termed as adhoc would have different flavour than projected by the petitioner for the purpose of grant of selection grade in the lower post. The cases cited by the petitioner relate to seniority which may not have any bearing on the case of this nature where we are dealing with the question of granting selection grade after completion of 12 years' service. Whether it would be admissible even to a person who has joined higher post (may be on adhoc basis) before completion of 12 years' service and has started getting higher pay scale? Answer to that should, in our opinion, be rendered in the negative.

15. The very purpose for granting selection grade to an employee is to give him higher scale in the same post after 12 years of service as he has not been able to get promotion during this period and, therefore, because of stagnation in career progression he is compensated by giving higher pay scale. However, when he gets promoted to higher post even on adhoc basis and starts getting higher pay scale, he would not be entitled to the selection grade in the lower post.

16. Learned counsel for the petitioner relied upon the case of Jodha Ram (supra). In that case the learned Tribunal had given the benefit to the said applicant notwithstanding the fact that he was also promoted as Vice Principal on adhoc basis. Although in the final analysis the learned Tribunal has not discussed this case and the petitioner may be right in his submission that if the learned Tribunal was differing from the decision in the case of Jodha Ram (supra) if matter should have been referred to a larger Bench as normally the Tribunal is bound by the decision of the Co-ordinate Bench, that aspect should not detain us inasmuch as per the view we have held, it is clear that the decision in Jodha Ram (supra) was not correct and it is the impugned judgment in this writ petition, which according to us, holds the correct view.

17. The writ petition is, therefore, without any merit and is accordingly dismissed.

18. There shall be no order as to cost.