Union Of India (Uoi) vs D.P. Sharma
2005 Latest Caselaw 1399 Del

JUDGMENT

Mukundakam Sharma, J.

1. The order dated 4th July, 2003 passed by the learned Central Administrative Tribunal in OA No. 292/2003 and the order dated 19th September, 2003 passed by the said Tribunal in Review Application No. 276/2003 are under challenge in this writ petition, which is filed by the Union of India. By the aforesaid order, the learned Tribunal has directed to pay to the respondent a higher pay for the period from 26th March, 2001 to 20th December, 2001 and 21st January, 2002 to 12th February, 2002.

2. The respondent is an officer of the Indian Legal Service. While he was working as an Additional Secretary in the Department of Legal Affairs, Ministry of Law, Justice and Company Affairs, he was appointed as a part-time Member of the Appellate Tribunal for Foreign Exchange vide order dated 21st March, 2001. The said order reads as follows:

"In exercise of the powers conferred by Rule 5 of the Appellate Tribunal for Foreign Exchange (Recruitment, Salary and Allowances and Other Conditions of Service of Chairperson & Member) Rules, 2000, the Central Government hereby appoints Shri D.P. Sharma, Additional Secretary in the Department of Legal Affairs as part-time Member of the Appellate Tribunal for Foreign Exchange, New Delhi under the Ministry of Law, Justice and Company Affairs, Department of Legal Affairs with immediate effect and until further orders.

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Endt.

1. Shri D.P. Sharma, Additional Secretary, Department of Legal Affairs. Shri D.P. Sharma will not be entitled to any remuneration on account of this appointment.

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In the month of March the post of the Chairman of the said Appellate Tribunal for Foreign Exchange fell vacant and since the respondent was the seniormost part-time Member, an order was issued by the Ministry of Law, Justice and Company Affairs wherein it was stated that the respondent who is the Additional Secretary and seniormost part-time Member of the Appellate Tribunal for Foreign Exchange would act as the Chairperson of the Appellate Tribunal for Foreign Exchange. The said order reads as follows:

"By virtue of the Section 26 of the Foreign Exchange Management Act, 1999 (42 of 1999), Shri D.P. Sharma, Additional Secretary and the seniormost part-time Member of the Appellate Tribunal for Foreign Exchange shall act as the Chairperson of the Appellate Tribunal for Foreign Exchange with immediate effect until a regular Chairperson, appointed in accordance with the provisions of the said Act, enters upon his office.

Copy to:

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Shri D.P. Sharma, Additional Secretary, Department of Legal Affairs, in continuation of order of even No. dated 21st March, 2001. Shri D.P. Sharma will not get any additional remuneration for this purpose other than what he is getting as Additional Secretary to the Government of India.

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The respondent happened to act as the Acting Chairperson up to 20th December, 2001 and thereafter also he again acted as the Acting Chairperson during the period from 21st January, 2002 to 12th February, 2002. Both the aforesaid orders state that the respondent would function as Acting Chairperson under the provisions of Section 26 of the Foreign Exchange Management Act, 1999 (42 of 1999). On 11th September, 2001, the respondent submitted a representation seeking remuneration as available to the Chairperson on the ground that as an Acting Chairperson, the respondent was shouldering additional responsibility and was, therefore, entitled to receive additional remuneration in terms of the provisions of the Fundamental Rule 49. The aforesaid representation of the respondent was considered by the competent authority and by order dated 4th February, 2003, the said request of the respondent for additional remuneration was rejected. In the said letter it was stated that there was no regular/formal appointment of the respondent to the post of the Chairperson of the Tribunal and, therefore, the provisions of Clause III of FR 49 are not attracted.

2. Being aggrieved by the aforesaid order, the respondent filed an Original Application before the Central Administrative Tribunal which was registered as OA No. 292/2003, The said Original Application was taken up for consideration by the learned Tribunal and after hearing the parties it allowed the Original Application holding that there was an assumed formal appointment of the respondent to the post of Chairperson of the said Appellate Tribunal for Foreign Exchange and, therefore, he was entitled to receive higher remuneration connected with the said post. The petitioner thereafter filed a review application before the learned Tribunal which was also dismissed. Consequently, the present writ petition is filed in this Court as against the aforesaid two orders passed by the learned Tribunal.

3. The Parliament enacted an Act called "The Foreign Exchange Management Act, 1999". Section 2(f) of the said Act defines Chairperson to mean "Chairperson of the Appellate Tribunal" whereas Section 2(s) of the said Act defines the expression "Member" to mean "a Member of the Appellate Tribunal which includes the Chairperson thereof". An adjudicating authority is empowered under the Act to adjudge any contravention on the provisions of the aforesaid Act. The mode of appointment of the adjudicating authority is prescribed under the Act in Section 16. Section 20 lays down the provision of composition of the Appellate Tribunal. Clause (1) thereof states that the Appellate Tribunal shall consist of a Chairperson and such number of Members as the Central Government may deem fit. Section 21 of the said Act lays down the qualifications for appointment of Chairperson wherein it is provided that a person shall not be qualified for appointment as the Chairperson unless he is or has been, or is qualified to be a Judge of the High Court. So far the qualification for appointment of Member is concerned, it is laid down that a person shall not be qualified for appointment as the Member unless he is or has been, or is qualified to be a District Judge. Section 26 of the Act gives a power to a Member to act as Chairperson in certain circumstances. The said provision reads as follows:

"26. Member to act as Chairperson in certain circumstances--

1. In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the seniormost Member shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

2. When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the seniormost Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties."

We have mentioned about the aforesaid provisions as they will have some relevance for the purpose of disposal of the present writ petition. Since reliance was placed by both the parties on the provisions of Fundamental Rule 49, the relevant provision of the same is also extracted herein below:

"F.R. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:

(i)     ...
 

(ii)    ...
 

(iii) Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/ line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds charge of more than two posts, in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding [45] days but not exceeding 3 months:

Provided that if in any particular case, it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the [Department of Personnel and Training] shall be obtained for the payment of the additional pay beyond the period of 3 months;

(iv) ...

(v) no additional pay shall be admissible to a Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge;

(vi) ...

We may now, therefore, proceed to decide the writ petition in the light of the submissions made before us and in the context of the facts of the present case with due regard to the aforesaid provisions, which have been mentioned herein before for the purpose of convenience. Claim of the respondent is for payment of higher salary/additional remuneration on the ground that he has acted as the Chairperson consequent to which he has shouldered additional responsibility and discharged all the duties as that of the Chairman and, therefore, he is entitled to additional remuneration as available to the post of Chairperson in terms of the provisions of Fundamental Rule 49. He has relied upon the provisions of Sub-clause (iii) of F.R. 49 in support of the aforesaid claim. The learned Tribunal allowed the aforesaid claim relying on the aforesaid provision.

4. The learned Additional Solicitor General appearing for the petitioner has drawn our specific attention to the order passed whereby the respondent was asked to act as the Acting Chairman wherein also it was stipulated that he would not be entitled to draw any additional remuneration for the aforesaid purpose other than what he was getting as Additional Secretary to the Government of India. It was also submitted that the respondent was working in the Appellate Tribunal only as a part time Member wherein also he is not getting any additional remuneration for the aforesaid purpose and for discharging the duties of a part time Member than what he was getting as Additional Secretary to the Government of India. Reliance is placed on the fact that the respondent was not formally appointed as Chairperson and, therefore, the provisions of Clause (iii) of F.R. 49 are not attracted and at best Clause (v) of said FR 49 would be attracted in the facts of the present case. Counsel also drew our attention to the decision of the Supreme Court in Mohd. Swaleh v. Union of India and Ors. .

5. Counsel appearing for the respondent while refuting the aforesaid submissions submitted that clearly the provisions of Clause (iii) of FR 49 are applicable in the present case. He also relied upon the Division Bench decision of this Court in CWP No. 6368/2001 titled Department of Training & Technical Education v. R.L. Yadav and Anr. decided on 22.3.2002.

6. The definition of "Member" as appearing in the definition clause also includes a Chairperson. Section 26 gives power to a Member to act as a Chairperson whenever there is a vacancy in the office of the Chairperson by reason of his death, resignation or otherwise. In the natural course the seniormost Member would act as the Chairperson whereas Sub-section (2) thereof provides that when the Chairperson is unable to discharge his functions owing to absence, illness or any other case, the seniormost Member would discharge the functions of the Chairperson. Sub-section (1) of Section 26, therefore, would be applicable when there is a vacancy in the office of the Chairperson whereas Sub-section (2) of Section 26 should be applicable when the Chairperson is unable to discharge his functions due to illness, absence or any other cause. The later case does not necessarily envisage a situation where the post of the Chairman has fallen vacant.

7. Counsel for the respondent in the context of the aforesaid provisions submitted before us that since there was a vacancy in the office of the Chairperson, therefore, the respondent was required to act as the Chairperson and discharge all the functions and duties of the Chairperson which are required to be discharged by the Chairperson and in that view of the matter he is entitled to draw additional remuneration as is available to the post of the Chairperson. He submitted that in case it would have been a case of Sub-section (2) of Section 26, in that event it may not have been a case for claim of the additional remuneration but in a case of Sub-section (1), the office/post falls vacant and, therefore, he would alone draw the remuneration of the said post. It is no doubt true that in the present case the order was passed stating that the respondent would act as the Chairperson, therefore, it was a case of Sub-section (1) of Section 26.

8. But the issue is even if there be such an order whereby he was to act as a Chairperson, the same would give a cause to claim any additional remuneration. The order whereby he was asked to act as the Chairperson of the Appellate Tribunal was issued in exercise of the powers vested under Section 26 of the Foreign Exchange Management Act, 1999. But it was clearly stipulated in the said order that he would not get any additional remuneration for the aforesaid purpose other than what he was getting as Additional Secretary to the Government of India. As a matter of fact, the very appointment order dated 21st March, 2001 was an appointment as part time Member. In the said order, it was also stated that he would not be entitled to any remuneration on account of the aforesaid appointment as a part-time Member of the Appellate Tribunal. We are told that remuneration of an Additional Secretary to the Government of India is the same with that of the Member of the Appellate Tribunal for Foreign Exchange and, therefore, when he was formally appointed as a part time Member of the Appellate Tribunal for Foreign Exchange, he could draw only the pay scale of that of the Additional Secretary, which was equivalent to that of the pay scale of a part-time Member of the Appellate Tribunal and, therefore, it was made clear in the order that he would not be entitled to any remuneration for the appointment as a part-time Member. The order which is issued subsequently in exercise of the powers under Section 26 directing that the respondent would act as the Chairperson of the Appellate Tribunal, it was not a case of formal appointment, for there was no order passed by the competent authority formally appointing the respondent as the Chairperson. In fact there could not have been such an order also as such formal appointment to the post of Chairperson could only be made when a person is duly selected by the Selection Committee and appointed in accordance with the aforesaid provisions of the Act and the Rules framed there under. There was no Selection Committee constituted either for selection or for appointment of the Chairperson in the present case and, therefore, clearly Clause (iii) of F.R. 49 is not applicable to the present case. The only alternative provision which could be said to be applicable to the petitioner is the provisions of Clause (v) of F.R. 49, which clearly states that no additional pay would be admissible to a Government servant, who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge.

9. We may also appropriately refer to the decision of the Supreme Court in the case of Mohd. Swaleh (supra) wherein almost in the context of similar facts and relying on F.R. 49, the Supreme Court held that the Deputy Registrar was not entitled to Registrar's salary under FR 49(i) despite the fact that he discharged the Registrar's functions under the orders of the Vice-Chairman. In the said case it was held that President of India is the appointing authority of the Registrar as it was a Group-A post. Therefore, in absence of any delegation, the Vice-Chairman of the Central Administrative Tribunal is not empowered to make Registrar's appointment. Since the order was passed by the Vice Chairman, who is an incompetent authority to appoint a Registrar, therefore, he is not entitled to claim such salary of the post of the Registrar. In the said decision it was also held that right to claim the pay is squarely governed by Rule 49 of the Fundamental Rules. It was also held that there was no order of the Central Government passed under Rule 49 in favor of the Deputy Registrar appointing him as the Registrar and, therefore, he is not entitled to claim such benefits. It was further held in the said decision that principle of quantum meruit, which is based on the provisions of Section 70 of the Contract Act, is not applicable to the present situation where the field is governed by specific statutory rules, namely, Rule 49 of the Fundamental Rules.

10. In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case. Similar is the case of the Supreme Court in State of Haryana v. R.K. Aggarwal reported in 1997 (4) SLR 733. In the said case also the Supreme Court was examining the case where the respondent R.K. Aggarwal was assigned to hold the current duty charge first, as Chief Engineer and thereafter as the Engineer-in-Chief. It was held by the Supreme Court that since substantive promotion was not given to the respondent during the impugned period because of pending litigation, therefore, he is nor entitled to claim any salary of the promotional post that is held on current duty charge. In the case of Selvaraj v. Lt. Governor of Island, Port Blair and Ors., , following the principle of quantum meruit directed the authorities to pay the employee as per the emolument available in the higher pay scale during the period he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee.

11. We have perused the said judgment. The said judgment was rendered in the facts of that case where the employee was given officiating promotion and, therefore, his salary was allowed to be drawn during the aforesaid period against post of Secretary (Scouts). The decision of the Division Bench of this Court in Department of Training & Technical Education v. R.L. Yadav and Anr. (supra), on which reliance is placed, in our considered opinion is also distinguishable on facts as in the said case the employee was transferred and was posted in the school in order to enable him to take over as the Principal of the said school although on the basis of current duty charge. In that context, the Division Bench relying on the Supreme Court decision in Selvaraj (supra) allowed payment of additional remuneration in the higher post which he was holding on current duty charge. The facts of the said case are clearly distinguishable from the facts of the present case. Here the respondent was only working as a part time Member of the Tribunal and being the seniormost part-time Member he was asked to act as the Chairperson of the Tribunal as the said post had fallen vacant. In our considered opinion, therefore, the claim of the respondent is untenable and misplaced. The learned Central Administrative Tribunal committed manifest error of law both on facts as also on law in allowing the Original Application and for directing for payment of additional emoluments for acting in the post of Chairperson. We accordingly set aside the order of the learned Tribunal and hold that the claim of the respondent is without any merit. The writ petition stands allowed and the order of the learned Tribunal stands quashed.