Kali Charan And Ors. And Kauser Ali vs Delhi Development Authority And ...
2006 Latest Caselaw 2170 Del

JUDGMENT

S. Muralidhar, J.

1. Writ Petition (C) No. 1513/2000 has been filed by three Assistant Engineeers ('AEs') of the Delhi Development Authority ('DDA'), Respondent No. 1 herein, seeking directions to restrain the DDA from effecting recoveries from the petitioners consequent to a purported refixation of their pay by the impugned Order dated 6.3.2000. On 25.4.2000, this Hon'ble Court passed an interim order restraining the DDA from effecting recoveries and this was confirmed on 14.3.2005 when Rule was issued.

2. During the pendency of the writ petition, petitioner No. 2 Shri Mohammed Imamuddin died and by an order dated 18.5.2004 his legal representatives were brought on record. It may also be mentioned that by an order dated 19.11.2001 the petitioners were permitted to amend the writ petition to seek a direction to the Respondents "to effect fixation of the petitioners respective pay by giving a benefit of the provision of FR 22(I)(a)(1) with effect from the due date."

3. The facts in brief are that Petitioners 1, 2 and 3 were appointed as Junior Engineers (JEs) in the DDA in the grade of Rs. 425-Rs. 700 on 20.2.1980, 7.1.1980 and 19.2.1980 respectively. On completing 5 years' service, i.e. from 1.1.1986, the petitioners were entitled to grant of a higher grade. By an order dated 21.5.1993 issued by the DDA, the petitioners were granted the higher grade of Rs. 1640-Rs. 2900 from 1.1.1986. Consequently the pay of petitioners 1,2, and 3 was fixed as Rs. 2120 with effect from 1.2.1993, 1.1.1993 and 1.2.1993 respectively. This stepping up of the pay was, according to the petitioners in accordance with Fundamental Rule (FR) FR 22 (I)(a)(1). This meant that the pay was revised with effect from 1.1.1986 to Rs. 1,640 and then from the very next month i.e. from 1.2.1986, it was stepped up by one increment of Rs. 60 to Rs. 1,700 and thereafter every year by Rs. 60 till 1.2.1993.

4. On completion of 15 years' continuous service, the petitioners were, by the orders dated 3.4.1996 and 5.8.1996, promoted as AE and placed in the pay scale of Rs. 2,000-Rs. 3,500. The pay of petitioners was fixed at Rs. 2375. Consequent upon the implementation of the recommendations of the Fifth Pay Commission, the petitioners' pay scales were revised with effect from 1.1.1996 to Rs. 5500-Rs. 10,500 and their the pay was fixed at Rs. 7500 with effect from 1.2.1996.

5. It is stated that by a circular dated 3.2.2000 issued by the Personnel Branch of the DDA, the pay of the petitioners was re-fixed with effect from 1.2.1986 in the pay scale of Rs. 1640-Rs. 2900 on the ground that the earlier revision of pay by the order dated 21.5.1993 (effective 1.2.1986) was not in order. In other words, according to the DDA, the revision of the pay to Rs. 1700 should have been with effect from 1.1.1987 and not 1.2.19896 and the subsequent revisions had to be reworked on this basis. Consequently, by the impugned order dated 6.3.2000, the pay of the petitioners as on 19.2.1995 was re-fixed at Rs.2300 after giving the benefit of FR 22 (I) (a)(1). Another order was made on 29.3.2000 quantifying the overpayment to petitioner No. 1 as Rs. 18,662 and the said amount was directed to be recovered from his salary in 20 Installments from March 2000 onwards.

6. Thereafter, the present petition was filed challenging the re-fixation of the pay as being violative of the principles of natural justice. In its reply the DDA contended that the applicable rule in the case of the petitioners was FR 22(I)(a)(2) and not 22 (I)(a)(1) since the placement of the petitioners in the higher grade by order dated 21.5.1993 was not a promotion to a post involving "assumption of duties and responsibilities of greater importance." The DDA has placed reliance on the Order E.O. No. 3479 dated 21.10.1992 wherein it has been stipulated that the grant of the higher grade of pay scale to the JEs on completion of 5 years from 1.1.1986 "will not be treated as promotional one but will be non functional and the benefit of FR 22 C [now FR 22(I)(a)(1)] will not be admissible to them as there would be no change in their duties and responsibilities." In para 3 of the same order it is stated that on completion of 15 years of total service the JEs would be given a further higher pay scale of Rs. 2000-Rs. 3500 on personal basis and that this fixation of pay would be under FR 22(I)(a)(1) since this was considered as a personal promotion although they would continue to perform the same duties/functions of JEs. It is further contended that since the error continued even after the promotion of the petitioners as AEs, it could be corrected only on an audit inspection resulting in the impugned orders dated 3.2.2000 and 6.3.2000.

7. As regards Writ Petition (C) No. 611 of 2000 filed by Shri Kauser Ali, his contention is that he is senior to Shri Kali Charan having been appointed as JE in the grade of Rs. 425-Rs. 700 on 11.1.1980. His plea is that he should be treated no different from Shri Kali Charan and that his pay should have also been fixed at Rs. 1700 with effect from 1.2.1986. On completion of 15 years' service Shri Kauser Ali was also placed in the higher grade of Rs. 2000-Rs. 2500 with effect from 10.1.1995 and his pay was fixed as Rs. 2375 as on 1.2.1996. This petitioner was promoted as AE with effect from 5.8.1996. The petitioner made representations for stepping up of his pay on 16.7.1997, 2.7.1998, 14.3.1999 and 16.7.1999. Thereafter, Shri Kauser Ali filed the present writ petition on 31.1.2000. In its reply to this writ petition, the DDA has pointed out that since the re-fixation of the pay of Shri Kali Charan was itself unjustified, there was no merit in the prayer of the petitioner. It may be pointed out that only difference here is that while the three petitioners in W.P. (C) No. 1513 of 2000 obtained a stay of the recoveries, the petitioner in W.P. (C) No. 611 of 2000 did not.

8. The issue that arises for consideration in this matter is whether the re-fixing of the pay of the petitioners (as evidenced by impugned orders dated 3.2.2000and 6.3.2000) is justified and in accordance with FR 22(I)(a)(1) and FR 22(I)(a)(2). These Rules read as under:

F.R. 22. (I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:

(a)(1) Where Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more.

[Save in cases of appointment on deputation to an ex cadre post, or to a post on ad hoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment:

Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or [rupees one hundred], whichever is more.

(2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis:

Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay:

Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post.

On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.

(3) When appointment to the new post is made on his own request under Sub-rule (a) of Rule 15 of the said rules, and the maximum pay in the time-scale of that post is lower than his pay in respect of the old post held regularly, he shall draw that maximum as his initial pay.

(b) If the conditions prescribed in Clause (a) are not fulfillled, he shall draw as initial pay on the minimum of the time-scale:

9. A plain reading of the above rule shows that there are two distinct situations envisaged when a government servant is promoted or appointed in a substantive, temporary or officiating capacity to another post. Where such appointment involves higher duties and responsibilities, the initial pay of such Government servant in such higher post shall be fixed at the stage "next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or Rs. 25 only, whichever is more." This is otherwise called a stepping up at the initial stage. However, where the appointment to the new post does not involve duties and responsibilities of greater importance there would be no stepping up at the initial stage and the initial pay would be "equal to his pay in respect of the lower post held by him on regular basis." Therefore, in each case, it would be a question of fact whether the appointment to the new post is one which has higher responsibilities or not.

10. Turing to the facts of the present case, the order dated 21.10.1992 on which heavy reliance is placed by the DDA, is instructive as regards the nature of appointment of the petitioners in these two writ petitions, first by the grant of higher pay scale on the completion of 5 years service as JE i.e. with effect from 1.1.1986, and the subsequent revision of pay after the completion of 15 years service i.e. with effect from 1.1.1996. The relevant extract of the said order E.O. No. 3479 dated 21.10.1992 reads as under:

DELHI DEVELOPMENT AUTHORITY

(PERSONNEL BRANCH II)

E.O. No. 347921st October, 1992.

Sub : Grant of higher pay scale to Jr.Engineers (Civil)/(Electrical) and Section Officers (Hort.)

Consequent upon sanctioning of the higher pay-scale to J.E.s (Civil/Elect.) and S.O. (Hort.) by the Govt. of India, Ministry of UD vide their letter No. 12014/2/87-EW.2 dated 22.3.91, the Authority vide its Resolution No. 99/92 dated 18.8.92 approved that w.e.f. 1.1.86, the J.E.s (Civil/Elect.) and the S.O. (Hort.) of DDA on their completion of 5 years service in the entry grade pay scale of Rs. 1400-40-1800-EB-560-20-700 (Pre-revised pay scale of Rs. 425-15-500-EB-15-560-20-700/-) may be placed in the higher grade pay scale of Rs. 1640-60-2600-EB-75-2900/-. The initial appointment of J.E.s (Civil/Elect.) & S.O. (Hort.) may continue to be in the pay scale of Rs. 1400-40-1800-EB-50-2300/-.

2.The higher grade of pay scale of Rs. 1640-2900/- will not be treated as promotional one but will be non-functional and the benefit of FR 22(C) now FR 22(I)(a)(i) will not be admissible to them as there will be no change in their duties and responsibilities.

3.With effect from 1.1.91, the J.E.s (Civil/Elect.) and S.O. (Hort.)(of DDA on completion of 15 years of total service as JE (Civil/Elect.)/S.O.(Hort.) may also be given further higher pay scale of Rs. 2000-60-2300-EB-75-3200-100-3500 on personal basis. Their pay will be fixed in the scale of Rs2000-3500/- under FR 22-C now FR(I)(a)(i). On being granted this personal promotion, they will continue to perform the same duties/functions of J.E.s/Sos (Hort.)

11. The above order makes it clear that the placement of the petitioners (who were in the erstwhile grade of Rs. 1400-Rs. 2300) in a higher grade of Rs. 1640-Rs. 2900 on the completion of 5 years' service as JE with effect from 1.1.1986, was not to be treated as promotional but "non functional." Thus at this stage it was FR 22(I)(a)(2) which would be applicable. Therefore, there was no question of stepping up at the initial stage in respect of these petitioners with effect from 1.1.1986. There is accordingly merit in the contention of the DDA that the stepping up granted to Shri Kali Charan and his fixation of pay at Rs. 1700 with effect from 1.2.1986 by the order dated 5.7.1993 was erroneous. In fact, the pay scale was correctly fixed in the case of Shri Kauser Ali in whose case benefit of stepping up was not extended. The stepping up in accordance with FR 22(I)(a)(1), if at all, could have been granted only upon the petitioners completing 15 years' continuous service and being placed in the scale of Rs. 2,000-Rs. 3,500. This is consistent with para 3 of the order dated 21.10.1992. In this view of the matter, there is no legal infirmity in the impugned Order dated 3.2.2000 issued by the Respondent DDA.

12. The petitioners have placed reliance on the judgment of the Hon'ble Supreme Court in Union of India v. Shyama Pada Sidhanta 1991 Supp (1) SCC 542. The facts of that case were that certain inspectors of the Central Excise in the pay scale of Rs. 425-Rs. 800 were granted revision of pay scale to Rs. 500-Rs. 900 with effect from 1.1.1980. It was ordered that the next increment would be available to them only on completion of 12 months' service in the revised scale i.e. with effect from 1.1.1981. The Hon'ble Supreme Court, after referring to FR 23, 22(a)(2) and 26, concluded that "the respondents need not wait for 12 months from the date of fixation of their pay in the new scale for earning increment in the revised scale." However, in the said decision the question whether the appointment in the revised higher scale involved higher responsibilities, does not appear to have been considered at all. Perhaps that aspect of the matter was not an issue in that case. However, as far as the present case is concerned FR 22(I)(a)(2) which clearly says that "when the appointment in the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time scale which is equal to his pay in respect of the old post held by him on regular basis...." Therefore, the petitioners cannot seek any support for their submissions from the aforesaid decision which appears to have turned on its own facts.

13. As regards, the other petitioner, Shri Kauser Ali, his claim is entirely based on the revision of pay scale erroneously granted to Shri Kali Charan. Therefore, the claim of Shri Kauser Ali is without merit.

14.The conclusion as a result of the above discussion is as follows:

(a) The placement of the petitioners in the higher grade of Rs. 1640-Rs. 2900 with effect from 1.1.1986 on completion of 5 years' service JEs, did not involve the assumption of higher responsibilities and therefore, at this stage i.e. with effect from 1.1.1986 the petitioners could not have been granted the benefit of stepping up of pay at the initial stage in terms of FR 22(I)(a)(1). At this stage, the revision of their pay scales was governed by FR 22(I)(a)(2).

(b) Upon their being placed in the higher grade of Rs. 2,000-Rs. 3,500 with effect from 1.1.1995, on completion of 15 years, they were entitled as per para 3 of the Order E.O. No. 3479 dated 21.10.1992 to the stepping up of the initial pay i.e. by giving them a notional increment. This was to be done in accordance with FR 22 (I)(a)(1).

(c) Since the pay in respect of the 3 petitioners in Writ Petition (C) 1513 of 2000 was erroneously fixed with effect from 1.1.1986, the DDA was justified in rectifying this error by the order dated 3.2.2000.

(d) The claim of Sri Kauser Ali to also be granted revision of pay scales on par with Shri Kali Charan, is in the circumstances, without merit.

15. The aspect to be now considered is the consequential order that requires to be passed. As already noticed, by an interim order of this Court, there has been a stay of recovery since 25.4.2000 in respect of the three petitioners in W.P. (C) No. 1513 of 2000. It is true that the mistake in revision of the pay scale was not occasioned of the any act of the petitioners themselves. Having, initially revised their pay scale, albeit erroneously, by the order dated 21.5.1993 and 5.7.1993, it took the DDA nearly seven years to rectify its mistake. Nevertheless, it cannot be held that the DDA is not entitled to recover the over payment made as a consequence of these orders. If one were to apply the law of limitation, DDA would not be entitled to recover any amount due to it earlier than three years prior to 3.2.2000 i.e. earlier than 3.2.1997. A conspectus of these factors calls for the application of some equitable considerations.

16. In respect of petitioner No. 2 who has died during the pendency of the petition it would be inequitable to seek to recover this amount from his legal representatives at this stage. Therefore, as regards petitioner No. 2 Shri Mohammed Imamuddin it is directed that no recoveries of the over payment be effected by the DDA. However, if any family pension or other pension is payable, that may be re-fixed in accordance with the pay as corrected by the DDA pursuant to the order dated 3.2.2000.

17. As regards other two petitioners in W.P.(C) 1513 of 2000, the DDA will re-work the amount to be recovered by calculating only that amount that has been overpaid to these petitioners since 3.2.1997 i.e. three years prior to the recovery order dated 3.2.2000. Thereafter, the DDA will pass consequential orders for recovering the re-worked sum from the salaries of these two petitioners through installments, subject to the condition that the re-worked amount be recovered before their respective dates of retirement. As regards petitioner Shri Kauser Ali, since there was no grant of revised pay scale in the first place by the DDA, the question of recovery does not arise.

18. Accordingly, Writ Petition (C) No. 1513/2000 is disposed of with the following directions:

(a)The DDA shall not effect any recovery from the legal representatives of the petitioner No. 2, late Shri Mohammed Imaumuddin, in respect of the excess payment made to him. However, the pension and family pension, if any, payable be re-fixed, with prospective effect, according to the corrected pay scale as per the circular dated 3.2.2000.

(b)As regards Petitioners Nos.1 and 3, Shri Kali Charan and Shri R.K. Singh, the DDA will, within four weeks from today, re-work the amount to be recovered in the manner indicated in para 17 above and pass consequential orders for the recovery of the said sum from the salaries of these petitioners in installments subject to the condition that the recovery of the re-worked sum should be effected before their respective dates of retirement.

19. Writ Petition (C) No. 611/2000 is dismissed. Pending miscellaneous application, CM 9879/01 stands disposed of.