P.C. Gupta vs Union Of India & Another
2011 Latest Caselaw 3182 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    W.P.(C) No. 7103/2000


%                              Date of Decision:     07.07.2011

P.C. GUPTA                                              ... Petitioner
                         Through:   None.

                              Versus


UNION OF INDIA & ANOTHER                             ... Respondants
                   Through:         Ms.Geetanjali Mohan, Advocate
                                    with Mr. Ketan Madan, Advocate for
                                    respondents.

CORAM:
HON'BLE MR. JUSTICE A.K.SIKRI
HON'BLE MR. JUSTICE M.L.MEHTA


1. Whether the Reporters of local papers
   may be allowed to see the judgment?          No

2. To be referred to Reporter or not?           No

3. Whether the judgment should be               No
   reported in the Digest?



A.K. SIKRI, J. (Oral)

1. Nobody appears on behalf of the petitioner and we find from the

record that this Writ Petition was earlier dismissed for non-prosecution

on 01.09.2009. It was restored on an application moved by the

petitioner thereafter. In these circumstances, instead of dismissing the

petition for non-appearance again, we have decided to proceed with

the matter on merits with the help of learned counsel for the

respondent.

2. The issue involved in this writ petition is in a narrow compass.

The petitioner, an employee of Central Railway, was promoted as

Telecommunication Inspector Grade-IIII in the year 1974. Thereafter

he was promoted in T.C.I. Grade-II in the year 1983 and thereafter as

T.C.I. Grade-I with effect from 3.5.1987 along with Shri B.R. Lodh and

Shri R.K. Sharma. He was shown as senior to the said two persons.

3. It appears that there was some discrepancy in the said post as

had arisen in different regions of the Central Railway. As the

promotions to the said post are centralized and it was taking some

time, to cope up with the work, the railway decided to make ad-hoc

promotions on local officiating basis. Because of this reason, Shri B.R.

Lodh and Shri R.K. Sharma were given officiating promotion in their

respective basis of work pending regular promotion process. All the

three persons namely the petitioner as well as Shri B.R. Lodh and Shri

R.K. Sharma were thereafter given regular promotion as T.C.I. Grade-I.

4. It so happened that pending these regular promotions, earlier in

the year 1985, Shri B.R. Lodh and Shri R.K. Sharma were given

officiating promotion on local basis pending regular promotions. The

applicant at that time i.e. in the year 1985, was working in a particular

station (Jhansi) and as there was no such post available, the applicant

was not given local officiating promotion.

5. Naturally, because of local officiating promotions accorded to

other i.e. to Shri Lodh and Shri Sharma as TCI Grade-I in the year 1985,

they were also given higher scale of the said post. On this basis, the

petitioner made a grievance that his juniors started drawing higher

salary and therefore, he should also have been upgraded. He

represented in this regard in the year 1987 which remained un-replied.

Thereafter, he approached Central Administrative Tribunal in the year

1996 by means of an application under Section 19 of the

Administrative Tribunal Act claiming this relief. The application was

contested by the respondents by raising preliminary objection that it

was barred by limitation on the ground that higher scale was granted

to the two other officials way back in the year 1987 and the petitioner

had approached the Tribunal much belated. It was also pointed out

that in fact representation of the petitioner was rejected vide letter

dated 27.04.1994 and from this date also the petitioner did not

approach within stipulated period of one year which is the period

prescribed under Section 21 of the Administrative Tribunal Act. On

merits also the case of the petitioner was contested stating that when

local officiating promotion was given to the two officers that would not

justify stepping up of pay of the petitioner.

6. It is significant to mention here that the aforesaid two officials

were posted in Jhansi Division as a result of de-organization which

came under Central Railway whereas the petitioner at that time was

posted in Mathura Junction which came under Northern Railway.

Higher posts i.e. TCI-Grade-I were available in Central Railway because

of which the aforesaid two juniors could get promotions on officiating

basis and no such post was available in Northern Railway.

7. The Tribunal accepted both the contentions and dismissed the

OA of the petitioner as time barred as well as on merits. Challenging

the order of the Tribunal, the present Writ Petition is preferred by the

petitioner. After perusing the impugned order, the pleadings and also

after considering the submissions of learned counsel for the

respondents we are of the opinion that the impugned order passed by

the Tribunal does not suffer from any infirmity and is without any

blemish and is right in holding that the OA filed by the petitioner was

time barred. As per the petitioner's own averments he came to know

about the higher pay granted to his juniors on officiating promotion in

the year 1987. Even the representation filed by him was rejected on

27.04.1994. As per Section 21 of Administrative Tribunal Act,

limitation of one year is provided from the date of rejection of the

representation. However, the OA was filed by the petitioner much

after the expiry of one year. The case is squarely covered by the ratio

of judgment of the Supreme Court in S.S. Rathore Vs. State of

M.P., (1989) 4 SCC 582 .

8. Even on merits we do not find any justification in the demand

raised by the petitioner. The issue is now authoritatively determined

by the Supreme Court in UOI Vs. Sushil Kumar Paul, (1998) 5 SCC

268 as well as UOI Vs. O.P. Saxena, (1997) 6 SCC 360. Taking note

of these two judgments, the Tribunal has discussed the case in the

following words:

"5. The applicant has tried to derive benefit from the order in the case of S.R. Srivastava (supra) but much development has taken place in the administrative law on the point since then. The said order has been superceded by horde of judgments. The ratio of Full Bench of the Tribunal in the case of B.L.

Somavajulu & Ors. Vs. The Telecom Commissioner & Another, OA 1412/93 decided on 20.11.1996 is very clear in the kmatter. In a similar case in Union of India Vs. Sushil Kumar Paul (1998) 5 SCC 268: 1998 SCC (L&S) 1336: AIR 1998 SC 1925 where stepping up of pay was claimed with reference to the pay of a junior, whose pay had risen since he had the benefit of ad-hoc officiation on lower post as well as promotion post before regular promotion, the Tribunal's directions for stepping up the senior's pay overlooking the Govt. of India, Department of Personnel and Training's OM dated 04.11.1993 on the subject were held to be not sustainable by the Hon'ble Supreme Court. Their Lordships in that case applied their earlier decision in Union of India Vs. O.P. Saxena (1997) 6 SCC 360: 1997 SCC (L&S) 1667.

6. It is not uncommon that in a vast organization like the Railways in order to meet administrative exigencies local arrangements have to be made by according ad-hoc promotions to certain officials, which may be followed by regular promotion. The

senior officials posted in other areas cannot be allowed the benefit of stepping up of pay to the level of the pay of the junior officials who received the said advantage on account of ad-hoc promotion as there was no provision of law/rules entitling them to the same advantage."

9. Even a Division Bench of this Court in identical circumstances in

a decision dated 28.01.2010 (in Writ Petition (C) No.6048/2008 titled

as R.P. Arora Vs. UOI & Ors.) refused to grant higher pay relying on the

principle that stepping of pay would not be applicable.

10. We do not find any merits in this Writ Petition which is dismissed.

A.K. SIKRI (JUDGE)

M.L.MEHTA (JUDGE) JULY 07, 2011 awanish