Sohan Lal vs Delhi Transport Corporation
2012 Latest Caselaw 2671 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment delivered on 24.04.2012

+      W.P.(C) 2351/2012

ASHOK KUMAR                                   ..... Petitioner

                            versus

DELHI TRANSPORT CORPORATION                    ..... Respondent
                 AND

+      W.P.(C) 2353/2012

SHRI LAL SINGH                                ..... Petitioner

                            versus

DELHI TRANSPORT CORPORATION                    ..... Respondent
                 AND

+      W.P.(C) 2355/2012

SOHAN LAL                                     ..... Petitioner

                            versus

DELHI TRANSPORT CORPORATION                    ..... Respondent
                 AND

+      W.P.(C) 2356/2012

PARAMJEET SHARMA                              ..... Petitioner

                            versus

DELHI TRANSPORT CORPORATION                    ..... Respondent
                 AND



W.P(C) 2351/12                                    Page 1 of 11
 +      W.P.(C) 2359/2012

JAGDISH SINGH                       ..... Petitioner

                           versus

DELHI TRANSPORT CORPORATION         ..... Respondent
                 AND

+      W.P.(C) 2360/2012

SHRI JAMILUDDIN                     ..... Petitioner

                           versus

DELHI TRANSPORT CORPORATION         ..... Respondent
                 AND

+      W.P.(C) 2361/2012

GYAN PRAKASH                        ..... Petitioner

                           versus

DELHI TRANSPORT CORPORATION         ..... Respondent
                 AND

+      W.P.(C) 2362/2012

KRISHAN LAL MONGA                   ..... Petitioner

                           versus

DELHI TRANSPORT CORPORATION         ..... Respondent
                 AND

+      W.P.(C) 2364/2012




W.P(C) 2351/12                         Page 2 of 11
 JAIVEER SINGH                        ..... Petitioner

                           versus

DELHI TRANSPORT CORPORATIION           ..... Respondent
                 AND

+      W.P.(C) 2365/2012

SUNIL KUMAR                         ..... Petitioner
                           versus

DELHI TRANSPORT CORPORATION           ..... Respondent
                 AND

+      W.P.(C) 2368/2012

KEWAL KUMAR                         ..... Petitioner

                           versus

DELHI TREANSPORT CORPORATION            ..... Respondent
                AND

+      W.P.(C) 2369/2012

SHRI BAHADUR SINGH                     ..... Petitioner

                           versus

DELHI TRANSPORT CORPORATION           ..... Respondent
                 AND

+      W.P.(C) 2371/2012

RAKESH KUMAR                        ..... Petitioner

                           versus




W.P(C) 2351/12                           Page 3 of 11
 DELHI TREANSPORT CORPORATION                                       ..... Respondent
                AND

+      W.P.(C) 2373/2012

BHAG CHAND                                              ..... Petitioner
                                        versus

DELHI TRANSPORT CORPORATION                                      ..... Respondent
                 AND

+      W.P.(C) 2374/2012

VIJAY KUAR                                                            ..... Petitioner
                                        versus

DELHI TRANSPORT CORPORATION                                      ..... Respondent

Advocates who appeared in this case:
For the Petitioner   :   Mr. N.S. Dalal and Mr. Devesh Pratap Singh, Advs.
For the Respondent   :   Mrs. Avnish Ahlawat, Adv.

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

                         JUDGMENT

BADAR DURREZ AHMED, J. (ORAL)

1. This batch of 15 petitions arise out of the common order dated 31.01.2012

passed by the Central Administrative Tribunal, Principal Bench, New Delhi and are

being disposed of together.

2. The lead matter before the Tribunal was OA2410/2011 titled Shri. Ashok

Kumar v. DTC. The facts in all the petitions are virtually identical. The issue

which was raised before the Tribunal by the petitioners herein was that they were

entitled to seek the benefits of the second financial upgradation in the year 2006

onwards but they were denied the same. The facts are that the petitioners were

initially appointed as Conductors with the respondent (DTC) on daily wages in

1982-83 and were regularized in the course of time. The respondent implemented

the ACP Scheme w.e.f. 12.08.2002. The petitioners were subsequently, in 2005,

appointed as Assistant Store Keepers on the basis of a selection process. The

appointment order covering all the petitioners was dated 06.06.2005 which, to the

extent relevant, reads as under:-

"The following Conductors have been found suitable for the post of ASK and are hereby appointed as „Asstt. Store Keeper‟ with immediate effect in the pay scale of Rs.3200-85-4900 on the terms & conditions enumerated hereunder. Their posting have been indicated against each:

xxxx xxxx xxxx xxxx xxxx

They will be on probation for a period of one year.

They can be reverted to their substantive post at any time without notice and without assigning any reason therefor. They will continue to draw their basis pay/perks in the pay-scale they are getting and no additional monetary benefit will be given instantly on their re-designation/appointment.

For the purpose of financial upgradation/promotion, their regular service will be counted from the date of their

appointment as Asstt. Store Keeper and their candidature can be considered for promotion to the post of Store Keeper/Chief Store Keeper on the principle of seniority-cum-fitness.

They will be treated as fresh appointees as A.S.K. However, their past seniority shall be counted towards pension benefits etc., if applicable as per rules.

xxxxx"

(emphasis supplied)

3. A plain reading of the said appointment order makes it clear that for the

purpose of financial upgradation/promotion, regular service of the petitioners

would be counted from the date of their appointment as Assistant Store Keepers

and that their candidature could be considered for promotion to Store

Keepers/Chief Store Keepers on the principle of seniority or fitness. It was

specifically provided in the appointment order dated 06.06.2005 that the petitioners

would be treated as fresh appointees to the post of Assistant Store Keepers.

However, their past seniority was to be counted towards pension benefits etc., if

applicable, as per rules. It is, therefore, clear that insofar as financial upgradation

was concerned, the regular service of the petitioners was to be counted from the

date of their appointment as Assistant Store Keepers and it is only for the purpose

of pension benefits etc. that their past seniority was to be taken into consideration,

if applicable, as per rules.

4. There is no dispute that the petitioners accepted the appointment pursuant to

the said appointment order dated 06.06.2005 without any demur. The acceptance

of the appointment meant that they also accepted all the terms specified in the

appointment order which included the term that for the purpose of financial

upgradation, their regular service would be counted from the date of appointment

as Assistant Store Keeper.

5. In fact the petitioners did not even challenge the appointment order till the

filing of the original applications which were disposed of by the impugned order.

In this backdrop, the question of delay had also been gone into by the Tribunal and

they found that the original applications filed by the petitioners were also barred on

account of delay and laches.

6. However, even on merits, we find that the petitioners have no case. An

attempt was sought to be made by the learned counsel for the petitioners by

invoking the clarification given to query Nos.4, 5 & 6 by virtue of the office

memorandum dated 10.02.2000 issued by the Ministry of Personnel, Public

Grievances and Pensions (Department of Personnel and Training). The said office

memorandum indicates that consequent upon the introduction of the Assured

Career Progression Scheme (ACPS) on 09.08.1999, clarifications had been sought

by various Departments of Ministries about certain issues, in relation to the

implementation of the said ACPS. The office memorandum further indicated that

the doubts raised by various quarters had been duly examined and appropriate

answers had been indicated in the annexure to the said office memorandum. In the

present case, we are only concerned with the clarifications given in respect of

query Nos.4, 5 & 6. The same read as under:-

4. In case where a person is appointed The benefits under ACPS are limited on to a post on transfer (absorption) higher pay scale and do not confer basis from another post, whether 12 designation, duties and responsibilities of years and 24 years of service for the the higher post. Hence, the basic criterion purpose of ACPS will count from to allow the higher pay scale under ACPS the initial appointment or should be whether a person is working in otherwise. the same pay scale for the prescribed period of 12/24 years. Consequently, so

5. Whether a Government servant, long as a person is in the same pay scale who is direct recruit in one grade during the period in question, it is and subsequently joins another post immaterial whether he has been holding again as direct recruit, is eligible for different posts in the same pay scale. As first financial up-gradation under such, if a Government servant has been ACPS after completion of 12 years appointed to another post in the same pay of service counted from the first scale either as a direct recruit or on appointment or from the subsequent absorption (transfer) basis or first on second appointment as direct deputation basis and later on absorbed (on recruit? transfer basis), it should not make any difference for the purpose of ACPS so long as he is in the same pay scale. In other

6. An employee appointed initially on words, past promotion as well as past deputation to a post gets absorbed regular service in the same pay scale, even subsequently, whether absorption if it was on different posts for which may be terms as promotion or appointment was made by different direct recruitment. What will be methods like direct recruitment, absorption the case if an employee on (transfer) deputation, or at different placed deputation holds a post in the same should be taken into account for computing pay-scale as that of the post held by the prescribed period of service for the him in the present cadre? Also, purpose of ACPS. Also, in case of what will be the situation if he was absorption (Transfer)/deputation in the holding a post in the present cadre aforesaid situations, promotions earned in carrying a lower pay-scale. the previous/present organizations, together with the past regular service shall also count for the purpose of ACPS.

However, if the appointment is made to higher pay-scale either as on direct recruitment or on absorption (Transfer)

basis or first on deputation basis and later on absorbed (on transfer basis), such appointment shall be treated as direct recruitment and past service/promotion shall not count for benefits under ACPS.

Needless to say, in cases of transfer on the administrative ground, involving change of station within the same department, the service rendered in the same grade at two stations may count for ACPS, as such transfers are within the same organization, ordered generally for administrative/personal considerations and the service rendered in the earlier station counts as eligibility service for promotion.

(emphasis supplied)

7. Although the learned counsel for the petitioners sought to place reliance on

clarifications issued in respect of the said query Nos.4, 5 & 6, we do not see as to

how the clarification is in support of the petitioner‟s case. On the contrary, the

clarification makes it clear that it deals with cases of government servants who

have been appointed to other posts but remain in the same pay scale. The

appointments may be by direct recruitment or on absorption (transfer) basis or first

on deputation basis and later, on being absorbed. The clarification states that if the

subsequent appointment is made in the same pay scale, it should not make any

difference for the purpose of the ACPS. In other words, the key condition is that

the government servant should be in the same pay scale. It is further provided in

the said clarification that if the appointment is made to a higher pay scale either on

direct recruitment or on absorption (Transfer) basis or first on deputation basis and

later on absorbed (on transfer basis), such appointment shall be treated as direct

recruitment and past service/promotion shall not count for the benefits under

ACPS.

8. Thus, the said clarification makes it absolutely clear that when there is a

higher pay scale in the subsequent post, the past service shall not be counted for the

benefits under the ACPS. In this backdrop all that needs to be seen is whether the

pay scale of the petitioners as Conductors and the pay scale as store keepers was

the same or not. It is an admitted position that the pay scale of a Conductor was

Rs.3050-4590 whereas that of an Assistant Store Keeper was Rs.3200-4900. It is

obvious that the two pay scales were not identical and, therefore, the petitioners

cannot place any reliance, in their favour, insofar as the said clarification is

concerned.

9. We also find that the appointment order dated 06.06.05 had been accepted

without any demur by the petitioners. They cannot now resile from the same.

They had accepted their appointments as Assistant Store Keepers on a higher pay

scale compared to that of their previous positions as Conductors which were on a

lower pay scale, subject to the conditions mentioned in the appointment order.

Having accepted the same they cannot now be permitted to resile from such

acceptance and that, too, after such a long duration of time.

10. In view of the foregoing, we find no infirmity in the conclusion arrived at by

the Tribunal in the impugned order.

11. Consequently, the writ petitions are dismissed. There shall be no orders as

to costs.

BADAR DURREZ AHMED, J

V.K.JAIN, J APRIL 24, 2012 rb