Delhi High Court
Govt. Of Nct Of Delhi & Ors. vs Jasbir Saini on 10 April, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : April 01, 2013
Judgment Pronounced on : April 10, 2013
+ WP(C) 5425/2011
GOVT. OF NCT OF DELHI & ORS. .....Petitioners
Represented by: Ms.Avnish Ahlawat, Ms.Latika
Chaudhary and Mr.Vaibhav
Mishra, Advocates.
versus
JASBIR SAINI ..... Respondent
Represented by: Ms.Reeta Kaul, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. A case of imperfect pleadings has resulted in an inchoate
order being passed without even highlighting what was the issue which
required adjudication. Both, the petitioners as also the respondent are
responsible for the same.
2. As per respondent's claim pleaded in OA No.458/2010, she
was a direct recruited librarian in the Directorate of Education and was
drawing salary in the pay scale `1400 - 2600 which was the scale
recommended by the 4th Central Pay Commission. Increment was due to
her on the first day of February each year and thus her basic pay which
was `1,900/- per month as of February 01, 1995 was enhanced to `1,950/-
per month as on February 01, 1996. Her case was that she became
entitled to be placed in the senior scale of `1640 - 2900 (the date has not
been plead with effect wherefrom respondent was to be placed in the
senior scale). She claims that in February 01, 1997 she was given the
next increment after she was placed in the senior scale and her basic
salary was fixed at `2,060/-.
3. Respondent claims that the 5th Central Pay Commission
Recommendations were implemented somewhere in the year 1998 but
with retrospective effect from January 01, 1996 and the replacement pay
scale of `1400 - 2600 was `5500 - 9000 and that of the pay scale of
`1640 - 2900 was `6500 - 10500. Her grievance was that whereas Shri
S.S.Malik, Ms.Suman Gupta and Mr.A.K.Gupta, her colleagues, were
given basic pay of `6,900/- her basic pay was fixed at `6,500/- when the
recommendations of the 6th Pay Commission were implemented. She
pleaded that whereas she was entitled to two increments with effect from
February 09, 1996 in the pay scale `6500 - 200 - 10500, she was given
none. She claims that her colleagues were given two increments.
4. The lacuna in the pleading is that the respondent has not
pleaded as to why she was entitled to two increments. But it appears that
basis of her claim for two increments was one step up of pay on being
placed in the senior scale and the other being the annual increment due to
her. The response in the counter affidavit filed to the original application
is one worse. In a short and a cryptic two page reply it is pleaded that the
claim was time barred. Without justifying as to on what basis
respondent's basic pay was fixed at `6,500/-, dealing with the plea of
discrimination vis-a-vis Shri S.S.Malik, Ms.Suman Gupta and
Mr.A.K.Gupta it is pleaded that the same required rectification qua salary
of said three persons and not that the salary of the respondent be fixed
accordingly.
5. Regretfully, the Central Administrative Tribunal did not call
upon the parties to clarify their respective stands by seeking additional
information. The result is an unintelligible decision granting relief to the
respondent.
6. Let us begin by understanding the jural basis for the dispute.
We shall have to go back to the year 1996 when FR-22(I)(a)(1) was in the
statute book. The mandate of said provision of law was that upon
promotion the pay of a Government servant shall be fixed in the initial
pay scale in the time scale of the higher post at a stage next above the
notional pay arrived at by increasing the pay in respect of the lower post
held. Thus, an issue would have arisen: Whether placement of
respondent in the senior scale amounted to a promotion for the reason,
since the respondent is claiming benefit of two increments by February
01, 1996: one on account of her alleged promotion and the other on
account of the increment due with effect from February each year, it was
the duty of the Tribunal to have gone into said issue. FR-22(I)(a)(1)
reads 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 a 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 whichever is more.
Save in cases or appointment on deputation to an ex cadre
post, or to a post on ad hoc basis or on directed
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 whichever is more."
7. Secondly, the Government of India instructions dated
February 08, 1983 vide OM No.F.13/26/82/Estt. (P-1) clearly envisage
that upon promotion, the promotion order would indicate to the
Government servant to have the pay fixed either under FR-22 from the
date of such promotion or have the pay fixed initially at the stage on a
time scale of the new post above the pay in the lower grade from which
the Government servant is promoted and that the promotion order should
so indicate to the Government servant to enable the option to be exercised
within one month.
8. The pleadings in the original application and the reply filed
does not indicate whether the respondent had exercised any such option
or whether she was called upon to exercise such option.
9. The inchoate pleadings compel us to set aside the impugned
order dated November 24, 2010. We restore OA No.458/2010 with a
direction to the Tribunal to require both parties to submit their
calculations pertaining to the respective claim asserted by both sides qua
respondent's salary being fixed with effect from January 01, 1996 after
the recommendations of the 5th Central Pay Commission were
implemented. The Tribunal would call for the records of the petitioner to
see whether the respondent was ever given an option as envisaged by law,
and to which option we have made a reference hereinabove. If required,
parties shall be permitted to file supplementary pleadings. The matter
would be re-adjudicated thereafter.
10. Parties shall appear before the Registrar of the Tribunal on
May 06, 2013 who shall list OA No.458/2010 before an appropriate
Bench as per roster.
11. No costs.
12. DASTI.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
APRIL 10, 2013
mm
