Municipal Corporation Of Delhi vs Baljeet Singh & Ors.
2013 Latest Caselaw 1888 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Date of Decision April 26, 2013

+     W.P.(C) 5031/2010

      MUNCIPAL CORPORATION OF DELHI           ..... Petitioner
                  Represented by: Mr.Gaurang Kanth, Advocate

                   versus

      BALJEET SINGH& ORS.                          ..... Respondents
                   Represented by:          Mr.L.C Rajput, Advocate


      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE V.KAMESWAR RAO


V.KAMESWAR RAO, J.

1. The present Writ Petition has been filed by the Municipal Corporation of Delhi challenging the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A No. 2572/2009, whereby the Tribunal had quashed the order dated 12.08.2009 issued by the petitioner and thereby directed the petitioner to restore the scale of `5500- 9000 to the respondents as first ACP and the amount recovered be restored back within a period of two months from the receipt of copy of the order.

2. The brief facts are that the respondents are working as Pharmacist (Allopathic) with the petitioner in the scale of `4500-7000. On 18.03.1996, 25% posts of Pharmacist were upgraded as Senior Pharmacist. This upgradation was from the scale `1350-2200 to `1600-2650 (pre-revised).

The upgradation revised scales was to the scale of `4500-7000 to `5000- 8000.

3. The department of Personnel and Training, Government of India in terms of recommendation of 5th Central Pay Commission issued O.M dated 09.08.1989 with respect to assured carrier progression scheme for the Central Government Civilian Employees. The scheme contemplated in order to mitigate hardship in the case of acute stagnation or in an isolated post, grant of two financial upgradation to Group B, C & D employees on completion of 12 years or 24 years of service. The scheme envisaged placement in the higher pay scale/ grant of financial benefits only to the concerned employee on personal basis. The petitioner adopted the said scheme issued by DOP& T vide the circular dated 09.11.2000. The circular was preceded by an approval by the Standing Committee of the Corporation. That on 28.07.2006, on the analogy of Government of NCT, Delhi, the petitioner decided to grant first financial upgradation in the pay scale of `5500-9000 from the date of their eligibility. It also transpired that the GNCT has withdrawn the pay scales in the first and second financial upgradation in the ACP scheme by substituting the same to `5000- 8000 and `5500-9000. On receipt of such clarification from the Government of NCT, the petitioner also vide order dated 12.08.2009 withdrew the first financial upgradation to the Pharmacist in the pay scale of `5500-9000 and substituted the scheme by pay scale of `5000-8000 from the date of eligibility and accordingly steps were also initiated to recover the overpayment on account of refixation of pay of all the Pharmacist.

4. The respondents herein challenged the order dated 12.08.2009 before the Tribunal by filing O.A No. 2572/2009. The Tribunal after referring to the regulations framed by the MCD under Section 98(a) of the DMC Act,

1957 was of the view that the MCD follows rules through its regulations in the matter of pay and allowances, on the pattern of Government of India. It further inter-alia held in such view of the matter, the regulations having been validly framed to adopt Government of India's pay structure, the grant of ACP in the higher pay scale be at par with Government of India's Pharmacist who have been placed in the pay scale of `5500-9000. In Para No. 9 of the judgment, the Tribunal holds as under:

"It is no more res integra that Govt. of India vide office order dated 13.9.2000 for Pharmacist in the pay scale of `4500-7000 granted first ACP in pay scale of `5500-9000 and second in the pay scale of `6500-10500. Having done so, as per the Regulation, they are bound unless new Regulations are framed to adopt the pay structure of Govt. of India, which has been rightly adopted but reversed later on without any justifiable reasons. Moreover, civil consequences having been ensued upon the applicants, their pay scale has gone down on passing the impugned order is not preceded by a prior reasonable opportunity to show cause, which is in violation of the principles of natural justice."

5. In other words, the conclusion of the Tribunal is that the first and the second financial upgradation under the scheme must be `5500-9000 and `6500-10500 respectively.

6. We have heard the learned counsel for the parties.

7. Mr.Gaurang Kanth, learned counsel appearing for the petitioner would submit the post of Pharmacist in the petitioner organization has a promotional avenue i.e. "Sr. Pharmacist" in the pay scale of `5000-8000. He would also submit the promotion post of Pharmacist is "Medical Store Superintendent" in the pay scale of `6500-10500. Therefore, the petitioner

had rightly fixed the pay scale in `5000-8000 and `6500-10500 as the first and second financial upgradation. It is also the submission of Mr.Gaurang Kanth that in terms of regulation 4(1) of the DMC Service Regulations, 1959, it is very much evident that the petitioner is not bound to follow the rules applicable to Central Government but may do so as far as possible.

8. Per contra, Mr.L.C Rajput, Adv. appearing for the respondents would submit that in terms of the regulation 4(1) of the DMC Service Regulations, 1959, the MCD is required to follow the pay scales as being given to Central Government employees. Hence, the financial upgradation must be in the scale of `5500-9000 and `6500-10500.

9. We have considered the submissions made by learned counsel for the parties.

10. The ACP Scheme as issued by the Department of Personnel and Training postulates that the financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/ category of post without creating new post for the purpose. The MCD while approving the implementation of the scheme dated 09.08.1989 issued by the Department of Personnel and Training had adopted the same in toto. It is not in dispute, nor has been contended otherwise by the learned counsel for the respondents that the promotional avenue to the post of Pharmacist is Sr. Pharmacist in the pay scale of `5000-8000. Further, for the post of Sr. Pharmacist, it is Medical Store Superintendent in the pay scale of `6500- 10500. So it is clear that the financial upgradation must be in the hierarchy of post as stipulated in the manner stated above. This aspect can also be seen from Para No.E at page 9 of the Writ Petition. A point which requires emphasis at this stage is the Additional Director of the Head Quarter, CGHS, Government of India, in its communication dated 24.06.2010 to the

Administrative Officer, Health, Town Hall, MCD, has enclosed therewith copies of office orders issued by the DGHS, CGHS Division, Nirman Bhawan dated 12.08.2008 and 16.04.2003, wherein it is shown that the first financial upgradation under the ACP Scheme to the Pharmacist (Allopathic) was given in the scale of `5000-150-8000 and the second financial upgradation was given in the scale of `6500-200-10500. Even from this perspective it is seen that the Government of India had granted the first financial upgradation to the Pharmacist (Allopathic) working under it in the pay scale of `5000-150-8000 and not in the pay scale of `5500-9000 as concluded by the Tribunal in the impugned order. The Tribunal appears to have relied upon order dated 13.09.2000 of the Government of India, which is annexed at page 323 of the paper book. From the perusal of the same, it would be seen that the same pertains to Pharmacist (Ayurvedic). Whereas the respondents herein are working as Pharmacist (Allopathic). Hence, the order of the Tribunal on this account is on an erroneous assumption.

11. That in so far as the contention of learned counsel for the respondent that in terms of regulation 4(1) is concerned, we are of the view that apart from what has been said above, since the ACP scheme dated 09.08.1999 contemplates financial upgradation to be given in the next higher grade in accordance with the existing hierarchy in a cadre/ category of posts without creating new post for the purpose, the first financial upgradation necessarily has to be in the scale of `5000-8000 and the second upgradation in the scale of `6500-10500 and grant of any other scale would be contrary to the scheme itself. In view of the above, the order passed by the Tribunal is not sustainable and the same is set aside. We hold the respondents are entitled to the financial upgradation from the due date in terms of what we have concluded above. In so far as the direction of the Tribunal to restore the

recovery effected from the respondents is concerned, the same is also set aside in view of judgment of the Supreme Court reported as (2012) 8 SCC 417 Chandi Prasad Uniyal & Ors. Vs. State of Uttrakhand & Ors. The petitioner shall re-fix the pay of the respondent accordingly.

12. The Writ Petition is allowed with no order as to costs.

(V.KAMESWAR RAO) JUDGE

(PRADEEP NANDRAJOG) JUDGE

APRIL 26, 2013 km