Delhi High Court
Samir Kumar Pujari vs Union Of India & Ors. on 16 July, 2015
Author: V. Kameswar Rao
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 16, 2015
+ W.P.(C) 3789/2013
SAMIR KUMAR PUJARI ..... Petitioner
Through: Ms.Ankita Patnaik, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondent
Through: Ms.Archana Gaur, Adv. for R1 and
R2
Mr.Vishnu Sharma, Adv. for R3
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 16.07.2015
1. The present petition has been filed by the petitioner inter-alia seeking
a writ of certiorari, quashing the letters dated January 29, 2013 and August
27, 2012 issued by the respondents and with a further direction that he be
granted notionally the time-scale to the next higher grade pay of Rs.8,700/-
with all consequential benefits.
2. It is the case of the petitioner, that while working as Asst. Account
Officer in the Ministry of Defence, he was sent on deputation as Accountant
on March 23, 1992 to Oil Industry Development Board, a Statutory body.
While on deputation, the petitioner was promoted to the post of Accounts
Officer in OIDB and finally in January 1995, he was permanently absorbed
in OIDB. According to him, he was thereafter, promoted to the rank of
Senior Accounts Officer in 1998 and on the basis of DPC held on November
18, 2002, the petitioner was promoted to the post of Deputy Chief Finance
and Accounts Officer (DCF & AO) in officiating capacity vide order dated
January 7, 2003 issued by OIDB in the pay scale of Rs.12000 - 16500 plus
grade pay of Rs.7,600/-. It is the case of the petitioner that he having
completed six years of uninterrupted service in the post of DCF and AO on
January 7, 2009, he was fully eligible to get the next higher grade pay as per
the provisions of Rule 11 (1) and (2) of OIDB Employees (Recruitment)
Regulations, 1986. However, despite several representations made by him,
he was not granted the next higher grade of Rs.8700/- as time-scale, whereas
other Group 'A' officers had been given the benefit of time-scale promotion
under the same provisions. It may be stated here, he had referred to a case
of one Rajesh Kumar Saini, Stenographer Grade-C, who, while on ad-hoc
promotion to Stenographer Grade-B was granted a time-scale promotion in
the pay scale of Rs.10000 - 15200.
3. The respondent No.3 in its reply has contested the relief sought for by
the petitioner in this petition primarily on the ground that the petitioner
while holding the substantive post of Senior Accounts Officer was promoted
to the post of DCF & AO on ad-hoc basis as there were no regular vacant
posts available and could not have been given the time scale promotion to
the post of FA & CAO under Regulation 11 (1) as the six years specified
therein cannot include the service rendered on ad-hoc basis. According to
them, the grade pay of Rs.8700/- is the pay attached to the post of FA &
CAO, which is a promotional post to DCF & AO. A reading of Regulation
11 contemplates, the promotion can be given only when an Officer is
working on substantive basis in the feeder grade. According to the
respondent No.3, on March 2, 2009, the respondent received petitioner's
ACR reports for the year 2004-05 and 2006-07 as the reports contains
adverse remarks the same were communicated to the petitioner. The
respondent No.3 would state that the petitioner had acknowledged the
receipt of the letter dated March 31, 2009, whereby he was communicated
the adverse remarks. It is the stand of respondent No.3, the petitioner had
neither challenged nor filed any objection to the said adverse remarks in the
said ACR's. It was only on April 19, 2012, one month prior to his
retirement, the petitioner made a representation seeking regularization on the
post of DCF and AO and the time-scale promotion of FA and CAO. After
his retirement, on July 3, 2012, the petitioner made further representation to
the Secretary, Ministry of Petroleum and Natural Gas seeking his
intervention. It was in response to the said representation, the respondent
No. 3 had sent a letter dated August 27, 2012 which is impugned in the
present proceedings stating that the petitioner could not be granted the time-
scale promotion to the post of FA and CAO as he was holding the post of
DCF & AO purely on ad-hoc basis. Even, the rule on which reliance was
placed cannot be availed by the petitioner as the same is subject to
satisfactory performance in the existing grade, whereas the petitioner had
adverse remarks in the ACRs for the year 2004-05 and 2006-07.
4. Learned counsel for the petitioner would contend that under Rule 11
(1) and 11 (2) of the Rules, the petitioner having completed six years of
service in the grade of DCF and AO, the petitioner was entitled to a higher
grade pay of Rs.8,700/-. She would also state, Rule 11 does not stipulate, an
employee should hold the post regularly in the lower grade to be entitled to
time-scale promotion to the higher grade. It is also her contention that one
Mr. Rajesh Kumar Saini, Stenographer Grade-C, while working as
Stenographer Grade-B was granted time-scale promotion under Regulation
11 (2).
5. On the other hand, learned counsel for the respondent No.3 would
reiterate the stand taken in the reply.
6. Having heard, learned counsel for the parties, I note that a perusal of
Rule 11 (1) and 11 (2) of the Regulations, which are reproduced hereunder,
it is clear that the said rules contemplates two situations, if an employee is
not promoted to the next higher post for want of vacancy or there are no
avenues of promotion, in that eventuality, an officer is given the next higher
grade on completion of six years:-
"11. Time Scale promotion:
(1) An employee if not promoted to the next higher post for
want of vacancies, after six years of continuous service in
the existing grade, may be placed in the next higher grade
to which he may be eligible on promotion, subject to his
satisfactory performance in his existing grade.
(2) For posts, for which there are no avenues for
promotion, an employees may be given the next grade of the
particular cadre as „Selection Grade‟ after he has
completed six years of satisfactory service in the existing
grade, provided that once an employee is given a selection
grade under this rule, he shall not be eligible again for the
next higher grade as selection grade under this rule."
7. It is the settled position in service jurisprudence, an employee is
eligible for promotion if he is holding the feeder post on substantive regular
basis. It is not the case here that he was holding the post of DCF & AO on
regular basis. Even otherwise, the time-scale promotion to higher grade in
terms of Rule 11 of the Regulations is subject to an employee having a
satisfactory performance in the existing grade. There is no dispute that the
petitioner had adverse remarks in his ACRs for 2004-05 and 2006-07 which
remained uncontested despite having been communicated to him. It was
only in the year 2012, he made the first representation, that too, claiming
regularisation on the post of DCF and AO w.e.f September 30, 2010, which
is after three years of the communication of the adverse ACRs clearly hit by
delay and laches. Even in this petition, the plea of the petitioner is for grant
of grade pay of Rs.8,700/- and not regularisation on the post of DCF & AO,
which cannot be granted in the absence of satisfactory service as is seen
from the adverse ACRs. On an interpretation of Rule 11 of the Regulations,
the petitioner is not entitled to time-scale promotion to the higher grade pay
of Rs.8,700/-.
8. The plea of discrimination would not be available to the petitioner
when Rule 11 of the Rules does not stipulate grant of time-scale of pay to
higher grade while working on ad-hoc basis on a feeder post. The facts with
regard to the case of Rajesh Kumar Saini are not adequate for this Court to
conclude discrimination.
9. I do not see any merit in the present petition. The same is dismissed.
V. KAMESWAR RAO, J
JULY 16, 2015/ak
