UOI and Ors. v. Shri Jai Singh and Anr.

1. Petitioners challenge the order dated December 18, 2009 whereunder the Tribunal has allowed O.A No.154612009. Petitioners have been directed to convene a DPC to consider name of respondent No.1 for promotion to the post of Joint Technical Advisor from the date the post was revived i.e. January t0,2007 and if recommended for promotion, the respondent No.1 to be given benefit of FR.49 on account of he holding the additional charge to the post of Technical Advisor.

2. The brief facts are that the respondent No.l was working in Food and Nutrition Board under Ministry of women and Child Development as Deputy Technical Advisor which is a feeder post to the post of Joint Technical Advisor. oh w.P.(c) 6736/2010 Page I of I 2013:DHC:7212-DB a

3. As per the recruitment rules, the post of Joint Technical Advisor was to be filled up only by promotion from the post of Deputy Technical Advisor having 5 years service in the grade. The scale of pay of Joint Technical Advisor was upgraded to {3700-5000 the revised scale of which is t12000- 16s00.

4. That since the post of Joint Technical Advisor was lying vacant since 1997, it was deemed to have been abolished according to the instructions issued by the Ministry of Finance.

5. On January 10,2007 the post was revived. The respondent No.l was the only eligible candidate for being considered for promotion to the post of Joint Technical Advisor since he had more than 5 years of service as Deputy Technical Advisor. Since some issues had cropped up with the UPSC, no regular promotion could be effected. The respondent No.l was promoted on ad-hoc basis with effect from September 20,2007 and was extended uptil October 31, 2008 the date on which the respondent No.1 had superannuated.

6. That immediately following ad-hoc promotion as Joint Technical Advisor, the respondent No.l was called upon to look after the charge of a higher post of Technical Advisor vide order dated September 28,2007 and October 17,2007. Suffice it to say the issue of making regular promotion to the post of Joint Technical Advisor hit a road block as UPSC from'time to time sought certain clarifications. The respondent No.l continued to look after the charge of the Technical Advisor apart from holding the post of Joint Technical Advisor on ad-hoc basis.

7. The claim of the respondent No.l before thb Tribunal was for a direction that he be given regular promotion as Joint Technical Officer with effect from January 01,2007 and in the alternative he be given full charge of t w.P.(c) 6736/2010 Page 2 of I t higher post of Technical Advisor.

8. The case of the UPSC before the Tribunal was that the promotion could be effected only when the recruitment rules are amended after upgradation of scales of pay. The UPSC would also contend that the respondent No.l had nothing to gain even if promotion is given as his pay and pension would remain the same. 9, The petitioners' stand before the Tribunal was avery brief one i.e. the respondent No.l could not have been promoted on regular basis without UPSC's concunence.

10. The Tribunal in the impugned order was of the following view:

very large number of recruitment rules would have to be modified. This would lead to a virtual moratorium on promotions because most of these amendments would have to be approved by the U.P.S.C. and their sheer numbers would necessarily take time. It is for this reason that DOP&T has clarified that the reuuitment rules should be amended when the condition of eligibility has changed. If, for example, the qualifying period for promotion had been changed or higher educational qualifications are prescribed for promotion, on the recommendation of the Central Pay Commission, which us not an uncommon phenomenon, the recruitment rules would, of necessity, have to be modified. But such requirement would certainly be not there when only the scales of pay have been upgraded and those too have been separately notified w.P.(c) 67s6/20r0 Page 3 of I \, in the Gazette.

14. Prejudice has certainly been caused to the Applicant by the obduracy of the U.P.S.C. especially when it has accepted the principle that change in the recruitment rules would not be necessary in a meeting, advertence to which has already been made.

15. The Applicant also performed the responsibilities of the post of Technical Adviser by order dated 17.10.2007, which reads thus: "F.No. 5-9/2004-Admn. Government of India Ministry of Women and Child Development Shastri Bha',,van, New Delhi Dated 17th October 2007 OFFICE ORDER In modification of Office Order of even number dated lst October 2007, Dr. Jai Singh, JTA (Adhoc) is hereby assigned to also attend to the responsibilities of Technical Adviser till further orders. However, he will submit all files in which approval of Bureau Heads/Ministry z's required, through Director (KRR).

2. This issues with the approval of Seuetary (WCD). ( Shakuntla Jain ) Under Secretary to the Government of India" The benefit of FR 49 could not be given to the Applicant because he was only ad hoc JTA and as such responsibilities of higher post could not be given to him on e t w.P.(c) 67s6/2010 Page 4 of I rl further ad hoc basis. FR 49 (i) reads thus: "F.R. 49. The Central Government may appoint a Government serttant already holding a post in a substantive or fficiating capacity to fficiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:- O where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same ffice as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him,,f h" is appointed to fficiate in the higher post, unless the Competent Authority reduces his fficiating pay under Rule 3 5; but no additional poy shall, however, be allowed for performing the duties of a lower post;"

16. In the light of the above discussions, the OA succeeds. The Respondents are directed to hold a meeting of DPC to consider the Applicantfor promotion to the post of JTA fro* the date of its revival, i.e., 10.01.2007, at which time the Applicant had fulfilled the essential qualifying service for the post. If he is recommended for promotion on regular basis, he would be eligible for benefit of FR 49 for holding additional charge of Technical Adviser. He would also be eligible for faation of pay in the pay band and grade pay as recommended by the sixth Central Pay Commission. His pensionwould also be accordingly revised. These directions would be complied with by I 5th of April 2010. "