R. S. Meena v. North Delhi Municipal Corporation

4. LPA No. 122/2001: MCD Vs. S.C.Kohli & Ors.

5. LPA No.124/2001: R.K.Sharma & Ors.

V. MCD.

6. CWP No.8742-43/2004: Sangeeta Bansal & Anrs. Vs. MCD & Anrs.

7. WP(C) No.12781/2004: Kuldeep Singh Yadav Vs. MCD & Ors.

8. CWP No.2283/2005: Jagdeep Chiller Vs. MCD & Ors.

9. WP(C) No.12947/2005: V.K.Kapoor. Vs. MCD. This Issues with the approval of the Competent Authority.”

4. Since then, the petitioner was continuing to work as DC in the same capacity. He was being paid ₹ 15600-39400 (GP ₹ 7600) which was the pay-scale applicable to the post of ADC. One of the claims of the petitioner is that he was entitled to the pay of the post of DC i.e. ₹ 37400-67000 (GP ₹ 8700) w.e.f. 12 April 2007, when he was assigned CDC of the post. Signing

5. Subsequently, a Departmental Promotion Committee[7] was convened on 8 June 2015 for considering promotions to the grade of Assistant Commissioners/Dy. Assessor and Collector. The petitioner was found fit for promotion as AC by the said DPC and was accorded said promotion in the panel year 1996-97 vide Office Order dated 7 July 2015. The second grievance of the petitioner is that one of the officers junior to the petitioner was given the pay-scale of ₹ 37400- 67000 (GP ₹ 8700) in pay band (PB)-IV w.e.f. 15 September 2006.

6. Predicated on these facts, the petitioner approached the learned Central Administrative Tribunal[8] by way of OA 827/2016. The prayer clause in the OA reads thus: “In view of the above mentioned facts and grounds it is most respectfully prayed that this Tribunal may graciously be pleased to: (a) to issue direction to the respondent to pay difference of salary between pay scale of Rs. 15600-39100 (GP 7600) and Rs. 37400-67000 (GP 8700) to the petitioner w.e.f. 15.9.

2006. (b) to issue direction to respondents to pay difference of salary between pay scale of Rs. 15600-39100 (GP 7600) and Rs. 37400-67000 (GP 8700) to the petitioner w.e.f. 15.9.2006 till 19.2.2016.

(c) the Hon'ble Tribunal may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice.”

7. Thus, it would be seen that, in the prayer clause in OA 827/2016, the petitioner only sought grant of the pay-scale of ₹ 37400- 67000 (GP ₹ 8700) w.e.f. 15 September 2006, on the ground that his “DPC”, hereinafter Signing junior had been granted the said scale from the said date. The prayer clause in the OA, therefore, did not contain any prayer seeking grant, to the petitioner, of the pay-scale of DC, consequent on his having been appointed to hold current charge of the said post. Nonetheless, in the body of the OA, the petitioner specifically pleaded that he was entitled to be paid the scale of DC w.e.f. 12 April 2007, when he was appointed to hold current charge of the post.

8. The OA filed by the petitioner, along with a number of other original applications, in which a common issue of whether a person who was appointed to hold current charge of a higher post was entitled to the pay of that post arose for consideration, were referred to a Full Bench of the Tribunal. All the said OAs together came to be disposed of by the Full Bench by the judgment dated 24 April 2019, under challenge in the present petition.

9. Para 3 of the impugned judgment sets out what, in the opinion of the Full Bench, was the common feature of all the OAs, which reads thus:

10. We are constrained to observe, with greatest respect to the learned Tribunal and the Members of the Full Bench, perhaps, it might “the learned CAT”, hereinafter Signing have been better if the learned Tribunal, after deciding the issue of whether a person who was appointed to hold current duty/look after charge of the higher post was entitled to the pay of that post, to have adverted to the individual facts of the OAs before it. The learned Tribunal has in fact noted, in para 3, that the arrangement was slightly different in different cases. For example, Lokpal Singh Negi, the applicant before the learned Tribunal in OA 2693/2018, had approached this Court, challenging the impugned judgment dated 24 April 2019 of the Full Bench of the learned Tribunal by way of WP (C) 8914/2019 and, on going through the facts in that case, we realised that the order appointing Lokpal Singh Negi on current duty charge basis to the higher post was completely distinct and different from the current duty charge order passed in the case of present petitioner, as reproduced in para 3 supra. There is no commonality between the two. In fact, the issue of whether the “current duty charge order” passed in the case of Lokpal Singh Negi was at all an order appointing him on current duty charge to the higher post, was, in our opinion, itself debatable, on the facts of that case. This distinction, however, has not been noted by the learned Tribunal as a result of which we were constrained, by a separate order passed today, to set aside the impugned judgment of the Full Bench of the learned Tribunal, insofar as it decided OA 2693/2018 filed by Lokpal Singh Negi and remand the matter to the learned Tribunal for consideration afresh.

11. Insofar as the aspect of the entitlement of the applicant to the scale of the higher post, consequent on his having been appointed to hold current duty charge of the said post is concerned, there is no Signing substantial difference between the order dated 12 April 2007 passed in the case of the present petitioner, and the order dated 11 November 2003 passed in the case of R.K. Sabharwal, the applicant in OA 2557/2017, which has been treated by the Full Bench as a representative case. We are not, therefore, in this case, faced with the position that applies in the case of Lokpal Singh Negi, inasmuch as the impugned judgment of the Full Bench would apply, mutatis mutandis, to the present petitioner, insofar as the petitioner’s claims for the scale of DC, on the basis of the order dated 12 April 2007 appointing him as DC on current duty charge basis is concerned.

12. However, as we have already noted, the case of the petitioner in OA 827/2016 was not restricted to claiming the scale of DC from the date on which the petitioner was asked to hold current duty charge of the said post. The petitioner independently claimed a right to the scale of DC from 15 September 2006, when his junior is stated to have been granted the said scale. This claim of the petitioner has not been addressed by the Full Bench of the learned Tribunal.

13. We are, therefore, restricting ourselves to the claim of the petitioner to the scale of DC from 12 April 2007, when the petitioner was directed to hold current duty charge of the said post, and are remitting the claim of the petitioner to the scale of ₹ 37400-67000 (GP ₹ 8700) w.e.f. 15 September 2006, when his junior is stated to have been granted the said scale, for consideration by the learned Tribunal de novo. Signing The impugned judgment

14. The learned Tribunal, in the impugned judgment, dealt with the entitlement of an officer appointed to hold current duty charge of a higher post, to the scale of that post, thus, in paras 7 to 12 and 14 to 17:

2013 SCC OnLine Del 1549 Signing additional pay shall be admissible irrespective of the period of dual charge: Provided that, if the Government servant is appointed to an additional post which carries a special pay, he shall be allowed such special pay;

(iii) Where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post or of the highest post if he holds charge of more than two posts in addition to ten percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 45 days but not exceeding 3 months: Provided that if in any particular case it is considered necessary that the Government servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of 3 months;

(iv) where an officer is formally appointed to hold full additional charge of another post, the aggregate of pay and additional pay shall in no case exceed Rs.80,000;

(v) no additional pay shall be admissible to a

Government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge;

(vi) if compensatory or sumptuary allowances are attached to one or more of the posts, the Government servant shall draw such compensatory or sumptuary allowances as the Central Government may fix: Provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts.”

8. Two aspects become clear from this. The first is that it is only when a Government servant is formally appointed in a substantive or officiating capacity, as a temporary measure, to another independent post to hold full charge, that he shall be entitled to be paid the salary attached to the “other independent Signing post” [FR 49(i)]. The second is that if the appointment is on “current charge” of the routine duties of another post, no additional pay is admissible [FR 49(v)]. It is not even pleaded that the applicants in these OAs were formally appointed (in substantive or officiating capacity as a temporary measure), to hold full charge of the duties of the higher post. On the other hand, it was ‘look after’ arrangement. Therefore, it is not clause (i), but clause (v) of FR 49, that gets attracted.

9. In Selvaraj’s case, the appellant therein was no doubt put in look after duties of the post of Secretary (Scouts). However, it is important to take note of the conditions incorporated in the order of such entrustment. On 28.01.1992 the concerned authority passed the following order: “The Director of Education, A & N Islands is pleased to order the transfer to Shri Selveraj, Primary School Teacher attached to Middle School, Kanyapuram to Directorate of Education (Scouts Section) to look after the duties of Secretary (Scouts) with immediate effect. His pay will be drawn against the post of Secretary (Scouts) under GFR 77.” From this, it becomes clear that not only the appellant was assigned the look after duties of the post of Secretary (Scouts), but also he was extended the facility and benefit of drawing the salary against that post, under GFR 77. When the appellant therein was not paid the salary in terms of that very order, the Hon‟ble Supreme Court granted the relief. Such is not the case here.

10. In Judhistir Mohanty’s case, that facts are that the appellant was working as Superintendent of Jail, in leave reserve, in the head office of IG (Prisons), and on a representation made by him to the Chief Minister expressing his difficulties, he was transferred and posted as Superintendent of Jail at Circle Jail at Behrampur, in the pay scale of Rs.850-1450. After retirement, the appellant claimed that the post against which he was working at Behrampur carried a higher scale of pay, but he was not extended the benefit thereof. The plea of the Government was that the appellant was holding a Class II post, and since that was not available at Behrampur, he was permitted to work in the post of Superintendent of Jail, which is a Class I post, and in that view of the matter, he is not entitled to the higher scale of pay. The writ petition was dismissed, and in appeal, the Hon’ble Supreme Court held as under:

11. Another judgment which was relied upon is the one in Government of NCT of Delhi & others v S. C. Gupta (supra). The Hon’ble High Court did not refer to any specific provision of law, or any binding precedent. At any rate, the purport of FR 49(v) was not taken note of.

12. Learned counsel for the respondents relied upon the judgment of the Hon’ble Supreme Court in Col. B. J. Akkara v Government of India & others12 in support of their contention that the mere fact that an order or judgment of the High Court assumed finality on account of it not having been appealed in time, does not preclude the examination of the same at a later point of time. We are, however, of the view that such a facility can be availed before the Supreme Court, and we do not intend to undertake an exercise of that nature, vis-à-vis the judgment of the Delhi High Court in S.C. Gupta’s case. We can, however, apply that principle to the one in respect of OA No.3711/2011, and it is permissible to examine whether it accords with the settled principle of law. On a close scrutiny, we find that the view taken therein militates against the purport of FR 49, and that it has no other legal support. *****

14. It is not uncommon in any organisation that posts of certain description remain vacant for one reason or the other, and certain measures taken, to handle them. The effort would be to ensure that the post is held by someone, for smooth functioning of the organisation. The entrustment of the duties of the higher office to an employee in the lower post is in fact part of the departmental discipline. The occasion to pay the salary attached to the higher post would arise if only an order formally appointing an officer in that behalf is issued. If the duties of a higher post are a bit onerous, the employee who is required to handle it, can be provided the

15. It is axiomatic that the entitlement to receive a pay scale attached to a post would arise if only one is appointed to it in accordance with the prescribed procedure. The appointment to the post of CE in the respondent organisation is through the process of selection, from the category of SEs, who have put in, the prescribed length of service as SEs in substantive capacity. We have seen that in OA No.2557/2017, the applicant was holding the post of SE on ad hoc basis. When he did not even become eligible to be considered for promotion to the post of CE, the question of extending him the benefit of the pay scale attached to that post simply because he was assigned the look after duties of that post, does not arise. It is a different matter, if an order that fits into FR 49(i) is issued in his favour. In none of the OAs, we find any orders of that nature. On the other hand, the arrangements squarely fit into FR 49 (v). Hence, their claims cannot be sustained.

16. We are of the view that if the entrustment of the duties of a higher post continues for a period exceeding three months, a claim can be made by the applicants for payment of the special allowances, if any, attached to the higher post. The respondents shall be under an obligation to consider the same.

17. We, therefore, hold that the view taken in OA No.3711/2011 does not accord with FR 49 and the settled principles of law, and that an employee holding a post in substantive capacity, but assigned the look after charge of a higher post, shall not be entitled to be paid the scale of pay attached to the higher post. In case, any special allowances are attached to the higher post, they shall be entitled to be extended the same, if the assignment of the look after charge exceeds a period of three months.” Rival Submissions

15. We have heard Mr. Rajat Aneja, learned Counsel for the petitioner and Ms. Avnish Ahlawat, learned Standing Counsel for the respondent, at length.

16. Mr. Rajat Aneja commenced his submissions by relying on the Signing following order passed by a Division Bench of this Court in North DMC v Anil Dalal13: “North Delhi Municipal Corporation has challenged the order passed by the Central Administrative Tribunal dated 12.03.2011 whereby the respondent/applicant’s claim for higher pay in the post of Executive Engineer, for which he worked w.e.f. 01.08.2011, was directed to be granted. The Corporation argued that the Tribunal’s order cannot be held to be justified because the Respondent was placed on current duty charge with specific direction that he would be entitled to the pay emoluments of the substantive grade that he was working in i.e., Assistant Engineer and, that he therefore could not claim the emoluments attached to the higher post in respect of which he was asked to shoulder responsibilities. This Court has considered the submissions as well as the material on record and previous rulings of the Supreme Court in Selvaraj v. Lt. Governor, Port Blair and Ors.; Judhistir Mohanty v State of Orissa and Ors. as well as the decision of the Division Bench of this court in Govt. Of NCT of Delhi and Ors. V. Shri S.C. Gupta and Ors. W.P. (C) 724/2010, decided on 06.09.2010 which mandates that in addition to ordinary pay, if a public servant is asked to discharge duties and functions attached to a higher post, he would be entitled to the pay and emoluments prescribed for such latter post. The Division Bench of this Court also notices Fundamental Rule 49 which regulates the pay of an individual asked to officiate, on a temporary basis, on independent basis or of higher responsibility. It mandates that in addition to the ordinary pay, the employee shall be allowed the pay admissible to him if he is appointed to officiate in the higher post. In view of this settled legal position, the Court is of the opinion that there is no merit in the writ petition. It was argued during the course of submissions that the Respondent has a pending disciplinary proceedings and that his promotion has been kept in abeyance on account of the sealed cover procedure adopted and the consequential benefits would have to be understood to mean only the release of pay and emoluments in terms of Rule 49. This issue did not engage the attention of the Tribunal, since it was neither brought to its notice nor put in issue by the Corporation. This Court is of the opinion that it would not be appropriate to comment on its correctness. The Corporation shall be at liberty to initiate such proceedings as may be available to it under law and if any such proceedings / application is moved on the part of the Corporation, Order dated 20.09.2013 in WP(C) 5960/2013 Signing the authority / Tribunal shall pass appropriate orders subject to disciplinary proceedings pending, if any. The writ petition is accordingly dismissed.” According to Mr. Aneja, the case of the petitioner is squarely covered by the decision in Anil Dalal, which categorically holds that an officer who is appointed to hold current duty charge of a higher post is entitled to the pay of such higher post.

17. Besides, submits Mr. Aneja, the learned Tribunal was in error in applying, to the case of the petitioner, FR 49 (v) instead of FR 49 (i). He seeks to distinguish FR 49 (i) from FR 49 (v) by emphasizing the expression “higher post” used in FR 49 (i) as compared to the expression “another post” used in FR 49 (v). Thus, submits Mr. Aneja, if the charge that the employee is required to hold, irrespective of its nomenclature, is of a higher post, and amounts to granting full charge of the higher post, the case would be covered by FR 49 (i) and not by FR 49 (v). Mr. Aneja submits that the petitioner’s case, by this token, has to be considered under FR 49 (i) and not under FR 49 (v). He submits that the petitioner was discharging all duties of DC consequent to the order dated 12 April 2007. To substantiate this contention, Mr. Aneja has referred to the following documents:

(i) Office Order dated 13 April 2007,

(ii) Office Order dated 30 December 2008

(iii) Office Order dated 18 June 2009

(iv) Office Order dated 29 October 2008

(v) Office Order dated 17 September 2010, and

(vi) Office Order dated 11 November 2011.

Signing These Office Orders may be reproduced thus: Office Order dated 13 April 2007 “Municipal Corporation of Delhi (Central Establishment Department) Town Hall: Delhi-110006” No.F.l(9)/CED(II)/96/42/8847-918 Dated: 13.04.2007 The transfer/posting of the following Dy. Commissioners is hereby ordered with immediate effect:

1. Sh. P.K. Panda Dy. Cm/S&JJ Dy.Cm/Shah(So uth) Zone vice Sh. S.K. Bhandari, Dy. Cm

2. Sh. S.K. Bhandari Dy.Cm/Shah(Sou th) Zone Dy. Cm/KB Zone, relieving Dy. Cm/West Zone of the said addl. Charge.

3. Smt. C A Dhan Awaiting Posting Addl. A & C

4. Sh. R.S. Meena Awaiting Posting Dy.Cm/Factory Licensing with addl. charge of Toll Tax and CL&EC in diverted capacity.

5. Smt. Sangeeta Bansal Awaiting Posting DOI with addl. Charge of I & E Deptt. This issues with the approval of the Competent Authority. 13/04/2007 (Renu Krishnan Jagdev) Director (Personnel)” Signing Office Order dated 30 December 2008 No.F.11(6)/CED(II)/86/pt. VI/201/24923-94 Dated: 30.12.2018 Shri R.S. Meena, Deputy Commissioner (CDC), presently posted as Addl. Assessor & Collector is hereby transferred from A&C Deptt. and posted in Slum & JJ Deptt of MCD with the direction to report to Addl. Commissioner (Revenue/S& JJ) for further posting and Shri C. Yadav, ADC, is hereby transferred from Slum & JJ Deptt. And posted in A&C Department against a vacant post of Jt. A&C with immediate effect. (Y S Yadav) Addl. Commissioner (CED)” Office Order dated 18 June 2009 “Slum & JJ Department Municipal Corporation of Delhi No:GA/1072/3/ADMN/S&JJ/MCD/08/D 100 Dated:18 June,09 In exercise of powers vested in me under Section 491 of DMC Act, 1957, I hereby direct that all the powers conferred upon me under various sections of the said Act shall subject to my overall supervision, control and-review be also exercised by Shri R.S. Meena, Dy. Commissioner(S&JJ), with immediate effect in respect of disposal of the work of Slum &JJ Department, MCD. Shri R.S. Meena, DC(S) shall continue reporting for discharge of his functional responsibilities to Addl. Commissioner(S&JJ), who is the Head of the Slum & JJ Department, MCD under the overall supervision and control of Commissioner, MCD. Sd/- Signing Mr. K.S. Mehra Commissioner, MCD” Office Order dated 29 October 2010 No.F.11(61)/CED(III)/2007pt.II/6622 Dated: 29 Oct 2010 Shri Rajender Singh (Retd. Brigadier), presently posted in MCD as Dy. Commissioner, Shahdara (South) Zone, on re-employment basis is hereby Stand relieved from the MCD with effect from 31.10.2010 (A/N). Further, Sh. R.S. Meena, Dy. Commissioner, who is presently posted in DUSIB, is hereby posted as Dy. Commissioner, Shahdara (South) Zone. (S.K. Sharma) Asstt.. Commissioner (CED)” Office Order dated 17 September 2010 Town Hall; Delhi-110006” No.HC(A)-I/AO(E)-I/2010/5857 Dated: 17 Sep 2010 In supersession of previous orders, Shri R.S. Meena, Dy. Cm./Slum & JJ, is hereby nominated as Liaison Officer of the MCD for looking after matters relating to the reservations for SC/ST/OBC and persons with disabilities in addition to his own duties. Signing This issues under the direction of the Competent Authority. (S.K. Sharma) Asstt. Commissioner (CED)” Office Order dated 11 January 2011 22nd Floor, Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, Minto Road, Delhi-110 002 No.F.11(41)/CED(II)/86/221 Dated: 11.01.2011 “Pursuant to Govt.of NCT of Delhi's Order, consequent upon joining the MCD and with the approval of the Competent Authority, in anticipation of the approval of the Corporation, the following officers are hereby appointed to the post of Dy.Commissioner on deputation basis w.e.f. the date of their joining, mentioned against the name of each, initially for a period of one year, on the terms and conditions of deputation, to be settled in due course:

┌────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                              Sl. Name of the        GNCTD’s     Order Date of Joining                      │
│                              No. Officer/Post       No. & Date                                             │
├────────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│                              1.  Shri C.R.          474, issued vide 15.12.2010 (AN)                       │
│                                  Garg,              F.No. 30/14/2009/                                      │
│                                  DANICS             S.I./ dated                                            │
│                                  (1990),            22.11.2010                                             │
│                                  (DIG      Delhi                                                           │
│                                  Prisons)                                                                  │
│                              2.  Shri J.B.          No.520, issued vide 04.01.2011 (FN)                    │
│                                  Singh,             F.No.30/123/2010/                                      │
│                                  IAS (AGMU:         S.I./                                                  │
│                                  2000), Addl.       dated 28.11.2010                                       │
│                                  Director                                                                  │
│                                  (Education)                                                               │
│                              3.  Shri D.N.          519, issued vide       10.01.2011 (FN)                 │
│                                  Singh,             F.No.                                                  │
│                                  DANICS,            30/123/2010/S.I./                                      │
│                                  Director (DJB)     dated 28.11.2010                                       │
│                           Consequent upon joining of the above mentioned officers, with the                │
│                           approval of the Competent Authority, the transfer/posting of the                 │
│ Signature Not Verified                                                                                     │
│                   W.P.(C) 5756/2019                                                        Page 18 of 29   │
│ Digitally Signed                                                                                           │
│ By:AJIT KUMAR                                                                                              │
└────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

C. HARI SHANKAR, J.