The Chairman, New Delhi Municipal Council v. Shibani Roy Choudhury

1. The present writ petition under Articles 226 & 227 of the Constitution of India seeks to assail the order dated 04.03.2021 passed by the learned Central Administrative Tribunal (Tribunal) in O.A. No.1911/2020.

2. Vide the impugned order, the learned Tribunal has allowed the original application preferred by the respondent by directing that no recovery could be made from the salary paid to her while she was working on the post of a Joint Director (Statistics) from 09.04.2008 till her superannuation on 28.02.2015 and has further directed the petitioners to consider her for grant of the benefit under the Modified Assured Career Progression (MACP) Scheme on the basis of substantive post of Statistical Officer held by her. The learned Tribunal has, however, rejected her claim for being granted pension as per the salary of Joint Director (Statistics).

3. In support of the petition, Mr. Vaibhav Agnihotri, learned counsel for the petitioners submits that the impugned order is liable to be set aside as the learned Tribunal has failed to appreciate that once there was no sanctioned post of a Joint Director (Statistics) in the petitioner organization, the respondent could not be granted the benefits of pay scale attached with the said post. He, therefore, contends that the petitioners were justified in seeking refund of the higher amount paid to her during the period between 09.04.2008 to 28.02.2015, when she was working on the post of Joint Director (Statistics).

4. He further submits that even if the benefit under the MACP scheme were to be extended to the respondent as already directed vide order dated 12.02.2015, no additional amount would be payable to her by way of MACP as she had already received a much higher amount by way of salary of a Joint Director (Statistics). He, therefore, prays that it may be clarified that in case it is found that upon grant of MACP, the respondent was entitled to receive a higher pay scale than that of Statistical Officer, the benefits of the MACP would not be payable to her for the period between 09.04.2008 to 28.02.2015.

5. On the other hand, learned counsel for the respondents support the impugned order and submits that the respondent, having discharged duties of a higher post, i.e. the Joint Director (Statistics), the petitioner cannot be permitted to seek refund of the higher salary paid to her during the said period. He, however, fairly submits that the benefits of the MACP scheme to which the respondent is entitled, would not be payable to her for the period between 09.04.2008 to 28.02.2015 but contends that the same ought to be taken into account for computing her pension.

6. Having considered the submissions of learned counsel for the parties and perused the record, we may begin by noting hereinbelow, the relevant extracts of the impugned order as contained in para nos. 7 and 8 thereof:

7. From a perusal of the aforesaid, we find that the learned Tribunal has accepted the petitioner’s plea that since approval for creation of the post of Joint Director (Statistics) in the petitioner/council was not received from the Nodal Ministry, the respondent, despite having received the salary of a Joint Director, would not be entitled to receive pension on that basis. The learned Tribunal has, however, directed that no recoveries will be made from the petitioner on this ground. Taking into account the admitted position that the respondent had discharged the functions of Joint Director (Statistics) for the entire period between 09.04.2008 to 28.02.2015, we see absolutely no reason to interfere with this direction issued by the learned Tribunal.

8. From the impugned order, it emerges that the learned Tribunal, while rejecting the respondent’s prayer for grant of pension on the basis of the salary of a Joint Director, has directed the petitioner to consider the respondent for grant of MACP. Learned counsel for the petitioner has not been able to seriously dispute that if the respondent’s promotion to the post of Joint Director (Statistics), as directed by the learned Tribunal, were to be ignored, she would be entitled to be considered for grant of benefits under the MACP scheme. His submission, however, is that it may be clarified that even if the grade pay of the respondent is enhanced by her consideration under the MACP, she would not be entitled to receive any monetary benefits for the period between 09.04.2008 to 28.02.2015. As noted hereinabove, learned counsel for the respondent has fairly conceded that the respondent will not be entitled to any monetary benefits for this period. We find that the learned Tribunal has not issued any direction for payment of any monetary benefits after grant of MACP to her but has merely directed the petitioner to take a considered decision thereon and therefore, we find no reason to interfere with the impugned order.

9. We, therefore, dispose of the writ petition by granting six weeks time to the petitioners to take a considered decision on the respondent’s entitlement for grant of MACP by clarifying that in case, upon the grant of MACP, the respondent is found entitled to receive any higher grade pay than that of the Statistical Officer, no additional amount under this head will be paid to her for the period between 09.04.2008 to 28.02.2015 as she has already received salary of the next higher promotional post of Joint Director (Statistics) during this period. We, however, make it clear that in case the respondent’s grade pay is enhanced by grant of MACP, her pension will be suitably enhanced by taking into account the grade pay under the MACP scheme. Arrears in terms of this order be paid to the respondent within three months.

10. The writ petition is disposed of in the aforesaid terms.

(REKHA PALLI) JUDGE (RAJNISH BHATNAGAR)

JUDGE FEBRUARY 26, 2024