Full Text
HIGH COURT OF DELHI
JUDGMENT
BABU RAM ..... Petitioner
Through Mr. Ashish Negi and Mr. Praksh Kumar Singh, Advocates for the
Appellant
Through Mr. Ripu Daman Bhardwaj, CGSC for R-1/U.O.I
Ms. Neelam Singh, Advocate for GNCTD/R-2
HON'BLE MR. JUSTICE VINOD GOEL VINOD GOEL, J.
1. Challenge in this writ petition is to order dated 08.05.2006 passed in O.A 2115/2005 whereby the Principal Bench of the Central Administrative Tribunal (in short „the Tribunal‟) refused to grant the appellant herein a higher replacement pay scale of Rs.5000-8000 w.e.f 01.01.1996 to the post of Statistician which was the post held by the petitioner at that time in terms of the recommendation of the 5th Central Pay Commission (in short „CPC‟) and also declined the petitioner the pre 01.01.1996 pay scale parity between the post of Head Clerk and Statistician and consequential benefits arising 2017:DHC:3126 therefrom.
2. The facts which led to the filing of the present petition are that the petitioner had joined Kalawati Saran Children‟s Hospital (in short „KSCH‟) and he was promoted from the post of LDC to the post of Medical Record Technician (in short „MRT‟) in the year 1988. There were two channels of promotion available to LDCs in KSCH, Administrative and Statistical, which are as follows:-
┌─────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl.no. Administrative Statistical Pay scale │ │ attached │ ├─────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. U.D.C MRT Rs.1200-2040 │ │ 2. Head Clerk Statistician Rs.1400-2300 │ │ 3. Office Medical Record Rs.1600-2900 │ │ Superintendent Officer │ │ 4. Administrative - Rs.2000-3500 │ │ Officer │ │ 3. The petitioner got two promotions in the Statistical Stream, first to the │ │ post of MRT and second to the post of Statistician. Thereafter the 5 th │ │ CPC recommended the replacement scale of Rs. 4500-7000 for the │ │ post of Statistician in the Statistical Stream and of Rs. 5000-8000 for │ │ the post of Head Clerk in the Administrative Stream. │ │ 4. The petitioner then made a representation on 30.06.1998 to the │ │ concerned authorities for upgradation of his pay scale of Rs.5000- │ │ 8000 in line with the recommendations of the 5 th CPC. The relief was │ │ denied to the appellant by the concerned authority vide letter dated │ │ W.P.(C) 16726/2006 Page 2 of 12 │ │ 2017:DHC:3126 │ │ 24.07.2003. │ │ 5. The petitioner claimed that since he was eligible for promotion in the │ │ Administrative Stream to the position of UDC and then to the post of │ │ Head Clerk, he should have been given the upgraded pay scale of │ │ Rs.5000-8000. He further contended that prior to 01.01.1996, the post │ │ of Head Clerk in the Administrative Stream and Statistician in the │ │ Statistical Stream had the same pay scale of Rs.1400-2300. On this │ │ ground, he claimed that he should be granted the higher replacement │ │ pay scale of Rs.5000-8000 which has been granted to the post of Head │ │ Clerk in the Administrative Stream. │ │ 6. The appellant filed O.A No. 3020/2003 (hereinafter referred to as „first │ │ OA‟) before the Tribunal. His first OA was disposed of on 23.07.2004 │ │ with the following observations in Para 11: │ │ “11. Having regard to the reasons discussed above, in the │ │ facts and circumstances of the present case respondents have │ │ to consider granting the applicant the replacement scale of │ │ Rs.5000-8000 as available to the Head Clerk in KSCH or has │ │ been made available by different Ministries/Departments to │ │ the post of Junior Investigator/Investigator/Statistical │ │ Assistant etc. It shall not be necessary for the department to │ │ prescribe the qualification of degree in statistics for the post │ │ of Statistician held by the applicant on promotion. Although, │ │ if recruitment rules are modified to bring in the mode of direct │ │ recruitment in addition to that of promotion to the post of │ │ Statistician, the prescription of education qualification would │ │ be restricted for direct recruitment only. However, the pay │ │ scale of the post by either mode of recruitment shall be the │ │ same and not different, i.e. Rs.5000-8000 as available for │ │ equivalent posts in the administrative stream of the │ │ respondent organisation or in the post of Junior │ │ Investigator/Investigator/Statistical Assistant etc. in other │ │ Department/Ministries.” │ │ 7. The Tribunal disposed of the first OA in terms of the following │ │ W.P.(C) 16726/2006 Page 3 of 12 │ │ 2017:DHC:3126 │ │ directions:- │ │ “12. In result, respondents are directed to consider according │ │ the upgraded replacement scale of Rs.5000-8000 to the │ │ applicant in the post of Statistician with consequential │ │ benefits, keeping in view the observations made above within │ │ a period of three months from the date of communication of │ │ these orders.” │ │ 8. Pursuant to this order passed in the first OA, the petitioner‟s case was │ │ considered and rejected vide letter dated 12.05.2004 by the │ │ respondent. The reason given for rejection was that the 5 th CPC had │ │ recommended a higher pay scale of Rs.5000-8000 to the post of │ │ Statistician in the streams in which the feeder cadres for the posts are │ │ filled up entirely by direct recruitment for which a minimum │ │ qualification is a Degree with Statistics. The petitioner was promoted │ │ to the post of Statistician from the post of MRT and not by direct │ │ recruitment. Moreover the petitioner did not possess the minimum │ │ qualification of a Degree with Statistics. It was also pointed out in the │ │ letter that there are a number of posts similar to that of Statistician │ │ without requiring the Degree of Statistics available in the Ministry │ │ which are placed in the pay scale of Rs.4500-7000. │ │ 9. After this rejection, the petitioner filed a Contempt Petition in the first │ │ OA alleging that the order dated 23.07.2004 has not been complied │ │ with by the respondents. The same was disposed of on 28.06.2005 │ │ giving liberty to the petitioner to file a substantive petition if he is │ │ aggrieved by the order of rejection of his claims. This led to the filing │ │ of OA 2115/2005 by the petitioner which was dismissed vide order │ │ dated 08.05.2006. The dismissal of second OA led the petitioner to │ │ file the present petition. │ │ W.P.(C) 16726/2006 Page 4 of 12 │ │ 2017:DHC:3126 │ └─────────────────────────────────────────────────────────────────────────────────────────────┘
25. The petitioner was promoted to the post of MRT and accepted the same and also waited for his turn for further promotion to the post of Statistician. Thus, he accepted his career progression in the Statistical stream. Now he cannot turn around and claim parity in the matter of promotion and pay scale with the Administrative stream. The career prospects in the two streams i.e. Administrative and Statistical differ materially depending upon the availability of vacancies and eligibility conditions for promotion of that post etc. The petitioner cannot compare his pay scale of Statistician with that of Head Clerk in the Administrative Stream. The replacement pay-scales for the post of Statistician in the Statistical Stream and Head Clerk in the Administrative Stream were granted w.e.f. 01.01.1996 as per the 5th CPC. The responsibilities and duties of both the posts cannot be identical which is the main reason for the respondent not granting parity in pay scale w.e.f. 01.01.1996.
26. As far as the issue of internal noting of the Law Officer of the respondent department is concerned, even if he was of the view that the judgment in the first O.A was correct and the orders should be implemented, it does not amount to a final decision and is only an opinion expressed by him. The Hon‟ble Supreme Court in Sethi Auto Service Station v. DDA, (2009) 1 SCC 180 while dealing with the sanctity of internal noting held as under:
27. The pay scale attached to the post of Statistician (Group „C) was Rs.1400-2300, after the recommendation of the 5th CPC in Para 81.16 and 81.17, all Statisticians in the pay scale of Rs.1400-2300 were to be known as Statistical Investigators Grade-II and the minimum qualification for recruitment to these posts was to be a degree in graduation with statistics. As per para 81.17 of these recommendations a subordinate statistical service is to be constituted as there was earlier little chance of promotion from the post of Statisticians. It is important here to refer to the Office Memorandum dated 14.10.1997 issued by the Department of Statistics wherein in pursuance to the recommendations of the 5th CPC the department with regard to upgradation in respect of Group „C‟ and Group „B‟ statistical functional posts stated as under in Para 7:
28. A reading of this O.M makes it abundantly clear that the upgraded pay scale to the post of Statistician was subject to it being included in the Subordinate Statistical Service. During the course of arguments it was brought to our notice that a Subordinate Statistical Service was constituted and the petitioner‟s post was not included in the said service as there is no direct recruitment to the post of Statistician and also the minimum qualification is not that of a Degree in Statistics.
29. A combined reading of the recommendations of the 5th CPC especially in Para 81.16 and 81.17 and also of the O.M dated 14.10.1997 reproduced above in Para 25 clearly establishes the higher pay scale of Rs.5000-8000 was to be given only to those posts which were included in the newly created Subordinate Statistical Service, which had a minimum qualification requirement of a Degree in Statistics and where recruitment was not through promotion but through a direct entry.
30. In light of the law discussed above and the facts and circumstances of the case, we find no infirmity in the judgment of Tribunal and accordingly the petition is hereby dismissed.
VINOD GOEL, J. G. S. SISTANI, J. June 05, 2017