ORDER
A.R. Basu, Member (A)
1. The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 challenging the impugned order dated 3.5.2005 and 3.1.2006 issued by the Under Secretary Govt. of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi in respect of non-considering his representation for relaxation of recruitment rules as well as for promotion to the post of Private Secretary by violating the guidelines and instructions issued by DOP & T dated 25.5.98 and recruitment rules for the post of Private Secretary by violating the guidelines and instructions issued by DOP & T dated 25.5.98 and recruitment rules for the post of Private Secretary published by the Ministry of Finance dated 1.12.2001 which has been forwarded by the Under Secretary, Ministry of Finance received by DRT- (1) Kolkata dated 31.1.2002 and non-consideration of the applicant’s representation dated 11.8.2005, 26.9.2005, 14.12.2005 and 6.2.2006 for promotion to the post of Private Secretary in the scale of Rs. 6500-10500.
2. The fact of the case is that the applicant was initially appointed as Stenographer through Staff Selection Commission in the Ministry of Finance on 12.6.1989. Subsequently, he was posted as Steno Gr.’D’ in DGS & D, Kolkata on 20.3.90 and thereafter he was transferred on deputation to the post of Steno Gr. ‘C’ in the scale of Rs. 5500-9000 in the DRT (I). Kolkata w.e.f. 1.10.99. By office Order 31.7.2002 issued by the Registrar-in-Charge, DRT (I), Kolkata he was absorbed on permanent basis in the post of Steno Gr. ‘C in the scale of Rs. 5500-9000. The applicant’s claim is that as per the DOP&T’s rules, the seniority in case of deputationist will be from the date of absorption, however, if he had been holding the same or equivalent grade in the department, seniority will be from the date of deputation or the date of his regular appointment in the grade in his previous department whichever is earlier. According to the applicant his seniority should, therefore, be counted for the post of Steno Gr,’C w.e.f. 1.10.99. The applicant states that since he has complied more than 6 years of regular service as Steno Gr. ‘C in the pay scale of Rs. 5500-9000 in represented first on 24.9.2004 for promotion to the post of Private Secretary in the scale of pay of Rs. 6500-10500 as a departmental candidate. However, the respondent authorities did not consider his representation and published a notification on 22.10. 2004 inviting application for the post of Private Secretary on deputation basis from other Govt. departments. Though no suitable candidate could be found by the respondent authorities, still the applicant’s case was not considered for promotion for the said post. The applicant further claims that Ministry of Finance, Department of Economic Affairs published another notification on 21-27/1/2006 where the experience criterion mentioned is 3 years regular service in the grade of Rs. 5500-9000 as eligibility condition, in the case of DRT the eligibility criterion has fixed as 8 years in the grade of Rs. 5500-9000. The applicant has further stated that Ministry of Finance, Department of Revenue published another notification for appointment to the post of Private Secretary on 24-30/12/05 where the required experience criterion for promotion to the post of Private Secretary has been fixed as 3 years in the scale of pay of Rs. 5500-9000. Even in case of Income Tax Appellate Tribunal notification for appointment to the post of Private Secretary on 1.2.2006,3 years regular service is required in the scale of Rs. 5500-9000 for promotion to the post of Private Secretary in the scale of Rs. 6500-10500. The applicant has further stated that the DOP & T vide its O.M. dated 25.5.98 and 8.11.2000 had issued instructions for making 3 years as the eligibility criterion for promotion from the post of Stenographers to that of Private Secretary. The applicant’s contention is that though he has completed more than 6 years of regular service on the post of Steno Gr. ‘C in the scale of Rs. 5500-9000 as per DOP & T, O.M. as well as Ministry of Finance instructions he is not being promoted to the post of Private Secretary in the DRT (I), Kolkata as in their case 8 years eligibility criterion has been fixed violating the instructions of DOP & T. The applicant further claims that he had been representing to various authorities but his request has not been acceded to and he is still posted as Steno Gr. ‘C’ though performing the duties of Private Secretary. Aggrieved by the action of the respondents he has filed this O.A. bearing No. 232 of 2006 claiming the following reliefs:
(a) For pass an appropriate order directing upon the Respondent Authority to quash and set aside the Impugned Order dated 3.1.2006 and 3.6.2005 vide Annexures Q & R of this application.
(b) For pass an appropriate order directing upon the respondent authority to give the promotion as per DOP & T O.M. dated 25.5.1998 and 8.11.2000, in favour of your applicant to the post of Private Secretary in the scale of Rs. 6500-10500 those who have completed more than six years regular service in the grade of Stenographer-C in the DRT-I. Kolkata, those who has been performing the same duties and responsibilities to the post of Private Secretary till today, but not getting the pay as well as designation of the said post.
(c) For pass an appropriate order directing upon the respondent authority to modify and/or amend the Recruitment Rules in respect of experience for the post of Private Secretary by way of relaxation the experience for eight years to three years or five years in the feeder grade.
(d) For pass an appropriate order directing upon the respondent authority to consider your applicant’s representations dated 24.9.2004 and 21.2.2005, 26.9.2005, 14.12.2005 and 6.2.2006 as well as the Ministry’s decision dated 22.7.2002 (being Annexure-V of this application).
(e) For pass an appropriate order directing upon the respondent Authority to extend the benefit of Order passed by the Hon’ble CAT, Cuttack Bench dated 3.2.2006 in O.A. No. 110 of 2006 in favour of the applicant who is a similar circumstance person working in the same Department in the same pay scale under the same Ministry (being Annexure-Z of this application).
(f) To pass an appropriate order directing upon the respondent Authority to produce all relevant records as well as the service records of your applicant at the time of hearing.
(g) Cost.
(h) Any other appropriate relief or reliefs as your Lordships may deem fit and proper.
3. The respondents have filed a written reply disputing and denying the claim of the applicant. They have stated that as per the statutory rules of DRT 8 years experience in the feeder grade of Steno Gr.’C’ in the scale of pay of Rs. 5500-9000 is necessary for promotion to the post of Private Secretary. Since the applicant has not completed the requisite period he is not eligible for promotion to the post of Private Secretary.
4. We have heard the Ld. Counsel, Mr. P.C. Das on behalf of the applicant and Mr. J.M. Bhattacharjee for the respondents and have perused the record of the case. The contention of the Ld. Counsel for the applicant is that the applicant from the very beginning, though posted as Steno Gr. ‘C’ is performing the duties of Private Secretary. The Ld. Counsel has further argued that the DOP & T have issued instruction for modifying the eligibility criterion for promotion to the post of Private Secretary in the grade of Rs. 6500-10500 from that of Stenographer in the grade of Rs. 5500-9000 as 3 years and directed all the Ministries for taking action for amending the recruitment rules for Gr. ‘C and Gr. ‘D’ post which is within their competence under delegated powers. The Ld. Counsel, Mr. P.C. Das has also argued that within the same Ministry there cannot be different sets of eligibility criterion for promotion from the post of Steno Gr. ‘C’ (Rs. 5500-9000) to that of Private Secretary (Rs. 6500-10500). In case of DRT it is 8 years, whereas in the Department of Economic Affairs under the same Ministry the eligibility criterion is 3 years, Department of Revenue under the same Ministry the eligibility criterion is 3 years, and even in case of Income Tax Appellate Tribunal under the same Ministry the eligibility criterion is 3 years. Even the recommendation of DOP & T is for 3 years. The Ld. Counsel has argued that the applicant should be promoted to the post of Private Secretary as he has already completed more than 6 years of service. The Ld. Counsel has also referred to the decision in the case of Abhaypada Roy v. U.O.I. and Ors. decided by the Cuttack Bench of this Tribunal in O.A. 110/06 where the applicant was allowed to continue as ad hoc Private Secretary in the grade of Private Secretary. Similarly the Ld. Counsel has also referred to a decision of this Tribunal in the case of Anup Mitra v. DRT decided on 13.3.2006 where the applicant was allowed to continue on ad hoc basis against the post of Private Secretary. The Ld. Counsel has further argued that since as on date the applicant has already completed more than 7 years, now should be considered for ad hoc appointment for the post of Private Secretary as he is performing the duties of Private Secretary since long and despite repeated notification the post is not being filled up as no suitable candidate is being found. Even the applicant is not receiving the pay-scale of the Private Secretary though working as Private Secretary albeit in his own grade. The Ld. Counsel for the respondents Mr. J.M. Bhattacharjee has argued that as per the statutory Rules 8 years condition is necessary for being considered for the post of Private Secretary and till the rule is not amended the applicant cannot be considered for promotion to the said post. The Ld. Counsel Mr. J.M. Bhattacharjee has argued that the recommendation of the DOP & T is advisory and till it is adopted by the Ministry, the rules cannot be amended. The recruitment rules were invited on 15.11.2001 and these are statutory rules framed under the Recovery of dabts due to Bank and Financial Institutions Act, 1993 whereas the O.M. dated 25.5.95 issued by DOP & T was a latter modification. Moreover, in the presence of the statutory rules the instructions issued by DOP & T cannot be given effect to. The Ld. Counsel also argued that the applicant was on deputation w.e.f. 1.10.99 and thus his seniority is to be counted from the date of absorption. Since the applicant was holding the post of Steno Gr. ‘D’ in his parent department (lower grade post) his service in the lower grade cannot be counted towards the grade of Steno Gr. ‘C to consider his eligibility to the post of Private Secretary. The Ld. Counsel also referred to the decision of this Tribunal in O.A. No 232/2006 decided on 11.7.2006 where the request of the same applicant for amending the rules were not acceded to.
5. We have heard the Ld. Counsel for both sides and have perused the pleadings. From the perusal of the documents it is obvious that as per the statutory rules as on date in the DRT (I) 8 years of experience in the post of Steno Gr. ‘C’ in the scale of Rs. 5500-9000 is necessary for being considered for the post of Private Secretary in the scale of Rs. 6500-10500. The Ld. Counsel for the applicant has drawn our attention to the anomaly in the eligibility criterion for promotion from the post of Steno Gr. ‘C; to Private Secretary in different departments in the same Ministry. It could not be made out as to how the eligibility criterion in the Debt Recovery Appellate Tribunal under the Ministry of Finance the eligibility criterion has been fixed at 8 years when under the same Ministry in the Department of Economic Affairs, India Security Press, Nasik, 3 years service in the grade of 5500-9000 has been fixed for being considered for promotion to the post of Private Secretary. Similarly, in Department of Revenue under the Ministry of Finance and in case of Income Tax Appellate Tribunal the eligibility criterion for promotion from Steno Gr. ‘C’ (Rs.5500-9000) to the post of Private Secretary in the graed Rs. 6500-10500 the eligibility criterion is 3 years. Even the DOP & T while recommending the scale had advised the Ministries to modify their recruitment rules and when all the Ministries had done so including the Ministry of Finance, it appears quite anomalous that within the Ministry of Finance, the DRT is having a recruitment rule which is different from other department within the same Ministry and against the DOP & Ts recommendation. The Ministry of Finance, therefore, should look into this aspect and consider amendment of their rules as per the model recruitment rules suggested by the DOP & T. From the perusal of Annexure ‘W’ we find that a proposal had been sent from the Under Secretary, Govt. of India Ministry of Finance, Department of Economic Affairs to the Officers of all the DRTs for relaxation of the Govt. rules only in exceptional circumstances along with due justification but there is no mention as to how in the same Ministry, different sets of rules are prevalent in different organizations for the same post. The Ld. Counsel for the applicant has argued that though the applicant is at present posted as Stenographer Gr. ‘C’ but he is discharging the duties of Private Secretary as well. On our specific query the Ld. Counsel for the respondents conceded that the applicant is performing the duties of the Private Secretary. The respondents in their written reply also have not rebutted this contention of the applicant.
6. The Ld. Counsel for the applicant Mr. P.C. Das has referred to two decisions of the Central Administrative Tribunal. The first is in O.A. No. 110 of 2006 Abhaya Pada Roy v. Union of India and Ors. decided by the Central Administrative Tribunal, Cuttack Bench. In that case it was held that:
Notwithstanding pendency of this O.A. the respondents shall remain free to regularize the services of the applicant as Private Secretary in DRT/Cuttack.
Pending disposal of this case, as an ad-interim measure, the respondents are hereby directed to allow the applicant to continue as ad hoc Private Secretary in DRT/Cuttack beyond 10.12.2006. This ad-interim order shall remain in force until further orders.
7. The Ld. Counsel, Mr. P.C. Das, has also referred to the decision in case of Anup Mitra v. DRT in O.A. 213 of 2006 decided on 13.3.2006 by this Bench of the Tribunal (supra). In that O.A. it was ordered that:
Having heard the rival contentions, and having regard to the facts and circumstances of the case, the respondents are directed to allow the applicant to participate in the recruitment process for the post of Private Secretary as and when the same is held and the result of the said recruitment test shall not be declared without permission of this Tribunal.
8. The Ld. Counsel for the respondents, Mr. J.M. Bhattacharjee, has referred to a decision of this Bench of the Tribunal in O.A. No. 232/06 decided on 11.7.2006 wherein it was held that:
There was nothing wrong in the R & P Rules and the Tribunal did not think it proper to interfere with the decision of the respondent authorities for not granting interim relief to the applicant.
9. From the discussion in the O.As. referred to above it would appear that till the recruitment rules is not changed or modified the respondent authorities are bound to follow the existing recruitment process otherwise it would mean promotion de hors the rules. However, from the record it appears that the applicant though a Steno Gr. ‘C’ is performing the duties of Private Secretary which is definitely higher post. The Ld. Counsel for the respondents has conceded that the applicant is looking after the work of the Private Secretary. The Ld. Counsel for the applicant has therefore, prayed that either the applicant should be promoted on ad hoc capacity to the post of Private Secretary or should be compensated for working against higher post and sharing higher responsibility. An equitable doctrine based on the concept that no one who benefits by the labour and materials of another should be unjustly enriched thereby; under those circumstances the law implies a promise to pay a reasonable amount for the labour and materials furnished, even absent a specific contract therefor. The concept of “Quantum Meruit” as an amount of recovery means “as much as deserving” and measures recovery under implied contract to pay compensation as reasonable value of services rendered.
10. In case of Ramakant Shripad Sinai Advalpalkar v. U.O.I. and Ors. it has been held that:
Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post, cannot be treated as a promotion. In such a case he does not get the salary of the higher post, but gets only which in service parlance is called a “charge allowance”. Such situation are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it.
11. In the case of Selvaraj v. Lt. Governor of Island, Port Blair and Ors. 1998 SCC (L & S) 1127 it has been held that:
Appellant therefore entitled to pay of the higher post but this was not to be treated as a promotion.
12. In the Selvaraj case (supra) it was held that:
Consequently, on the principle of “quantum meruit” the respondent authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee.
13. In view of the facts mentioned above, the decision of the Co-ordinate Bench of this Tribunal and the ratio laid by the Apex Court in the decisions referred to above, the respondents are directed to make available to the applicant the difference of salary in the scale of pay of Rs. 5500-9000 as Steno Gr. ‘C’ and Rs. 6500-10500 as Private Secretary during the period when the applicant actually worked as Private Secretary. The payment of the aforesaid difference amount of salary shall not be treated to amount to any promotion given to the applicant but on the ground that the respondents have asked the applicant to work against that post. The respondents are at liberty to do so if the exigencies of the public service, so demand. It is only on the ground that he had actually worked and, as such, this relief is being given to him. The difference of salary as aforesaid shall be paid over to the applicant within 4 weeks from the date of receipt of the copy of this order.
14. With the above direction the O.A. is disposed of. No costs.