ORDER
V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought quashing and setting of the order of the respondents dated 17.03.2006 wherein his request for grant of higher pay scale of Rs. 12000-16500 to the post of Deputy Director was rejected. He has accordingly sought a direction from this Tribunal to the respondents to grant the higher pay scale of Rs. 12000-16500 to the post of Deputy Director in his organization, as has been provided to Deputy Directors in other Departments, w.e.f. 01.01.1996, with all consequential benefits.
2. The brief facts of the case are that the applicant was appointed as Senior Superintendent in the year 1978 in the Department of Social Welfare, Government of NCT of Delhi, in the pay scale of Rs. 1100-1600, which was revised to Rs. 3000-4500 as a result of the recommendations of the Fourth Central Pay Commission. In the year 1992, the applicant was promoted, on ad hoc basis, to the post of Deputy Director in the pay scale of Rs. 3000-5000, which was revised to Rs. 10000-15200 on the basis of the recommendations of the Fifth Central Pay Commission. In accordance with the recommendations of the Fifth Central Pay Commission, the Government merged the pay scales of Rs. 3000-4500 and Rs. 3000-5000 (being the pay scales of the Senior Superintendent and the Deputy Director, respectively, in the organization of the applicant) into a single pay scale of Rs. 10000-15200 w.e.f. 01.01.1996. Aggreived by this decision, the applicant made several representations to the authorities to confer the next higher pay scale of Rs. 12000-16500 to the post of Deputy Director and, on receiving no relief, he approached this Tribunal through OA No. 2167/2003, which was decided on 04.09.2003 with a direction to the respondent No. 2 to consider the representation of the applicant and pass a speaking order within six months. Upon respondents failing to implement the said order of this Tribunal, the applicant filed a Contempt Petition No. 320/2004. On receipt of the notice in this Contempt Petition, the respondents issued an order dated 21.09.2004, which inter alia read as follows:
Since the removal of anomaly was neither in the competency of respondent No. 2 nor in the competency of respondent No. 3, as well the matter has already been referred to Govt. of India, Ministry of Finance vide letter dated 9.8.04 and on their advice to ministry of Social Justice and Empowerment, the Nodal Ministry of Department of Social welfare vide letter dated 30.08.04 the respondents have taken necessary action to redress the grievance of Sh. R.K. Meena, the applicant, which could be taken at our level. Pending decision/views of the Govt. of India on the proposal sent by the respondents, this interim speaking order is hereby passed for apprising the Hon’ble tribunal the position of the respondents.
The Contempt Petition was thereupon disposed of, by order dated 13.10.2004, as withdrawn with liberty to the applicant to redress his grievances in accordance with law. The applicant then filed MA No. 2612/2004 for issuing an appropriate direction to the Government of India, Ministry of Finance, which was disposed of vide order dated 03.01.2005 with the following directions:
In that view of the matter, it would be appropriate and accordingly we direct that respondent No. 2 in consultation with respondent No. 3 should take the appropriate decision and pass a suitable order in accordance with law. It should preferably be done within four months from today. MA is disposed of.
3. Thereupon the Government of India, vide letter dated 16.09.2005, returned the proposal to the Government of NCT of Delhi for upgradation of the pay scale with the following observations:
I am directed to refer to Govt. of NCT of Delhi’s letter No. F.12(I)/97-DSW/Estt/2004/27750 dated 31.8.05 on the above subject and state that this ministry has not received the govt. of Delhi’s original letter dated 30.8.2004 addressed to this Ministry. A copy of which has now been received along with the letter dated 31.8.05. This Ministry is not at all concerned with the matter relating to the upgradation of pay scale of the officials of NCT of Delhi.
4. The applicant then filed another Contempt Petition No. 440/2005, on receipt of notice of which, respondent No. 2 passed the impugned order dated 17.03.2006. The applicant has since filed MA for withdrawing the Contempt Petition. Hence, the present OA.
5. The applicant has superannuated on 31.01.2004.
6. The applicant has stated that even though the post of Deputy Director, according to the Recruitment Rules, is a promotional post for which the feeder cadre is that of Senior Superintendent, on account of merger of the pay scales of the two posts, in the context of the recommendations of the Fifth Central Pay Commission, both the posts carry the same pay scale of Rs. 10000-15200, which is totally illegal and cannot sustain in law. It has been further stated that in a similar situation in the Education Department of Government of NCT of Delhi, when similar anomalies arose they rectified and the incumbents therein were given the benefit of higher promotional post. In the Education department the Deputy Directors too were in the pay scale of Rs. 3000-5000 before 01.01.1996, the feeder post being in the scale of Rs. 3000-4500. Though the Fifth Pay Commission in its recommendations recommended the merger of the pay scales of Rs. 3000-5000 and Rs. 3000-4500 into a new scale of Rs. 10000-15200 but in those cases, where the above pay scales were in relation to feeder and promotional posts, a scale of Rs. 12000-16500 were granted so as to remove the anomaly that had cropped up as a result of the recommendation. In such a situation, the post of Deputy Director in the Education Department, which was earlier in the scale of Rs. 3000-5000, was granted the pay scale of Rs. 12000-16500 to put it on a higher level than the pay scale of its feeder post. On the same analogy, in the case of the applicant too the respondents should have upgraded the pay scale of the post of Deputy Director, which the applicant was holding, from Rs. 10000-15200 to Rs. 12000-16500, since in his case too the feeder post of Senior Superintendent carries the same pay scale of Rs. 10000-15200, which is totally illegal and discriminatory and violative the Fundamental Rights of the applicant under Article 14 and 16 of the Constitution of India.
7. It has been further averred that the respondents had constituted a Committee to look into the anomaly in the pay scale that had resulted on account of the merger of the two pay scale in the applicant’s Department, and that Committee too recommended stepping up of the pay scale of Deputy Director to Rs. 12000-16500. This recommendation of the Committee has not been implemented.
8. The applicant has again stated that being a Group `A’ officer, he is not entitled to the benefit of ACP Scheme and, on the other hand, with the merger of two pay scales, the applicant has been deprived of all promotional avenues.
9. The respondents have stated that mere similarity of designations never confers similar pay scale or similar status to any two posts, unless both these posts involve similar nature of duties and responsibilities. The post of Deputy Director in the Education Department is carrying higher responsibilities and the same have been upgraded accordingly. In the Education Department the Deputy Directors are responsible for running of all the schools within their jurisdiction whereas in the Social Welfare Department the role and functions of a Deputy Director are not defined and he continues to do the same work that he would be doing as a Senior Superintendent. It is for the Department to certify and convince itself that the post of Deputy Director in that Department is functionally similar to some post outside the Department and this inherent right of the Department cannot be usurped by individual officers. In the Department, there are more posts of Deputy Director, which carry the pay scale of Rs. 6500-200-10500; and if the contention of the applicants is accepted then all these Deputy Directors would claim parity with the other Deputy Directors within the Department, which would be difficult to refuse and this would create a hierarchical anarchy in the Department. The main object of the merger of pay scales of the Fifth Central Pay Commission was to reduce the number of levels in the system, rather then creating more levels and thereby creating more anomalies. Again, at present there are two posts of Joint Directors in the Social Welfare Department, which are in the pay scale of Rs. 12000-16500. The upgradation of six posts of Deputy Directors (Tech.) to the scale of Rs. 12000-16500 would result in total of eight posts in that scale. This would upset the balance at the top between the Joint Directors and the Deputy Directors. Thus, instead of removing one anomaly more would have been created. The Anomaly Committee erred on this account and suggested a very simplistic remedy, which was at variance with the policy of the Central Government as well as the spirit behind the recommendations of the Fifth Central Pay Commission.
10. The Anomaly Committee, which was constituted under the Chairmanship of Shri P.P. Dhal, Deputy Director (ad hoc) did not examine the whole issue in totality. As a matter of fact, the Chairman of this Committee was himself one of the representationists and, therefore, it was technically inappropriate to make him sit in judgment on his own representation. The Anomaly Committee should have been formed at a much senior level like the Additional Director or at a level which itself was not affected by this perceived anomaly.
11. It has been further averred that keeping in view the above facts and the administrative incongruence that would result in case the pay scale of Deputy Director is upgraded, the Department is already considering the merger of the posts of Senior Superintendent and Deputy Director (Tech.) which now carry the same pay scale. A proposal to this effect has already been moved for approval of the competent authority. The Department had adopted a different policy in the case of the anomaly, which resulted at the lower level i.e. the Social Welfare Officer Grade-II, Supervisor Grade-I and the Deputy Superintendent, Assistant Superintendent, P.O. and ACDPOs, which was resolved by the Department by going for the merger of all these posts. Before the Fifth Central Pay Commission the posts of Deputy Superintendent, Assistant Superintendent, P.O. and ACDPOs were in the pay scale of Rs. 1640-2900 and the feeder posts i.e. W.O. Grade-II/Supervisor Grade-I were in the pay scale of Rs. 1400-2600/1400-2300 (pre-revised). After the Fifth Central Pay Commission all the feeder posts were upgraded to Rs. 5500-9000, whereas the Deputy Superintendent, Assistant Superintendent, P.O., ACDPOs were given the normal replacement scale of Rs. 5500-9000. Thus the feeder and the promotional posts were placed in the common scale of Rs. 5500-9000 and this anomaly, which is similar to the present case, was created. The Department of Social Welfare took up the matter with the Government of India for upgradation of the posts of Deputy Superintendent from the pay scale of Rs. 5500-9000 to Rs. 6500-10500 to remove this anomaly, but the Government of India did not accept this proposal and, vide their U.O. dated 11.05.2001, advised the Department to look into the feasibility of merging these posts and suitably restructuring the cadre, and the Department of Social Welfare acted accordingly. In the present case too a uniform and coherent policy will have to be followed, since different yardsticks cannot be applied at different levels within the same Department. This is the basic justification behind the decision of the Department to go in for the merger of the posts of Senior Superintendent and Deputy Director (Tech.).
12. In has been again stated that in the case of the applicant it is observed that he was promoted as Deputy Director (Tech.) on ad hoc basis in the year 1992. According to the rules pertaining to the ad hoc appointment/promotion it is clearly laid down that in case there is any compulsion of extending any ad hoc appointment or promotion beyond one year the approval of the Departement of Personnel & Training has to be sought and that too at least two months in advance before the expiry of the one year period. If the approval of the Department of Personnel & Training to the continuance of the ad hoc appointment beyond one year is not received before the expiry of the one year period the ad hoc appointment or promotion would automatically cease on the expiry of one year term. According to O.M. Nos. 39021/5/83-Estt(B) and 39021/5/83-Estt(B) dated 09.07.1985 and 05.02.1986 respectively, information about appointment made against Group `A’ and `B’ posts on purely ad hoc basis in terms of Rule 4 of UPSC, 1958, are required to be reported to the Commission in the prescribed format on monthly/half-yearly basis. This is in consonance with the regulatory role assigned to the UPSC. In the case of the ad hoc appointment of the applicant, however, both the above conditions had not been followed and he continued on ad hoc appointment till his retirement on 31.01.2004. Hence, technically, as per rules, the applicant ceased to continue to be a Deputy Director (Tech.) beyond the period of one year from the date of his initial ad hoc appointment. Now since he has already retired, no financial benefit would accrue to him from any change in the pay scale of the post of Deputy Director (Tech.). Even otherwise, after the recommendation of the Fifth Central Pay Commission, the pay scale of the Senior Superintendent and the Deputy Director became the same and since the applicant was never promoted to the post of Deputy Director on regular basis before the merger of the two pay scales, he would be deemed to have retired as a Senior Superintendent and, therefore, cannot claim a higher pay scale for the post of Deputy Director.
13. The respondents have pointed out that they are of the view that unnecessary stagnation at any level should be avoided and there should be adequate promotional avenues available at every level. It is precisely for this reason that the contention of the applicant for grant of a higher scale is incorrect. Provision of adequate promotional avenues, therefore, would entail an appropriate restructuring of the entire cadre in question. Merely granting of higher pay scale at any one level would introduce more instability in the organization. In fact, the Department had tried to provide some relief to the Deputy Directors by giving them a special pay of Rs. 500/- but that proposal was not encouraged. There is no question of demoting the applicant from the post of Deputy Director to that of Senior Superintendent, because, as for as he is concerned, the pay scale and the pecuniary benefits are still the same and have not been changed to the disadvantage to the applicant in any manner.
14. In his rejoinder, apart from reiterating the arguments advanced by the applicant in his OA, he has further stated that the Fifth Central Pay Commission, while merging the pay scales of Rs. 3000-4500 and Rs. 3000-5000, also recommended the pay scale of Rs. 3700-5000 to all the categories of persons who were in the pay scale of Rs. 3000-5000 as a necessary rationalization. In this context, he has cited the examples of Central Cattle Breading Farms, Department of Fertilizers, Armed Forces (History Division), Passport Officers, Rajkumari Amrit Kaur College of Nursing, Registrar General of India and Films Division.
15. He has further stated that, as per para 1.35 of the Report, all the Ministries/Departments of the Central Government were required to send memoranda on the subjects covered by the terms of reference of the Fifth Central Pay Commission. The respondents, however, failed to send the information of creation of six new posts of Deputy Director (Tech.) in the pay scale of Rs. 3000-5000 and hence the Fifth Central Pay Commission did not make any specific recommendation in respect of the post of Deputy Director (Tech.), which were created only in the year 1991.
16. We have heard the learned Counsel for the parties and perused the material on record.
17. From the perusal of the records, we find that the respondents have tried their best to get the pay scale of the applicant’s post upgraded, but for some obvious reasons they have not succeeded. In the applicant’s organization, the hierarchy of post comprises of Senior Superintendent, Deputy Director and Joint Director. On account of merger of pay scales of Rs. 3000-4500 and Rs. 3000-5000, an anomalous situation has, no doubt, arisen, insofar as the pay scale of the feeder grade post as well as the promotion post is the same. Revising the pay scale of the post of Deputy Director from Rs. 10000-15200 to Rs. 12000-16500 will create another anomaly, insofar as the pay scale of the post of Deputy Director and Joint Director will then be the same. The solution to the problem created on account of the implementation of the recommendations of the Fifth Central Pay Commission does not lie in revising the pay scale of the Deputy Director in isolation. Having realized this, as pointed out by the respondents, they are in the process of restructuring the cadre in the Department of Social Welfare. It has been inter alia stated that the posts of Senior Superintendent and the Deputy Director may have to be merged in this restructuring exercise.
18. As regards the example of the Department of Education cited by the applicant, we find that, in the first instance, that it is much larger cadre with several hierarchical positions. In that cadre, even prior to the Fifth Central Pay Commission, there were two posts with the same pay scale, namely, Deputy Director of Education and Joint Director of Education. However, the Joint Director of Education was entitled to a special pay of Rs. 300/- per month in addition to his pay. It is also true that the pay scales of both these officers have been revised to Rs. 3700-5000 as per the recommendations of the Fifth Central Pay Commission. The respondents have, however, pointed out that the post of Deputy Director in the Education Department carries much higher duties and responsibilities as compared to Deputy Director in Social Welfare Department.
19. As argued by the respondents, the grant of relief prayed for by the applicant, will not in any way benefit him because at the time of his retirement the applicant was functioning as Deputy Director (Tech.) only on ad hoc basis (that too without requisite approvals) and, therefore, as per rules and instructions in force he is deemed to have retired as Senior Superintendent.
20. It is also relevant to mention that the grievance of the applicant that on account of merger of two pay scales, he has been demoted, is only notional and just a matter of perception. Having been promoted as Deputy Director, albeit on ad hoc basis, he was drawing the higher pay scale of Rs. 10000-15200 till the time of his retirement. There was no reduction in his pay scale or pay & allowances as a consequence of the merger of the two pay scales. There was no reduction in his status either. The only thing that happened as a consequence of this merger was that the persons functioning in the cadre of the Senior Superintendent were granted the equivalent pay scale and hence applicant’s juniors became his equals in the matter of pay scale. Perceptions, no doubt, can sometimes be more damaging than the reality. It is actually these Senior Superintendents, who would not get any higher pay scales upon their promotion as Deputy Director, unless the restructuring exercise being undertaken by the respondents is carried to its logical conclusion.
21. Taking the totality of facts and circumstances into consideration, we do not find much merit in the averments of the applicant vis-vis his personal grievance. However, we are sure that in the course of the restructuring exercise being undertaken by the respondents, they will keep in view the fact that Deputy Directors, not only in their other organizations, namely, the Department of Education, but also in several other organizations of the Central Government, as per the examples cited by the applicant in his rejoinder, have been granted the higher pre-revised pay scale of Rs. 3700-5000.
22. In the result, the OA is accordingly disposed of with the observations mentioned above. There will be no order as to costs.
