ORDER
L.K. Joshi, Vice Chairman (A)
1. The following two orders are being assailed in this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985 : (i) order dated 12.02.2007 of Home (Police II) Department of the Government of NCT of Delhi (GNCTD) rejecting the applicant’s representation dated 22.08.2006 (Annexure-1) and (ii) the order dated 10.06.2005 by which the applicant has been sanctioned pay scale of the post of Director of Prosecution only from 17.05.2000 to 17.05.2001 (Annexure-IA).
2. The applicant retired on superannuation on 30.04.2004 from the post of Director of Prosecution, GNCTD. He had joined the prosecution branch of GNCTD on 15.03.1967 as Prosecuting Sub-Inspector and in due course of time rose to become Chief Prosecutor in the scale of Rs. 2775-4000 (pre-revised) with effect from 17.05.1995 on regular basis. The next higher post in the cadre was Director of Prosecution. When the incumbent Director retired on 30.11.1995, the applicant, being the senior most Chief Prosecutor was ordered vide order dated 11.12.1995 to hold the charge of the post of Director Prosecution till and alternative arrangement is made for the appointment of Director Prosecution on regular basis. By an order dated 18.05.2001, the applicant was appointed as Acting Director of Prosecution in the pay scale of Rs. 12,000-16,500 in the Directorate of Prosecution of GNCTD for a period of 6 months or till such time the regular arrangement was made, whichever was earlier. He was also given ex-post facto approval for appointment as Director Prosecution from 17.05.2000 to 17.05.2001 on ad hoc basis. The applicant continued to work as Director Prosecution till his retirement. He was given the salary admissible to Director Prosecution from 18.05.2001 onwards.
3. The applicant made representations on 04.07,2005, 16.08.2005 and 22.08.2006 to the concerned authority for payment of salary admissible to Director Prosecution from 11.12.1995 to 16.05.2000. These representations were rejected by the impugned order dated 18.02.2007.
4 The learned Counsel for the applicant would argue that the applicant was appointed Director of Prosecution by an Order dated 11.12.1995. The order dated 11.12.1995 is quoted below:
No.F.11/40/94-HP/Est
Govt. of N.C.T. of Delhi
Home Police (Estt.) Deptt.
Dated the…. December, 1995
ORDER
Consequent upon the retirement of Shri P.C. Mishra, Director of Prosecution, on superannuation on 30.11.1995, Shri S.K. Dutta, the senior most Chief Prosecutor will hold the current charge of the post of Director of Prosecution till an alternative arrangement is made for the appointment of Director of Prosecution on regular basis. However, the aforesaid appointment of Shri S.K. Dutta, shall be subject to the out come of the case O.A. No. 356/95-D.P. W.A. Shri S.K. Dutta shall continue to draw his salary as Chief Prosecutor.
Sd/-
(M.U. Siddiqui)
Deputy Secetary (Home)
It is contended that the applicant continued to work in this post till his retirement on superannuation on 30.04.2004. The learned Counsel would contend that after appointment as Director Prosecution on 11.12.1995, the applicant performed all statutory and nonstatutory duties of Director of Prosecution. He would argue that under FR 49 (iii), the applicant is eligible for pay of the higher post. FR 49 (iii) is quoted hereunder:
F.R. 49. The Central Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under the Government. In such cases, his pay is regulated as follows:
(i).
(ii).
(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 higher post, if he holds charge of more than two posts, in addition to ten per cent 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.
He would further argue that although by order dated 11.12.1995, the applicant has been given current charge of Director (Prosecution), yet the duties have not been defined in the order and the applicant has performed all the regular duties of the higher post, including statutory duties. In such circumstances, as per the guidelines prescribed under DOP&T’s O.M. No. 4/2/89-Estt. (Pay-II), dated 11.08.1989, the officer should be allowed the additional remuneration as indicated in FR49. The relevant guideline is produced below:
(3) Guidelines on additional charge of the current duties of another post under FR 49–As per FR 49(iv), no additional pay is admissible to a Government servant who is appointed to hold current charge of the routine duties of another post irrespective of the duration of the additional charge. In practice it is observed that in a number of cases, officers are appointed to hold additional charge of current duties of another post but the duties are not defined in the order and therefore, the officer performs all the functions of the other post including even some statutory function. However, no additional remuneration is paid to him in view of the specific language of the order of his appointment. In certain other cases, an officer is asked to hold additional charge of another post (which implies full charge of the other post), but he is not formally appointed to that post and, therefore, no additional remuneration is paid to him under FR49. These have led to representations and litigations.
2. With a view to avoiding recurrence of such situations, the following guidelines may be followed while considering the question of entrusting additional charge of another post to an officer:
(i) When an officer is required to discharge all the duties of the other post including the statutory functions, e.g., exercise of power derived from Acts of Parliament such as Income Tax Act or the Rules, Regulation, By-Laws made under various Articles of Constitution such as FRs, CCS (CCA) Rules, CSRs., DFPRs, etc., then steps should be taken to process the case for getting the approval of the Competent Authority and formal orders appointing the officer to the additional post should be issued. On appointment, the officer should be allowed the additional remuneration as indicated in FR 49.
5. Reliance has been placed, on behalf of applicant, on Selvaraj v. Lt. Governor of Island, Port Blair and Ors. and Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Ors. .
6. In Selvaraj (supra), he was a school teacher, who was transferred to Directorate of Education (Scouts Section) to look after the duties of Secretary (Scouts). He was not paid the salary attached to the post of Secretary (Scouts). It is noted that he was not regularly promoted to that post of Secretary (Scouts) and worked only on officiating capacity. His regular pay scale as PST was Rs. 1200-2040 whereas the pay scale of Secretary (Scouts) was Rs. 1640-2900. It was also stated by the authorities that the petitioner before the Supreme Court was given the aforesaid post because he was keen to stay in Port Blair and would have had to go outside because the post of Primary School Teacher was not available at Port Blair. The Supreme Court held that “However, in our view these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the above order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the respondents 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 regular promotee. This limited relief is required to be given to the appellant only on this ground.
4…the respondents will be called upon to make available to the appellant the difference of salary in the time scale of 1640-2900 during the period from 29.1.1992 to 19.9.1995 during which time the appellant worked. It is made clear that the payment of aforesaid difference amount of salary shall not be treated to amount to any promotion given to the appellant on the said post. It is only on the ground that he had actually worked, as such, this relief is being given to him.
(Emphasis added)
7. In Secretary-cum-Chief Engineer, Chandigarh (supra), the respondent Hari Om Sharma was appointed Junior Engineer-I as a stop-gap arrangement. The Supreme Court has held that “The Tribunal was justified in ordering payment of salary to the respondent for the post of Junior Engineer-I with effect from 1990 when he was made to work on the post, It is true that the respondent to begin with, was promoted in stop-gap arrangement as Junior Engineer-I but that by itself should not make any difference to his claim of salary for the post. If a person is put to officiate on higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer-I since 1990 and promotion for such a long period of time cannot be treated to be stop gap arrangement. It has also been noticed in this case that the respondent had only current duty charge of the post. It was also contended by the appellant that “when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to the post. The argument, to say the least, is preposterous An agreement that if a person is promoted to the higher post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy”.
8. The learned Counsel for the respondents has, however, advanced the arguments that the applicant was not eligible for promotion to the post of Director (Prosecution) because five years regular service as Chief Prosecutor was the minimum requirement for promotion to this post. It is argued, therefore, that since he is ineligible for promotion to the post of Director, having been promoted Chief Prosecutor only a few months back, he could not be given the higher pay scale of Director’s post. He would argue that the applicant became eligible for the Director’s post from 17.05.2000, he was given the scale. The other argument advanced is that the applicant was appointed only on current charge and would, therefore, not be eligible for higher salary.
9. Respondents’ harping on the fact that the applicant was only given current charge by 11.12.1995 and continued to the post on current charge for five years for denying him salary attached to the higher post would not cut much ice in view of the ratio laid down by the Supreme Court in Selvaraj (supra). It is also to be noted that the applicant has worked in this post continuously upto his retirement on superannuation, without any break. In view of the judicial precedents cited in Paragraphs 5 and 6 above, the applicant would be eligible for the scale of Director (Prosecution)’s pay from 11.12.1995. Since he has worked continuously in this post from 11.12.1995 upto his retirement, he would also draw regular increments in this scale.
10. As a result the O.A. succeeds. We direct that the applicant should be granted the pay scale of the post of Director (Prosecution) from 11.12.1995 and he would also be eligible for regular increments in this scale. He will be eligible for all consequential benefits. The above directions should be complied with within three months from the date of receipt of a certified copy of this order. No costs.