'Additional Charge Of Deputy Commissioner Does Not Entitle Additional Deputy Commissioner To Pay Scale Of DC', Delhi High Court Reiterates

Background

The Petitioner was promoted as Additional Deputy Commissioner w.e.f. 4 September 2002. On 12 April 2007, an order was passed, assigning the Petitioner the 'Current Duty Charge' of the post of Dy. Commissioner. However, his pay-scale was not changed. He continued to work as the DC and was paid Rs.15600-39400.

The Petitioner claimed that he was entitled to the pay of the post of DC since he was assigned the 'Current Duty Charge' of the same.

The Departmental Promotion Committee found the Petitioner fit for promotion as AC and on 7 July 2015, he was promoted in the panel year 1996-97. He also claimed that while his pay scale remained unchanged, an officer junior to him was given the pay scale of Rs. 37400- 67000.

With these grievances, he approached the Central Administrative Tribunal seeking a pay-scale of ₹ 37400- 67000 w.e.f. 15 September 2006. The Petitioner specifically pleaded in the body of the Application that he was entitled to the pay-scale of DC.

The Tribunal referred the matter to a larger Bench to determine as to whether a person given the 'current charge' of a higher post was entitled to the pay of such post.

While deciding the applications along with a batch of several other applications, the Tribunal passed an Order on 24 April 2019. The Tribunal in its Order held the batch of applications to be based on similar facts, stating that each applicant held a particular substantive post, but their employers had assigned to them additional charges of higher posts. The Tribunal observed that in certain cases, there was a slight difference in the arrangement.

Relying on several judgments including Government of NCT of Delhi & others v S. C. Gupta, Selvaraj v Lt. Governor, Port Blair & others, and Judhistir Mohanty v State of Orissa & others, the Tribunal held that an officer who held a regular position but was temporarily in charge of a higher position would not be entitled to the salary of the higher position. It was further held that if special allowances were included in the higher position, the employee would receive those allowances if they were in charge for more than three months.

Aggrieved by the decision, the Petitioner approached the High Court.

Contentions of the Petitioner:

• The Counsel for the Petitioner referred to the decision in North DMC v Anil Dalal, wherein it was held that 'in addition to the ordinary pay, the employee shall be allowed the pay admissible to him if he is appointed to officiate in the higher post.'
• Moreover, it was submitted that the Tribunal had applied FR 49 (v) instead of FR 49 (i) to the case of the Petitioner, emphasizing that there was a distinction between the two. As per the Counsel, if the additional charge was that of a higher post, the case would be covered by FR 49 (i) and not by FR 49 (v).
• Stating further that the latter would apply if only the additional charge was that of a post 'equal or lower' in status, the Counsel argued that the Tribunal had applied FR 49 (v) which as per the Counsel was inapplicable in the Petitioner's case.
• To substantiate the contentions made, the Counsel also produced several office orders as per which the Petitioner had discharged the duties of DC.
• The Counsel also cited several other judgments including Judhistir Mohanty v State of Orissa & others and Government of NCT of Delhi & others v S. C. Gupta & others.

Contentions of the Respondent:

• The Counsel for the Respondent held that the Petitioner was only holding the current duty charge and thus the claims of being granted the pay scale of the Post of DC to the Petitioner could not be justified.
• It was contended that the Order dated 12 April 2007 made it clear that the petitioner would not be entitled to the pay of DC and therefore, there was no reason for the Court to interfere in the decision of the Tribunal.

Findings of the Court:

Criticizing the approach of the Tribunal in deciding as to whether an officer being assigned a charge of a higher post was entitled to the pay of such post, the Court held that the Tribunal should have considered the individual facts of the applications before it. Citing the facts in one of the applications before the Tribunal, the Court held that there existed 'no commonality' between the mentioned application and the Petitioner's application.

Concerning whether the case was covered by FR 49 (i) or FR 49 (v), defining “higher post” and “another post” respectively, the Court rejected the contention that FR 49 (v) would apply only in cases where the additional charge was that of a post which was 'equal or lower in status' in relation to the post held by the Officer. Explaining the observation made, the Court held that the word “another” in FR 49 (v) would have to be interpreted in terms of its ordinary meaning and therefore it would mean 'any other post' irrespective of the status.

Perusing the order dated 12 April 2007, the Court held that the current duty charge of the post of DC was assigned to the Petitioner by way of a 'stop gap arrangement' and the Petitioner would not be entitled to claim “any other service benefits” arising from the Post of DC. Moreover, as per the Order, the services of the Petitioner rendered while holding the current duty charge would not be considered as officiating service in the higher grade.

While also perusing the Office Orders produced before the Court by the Counsel for the Petitioner, the Court stated that none of the documents could extend substantive legal status of DC to the Petitioner.

Referring further to Ramakant Shripad Sinai Advalpalkar v. UOI, the Court reiterated that entrustment of an “in charge” arrangement did not amount to recognition of any rights, equities or expectations which could be founded on the arrangement.

The Court observed that as per the Order dated 12 April 2007, nothing determined the requirement of the Petitioner to discharge full duties of the Post of DC and therefore the Petitioner's entitlement to the pay-scale of DC could not be proven.

Making these observations, the Court ratified the decision of the Tribunal, dismissing the Petition. However, the Court remanded the matter to the Tribunal for a fresh consideration concerning the claim of the Petitioner to be entitled to the pay scale of DC from 15 September 2006, which was granted to the Petitioner's junior.

Case Title: SH. R.S. MEENA versus NORTH DELHI MUNICIPAL CORPORATION AND ORS.

Counsel for the Petitioner: Mr. Rajat Aneja, Ms. Alka Dwivedi and Mr. Aditya Sharma, Advocates

Counsel for the Respondents: Ms. Avnish Ahlawat, Standing Counsel

Click Here To Download Order/Judgement