Full Judgment Text
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
% Judgment Dated: 3 August, 2016
+ W.P.(C) 4675/2015
O.P. SROHE ..... Petitioner
Through: Mr.Asish Nischal, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr.Kirtiman Singh, CGSC with
Mr.Waize Ali Noor, Mr.Pranav Agarwal
and Mr.Prateek Dhanda, Advocates for
UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J ( ORAL)
1. The petitioner is aggrieved by the order passed by the Central
nd
Administrative Tribunal ( hereinafter the ‘Tribunal’ ) dated 2 July, 2014 in O.A.
No. 1728/2012 whereby his application seeking additional remuneration based
upon the additional charge of post held by him has been dismissed.
2. The brief facts which are required to be noticed for disposal of this writ
petition are that in the year 2007, the petitioner was working as „Deputy
Secretary‟ in the Ministry of Women and Child Development, Government of
India ( hereinafter the ‘WCD’ ). While working in the aforesaid post, the
petitioner was given the additional charge of the post of „Secretary‟ in the
Central Adoption Resource Authority ( hereinafter the ‘CARA’ ) with effect from
nd th
22 November, 2007 to 8 July, 2009. The petitioner had claimed before the
Tribunal that the said charge was given against his wishes. However, he
W.P.(C) 4675/2015 Page 1 of 4
continued to perform his dual duties, both as Deputy Secretary in WCD and
Secretary in CARA.
3. The original post of the petitioner was in Grade Pay of Rs. 7600 with a
pay scale of Rs. 15,600-39,100 in PB-3; while the pay of Secretary, CARA at
that time was in Grade Pay of Rs. 8700 with a pay scale of 37,400-67,000 in PB-
th
4. Aggrieved by the same, on 4 March, 2009, the petitioner made a
representation seeking additional remuneration for holding a dual charge as per
the provisions of FR 49(iii). The WCD rejected the representation made by the
petitioner on the ground that the post held by him as additional charge was the
post in an autonomous body and therefore, he was not eligible for additional
remuneration for holding dual charge under FR 49.
5. The Tribunal, while relying on FR 49, rejected the claim of the petitioner
on two grounds, i.e. as approval was not sought from the competent authority
and as the additional post was not “under the government”, which has led to the
filing of the present writ petition.
6. Learned counsel for the petitioner submits that since additional charge
was forced upon him, he would be entitled for extra remuneration. He also relies
upon FR 49, more particularly clause (iii), to canvass his argument that for the
first 3 months no permission was required from the competent authority, i.e. the
Department of Personnel and Training ( hereinafter the ‘DoPT’ ) and only after 3
months permission was required from the DoPT. He further submits that the
permission has been illegally withheld and thus he should be paid the difference
of amount.
7. Learned counsels appearing for the respondents, while placing strong
reliance on FR 49, contend that the benefit would accrue to the petitioner only if
he was working under the Government itself, whereas CARA is an autonomous
body and thus he cannot derive benefit of FR 49.
8. We have heard the learned counsel for the parties. Before rival
W.P.(C) 4675/2015 Page 2 of 4
submissions advanced by the counsels can be considered, we deem it
appropriate to reproduce the relevant portion of FR 49, which reads as under:
“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:-
…
(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 highest post, if he holds charge of more
than two posts, in addition to ten percent 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; ”
(Emphasis Supplied)
9. A careful reading of the opening words of FR 49 reveals that FR 49
would apply as a temporary measure for a person, who is holding a post in a
substantive or officiating capacity, is appointed as to officiate in one or more
other independent posts under the Government. No doubt, under clause (iii) of
FR 49, for the first 3 months no permission from DoPT is required and if the
person exceeds to officiate on the temporary post beyond three months,
permission from DoPT would be required. We also take note of an OM bearing
th
No. 4/4/99-Estt. (Pay-II) dated 28 January, 2000 issued by the DoPT, wherein
it was clarified that FR 49 does not apply to additional charge is given in posts
of Autonomous Bodies. The relevant part of the same reads as:
“ 2. Instances have come to notice of this department when the
Government servants have been given full charge of the post outside
the Government, viz., Public Sector Undertakings, Autonomous Bodies,
W.P.(C) 4675/2015 Page 3 of 4
Registered Societies, etc. The question of entitlement to additional pay
under FR-49 to the Government servants formally appointed with the
approval of Competent Authority to hold the full additional charge of
the posts in the PSUs, Autonomous Bodies, etc., has been considered in
this Department in consultation with the Ministry of Finance and it is
clarified that neither such appointments nor the additional pay for
holding additional charge in such cases is permissible under FR-49. ”
(Emphasis Supplied)
10. There is no dispute as to the fact that CARA was an autonomous body at
the relevant time and presently, has become a statutory body under the
provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
11. In our view, the Tribunal has rightly held that FR 49 would not be
applicable to the case of the petitioner, as sub-clause (iii) sought to be relied
upon by the counsel for the petitioner would also not apply to the facts of the
present case. The additional charge of the post given to the petitioner was not
under the government, but under a then autonomous body. Resultantly, we find
no infirmity in the order passed by the Tribunal. Hence, there is no ground to
interfere in the proceedings under Article 226 of the Constitution of India.
12. The writ petition is accordingly dismissed.
G.S.SISTANI
(JUDGE)
I.S. MEHTA
(JUDGE)
AUGUST 03, 2016
‘dc’
W.P.(C) 4675/2015 Page 4 of 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
% Judgment Dated: 3 August, 2016
+ W.P.(C) 4675/2015
O.P. SROHE ..... Petitioner
Through: Mr.Asish Nischal, Advocate.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr.Kirtiman Singh, CGSC with
Mr.Waize Ali Noor, Mr.Pranav Agarwal
and Mr.Prateek Dhanda, Advocates for
UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J ( ORAL)
1. The petitioner is aggrieved by the order passed by the Central
nd
Administrative Tribunal ( hereinafter the ‘Tribunal’ ) dated 2 July, 2014 in O.A.
No. 1728/2012 whereby his application seeking additional remuneration based
upon the additional charge of post held by him has been dismissed.
2. The brief facts which are required to be noticed for disposal of this writ
petition are that in the year 2007, the petitioner was working as „Deputy
Secretary‟ in the Ministry of Women and Child Development, Government of
India ( hereinafter the ‘WCD’ ). While working in the aforesaid post, the
petitioner was given the additional charge of the post of „Secretary‟ in the
Central Adoption Resource Authority ( hereinafter the ‘CARA’ ) with effect from
nd th
22 November, 2007 to 8 July, 2009. The petitioner had claimed before the
Tribunal that the said charge was given against his wishes. However, he
W.P.(C) 4675/2015 Page 1 of 4
continued to perform his dual duties, both as Deputy Secretary in WCD and
Secretary in CARA.
3. The original post of the petitioner was in Grade Pay of Rs. 7600 with a
pay scale of Rs. 15,600-39,100 in PB-3; while the pay of Secretary, CARA at
that time was in Grade Pay of Rs. 8700 with a pay scale of 37,400-67,000 in PB-
th
4. Aggrieved by the same, on 4 March, 2009, the petitioner made a
representation seeking additional remuneration for holding a dual charge as per
the provisions of FR 49(iii). The WCD rejected the representation made by the
petitioner on the ground that the post held by him as additional charge was the
post in an autonomous body and therefore, he was not eligible for additional
remuneration for holding dual charge under FR 49.
5. The Tribunal, while relying on FR 49, rejected the claim of the petitioner
on two grounds, i.e. as approval was not sought from the competent authority
and as the additional post was not “under the government”, which has led to the
filing of the present writ petition.
6. Learned counsel for the petitioner submits that since additional charge
was forced upon him, he would be entitled for extra remuneration. He also relies
upon FR 49, more particularly clause (iii), to canvass his argument that for the
first 3 months no permission was required from the competent authority, i.e. the
Department of Personnel and Training ( hereinafter the ‘DoPT’ ) and only after 3
months permission was required from the DoPT. He further submits that the
permission has been illegally withheld and thus he should be paid the difference
of amount.
7. Learned counsels appearing for the respondents, while placing strong
reliance on FR 49, contend that the benefit would accrue to the petitioner only if
he was working under the Government itself, whereas CARA is an autonomous
body and thus he cannot derive benefit of FR 49.
8. We have heard the learned counsel for the parties. Before rival
W.P.(C) 4675/2015 Page 2 of 4
submissions advanced by the counsels can be considered, we deem it
appropriate to reproduce the relevant portion of FR 49, which reads as under:
“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:-
…
(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 highest post, if he holds charge of more
than two posts, in addition to ten percent 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; ”
(Emphasis Supplied)
9. A careful reading of the opening words of FR 49 reveals that FR 49
would apply as a temporary measure for a person, who is holding a post in a
substantive or officiating capacity, is appointed as to officiate in one or more
other independent posts under the Government. No doubt, under clause (iii) of
FR 49, for the first 3 months no permission from DoPT is required and if the
person exceeds to officiate on the temporary post beyond three months,
permission from DoPT would be required. We also take note of an OM bearing
th
No. 4/4/99-Estt. (Pay-II) dated 28 January, 2000 issued by the DoPT, wherein
it was clarified that FR 49 does not apply to additional charge is given in posts
of Autonomous Bodies. The relevant part of the same reads as:
“ 2. Instances have come to notice of this department when the
Government servants have been given full charge of the post outside
the Government, viz., Public Sector Undertakings, Autonomous Bodies,
W.P.(C) 4675/2015 Page 3 of 4
Registered Societies, etc. The question of entitlement to additional pay
under FR-49 to the Government servants formally appointed with the
approval of Competent Authority to hold the full additional charge of
the posts in the PSUs, Autonomous Bodies, etc., has been considered in
this Department in consultation with the Ministry of Finance and it is
clarified that neither such appointments nor the additional pay for
holding additional charge in such cases is permissible under FR-49. ”
(Emphasis Supplied)
10. There is no dispute as to the fact that CARA was an autonomous body at
the relevant time and presently, has become a statutory body under the
provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.
11. In our view, the Tribunal has rightly held that FR 49 would not be
applicable to the case of the petitioner, as sub-clause (iii) sought to be relied
upon by the counsel for the petitioner would also not apply to the facts of the
present case. The additional charge of the post given to the petitioner was not
under the government, but under a then autonomous body. Resultantly, we find
no infirmity in the order passed by the Tribunal. Hence, there is no ground to
interfere in the proceedings under Article 226 of the Constitution of India.
12. The writ petition is accordingly dismissed.
G.S.SISTANI
(JUDGE)
I.S. MEHTA
(JUDGE)
AUGUST 03, 2016
‘dc’
W.P.(C) 4675/2015 Page 4 of 4