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2012 SCC OnLine CAT 41

Central Administrative Tribunal

Principal Bench
(BEFORE DR. VEENA CHHOTRAY, MEMBER (A) AND A.K. BHARDWAJ, MEMBER (J))

Shri Prakash Keswani, S/o Shri B.D. Keshwani, R/o B-1025, Palam
Vihar Gurgaon (Hayana) Presently posted as Assistant Engineer
(Civil), CGD No. 5, DDA, Siri Fort Complex, New Delhi …
Applicant;
(By Advocate: Shri R.A. Sharma)
Versus
1. Delhi Development Authority, Through its Vice Chairman, Vikas
Sadan (B-Block), Ist Floor, Near INA, New Delhi
2. Superintending Engineer, Civil Circle M-22, Public Works
Department, Delhi Secretariat, IP Estate, New Delhi
3. Superintending Engineer (Coordination), Civil Circle (Northern
Region) CPWD, East Block-I, Level-6 RK Puram, New Delhi-
110066 … Respondents.
(By Advocate: Shri Karunesh Tandon and Shri B.N.P. Pathak))
O.A. No. 1732/2011
Decided on January 19, 2012
ORDER
A.K. BHARDWAJ, MEMBER (J):— Applicant joined as Junior Engineer (Civil) in CPWD
in the pay scale of Rs. 425-700 w.e.f. 1.04.1977. Subsequently he applied for the post
of JE (Civil) in DDA. On being selected he was appointed on said post of JE (Civil) in
DDA in pay scale of Rs. 425-700. He joined on the said post in the forenoon of
31.12.1979. He has filed present Original Application seeking issuance of direction to
respondent No. 1, i.e. DDA to give him the benefit of past service rendered by him in
CPWD from 01.04.1977 to 31.12.1979 by protecting his last pay drawn, i.e., Rs. 455/-
, taking into account the said service for the purpose of ACP benefits and time bound
up-gradation.
During the course of arguments, learned counsel for applicant contended that the
aforementioned services rendered by the applicant in CPWD should also be taken
into account while determining his pensionary benefit on retirement. In support of
his claim for pay protection, learned counsel appearing for applicant has relied upon
decision of Hon'ble Delhi High Court in LPA no 690/2001 dated 3.03.2009 (158
(2009) DLT 39 (DB). In the said case appellants were earlier working as JE in CPWD
and after some time, on selection, they were appointed as JE in DDA. They made
representation for fixation of their pay under Fundament Rule 22 by giving them
benefit of their past service. On rejection of said representation they filed WP (C)
no. 1768/1988 before Hon'ble Delhi High Court. Hon'ble Single Judge of Hon'ble
Delhi High Court dismissed the Writ Petition (C) taking the view that appellants
were initially appointed on probation and provisions of FR 22 were not applicable to
them. Taking a view that appellants were entitled to benefit of FR 22B, Hon'ble
Division Bench disposed of the LPA.
2. Fundamental Rule 22B as noted in aforementioned judgment of the Hon'ble High
Court provides that a Government servant who is appointed as a probationer in
another service or cadre, and subsequently confirmed in that service or cadre, during
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the period of probation, shall draw pay at the minimum of the time scale or at the
probationary stage of the time scale of the service or post, as the case may be. On
confirmation in the service or post after the expiry of the period of probation, the pay
of the Government servant needs to be fixed in the time scale of the service or post in
accordance with the provisions of Rule 22 or Rule 22C, as the case may be. In terms of
proviso to FR 22B (1)(b), the pay of Government servant was not to be fixed under
Rule 22 or Rule 22C with reference to the pay he could have drawn in the previous
post, which he was holding in temporary capacity. In such situation he shall continue
to draw pay in the time scale of the service or post held by him. From the
aforementioned it is clear that the pay of Government servant was not to be fixed
under Rule 22 or Rule 22C with reference to the pay that he would have drawn in the
previous post which he was holding in temporary capacity.
In para 4.20 of the counter reply filed on behalf of respondents No. 2 & 3, it is
specifically mentioned that the applicant was working in PWD from 1.4.1977 to
30.4.1979 as JE (C) on temporary basis. Relevant excerpts of said reply read as
under:—
“It is further submitted that in reply SE PWD M-22(on behalf of respondent No.
2) replied vide his letter no. 9(4)/PWD circle M-22/DA/866 19.6.2008 wherein he
verified service rendered by applicant in PWD NCTD from 1.4.77 to 30.12.79 as JE
(Civil) on temporary basis, sent photocopy of service record of applicant and
informed that the leave encashment and GPF balance already been paid to the
applicant and that nothing more is to be paid to the employee as per rules. SE M-22
PWD informed DDA that LS/PC (with interest) cannot be paid to employee as per
rules of Govt. of India. He also asked DDA to quote the rules under which PWD (DA)
should pay LS/PC (with interest) to DDA”.
Thus in terms of proviso to FR 22B (1)(b) the pay of the applicant was not to
be fixed with reference to the pay that he would have drawn in the previous post
which he was holding in a temporary capacity, but he was to be continued to
draw the pay in the time scale of the service or post. For easy reference FR 22 B
(1) is extracted below:—
“F.R. 22-B. (1) Notwithstanding anything contained in these Rules, the
following provisions shall govern the pay of a Government servant who is
appointed as a probationer in another service or cadre, and subsequent
confirmed in that service or cadre-during the period of probation, he shall
draw pay at the minimum of the time-scale or at the probationary stage of the
time-scale of the service or post, as the case may be:
Provided that if the presumptive pay of the permanent post on which he
holds a lien or would hold a lien had his lien not been suspended, should at
any time be greater than the pay fixed under this clause, he shall draws the
presumptive pay of the permanent post;
On confirmation in the service or post after the expiry of the period of
probation, the pay of the Government servant shall be fixed in the time
scale of the service or post in accordance with the provisions of Rule 22 or
Rule 22-C, as the case may be:
Provided that the pay of Government servant shall not be so fixed
under Rule 22 or Rule 22-C with reference to the pay that he would have
drawn in the previous post which he was holding in a temporary
capacity, but he shall continue to draw the pay in the time scale of the
service or post.
(2) The provisions contained in sub-rule (1) shall apply mutatis mutandis to
cases of Government servants appointed on probation with definite
conditions against temporary posts in another service or cadre where
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recruitment to permanent posts of such service or cadre is made as

probationers, except that in such cases the fixation of pay in the manner
indicated in Clause (b) of sub-rule (1) shall be done under Rule 31 of these
Rules immediately on the expiry of the period of probation and on regular
officiating appointment to a post, either permanent or temporary, in the
service or cadre.
(3). Notwithstanding anything contained in these Rules, a Government
servant appointed as an apprentice in another service or cadre shall draw-
during the period of apprenticeship, the stipend or pay prescribed for such
period, provided that if the presumptive pay of the permanent post, other
than a tenure post, on which he holds a lien or would hold a lien had his
lien had not been suspended, should at any time be greater than the
stipend or pay fixed under this clause, he shall draws the presumptive pay
of the permanent post.
on satisfactory completion of the apprenticeship and regular
appointment to a post in the service or cadre, the pay as fixed in the time
scale of the service or post under Rule 22 or 22-C or 31, as the case may
be, of these Rules:
Provided that the pay of the Government servant shall not be so fixed
under Rule 22 or Rule 22-C with reference to the pay that he would have
drawn in the previous post which he was holding in a temporary
capacity, but he shall continue to draw the pay in the time-scale of the
service or post.”
In the case of G.R. Chawla v. DDA, Hon'ble Delhi High Court had directed that
during the probation period, the pay of the appellants was to be fixed under FR 22B
and thereafter under the normal rules. The normal rule refers to rule 22. In Circular
dated 28.01.2008, in terms of which representations were called from JEs to consider
their cases for giving them benefit of past service rendered by them in other
pensionable establishment under the Central Government/State
Government/Autonomous bodies before joining DDA for pensionary benefits as well as
for upgradation under the ACP, it was clearly provided that the past service rendered
by JEs in other pensionable establishments could be taken into account, subject to the
following conditions:
“1. That they have applied through proper channel.
2. That Technical Resignation is submitted by the officers in their parent
departments and joined the DDA in continuity of the Technical resignation &
3. That their parent departments pay the LS & PC to the DDA.”
Applicant has assailed order dated 9.03.2011 in terms of which his claim for grant
of benefit of past service was rejected on the ground that he did not fulfill conditions
No. 2 & 3 i.e. his resignation was not technical resignation and his parent department
did not pay LS & PC to DDA. The term technical resignation is defined in general
instructions issued by Department of Personnel and Training vide OM no. 11.02.1988.
In term of said definition in cases where Government servants apply for posts in the
same or other departments through proper channel and on selection, they are asked to
resign the previous posts for administrative reasons, the benefit of past service may, if
otherwise admissible under rules, be given for purposes of fixation of pay in the new
post treating the resignation as a ‘technical formality’. The said definition reads as
under:—
“When resignation is a “technical formality” - In cases where Government
servants apply for posts in the same or other departments through proper channel
and on selection, they are asked to resign the previous posts for administrative
reasons, the benefit of past service may, if otherwise admissible under rules, be
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given for purposes of fixation of pay in the new post treating the resignation as a
‘technical formality’”.
3. In the counter reply filed on behalf of respondents No. 2 and 3 it is admitted that
the applicant submitted his application through proper channel and respondents no. 2
and 3 were aware of the fact at the time of resignation that the applicant had resigned
due to selection in DDA. Para 4.24 of the said reply reads as under:
“That in reply to the contents of the corresponding para it is submitted that the
applicant submitted his resignation from CPWD/PWD on his selection in DDA as JE
(Civil) and nowhere in the record the resignation was recognized by competent
authority as “Technical Resignation”. At the same time, it is also true that the
applicant submitted his application to DDA through proper channel and respondent
no. 2 and 3 were aware of the fact at the time of resignation, that the applicant had
resigned due to his selection in DDA, the resignation may be considered as
“Technical formality”.
As per the Govt. of India decision No. 4, 5, 6 below Rule 14 of the CCS (Pension)
Rules 1972 the practice of realization of LS & PC has been dispensed with. Therefore
payment of LS & PC by the respondent no. 2 and 3 to respondent no. 1 is not
required.”
However, in paras 4.20, 4.22 and 4.23 of the reply of respondents no. 2 and 3, it
has categorically been stated that LS/PC (with interest) would not be paid to DDA and
it was for the DDA to quote the rules under which PWD (DA) was required to pay the
LS/PC to DDA. In para 4.24 of reply filed by CPWD/PWD it is stated that, as per Govt.
of India decision 4, 5 & 6 below rule 14 of CCS (Pension) Rules, 1972, the practice of
realization of LS/PC has been dispensed with and, therefore, PWD was not required to
pay the said amount to DDA. In para 4.23 of the reply filed by PWD it was
categorically stated that the applicant had not even completed the period of probation
in CPWD before joining DDA.
4. In view of aforementioned, we deem it appropriate to dispose of the present
Original Application with a direction to respondents to examine and decide the claim of
applicant for giving him the benefit of past service rendered by him in PWD keeping in
view the aforementioned averments made by respondents No. 2 and 3 in their counter
reply, particularly the fact that the applicant was only a probationer in CPWD, he had
applied for post of JE (Civil) in DDA through proper channel and also the fact that as
per decision no, 4, 5 and 6 below Rule 14 of CCS (Pension) Rules, 1972, the practice
of realisation of LS/PC had been dispensed with. While doing so, respondents shall also
keep in view the proviso to Rule 22 B (1)(b) of fundamental Rules. Decision so taken
shall be communicated to applicant. OA stands disposed of No costs.
———
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