Jyotsana Sharma vs The Director, Post Graduate Institute of Medical Education and Research and Others

Hemant Gupta, J.—Challenge in the present writ petition is to an order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, on 9.1.2014, whereby an Original Application filed by the petitioner to claim pay of the post of Oral Rehydration Assistant with effect from 4.9.1993 till such time she was appointed by way of direct appointment on 26.5.2001 remained unsuccessful. The petitioner was appointed as a Ward Assistant in the pay scale of Rs. 250-940/- vide letter of appointment dated 4.9.1993 (Annexure A.4). The petitioner claims that she has been appointed against the post of Oral Rehydration Assistant as two posts were sanctioned vide communication dated 11.9.1992 and that she has been discharging the duties and responsibilities of such post from the date of appointment, therefore, she is entitled to the pay scale attached to the said post.

It has also come on record that while sanctioning the post on 11.9.1992, the pay scale of the said post was not specified. It was specified on 22.4.2000, while upgrading the existing two posts of the Ward Attendant to that of Oral Rehydration Assistant. Thereafter, the candidature of the petitioner was considered for appointment to the post of Oral Rehydration Assistant by way of direct recruitment.

The petitioner was appointed as such on 21.5.2001 vide order of appointment (Annexure A.14). It is, thereafter, that the petitioner joined on 26.5.2001 as Oral Rehydration Assistant. The petitioner initially invoiced the jurisdiction of the Tribunal for claiming pay of the post of Oral Rehydration Assistant from the date of her initial appointment. The Original Application filed by the petitioner was dismissed on the ground of delay and laches, but still a direction was issued to the respondent-Institute to consider the representation of the petitioner. On a Review Application regarding interpretation of Para 15 of the order, the matter was considered by the 3rd Member vide order dated 29.5.2012 and the view taken by Justice S.D. Anand, in Para No. 15 of the order was upheld. The said para reads as under:--

"15. The applicant has indeed placed on record lot of documentation whereby the authorities at various hierarchical levels and in different facets of the organization recommended the grant of the relevant pay scale to her. That the matter did not get through at the highest level, is altogether a different matter. Even while non-suiting the applicant in this O.A. we would leave it to the competent authority to hold a detailed examination about the exact nature of duties performed by the applicant during the relevant period. If it is found on point of fact that the applicant had actually been performing all the duties assigned to the incumbents of the post of Oral Rehydration Assistant, it will be for the competent authority to consider the feasibility (in its own discretion) of granting the relevant financial benefit to the applicant."

Thereafter, the petitioner submitted a representation, which was considered and declined on 3.9.2012 (Annexure A.20). It is the said order, which was challenged by the petitioner before the Tribunal, which was dismissed by the order impugned in the present writ petition.

It was found by the Institute that the petitioner was appointed as Ward Attendant in the pay scale of Rs. 750-940/-. She joined her duties on 10.9.1993. The representation of the petitioner for the grant of the higher pay scale was considered by the Pay Anomaly Committee. The Pay Anomaly Committee recommended that the case of Oral Rehydration Assistant be placed before the Standing Finance Committee (SFC). The two posts were created on 4.5.1999 classified as Group-C posts oft the recommendations of the SFC. It was found that the Standing Finance Committee/Governing Body/Institute Body, has not approved the upgradation of the petitioner, to the post of the Oral Rehydration Assistant but it was observed that she will be considered as per the qualification along with other candidates. The post of the Oral Rehydration Assistant was to be filled 100% by direct recruitment, The said posts were advertised for recruitment in 2001 and the Petitioner was appointed on 21.5.2001. Since the SFC has not approved the upgradation of the post of the Ward Attendant to the Oral Rehydration Assistant, therefore, the petitioner is not entitled to the pay scale of the said post.

Learned counsel for the petitioner has vehemently argued that the petitioner has been discharging the duties of the post of Oral Rehydration Assistant from the date of initial appointment. In support of her claim, the petitioner relies upon the communication from the Additional Professor, Department of Pediatrics dated 7.10.1994 and also the Agenda of the SFC, which led to the decision of the upgradation of the post of Ward Attendant. It is, thus, contended that such documents have not been referred to by the respondent-Institute, while declining the claim of the petitioner for the post of Oral Rehydration Assistant with effect from 4.9.1993 till 26.5.2001.

At this stage, the office order upgrading the post of Ward Attendant, is extracted as below:--

"On the recommendations of the Standing Finance Committee (meeting held on 4.5.1999) sanction is hereby accorded for the prescription of Central Pay Scale of Rs. 3050-4590 for the post of Oral Rehydration Assistant in the Department of Pediatrics and further classification of the said post as Group ''C'' post w.e.f. 4.5.1999, by upgrading the existing two posts of ward Attendant/Ward Servant.

This issues with the approval of the Governing Body and Institute Body vide Agenda item Nos. 47 & 22 respectively in their meeting held on 15.3.2000."

We find that the claim of the petitioner suffers from gross delay and laches and is barred by limitation as well. The petitioner is claiming pay of the higher post for the period 4.9.1993 till 26.5.2001. The Original Application was initially filed in the year 2011 i.e. almost after 10 years of the petitioner''s appointment to the post of Oral Rehydration Assistant. Any claim for the reason that the petitioner has discharged higher duties and responsibilities has to be raised within a reasonable time and in any case within the time limit prescribed under Section 20 of the Administrative Tribunals Act, 1985. The claim of higher pay scale raised after 10 years for the reason that she has worked on the higher post, thus, could not have been entertained. The claim of the petitioner for the higher pay scale was in fact declined by the Tribunal in its earlier order dated 12.3.2012 for the reason that such claim suffers from delay and laches. It was a matter of concession when the Tribunal directed the representation of the petitioner to be considered by the respondent-Institute. It was only an enabling provision so as to confer a benefit upon the petitioner, but failure to decide the representation, would not confer any enforceable right upon the petitioner.

Still further, the primary claim of the petitioner is based upon the communication of the Additional Professor of the Department of Pediatrics (Annexure A.5). The letter is based upon the wrong facts. It is mentioned therein that the petitioner was selected and appointed as against one of the posts of the Oral Rehydration Assistant. But as a matter of fact, the petitioner was selected and appointed against the post of Ward Assistant. The said communication to the Director of Institute is to the effect that the pay scale of Rs. 950-1500/- be fixed for the post of Oral Rehydration Assistant. There is no mention of the fact that the petitioner was discharging the duties of Oral Rehydration Assistant in the year 1994. The Agenda of the SFC does record that the petitioner has-been discharging higher duties and responsibilities but in the absence of any decision, it would not be possible on the basis of Agenda that the petitioner was discharging higher duties and responsibilities. The question whether the petitioner was discharging higher duties and responsibilities was a question of fact. Since the petitioner was appointed as Ward Assistant and continued to discharge such duties till 26.5.2001, when she was appointed as Oral Rehydration Assistant by way of a direct recruitment, she cannot claim the pay of the post of Oral Rehydration Assistant prior to appointment. We find that the plea is not only barred by limitation, but is also otherwise untenable. In view of the above, we do not find any merit in the present writ petition. Hence, the same is dismissed.