Mukesh Thakur vs GNCT Of Delhi & Ors

Ashish Kalia, Member J

This OA has been filed by the applicant seeking the following reliefs:

“(a) Direct the Respondents to count the past service with effect from 25.02.2004 to 24.07.2016 rendered by the applicant in Group „D‟/Nursing Orderly and Dresser in the Directorate of Health Services, as per clarification given by Department of Pension & Pensioner‟s Welfare dated 05.11.2018 (Annexure A-9)

(b) Direct the Respondents to consider the clarification issued by Department of Personnel & Training on 22.10.2018 and protect the pay of the Applicant accordingly (Annexure A-9).

(c) Pass any order(s)/direction(s) in favor of the Applicant and against the Respondents which this Hon‟ble Tribunal deem fit and proper in the facts and circumstances of the case.

(d) Award cost of the proceedings along with interest in delay in release of pay and allowances.”

The brief facts of the case are that the applicant was appointed as a Nursing Orderly in Directorate of Health Services, GNCT of Delhi on 25.02.2004. He was further promoted on 28.12.2005 as Dresser in the pay scale of Rs. 2650-63-3300-70-4000. He qualified in limited departmental competitive examination conducted by DSSSB and appointed to the post of Grade-IV (DASS)/Jr. Assistant (LDC) with effect from 25.07.2016. He submitted a technical resignation which was accepted on 20.07.2016. Thereafter, he made a request for his past service to be counted in terms of the DoPT OM and as per the relevant instruction, but it was of no avail. The impugned note he has questioned is a Government of India noting dated 27.02.2019 whereby two years service is mandated for promotion from the pay scale of Rs. 2550-3200 to Rs. 2610-3540 and further from Rs. 2610-3540 to Rs. 2650-4000 is two years, which he is lacking by a few months, thus his past services were not counted.

Notices were issued to the respondents who put their appearance and filed reply. Rejoinder thereto has been filed.

It is submitted by the respondents that the applicant was promoted from Nursing Orderly to Dresser, on the basis of eligibility criteria as laid down in the Recruitment Rules dated 02.08.1967. However, as per the observation made by Finance Department taking a cue from DoPT OM dated 25.05.1998, the model Recruitment Rules for the post of Dressers were circulated where qualifying service fixed for promotion to the said post is that the incumbent to be in the pay scale of Rs. 2550-3540 having two years of service and further in the pay scale of Rs. 2610-4000 with two years service. Hence, for the promotion from the pay scale of Rs. 2550-4000, a minimum four years qualifying service is required.

It is further stated that matter was referred to Services Department for comments for counting past service of the applicant for pay protection etc. It was advised that the past service and pay protection should be granted to the official as per the guidelines issued by DoPT OM dated 17.08.2016, if he is not found otherwise ineligible and hence, the department was advised to send proposal for amendment in the recruitment rules for the post of Dresser as per the guidelines of DoPT, Government of India, without further delay. The DoPT vide its note dated 22.10.2018 observed that the posts are to be filled up as per the eligibility conditions prescribed in the recruitment rules in force at the time of occurrence of vacancy. The department of Pension and Pensioners vide note dated 05.11.2018 has observed that in the matter of mobility within the Central Government and within the same organization obviously the past service would be counted for the purpose of gratuity, in the new service. There would not be any transfer of pro rata gratuity to the government servant on mobility after technical resignation. Following the said observations, the matter was referred back to Finance Department on 27.02.2019 which has observed that the applicant joined Government Service as Nursing Orderly on 25.02.2004 and was promoted as Dresser on 30.12.2005 i.e., within one year and 11 months. However, as per the DoPT OM dated 25.05.1998, a qualifying service fixed for promotion from the pay scale of Rs. 2550-3540 is two years and Rs. 2650-4000 is two years. Hence, for promotion from the pay scale of Rs.2550-2650, a minimum four years qualifying service is required.

A short question raised before this Tribunal is whether the applicant is entitled for counting of his past service before he had submitted his technical resignation or not?

Learned counsel for the applicant draws our attention to page 65 and 66 where, in DoPT Establishment (RR) Section note, it has been observed as under:-

In respect of point 2 (i) above it is stated that “ The posts are to be filled up as per eligibility conditions prescribed in the Recruitment Rules in force at the time of occurrence of vacancies

In respect of point 2 (ii) above the Ministry of Home Affairs may seek the advise of Department of Pension and Pensioners Welfare.

XXX     XXX     XXX

Further, the benefits of Retirement Gratuity and Death Gratuity to the Central civil Government employees covered under NPS was extended vide O.M. dated 26.08.2016 on the same terms and conditions as are applicable to employees covered by CCS ( Pension) Rules.

The matter of payment of pro-rate gratuity or transfer of the same to other organization on mobility from Central Government Department to other organizations is under examination in this Department in consultation with Department of Expenditure. However, in the matter of mobility within the Central Government or within same organization, obviously, the past service would be counted for the purpose of grant of gratuity in the new service and there would not be any transfer of pro-rate gratuity or payment to Govt. servant on mobility after technical resignation”.

The learned counsel for the respondents has put forth that as on that date, as stated in the reply hereinabove, the draft recruitment rules were circulated but they have not been approved. In view of this, the applicant‟s service as Dresser could not be regularized because he has not completed four years in that service, thus, resulting in his past service not being considered for the reasons stated.

Be that as it may, we have gone through the entire pleadings. As per the Recruitment Rules for the post of Dresser/Post Mortem Asstt. annexed by the respondents at Annexure R-3 of the counter affidavit, educational qualification prescribed for the post of Dresser is Matric/10th pass with three years experience and a valid certificate in First Aid whereas the applicant has not got any experience of three years and he has got the promotion within less than two years. His case for pay protection and counting of past service required the concurrence of Finance Department which was not accorded and the applicant does not fulfill the criteria of minimum qualifying service of four years.

In view of the above, this OA lacks merit and is liable to be dismissed. Hence, dismissed with no order as to costs.