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Judgment
L. Narasimha Reddy, J
The applicant joined the services of Municipal Corporation of Delhi in the year 1990 as Statistical Officer. She is said to have been given the additional charge of Computer Centre of the Commercial department. She has also been extended the benefit of financial upgradation from time to time.
The applicant states that in the year 2008, the Municipal Council passed a resolution for creation of the post of Joint Director (Statistics), subject to the approval by the UPSC and MHA, and pending such approval she was promoted on ad hoc basis to that post in the year 2008 itself. She further states that her pay scale was also fixed from time to time on that post. She ultimately retired from service on 28.02.2015.
Through order dated 12.02.2015, the respondents sought to revise her pay structure in the context of fixation of her pension. Aggrieved by that, she filed OA No.333/2019. The OA was allowed on 27.05.2019 on the ground that the applicant was not put on notice before issuance of the said order. It was, however, left open to the respondents to pass a fresh order. Accordingly, a notice was issued to the applicant and on consideration of the representation made by her, the respondents passed a speaking order dated 07.09.2020 revising her pay structure. It was also directed that a sum of Rs.64,629/- be recovered from her. This OA is filed challenging the said order.
The applicant contends that she held the post of Joint Director continuously from 2008 till the date of her retirement and there was absolutely no basis for denying her the benefit of the pay scale attached to that post. It is also stated that the recovery was totally impermissible in law. Several other grounds are also urged.
Today, we heard Shri Apurb Lal, learned counsel for the applicant and Shri Naresh Kaushik and Shri Anirudh Mehrotra, learned counsel for the respondents.
The whole dispute is about the entitlement of the applicant to the post of Joint Director. It is no doubt true that she was appointed against that post on ad hoc basis in the year 2008. This was on the basis of the resolution passed by the Municipal Council creating the post but subject to the approval by the UPSC and MHA. The relevant resolution reads as under:-
"14. Draft Resolution :
Resolved by the Council that the Recruitment Regulations for the post of Jt. Director (Statistics) as per Annexure - A (See pages 96-97) are approved with the directions that the same may be sent to UPSC and upon receipt of their approval be referred to MHA seeking approval of the Central Government & thereupon to the Government of NCT of Delhi for publication in the official gazette."
From a perusal of the resolution, it is evident that the creation of the post was subject to the approval by UPSC and MHA. The OA is silent as to whether such a clearance was given by the UPSC and MHA. It is a different matter that the respondents went on extending the appointment of the applicant on ad hoc basis to the post. The fact remains that even by now, the post of Joint Director does not exist on the cadre of the corporation. Once the post does not exist on account of it not having been sanctioned by the MHA, the question of the applicant holding that post in substantive capacity does not arise. It is fairly settled that the working of an employee in a superior post even where it exists on ad-hoc basis does not enable him or her to draw the pension on the basis of the emoluments attached to that post. We do not find any defect in the impugned order.
However, the respondents cannot recover any amount referable to the working of the applicant as Joint Director since it was on their own accord, that they have permitted that scale of pay. Even while the pension of the applicant shall be determined on the basis of the substantive post held by her, i.e., Statistical Officer, the respondents cannot recover the amount. They shall also examine the issue as to whether the applicant was entitled to be extended the benefit of MACP, if it has been offset due to the ad hoc promotion to the post of Joint Director. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. The OA is accordingly disposed of.
There shall be no order as to costs.