Central Administrative Tribunal - Delhi
Shri A.K. Mehrotra vs Union Of India Through on 10 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.366/2012 M.A. No.1328/2012 New Delhi, this the 10th day of October, 2012 CORAM: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri A.K. Mehrotra, S/o Shri Bishan Lal Mehrotra,, R/o H.No.90, Biharipur, Kagoonigali, Bareilly, UP Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Union of India through 1. The Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi 2. The Development Commissioner, (Handicraft), West Block-7, R.K. Puram, New Delhi Respondents (By Advocate: Shri Subhash Gosain) O R D E R
By Dr. Veena Chhotray:
The applicant is working as a Technical Assistant (Metal) in the Office of the Development Commissioner (Handicrafts) under the Union Ministry of Textiles. He is aggrieved at the lower pay scales in which two financial upgradations under the ACP Scheme have been granted to him. Claiming extension of benefit of the judgment passed in the case of a junior and similarly situated person (OA No.1063/2008), the OA seeks the following reliefs:-
(a) To quash and set aside the Office letter/Order dated 20/05/2010 and 2nd July, 2010 (Annexure-A1). By these orders the representations of the applicant have been rejected and communications on the subject made.
(b) To direct the respondents to grant 1st and 2nd up-gradation under ACP Scheme in the scale of Rs.6500-10500 and Rs.10000-15200 with effect from 9/8/99 and September, 2002 with all arrears of pay including interest.
(c) To quash and set-aside all contrary orders and issue appropriate direction or directions to the respondents to grant ACP benefits to the applicant as per OM dated 9/8/1999.
(d) To allow the O.A. with exemplary costs.
(e) Pass such other direction or directions order or orders as this Honble Tribunal may deem fit and proper to meet the ends of justice.
2. Shri M.K. Bhardwaj and Shri Subhash Gosain, learned counsels would respectively argue for the applicant and the respondents.
3. The brief facts of the case are that the applicant had joined as a Technical Assistant (Metal) on 4.9.1978. He became entitled for grant of the first ACP w.e.f. 9.8.1999 and the second ACP with effect from September, 2002. the applicant was granted these financial up-gradations in the scales of Rs.5500-9000 and Rs.6500-10500 respectively. The claim of the applicant, however, is for the scale of rs.6500-10500 for the first ACP and Rs.10,000-15,200/- for the second ACP. This claim is being agitated essentially as given to the similarly placed one Yash Pal Verma as per the Tribunals Order dated 16.12.2008, upheld up to the level of Apex Court and implemented by the respondents.
3.1 It has been submitted by the respondents in their Counter Reply that the posts of Technical Assistant (Metal) were in feeder cadre for promotion to the post of Assistant Development Officer as per the Recruitment Rules, 1982. The RRs were revised in the year 1990. As per the revised Rules, the posts of Technical Assistant (Metal) were placed in one of the feeder cadres for promotion to the post of Handicrafts Promotion Officer. Copies of these RRs have been enclosed along with the CA as Annexures R/1 and R/2. As per both the RRs, the minimum educational eligibility condition for promotion was at least a Bachelors degree. The next post in the hierarchy is that of Assistant Director.
These facts are not disputed.
4. Varying contentions however, have been made as regards the eligibility of the applicant for the promotional posts and the correctness of the pay scales in which the ACP benefits were granted. As per the respondents, the applicant was not a graduate and hence he did not fulfill the minimum educational qualification as prescribed under the 1990 RRs for promotion to the post of Handicrafts Promotion Officer. It is also their submission that the applicant has been given the first and second ACPs in accordance to the hierarchy. However, according to the applicant, he did fulfill the prescribed eligibility condition for promotion to the higher post. It is also his contention that he has been denied the benefit of the scale meant for the ADO and instead given the financial up-gradation in a lower scale arbitrarily. The case of the applicant is that this mistake was not corrected despite several representations by him.
5. Shri M.K. Bhardwaj, the learned counsel for the applicant would mainly argue about the justification of the claim of the applicant in the light of the Tribunals decision in the OA No.1063/2008 {Yash Pal Verma vs UOI (Ministry of Textiles) & Anr}. As per the learned counsel, the applicant therein also was similarly situated as the present applicant and the Tribunal had allowed the OA and given directions to the respondents for grant of first and second financial up-gradations under the ACP Scheme in the respective pay scale of Rs.6500-10500 and Rs. 10,000-15,200/- from the due dates with arrears. The decision of the Tribunal though challenged by the Respondents before the High Court and again before the Honble Apex Court, had been upheld and thus attained finality (Annex A/3 and A/4). The said decision had also been implemented by the respondents vide their order dated 9/13.10.2009 (Annex A/11).
The learned counsel for the applicant would also highlight the fact of the said Yash Pal Verma being junior as a Technical Assistant to the present applicant. The final seniority list enclosed as Annex. A/12 would be adverted to in this regard.
As a legal argument, the judgments of the Apex court in the case of Inder Pal Yadav & Ors vs. UOI & Ors {1985 (2) SLR 2481} and K.C. Sharma vs UOI & Ors {1997 (6) SCC 721} would be cited to contend that as per the settled law similarly situated employees are required to be extended these benefits to avoid future litigations.
6. Contesting the claims in the OA, Shri Subhash Gosain, the learned counsel for the respondents would reiterate the stand taken in their impugned order. The reason given in support would be that whereas Yash Pal Verma had not accepted the financial up-gradations granted to him under the ACP Scheme and in protest had approached the Tribunal; the present applicant had in fact accepted these financial up-gradations. It would also be the argument of the learned counsel for the applicant that he had waited for all these years and had come to the Tribunal only after the decision of the Apex Court. As per Shri Gosain, it is not mandatory that one court case decision be extended to another employee if he is placed in a similar situation.
7. We have carefully perused the material on record and considered the averments made before us and find the following aspects relevant in the case:
8. As per the ACP Scheme, the benefits of financial up-gradation are subject to the concerned employees fulfilling the prescribed eligibility conditions for the next promotional post in the hierarchy. From the facts on record, it is revealed that neither the applicant nor Yash Pal Verma possessed the essential qualification of a Bachelors degree which would have made them eligible for promotion as ADO/HPO. The contention of the applicant about his possessing the eligibility condition for the next promotional post is thus not borne out by facts on record.
8.1 However, there is another dimension pertinent to the issue at hand and that is revealed from the order passed by the Tribunal in Yash Pal Vermas case. The rationale for granting the benefits of the promotional post was that even for the post of Technical Assistant (Metal) graduation was an essential qualification, and the same had been relaxed while appointing the applicant therein. The view taken by the Tribunal was that once a relaxation had been granted at the initial stage, the same would hold good forever and cannot be raised as a ground for denial of subsequent promotions. The relevant extracts from the order of the Ld. Coordinate Bench are reproduced as here under:
5. Without going into the controversy as to whether the post of ADO or HPO as a feeder category is a promotional post of TAM, yet when relaxation has been accorded to the applicant at the initial level on being appointed a TAM, the relaxation will hold good forever, as ruled by the Apex Court in Jadish Kumar vs State of H.P. & Ors., 2006 (1) SLJ SC 54. Accordingly, at one level, the educational qualification is once relaxed, one cannot be denied progression in service jurisprudence, which is byway of promotion is a constitutional guaranteed right, to approbate and reprobate simultaneously is not in good administration. Insisting upon the qualification i.e. graduation, which has once been relaxed is unfair and unreasonable in the circumstances. This very view had been upheld by the Honble High Court when, on the decision of the Tribunal being challenged by the respondents in WP (C) No. 9330/2009. Endorsing the view taken by the Tribunal, the following observations were made by the Honble High Court:-
It is not in dispute that necessary educational qualification for the post of Technical Assistant (Metal) are graduate degree from a recognized university or its equivalent. It is also not in dispute that for promotion of the post of HPO, same qualifications are prescribed. In these circumstances, the Tribunal was right in holding that once relaxation in the said qualifications was given to the respondent and the said qualifications was given to the respondent and he was appointed to the post of Technical Assistant (Metal)k he could not be denied the benefit of that relaxation, when same qualifications are prescribed for promotion to the post of HPO. This is what Jadgish Kumar (supra) precisely holds. On a further challenge by the respondents vide C.C. No.4224-4225/2010, the Honble Apex Court had dismissed the same both on the ground of delay as well as on merit.
8.3 The applicants contention of being similarly placed as the said Yash Pal Verma has been rebutted by the respondents on the sole ground of acceptance or otherwise of the earlier financial up-gradations by the concerned employee. In their para-wise replay 4.15, following submission has been made:-
4.15 . On examination, it is evident that though both the officials were in the same scheme, same seniority list, possess the same qualification, but they are dissimilar because Shri Mehrotra had accepted both the ACPs, whereas Shri Verma refused to accept. Even with regard to the acceptance of the earlier ACP by Shri Yash Pal Verma, a different submission has been made in Para 4.7 of the CA. This, inter alia, submits as under:
4.7 Shri Y.P. Verma has already been granted 1st ACP in the pay scale of Rs.5500-9000/- but not granted 2nd ACP in the pay scale of 6500-10,500/-. It is further submitted that he filed an application before this Honble Tribunal, wherein in compliance of directions passed by this Honble Tribunal, the applicant was granted 1st ACP in the pay scale of Rs.6500-10,500/- and 2nd ACP in the pay scale of Rs.10,000-15,200/-. 8.5 In view of the legal proposition on the basis of which the benefits of the higher pay scales had been granted to Yash Pal verma; denial of the same to the applicant, who otherwise is similarly situated, is not found to be in accordance with the principles of justice and fair play. It is also not in accordance with the view taken by the Honble Apex Court in a catena of judgments about the Government as a model employer extending the same benefits to similarly situated employees, by virtue of a court decision, in order to avoid future litigations.
9. Accordingly we find a merit in the claims of the applicant. The OA is allowed in terms of the following directions;-
The impugned letters/orders dated 20.5.2010 and 2.7.2010 are quashed and set aside;
The respondents are directed to grant the first and second up-gradations under the ACP Scheme in the scale of Rs.6500-10500 and Rs.10000-15200/- respectively w.e.f. 9.8.1999 and September, 2002 with arrears; and The prayers for interest or award of costs are not found justified.
Our above directions are to be complied within a period of three months from the date of receipt of a copy of this order.
(DR. VEENA CHHOTRAY) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
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