Jharkhand High Court
Janardan Mohan Choudhary vs Central Institute Of Mining Fuel ... on 1 May, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.5280 of 2018
Janardan Mohan Choudhary, aged about 60 years, son of Sri
Anant Lal Choudhary, resident of Dhawan Nagar, Kanke Road,
P.S.-Gonda, P.O.-Gandhinagar, Ranchi 834008 (Jharkhand
.......... Petitioner
Versus
1. Central Institute of Mining Fuel Research (CIMFR), through its
Director, Digwadih Campus, P.O. FRI, P.S. Jorapokhar, District-
Dhanbad (Jharkhand)-828108.
2. The Director, Central Institute of Mining Fuel Research (CIMFR),
Digwadih Campus, P.O. FRI, P.S. Jorapokhar, District-Dhanbad
(Jharkhand)-828108.
3. Council of Scientific and Industrial Research through its Joint
Secretary, Anusandhan Bhawan, Rafi Marg, New Delhi-110001.
.......Respondents.
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mrs. Aanya, Advocate
For the Respondents : Mr. Abhay Prakash, Advocate
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Per :Sujit Narayan Prasad, J.
12/Dated: 1st May, 2023
1. This writ petition is under Article 226 of the Constitution of India, wherein the order dated 9th August, 2018 passed by the learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi in O.A./051/00078/2015 has been challenged, whereby and whereunder the relief sought for extending the benefit of financial up-gradation under Modified Assured Career Progression Scheme (in short "MACP Scheme") has been declined to be extended in favour of the applicant/writ-petitioner by dismissing the original application.
2. The brief facts of the case as per the pleading made in the writ petition required to be enumerated, reads as under: [2]
The Central Fuel Research Institute, a unit of the Council of Scientific and Industrial Research, Dhanbad vide Advertisement No. 1/87 issued advertisement calling upon candidates for various posts including 1 post of Security Officer. It was stated in the said advertisement that the pay scale for the post of Security Officer would be Rs. 700-40-900-EB-40-1100-50-1300, which would be subject to revision shortly.
The writ-petitioner was duly selected for the said post of security officer and on perusal of the memo no.8/3110/88-E.I. dated 10th May, 1988, it appears that under reference of Office O.M No. 2- 23/86-PL(vii) dated 02/07th March, 1988, the writ-petitioner was appointed on the post of Security Officer and has joined on 9th May, 1988 on an initial salary of Rs. 2200-75-2800-E8-100-4000. In the year 1999, a scheme was floated by the government called the Assured Career Progression Scheme (ACP). The said scheme was brought to obviate the financial destitution being faced by an employee on account of stagnation in a particular post. Under the said scheme, an employee stagnating on a particular post would be eligible for first and second financial upgradation on completion of 12 years and 24 years of service respectively from the date of appointment. Vide memo no. 1-1/99-P.L. dated 21st January, 2009, the Administrative Officer of the CIMFR had issued office memorandum on the recommendation of Departmental Promotion Committee which met on 24th September, 2008 and consequent upon approval thereof by the Competent Authority conveyed vide [3] CSIR letter no. 4-45(4) 2008-E11 dated 5th January, 2009, the Director, Central Institute of Mining & Fuel Research has been pleased to approve the up-gradation of the petitioner as Sr. Security Officer from the scale pay of 8000-275-13500 (pre-revised) to the scale of Rs.10000-325-15200 (pre-revised) w.e.f. 9th May, 1999 i.e. from the date of completion of 11 years of continuous service in the scale of Rs.8000-275-13500 (pre revised).
The ACP scheme was substituted with another scheme called the "Modified Assured Career Progression" Scheme (MACP) w.e.f. 1st September, 2008.
Under the said scheme, financial upgradation in case of stagnation at a pay scale/post was to be given at an interval of 10, 20 and 30 years. The CSIR had framed specific policy for isolated category of employees vide CSIR Order no. 6 bearing file no. 33(89) E-II dated 12th November, 1981 which was known as "Recommendation of Sidhu Committee for Career Development of staff belonging to isolated cadre in CSIR". As per the recommendation of the said committee, it was stated that an employee working on an isolated post will be eligible for promotion after completion of 11 years of service. The petitioner filed a representation before the Director, CIMFR dated 23rd August, 2011 praying for promotion/financial upgradation as per the Sidhu Committee report. In this context, it is stated that it was categorically stated by the petitioner that despite working for the respondents, the petitioner has been stagnating on a post for more [4] than 12 years, and, therefore prayed for upgradation as per the Sidhu committee recommendation.
Pursuant to the representation filed by the petitioner before the respondent authorities, the Controller of Administration issued an office memorandum being memo no. 1(2)2006/ DPC/ Isolated/ RU/ 706 dated 3rd October, 2011, wherein it was stated that the request of the petitioner for the financial upgradation could not be entertained because as per the CSIR rules, there was no provision of financial upgradation of security officer beyond the grade pay of Rs.6600/- PB-3 under the 11 year promotional scheme for isolated category and the MACP scheme has not been made applicable to the isolated category of employees. The writ-petitioner again filed a representation on 22nd June, 2012 before the respondent authorities, whereby the writ-petitioner stated that he was appointed on the post of Security Officer on 09.05.1988 and has been working for the respondents since the date of appointment to the satisfaction of the respondent authorities. The writ-petitioner even pointed out in the aforesaid representation that the petitioner was being adversely affected by the decision of the respondents as the other incumbents working as security for the respondent concern were being eligible to be considered for the new scheme i.e. MACP and the case of the writ-petitioner was being unjustifiably being discriminated.
The writ-petitioner being aggrieved with the rejection of the application for consideration for the financial upgradation, preferred [5] an appeal before the appellate forum being the Joint Secretary, CSIR, New Delhi. That it was categorically stated by the petitioner that the petitioner was recruited by way of direct recruitment against a vacant sanctioned post, on 9th May, 1988 and after completion of 11 years of service, he was upgraded to the post of Senior Security Officer on the pay scale of Rs.10000-325-15200 (Pre-revised) w.e.f. 9th May, 1999 which was subsequently revised to pay band of 15600-39000 (PB-3) with a grade pay of Rs. 6600. It is the specific case of the writ-petitioner that on completing 11 years of service on the present pay scale, he applied for the benefits of financial upgradation as per Sidhu Committee for career development. The writ-petitioner has been turned down on the ground that there is no provision for up-gradation of security officer beyond the grade pay of Rs. 6600/- (PB-3) under the 11 year scheme.
In pursuance of the appeal filed by the writ-petitioner, the Controller of Administration, forwarded his consideration to the said appeal to the Joint Secretary, memo no.1(2)/ 2006 /DPC/ Isolated /RU/ 70 dated 21/28.01.2014 whereby it was informed that as there is no provision for giving upgradation above Rs. 6600/-(PB-3) and in light of the fact that the MACP benefits have not been extended upon the isolated post holders of the respondent institute, the application of the petitioner cannot be given effect to. The Modified Assured Career Progression Scheme (MACP) was implemented w.e.f. 01.09.2008 notified vide O.M. No. 35034/3/2008-Esst. (D) [6] dated 19th May, 2009. On bare perusal of the said scheme, it is evident that three financial upgradation opportunities have been provided to each and every employee of the Government of India who is stagnating in a particular scale for a period of 10, 20 and 30 years respectively. The said financial upgradation shall be given in immediate next higher grade pay.
On 21st March, 2014, vide memo no. 1(2) /2006 /DPC/ Isolated/ RU/1106, it was informed by the Controller of Administration that the appeal filed by the petitioner has been dismissed, for the same reason, as was rejected by the director, CSIR. i.e., there is no provision for consideration of the case of the petitioner for the next financial upgradation.
The writ-petitioner, being aggrieved with the order passed in the appeal filed by the petitioner before the Appellate Authority, preferred an original application before the Central Administrative Tribunal, Circuit Bench at Ranchi, which was registered as O.A. No. 051/00078/2015 which was also dismissed on 9th August, 2018. Hence, the present writ petition.
3. It appears from the pleading that the writ-petitioner has joined the service on 9th May, 1988 at Central Fuel Research Institute (in short "CFRI"), a unit of Council of Scientific and Industrial Research (in short "CSIR"), Dhanbad. The CFRI is now known as Central Institute of Mining Fuel Research in short "CIMFR"). The writ-petitioner has joined as Security Officer, single post. The grievance of the writ- [7] petitioner that even though he has been appointed in the year 1988 but, since, then there is no upgradation in pay scale, however, one upgradation has been granted after lapse of 11 years of rendering the service, by bringing the writ-petitioner to the scale of Rs.10000- 15200 from Rs.8000-13500. The writ-petitioner claims that on the basis of the recommendation of the 6th Central Pay Commission, the modified MACP has been floated, wherein it has been provided that the upgradation in the pay scale will be granted on completion of 10, 20 and 30 years by way of first, second and third upgradation. The aforesaid scheme has been appended as Annexure-11 to the paper book notified by virtue of office memorandum dated 19th May, 2009. The writ-petitioner having with the grievance that even though MACP scheme has been floated by the Central Government for extending the upgradation in the pay-scale and the employer of the writ-petitioner, CIMFR, is an Central Government Organization, hence, the upgradation in the pay-scale under the MACP scheme is equally applicable to the employees working under the CIMFR including the writ-petitioner but the said grievance having not been meted out, the writ-petitioner has approached the Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi by filing an original application being OA/051/00078/2015 seeking therein the aforesaid grievance of extending the benefit of upgradation in the pay-scale but the learned CAT after taking into consideration the various orders passed by the Tribunal i.e., the Chandigarh Bench in O.A. No.969 of 2011, wherein vide order dated [8] 30th October, 2013, the benefit under MACP scheme has been denied. The aforesaid order is under challenge in this writ petition.
4. Mrs. Aanya, learned counsel appearing for the writ-petitioner has submitted that the learned Tribunal has failed to appreciate the fact that the CIMFR, the employer of the writ-petitioner, even though a Central Government Organization, hence, the MACP scheme since has been floated by the Central Government then the same will be applicable to the employees of the CIMFR and, thereby, the benefit of upgradation in the pay-scale under MACP scheme will automatically be applicable to the writ-petitioner but the learned Tribunal has not considered the aforesaid fact and putting reliance upon the order dated 30th October, 2013 passed by the Central Administrative Tribunal, Chandigarh Bench in O.A. No.969 of 2011 has dismissed the original application, which cannot be said to be proper and justified, hence, the instant writ petition.
5. Per contra, Mr. Abhay Prakash, learned counsel appearing for the CIMFR has submitted by defending the order passed by the Tribunal by taking the ground that the CIMFR is an autonomous body having its independent functioning with having no administrative or managerial control by the Central Government. It has been contended that the CIMFR is a wing of CISR and, as such, is dealing its employees with their own regulations and the service conditions. The CIMFR has not yet adopted the recommendation of the Central Government which has been made by way of 6th Central Pay Commission Report and, thereby, the scheme of MACP has also not [9] been adopted. The contention has been raised that since the MACP scheme has not been adopted by the CIMFR, hence, the employees working under the CIMFR cannot be held entitled for the upgradation, merely because the Central Government has floated the said scheme. The submission, therefore, has been made that the learned Tribunal after taking into consideration the said aspect of the matter, if decline to pass positive direction in favour of the writ-petitioner, cannot be said to suffer from an error.
6. We have heard the learned counsel for the parties and gone through the materials available on record including the finding recorded by the learned Tribunal.
7. The basis issue which requires consideration, as to whether without adoption of MACP scheme by an organization like the CIMFR can the employee working under such establishment be held entitled for the benefit of upgradation ?
8. Admittedly, herein, the Central Government has come out with a report by way of 6th Central Pay Commission, wherein the benefit of upgradation has been floated to be extended by virtue of the office memorandum dated 19th May, 2009. It is evident from the paragraph 2 thereof that the Government on consideration of the recommendation of the Sixth Central Pay Commission have introduced the MACP Scheme which has been accepted by the Central Government to grant three financial upgradation under the MACP Scheme at intervals of 10, 20 and 30 years of continuous [10] regular service. It further appears from paragraph 3 thereof that the said scheme is in supersession of previous ACP Scheme and clarifications issued thereunder to the effect that same will applicable to the regularly appointed Group "A", "B" and "C" Central Government Civilian Employees except officers of the Organized Group "A" Service. It is, thus, evident from bare perusal of the memorandum dated 19th May, 2009 that the MACP Scheme floated by the Central Government has conclusively been made applicable to the Central Government Civilian Employees. Admittedly, herein, the writ-petitioner is not an employee of Central Government, rather, he is an employee of an organization known as CIMFR, a unit of CISR.
9. This Court, therefore, is of the view that the office memorandum dated 19th May, 2009 does not bring the writ-petitioner to the fold of the aforesaid memorandum.
The question arises that the writ-petitioner can be held entitled for the said benefit or not.
According to this Court, the said writ-petitioner can only be held entitled for the said benefit, if the decision taken by the Central Government based upon the recommendations of the Sixth Central Pay Commission, if adopted by the respondent-Establishment and in such circumstances, the employees working under it will be held entitled for the benefit of upgradation, otherwise not. [11]
10. Herein, it is admitted case of the writ-petitioner that the decision taken by the Central Government, as contained in office memorandum dated 19th May, 2009, has not been adopted by the CIMFR, the employer of the writ-petitioner.
11. This Court, in view of the aforesaid fact, is of the view that since the upgradation in the pay-scale leads to the financial implication and unless it is adopted by the concerned Board, Corporation, Organization and Establishment, there cannot be direction by the Court of Law that merely because the Central Government has come out with the scheme, the same will be held applicable to such employees even in absence of any adoption.
12. The similar issue fell for consideration before the Hon'ble Apex Court in the case of Vice Chairman, Delhi Development Authority vs. Narender Kumar and Others reported in (2022) 11 SCC 641 regarding extending the benefit of the employee working under the Delhi Development Authority on the ground that the Central Government has come out with the upgradation scheme on the basis of the acceptance of the Sixth Central Pay Commission but the Hon'ble Apex Court has been pleased to hold that any revision of pay structure or revision in other terms and conditions of Central Government personnel cannot and do not automatically apply to the DDA; it has to consider the new or fresh scheme formulated by the Central Government, and adopt it, if necessary, after appropriate adaptation, to suit its needs. The Central [12] Government MACP Scheme did not apply to it automatically. The paragraph 30 of the aforesaid judgment reads as under:
"30. The other reason why the High Court went wrong, in holding what it did, is that DDA is an autonomous - a statutory
- organization. No doubt, it largely follows the Central Government's policies, in respect of pay and allowances, and other benefits for its employees. However, any revision of pay structure or revision in other terms and conditions, of Central Government personnel cannot and do not automatically apply to the DDA; it has to consider the new or fresh scheme formulated by the Central Government, and adopt it, if necessary, after appropriate adaptation, to suit its needs. Therefore, the Central Government's MACP Scheme did not apply to it automatically. The DDA decided to apply it, through an office order dated 6-10-2009. The High Court has overlooked this aspect, and apparently assumed that the MACP Scheme applied automatically, upon its adoption by the Central Government, to the DDA."
13. This Court, on the basis of the discussions made hereinabove and coming to the order passed by the learned Central Administrative Tribunal, is of the view that no interference is required to be made in the impugned order.
14. Accordingly, the instant writ petition stands dismissed.
15. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) (Subhash Chand, J.) Rohit Pandey/- A.F.R.