Central Administrative Tribunal - Delhi
Pankaj Grover vs Union Of India Through on 9 May, 2014
Central Administrative Tribunal Principal Bench OA No. 3404/2011 Reserved on:18.03.2014 Pronounced on:09.05.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Pankaj Grover S/o Late Bhim Sen K. Grover, R/o Vikas Puri, New Delhi. Applicant (By Advocate: Shri M.K. Bhardwaj) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Director General, Shashtra Seema Bal, East Block V, R.K. Puram, New Delhi. Respondents (By Advocate: Shri Rajesh Katyal) O R D E R By Dr. B.K. Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985. The applicant here is not aggrieved by any particular order of the respondents. Rather, he is aggrieved by the respondents not giving him pay scale of Rs.14300-18300/- (Rs.37000-67000+GP of Rs.8700/-) despite the recommendations of the 5th Pay Commission and its acceptance by the Government.
2. The case of the applicant briefly put is that he joined as Assistant Engineer (Civil) in SSB in the year 1989 and promoted to the post of Executive Engineer (Civil) on 23.12.1998 in the pay scale of Rs.10000-325-15200 (Revised pay scale in PB-3 Rs.15600-39100 with Grade Pay of Rs.6600 as per 6th CPC) and thereafter in the year 2007, he was granted 2nd MACP in the pay scale of Rs.15600-39100 with Grade Pay of Rs.7600 w.e.f. 01.09.2008. He was finally promoted to the rank of Superintending Engineer vide the order dated 01.04.2009 in the pay scale of Rs. 12000-16500 (revised pay scale PB-3 Rs.15600-39100 with Grade Pay of Rs.7600/-). The applicant claims that he should have been placed in the replacement scale of Rs.37400-67000 + GP of Rs. 8700/-.
3. The applicant has adopted the following grounds for his claim:-
(a) In the first instance, the applicant claims that there has been historical parity between the post of Superintending Engineer in his parent organization and that of the CPWD. Earlier the respondents organization functioned under the Cabinet Secretariat but was subsequently placed under the MHA in the year 2001. While the respondents organization had functioned under the Cabinet Secretariat, a decision was taken in the year 1989 for treating the Superintending Engineer in SSB at par with Superintending Engineer of CPWD. This was followed up by delegation of powers to the SSB Engineers at par with their counterparts of the CPWD vide OM dated 30.06.1989 (Annexure-2 of the paper book). This was further confirmed by the OM dated 22.05.2000 from the respondents stating that powers of the Engineers of SSB would be at par with Engineers in CPWD and the same would be subject to the restrictions and provisions of CPWD Code and CPWD Manual (Annexure A-3 of the paper book).
(b) The second point raised by the applicant is that he has not based his claim upon that of parity, but he has already been given scale and should be given the replacement scale with Grade Pay of Rs.8700/- as per the 6th CPC.
(c) In the third place, the applicant claims that the action of the respondents is discriminatory, as the scales in SSB at par with those of corresponding posts in the CPWD have already been given. He makes a particular reference to two incumbents of the post of Chief Engineer namely AK Sen and KP Singh, who have been appointed in the scale of Rs.18400-22400 (now revised to 37400-67000 and Grade Pay of Rs.10,000) since the year 2000 with the respondents organization. This grade is at par to the Chief Engineer of CPWD.
4. The learned counsel for the applicant alleges that the respondents have deliberately avoided discussion of this issue in the counter affidavit.
5. The learned counsel for the applicant, during the course of the arguments, vociferously submitted that Recruitment Rules of the year 1990 do not apply because the 5th CPC report granting parity in the scale of Superintending Engineer in SSB with that of Superintending Engineer in CPWD came in the year 1996. Rather the applicant is governed by the Recruitment Rules of 2000. He strongly pleaded that he has accepted the pay scale and only seeks replacement scale granted in the 6th Pay Commission.
6. Respondents have filed counter affidavit denying all the points raised in the OA. They claim that the services of the applicant are governed by Special Service Bureau (Engineering Service) Recruitment Rules, 1990 which provided the post of Superintending Engineer the scale of Rs.3700-5000 (in the pre-revised scale) corresponding to Rs.15600-39100 with GP of Rs.7600 in PB-3 in accordance with the recommendations of the 6th CPC.
7. The respondents also submit that the applicant cannot legitimately seek parity with other organizations or with the CPWD on the ground that they have been set up under different rules, their working norms and other conditions differ and their job requirements are also different. Hence, there is no parity that can be drawn with Superintending Engineer of the CPWD. The respondents claim that they are following the statutory Recruitment Rules framed under Article 309 of the Constitution. The respondents have also submitted statement showing comparison between the charter of duties of Superintending Engineer (SSB) and Superintending Engineer (CPWD) and submitted that they are vastly different and no comparison can be enforced (Annexure R-1 of the paper book).
8. The applicant has filed a rejoinder application rebutting the points raised in the counter affidavit.
9. The respondents have filed additional affidavit restating by and large the points raised in their counter affidavit. They have also relied upon the decisions of the Honble Supreme Court in Secretary, Finance Department Vs. West Bengal Registration Service Association, 1993 Suppl.(1) SCC 153, State of Haryana Vs. HESPSA, 2002(6)SCC 72 and Deb Narayan Shyam Vs. State of West Bengal, 2005(2) SCC 286.
10. We have carefully examined the pleadings of both the parties, as also the documents submitted by them and have heard patiently the oral submissions made by the respective learned counsels. On the basis thereof, we find that the following issues need to be decided in order to arrive at a satisfactory conclusion to the instant OA:-
(i) Whether there is a historical parity between the applicant and that of Superintending Engineer in CPWD?
(ii) Whether the pay scale of Superintending Engineer in the CPWD i.e. Rs.14300-18300/-has already been granted to the applicant and only the replacement scale of Rs.37400-67000 with Grade Pay of Rs.8700/- needs to be given?
(iii) Whether the act of respondents not granting the scale of Rs.14300-18300 [Rs.37400-67000+8700(GP)] as demanded by the applicant is discriminatory and, therefore, violative of Articles 14 & 16 of the Constitution.
11. Insofar as the first issue is concerned, it is an admitted position that the applicant was recruited when the respondents organization was known as a special Service Bureau under the administrative control of Cabinet Secretariat. He was further admittedly governed by the Special Service Bureau (Engineering Service) Recruitment Rules, 1990. The service comprised of six classifications each having its own scale of pay. The same position is to be ascertained from the Table given below:-
SI.No. Designation Classification Scale of Pay
1. Superintending Engineer General Central Service, Group A (Gazetted), Non-Ministerial Rs.3700-125-4700-150-5000
2. Senior Architect General Central Service, Group A (Gazetted), Non-Ministerial Rs.3700-125-4700-150-5000
3. Executive Engineer General Central Service, Group A (Gazetted), Non-Ministerial Rs.3000-100-3500-125-4500
4. Assistant Engineer Group B (Gazetted) Non-Ministerial Rs.2000-60-2300-EB-75-3200-100-3500
5. Draughtsman Grade-I Group B (Gazetted) Non-Ministerial Rs.2000-60-2300-EB-75-3200-100-3500
6. Draughtsman Grade-III Group C (Non-Gazetted) Non-Ministerial Rs.1200-30-1560-EB-40-2040 It is the case of the applicant that he was promoted and given MACP on various posts as per the Chart I below:-
Promoted as Date Scale of pay Executive Engineer 23.02.1998 Rs.10000-325-15200 (Revised Pay scale in PB-3 Rs.15600-39100 with GP of Rs.6600 as per the 6th CPC) Grant of 2nd MACP 01.09.2008 Rs.15600-39100 in PB-3 with GP of Rs.7600 (Revised) Superintending Engineer 01.04.2009 Rs.12000-16500 (Revised pay scale PB-3 Rs.15600-39100 with GP Rs.7600/-)
12. We also take note of the arguments put forth by the learned counsel for the respondents that the MACP Scale is given to remove stagnation in a particular scale. The incumbent of the post is given Non Functional Higher Scale as and when vacancies are not available in that particular scale and as and when vacancies become available, the incumbent is promoted regularly to the next higher scale. Thus, grant of MACP scale may not involve a change in designation or functions and grant of regular promotion similarly may not involve a change in scale while it will be accompanied by change in designation and functions. We also take up chart submitted by the respondents drawing a distinction between functions of the applicant and that of his counterpart in the CPWD. This chart is self-explanatory which is, for the sake of clarity, extracted hereunder:-
CHART-II SI.No. SSB CPWD
1. Inspection and overall control of the works of urgent and sensitive nature and at remote areas It will be the duty of the SE to inspect the various works-in-progress within his circle, and to satisfy himself that the system of management prevailing is efficiently and economical, that the different stores are duly verified according to the rules laid down, and that there is no accumulation of stock in any division beyond its requirements.
2. Planning and guidance of departmental works and their proper execution The SE will inspect the divisional offices at least once in a year and record the results of such inspection in the prescribed form. He is also required to satisfy himself, from time to time, that the staff employed in each division is actually necessary and adequate for its management.
3. Formulation of the Engineering Scheme as per the strategic requirement of the needs of the personnel and finalization of the schemes with the Central/State executing agencies. The SE is required to make it his special duty during his tours to see that measurement books are carefully kept and measurements properly recorded, and that they are complete records of the actual measurements of each kind of work done for which certificates have been granted. He should also see that any orders of the Ministry of Urban Development regarding check measurements are duly observed.
4. Finalization and allocation of funds and watching the progress of the Grant-in-Aid works connected with motivational and welfare activities. The supervision and control of the assessment of revenue from irrigation work and other sources within his circle will rest with the Superintending Engineer.
5. Finalization of the land acquisition cases, cases connecting with the acquisition of properties, hiring of accommodation etc. Functions of Superintending Engineer (HQs) in CPWD:-
Basically, the posts of SE(HQs) attached to various CEs in CPWD is to be utilized for analytical works rather than for routine administrative functions in order to utilize these posts more effectively it has been decided that, hence-forth, the functions of the posts would be given below:-
6. Review of Progress of the works by the executing agencies including sorting out the bottlenecks of that the works can be completed early, by persuasion and budgetary control. (a) To provide support to CEs in:-
(i) Planning of new Projects right from the conceptual stage. He would hold necessary discussions in this regard with Sr. Architects/SSWs etc.
(ii) Monitoring the projects, periodic follow-up meetings to review the progress and causes for hold up for projects. Specifically, he would monitor Projects (estimated cost more than Rs.one crore) & hold coordination meetings with Senior Architects, SSWs, Ex.Engineers etc. in maintenance zones, to monitor the urgent repairs particularly where VIP residences are involved.
(iii) Material chasing. He would plan for the materials required by the Zone for the coming year and pursue for timely procurement.
(iv) Budget formulation and control and re-appropriation of funds, checking the budget figures with the Financial Office and briefing the Chief Engineer and the budget.
(v) Follow-up on observations of Quality Control and those raised by technical and financial adult.
(vi) To look after administrative matters wherein the powers cannot be delegated to Section Officers/Financial Officer.
(b) To deputise for the Chief Engineer in his absence or when desired by the Chief Engineer in meetings etc.
(c) Any other work assigned by the Chief Engineers.
7. Guiding the EEs/AEs in the maintenance of the assets created by the department.
8. Inspection of the works executed by Central/State executing agencies at the time of its completion and handling over to SSB and getting the discrepancies, if any, settled.
9. Any other work assigned by the CE/Director, SSB.
From the above Chart, it appears that there is a clear distinction between the two.
13. We further take note of the arguments that declaration of parity and pay scales is the function of the Pay Commission and is not the function of the Tribunals or Courts. The Pay Commission is equipped and designed to go into these larger issues and their finer nuances. The Honble Supreme Court in the case of Secretary, Finance Department Vs. West Bengal Registration Service Association and Others (supra) has categorically held that it is primarily the function of the executive and not judiciary. The Courts are required to interfere when employees have been unjustly treated by arbitrary State action or inaction. This is further supported by the decision in the case of State of Haryana Vs. HESPSA (supra) where the Honble Supreme Court have prohibited the courts from entering upon the task of job evaluation which is to be undertaken by the expert bodies like the Pay Commission. We also take note of the fact that the 7th Pay Commission has already been appointed and will be deliberating over all such issues relating to pay, their equivalence and respective claims put forth before the Pay Commission etc. and will be coming out with a Report. Therefore, we refuse to get drown into the arguments of the parties.
14. The Honble Supreme Court in the case of Deb Narayan Shyam Vs. State of West Bengal (supra), wherein parity had been sought between the Amins and Surveyor, has rejected the claim of the Amins for grant of pay scale No.7 after having gone through the comparison and considerably watered down the principle of equal pay for equal work, thus closing the doors for the applicant.
15. In view of the reasons stated afore, we feel satisfied that the applicant has not been able to produce any tangible evidence in support of his parity. To the contrary, we feel satisfied that different services have different job requirements and profiles and parity cannot be granted on certain superficial similarities. However, the instant issue has to be considered in continuum with the second issue which provides the crux of the problem.
16. Insofar as the second issue is concerned, the respective arguments of the contending parties have already been noted above while discussing the Issue No.1 and the Chart further illustrates the matter. It would be evident from the chart that sequence of scales narrated does not indicate that the applicant was entitled to higher scale. The applicant was granted replacement scale in PB-3 of Rs.15600-39100 + GP of Rs.6600/- in the 6th CPC. He was subsequently granted the 2nd MACP in the scale of Rs. 15600-39100 + GP of Rs. 7600/- on 01.09.2008. When he was promoted as Superintending Engineer on 01.04.2009 in the scale of Rs.15600-39100 with Grade Pay of Rs.7600, the scale was adjusted. We have noted the arguments of the applicant that the Cabinet Secretariat Special Service Bureau (Engineering Service) Recruitment Rules, 2000 provided to the post of Superintending Engineer the higher scale of Rs.37400-67000 + GP Rs.8700/-. The relevant Rules for the Superintending Engineers lay down as follows:-
Promotion:
Executive Engineer with 4 years regular service in the pay scale of Rs.12000-375-375-16500 (Non-functional subject to completion of 13 years regular service in Group A or 16 years regular gazette service.
Note:- Officers promoted to the rank of Superintending Engineer before completion of 13 years Group A Service or 16 years regular gazette service will continue to remain in the pay scale of Rs.12000-375-16500/- till they became eligible for the pay scale of Rs.14300-18300/-. The above Note clarifies the situation. The argument of the respondents that Superintending Engineer is not covered is supported by copy of the Rules submitted (page 106 of the paper book). The Preamble to the Recruitment Rules, 2000, provides as follows:-
In exercise of the powers conferred by the proviso to article 309 of the Constitution, and in supersession of the Special Service Bureau (Engineering Service) Recruitment Rules 1990 in so far as they relate to the posts of Architect, Executive Engineer, Assistant Engineer and Draughtsman Grade-III, except as respects things done or omitted to be done before such supersession, the President hereby makes the following rules regulating the method of recruitment to certain Group A , Group B and Group C posts in the Cabinet Secretariat, Special Service Bureau, namely:-
1. Short title and commencement.-(1) These rules may be called the Cabinet Secretariat, Special Service Bureau (Engineering Service) Recruitment Rules, 2000. This indicates that Rules, 2000 are only confined to the posts of Architect, Executive Engineer, Assistant Engineer Gr.I, Assistant Engineer Gr.II and Draughtsman Grade-III. Therefore, we find that the reliance of the applicant upon the Rules, 2000 in respect of Superintending Engineers is totally misplaced.
17. The applicant has placed reliance upon the letter of the Cabinet Secretariat dated 30.06.1989 in support of his contention as contained in this issue. We have looked at the contents of the OM dated 22.5.2000 issued by the respondent No.1 (Annexure A/3 of the paper book) and we find that it merely conveys the sanction of the President delegating powers to the SSB Engineers at par with their counterparts in CPWD in respect of financial matters alone. These delegations have been made subject to the restrictions and provisions of CPWD Code, CPWA Code, CPWD Manual Vol.II, General Financial Rules and other instructions issued by the Government in regard to execution of works from time to time. For the sake of clarity, the OM dated 22.5.2000 is extracted as under:-
I am directed to convey the sanction of the President to the delegation of powers for technical sanctions of works to Engineers in the Engineering Wings of CPMFs as specified in Annexure A.
2. The delegation of powers will be subject to the restrictions and provisions of CPWD Code, CPWA Code, CPWD Manual Vol.II, General Financial Rules and other instructions issued by the Government in regard to execution of works from time to time.
3. The powers indicated at Annexure A relates to grant of technical sanctions of works, with regard to other related powers such as acceptance of lowest tenders/single tender, award of works etc.. These shall be exercised as per the powers listed in CPWD Code Vol. II for equivalent rank officers in CPWD indicated in Annexure A.
4. This issues with the concurrence of Ministry of Urban Development vide their UO No.1084-F dated 9.5.2000 as well as MHA IFD Dy. No.1321/2000-Fin.II dated 16.5.2000. The respondent No.1, vide his OM dated 22.5.2000, delegated powers for technical sanctions of works to Engineers in the Engineering Wings in CPMFs at par with CPWD, except SSB, which, we consider, was under the administrative control of the Cabinet Secretariat in 2000. It is uncontroverted that Superintending Engineer is a civilian post; whereas the delegations made in MHA letter dated 22.5.2000 are for various combatised ranks in CPMF. We also find that Superintending Engineers continue to be governed by SSB (Engineering Service) Recruitment Rules, 1990 whereby they had been placed in the pay scale of Rs.3700-5000 with replacement scale of Rs.12000-375-16500 following the implementation of the 5th Pay Commission Report. On implementation of recommendation of 6th CPC, the Superintending Engineers were granted replacement scale of Rs.12000-16500 i.e. in PB-3 Rs.15600-39100 with Grade Pay of Rs.7600/-. We completely concur with the argument of the respondents. Considering our conclusion in respect of issue No.1, we are of the firm opinion that the pay scale of Rs.14300-18300 cannot be extended to the Superintending Engineers in SSB. The hierarchy as has been discussed in respect of Issue No.1 is a continuous one and this issue is accordingly decided against the applicant.
18. Insofar as the third issue is concerned, example of two persons namely AK Sen and KP Singh is in respect of Chief Engineer and would not be attracted to the case in hand. Accordingly, the issue is decided against the applicant.
19. In conclusion, we take cognizance of the fact that the Issues relating to grant of pay scales, parity in pay scales vis-`-vis inter service and inter post are all to be decided by the Pay Commission. Since, a new Pay Commission has been constituted and is sitting, it is better that these issues be referred to the Pay Commission. Insofar as the instant OA is concerned, the issues framed have been consistently decided against the applicant and as such, we find the OA devoid of substance. Therefore, it is dismissed without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/