Central Administrative Tribunal - Delhi
Hari Ram Shukla And Ors. vs Union Of India (Uoi), Through It'S ... on 2 February, 2007
ORDER Mukesh Kumar Gupta, Member (J)
1. MA 664/2006 filed under Rule 4(5) of CAT (Procedure) Rules, 1987 for joining together by thirteen applicants in one OA is allowed.
2. MA 665/2006 seeking condonation of delay in approaching this Tribunal in filing belated OA stating that they approached respondents on a number of times for grant of pay scale in skilled grade from the date of their initial appointment and they have informed that their case will be considered subject to the outcome of SLP filed before the Hon'ble Supreme Court of India. Though Writ Petition filed by respondents was dismissed by the Hon'ble Delhi High Court on 15.7.2000 & thereafter respondents' SLP filed vide CC No. 15136/2004 was also dismissed on 26.7.2004, they have yet not been granted benefits of pay scale in terms of directions issued by this Tribunal. Legal notice dated 24.8.2005 also did not elicit proper response. Re-fixation of pay is a continuous & recurring cause of action and in terms of law laid down in State of Bihar v. Kameshwar Prasad 2000 (1) SC SLJ 478, technicalities of law cannot be the ground to ignore substantial justice & undo illegalities.
OA 824/20063. Thirteen applicants, who joined respondents during the period 1969-84 in present OA, seek declaration to the effect that respondents action in fixation of their pay in scale of Rs. 3050-4590/- w.e.f. 01.5.1998 instead of from the date of their initial appointment is illegal, unjust, arbitrary & discriminatory and consequently respondents be directed to re-fix their pay in scale of Rs. 950-1500/- from the date of their initial appointment with all consequential benefits including arrears of pay & interests. Challenge is made to order dated 09.10.2001 to the extent, which directed that pay scale of applicant be raised to skilled grade of pay in scale of Rs. 3050-4590/- w.e.f. the date of filing of OA No. 804/98, with all consequential benefits including arrears, interest @ 18% p.a. & costs.
4. Admitted facts of case are that applicants were appointed in Military Engineering Services (hereinafter referred as MES) as a Caneman, against handicapped quota in pay scale of Rs. 210-290/-, which had been revised to Rs. 800-1150/-. All of them are blind persons (physically handicapped) & each of them had undergone a course of training in the trade at different centers. Said category of Caneman in MES was treated as unskilled whereas in other Departments of Government of India like Railways, said category was treated under skilled category w.e.f. 1982 and had been granted pay scale of Rs. 950-1500/-. Third Central Pay Commission had reduced number of different pay scales of industrial workers prevalent in the office of respondents from nine to five leaving it to them to carry out the actual fitment of the workers in the newly laid down five different pay scales. An expert classification committee was constituted for job evaluation in respect of various categories, which was finalized in 1985, however some categories were still left out and could not be considered for being fitted in the skilled grade. Therefore, another committee known as Anomalies Committee was constituted to re-evaluate the job contents of left out categories in pay scale of Rs. 210-290/- for fitment into skilled grade of Rs. 260-400/- but category of Caneman was not considered. Since respondents did not take any action to upgrade the trade of Caneman into a skilled grade, they approached this Tribunal vide OA No. 804/1998 seeking upgradation of said category in pay scale of Rs. 260-400/- w.e.f. the date similar other categories were upgraded. Said OA was disposed of vide order dated 15.9.2000 directing respondents to review the matter keeping in view the observations made therein and provide opportunity to Caneman in their set up. Being aggrieved respondents filed Writ Petition No. 1054/2001 before the Hon'ble Delhi High Court and during its pendency respondents on their own volition passed order dated 09.10.2001 raising the said trade of Caneman to skilled grade in pay scale of Rs. 3050-4590/- w.e.f. the date of filing of OA. However, said order was subject to the outcome of said petition. Said Petition was dismissed with costs vide judgment dated 15.7.2002 observing following:
Before parting we may only point out that despite being visually handicapped, respondents herein do not want to depend on others. They want to make their living by their own efforts. They have not only acquired educational qualifications but professional qualification as Caneman and proficiency in their trade as well. They are trying to compete with non-disabled and in such circumstances they need to be encouraged. Instead, the petitioners have adopted totally callous and insensitive attitude towards these visually handicapped persons, inasmuch as on hyper technical grounds even what is just and legitimately due to the respondents is also denied. The promotional avenues provided in the Recruitment Rules have remained illusory. The effect is that although working for a number of years neither they are treated as skilled nor their posts upgraded nor they have been able to get a single promotion in their career. The respondents who deserved better treatment at the hands of the petitioner are, however, denied even the equal treatment. We hope and trust that the petitioners shall sensitize themselves and acknowledge the rights of these respondents, who are not clamouring for any undue favour, and provide them their legitimate due without any further delay.
5. One of the applicants submitted representation dated 11.1.2003 and requested the respondents to review his case for fitment of scale w.e.f. November, 1982, instead of May, 1998 at par with their counterparts in Indian Railways to meet the ends of justice, but no action has been taken thereon. In the meantime, one similarly situated person namely Sh. Man Singh filed OA No. 1018/2003 seeking benefit of said scale from the date of his initial appointment which was allowed vide order & judgment dated 05.1.2004, reported in 2004 (3) ATJ 255.
6. Being aggrieved by the Hon'ble Delhi High Court order, respondents filed SLP vide CC No. 15136/2004, which was dismissed vide order dated 26.7.2004. Accordingly order passed by this Tribunal in OA 1018/2003 had been implemented. Legal notice dated 24.8.2005 was also issued, but of no avail. In the above backdrop, Shri Yogesh Sharma, learned proxy counsel for applicants vehemently contended that as similarly situated person Sh. Man Singh has been allowed the benefit of said scale w.e.f. the date of his appointment instead of the year 1998, applicants being similarly situated are entitled to the extension of said benefit. Reliance was also placed on SLP 1995 (3) SC 188 [Dr.(Mrs.) N.R. Anuradha and Ors. v. Union of India and Ors.].
7. Respondents contested the claim laid by filing detailed reply stating that OA is hopelessly barred by limitation as directions issued in previous OA No. 804/1998 decided on 15.9.2000 were complied with. Application is not maintainable as they cannot be allowed to agitate the same subject, which was the subject matter of earlier case and, therefore, OA being devoid of any merit deserves dismissal. The issue already decided cannot be re-opened & agitated further. Applicants have already been granted the pay scale w.e.f. 01.5.1998, which had been done after due deliberations under guidelines & rules of Government of India and in the light of judgment in afore-mentioned OA. Applicants are not comparable with officials working in Indian Railways and, therefore, there is no merit in the contentions raised. There is no comparison with individuals on whose judgment they have relied upon.
8. By filing rejoinder, applicants reiterated the claim & controverted the contentions raised particularly regarding limitation & constructive res-judicata. It was pointed out that pay fixation is a recurring cause of action. They have been discriminated in the grant of said scale of Rs. 950-1500/-, which has been granted to them from the year 1998
9. We have heard learned Counsel for applicants & perused the pleadings. None was present on behalf of respondents and, therefore, we have carefully perused the reply affidavit.
10. Shri Yogesh Sharma, learned Counsel for applicants pointed out that Division Bench of this Tribunal allowed OA No. 3047/2001 vide order dated 10.5.2002 [M.S.A. Khan and Ors. v. Union of India and Ors.] and OA No. 1076/2003 was also allowed vide order dated 21.1.2004. Said judgments have further been followed by subsequent Division Benches. Finding recorded in orders dated 10.5.2002 & 21.1.2004 in afore-mentioned OAs is that: 'applicants shall be entitled for fixation of their pay in scale of Rs. 950-1500/- with effect from the dates of their initial appointments.' It was pointed out that recently another OA No. 2634/2004 [Phool Chand v. Union of India and Ors.] vide order dated 01.8.2006, was partly allowed directing respondents 'to consider grant of pay scale of Rs. 950-1500/-' to the applicant by passing a reasoned & speaking order. It was further pointed out that Phool Chand in aforesaid judgment had been a physically handicapped. Earlier said OA No. 2634/2003 had been dismissed vide order dated 14.7.2005 on the ground that he was not identical situated. Later, RA No. 238/2005 filed by him was allowed vide order dated 30.5.2006 and, therefore, on re-hearing aforesaid order dated 01.8.2006 had been passed.
11. We have bestowed our careful consideration to all aspects of the matter. Basic facts, which remained undisputed, are that applicants were allowed scale of Rs. 950-1500/- from 01.5.1998 i.e. the date of filing of earlier OA No. 804/98. Only surviving grievance remains is whether they are entitled to such scale 'from the date of their initial appointment.' On the date of hearing i.e. 18.1.2007, we noticed dates of appointments of eleven applicants out of thirteen, which vary from the year 1969 to 1984. It has not been disputed that applicants are seeking benefit of scale, which was initially granted in the year 1982 when the post in question was treated as skilled. In the circumstances, we do not find justification to grant them said scale from the date of their initial appointment, which is even prior to 01.11.1982 i.e. the date on which the earliest date, this Tribunal would have jurisdiction to grant the relief under the provisions of Administrative Tribunals Act, 1985. As the applicants were negligent and sleeping over their rights since the date of their appointment at least from 1982 till 1998, we do not find justification to burden the Exchequer with the arrears. However, as a similarly situated persons have been granted the said scale from the date of their initial appointment, we deem it fit to grant said scale from the year 1982 on 'notional basis' so that they are brought at par with the officials with whom they had been seeking parity in MES since the year 1982. Following the limited ratio laid down in afore-mentioned judgments, the OA is partly allowed with direction to respondents to fix applicants' pay in scale of Rs. 950-1500/- w.e.f. 01.11.1982 or their date of appointment, whichever is later, instead of 01.5.1998. They will not be entitled to arrears for such pay fixation except one year prior to the date of institution of present proceedings. Present OA having been filed on 27.3.2006, for the sake of convenience we prescribe the date for arrears i.e. 01.4.2005. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No costs.