Madras High Court
Union Of India (Uoi) Represented By The ... vs P. Viswanathan, A. Parameswaran, K. ... on 28 January, 2003
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar, F.M. Ibrahim Kalifulla
ORDER V.S. Sirpurkar, J.
1. This is a writ petition by the Union of India Challenging the order of the Central Administrative Tribunal (hereinafter called as Tribunal), whereby the Tribunal set aside the order dated 15.4.1998. By that order, the Government of India created 418 posts of Assistants (i.e.,10% of the total number 4177 posts of Upper Division Clerks) of Military Engineering Service to the grade of assistant in the revised pay scale of Rs.5000-150-8000 and in its place reduced the same number of posts in the Upper Division Clerks' Grade. Simultaneously, the scheme of granting special pay ofRs.70/- per month to the Upper Division Clerks for performing complex nature of duties was ordered to be abolished. It was conveyed in this order that the appointment to the upgraded posts of Assistant shall be effected through a normal Departmental Promotion Committee based on All India Seniority of the Upper Division Clerks. This order came to be challenged by the respondents 1 to 17 on the ground that this was nothing but an attempt to expose them to a fresh selection by constituting a fresh Departmental Promotion Committee. They pointed out that all of them were already subjected to a Departmental Promotion Committee procedure for being granted an extra pay of Rs.70/- per month which was meant for the stagnated employees or for those doing complex duties. They pointed out to the Tribunal that all of them were selected by the Departmental Promotion Committee and it was only on that basis that the extra pay o Rs.70/- per month was made payable to them. They pointed out that even in the recommendations of the 5th Pay Commission, there was a specific recommendation to the following effect:
"46.17:Special Pay to UDCs:- In subordinate offices having no clerical grade above the level of UDCs , special pay is granted to 10% of the UDCs at the rate of Rs.70 p.m. A demand has been made to enhance this amount and to remove the anomaly caused in fixation of pay, when a junior UDC in receipt of special pay is promoted and his pay is fixed at a higher stage than a senior. We have separately recommended, as a general policy, that special pay should not be given unless these are absolutely essential. In the present case, since 10% of the UDCs are involved in complex duties, it is recommended that 10% posts of UDC in such organizations be upgraded to the level of Assistant. This will also remove the anomaly that arise in fixation of pay."
Basing on this, their case was that once they were already selected by the Departmental Promotion Committee and on that basis they were drawing extra pay of Rs.70/- they should not be further exposed to the selection procedure and should straightaway to be upgraded in the upgraded post. In short, the respondents challenged the attempt on the part of the Government of India to effect a fresh selection for the purposes of upgrading 10% posts to the post of assistant and thereafter abolishing the pay of Rs.70/- per month of those who were being paid that extra pay.
2. The tribunal took the view that it was an admitted position that the original applicants before the Tribunal and the respondents before us were actually selected candidates by Departmental Promotion Committee . This was on the basis of the admission given in the counter by the Government where it was not disputed that the respondents herein were actually selected by the respective Departmental Promotion Committees to receive the extra pay of Rs.70/-. The Tribunal relying on the aforementioned para, came to the conclusion that this upgradation was meant only for those persons who were selected to receive the extra pay. On this basis the Tribunal by order dated 02.03.1999 permitted the upgradation of the respondents to the level of assistants without convening a fresh Departmental Promotion Committee. Much water flew under the bridge thereafter because the Government was slow in implementing the order of the Tribunal. Even contempt proceedings were taken for that purpose and ultimately it seems that the Government made some other make shift arrangements by placing the 14 respondents and adjusted them somehow or the other in the post of assistants but without giving them the effect of pay scales with effect from 1.1.1996. Be that as it may, the Government now comes and challenges the order on the ground that the Tribunal should not have set aside the order and should not have thwarted the attempt on the part of the Government to make selection by formulating fresh Departmental Promotion Committees.
3. At the outset, Mr. V. Vaithyalingam learned Senior Central Government Standing Counsel appearing for the petitioner pointed out that in pursuance of the aforementioned order dated 15.4.1998 fresh Departmental Promotion Committee was formulated and in that out of the 17 respondents three respondents only were selected to the post of assistant and the rest were somehow or the other adjusted in the posts of assistant. He pointed out that the Tribunal has erred in setting aside the order and in thwarting the exercise on the part of the Government in holding Departmental Promotion Committees because the earlier Departmental Promotion Committees were only for the purpose of granting extra pay to those persons who were being stagnated or who were doing some complex duties. According to the learned counsel, that was not a Departmental Promotion Committee for regular promotions whereas presently promotion was the only primary aspect which had to be considered. According to the learned counsel, the present Departmental Promotion Committee was for the purposes of effecting the promotions and not for granting the extra pay. This being the difference, according to the learned counsel for the petitioner the Tribunal had erred.
4. Learned counsel for the respondents however urged that this exercise of upgrading only 10% of 4177 posts emanated from the aforementioned para which we have quoted. He pointed out that initially 10% of the posts only were given the extra pay of Rs.70/- per month. Then a demand was made that this pay of Rs.70/- was insufficient. It was also found that by the earlier Departmental Promotion Committees some juniors were also selected perhaps because they were also doing some arduous duties. In the process those juniors were getting more pay than their seniors who were not so selected in the earlier Departmental Promotion Committee. It was therefore felt necessary to remove this anomaly by upgrading 10 % of the posts to the post of assistants. Learned counsel painstakingly pointed out that this could be done, i.e., removing the anomaly regarding the juniors getting more pay than the seniors, only by placing those juniors on the higher pedestal of Assistants. It is only for that reason 10% posts only were being upgraded to the post of assistant while removing those posts from the total posts of Upper Division Clerk so that the total compliment remained same. Learned counsel pointed out that the tribunal has correctly followed the above mentioned recommendation of the 5th Pay Commission in its letter and spirit.
5. Seeing the order of the Tribunal we are convinced that this exercise of creating a fresh Departmental Promotion Committee all over again could not be justified as that would not remove the anomaly. The anomaly in fixation of pay can be removed only by upgrading the post of those juniors and others who were already paid the extra pay of Rs.70/-to the post of assistant. We have no doubt that the Tribunal has correctly interpreted the above mentioned para in its letter and spirit.
6. Learned counsel for the petitioner then tried to urge that this could cause an imbalance on all India level. Learned counsel pointed out that in the impugned order dated 15.4.1998, the basis of selection was to be "all India seniority of Upper Division Clerks" and that itself is distinct feature because the earlier selections were not based on all India seniority of Upper Division Clerks. We cannot accept this for the simple reason that the very "Subject" of the impugned order suggests that this exercise was being done for implementation of the pay commission recommendation in its 5th Pay Commission Report (Para 46.17 quoted earlier). If that is so, it is obvious that in passing the impugned order the Government has ignored the specific terminology used in para-46.17 which runs as under:
".......it is recommended that 10% posts of UDC in such organizations be upgraded...."(underlining is ours) A reading of the above makes it clear that the upgradation was to be granted only in respect of those organisations where the pay rise was given earlier which was not on the basis of All India seniority. Therefore now that could not be made a basis. Secondly those persons were actually getting Rs.70/- by way of extra payment on the basis of the fact that they were doing some arduous duties and in this some juniors also were gettingRs.70/- extra payment and the Pay Commission wanted to remove this anomaly. If that is so, then there cannot be a fresh exercise of selection that too, on the basis of all India seniority. It is an admitted position that the earlier grant of extra pay was not on the basis of all India seniority. In our opinion, therefore the Tribunal has correctly interpreted the order and we do not see any merits in this writ petition and choose to dismiss the same.
7. But, before parting we must point out the actual mistake which has crept in the whole affair because of the incorrect statement of fact made on the part of few applicants before the Tribunal as also because of the laxity shown by the Central Government while filing the counter before the Tribunal. It is pointed out by Mr. V. Vaithyalingam, learned Senior Central Government Standing Counsel that respondents 12,15&16 were not the persons who had been selected in the earlier Departmental Promotion Committees to receive Rs.70/- held prior to 1-1-96. He therefore pointed out that atleast those three persons could not claim the exalted status of assistants with effect from 1-1-1996 which has been granted to them by the order of the Tribunal. Learned counsel appearing for the respondents also fairly conceded that these three persons were not selected in any of the Departmental Promotion Committees held prior to 1.1.1996. It is therefore obvious that a mistake has been committed in respect of those respondents. In this respect it is pointed out by the learned counsel for the respondents that these three respondents were selected in the Departmental Promotion Committees held after 1-1-1996 but before the 5th Pay Commission report was made applicable. The 5th Pay Commission Report was dated 30.1.1997 and the supplement report was dated 20.2.1997 and it was made applicable with effect from 1-1-1997 by notification dated 13-9-1997. Perhaps it is because of that the three respondents who were selected after 1-1-1996 but before 13-9-1997 to receive the extra pay also joined the band of applicants before the Tribunal. Because of this judgment, now they will loose their benefits not altogether, but their benefits will be only with effect from the date on which they were selected and not relatable to 1-1-1996. With this clarification we close the judgment.
8. Accordingly the writ petition is dismissed.
No costs.