Central Administrative Tribunal - Delhi
Khem Singh vs Military Hospital on 20 November, 2023
1 O.A. No. 373/2022
Item No. Suppl.12
Central Administrative Tribunal
Principal Bench : New Delhi
(Circuit Sitting at Nainital)
O.A. No.373/2022
Reserved on : 20.10.2023
Pronounced on : 20.11.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Khem Singh
Aged about 65 years (Male)
S/o Sri Ghasita Ram
R/o Village Dhandera
Post Milap Nagar
Roorkee, District Haridwar.
...Applicant
(By Advocate : Mr. Tarun Prakash Singh Takuli)
Versus
1. Union of India through the Secretary
Ministry of Defence
New Delhi.
2. Army Head Quarter of MoD (Army)
New Delhi.
3. Commandant Military Hospital
Roorkee.
.. Respondents
(By Advocate: Mr. T.C. Aggarwal)
2 O.A. No. 373/2022
Item No. Suppl.12
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) The instant Original Application (O.A.) has been filed by the applicant challenging the impugned order dated 22.01.2018 passed by the respondent No.2, which was communicated to the applicant vide letter dated 12.03.2018 by the respondent No.3, whereby the applicant‟s claim seeking pay scales in 1st and 2nd ACP on par with Shri Kishan Lal, has been rejected by the respondents. While similarly situated employees are getting the higher pay scale, the applicant has been denied the same which creates grave hardship, irreparable loss and injury to him.
2. The brief facts as narrated by the learned counsel for the applicant are that the applicant was appointed as a Boot Maker in the pay scale of Rs.210-290 in Bengal Engineering Group (BEG) on 14.01.1984 (Annexure-2) along with one Shri Kishan Lal. He was upgraded and working as Skilled Boot Maker w.e.f. 01.01.1987. Thereafter, he was transferred from Station Work Shop to Military Hospital, Roorkee on 05.07.1999. After the recommendations of 4th CPC, the pay scale of the post was revised to Rs.950-1500/-. Further, the pay scale for the post of Boot Maker was recommended by the 5th CPC at par with Group „C‟ employees at Rs.3050-4590/- with 1st ACP of Rs.4000-6000/- and 2nd ACP of Rs.5000-8000/-. Accordingly, the applicant was granted 1st ACP vide order dated 14.03.2006 (Annexure-3). However, vide order dated 04.02.2009 (Annexure-4), 3 O.A. No. 373/2022 Item No. Suppl.12 the aforesaid 1st ACP granted to him got withdrawn by the respondents without assigning any reasons, whereas the other employees working on the said post were getting the 2nd ACP in the pay scale of Rs.5000-8000/- and the excess payment made from 2006 to 2009 was recovered from him. Against the said order, the applicant filed a Writ Petition before the Hon‟ble High court, which was dismissed on the ground of alternate remedy. Accordingly, he filed O.A. No. 1257/2010 before Nainital Circuit Bench of this Tribunal, which was disposed of vide order dated 30.08.2010 (Annexure-5) by directing the applicant to make a fresh representation and the respondents were directed to decide the representation made by him. In compliance of the aforesaid directions, the respondents vide order dated 18.01.2011 rejected the representation made by the applicant and his claim for higher pay scale has also been refused vide order dated 28.06.2011 (Annexure-
6).
3. Challenging the orders dated 18.01.2011 and 28.06.2011, the applicant filed another O.A. No.660/2012 and the same was allowed by Nainital Circuit Bench of this Tribunal vide order dated 20.04.2015 (Annexure-7). Against the aforesaid order, the respondents filed Writ Petition No. 98 of 2016 titled Union of India & Ors. vs. Central Administrative Tribunal & Anr. before the Hon‟ble High Court of Uttarakhand. The Hon‟ble High Court vide its order dated 30.11.2017 modified the order passed by this Tribunal with a direction to the respondents to pass the order in 4 O.A. No. 373/2022 Item No. Suppl.12 the light of the decision in State of Punjab & Ors. vs. Jagjit Singh & Ors., (2017) 1 SCC 148. The Hon‟ble High Court also observed that "we are not inclined to interfere with the order passed by the Tribunal directing re-consideration of the matter, we only need to make certain observations....." (Annexure-8).
4. The learned counsel further averred that the applicant was working as Boot Maker since 1984 and upgraded as Skilled Boot Maker in 1987, there was no occasion when regarding industrial or non-industrial post has been communicated to him, prior to filing of the counter affidavit by the respondents before this Tribunal. The applicant approached the respondents with the order passed by the Hon‟ble High Court, however, the respondents rejected his claim vide impugned order dated 22.01.2018, communicated vide letter dated 12.03.2018.
5. It is further submitted that the appointing authority of the applicant was BEG, as the similarly situated employee, viz. Kishan Lal. At the time of transfer from BEG to Military Hospital Roorkee, no option has been called from the applicant regarding his choice and at the later stage, he had been declared as surplus/deficiency scheme, however, the applicant was working under the direction of his superiors. He drew our attention to the pay fixation order dated 26.02.2010 (Annexure-9) granting 2nd ACP to Shri Kishan Lal and argued that difference in pay scale is not permissible in the eyes of law, more particularly when the appointing authority is the same. In 5 O.A. No. 373/2022 Item No. Suppl.12 support of his contention, he relied upon the judgment passed by the Hon‟ble Supreme Court in Jagjit Singh (supra).
6. The learned counsel for the applicant further argued that the applicant should not be denied similar or higher pay scale, merely on the ground that he has been declared surplus and has been transferred to other institution, as the appointing authority of the applicant was BEG and all the regulations applicable in BEG will be applicable in his case and he is entitled to the similar benefits. Further, if the respondents would have put a proposal of industrial and non-industrial boot maker and the applicant would have opted for any of the options, then the situation would have been different. But in the present case, no such option was sought from the applicant and, till 2006, he was being similarly treated as the other employees were being treated but in the year 2009, he was treated differently and compelled to participate in the court proceedings before various forums.
7. He further submitted that since the Tribunal had allowed his claim, the applicant had no other option except to challenge the impugned order dated 22.01.2018 before the Hon‟ble High Court, however, vide order dated 22.02.2022, the Hon‟ble High Court observed that the writ petition may not be an appropriate remedy available to him. Hence, the writ petition was dismissed with liberty to him to approach this Tribunal. Thus, the applicant has availed the remedy available to him and in terms of judgment passed by the 6 O.A. No. 373/2022 Item No. Suppl.12 Hon‟ble Supreme Court in Jagjit Singh (supra), as he is entitled to get equal benefits as has been given to his counterparts, he filed the present O.A. seeking the following relief(s):
"(i) Issue a direction to quash the impugned order dated 22nd of January, 2018 passed by respondent no. 2 which was communicated to the applicant vide letter no. 20231/Coy/Civ/2018 dated 12th of March, 2018 by the respondent no. 3. (annexure no. 1 to the writ petition)
(ii) Issue a direction directing the respondents to upheld the order dated 14-03-2006 and all consequential benefits thereof including the 2nd ACP of Rs. 5000-
8000/- alongwith the refund of the already recovered amount from the applicant alongwith interest as the similarly situated employee has been granted and all the consequential benefits thereof, else the applicant shall suffer irreparable loss and injury and the same cannot be compensated by any means.
(iii) any suitable order or direction, which this Hon'ble court may deem fit and proper on the basis of the facts and circumstance of the case."
The claim of the applicant is that this Tribunal has already allowed the claim of the applicant, however, the only issue for consideration is that the matter may be decided in the light of judgment passed by the Hon‟ble Supreme Court in Jagjit Singh (supra), which is liable to be allowed in the light of aforesaid judgment, keeping in view the observations made by the Hon‟ble High Court vide order dated 30.11.2017.
8. Per contra, the respondents have filed a counter affidavit opposing the O.A. Learned counsel for the respondents relying upon the averment made in the counter affidavit, averred that the applicant is a Boot Maker and transferred from Station Workshop (EME), Roorkee to Military Hospital, Roorkee Army Medical Corps 7 O.A. No. 373/2022 Item No. Suppl.12 w.e.f. 05.07.1999 under surplus/deficiency scheme. He was given the same pay scale which he was getting in the organisation, from where he was transferred. After transfer from one organization to another, the person is governed by the rules of the organization presently working for subsequent promotion/financial upgradation under ACP/MACP. Accordingly, the applicant is governed by the rules applicable in Military Hospital w.e.f. 05.07.1999. Hence, no illegality has been caused by the respondents in passing the impugned order dated 22.01.2018.
9. It has been further clarified that the post of Boot Maker under respondent No.2, i.e. DGMS (Army), AGs Branch, is non-industrial and semi-skilled in the pay scale of Rs.210-290/- and on being eligible for 2nd ACP, the service book of the applicant alongwith the board proceedings were forwarded to respondent No.2, but it was intimated that financial upgradation through 1st ACP vide order dated 04.02.2009 was given to the applicant without their approval and court of inquiry was also ordered as Boot Maker under respondent No.2 is a non-industrial semi-skilled post. Initially, 1st ACP was granted to the applicant in the pay scale of Rs.4000-6000/- but respondent No.2 did not accept the same. Hence, excess payment made to the applicant on account of 1st financial upgradation was recovered due to his non-entitlement.
10. The learned counsel for the respondents further averred that pursuant to the order dated 30.09.2017 passed by the Hon‟ble High 8 O.A. No. 373/2022 Item No. Suppl.12 Court of Uttarakhand in Writ Petition No.98 of 2016, the competent authority, i.e. the respondent No.2, passed a speaking order dated 22.01.2018 regarding applicability of pay parity in terms of Hon‟ble Apex Court‟s judgment in Jagjit Singh (supra), which reads as under:
"4(d) Law as contained in State of Pubjab & others vs Jagjit Singh & Others has been examined in detail. The case relates to application of the principle of equal pay for equal work, in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like). All these employees are working in the same organization. In the case under consideration two different organizations i.e. Bengal Engineering Group and Military Hospital (Army Medical Corps) are involved and more over employee concerned is permanent and hence, this case is not applicable to the present case."
11. It is further submitted that the applicant is not similarly situated to Shri Kishan Lal, as the initial appointment of the applicant is as a semi-skilled employee in a different pay scale of Rs.210-290/-. In 1999, when he was transferred to Military Hospital Roorkee under surplus/deficiency scheme to separate cadre in Engineering Branch like BEG, Boot Maker trade is an industrial post but in Military Hospital under DGMS (Army), Boot Maker is not an authorized post, but Boot Repair is an authorized post. Hence, the applicant was transferred and employed against the vacant post of Boot Repair in Military Hospital and he is in employment as such from 1999 to December, 2017. Further, the judgment in Jagjit Singh (supra) is not applicable in the case of the applicant as the application of principle of „equal pay for equal work‟ is only applicable to temporary/casual/contractual employees working in 9 O.A. No. 373/2022 Item No. Suppl.12 the same organization and his case cannot be compared with Shri Kishan Lal, to whom he is seeking parity, as he is under cadre controlling of Army Medical Corps under respondent No.2, whereas Shri Kishan Lal is under cadre controlling of Engineer-in-Chief Branch; and both are different cadre of Army and their nature of work and operational duties are also different. Hence, he has no right to compare his pay scale with the employee working in Engineer-in-Chief Branch. Moreover, the applicant has never made any complaint or preferred any representation regarding disparity in pay scale through proper channel where he worked. Accordingly, the O.A. is liable to be dismissed.
12. We have heard Mr. Tarun Prakash Singh Takuli, learned counsel for the applicant and Mr. T.S. Aggarwal, learned counsel for the respondents and have perused the pleadings and judgments on record.
13. After considering the rival submissions made by both the sides, the only issue that arises for our consideration is whether the applicant is entitled to the pay scales while granting 1st and 2nd ACP at par with Shri Kishan Lal, in terms of the judgment passed by the Hon‟ble Supreme Court in Jagjit Singh (supra).
14. We have gone through the various orders passed in earlier round of litigations. The Circuit Bench of Nainital of this Tribunal 10 O.A. No. 373/2022 Item No. Suppl.12 while allowing the O.A. No. 660/2012 vide order dated 20.04.2015 passed the following order:
"11. Accordingly, OA is allowed and respondents are directed to reconsider the claim of the applicant and grant him the same scale of Pay as well as the same benefits of ACPs, which his counterpart working at BEG and Centre is enjoying, if the applicant is otherwise eligible. This exercise should be completed within 03 months from the date of receipt of certified copy of this order. There is no order as to costs."
15. Challenging the aforesaid order, the respondents filed Writ Petition No. 98 of 2016 titled Union of India & Ors. vs. Central Administrative Tribunal & Anr. before the Hon‟ble High Court of Uttarakhand. The Hon‟ble High Court vide its order dated 30.11.2017 modified the order passed by this Tribunal to some extent, with the following observations/directions:
"7. We notice that the Tribunal has proceeded to direct the matter to be re-considered. With respect to the same, we also feel that the matter must be re-considered. We notice that, in paragraph 9 of the order, there is reference to one Boot Maker Kishan Lal, who was appointed along with the applicant at BEG & Centre, being considered as skilled trademan and getting the pay- scale of ` 3050-4590, with the second ACP of ` 5000- 8000/-. There is also reference to the applicant being granted the same pay-scale; but he being reverted to the scale of semi-skilled Boot Maker and also the withdrawal of the ACP, which was granted at par with his counterpart at BEG. Thereafter, it is stated that the controlling authority is different. In respect of the controlling authority being different, it is the finding that both the establishments are working under IHQ of Army and both of them were simultaneously appointed and posted at BEG and Centre on the same pay-scale of ` 210-290. The applicant is stated to have been transferred to Military Hospital, Roorkee, from BEG & Centre. There is a finding that the denial of same pay-scale is a clear violation of Articles 14 & 16 of the Constitution and the respondents cannot be allowed to discriminate the applicant from Kishan Lal. It is, thereafter, that a finding is entered that, if the terms and conditions of appointment of the applicant and Kishan Lal are the same, the applicant is also entitled to the same pay-scale and same benefit of ACPs and the applicant cannot be discriminated on the ground that he is working under different controlling authority while both the Controlling Authorities come under IHQ of Army. It is, thereafter, that the direction was given.
(emphasis supplied) 11 O.A. No. 373/2022 Item No. Suppl.12
8. In this case, it is to be noted that, while it is true that the applicant was originally appointed on 14.01.1984, the definite case of the petitioners appears to be that, in the year 1987, the applicant came to be posted out to Station Workshop EME, Roorkee, under the Surplus / Deficiency Scheme w.e.f. 30.09.1987. There is also, in the impugned order before the Tribunal, reference to certain orders, which show that the applicant was treated as a non-industrial employee. The orders are not before us. Still further, it would appear that the Station Workshop EME, Roorkee, issued order giving permanent posting to the applicant in Military Hospital, Roorkee, under the Surplus Scheme w.e.f. 05.07.1999. We notice that there is a definite case that the applicant is shown as a nonindustrial employee and he joined as such in the Military Hospital, Roorkee. The entire case, thereafter, is built around the order dated 09.08.1999 insofar as the authorities have proceeded on the basis that the post of Boot Maker is an isolated post with neither feeder category nor promotional grade. Therefore, they had relied on order dated 09.08.1999, under which, financial upgradation under ACPs, in such circumstances, was to be given by placing the applicant in the next higher Standard / Common pay scale. The pay-scales are annexed to the OM dated 09.08.1999.
9. Articles 14 and 16 frown upon treating equals unequally, as much as they frown upon treating unequals equally. Inequality cannot be predicated on insubstantial causes. If, substantially, the parties are discharging the same duties and functions, then, ordinarily, they should get the same treatment. In this regard, we may refer to a judgment of the Apex Court dealing with parity in pay-scale in the case of State of Punjab & others vs. Jagjit Singh & others, reported in (2017) 1 SCC 148.
10. Since we are also not inclined to interfere with the order passed by the Tribunal directing re-consideration of the matter, we only need to make certain observations. The authority must consider whether, as far as the post of Boot Maker in BEG & Centre is concerned, it is also an isolated post and whether it has feeder category or promotional categories. If the post of Boot Maker in BEG & Centre also does not have feeder category and promotional category, then it would also be an isolated post and, yet, the authorities would have to consider as to why the Boot Maker at BEG & Centre is being treated differently by giving him the higher pay-scale by way of second ACP in comparison to what has been given to the applicant. Next, the authority will also consider the effect of the orders, which have been passed, by which the applicant had been transferred / posted in 1987 in the Station Workshop and, still later, in 1999, in the Military Hospital. The authorities will necessarily consider the effect of the order dated 14.01.1987 by which the applicant was upgraded to skilled. No doubt, the authorities will be free to consider the effect of the subsequent postings of the applicant on the basis of the Surplus / Deficiency Scheme in 1987 and 1999 on the availability of the ACP, though it may be true that the applicant was originally appointed in the year 1984 in BEG. We only make it clear that the fact that the Boot Maker at BEG was appointed along with the applicant need not be the sole basis for giving the benefit of second ACP to the applicant also, if there are substantial differences between them. We also make it clear that the authority will take into consideration the law as contained in 12 O.A. No. 373/2022 Item No. Suppl.12 State of Punjab & others vs. Jagjit Singh & others, reported in (2017) 1 SCC 148. The order will be passed within a period of one month from the date of production of a certified copy of this judgment. The order passed by the Tribunal will stand modified as above.
11. It is brought to our notice that, pursuant to an interim order passed by this Court, order dated 19.09.2016 has been passed.
The said order was passed pursuant to the interim order, wherein it is made clear that it will be subject to the result of the writ petition. In such circumstances, we still direct that an order be passed re-considering the matter in terms of the observations contained in this judgment.
12. The writ petition is, accordingly, disposed of."
16. Pursuant to the aforesaid directions issued by the Hon‟ble High Court of Uttarakhand, the respondent No.2 after re-examining the case of the applicant taking into account relevant rules/orders/instructions on the subject and applicability of pay parity in terms of Hon‟ble Apex Court‟s judgment in Jagjit Singh (supra), rejected his claim by passing a detailed order dated 22.01.2018.
17. Having regard to the categorical finding recorded by the Hon‟ble High Court of Uttarakhand, as reproduced herein above, wherein their Lordships have also considered the decision of the Hon‟ble Supreme Court in Jagjit Singh (supra), we are of the considered view that the applicant cannot be discriminated with Kishan Lal, as their terms and conditions of appointment were the same, merely on the ground that he is working under different controlling authorities, more so, when both the controlling authorities come under the IHQ of Army. Accordingly, we hold that 13 O.A. No. 373/2022 Item No. Suppl.12 the applicant is also entitled to the same pay scales and same benefit of ACPs.
18. Resultantly, the O.A. is allowed and the impugned order dated 22.01.2018 passed by respondent No.2 is quashed and set aside. The respondents are directed to upheld the order dated 14.03.2006. It is made clear that the applicant will be entitled to all consequential benefits, including the 2nd ACP in the pay scale of Rs.5000-8000. The respondents are further directed to refund the recovered amount to the applicant within a period of three months from the date of receipt of a certified copy of this order, failing which interest at the GPF rate shall be payable to him for the delayed period.
There shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /jyoti/