Gauhati High Court
Go - 1269X Sb Singh Se (Civ) And Ors. vs Union Of India (Uoi) And Ors. on 23 December, 2004
Equivalent citations: (2005)1GLR631
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. The 11 writ petitioners are working as Superintending Engineers in the General Reserve Engineering Force (GREF). As the pleadings of the parties would go to indicate, the GREF is a unit of the Border Roads Organisation and the petitioners are members of the Border Road Engineering Service, having been inducted in service on the basis of a combined Engineering Service examination held by the UPSC.
2. The grievance expressed is with regard to what the petitioners contended to be their entitlement to the scale of pay of Rs. 14,300 -18,300 in the posts of Superintending Engineer held by them, as had been recommended by the 5th Central Pay Commission.
3. Earlier to the recommendations of the 5th Central Pay Commission, the cadre in Group A in the Engineering Service of the Border Roads Organisation consisted of the following posts with the below mentioned pay scales :
Posts Pay scale
1. Assistant Executive Engineer 2200-4000
2. Executive Engineer 3300-4500
3. Superintending Engineer 3700-4500
4. Superintending Engineer 4500-5700
(Non-functional Grade)
5. Chief Engineer 5100-6700
4. The 5th Central Pay Commission in paragraph 50.45 of its report had recommended that the non-functional pay-scale of Rs. 4,500 - 5,700 (revised to Rs. 14,300 - 18,300) applicable to the Superintending Engineers in the CPWD should be converted into a functional grade and promotions to the above scale should be permitted on completion of 13 years of regular service in Group-A. The Pay Commission in its report had also recommended that the functional pre-revised scale of Rs. 3,700 - 5,000 (revised to Rs. 12,000 - 16,500) applicable to Superintending Engineers as the First Grade on their promotion from the post of Executive Engineer should instead be the non-functional grade for Executive Engineers in the pre-revised pay-scale of Rs. 3300-4500/- (revised to Rs. 10,000 - 15200).
The Pay Commission in its report had also clarified that though its recommendations in regard to the pay-scales of the above-noted two posts were being made in the context of C.P.W.D. Engineers, the benefit should be made available to all Engineering cadres in the Government.
The picture, which emerges from the above is that in so far as Grade-A Officers of the Engineering Service in the Border Roads Organisation is concerned, the recommendations of the Pay Commission visualise restructuring of the posts in the cadre in the following manner with the pay scales indicated below :
Posts Pay structure
1. Assistant Executive Engineer 8,000-13,500
2. Executive Engineer 10,000-15,200
3. Executive Engineer 12,000-16,500
(Non-functional Grade)
4. Superintending Engineer 14,300-18,300
5. Chief Engineer 18,400-22,400
5. The Government of India in the Ministry of Personnel issued an Office Memorandum dated 6.6.2000 implementing the recommendations of the Fifth Pay Commission with regard to the scales of pay of the posts of Superintending Engineers and Executive Engineers. Under the aforesaid Office Memorandum, the functional grade of Rs. 14,3000 - 18,300 was to be allowed to the Superintending Engineers subject to availability of vacancies and further, only, on completion of at least 13 years of regular service in Group-A which must include four years of service in the scale of Rs. 12,000 - 16,500. The Office Memorandum dated 6.6.2000 further visualisesd that in case promotion to the post of Superintending Engineer is made before completion of 13 years of regular service in Group A, the incumbents so promoted will continue to remain in the scale of Rs. 12,000 - 16,500 till they become eligible for the scale of Rs. 14,000 - 18,300. Furthermore, in para 4 of the Office Memorandum dated 6.6.2000, it was clearly stipulated that only those incumbents holding the posts of Superintending Engineers who have completed the prescribed qualifying service of 13 years will be placed in the scale of Rs. 14,300 -18,300 and other incumbents in the posts who do not fulfill the requirement of qualifying service would be granted the scale of Rs. 14,300 - 18,300, only from such dates on which they complete the required period of service.
6. Thereafter, on 25.10.2000, by an order issued by the Under Secretary to the Government of India, Border Roads Development Board, the approval of the President of India for grant of the functional scale of pay of Rs. 14,300 - 18,300 to 50 Superintending Engineers of the Civil, Electrical and Mechanical Engineering Cadres of the Border Roads Engineering Service as mentioned in two separate schedules to the said order, was conveyed to the Director General of Border Roads Organisation. In the above manner, the aforesaid scale of Rs. 14,300 -18,300 was approved in the case of as many as 50 Officers in the rank of Superintending Engineer.
7. While the matter of was so situated, another Office Memorandum dated 20.12.2000 was issued modifying the period of qualifying service of 13 years as mentioned in the Office Memorandum dated 6.6.2000 and instead 9 years of service in the post of Executive Engineer including service rendered in the Pay scale of Rs. 12,000 - 16,500 was stipulated as the condition of eligibility for being placed in the scale of pay of Rs. 14,300 - 18,300.
8. A hue and cry having been raised by the officers affected by the aforesaid modification of the eligibility criteria for being entitled to the pay scale of Rs. 14,300 - 18,300, representations were filed and eventually the respondent No. 5 i.e. Controller of Defence Accounts, Border Roads, by order dated 26.2.2002 provisionally granted the scale of Rs. 14,300 - 18,300 to all the Superintending Engineers who had put in 13 years of regular service in Group A subject to the condition that in case of an adverse decision by the Government, the concerned Officer will be liable to refund the excess amount paid. Thereafter on 10.7.2002, the provisional pay of Rs. 14,300 - 18,300 as granted by order dated 26.2.2002 was finalised in respect of the Superintending Engineers who were covered by the order dated 25.10.2000. As the petitioners have been promoted to the post of Superintending Engineer subsequently i.e. on 17.9.2001 and 8.10.2002 and their promotion order explicitly recites that they have been promoted in the scale of Rs. 12,000 - 16,500, the instant writ petition has been filed seeking suitable order/ directions for upgradation of the pay scale of the petitioners to the level of Rs. 14,300 - 18,300.
9. I have heard Mr. Michael Zothankhuma, learned counsel for the petitioner and Mr. S. Bhattacharjee, learned counsel appearing on behalf of the respondents.
10. Two major planks on which the arguments advanced on behalf of the petitioner can be placed are discernible from the oral contentions raised at the time of hearing by the learned counsel. Firstly, it is contended that the scale of pay of Rs. 14,300 - 18,300 is what has been recommended for the post of Superintending Engineer in all Engineering cadres of the Central Government including the GREF/ Border Roads Organisation. What was recommended by the Pay Commission and accepted by the Government is the requirement of 13 years of service in Group-A in order to be put in the said scale, which period of service the petitioners have rendered. The aforesaid recommendations, it is argued, have been accepted in the case of other Engineering Wings of the Central Government like MES, CPWD, P & T and the said benefit has been conferred to the Superintending Engineers in the said departments who have put 13 years of regular service in Group-A as in the case of the petitioners. Merely because the petitioners belong to the GREF they have been signgled out for the discriminatory treatment which has resulted from the subsequent clarifications/modifications made by the Office Memorandum dated 20.12.2000. That apart, it has been contended, which in effect, is the second plank of the arguments advanced, that all the Officers to whom the benefit of scale of pay of Rs. 14,300 - 18,300 has been granted by the Office order dated 10.7.2002 do not have 9 years of regular service in the post of Executive Engineer. The petitioners also do not have the said period of service in the post of Executive Engineer; yet persons similarly situated have been granted the scale of pay of Rs. 14,300 -18,300 which has been denied to the petitioners merely by taking into account the fortuitous circumstances of the dates of their promotion orders. Additionally, it has been argued that the scale of pay of Rs. 12,000 - 16,500 is really the non-functional scale of pay in the post of Executive Engineer and the petitioners having been promoted to the posts of Superintending Engineer, they could not have been granted the scale of pay in the post of Executive Engineer.
11. The arguments advanced on behalf of the petitioners have been refuted by Mr. S. Bhattacharjee, learned Addl. C.G.S.C. by contending that the recommendations of the Fifth Central Pay Commission have not been accepted in toto by the Central Government in so far as GREF is concerned. The period of qualifying service as spelt out in the Office Memorandums dated 6.6.2000 and 20.12.2000 are in respect of the scale of pay of Rs. 14,300 - 18,300 which is not the only scale in the post of Superintending Engineer. The Recruitment and Promotion Rules contemplate promotion to the post of Superintending Engineer from the rank of Executive Engineer on completion of five years of service. The absence of any amendment to the Recruitment and Promotion Rules as well as the provisions of the Revised Pay Rules providing the scale of pay of Rs. 12,000 - 16,500 to the post of Superintending Engineer clearly indicates that the scale of pay of Rs. 14,300 - 18,300 is a higher scale or grade to which an incumbent will be entitled only on completion of the required period of qualifying service. The period prescribed under the Office Memorandum dated 6.6.2000 i.e. 13 years of regular service in Grade-A was modified to 9 years of regular service in the post of Executive Engineer by the subsequent Office Memorandum dated 20.12.2000. The modification was pursuant to a policy decision taken by the Government in the interest of public service. Power must be acknowledged in the employer to lay down the eligibility conditions for promotion to posts as well as grades/scales of pay. It is, therefore, argued that the petitioners, admittedly, not having fulfilled the requirement of 9 years of regular service in the post of Executive Engineer as stipulated by the Office Memorandum dated 20.12.2000, they must wait till they complete the required period of service, which could also be in the scale of pay of Rs. 12,000 - 16,500, before they can be put in the higher scale of pay of Rs. 14,300 - 18,300.
12. The rival submissions advanced on behalf of the parties have been duly considered. The power of the Court to determine questions of entitlement of a particular section of employees to a particular scale of pay is severely circumscribed by self-imposed limitations. Recognition has been given to the employers to be the best judges of such entitlement of the employees. The role of the Courts in such matter is extremely limited and judicial intervention would be justified only if fixation/grant of scale of pay is made without any basis thereby resulting in arbitrariness or hostile discrimination which is prohibited by Article 14 of the Constitution.
13. Keeping in mind the above limitations inherent in the judicial power, the Court may now proceed to analyse the situation. The Office Memorandum dated 6.6.2000 issued in implementation of the recommendations of the Pay Commission would clearly go to indicate that the recommendations of the Pay Commission, even if such recommendations are to be understood for one single scale of pay of Rs. 14,300 - 18,300 for the post of Superintending Engineer on completion of 13 years of service in Group-A, had not been accepted by the Central Government in full. This is not only evident from the absence of any amendment to the Recruitment and Promotion Rules but also from the provisions of the Revised Pay Rules, 1997. The said fact is also apparent from a mere reading of the Office Memorandum dated 6.6.2000, Paragraphs 3 and 4 of the Office Memorandum clearly visualise that the scale of pay of Rs. 14,300 - 18,300 will not be available to all incumbents in the rank of Superintending Engineer but only to those who have the required period of qualifying service and that too in situations where vacancies are available in the said scale. In other situations, an Officer though holding the post of Superintending Engineer will continue to be in the lower scale of pay of Rs. 12000 -16500/- till he completes the required period of qualifying service or till vacancies are available in the said scale, as may be. That there is a scale of pay of Rs. 12,000 - 16,500 in the post of Superintending Engineer is thus clear from the contents of the Office Memorandum dated 6.6.2000. The subsequent Office Memorandum dated 20.12.2000 merely changed the eligibility criteria and instead of 13 years of regular service in Grade A what was stipulated in 9 years of service in the post of Executive Engineer which period could also be in the scale of pay of Rs. 12,000 - 16,500. Whether the alteration of the condition of eligibility in terms of qualifying service was justified or not cannot, accordingly, be a subject matter of judicial determination. Such matters are appropriate for decision by the employer and the Courts are singularly ill-equipped to review any such decision on merit. This is precisely the reason why Courts have consciously stayed away from the process of any such determination unless circumstances exist to attract the limited jurisdiction, as already noticed. Similarly, whether the altered condition of eligibility i.e. 9 years of service in the post of Executive Engineer should be insisted upon for grant of the scale of pay of Rs. 14,300 -18,300 in the GREF and not in cases of other department is again a question which, in the considered view of the Court, should be best left to be decided by the employer. What are the precise reasons and factors which necessitate such a requirement in the case of GREF and not in the case of other departments are matters that the Court has no expertise to answer in a correct manner. This is not to say that the Court is powerless to deal with all such situations; what is being emphasised is the limited role of the Court in such matters. In the present case, no materials have been brought on record by the petitioners to justify exercise of the limited power of judicial review. On the other hand, the petitioners having been promoted to the post of Superintending Engineers in the scale of pay of Rs. 12,000 - 16,500 and admittedly the condition of eligibility to be entitled to the higher scale of Rs. 14,300 -18,300 not having been met/satisfied by them, this Court must hold that the petitioners will have to wait till completion of the required period of service.
14. There is yet another aspect of the case which would require the attention of the Court. The petitioners allege discrimination on the ground that by the order dated 25.10.2000, the scale of pay of Rs. 14,300 - 18,300 has been granted to Superintending Engineers who also do not have the qualifying service of 9 years in the post of Executive Engineer as in the case of the petitioners. The aforesaid grant of higher scale to such persons have been approved by the subsequent order dated 10.7.2002 whereas the petitioners, though similarly situated, have not been granted the aforesaid higher scale of pay. The Contention advanced, at first blush, is indeed attractive but the attraction fades away upon a closer scrutiny. On 25th October, 2000 when the scale of pay of Rs. 14,300 - 18,300 was granted to the 50 Superintending Engineers, the Office Memorandum dated. 6.6.2000 was holding the field. The aforesaid Superintending Engineers, even according to the petitioners, have the period of qualifying service of 13 years in Group-A which was the requirement at that point of time. Subsequently, the requirement was altered to 9 years of regular service in the post of Executive Engineer by the Office Memorandum dated 20.12.2000. The Office Memorandum dated 20.12.2000 could only be prospective and could not have been operated upon to take away benefits already accrued. The benefit of the higher scale having been granted by the order dated 25.10.2000 to persons who were eligible on the said date and such eligibility having been prospectively revised with effect from 20.12.2000, after which date the petitioners were promoted, no question of discrimination can arise in the facts and circumstances as noted above.
15. For all the aforesaid reasons, I do not find any merit in this writ petition. Consequently, the writ petition is dismissed and the reliefs prayed for are refused. However, having regard to the facts and circumstances of the case, there shall be no order as to costs.