Central Administrative Tribunal - Ernakulam
M.Damodharan vs Union Of India Represented By The ... on 17 August, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.690/2013
Wednesday, this the 17th day of August, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
M.Damodharan,
S/o.Prabhakara Menon,
Retired Wireless Supervisor,
Central Institute of Fisheries Nautical and Engineering Training,
Fine Arts Avenue, Kochi - 16.
Residing at Manikkiri, 8/271-C, Manjelipadam,
Eroor West, Tripunithura - 682 306. . . . Applicant
(By Advocate Mr.T.A.Rajan)
Versus
1. Union of India represented by the Secretary,
Government of India, Ministry of Agriculture,
Department of Animal Husbandary, Dairying & Fisheries,
New Delhi - 110 001.
2. Union of India represented by the Secretary,
Government of India, Ministry of Finance,
Department of Expenditure, New Delhi - 110 001.
3. The Director,
Central Institute of Fisheries Nautical and Engineering Training,
Fine Arts Avenue, Kochi - 16.
4. The Administrative Officer,
Central Institute of Fisheries Nautical and Engineering Training,
Fine Arts Avenue, Kochi - 16. . . . Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
This application having been heard on 25 th July 2016, the Tribunal on
17th August 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant retired from service as Wireless Supervisor on 31.5.2012. His grievances is that on implementation of 5 th Central Pay Commission he is entitled to get the pay in the scale of pay of Rs.5000-8000 with effect from 1.1.1996 and on implementation of 6 th Central Pay Commission pay he is entitled to get pay in the scale of pay of Rs.9300- 34800 with effect from 1.1.2006. But he was given the pay in the scale of pay of Rs.4500-7000 and Rs.5200-20200 respectively. He approached this Tribunal in O.A.No.293/2011 which was disposed of directing the applicant to make a fresh representation and directing the respondent to consider the same. Accordingly the applicant submitted a fresh representation which was rejected by the 3rd respondent without considering the observations of this Tribunal in the order in O.A.No.293/2011 and also against the views in the proposal submitted to the 1 st respondent for upgrading the scale of pay of Wireless Supervisor.
2. The applicant was appointed as Wireless Supervisor on 20.2.1982. The scale of pay of the said post was then Rs.425-700. The required qualification then for the post of Wireless Supervisor are (a) Matriculation or equivalent (b) Certificate of proficiency (Maritime Mobile Service Valid license to operate the Radio Telephone sets issued by the Department of Communication, Government of India and (c) two years of experience in the operation and maintenance of wireless sets. There was no Degree or Diploma course then and now in the field of Maritime Wireless Communication argues the applicant. The duties and responsibilities of Wireless Supervisor are maintenance and upkeep of electronic wireless equipments in the electronic section, maintaining periodic radio contacts with the fishing vessel while on fishing voyages as well as at shore, taking theory/practical class in various training programmes, participating in the fishing voyage as Shore Officer participant along with institutional/post institutional trainees on board the departmental fishing vessel for imparting practical training, assigning/carrying out the repair/maintenance of electronic equipments in electronic lab and the fishing vessel and any other duties assigned by the superiors. The Wireless Supervisors are thus doing teaching as well as supervisory jobs.
3. Applicant contends that the duties and responsibilities of the post of Wireless Supervisor and Technical Assistants are identical. The duties and responsibilities of Technical Assistants are teaching electronics subjects to the trainees in both theory and practical of the various training programmes, taking classes for short term Radio Operators Course, maintain Radio Telephone contact with vessel during sailing in the absence of Wireless Supervisor, maintenance of electronic equipments/supervising installation work and repairs of electronic equipments on board the vessel and the electronic lab, to assist the in charge of electronic section in training and maintenance of electronic equipments and wireless communicational requirements, undertake fishing cruise as Shore Officer participant along with institutional and post institutional trainees on board the fishing vessel for imparting practical training. The scale of pay of Wireless Supervisors and Technical Assistants were Rs.425-700 prior to the implementation of the recommendations of the 4th Central Pay Commission and was revised to Rs.1400-2300 on implementation of the recommendations of the 4 th Central Pay Commission. The 5th Central Pay Commission recommended the scale of pay of Rs.1600-2660 to the Technical Superiors in scale Rs.1400-2300, as per para 54-38 of the report of the 5th Central Pay Commission.
4. The Technical Assistants approached this Tribunal in O.A.No.493/2004 challenging the non granting of the replaced scale of pay of Rs.5000-8000. This Tribunal by order dated 23.10.2006 allowed the said O.A duly holding that they are entitled to get the scale of pay of Rs.5000- 8000 with effect from 1.1.1996. Applicant submitted Annexure A-4 representation dated 29.12.2006 to the 3 rd respondent but the same was not considered. Later, the applicant has submitted Annexure A-5 representation to the 3rd respondent claiming the scale of pay of Rs.5000-8000. The 3 rd respondent forwarded the representation to the 1 st respondent. Subsequently as per directions of the 1st respondent submitted a proposal by letter dated 11.12.2009 to the Ministry for upgrading the scale of pay of Wireless Supervisor to Rs.5000-8000 and to Rs.9300-34800, the latter being the revised scale of 6th CPC. The 4th respondent by memo dated 17.1.2011 informed the applicant that the Ministry have not agreed to his representation.
5. As the claim of the applicant was rejected by Annexure A-7 he has filed O.A.No.293/2011 before this Tribunal inter alia contending that the certificate of proficiency held by him is the highest qualification available in the field of radio communication in India and has international validity, that the Wireless Supervisor and Technical Assistant are discharging identical duties and, that the Wireless Supervisor does not have a Diploma cannot be a reason to deny the scale of pay awarded to Technical Assistants.
6. In the reply statement filed by the respondents, they have produced the order dated 23.12.2010 of the 2 nd respondent by which the proposal of the 3rd respondent was rejected stating that the qualification required for the post of Technical Assistant is higher than the qualification required for Wireless Supervisor as in the former case, it is Diploma with 60% marks and in the later case, it is only certificate. In the meantime the Recruitment Rules for the post of Wireless Supervisor has been amended on 27.1.2011 post 6th CPC and as per the amended Recruitment Rules the qualification required are (a) Diploma in Electronics/Telecommunications and (b) Certificate of proficiency (Maritime Mobile Service valid license to operate the radio telephone sets issued by the Department of Communication or General operators certificate of Global Maritime Distress Safety Services (GMDSS) issued by Ministry of Communication. Thus the impediment stated by the 2nd respondent in Annexure A-8 of absence of Diploma qualification for non granting the scale of pay of Technical Assistant to Wireless Supervisor ceased to exist. Based on the amendment of the Recruitment Rules, this Tribunal has disposed of O.A.No.293/2011 directing the applicant to make a fresh representation within thirty days of receipt of the order to the 3rd respondent and directing the respondents to consider the case of the applicant for upgradation of his pay scale and dispose of the same by a speaking order within a period of three months from the date of receipt of a copy of the representation. The above said directions were given duly observing as follows :
Now that the Recruitment Rules for the post of Wireless Supervisor has been revised at par with that of the Technical Assistant and the post of Wireless Supervisor which was once at the same level as Technical Assistant has been made the feeder grade post of Instructor (Electronics) with which the post of Technical Assistant is now merged, it would only be fair and just if the case of the applicant for upgradation of the post of Wireless Supervisor is denovo considered by the respondents.
7. In pursuance of the direction in Annexure A-10 order, the applicant submitted a representation to the 3 rd respondent for upgrading his pay. The 3rd respondent has given a detailed recommendation with grounds to the 1 st respondent for upgrading the scale of pay of Wireless Supervisor. By order dated 1.1.2013 the 3rd respondent rejected Annexure A-11 representation stating that the post of Technical Assistant and that of the Wireless Supervisor are totally different posts with different nature of duties and different Recruitment Rules. Besides the post of Technical Assistant was a direct recruitment post and not promotional post. Further the post of Technical Assistant does not exist in the organization at present since the post of Technical Assistant has been redesignated as Instructor (Electronics) and that the applicant is also not similarly placed as the applicant in O.A.No.493/2004.
8. The applicant argues that the post of Wireless Supervisor is also a direct recruitment post. The applicant was appointed to the said post directly and not by promotion. Even though the post of Technical Assistant (Electronic) has been redesignated as Instructor (Electronics), the duties and responsibilities of the post of Wireless Supervisor has not been changed and is similar to Technical Assistant (Electronics) redesignated as Instructor (Electronics). Hence the redesignation of the post of Technical Assistant to Instructor (Electronics) is not a justification to deny upgradation of the scale of pay of Wireless Supervisor. The mere fact the applicant does not have a Diploma qualification is not a justification for denying the scale of pay of Rs.5000-8000 to him. Relief sought by the applicant is to declare that he is entitled to get the scale of pay of Rs.5000-8000 with effect from 1.1.1996 and Rs.9300-34800 with effect from 1.1.2006 similar to Technical Assistant redesignated as Instructor (Electronics).
9. The respondents argue that the applicant has retired from service on superannuation on 31.5.2012. The applicant has been granted the relevant pay scales/pay band as recommended for the post held by him ie., the post of Wireless Supervisor, by the successive Central Pay Commissions. The post of Wireless Supervisor is presently in the pay band PB-1 Rs.5200- 20200 with Grade Pay Rs.2800/- (pre-revised pay scale of Rs.4500-7000). Applicant was appointed as Wireless Supervisor during 1982 under the 3 rd respondent Institute as per the provisions of the prevailing Recruitment Rules of the said post. The required essential qualification for the post of Wireless Supervisor was (a) matriculation or equivalent and (b) certificate of proficiency (Maritime Mobile Service and license to operate the Radio Telephone sets, issued by he Department of Communication). The applicant's qualification of M.Sc. (Psychology) and M.Phil (Psychology) has been possessed by him in his personal capacity and are not requirements of applicant's job. However, as per Annexure A-9 amended Recruitment Rules issued in January - February 2011 for the post of Wireless Supervisor, General Operators Certificate of Global Maritime Distress Safety Services (GMDSS) is also considered as one of the essential qualification required for direct recruitment to this post.
10. The post of Technical Assistants with whom applicant is claiming parity had different classification such as Technical Assistant (Electronics), Technical Assistant (Fishing Technology), Technical Assistant (Marine Engineering) and Technical Assistant (Computer). The post of Technical Assistant had the same pay scale as that of Wireless Supervisor prior to the 5th Central Pay Commission, but the posts are totally different vis-a-vis Technical Assistant with different nature of duties and different Recruitment Rules. The successive Central Pay Commissions have recommended different pay scales for the post of Wireless Supervisor and Technical Assistant. At present there are no posts of Technical Assistant in the 3 rd respondent Institute. All the earlier posts of Technical Assistants have been re-designated as Instructor with effect from 11.9.2009. For example the post of Technical Assistant (Electronics) has been re-designated as Instructor (Electronics). As stated earlier, for the post of Wireless Supervisor the required qualification was matriculation or equivalent plus Certificate of proficiency (Maritime Mobile Service valid license to operate the Radio Telephone sets, issued by the Department of Communication) whereas as per the Recruitment Rules of the earlier post of Technical Assistant (Electronics) (which is not in existence now) issued in the year 2000, the required educational qualification (only direct recruitment post) was three years Diploma in Electronics/Telecommunication Engineering from a recognized institution with 60% marks with at least five years experience in repairing electronic equipments such as HF/VHF communication transeevers, radio compass, auto direction finders, radar, echo sounder and sonar etc. and also knowledge of digital electronic circuits and trouble shooting. Hence there was not only a Diploma educational qualification but also an additional 3 years experience qualification. The said Recruitment Rules of the post of Technical Assistant (Electronics) was further amended and upgraded in 2007 and the required educational qualification is B.E/B.Tech Degree in Electronics and Telecommunication from a recognized University or equivalent OR Diploma in Electronics/Telecommunication Engineering issued by State Board of Technical Education or equivalent with 60% marks with 2 years experience in the maintenance and repairs of marine electronic equipments and desirable experience in repairing marine electronic equipments such as HF/VHF communication transformers, Radio compass, Auto direction finder, Radar, Echo Sounder, Sonar etc. and knowledge of digital electronic circuits and trouble shootings. The post of Wireless Supervisor is a feeder grade for promotion to the post of Instructor (Electronics) which is in the pay band PB-2 Rs.9300-34800 with Grade Pay Rs.4200/- and hence being feeder grade cannot be given the same pay as the promotion grade.
11. Heard the counsel for the applicant and respondents and considered the written submissions made. The case of the applicant is not similar to that as in O.A.No.493/2004. In the said O.A the applicants therein were granted the pay scales as recommended by the Pay Commission and the issue raised in O.A was the date of implementation of the same. The applicant is trying to make out that his case is similar to that as in O.A.No.493/2004. It is true that the pay scales of Wireless Supervisor and Technical Assistant was similar in the recommendation of the 4 th Pay Commission. However, the 5th and 6th Pay Commissions have recommended different pay scales/pay bands for these posts. The case of the applicant is not similar to as in Annexure A-1 and Annexure A-2. Para 54.38 at Annexure A-1 5th CPC recommendations and the relevant portion at Annexure A-2 refers to the posts of Technical Supervisors in workshops including railways for which direct recruitment qualification for the initial pay scale is Diploma in Engineering of relevant discipline or Graduation in Science. The applicant's case is not similar and the applicant cannot claim parity with them. Recruitment Rules and qualifications vary from post to post. The applicant has been granted the pay scale of the post of Wireless Supervisor as recommended by the successive Pay Commissions. 12 The applicant had submitted Annexure A-5 representation dated 7.10.2009 to the 3rd respondent. Taking into consideration the points put forth by the applicant the 3 rd respondent has submitted a proposal vide Annexure A-6 letter dated 11.12.2009 to the 1 st respondent ie. the administrative Ministry for upgradation of the pay scale of the post of Wireless Supervisor and redesignating the post. The 1 st respondent in turn took up the matter with the Ministry of Finance, Department of Expenditure. The Ministry of Finance, Department of Expenditure considered the proposal and rejected the same as per the observations at Annexure A-8 U.O No.1(19)/E-III(B)/10 dated 23.12.2010 which reads as under :
Ministry of Finance Department of Expenditure E.III B Branch Ministry of Agriculture may please refer to their notes at pre-page regarding upgradation of the Grade Pay of Shri.M.Damodaran, Wireless Supervisor in CIFNET from the GP of Rs.2800/- to Rs.4200/- as personal to him.
The proposal is examined in this department and it is observed that the educational qualification required for the post of Wireless Supervisor is matriculation or equivalent plus certificate of proficiency (Maritime Mobile Service) valid licence to operator the Radio Telephone sets issued by the Department of Communication plus two years experience. The perusal of the R.Rs for the post of TA reveals that educational qualification required for the post of TA is B.E/B.Tech Degree in Electronics and Telecommunication or Diploma in Electronics/Telecommunication Engineering issued by State Board of Technical Education or equivalent with 60% marks with 2 years experience in the maintenance and repairs or Marine Electronic equipments. It is observed that the qualification required for the post of TA is higher than the qualification required for Wireless Supervisor as in the former case, it is Diploma with 60% marks and in the latter case, it is only certificate.
Keeping in view of the above, it is regretted that the proposal is not found acceptable.
JS (Per) has seen.
Sd/-
(R.K.Thapar) Under Secretary to the Govt. of India The applicant was informed about the outcome vide Annexure A-7 communication dated 17.1.2011.
13. The Recruitment Rules of the post of Wireless Supervisor has been amended and notified during January 2011, as per Annexure A-9. As per the amended Recruitment Rules the essential qualification required for the post is (i) Diploma in Electronics/Telecommunication and (ii) Certificate in Proficiency (Maritime Mobile Service valid license to operate the Radio Telephone sets issued by the Department of Communication) or General Operators Certificate of Global Maritime Distress Safety Services (GMDSS) issued by Ministry of Communication.
14. Aggrieved by Annexure A-7 rejection of his representation by Ministry of Finance the applicant had filed O.A.No.293/2011 which was disposed of by this Tribunal vide Annexure A-10 order dated 18.5.2012 wherein the applicant was directed to make a fresh application within thirty days and that the same should be disposed by the 3 rd respondent by a speaking order within a period of three months. Accordingly, the applicant submitted Annexure A-11 representation dated 28.5.2012. The 3 rd respondent took up the said representation dated 28.5.2012 of the applicant with the 1st respondent and the same was disposed vide Annexure A-13 communication dated 1.1.2013 observing that the applicant has been granted the relevant pay scale/pay band as recommended for the post of Wireless Supervisor by the successive Central Pay Commissions. The post of Technical Assistant and that of Wireless Supervisor are totally different posts with different nature of duties and different Recruitment Rules.
Besides the post of Technical Assistant was a direct recruitment post and not promotional post. The post of Technical Assistant have been redesignated as Instructor. The applicant is comparing the qualifications of two distinctly different posts, one operative and the other a teaching post of Instructor. The applicant is also not similarly placed in respect of the order dated 23.10.2006 in O.A.No.493/2004. One of the observations in File No.3-31/2008-Fy.(Admn.) made on 20.12.2012 by the Integrated Finance Division of the 1st respondent is that the wisdom of CIFNET in allowing the applicant to teach by virtue of his PG qualification in Social Science which is not a educational qualification for the post held by applicant, is unacceptable.
15. The 5th CPC made different recommendations for Technical Assistant who had the qualification of Diploma in Engineering or Graduation in Science, as different from Matriculation qualification and Certificate of Proficiency qualification prescribed for Wireless Supervisor. Hence 5 th CPC which gave the higher scale to Technical Assistant, was on account of the general principle followed in the CPC recommendation to improve the remuneration of Diploma Engineers in Government, a qualification which was not prescribed for the post the applicant was holding. This recommendation did not only cover the Technical Assistant of respondent organization but also covered the holders of similar post across the Government of India including Railways as seen from para 54.38 of 5 th CPC recommendations.
16. The applicant would contend that the mere fact that he does not have a Diploma qualification does not justify the denial of 5 th CPC scale of Rs.5000-8000 recommended for Diploma holders. He argues that there was no Degree or Diploma course in Maritime Wireless Communication and the competency certificate of proficiency and license held by him was the highest qualification available. Thus it is admitted that a diploma qualification was not considered necessary either by the educational institution or the respondent department to perform the duties of the post held by the applicant, it is argued. A Diploma qualification as required in the Recruitment Rules was available and formed the educational qualification for the post of Technical Assistant. Hence a lower qualification would be sufficient in the available circumstances for the post held by applicant, it is further contended.
17. However, when higher qualification of Diploma became available with advancement of technology, the qualifications for applicant's post was enhanced to Diploma. The applicant would argue that the mere fact that he does not have a Diploma is not a reason to deny him the scale of Rs.5000-8000. However the higher educational qualification of Diploma as different from a Certificate Course was made the basis of 5 th CPC recommendations to grant the higher pay scale of Rs.5000-8000. The applicant's contention that the upgradation was denied to him without justification is not correct. The higher educational qualification was the intelligible differentia which provided the basis for higher pay scale. At the time of 5th CPC, though it is stated that the applicant had all the qualifications of Wireless Supervisor as adverted to in the rejoinder, he did not possess the Diploma qualification required under the Recruitment Rules for the post of Technical Assistant/Instructor (Electronics). It is to get over the stagnation in such isolated posts that the Government of India introduced the ACP and the MACP upgradations on completion of 10, 20 and 30 years of service. So it is not the case of the applicant of not having been given any upgradation.
18. The educational qualification for the post of Technical Assistant (Electronics) and Technical Assistant (Drawing) is Diploma in Electronics/Telecom Engineering with 60% marks and Diploma in Mechanical Engineering/Draughtmanship or Diploma in Mechanical Engineering with Machine Drawing respectively. The applicant does not possess this higher qualification of Diploma in Electronics/Telecom, which has now been prescribed post 6 th CPC for the applicant's post. Besides possession of Certificate of Proficiency in Maritime Mobile Service is the second essential qualification for applicant's post. For MACP the possession of educational qualification for the higher grade is not considered essential as it is merely a financial upgradation. But for promotion the possession of essential educational qualification of Diploma/Degree prescribed is a must. It cannot be bypassed. Further the post of Wireless Supervisor is the feeder grade for Technical Assistant and the two posts cannot therefore be in the same grade. Annexure A-9 Recruitment Rules of Wireless Supervisor produced by applicant has an essential qualification of Diploma in Electronics/Telecom besides Certificate in Proficiency in Maritime Mobile Service. The applicant is not possessing the essential Diploma qualification and hence any dispensation or relaxation of the same is not tenable. The applicant is however eligible for three MACP wherein the possession of educational qualification is not a necessary condition. Accordingly, the O.A is dismissed. No costs.
(Dated this the 17th day of August 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp