Central Administrative Tribunal - Mumbai
Bhabha Atomic Research Centre vs Union Of India Through on 17 April, 2013
1 O.A. No. 514/2012 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 514 of 2012. Dated this Wednesday, the 17th day of April, 2013. CORAM : Hon'ble Smt. Leena Mehendale, Member (A). Hon'ble Smt. Chameli Majumdar, Member (J). 1. Bhabha Atomic Research Centre Officers' Association through A) R. K. Mishra, President. B) Daisy Joseph, Vice-President. C) M.C. Goel, Secretary. D) S. S. Mishra, Joint Secretary. E) K. K. Verma, Treasurer. Having office at S-64, Room No. 10, South Side, B.A.R.C., Trombay, Mumbai 400 085. 2. R. K. Verma working as Scientific Officer (D), S-64, Room No. 10, South Site, B.A.R.C. Trombay, Mumbai 400 085. 3. R. R. Singh, Scientific Officer (D), RED, Hall No. 7, BARC, Trombay, Mumbai 400 085. 4. S. S. Kanse, Scientific Officer (D), 310, CMPD, Seismolday Bldg., BARC, Trombay, Mumbai 400 085. 5. Manish Kumar, Scientific Officer (G), M.D. & PDD, MOD Lab, Trombay, Mumbai 400 085. ... Applicant. (By Advocate Shri R. G. Walia) 2 O.A. No. 514/2012 VERSUS 1. Union of India through Secretary, Department of Atomic Energy (DAE), CSM Marg, Anushakti Bhavan, Mumbai 400 001. 2. Director, Directorate of Construction, Service & Estate Management, Vikram Sarabhai Bhavan, Anushakti Nagar, Mumbai 400 094. 3. Director (B.A.R.C.), Bhabha Atomic Research Centre, Anushakti Nagar, Mumbai 400 094. ... Respondents. (By Advocate Shri R. R. Shetty) O R D E R Per : Smt. Chameli Majumdar, Member (J)
The applicant before this Tribunal is an association, namely Bhabha Atomic Research Centre Officers' Association. Applicant No. 2 is the President of the Association. The other applicants are also members of the association and working as Scientific Officer in B.A.R.C. They have challenged the schedule for allotment of accommodation in various categories for the month of August, 2012, which is Annexure A-1 dated 21.08.2012. They have also challenged the priority list which was revised by the respondents. The applicant's further challenge is to the O.M. dated 01.08.2012, being one 3 O.A. No. 514/2012 time relaxation for inclusion in the priority list for accommodation for the Allotment Year 2012.
2. The grievances of the applicants are, inter alia, that although the respondents issued the eligibility or seniority list for allotment of quarters in January, 2012, the same was altered illegally, whimsically and thereby disturbing the seniority/eligibility position of the members of the applicant-association for allotment of quarters. The contention of the applicant is that seniority list for allotment of Type 'D' quarters and above has to be prepared taking into consideration the entry level grade pay. The entry level grade pay should be the criteria to fix the seniority position for allotment of residential quarters and not the highest grade pay in a particular grade entitled for certain type of quarters. The allotment of quarters in the department is based on the fixed eligibility condition as mentioned in letter dated 08.12.2009, which is based on the memorandum dated 21.08.2009 issued by the Ministry of Urban Development (Directorate of Estates). The respondents, by placing candidates/officers in the higher grade pay over other eligible candidates who became eligible for those particular type of quarters much before have virtually pushed them down in the seniority 4 O.A. No. 514/2012 list for allotment of quarters. Thus, the action of the respondents in amending and altering seniority and eligibility list was highly illegal and arbitrary.
3. The applicants in this O.A. have contended that the present case pertains to the category of quarters, namely Type 'D' to Type 'E'. The applicants have relied on the O.M. Dated 08.12.2009 wherein the classification of residence and eligibility criteria have been laid down. In para 3
(i) the said chart is set out, which is reproduced herein below :
Type of Residence Grade Pay/Basic Pay A Rs. 1,300, Rs. 1,400, Rs. 1,600, Rs. 1,650 and Rs. 1800.
B Rs. 1,900, Rs. 2000, Rs. 2,400 and Rs. 2,800/C Rs. 4,200, Rs. 4,600 and Rs. 4,800.
D Rs. 5,400 to Rs. 6,600.
D (Spl) Rs. 6,600.
E Rs. 7600, Rs. 8,700, Rs. 8,900.
E-1 Rs. 10,000 and Rs. 67,000 to Rs. 74,999.
E-II Rs. 75,000 to Rs. 79,999.
E-III Rs. 80,000 and above.
4. The applicants have annexed the said O.M. Dated 08.12.2009 as Annexure A-3. Sub para (v) and
(vi) of para 3 of the said O.M. Says as follows :
(v) The date of priority for Type 'D' shallbe in the ratio of 1:1 based on the date of drawal of grade pay relevant to Type 'D' (Payseniority) and the date of entry into service 5 O.A. No. 514/2012 (service seniority) as is being followed at present.
(vi) The date of priority for Type 'D-
Special' and above shall be (a) firstly thegrade pay of the officer (b) secondly thepriority date within the same grade pay. In case the priority date of two or more officers is the same, the inter se seniorityof the officers shall be determined on the basis of the basic pay i.e. the officer whohas a higher pay shall be senior in the waiting list. Where the priority date andthe basic pay of two or more officers are thesame, the earlier date of joining in the Department shall be next determining factorfor inter se seniority. In case the prioritydate, basic pay and date of joining in theDepartment of two or more officers are the same, the officer who is senior in age basedon date of birth shall be accorded the higherpriority over the others.
5. The applicants have also relied on the O.M. dated 20.11.2011 which says that the deciding factor for determining the date of priority of type 'D' flats ear-marked for pay seniority should be the meeting any of the eligibility criteria prescribed.
In other words, the grade pay should be taken only for determining the eligibility and not for preparing the priority list which should be based on the date of acquiring any of the grade pays prescribed for eligibility.
6. The contentions of the applicants, inter alia, are that any officer whose grade pay is between Rs.
5400/-to Rs. 6600/-will be eligible for type 'D' quarter. As such, any officer who reaches Rs.
6 O.A. No. 514/20125400/-grade pay would be entitled to allotment of Type 'D' quarter. The priority of allotment of type 'D' quarter will be based on the date of drawal of Rs. 5400/-grade pay. Once an officer is fixed in Grade Pay of Rs. 5400/-on a date, his eligibility is to be considered with reference to that date, i.e., entry in grade pay of Rs. 5400/-. The minimum criteria provided under the rules is the achievement or drawal of Grade pay of Rs. 5400/-, which is the criteria for eligibility of officers for allotment of type 'D' quarter. But some of the officers on achieving further promotion in the higher grade pay of Rs. 6600/-are being placed above those who have already entered into the entry level eligibility grade of Rs. 5400/-much earlier to these promotee officers of higher grade pay of Rs. 6600/-. By the action of the respondents, the persons in grade pay of Rs. 5400/-are rendered ineligible or are placed second to persons in grade pay of Rs. 6600/-. The same has caused serious prejudice to the applicants.
7. The applicants' contention is that the respondents issue the list of seniority/ eligibility in the month of January every year. The impugned seniority or eligibility list has been prepared in August by way of amendment including and by placing persons of higher grade pay and pushing 7 O.A. No. 514/2012 down the officers who became eligible according to the eligibility criteria much before these officers.
The further contention of the applicant is that the achieving of higher grade pay is insignificant with regard to the allotment of quarter. Presently the officers working in the Grade Pay of Rs. 5400/-are already granted quarters but in lower category. The respondents were allotting quarters as per the higher Grade Pay ignoring the eligibility of officers who entered any base grade pay earlier.
8. The applicants have sought for the following reliefs :
(a) This Hon'ble Tribunal be pleased to call for the records which led to the passing of the impugned priority list/officememorandum (Annexure A1, A2 and A4) and after going through its propriety, legalityand constitutional validity, be pleased to quash and set aside the same.
(b) The Hon'ble Tribunal be pleased to quash and set aside the allotments of quarters made on the basis of impugnedpriority list and amended list of January, 2012 and amended list of August, 2012.
(c) The Hon'ble Tribunal be pleased toorder and direct the Respondents to preparea fresh priority list for allotment of quarters in Type-D and above category bytaking the base grade pay of Rs. 5400/-forType 'D' quarter and Rs. 7600/-for Type 'E'Quarter, i.e., officers entering/achievingthe base grade pay first should be placedfirst in priority list.
(d) The Hon'ble Tribunal be pleased tohold and declare that base grade pay is theonly relevant criterion for allotment of quarters, i.e., Type 'D' and above and officers are to be placed in the priority 8 O.A. No. 514/2012 list only based on the date of achieving the said base grade pay.
(e) The Hon'ble Tribunal be pleased tohold and declare that achieving higher gradepay would not dislodge other officers whohave achieved the base grade pay prior intime than the officer in the higher gradepay.
(f) Any other or further orders as deemfit and necessary to this Hon'ble Tribunal.
(g) Cost of the Original Application may be provided for.
9. Respondents have filed their reply. The contentions of the respondents are, inter alia, as follows :
The respondents contend that the revised classification and eligibility criteria was made effective from 01.01.2010 pursuant to O.M. Dated 08.12.2009 of the Department of Atomic Energy. The date of priority for Type 'D' shall be at the ratio of 1:1 based on the date of entry into service (service seniority) and the date of drawal of Grade Pay relevant to Type 'D' (Pay Seniority) for allotment of Type 'D' quarters. The date of priority for Type 'D-special' and above shall be
(a) firstly the Grade Pay of the office and (b) secondly, the priority date within the same grade pay. In case the priority date of two or more officers is the same, the inter se seniority of the officers shall be determined on the basis of the 9 O.A. No. 514/2012 basic pay, i.e., the officer who has a higher pay shall be senior in the waiting list. Where the priority date and the basic pay of two or more officers are the same, the earlier date of joining in the department shall be next determining factor for inter se seniority. In case the priority date, basic pay and the date of joining in the department of two or more officers are the same, the officer who is senior in age based on date of birth shall be accorded the higher priority over the others.
Department of Atomic Energy reviewed their original O.M. dated 20.01.2011 regarding preparation of priority list of Type 'D' flats and issued amended O.M. Dated 20.06.2011. Amended provision for preparation of priority list, the priority date for accommodation under 'Service Seniority' shall be the date of entry into service and the priority date for allotment under pay seniority shall be firstly the grade pay of the officer and secondly the priority date within the same grade pay.
9.2 The action of the respondents in issuing O.M. dated 01.08.2012 directing the Respondent No. 2, i.e., the Directorate of Construction, Services and Estate Management to consider the application of the officers for the purpose of preparation of list was issued pursuant to the discussion held in the 10 O.A. No. 514/2012 Council Meeting on 30.07.2012 to consider the application of the employees as a special case who are promoted w.e.f. 01.07.2007 but could not make application for allotment since the promotion orders could not be passed due to administrative reasons. The action of the respondents were keeping in mind the larger interest of the employees of D.A.E. 9.3 The respondents further contend that prior to the issue of the O.M. dated 20.01.2011, subsequently amended vide O.M. dated 20.06.2011, the rules were very clear and categorical regarding the eligibility which was decided as per the basic pay. If the date of acquiring the basic pay was same the inter se priority was determined based on the higher basic pay of the officer for Type 'D' Pay and above. After the Sixth CPC recommendations there is absolutely no change in the policy and the same principle of higher basic pay having a better chance continues till date. The issue in question is relating to a matter of policy. The applicant has not challenged the policy of 20.01.2011 amended on 20.06.2011. The intent is clearly to enhance the prospect of allotment of quarters with seniority and thereby if more impetus to merit, the DAE being a merit based organization which does not follow the normal seniority rules for promotion but follows a 11 O.A. No. 514/2012 flexibile complimentary scheme, the policy does not warrant any interference by the Tribunal. The allotment of Type 'D' was done in the ratio of 1:1, i.e. 50% of type 'D' quarters are allotted on the basis of service seniority and other 50% based on pay seniority (drawal of relevant Grade Pay). The arrangement was made in order to get more accommodation avenues for the Scientific Officers of the Department. While the priority criteria on the pay seniority was date of crossing the relevant basic pay before the 6th CPC, the criteria for the allotment consequent upon 6th CPC was based on drawl of grade pay. The Grade Pay of Rs. 5400/-and Rs. 6600/-are the eligibility criteria for Type 'D' accommodation. Allotment on the pay seniority will be made on the basis of higher grade pay, i.e., the employees drawing Grade Pay of Rs. 6600/-are given priority over the employees drawing Grade Pay of Rs. 5400/-. This has been done based on the clarification dated 20.06.2011 and priority has been given to the employees who are drawing Grade Pay of Rs. 6600/-. By issuing O.M. Dated 20.06.2011, the O.M. dated 20.01.2011 has been superseded. The Merit Promotion Scheme was adopted by the department in order to boost the morale of the Scientific and Technical personnel and also for bright career 12 O.A. No. 514/2012 prospects unlike the vacancy based promotion scheme. Therefore, the employees drawing less Grade Pay are not overlooked but their chance may be delayed to be considered for the criteria of pay seniority but 50% allotment remains on the service seniority basis.
10. We have heard Shri R.G. Walia, Learned Counsel for applicant and Shri R. R. Shetty, Learned Counsel for the respondents and have perused all the documents and pleadings.
11. It appears from the records that Department of Atomic Energy [for short 'DAE'] has its own departmental accommodation for its employees and does not avail General Pool accommodation from the Ministry of Urban Development. The respondents had been following the Allotment of Government Residence (Department of Atomic Energy) Bombay Rules, 1982, effective from 15.05.1982 as far as the accommodation at Mumbai was concerned.
12. Consequent upon the implementation of the Sixth Central Pay Commission recommendations, Ministry of Urban Development revised the eligibility criteria for departmental accommodation and subsequently the Department of Atomic Energy vide O.m. Dated 08.12.2009 issued the revised criteria for allotment of accommodation. The chart has already been 13 O.A. No. 514/2012 annexed showing that type of quarters vis-a-vis the Grade Pay/Basic Pay. The revised classification and eligibility criteria was introduced w.e.f. 01.01.2010 (Allotment Year 2010), Mumbai. The subject matter of this O.A. pertains to the allotment of Type 'D' and above residential quarters of Anushakti Nagar. The method of allotment of Type 'D' is in the ratio of 1:1 (Service Seniority and Pay Seniority). This method was adopted by the Department which is a departure from the instructions of Ministry of Urban Development. The Department of Atomic Energy reviewed the O.M. dated 20.01.2011 regarding preparation of priority list of Type 'D' flats vide O.M. dated 20.06.2011 and amended the criteria for preparation of priority list for allotment of Type 'D' quarters. Accordingly, the priority date for accommodation under 'service seniority' shall be the date of entry into service and under 'pay seniority' the priority date for allotment shall be (a)firstly the Grade Pay of the officer and (b) secondly, the priority date within the same Grade Pay.
13. It appears from the pleadings and submissions of the respondents that the Department of Atomic Energy is following a 'Merit Promotion Scheme' for the Scientific and Technical Officers of the 14 O.A. No. 514/2012 Department. For such promotion, Selection Committee meetings are being held and promotions are effected from 1st January. Grade Pay plus Pay in the Pay Band as on 1st January of a particular year will be the eligibility criteria for that particular year. The Grade Pay would be indicated in the application for the allotment and preparation of the priority list for the current year. The respondents have fairly conceded that due to various reasons such as modification in the promotion norms, delay in holding the meeting of Selection Committee, etc. promotion orders were delayed hence although employees were promoted w.e.f. 01.07.2011 yet the promotion orders could not be issued due to administrative reasons and, as such, eligible employees could not be considered for higher category of accommodation. This issue was agitated at various level and finally taken up at Departmental Council Meeting. Since many employees were deprived of their eligibility for higher accommodation due to administrative delay, it was decided in the Departmental Council Meeting held on 30.07.2012, that as a special case the applications of employees who were promoted w.e.f. 01.07.2011 but could not make application for allotment for not getting the order of promotion in due time should be 15 O.A. No. 514/2012 considered and their name should be interpolated in the existing priority list of 2012.
14. Accordingly, the Department of Atomic Energy issued an O.M. Dated 01.08.2012 and directed the Respondent No. 2, i.e., the Directorate of Construction, Services and Estate Management, to consider such applications as 'one time relaxation'. Accordingly, many applications were received, seniority/priority list was amended and allotment was effected in the month of August, 2012. As a result, many employees who were earlier coming at the higher position in the priority list had gone down in their position in the list. The promotion orders were delayed not for the fault of the promotees but for the delay caused by the department. It appears that initially the eligibility of an employee was determined on the basis of his basic pay. If the date of acquiring the basic pay was the same, the inter se priority was determined based on higher basic pay of the officer for type 'D' pay seniority and above. Since the pay scale/basic pay concept was revised and grade pay structure was set up by the Sixth Pay Commission and as per the orders of the Ministry of Urban Development, the eligibility criteria for allotment has been based on higher grade pay. Therefore, the 16 O.A. No. 514/2012 moment a technical officer would move to the higher grade pay, it would tantamount to moving him from the post of Scientific Officer 'E' to Scientific Officer 'F' and thereby his chances in priority list vis-a-vis his erstwhile senior in the lower post of Scientific Officer 'E' would improve. The Policy of 20.01.2011 was amended vide O.M. Dated 20.06.2011.
15. From a perusal of the O.A. it does not appear that the applicant has challenged the O.M. dated 20.06.2011 which is an amendment to the existing provision dated 08.12.2009. The relevant extract from the O.M. Dated 20.06.2011 is set out herein below :
Reference is invited to this Department's Office Memorandum No. 5/2(18)2008-SUS/6242 dated 8.12.2009 on the captioned subject. Para 3 (v) of the said Office Memorandum is hereby amended to read as under :
Para No. Existing Provision As amended 3 (v) The date of priority for type 'D' shall be in the ratio of 1:1 based on the date of drawal of grade pay relevant to type 'D' (pay seniority) and the date of entry into service (service seniority), as is being followed at present.
The allotment of Type 'D' shall be in the ratio of 1:1 (Service Seniority and Pay Seniority).
The Priority date for service seniority shall be the date of entry into service and the date of priority for pay seniority shall be (a) Firstly, the Grade Pay of the Officer (b) Secondly, the priority date within the same Grade Pay.
2. Consequent upon issue of the above amendment, the Office Memorandum No. 5/2(18)/ 2008-SUS/723 dated 20.01.2011 issued by the Department is hereby withdrawn. 17 O.A. No. 514/2012
16. It is categorically mentioned in paragraph 2 of the said O.M. that consequent upon the issue of the above memorandum, the O.M. Dated 20.01.2011 issued by the department was withdrawn.
17. I find considerable force in the submission of the learned counsel for respondents that the question here relates to one of the policy where a considered decision was taken by the competent authority as to how the allotment of quarters will be made to the Senior Scientific Officers in the Department of Atomic Energy. The Department of Atomic Energy, being a merit based organization, does not follow the normal seniority rules for promotion but follows a flexible complimentary scheme, which does not depend upon the creation of vacancy for the purpose of promotion but depends on the merit only. The respondents have further contended that the applicant-association is only representing the officers/scientific officers of BARC which is only one of the constituent unit of Department of Atomic Energy. Other constituent units of the Department of Atomic Energy such as Heavy Water Board, Directorate of Construction, Services & Estate Management, Directorate of Purchase & Stores, Board of Radiation and Isotope Technology and also Public Sector Undertakings such 18 O.A. No. 514/2012 as Nuclear Power Corporation of India Ltd. of the Department of Atomic Energy where also a number of Scientific Officers/Engineers are employed and they are not represented by this applicant association.
18. From the perusal of the rules and amended rules, it is clear that the allotment of Type 'D' is done in the ratio of 1:1 i.e., 50% of the Type 'D' quarters are allotted on the basis of service seniority and other 50% based on pay seniority (drawal of relevant grade pay). While the priority criteria for allotment on the pay seniority was the date of crossing the relevant basic pay before the Sixth Pay Commission, the criteria for the allotment consequent upon Sixth Pay Commission was based on drawal of Grade Pay. Therefore, the whole object of allotment of Type 'D' quarters on the basis of pay seniority would be frustrated if the higher grade pay pertaining to pay seniority is not adopted. The grade pay of Rs. 5400/-and Rs. 6600/-are the eligibility criteria for this 'D' Type accommodation. While allotting the said 'D' Type accommodation on the basis of pay seniority @ 50%, the employees drawing Rs. 6600/-Grade Pay would be given priority over the employees drawing Grade Pay of Rs. 5400/-. Based on the clarification contained in O.M. Dated 20.06.2011, priority would be given to 19 O.A. No. 514/2012 the employees who will draw Grade Pay of Rs. 6600/-. The same criteria is followed for allotting accommodation of Type 'D' special quarters also. The O.M. Dated 20.01.2011 has been superseded by O.M. dated 20.06.2011. The promotion scheme called 'Merit Promotion Scheme' for its scientific and technical personnel is based on the merit of the officers.
19. There will be a Screening Committee consisting of experts. The said Screening Committee will consider the eligibility of the officers and thereafter the officers would be required to appear before a duly constituted committee consisting of senior and experienced Scientific Officers and also Members who are experts in the relevant field. Those who would be found fit for promotion would be recommended by the Selection Committee and, therefore, the promotion to the higher grade pay is not automatic or routine. These promotion policies followed for the Scientific and Technical Personnel is to boost up the merit. For Administration, Accounts, Auxiliary Personnel, Promotion is based on vacancy. The above decision of the authority pertains to allotment on the basis of pay seniority at the rate of 50% and remaining 50% for allotment on service seniority. It is also true that 20 O.A. No. 514/2012 considering the officers of higher grade pay for allotment of quarters for 'D' or 'D-Special' in 50% ratio of pay seniority, the officers drawing lesser pay are not overlooked but their chances are slightly delayed. For allotment of Type 'D' quarters on service seniority basis an employee has to wait longer years for getting allotment of Type 'D' accommodation but on pay seniority the employees get allotment much earlier.
20. The Department of Atomic Energy follows this method for the benefit of scientific officers. This ratio of 1:1 is based on orders issued by Department of Atomic Energy vide O.M. dated 31.07.1995. The issue was raised at various judicial forum including Supreme Court of India and finally based on order dated 14.07.2006 by the Hon'ble High Court of Bombay, the issue which was again referred to the Department of Atomic Energy and others were considered and it was decided by the D.A.E. to continue with the decision and allotment made based on O.M. Dated 31.07.1995. The said method was adopted by the Department in order to take care of the interest of the Scientific community. Since eligibility criteria for Type 'D' is Grade Pay of Rs. 5400/- and Rs. 6600/-, an officer drawing Grade Pay of Rs. 6600/- is given priority on Pay-seniority 21 O.A. No. 514/2012 basis. An officer on promotion to higher Grade Pay will move ahead in Type 'D' and over the officials who are not promoted. Unless such benefit is given to the officers of higher Grade Pay who qualified for promotion to higher grade through selection the very purpose of getting promotion losses its import. The allotment of Type 'D' (Pay Seniority) and above is made on the basis of drawal of Grade Pay and/or Pay in the Pay Band. Accordingly, for the eligibility of Type 'E' Grade Pay are Rs. 7600/-, Rs. 8700/-and Rs. 8900/-. The priority for this type is made firstly on the higher Grade Pay i.e., the official who is drawing Grade Pay of Rs. 8900/will be given priority over Grade Pay of Rs. 8700/and secondly on the basis of date of acquiring the requisite Grade Pay. In this way, We do not find any incongruity or arbitrariness in the decision in as much as the benefit devolves on the meritorious officials by virtue of drawing higher Grade Pay.
21. The learned counsel for the respondents has referred to para 13 of the judgment of the Hon'ble Supreme Court in the case of State of H.P. & Another Vs. Padam Dev & Others [2002 SCC (L&S) 548]. The said paragraph is set out herein below :
13. We are also of the view that the judgment of the High Court cannot be sustained on the merits. The decision to 22 O.A. No. 514/2012 make a special concession for Gopal Sahayaks in the manner of additional training as Veterinary Pharmacists was admittedly a policy decision. The framing of administrative policy is within the exclusive realm of the executive and its freedom to do so is, as a general rule, not interfered with by courts unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the constitution
22. The next judgment of the Hon'ble Supreme Court cited by the learned counsel for applicant is Om Kumar & Others Vs. Union of India [2001 SCC (L&S) 1039]. The learned counsel submitted on the principle of proportionality and the Wednesbury principle of reasonableness. In support of his contention, referring to the Wednesbury Principle, the learned counsel submitted that the administration has not resorted to any discrimination inasmuch as the allottees as soon as they enter into the higher grade pay they became a different class as such by the impugned decision the authorities have not caused any discrimination in violation of Article 14 of the Constitution since the object is to encourage merit in the Organization which is totally a merit based organization.
23. The learned Counsel for the applicant has thereafter referred to the judgment of the Hon'ble Supreme Court in the case of Basic Education Board, U.P. Vs. 23 O.A. No. 514/2012 Upendra Rai & Others [2008 (1) SCC (L&S) 771]. In the said judgment the Hon'ble Supreme Court was considering regarding equivalence of the qualification. The Basic Education Board was not considering certain certificate as equivalent to the other one possessed by the respondents by issuing a circular. The Hon'ble Supreme Court held that this was a policy decision of the U.P. Government and it is well settled that the court cannot interfere with policy decision of the Government unless it is in violation of some statutory or constitutional provision. Hence, we are of the opinion that the respondents was not entitled to be appointed as Assistant Master of a junior basic school in U.P
24. The learned counsel for applicants submitted that the facts involved in the judgment cited by the learned counsel for respondents are different and the same will not apply in the instant case.
25. After going through the Original Application, we are of the opinion that the impugned schedule and the amended seniority/priority list were issued in pursuance of an administrative decision contained in O.M. dated 08.12.2009 read with O.M. dated 20.06.2011 after amending para 3(v) of O.M. Dated 08.12.2009. By the O.M. whereby this amendment was caused says that consequent upon issue of the above amendment, 24 O.A. No. 514/2012 the O.M. Dated 20.01.2011 issued by the Department was withdrawn. The applicants have neither annexed this amended O.M. nor threw any challenge towards this amendment. The amended provision is very clear and envisages that when Grade Pay will be higher, the allottee will become senior according to pay- seniority and the priority date will be within the same grade pay. No amendment was caused with regard to the criteria of service-seniority. We find force in the argument of the learned counsel for respondents that such decision giving weightage to merit was taken by the authorities consciously with an object to encourage merit in the organization and to render benefit of higher type of quarters to the Scientific and Technical personnel of higher grade pay in the organization. As such, the contention of the applicant that eligibility should be considered at the entry level of the Grade Pay does not stand at all in view of policy decision taken by the respondent authorities. The action of the authorities also cannot be assailed in view of the fact that such allotment on the basis of pay- seniority was to be made at the ratio of 50%. As such, the officers who achieved the eligibility criteria of Grade Pay of Rs. 5400/-were not overlooked to be considered for allotment on the 25 O.A. No. 514/2012 basis of their service-seniority at the ratio of 50%.
26. The Hon'ble Supreme Court in the case of Krishnan Kakkantha Vs. Government of Kerala & Others [1997 (9) SCC 495] has held that "to ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat purpose for which such decision has been taken. Unless the policy decision is demonstratively capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringe any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and on constitutionality, the Courts should avoid embarking on uncharted ocean of public policy.
27. The Hon'ble Supreme Court in the case of BALCO Employees Union (Regd.) Vs. Union of India & Others [AIR 2002 SC 350] 26 O.A. No. 514/2012 referred to the judgment in the case of M.P. Oil Extraction & Another Vs. State of M.P. & Others [1997 (7) SCC 592] and reproduced para 41 of the said judgment :
"41. After giving our careful consideration tothe facts and circumstances of the case and to the submissions made by the learned counselfor the parties, it appears to us that the Industrial Policy of 1979 which was subsequently revised from time to time cannotbe held to be arbitrary and based on no reasonwhatsoever but founded on mere ipse dixit ofthe State Government of M.P. The executive authority of the State must be held to be within its competence to frame a policy forthe administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executivefunctionaries thereby offending Article 14 ofthe Constitution or such policy offends otherconstitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limitand tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policydecision is in the domain of the executive authority of the State and the Court shouldnot embark on the unchartered ocean of publicpolicy and should not question the efficacy orotherwise of such policy so long the same doesnot offend any provision of the stature or theConstitution of India. The supremacy of eachof the three organs of the State i.e. legislature, executive and judiciary in theirrespective fields of operation needs to be emphasised. The power of judicial review ofthe executive and legislative action must bekept within the bounds of constitutional scheme so that there may not be any occasionto entertain misgivings about the role of judiciary in outstepping its limit byunwarranted judicial activism being very oftentalked of in these days. The democratic set-upto which the polity is so deeply committed cannot function properly unless each of thethree organs appreciate the need for mutualrespect and supremacy in their respectivefields."27 O.A. No. 514/2012
28. The Hon'ble Supreme Court in the same case of BALCO Employees Union (supra) in para 42 referred to the judgment of State of Punjab & Others Vs. Ram Lubhaya Bagga & Others [1998 (4) SCC 117] wherein the Hon'ble Supreme Court was considering the validity of the change of the Government policy. The relevant portion is set out herein below :
The earlier policy upholding the reimbursement for treatment in a private hospital had been upheld by this Court but the State of Punjab changed this policy whereby reimbursement of medical expenses incurred in a private hospital was only possible if such treatment was not available in any government hospital. Dealing with the validity of the new policy, the Court observed at page 129 as follows :
"25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs 28 O.A. No. 514/2012 to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints."
29. Therefore, in view of the discussion made above, we do no find any illegality, arbitrariness or discrimination in the action of the respondents in issuing the impugned Office Memorandum dated August 01, 2012 or the revised priority list for allotment of quarters for the year 2012.
30. The O.A. is accordingly dismissed. There will be no order as to costs.
(Smt. Chameli Majumdar) (Smt. Leena Mehendale) Member (J) Member (A) os*