Central Administrative Tribunal - Delhi
Ms. Harjeet Sharma vs Union Of India Rep By on 24 January, 2013
Central Administrative Tribunal
Principal Bench
O.A. No. 3201/2011
M.A. No.2360/2011
With
O.A. No.3644/2011
Order reserved on: 07.08.2012
Order pronounced on: 24.01.2013
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
OA NO.3201/2011
1. Ms. Harjeet Sharma,
W/o Kanti Sharma,
R/o 1005, Janta Flats,
GTB Enclave, Delhi-50.
2. Zakir Hossain Mondal,
S/o Islam Ali Mandal.
3. Smt. Amita Anil Nerkar,
D/o Late Shri Krishnagi Nagesh Yeola(wani)
4. Sindhu Vinod Pillai
W/o Vinod Parameswaran Pillai.
5. Mirnal Kanti Biswas,
S/o Mukunda Murari Biswas.
6. Sandeep Bhatnagar,
S/o S.P., Bhatnagar.
The address for communications for all the applicants is
the address of applicant No.1 namely R/o 1005, Janta
Flats, GTB Enclave, Delhi-50.
.. Applicants
(By Advocate: Shri M.A. Chinnaswamy)
Versus
1. Union of India rep by,
Secretary, Govt. of India,
Ministry of Urban Development,
Nirman Bhavan,
New Delhi-110011.
2. The Secretary,
Ministry of Finance,
Govt. of India,
New Delhi.
3. Director of Printing,
Directorate of Printing,
B-Wing, Nirman Bhawan,
New Delhi-11. .. Respondents
(By Advocate: Shri B.K. Berera)
OA No.3644/2011
1. Subir Kumar Munshi,
S/o late Sudhir Munshi.
2. Ms. Bandana Kar,
D/o Sushil Kumar Dey.
3. Prithwish Ganguly,
S/o late Surya Kumar Ganguly.
4. Samir Kumar Saha,
S/o late Prabhodh Chandra Saha.
5. Bishwanath Halder,
S/o Late Sripathi Halder.
6. D. Subramanian,
S/o V. Duraisamy.
7. Sibatosh Das Sarma,
S/o late B.N. Das Sarma.
8. Amal Kumar Kundu,
S/o late Krishna Bijoy Kundu.
9. K.N. Babu,
S/o P. Nalinesan.
10. S. Nalathambi,
S/o Solomon.
11. Bhanu Kumar Datta,
S/o late Gopal Chandra Datta.
12. Ashok Kumar Chakroborti,
S/o late Naresh Chandra Chakraborti.
13. Anjan Kumar Sinha,
S/o late Subodh Kumar Sinha.
14. Nripendra Behari Dutta,
S/o late Pulin Behari Dutta.
15. M.R. Raghunath,
S/o late M.A. Ramamoorthy.
16. Tek ram joon,
S/o late Bhagwan Sing -Applicants
(By Advocate: Shri M.A. Chinnaswamy)
Versus
1. Union of India rep by,
Secretary, Govt. of India,
Ministry of Urban Development,
Nirman Bhavan,
New Delhi-110011.
2. The Secretary,
Ministry of Finance,
Govt. of India,
New Delhi.
3. Director of Printing,
Directorate of Printing,
B-Wing, Nirman Bhawan,
New Delhi-11. .. Respondents
(By Advocate: Ms. Rinchen O. Bhutia)
O R D E R
Mr. Sudhir Kumar, Member (A):
These two OAs were heard together and reserved for orders together. During the arguments in respect of OA No.3201/2011, the learned counsel for the applicants had contended that the applicants, herein, were similarly placed to those in another OA No.1905/2008 Om Prakash & Ors. v. Union of India & Ors., which had already been disposed of by this Tribunal through orders dated 24.08.2009, as they had also been similarly appointed as per the new Recruitment Rules. However, the respondents had contended that it was not true, and that the applicants in that OA No.1905/2008 decided earlier had been appointed under the old Recruitment Rules, and the applicants, herein, were appointed under the new Recruitment Rules. However, in the case of the applicants in OA No.3644/2011, the learned counsel for the applicants had submitted that they were appointed as per the old Recruitment Rules, but since he himself was not sure of the legal position, on which the matter was to be decided, the applicants counsel had sought permission to submit written arguments, which permission was allowed, and the written arguments were thereafter submitted, which assume importance in view of the submissions made at the fag end of the oral arguments. But first let us examine the facts of the cases.
OA No.3201/2011 with MA No.2360/2011
2. MA-2360/2011 was filed by the six applicants of the OA, praying for permission to file joint petition before this Tribunal, which MA is allowed.
3. The six applicants of this OA are aggrieved that in spite of numerous judgments of various courts in their favour, as detailed below, they have not been granted the pay scales of Accountants in the pay scale of Rs.5500-9000 w.e.f. 1.1.1996, and the corresponding pay scales under the VIth Pay Commission thereafter.
4. The applicants of this OA are posted as Accountants in the various Government of India Presses, Directorate of Printing, Govt. of India Stationery Office/Regional Stationery Depots, Department of Publication, located in different parts of the country, with only the applicant No.1 being available in Delhi. They had earlier joined the Directorate of Printing as Lower Division Clerks (LDCs, in short), on different dates, were promoted thereafter as the Upper Division Clerks (UDCs, in short), and Head Clerks, and had then appeared in the Departmental Accountancy Examination in the year 2008, and qualified for being appointed as Accountants within the Directorate of Printing. In Para 4.1 of the OA, they have averred that while the applicants No.1 & 6 were offered substantive appointment as Accountants in the pay scale of Rs.5200-20200 (PB-1) with grade Pay of Rs.2800/-, the applicants 2,3,4 & 5 were appointed to the posts of Accountants in the Pay Band of Rs.9300-34800 with Grade Pay of Rs.4200/- (PB-2).
5. The applicants have pointed out that even though Head Clerks form the feeder cadre for Accountants, yet the pay scale of Accountants used to be lower (at Rs.4500-7000) than that of Head Clerks, who were given the pay scale of Rs.5000-8000 as per the V Pay Commission recommendations.
6. One Shri C.N.G. Pillai and his colleague Shri B. Soman, both Accountants at the Govt. of India Press, Trichur, moved the OA No.997/2001 before the Ernakulam Bench of this Tribunal, protesting against this anomaly, and claiming placement of Accountants into the pay scale of Rs.5500-9000, already granted to the Accountants in other Ministries and Departments of Govt. of India, which was higher than that of the Head Clerks (at Rs.5,000-8000/-, as mentioned above) for the Accountants of Govt. of India Press, Trichur. The Ernakulam Bench of this Tribunal then passed the following orders on 02.12.2002:-
9. From the material placed on record, we are convinced that the accountants in the Department of Printing, Stationery & Publication (PSP) under the Ministry of Urban Development do exercise supervisory functions and we declare that the post of accountants are supervisory in nature.
10. In the light of what is stated above, we set aside the impugned order Annexure A-13 and order referred to therein and direct the respondents to consider the upgradation of pay scale of accountants working in the Government of India Press, Koratty under the Ministry of Urban Development (Department of Printing, Stationery & Publication) to Rs.5500-9000/- w.e.f. 1.1.1996 and to issue appropriate orders within a period of 3 months from the date of receipt of a copy of this order.
7. This order was challenged by the Union of India and others before the Honble High Court of Kerala at Ernakulam in W.P. (C ) No.19797 of 2003 (S), in which the orders ultimately came to be passed on 02.08.2005, stating as follows:-
5. We find that the Tribunal was conscious of its jurisdiction. We also find that the reasoning of the Tribunal for a declaration that the applicants were entitled to a higher pay taking notice of the supervisory functions would have been unexceptionable. However, after entering into this finding, the discretion demanded that the Tribunal directed the Government of India to consider the position as presented, and require them to pass orders in line with the findings that were so entered into.
6. In the aforesaid circumstances, although we maintain the findings, the direction for payment of the enhanced scale of pay to the applicants is vacated. However, on the basis of finding of the Tribunal as endorsed by these proceedings, the Ministry concerned is to pass consequential orders recognizing the claims of the applicants as found sustainable by the Tribunal, within a period of three months from the date of receipt of a copy of this judgment.
The Writ Petition is disposed of with the above direction. The respondents are authorized to present a copy of this judgment before the second petitioner-Government of India for facilitating them to pass consequential orders.
8. The Union of India, however, approached the Honble Apex Court in Special Leave Petition (Civil) No.20820/2006, which came to be dismissed on 13.08.2007, without an order on merits, only on the ground that the inordinate delay of 346 days in filing of the SLP had not been explained properly, and the application for condonation of delay had, therefore, been rejected. As submitted by the applicants in Para 4.3 of the OA, the Union of India had, in the meanwhile, during the pendency of the SLP, passed an order dated 15.06.2006 granting the pay scale of Rs.5500-9000 only to the two applicants of the OA filed before the Ernakulam Bench. Thereafter 35 applicants approached this Principal Bench of the Tribunal in OA No.1905/2008, since the respondents had refused to extend the benefit extended to those two applicants to them vide the order dated 01.07.2008 impugned in that OA. The Bench thereafter passed the following orders:-
2. Through this OA, applicants have impugned respondents order dated 1.7.2008 whereby the decision of the Tribunal has not been extended to the applicants being non-applicants in the OA, of which relief has been sought to be extended.
3. This is not the ground apt in law to deny the extension of the benefit of a decision and is in violation of the Apex Court dicta in Promotee Telecom Engineers Forum & others v. D.S. Mathur, Secretary, Department of Telecommunications, 2008 (4) SCALE 815.
4. In the above view of the matter, as we find that the pay scale now sought has already been accorded to the similarly circumstanced in C N G Pillai & another v. Union of India & others (OA-997/2001) decided on 2.12.2002, applicants herein, in all fours, are covered by the above ratio.
5. Though respondents learned counsel vehemently opposed the contentions and stated that the decision would not be applicable to non-applicants but the grounds are not apt to deny the benefits to the applicants herein.
6. Accordingly, OA is disposed of. Impugned order is set aside. Respondents are directed to grant the applicants the scale of pay of Rs.5500-9000 w.e.f. 1.1.1996 with all consequential benefits. This shall be done within a period of four months from the date of receipt of a copy of this order. No costs.
9. The respondent-Union of India then approached the Honble Delhi High Court in WP (C ) No.2824/2010 in which the judgment came to be pronounced on 27.04.2010. The Honble High Court held as follows:-
.The learned counsel for the petitioners has very emphatically contended that though the Tribunal at Ernakulam Bench in O.A.No.997 of 2001 by its order dated 2nd December, 2002 has laid emphasis on the grant of scale of pay of Rs.5500-9,000/-to Accountant in various Ministries/Departments of the Government of India for giving a similar treatment in the said case, however, as per the clarificatory stand of Ministry of Finance, the competent authority for these matters have limited orders to the Organized Accounts Cadre which by their very nature of functions discharge more onerous duty and are subject to some vigorous tests for promotion (viz. SAS qualifying test). According to him, since the respondents do not belong to Organized Account Cadre, no case for discrimination could be made out. It has also contended that the posts of Accountants in question which the respondents hold do not belong to any Organized Accounts Cadre, therefore, the same is not covered by the order of the Tribunal at Ernakulam Bench, which was confirmed by the High Court of Kerala at Ernakulam, and the order of the High Court of Kerala at Ernakulam was confirmed by the Supreme Court of India by dismissing the Special Leave Petition. It has also asserted that extending an identical scale to the Accountants will mean promotional and feeder posts getting into identical scale, which could not be justified. The learned counsel for the petitioner has also placed reliance on (2009) 12 SCC 231, Haryana State Electricity Board & another v. Gulshan Rai & others holding that equality is a positive concept and benefit of a wrong judgment, even if it has become final and has been implemented, cannot be claimed by others as a right. In the circumstances, it is contended that the judgment of the Central Administrative Tribunal at Ernakulam Bench is a wrong judgment and on the basis of the same, the respondents cannot claim equality.
The Tribunal has held that the respondents are placed in similar circumstances as the applicants were in the case of CNG Pillai & another (Supra). The learned counsel is, however, unable to show any such facts from which it can be inferred that the respondents are not performing more onerous duty as alleged in case of the Organized Accounts Cadre. No facts have been disclosed by the petitioners as to how the alleged Organized Accounts Cadre is subjected to more vigorous tests for promotion. Merely on the basis of bald allegation, the distinction has been allegedly carved out by the petitioners which is not apparent and cannot be accepted. In CNG Pillai & another (Supra), it was held that Accountants exercise supervisory functions, and therefore, they are appointed as Accountants after passing qualifying test. It was also noticed that Ministry of Urban Development in the recommendation pursuant to 5th Pay Commission had observed that those who exercise supervisory functions should be placed in the pay scale of Rs.1640-2900/-, and consequently, the accountants who exercise supervisory functions were placed in the pay scale of Rs.5500-9000/-.
The learned counsel for the petitioners is unable to deny that the respondents do not perform or exercise supervisory functions, and if that be so, they are entitled to the scale of Rs.5500-9000/-. Merely on the basis of bald allegation of the petitioners that the respondents do not belong to Organized Accounts Cadre and they are not entitled to scale of Rs.5500-9000/-, this plea cannot be accepted. In the circumstances, the plea of the petitioners that the ratio of the decision of Central Administrative Tribunal at Ernakulam Bench will not be of any assistance to the respondents cannot be accepted, nor it can be inferred that the decision of Central Administrative Tribunal at Ernakulam Bench which was approved by the High Court of Kerala at Ernakulam and the Special Leave Petition filed against the decision of the High Court of Kerala at Ernakulam, is a wrong judgment and on the basis of same parity could not be claimed by the respondents.
xxxxx xxxx xxxx Learned counsel for the petitioners is also unable to show on the basis of any facts that extending scale of Rs.5500-9000/- to the Accountants will mean promotional and feeder post will be in identical scale. Except the bald allegation, no facts have been disclosed by the petitioners which can substantiate their pleas.
In the circumstances, this Court does not find any illegality, irregularity or any such perversity in the order of the Tribunal dated 24th August, 2009 directing the petitioners to grant the respondents scale of pay of Rs.5500-9000/- w.e.f. 1st January, 1996 so as to necessitate any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
The writ petition in the facts and circumstances is without any merit, and therefore, it is dismissed.
10. The orders of the Honble Delhi High Court dated 27.04.2010 were implemented by the respondents through their order dated 19.05.2010, produced by the applicants at page-26 of the OA, in respect of 35 applicants of that OA No.1905/2008. However, when the issue regarding grant of same pay scale to others came up for discussion and orders, the respondents passed the impugned order dated 29.03.2011, stating as follows, and through the first paragraph orders of which is seen that the benefit of the higher pay scale was given only to the two applicants on the basis of Ernakulam Bench judgment in OA No.997/2001, and the thirty five applicants on the basis of Principal Bench judgment in OA No.1905/2008, and parity was denied to others who were not the applicants of those two OAs:-
No.60/02/2008/A-IV Government of India M/o Urban Development Directorate of Printing (A-IV Section) New Delhi, the 29th March, 2011.
O R D E R Subject : Upgradation of the Pay scales of Accountants.
In continuation of this Dtes O.M. of even No. dated 8th March, 2011 the undersigned is directed to say that only those Accountants who are working in the Government of India Presses/Branch Offices/Deptt. Of Publication and Deptt. Of Stationery under the Administrative Control of the M/o Urban Development & were applicants in O.A.No. 997/2001 (two applicants) and O.A. No. 1905/2008 (thirty five applicants) are eligible to get Pay in PB-2 of Rs. 9300-34,800/- with Grade Pay of Rs.4200/- w.e.f. 01.01.2006.
Accordingly all Accountants except those mentioned in the aforesaid O.A.s will be entitled for pay in Pay Band-1 of Rs. 5200-20,200/- with grade pay of Rs.2800/- w.e.f. 01.01.2006 corresponding to pre-revised pay scale of Rs.4500-7000/- as recommended by the 6th CPC and accepted by the Government of India vide Gazettee Notification No. G.S.R.622 (E) dated 29th August, 2008. Fixation of the pay of all the Accountants may be done accordingly and any amount paid in excess to any individual due to wrong fixation may be recovered.
(T.R. Prasad) Deputy Director-II
11. The applicants of this OA represented against this order through representations dated 12.05.2011 of the applicant No.1, dated 13.04.2011 of applicant No.2, dated 18.04.2011 of applicant No.4 and dated 23.05.2011 of applicant No.6. It was submitted by the applicants that the CAT Ernakulam Bench, the High Court of Kerala and the Honble Delhi High Court have correctly appreciated that Accountants exercise supervisory functions, and, therefore, they ought to have been placed in the pay scale of Rs.5500-9000. However, the respondents have refused to accept their prayers that these six applicants are also entitled for grant of pay in pay scale of Rs.9300-34800 (PB-2) with Grade Pay of Rs.4200/-.
12. One of the grounds for the applicants claim is that the Limited Departmental Accountancy Examination-2008 was held in the month of August 2008 for 30 posts, the result of which was declared on 30.04.2009, declaring 22 candidates as successful. After 1 and = years, the respondent-Directorate of Printing issued the first posting order in the month of September 2010, and only 14 candidates have been given posting and the postings of 8 candidates were still pending. They have assailed that the stand of the respondents in the impugned order dated 29.03.2011 as cited in para 10/above, stating that only the applicants of those two OAs alone are eligible to get Pay Band-2 Rs.9300-34800 with grade Pay of Rs.4200, and the others are entitled to pay in Pay Band-I, is bad, discriminatory, and in violation of Article 14 of the Constitution of India.
13. It was submitted that this is against the law of the land as laid down by the Honble Apex Court in Inderpal Yadav vs. Union of India & Others 1985 (2) SLR 2481 and in K.C. Sharma vs. Union of India, AIR 1997 SC 3588. It was submitted that the law as laid down by these two judgments is that relief cannot be denied to similarly placed persons only because they have not come to the Court earlier for redressing their grievances, and to deny their legitimate expectation that they would be granted the same relief which their co-employees similarly situated have already been granted. It was further pointed out that for the Accountants, the Directorate of Printing is the Appointing Authority, and they shouldered higher responsibilities, while the Appointing Authority of the Head Clerks is Manager of the Press concerned, and the pay scale of Head Clerk has already been upgraded to Rs.5000-8000/-. It was further submitted that the post of Accountant is a transferable job, and this, combined with the higher responsibilities, entitled them to a pay scale higher than that of the feeder cadre of Head Clerks. In the result, they had prayed for the following reliefs:-
Set aside the impugned order no.60/2/2008-A-IV dated 29th March, 2011 issued by The Directorate of Printing.
Direct the respondents to grant pay scale in PB-2 of Rs.9300-34800 with Grade Pay of Rs.4200 (PB-2) w.e.f. 1st May 2009 as granted to the applicants in pursuance of direction given in OA.No.997/2001 & OA No.1905/2008 Pass any other order or orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
14. Respondents filed their counter reply on 19.03.2012. It was pointed out that the applicants had applied for the Departmental Accountancy Examination for the employees of Directorate of Printing, Department of Publication and Govt. of India Stationery Office, Kolkata, as notified through Annexure R-1 dated 01.05.2008, and the result of the 22 successful candidates had been declared on 30.04.2009 through Annexure R-2. The respondents had also filed Annexure R-3 contained a Schedule to the Recruitment Rules for the post of Accountants in the Directorate of Printing, in which in Column No.4 Scale of Pay, the pay scale had been shown as Rs.4500-125-7000, and in Column No.11, it was mentioned that the Method of Recruitment would be 100% by promotion on the basis of Accountancy Examination from amongst persons holding posts mentioned in Column 12. The Column No.12 in question, giving the zone of eligibility for appearing at the Accountancy Examination, stated as follows:
In case of recruitment by promotion/deputation/ absorption, grade from which promotion/absorption on deputation to be made.
Clerical Grade (excluding the Employees borne on the cadre of Central Secretariat Service, Central Secretariat Clerical Service, Central Secretariat Stenographer Service) which includes the posts of (1) Head Clerks (2) Upper Division Clerks (UDCs) (3) UDC Incharge (4) Cashier (5) Estimators (6) Lower Division Clerk (LDC) (7) Selection Grade LDC (8) Head Computer (9) Junior Salesman (10) Stenographers (11) Checkers (12) Depot Incharge (13) Deputy Store Keeper (14) Progress Inspectors, who should be permanent or quasi-permanent Employee, and should have rendered at least five years regular Service (in a clerical grade), subject to passing Accountancy Examination to be conducted in accordance with the scheme of Examination.
15. It was submitted that neither the applicants have challenged the said Recruitment Rules in the present OA, nor have they demonstrated as to in what manner they are similarly placed with the two applicants who were before the Ernakulam Bench and the Honble High Court of Kerala. It was further pointed out that the Honble High Court of Kerala had specifically ordered that even though it had maintained the findings of the Ernakulam Bench of the Tribunal, the directions for payment of the enhanced scale of pay to the applicants therein had been vacated, and the SLP having been dismissed only on the ground that the application for condonation of delay was rejected, the judgment of the Honble High Court of Kerala had become final.
16. It was further submitted that in the Respondent-Directorate, the post of Accountant does not belong to any organized Accounts cadre, and the specific recommendation of the Vth Central Pay Commission (Vth CPC, in short) was for extending the pay scale of Rs.4000-6000/- to Accountants in non-organized Accounts cadres, to which the posts of various Govt. of India Presses under the Administrative control of Directorate of Printing belong, but in the Directorate the Accountants were already enjoying the higher pay scale of Rs.4500-7000, which was higher than the one recommended for non-organized Accounts Cadre by the Vth CPC. because of the Recruitment Rules re-produced at Annexure R-3. It was submitted that the applicants had been correctly placed in the corresponding PB-I of Rs.5200-20200 with Grade Pay of Rs.2800/-. It was further submitted that the Ministry of Finance has concurred with the decision as contained in the impugned order as reproduced in para 10/above.
17. It was further submitted that the applicants in OA No.997/2001 were granted benefits, as they were on the rolls of the Accountants, and were claiming benefit w.e.f. 01.01.1996, and had been promoted as Accountants prior to the new Recruitment Rules dated 05.10.2002, while the present applicants before this Tribunal in these two OAs now under consideration have been selected and appointed as per the new Recruitment Rules dated 05.10.2002, which Recruitment Rules are not under challenge by the applicants, and their claim also is only from the date of their placement as Accountants in 2010/2011, as opposed to the claim of the persons, who have already been granted benefit earlier, whose claim was w.e.f. 1.1.1996. It was further submitted that though in the Recruitment Rules for the post of Accountants, the post of Head Clerks has also been mentioned to be eligible for appearing in the examination, but that alone does not mean that they have to be taken as a feeder cadre for promotion to the post of Accountants, particularly since in Column No.13, there is no mention of constitution of a Departmental Promotion Committee to provide for Head Clerks to be promoted as Accountants, and hence it was pleaded that the post of Accountants is not a normal promotional grade for Head Clerks.
18. It was pointed out that the new Recruitment Rules dated 05.10.2002 have never been challenged nor been set aside by any Court, and there is a clear distinction between the beneficiaries of the earlier two Court judgments, whose claim arose on 01.01.1996, and the claim of the present applicants, which arises only from the dates they have been placed as Accountants in 2010/2011, after successfully competing in the examination notified on 01.05.2008.
19. It was further submitted that the Govt. of India has not accepted the recommendations of the VIth CPC in respect of Accountants working in Govt. of India Presses under the administrative control of Directorate of Printing, Ministry of Urban Development, as the Para 7.46.34 of the recommendations of the VIth CPC does not reflect anywhere in the Central Civil Services (CCS, in short) (Revised Pay) Rules, 2008, as notified by the Govt. of India vide its Gazette Notification No. G.S.R. 622 (E) dated 29.08.2008. It was, therefore, pleaded that since the Recruitment Rules of 2002 had already placed the Accountants of the Respondent-Directorate of Printing in pay scale of Rs. 4500-7000/-, higher than the pay scale of Rs.4000-6000/- recommended by the V CPC for Accountants in the non-organized Accounts cadre, and since the VIth CPC recommendations have not been reflected in the CCS (Revised Pay) Rules, 2008, notified through 29.08.2008 Gazette Notification, the applicants were not entitled to claim parity with those whose claim for pay scale had arisen w.e.f. 01.01.1996 under the Vth CPC. Hence they had prayed that the OA may be dismissed.
20. The applicants filed a rejoinder on 23.05.2012, more or less reiterating their contentions in the OA. It was submitted that since there is only one cadre of Accountants under the control of Directorate of Printing, Ministry of Urban Development, it was wrong to state that they do not belong to an organized cadre of Accountants. It was further submitted that the present applicants are also similarly placed as compared to those who have been granted the benefit of higher pay scales in the sense that the pay scale of Rs.4500-7000 has since been upgraded to Rs.5500-9000 w.e.f. 01.01.1996 by the orders of the Honble Apex Court, though it was not indicated as to which order of the Honble Apex Court was being referred to. It was submitted that though there are 65 sanctioned posts of Accountants in the Directorate of Printing, there are only nearly 40 Accountants in the Directorate of Printing who have no relation with the Department/Ministry, and, therefore, by themselves they constitute a common category post and an organized cadre in that sense.
21. It was further submitted that since the new Recruitment Rules notified in 2002 were in substance the same as the previous Recruitment Rules, there was no basis for the respondents to try to make a distinction only on the ground that the present applicants were recruited under the new Recruitment Rules. It was further submitted that the earlier Accountants, who had come before the Ernakulam Bench, and before the Principal Bench, in the earlier two OAs (supra), had also been appointed after qualifying similar Departmental Accountancy Examination conducted by the Directorate of Printing from time to time, and, therefore, also no distinction can be made between the applicants of those two OAs and the present applicants. It was, therefore, submitted that the benefits granted to the applicants in Union of India vs. C.N.G. Pillais case (supra) should be extended to the present applicants also, who are similarly placed employees, on the basis of equal pay for equal work, which principle flows from Articles 14 and 16 of the Constitution of India, and under Article 39(d) of the Constitution of India. It was submitted that accepting the contention of the respondents would amount to confirming the discriminatory treatment against the applicants, and in the result it was prayed that the OA be allowed.
OA No.3644/201122. As discussed in brief above also, OA No.3644/2011has been filed by 16 applicants, who had sought shelter behind the same orders of the Ernakulam Bench of this Tribunal, the Honble High Court of Kerala at Ernakulam, and of the Principal Bench of this Tribunal, as confirmed by the Honble High Court of Delhi, in which the SLP was dismissed by the Honble Apex Court, as has been cited above already. The only difference in this case of these 16 applicants from that of those in OA No.3201/2011 is that these 16 applicants of the present OA were appointed to the post of Accountants from 8.8.1988 to 18.02.1988, as per the chart produced by them at Annexure P-1, page 28 of the OA. After discussing the facts of the case on similar lines, and raising the same grounds, they had also claimed parity with the 37 persons already allowed higher scales of pay through the order dated 19.05.2010 cited and reproduced by the applicants of the above OA No.3201/2011, and through the same impugned order dated 29.03.2011 reproduced in para 10/above, pay parity had been denied to the applicants of this OA also. They had therefore prayed for the following reliefs:
Set aside the impugned order 8/14th March, 2011 and order no.60/2/2008-A-IV dated 29th March, 2011 issued by The Directorate of Printing.
Issue appropriate direction directing respondents to grant all the Accountants on roll as on 1.1.1996 and afterwards the Scale of Rs.5500-9000 w.e.f. 1.1.1996 and direct the respondents to grant all consequential relief as granted to the applicants therein in pursuance of direction given in OA.No.997/2001 & OA No.1905/2008 Pass any other order or orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
23. It was at the stage of filing of written submissions, after the arguments were heard and orders were reserved, when the applicants of this OA came out with the submission that the Recruitment Rules, 2002, will not apply to the applicants of this O.A., as they were appointed to the posts of Accountants on various dates in 1988, 1993, 1994, 1997 and 1998, prior to the notification of the Recruitment Rules, 2002, and, therefore, they had pleaded that they are similarly situated with the applicants in OA-1905/2008 already allowed earlier by this Tribunal. They had, therefore, sought shelter behind the same cited judgment of the Honble Apex Court in Promotee Telecom Engineers Forum and others v. D.S. Mathur, Secretary, Department of Telecommunications (2008) (4) SCALE 815.
24. The respondents had also filed a similar counter-reply in this OA also on 19th March, 2012, and no new point was made out in the counter-reply over and above the reply as filed in OA No.3201/2011. However, as one of the Annexures of the counter-reply in this O.A., the respondents had produced a copy of the Noting dated 21.11.2005 recorded by the Under Secretary (Legal), Government of India, Ministry of Finance, Department of Expenditure (Implementation Cell), addressed to the Director (Finance), Ministry of Urban Development and Poverty Alleviation, which stated as follows:
Government of India Ministry of Finance Department of Expenditure (Implementation Cell) ***** Reference preceding notes.
2. Ministry of UD & PA may kindly refer to their proposal regarding upgradation of pay scale of the post of Accountants in Government of India Presses from Rs.4500-7000 to Rs.5500-9000 pursuant to directions dated 2.12.2002 of the CAT Ernakulam Bench in OA No.997/2001 which have been upheld by Kerala High Court. The issue has been considered in this Department. It has, however, not been found possible to allow upgradation of pay scale in the present case and the administrative ministry is advised to reject the claim of the applicants on the grounds conveyed earlier in consultation with Ministry of Law. It may also be brought out that though the CAT, in their impugned order have laid emphasis on grant of scale of Rs. 5500-9000 to Accountant in various Ministries/Deptts. Of GOI for giving similar treatment in the subject case, however, these orders were limited to the Organised Accounts Cadres which by their very nature of functions discharge more onerous duties and are subject to more vigorous tests for promotion (viz. SAS qualifying test). The posts in question not belonging to any organized Accounts cadre, are not covered by these orders. Furthermore, the post of Accountant in GOI presses is a feeder grade for promotion to the post of Superintendent which exists in the scale of Rs.5500-9000. Extending an identical scale to Accountants will mean promotion and feeder posts are in an identical scale which cannot be justified Recommendations of 5th CPC was for extending the scale of Rs.4000-6000 to Accountants in non-organised Accounts cadres. The instant post is already in a higher scale of Rs.4500-7000. There is also a relativity of this post with that of Head Clerk (Jr.)/Head Computer which too presently exists in the scale of Rs.4500-7000 in GOI Presses.
This issues with the approval of JS(Pers).
(V. Krishnaswamy) Under Secretary (Legal) Director(Finance), M/o UD & PA, Nirman Bhawan, New Delhi M/o Finance, D/o Expenditure, UO No12/16/2002-IC dated 21.11.2005.
25. The applicants of this OA had filed a rejoinder on 23.04.2012, more or less reiterating their case as in the OA, which has already been discussed while discussing the earlier OA No.3201/2011, and had reiterated the request that the benefit granted to the applicants in Union of India v. C.N.G. Pillais case (supra) should be extended to them also.
26. We had heard the two cases in great detail, and as pointed out above, the aspect of difference in Recruitment Rules had come up during the arguments, which was later explained by the learned counsel for the applicant in the two OAs by filing separate written submissions. The crux of the respective arguments advanced in these two O.A.s revolved around the Recruitment Rules under which the applicants of OA No.997/2001 before the Ernakulam Bench and OA No.1905/2008 before this Principal Bench were appointed, and the Recruitment Rules under which the present applicants in the two O.A.s before us were appointed.
27. In the written submissions filed by the applicants, it was clarified that the applicants in OA No.3201/2011 were appointed as Accountants in the year 2010, and the applicants in OA No.3644/2011 were appointed as Accountants in the year 1988 to 1998, much before the Recruitment Rules of 2002 came into force, and, therefore, the facts in both the OAs are different, and, therefore, separate written submissions were filed in the two OAs. In the written submissions filed in OA No.3201/2011, it was submitted that as there is no material difference in the Recruitment Rules, 1992, dated 22.07.1992, and the Recruitment Rules 2002 dated 05.10.2002, both the Recruitment Rules should be read at par with each other, and that there is no change of duties and responsibilities in respect of Accountants recruited under the Recruitment Rules of the year 1992 and 2002. It was submitted that when Ernakulam Bench of the Tribunal had already arrived at the finding that Accountants were exercising supervisory functions, that aspect is no longer res integra, and, therefore, it would be completely discriminatory, violative of equality, and against the principles of natural justice, to deny the benefits of the same revised pay scale of Rs.5500-9000 to similarly placed employees. It was mentioned that the respondents have tried to mislead the Tribunal by stating that applicants 2,3,4 &5 were mistakenly issued appointment letters indicating their fixation in PB-2 vide three separate orders, while they should have been fixed in PB-I, like done in the case of applicant No.1 and applicant No.6 correctly, and that the impugned order dated 29.03.2011 is only a Corrigendum. It was, therefore, submitted in the written submissions filed in OA No.3201/2011 that the applicants of this OA are fully entitled to the pay scales at par with the benefits given to the applicants in OA No.997/2001 of Ernakulam Bench (supra) and OA No.1905/2008 of Principal Bench (supra) and the impugned order dated 29.03.2011 should, therefore, be set aside.
28. Insofar as the case in Union of India v. C.N.G. Pillai & Anr. (supra) is concerned, it has become final, and had been followed by this Bench also in the second case in OA No.1905/2008 in the case of Om Prakash & Ors. (supra). It is clear that those two judgments, Ernakulam Bench in OA No.997/2001 dated 2.12.2002, and the judgment of Principal Bench in OA No.1905/2008 were both concerning persons who had been appointed to the posts of Accountants under the earlier Recruitment Rules of 1992, and not under the new Recruitment Rules, 2002, notified on 5.10.2002. It therefore appears that the applicants of OA No.3644/2011, who were appointed prior to the notification of the Recruitment Rules, 2002, are, therefore, fully entitled to claim parity with the pay scale as allowed to the 37 applicants of the earlier two OAs, on the basis of the above two cited judgments.
29. The opinion of the Under Secretary (Legal) Implementation Cell of Department of Expenditure, Ministry of Finance furnished on 21.11.2005 (as reproduced in para 24/above) and the other contentions of the respondents raised in this regard have merit only to the extent that it cannot be held by us today that the posts of Accountants in the Directorate of Printing belong to any organized Accounts cadre, and, therefore, cannot be covered by any instructions of the Government of India, which are specifically made limited in their application to organized Accounts Cadres. Also, the Under Secretary (Legal) was right in pointing out that the posts of Accountants in Government of India Presses is a feeder grade for promotion to the posts of Superintendents in the Government of India Presses, which also existed in the same pay scale of Rs.5500-9000, and extending an identical scale of pay to the Accountants would mean that the promotional and feeder posts would be in identical pay scales, which cannot normally be justified. This aspect was rightly considered by the Vth CPC, because of which the Vth CPC had recommended the pay scale of Rs.4000-6000 to the Accountants in non-organized Accounts Cadre, even though the posts of Accountants in the Directorate of Printing were already in a higher scale of Rs.4500-7000, both under the Recruitment Rules dated 22.07.1992, and the Recruitment Rules 2002, dated 5.10.2002. However, this hairsplitting argument, though legally correct, cannot be applied now to the case of the applicants of OA-3644/2011, who, in all other manners, have absolute parity with the 37 persons who have already been granted the pay scale of Rs.5500-9000, by virtue of the orders of the Honble High Court of Kerala at Ernakulam having been confirmed with the dismissal of the SLP by the Honble Apex Court, and with the orders of the Principal Bench of the Tribunal having been confirmed by the Honble Delhi High Court (supra). It is, therefore, clear that the rights of the applicants of OA No.3644/2011 have crystallized in their favour, because of the parity of their case with the cases of the 37 persons who have already been given the higher pay scale.
30. However, that is not the position of the 6 applicants of OA No.3210/2011. They had responded to a circular for holding of the Departmental Accountancy Examination issued by the Directorate of Printing on 1.5.2008. At that point of time the Recruitment Rules, 2002, dated 5.10.2002, were very much in the position, and the scale of pay of the Accountants was mentioned and was well known to them. After they passed the examination and qualified, and they were promoted as Accountants in the order of merit of their success in the Examination held in August 2008, the result of which was declared on 30.04.2009, as per the availability of vacancies on different dates, and with open eyes they have accepted their promotions as Accountants against the positions under Recruitment Rules dated 5.10.2002. But such appointments being against the positions under Recruitment Rules, 2002, could not have been made de hors the Recruitment Rules, as prevailing and notifying in the Examination Notification in respect of the posts of Accountants. Therefore, it is clear that the applicants of OA-3201/2011 had never acquired any rights which cannot be said to have crystallized in their favour, to allow them to claim parity with C.N.G. Pillai & others and Om Prakash and Others (supra), as has been claimed by them.
31. Therefore, the OA No.3644/2011 is allowed, and OA No.3201/2011 is rejected. In the result, the impugned order dated 29.03.2011 is quashed qua the applicants of OA-3644/2011, but is upheld qua the applicants of OA-3201/2011. But there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.