Central Administrative Tribunal - Ernakulam
K.L. Madhu vs Union Of India on 15 May, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO.180/00581 of 2015
Monday, this the 15th day of May, 2017
CORAM
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
K.L. Madhu, aged 45 years
S/o P.E.Lakshmana Perumal,
Skipper,Fishery Survey of India (FSI)
Cochin Base, Thoppumpady,
Kochi-682005
residing at Konattu Parambil House,
Neendoor PO, Kottayam-686601.
. . . Applicant
(By Advocate Mr. T.C.Govindaswamy)
Versus
1 Union of India, represented by the
Secretary to Government of India,
Ministry of Agriculture
(Department of Animal Husbandry,
Dairying & Fisheries)
New Delhi.-110 001.
2 The Director General, Fishery Survey of India,
Botawala Chambers, Sir P.M.Road,
Fort, Mumbai-400 001.
3 Zonal Director, Fishery Survey of India,
Cochin Base, Thoppumpady,
Kochi-682005.
4 Zonal Director, Fishery Survey of India,
PB No.46, Port Blair-744 101.
5 The Secretary to the Government of India,
Ministry of Finance,
New Delhi-110 001.
. . . Respondents
(By Advocate Mrs. Mini R Menon, ACGSC)
This application having been finally heard on 24.03.2017, the Tribunal on
15.05.2017 delivered the following:
ORDER
Per: U. Sarathchandran, Judicial Member The applicant is a Skipper working under the respondents after having been promoted to that post vide Annexure A3. He joined the promoted post on 2.11.2010 as indicated in Anenxure A4. Before his promotion to the post of Skipper he was initially appointed as Bosun (Certified) on 6.8.2001. Subsequently he was promoted as Mate Grade I in PB02 + GP 4600.- during the year 2007. It was from that post he was promoted as Skipper in PB-3 (Rs. 15600-39100 + GP 6600/-).
2. The grievance of the applicant is that as per Section 2 of Part A of Ist Schedule to the CCS (Revised Pay) Rules, 2008, a copy of which is marked as Annexure A1, in the case of direct recruits appointed in PB-3 (Rs. 15600-39100) with Grade pay of Rs,. 6600/- the pay in pay band would be Rs. 18750/- and they would be getting Rs. 25350/- whereas he being a promoted person to the post of Skipper in PB-3 of Rs. 15600-39100 and Grade Pay of Rs. 6600/- will get a pay of only Rs. 22200/- which would be Rs. 3150/- less than what the counter part ie., direct recruit is getting. According to him, Rule 13 of the CCS (Revised Pay) Rules, 2008 providing fixation of pay on promotion on or after 1.1.2016 is the method of fixation of pay for him which being less than what has been provided for in Section 2 of Part A of Ist Schedule to the direct recruites, is highly discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
3. According to him once a person is appointed to a cadre, whatever be the source of such appointment, he is at par with a person appointed from a different source and he cannot be discriminated purely based on the basis of source of recruitment. He therefore, challenges Rule 13 of CCS (RP) Rules, 2008 to the extent it does not enable fixation of pay equivalent to the pay to the direct recruits in Annexure A1 to the CCS (RP) Rules, 2008 is clearly illegal, unconstitutional. He therefore, prays for the following reliefs:
(i)Declare that Rule 13 of CCS (RP) Rules, 2008 in so far as it results in fixation of pay of a promotee, at a substantially lower level than that of a direct recruit is arbitrary, discriminatory, contrary to law and unconstitutional;
(ii)Direct that the initial pay of a person on promotions hall not be less than the minimum pay as fixed for a direct recruit and that any fixation of pay on promotion under Rule 13 of CCS (RP) Rules, 2008 shall be subject to the minimum as aforesaid.
(iii)Call for the records leading to Annexure A2 and quash the same;
(iv)Direct the respondents to fix the applicant's pay at the stage of Rs. 18,750/- + GP Rs. 6600/- w.e.f 2.11.2010 with progression by increments year after year in accordance with law;
(v)Award costs of and incidental to this application and;
(vi)Pass such other orders or direction as deemed just, fit and necessary in the facts and circumstances of the case.
4. The respondents resisted the OA contending that it is as per Rule 13 of CCS (RP) Rules, 2008 the pay of the applicant has been fixed. As the Revised Pay Rules, 2008 prescribe a higher pay for the direct recruits in PB 3 (Rs. 15600-39100) the applicant cannot claim the fixation of pay at the same rate as that has been provided for the direct recruits.
5. A rejoinder was filed by the applicant producing Annexures A6 and A7 copies of the judgments of the Delhi High Court in WP(C) No.727/2015 dated 27.1.2015 and WP(C) No.1853/2015 and connected cases dated 2.3.2015. At the time of arguments the applicant has produced a decision dated 6.3.2017 of th Principal Bench of this Tribunal in OA No.1456/201.
6. We have hard Shri T.C.Govindaswamy, learned counsel for the applicant and Mrs. Mini R.Menon, ACSC for the respondent's.Perused the record.
7. The relevant provisions in the CCS (Revised Pay Rules) 2008 pertinent to this case are Rule 13 and Section II of Part A of the First Schedule to the CCS (RP) Rules 2008. Rule 13 reads :
13. Fixation of pay on promotion on or after 1.1.2006 - In the case of promotion from one grade pay to another in the revised pay structure, the fixation will be done as follows :-
(i) One increment equal to 3% of the sum of the pay in the pay band and the existing grade pay will be computed and rounded off to the next multiple of 10. This will be added to the existing pay in the pay band.
The grade pay corresponding to the promotion post will thereafter be granted in addition to this pay in the pay band. In cases where promotion involves change in the pay band also, the same methodology will be followed. However, if the pay in the pay band after adding the increment is less than the minimum of the higher pay band to which promotion is taking place, pay in the pay band will be stepped to such minimum.
(ii) In the case of promotion from PB-4 to HAG+, after adding one increment in the manner prescribed in Rule 9, the pay in the pay band and existing grade pay will be added and the resultant figure will become the basic pay in HAG+. This shall not exceed Rs.80000, the maximum of the scale. For Government servants in receipt of NPA, pay plus NPA will not exceed Rs.85000.
8. The Section II in Part A of First Schedule fixes the entry pay in the revised pay structure for direct recruits appointed on or after 1.1.2006 as follows :
PB-3 (Rs.15600-39100) Grade Pay Pay in the Pay Band Total 5400 15600 21000 6600 18750 25350 7600 21900 29500
9. Shri Govindaswamy submitted that after the applicant joined the promotion post, he had sent Annexure A5 representation to the first respondent, but no action was taken for remedying the grievances of the applicant. The thrust of the argument of Shri Govindaswamy was on infringement of the equality principle enshrined in the Constitution. He submitted that soon after their joining the department both direct recruits and promotees in the cadre of Skipper become integrated into one cadre, a discriminatory treatment of fixing higher pay to the direct recruits is highly unreasonable an discriminatory. We have carefully examined the pleadings of the respondents in relation to this argument. We were unable to see any justifiable reason in granting the higher pay to the direct recruits who were recruited to the post in PB-3 (Rs. 15600-39100).
10. Shri Govindaswamy referred to Roshan Lal Tandon and others Vs. Union of India and others, a Constitution Bench decision of the Apex Court reported in AIR 1967 SC 1889. In that case the Apex Court was examining the differential treatment given to persons recruited to Grade B from different sources ie., one group as direct recruits and another as promotees in the matter of further promotion to the Grade C. The Apex Court said:
'In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well-founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade 'D', there was one class in Grade 'D' formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C'. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade 'C'. In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum- suitability, and there was no rule of promotion separately made for application to the direct recruits.' Although the aforesaid decision of Roshan Lal was relating to promotion to higher posts, the principle laid down by the Apex Court is squarely applicable to the instant case also. As observed earlier, we were unable to see any reasonableness for fixing higher pay for direct recruits higher than that of the promotees.
11. As observed by Wade & Frosyth in their classic work Administrative Law (7th Edition) Page 879, just as with other kind of administrative action, the Court must sometime condemn rules or regulations for unreasonableness. In that book the learned authors have quoted Lord Russell CJ in Kruse v. Johnson [1898] 2 QB 91 :
' If, for instance [byelaws] were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But ....a byelaw is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient.....'
12. As observed by our apex court in Khoday Distilleries Ltd v. State of Karnataka (1996) 10 SCC 304 (314), such delegated legislation must be 'a law which could not be reasonably expected to emnate from an authority delegated with the law-making power'.
13. We have perused the Recruitment Rules for the post of Skipper called 'Exploratory Fisheries Project and its Bases (Recruitment to Class I and Class II posts) Amendment Rules, 1976'. Both sides admitted that the same rules has been made applicable to the respondent department which has been re-named as Fishery Survey of India. In column 10 of the aforesaid rules the method of recruitment for the post of Skipper is prescribed as 'By promotion, failing which by direct recruitment'. We note that as per rules there are two sources of appointment to the post of Skipper. One by promotion and other by direct recruitment. In the case of applicant he is a promotee. There is nothing on record to indicate that a direct recruitment had taken place in the recent past. Neverthless, as appointment is made to the post of Skipper from two different sources, once such appointments are made, the incumbents fall in the same class of persons. Being employees belonging to the same class and cadre, it is impermissible to give a differential treatment to them based on their source of recruitment. Such a dispensation, whether it is by a statutory rule or by administrative orders, would be violative of Articles 14 and 16 of the Constitution of India.
14. Shri Govindaswamy referred to Annexures A6 and A7 judgments of the Delhi High Court and a decision of the Principal Bench in OA 1456/2015 relating to the discriminatory and differential treatment given in the matter of pay based on their source of recruitment. In those decisions it was held that the principle of 'equal pay to equal work' has to be made applicable and that equal pay has to be given to the employees irrespective of their source of recruitment. We feel that the principles laid down in those decisions can be applied in the instant case also.
15. In the above circumstances, we declare that Rule 13 of CCS (Revised Pay) Rules 2008 in so far as the it results in fixation of pay of promotees at a substantial lower level than that of direct recruits is arbitrary, discriminatory and contrary to law and is unconstitutional. We direct that the initial pay of persons on promotion shall not be less than the minimum pay fixed for direct recruits and that in fixation of pay on promotion under Rule 13 of CCS (Revised Pay) Rules 2008 shall be subject to the minimum as aforesaid. We direct the respondents to fix the applicant's pay at the stage of Rs. 18750/- + GP Rs. 6600/- with effect from 2.11.2010 with progressive increments from time time in accordance with law.
16. The OA is allowed. Parties shall suffer their costs.
(E.K. Bharat Bhushan) (U.Sarathchandran) Administrative Member Judicial Member kspps