Central Administrative Tribunal - Delhi
Jagdish Prasad vs M/O Agriculture on 25 May, 2018
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4096/2016
With
OA-3370/2016
MA-2957/2016
Reserved on : 14.03.2018.
Pronounced on : 25.05.2018.
Hon'ble Ms. Praveen Mahajan, Member (A)
OA-4096/2016
Sh. Jagdish Prasad, 61 years
S/o Sh. Ram Dass,
Private Secretary (Retired)
R/o J-1197, Jahangir Puri,
Delhi-110033. ..... Applicant
(through Dr. S.N. Singh, Advocate)
OA-3370/2016, MA-2957/2016
1. Sh. Prem Chand S/o Sh. Risal Singh
Aged about 57 years
Senior Private Secretary,
R/o B-115, South Moti Bagh,
Nanakpura, New Delhi-110021.
2. Sh. A.C. Kuriakose S/o Sh. A.P. Chacko
Aged about 57 years
Private Secrtary,
R/o F-306, Nanakpura,
New Delhi-110021.
3. Ms. Nomit Mehta D/o Sh. Lakshmi Das
Aged about 53 years
Private Secretary,
R/o E/65-A, First Floor, Moti Nagar,
New Delhi-110015.
4. Mr. Medapati Vijaya Ananda Kumar
S/o Sh. M. Krishna Rao,
2 OA-4096/2016
Aged abou 51 years,
Private Secretary,
R/o -3-A, Central Government
Housing Complex, Vasant Vihar,
New Delhi-110057.
5. Mr. Pankaj Kumar S/o Sh. Madhwa Nand
Aged about 44 years,
Private Secretary,
R/o Q.No.-A-275, Moti Bagh,
New Delhi-110021. .... Applicants
(through Dr. S.N. Singh, Advocate)
Versus
1. Commission for Agricultural
Costs and Prices through
Its Member Secretary,
Room No. 184-A, Krishi Bhawan,
New Delhi-110001.
2. Union of India,
Department of Agriculture,
Co-operation and Farmers Welfare,
Through its Secretary,
Krishi Bhawan,
New Delhi-110001.
3. Department of Personnel & Training
Through its Secretary,
Government of India,
North Block, Central Secretariat,
New Delhi-110003.
4. Department of Expenditure,
Ministry of Finance,
Through its Secretary,
Government of India,
North Block, New Delhi-110001. .... Respondents in
both OAs
(through Sh. Gyanendra Singh, Advocate)
3 OA-4096/2016
ORDER
Both the OAs are similar and hence are being disposed of by a common order. For the sake of convenience facts of OA-4096/2016 are being discussed as hereunder:-
2. Brief facts of the current O.A. are that the applicant was working as Private Secretary in Commission for Agricultural Costs and Prices (CACP) from where he retired on 31.01.2015. The applicant avers that he was selected through the proper procedure in the same manner as his counterparts, holding similar posts in other Ministries in their respective cadres. The nature of work and responsibilities of the applicant reportedly, are also similar to those holding cadre posts of Private Secretary.
3. The applicant has tried to demonstrate the historical parity between CACP and Directorate of Economics of Statistics (also an attached office) by stating that CACP and the Directorate of Economics and Statistics came into existence almost at the same time. By way of an example, he states that there is a Principal Adviser to Government of India in the Directorate of Economics and Statistics whereas in CACP, the equivalent post is that of Chairman.
In the Directorate of Economics and Statistics, there is Economics and Statistics Adviser, which post is equivalent to that of Member Secretary in CACP, both being Head of the concerned office etc. 4 OA-4096/2016 The emphasis being that the post of PS in CACP is at par with the post of PSs in other departments/organizations
4. This parity, he avers was also considered by the respective Central Pay Commissions in their recommendations. For implementing the recommendations of the 6th Central Pay Commission, the Central Civil Services (Revised Pay) Rules Notification dated 29.08.2008 was issued, which contains revised pay scale of Rs. 7500-12000 in PB-2 with Grade Pay of Rs.4800/- and pay scale of Rs.8000-13500 in PB-3 with Grade Pay of Rs.5400 (on completion of four years) for office staff in the Secretariat i.e. Section Officer/Private Secretary/equivalent etc. However, it is stipulated therein that this scale would be available only to "those organisations/services which have had a historical parity with CSS/CSSS Services like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments. Hence the organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC etc. would therefore get covered."
5. The applicant submits that after completing four years of regular service in the pay scale of Rs.7300-12000, PB-2 with GP of Rs.4800 the applicant No.2 was granted MACP with effect from 16.03.2013 with pay of Rs.18300+GP 5400. The applicant also wrote a letter dated 13.08.2013 to respondent No.1 requesting for grant of similar pay parity but no action was taken on the request. As per the 5 OA-4096/2016 pay slip issued to the applicant for the month of October, 2015, he was paid Grade Pay of Rs.5400. However, he was compelled to give an undertaking on 29.10.2015, that he would refund excess amount, if any paid to him.
6. The applicant further submits that on 05.11.2015, the Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Cooperation and Farmers Welfare) issued GSR 211 notifying "Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Cooperation and Farmers Welfare, Commission for Agricultural Costs and Prices), Stenographer Grade-I, Private Secretary and Senior Private Secretary Group-„B‟ Recruitment Rules, 2015" (2015 Rules) in supersession of Commission for Agricultural Costs and Prices, Group „C‟ & „B‟ posts Recruitment Rules, 2000, the Commission for Agricultural Costs and Prices, (Private Secretary) Recruitment Rules, 2001 and the Ministry of Agriculture, Department of Agriculture and Cooperation, the Commission for Agricultural Costs and Prices, Senior Private Secretary, Group „B‟ post Recruitment Rules, 2002.
7. According to rule 2, read with the Schedule attached with these rules, the Private Secretary, General Central Service Group „B‟ Gazetted, Ministerial has been given Pay Band-2 Rs.9300-34800 with Grade Pay of Rs.4600 and Senior Private Secretary, General Central Service Group „B‟ Gazetted, Non-Ministerial has been given Pay Band-2 Rs.9300-34800 with Grade Pay of Rs.4800. The applicant 6 OA-4096/2016 submits that the 2015 Rules reduced the Pay Band and Grade Pay allowed to the applicants as per the 6th Central Pay Commission recommendations w.e.f. 01.01.2006. Though these rules only have prospective application from the date of their publication in the official gazette i.e. 05.11.2015 but the respondent No.1 is applying them retrospectively from 01.01.2006. Moreover, these rules came into force when the applicant had already retired from service.
8. On 27.11.2015, Deputy Director (Admn.) issued an order by which he refixed the pay and Grade Pay of the applicant reducing the Grade Pay to Rs.4600 with effect from 01.01.2006. Since this order was issued without any intimation to the applicant, on 19.09.2016 the applicant wrote a letter to supply him a copy of the same. On 01.12.2015, Deputy Director (Admn.) of CACP sent a letter submitting the pension papers of the applicant to the Pay & Accounts Officer (Sectt.) intimating that an amount of Rs.88994/- had been deducted from the gratuity payable to the applicant.
9. Citing the decision of Hon‟ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) in CA No.11527/2014, the applicant submits that respondents have illegally deducted the amount of Rs. 88994/- from his retiral benefits. The applicant has also relied on the judgment of Hon‟ble Supreme Court in the case of State of Kerala Vs. B. Renjith Kumar, (2008)12 SCC 219 and Hon‟ble High Court of Delhi in WP(C)-6522/2012 (Manoj Kumar 7 OA-4096/2016 Vs. High Court of Delhi) with connected writ petitions decided on 02.05.2013.
10. Aggrieved by the action of the respondents, the applicant has filed the current O.A. seeking the following reliefs:-
"(a) allow this O.A. with costs.
(b) quash Order dated 27.11.2015 issued by the Deputy Director (Admn.),CAC).
(c) quash the arbitrary and discriminatory "Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Cooperation and Farmers Welfare, Commission for Agricultural Costs and Prices), Stenographer Grade-I, Private Secretary and Senior Private Secretary Group „B‟ Recruitment Rules, 2015.
(d) grant parity in Pay, GP, promotion, etc. to the PSs/Sr.PSs working in CACP with their counterparts in the Directorate of Economics and Statistics and similar other departments/organisations of the GoI by including them in the cadre. And
(e) grant such other relief as this Hon‟ble Tribunal considers fit and appropriate under the facts and circumstances of the case."
11. Rebutting the averments raised in the OA, the respondents submit that the Department of Agriculture, Co-operation & Farmers Welfare in Ministry of Agriculture & Farmers Welfare has number of Directorates/Boards/Corporations/Centers throughout the country. The various Secretariats of the Ministries and Departments of Government of India together constitute the headquarter organization. As per Rule 7 of CCS (CCA) Rules, 1965, Central Civil posts not included in any other Central Services, shall deemed to be included in the General Central Service of the respective groups. While posts included in services like All India Service and Central Civil 8 OA-4096/2016 Service are governed centrally and administered by their respective cadre authorities as per their service rules, the posts included in General Central Service are governed locally and administered by respective offices/organizations as per their recruitment rules, which are specific to each of such office/organizations. These posts are classified as "Ministerial". The posts in Non Secretariat organizations are included in General Central Services.
12. The respondents further submit that there was no specific recommendation from the 4th, 5th, 6th and 7th Central Pay Commissions to grant higher scale not only to the post held by the applicant but also to any other category of posts in the Commission. Accordingly, only normal replacement scales were granted to all the staff members in the Commission.
13. With regard to the averments of the applicant regarding applicability of the recommendations of 6th CPC. The respondents maintain that Ist respondent is a field office (Non Sectt. Organisation) whereas the CSCS and Railway Board Stenographers Services are Headquarter Organizations (Sectt. Proper) of Govt. of India and the 6th CPC made separate recommendations for Secretariat and Non- Secretariat organizations. The revised scale of pay applicable for the post of Private Secretary in Secretariat office is PB-2 (GP-Rs.4800) and PB-3 (GP Rs.5400 after 04 years of service), but there is no 9 OA-4096/2016 mention about the post of Private Secretary in Non-Secretariat offices.
14. It is further stated that as per Section-I, Part-A of first schedule to CCS (Revised Pay) Rules, 2008, the normal replacement scale applicable for Private Secretary under Ist respondent was PB-2 (GP Rs.4200) corresponding to the pre-revised scale of pay of Rs.6500- 10500. However, consequent upon the decision taken by the Government, the benefit of O.M. No. 1/1/2008-IC dated 13.11.2009 was extended to the posts of Private Secretary and they were granted the revised upgraded scale of PB-2 (GP Rs.4600/-) w.e.f. 01.01.2006. Respondents contend that in terms of directions contained in OM No.AB-14017/61/2008 24.03.2009, all the Ministries/Departments/Offices were required to revise their service/recruitment rules (Annexure R-5). Accordingly, in supersession of the then existing rules, new Recruitment Rules titled as CACP Stenographer (Grade-I), Private Secretary and Senior Private Secretary (Group „B‟) Recruitment Rules were notified in consultation with 2nd and 3rd respondent and also with the UPSC and Ministry of Law. The said Recruitment Rules were framed/amended in accordance with model Recruitment Rules notified by the 3rd respondent vide their OM No.AB-14017/8/2010-Estt (RR) dated 24.01.2011 (Annexure R6).
10 OA-4096/2016
15. The respondents state that as per Annexure R-6, the model rules are applicable only to the Stenographers in Non-Secretariat Organisations which are not part of CSSS/RBSSS/IFS/AFHQS or any other organized headquarters services. As per the revised pay structure indicated in the schedule to CCS (Revised Pay) Rules, 2008, the replacement scale of pay for the PS was PB-2 (Grade Pay Rs.4200/-) (later revised to Rs.4600/-) corresponding to the pre- revised (5th CPC) scale of pay of Rs.6500-10500. This normal replacement scale has also been shown in the revised Recruitment Rules of 2015 notified by the 2nd respondents which is also in conformity with model rules circulated by the 3rd respondent. They aver that the statement made by the applicant that Recruitment Rules, 2015 framed by the Ist respondent have reduced his pay band and grade pay as allowed by 6th CPC is totally erroneous. The applicant, they state, cannot claim a higher scale of pay other than what is prescribed in the statutory Recruitment Rules in force at the relevant time as he is entitled only for the normal replacement scale, on the basis of the recommendations of the 5th and 6th CPC period which has already been granted to him, and reflected in the RRs from time to time.
16. The post of PS in the Secretariat prior to 01.01.2006 was in the pre revised scale of Rs.6500-10500 with Non Functional Scale of Rs.8000-13500 after 4 years of service. The 6th CPC made specific 11 OA-4096/2016 recommendations to upgrade the post of PSs in the scale of Rs.7500- 12000 with Non Functional Scale of Rs.8000-13500 after 4 years. The 6th CPC did not recommend upgradation of the pre-revised scale of Rs.6500-10500 for PS. They only recommended the GP of Rs.4200/- which was upgraded to Rs.4600/- by the Government, vide DOE OM dated 13.09.2011. Thus, 6th CPC consciously maintained distinction between the pay scale of Secretariat and Non-Secretariat Offices and did not find any justification for recommending higher pay scale for PS in Non Secretariat Services whereas same was specifically recommended for Secretariat services. The respondents have relied upon the DOP&T Memoranda dated 11.04.2011 and 28.10.2005 wherein different level of stenographic assistances has been prescribed for Secretariat and Non Secretariat Officers.
17. It is also mentioned in the counter that if the demand of the applicant is accepted, it would disturb the balance of pay scales of various posts and lead to many such demands from similarly placed Stenographers. Any revision of pay scale as demanded in the present application, will have serious financial repercussions. The 7th CPC, quite mindful of this fact, has also not recommended any such revision.
18. The respondents submit that the applicant was inadvertently allowed the GP of Rs.4800/- by the Ist respondent w.e.f. 1.1.2006. This 12 OA-4096/2016 mistake was detected while examining the claim of the applicant for grant of GP of Rs.5400/- (PB-3) on completion of 4 years service claiming parity with Secretariat/Headquarters services. While processing the pension papers of the applicant, Ist respondent sought a clarification from the Pay & Accounts Officer (Department of Agriculture, Cooperation and Family Welfare) and EA/EI Sections of DAC&FW vide OM 4-51/2004-ADmn. dt. 15.10.2015. Both the offices directed the Ist respondent to calculate the pension and other retirement dues of the applicant on the lower grade of pay i.e., GP Rs.4600/- and to revise the pension. The pay of the applicant was accordingly refixed, and the excess payment of Rs. 88,994/- has been withheld from his DCRG.
19. To support their action, the respondents have relied on the well settled preposition of law as under:-
"Ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performance of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements".
13 OA-4096/2016
20. The respondents state that en-cadrement or otherwise of the applicant in the CSSS, essentially being a policy mater cannot be claimed as a matter of choice/option. They have relied upon the judgment of the Tribunal in OA-2380/2011 - Sushila Sunaria Vs. UOI and strongly pleaded that the OA be dismissed.
21. I have perused the record carefully and considered the rival submissions made by both sides.
22. The facts not in dispute are that the applicant worked as a Private Secretary in CACP from where he retired on 31.10.2015. The applicant has sought parity in pay and grade pay etc. with his counterparts working in the Directorate of Economics and Statistics and other organizations of Government of India and sought applicability of the benefits contained in Notification dated 29.08.2018 (supra), by which the recommendations of the 6th Central Pay Commission have been made applicable to office staff in the Secretariat. This notification mandates, upgradation of scale of pay (in PB-2) from pre-revised scale of 6500-10,500/- to 7500-12000/- with grade pay of Rs. 4800 and for PB-3 in pay scale of Rs.8000 to 13,500, with grade pay of Rs.5400 (on completion of four years). These revised pay scales are available only to those services which have a historical parity with services like CSS/CSSS etc.. He alleges that denial of such parity has resulted in issue of the impugned order dated 27.11.2015 vide which his grade pay has been revised from Rs.5400/- to 14 OA-4096/2016 Rs.4800/- w.e.f. 01.01.2006 under the revised Recruitment Rules. Resultantly, the amount of Rs.88994/- has also been withheld out of the retiral benefits payable to the applicant.
23. As already discussed in the foregoing paragraphs, the contention of the applicant is that CACP, where he worked as a Private Secretary, is an organization having historical parity with AFHQSS/RBSS & Secretariat post in Ministries/Department like MEA, UPSC, CVC etc. Hence the recommendation of the 6th CPC, as notified in GSR 622(E) dated 29.08.2008 regarding revised pay scales for office staff in the Secretariat would be applicable to him viz. revision from the present pay scale of Rs. 6500-10500 to the revised pay scale of Rs.7500-12000 in PB-2 with Grade Pay of Rs.4800/- and for PB-3, the revised pay scale of Rs. 8000-13500 (on completion of 04 years) with Grade Pay of Rs. 5400/-.
24. This claim of the applicant, stands convincingly refuted by the respondents. They aver that the posts under the 1st respondents, except those which are specifically en-cadred in Central Civil Services like Indian Economic Service (IES) and Indian Statistical Service (ISS), are included in General Central Services, and are classified as „Ministerial‟. The thrust of the respondents‟ argument is that the pay scales recommended by 6th CPC in respect of office staff in the Secretariat, came with the rider that the same shall be available only in respect of those organizations and services, which 15 OA-4096/2016 had a historical parity with CSS/CSSS and other services like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs etc. in which category CACP does not fall.
25. The applicant has not been able to make out a case of parity with his counterparts as envisaged in the Notification dated 29.08.2008 on which he is relying. I am inclined to agree with the contention of the respondents that the 6th CPC made separate recommendations for Secretariat and Non-Secretariat organizations. It is only in respect of staff working in the Secretariat that recommendations in para-3.1.9 based on which the Notification dated 29.08.2008 was issued, is relevant. The respondents are correct in inferring that the 6th CPC cautiously maintained distinction between the Secretariat and Non-Secretariat officers. In respect of Non-Secretariat services, the 6th CPC did not recommend upgradation of pay scale of Rs.6500-10500/- with Grade Pay of Rs.4200/-, which was only revised vide O.M. dated 13.09.2011, to Rs.4600/-.
26. It would emerge, therefore, that the higher pay scale recommended for the post of Private Secretary is applicable only to Secretariat Services. Since the applicant belongs to an attached office, which is a Non-Secretariat office, his request is not covered by the provisions of the said Notification.
16 OA-4096/2016
27. The Recruitment Rules 2015 for Private Secretaries and Senior Private Secretaries issued in supersession of the earlier Recruitment Rules, 2000 for CACP Group-C & B, CACP (Private Secretary) Recruitment Rules 2001 and CACP (Senior Private Secretaries) Recruitment Rules, 2002 have been framed in accordance with model Recruitment Rules notified by respondent No.3 vide O.M. dated 24.01.2011. The respondents‟ contention that even prior to the amended Recruitment Rules, 2015, the applicant was only entitled for the normal replacement Scale as per 5th & 6th Central Pay Commissions (which has already been granted to him) is correct. As per the revised pay structure indicated in Schedule to CCS (Revised Pay) Rules, 2008, the replacement scale of pay for the Private Secretary was PB-2(GP:Rs.4200/-) later revised to GP:Rs.4600/- corresponding to the pre revised (5th CPC) scale of pay of Rs.6500- 10,500. This normal replacement scale has also been shown in the revised Recruitment Rules, 2015 notified by the 2nd respondent, in conformity with model rules circulated by the 3rd respondent. Therefore, the statement of the applicant that 2015 Rules framed by the 1st respondent have reduced his pay band and grade pay, as allowed by 6th CPC, is totally misplaced. Undoubtedly, the revised Recruitment Rules of 2015 are to be applied prospectively, but even on the basis of the previous Recruitment Rules, the applicant does 17 OA-4096/2016 not appear to be eligible for the higher pay scale as sought by him in the OA.
28. It is a fact that the applicant was inadvertently allowed the Grade Pay of Rs.4800/- w.e.f. 01.01.2006. When the mistake came to notice, the pay of the applicant was revised and excess amount recovered. The applicant has prayed that the excess recovery of Rs. 88,994/-, made from him is illegal in view of the laid down law by the Hon‟ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors., 2014(8)SCALE 613.
29. Here, it is pertinent to refer to the undertaking give by the applicant on 29.10.2015 stating that:-
"I, JAGDISH PRASAD s/O Shri Ram Dass, Designation Private Secretary, an employee of CACP retiring on 31.10.2015 undertake that the excess amount if any paid to me that will be returned to the Govt. Further I also undertake that in case of any change in amount due in revision of RRs which are under consideration, the excess amount if any will also be returned to the Govt. as soon as communication received from the Office."
In view of the aforesaid undertaking, the excess amount received by him has to be returned to the Government and has been correctly recovered by the respondents. The facts of the case are distinguishable from those in the context of which the law was laid down in the case of Rafiq Masih (supra).
30. In view of the discussions in the foregoing paragraphs, I feel that respondents have not erred in denying the revised upgraded scale to the applicant as stipulated in Notification dated 29.08.2008.
18 OA-4096/2016 The fixation was to be done in accordance with Note 2 below Rule 7 of the Notification (regarding historical parity etc.), which condition, he does not fulfill. The Recruitment Rules of 2015, challenged by the applicant have been issued in pursuance of O.M. dated 24.03.2009 consequent to 6th Central Pay Commission‟s recommendations on revision of pay scales and cannot be termed discriminatory, as discussed.
31. Pay scale of employees having different recruitment rules are dependent on job responsibilities, administrative hierarchy etc. The matters related to pay scale are policy matters to be decided in accordance with work responsibility of other cadres, report of Pay Commission. Here, it would be relevant to refer to the judgment of this Tribunal in OA-2380/2011 - Sushila Sunaria Vs. UOI dated 29.01.2013 wherein it has been observed that:-
"43. We have also examined all the case laws as cited by the respondents, and by the learned counsel for the applicants, in detail. Although we are not discussing the salient points and ratio emerging out of each of those cases here, but we find that in none of those cases it has been clearly held that this Tribunal would be bound to provide relief only by a claim of historical parity, when an expert body like the Pay Commission has had an occasion to examine threadbare in detail the rival claims and contentions, and has arrived at conclusions, and has divided its recommendations into two separate Paragraphs 3.1.9 and 3.1.14 of its recommendations."
32. In view of the aforesaid facts and discussions, the claim of the applicant for pay parity to other employees/his counterparts in other 19 OA-4096/2016 Ministries etc. is devoid of merit. The relief claimed by the applicant in OA merits no intervention by the Tribunal. OA is accordingly dismissed. No costs.
(Praveen Mahajan) Member (A) /vinita/