Central Administrative Tribunal - Gauhati
Sri Rawish Kumar vs M/O Urban Development on 9 August, 2018
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CENTRAL ADMINISRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No.040/00289/2017
Date of order: This the 09th day of August, 2018
THE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER
THE HON'BLE MR. N. NEIHSIAL, ADMINISTRATIVE MEMBER
Rawish Kumar
S/o Tarkeshwar Prasad
Age 53 Years Approx., C/o - Gunobala Kalita
H/No. 2, Dispur Last Gate
P.S. - Dispur, Guwahati - 6
Dist - Kamrup (M) Assam, Pin - 781006.
...Applicant
By Advocate: Mr. Kankan Das
-Versus-
1. Union of India through the Secretary
Having it‟s office at
Ministry of Urban Development
Nirman Bhawan, New Delhi - 110011.
2. NBCC (India) Ltd.
Through the Chairman cum Managing Director
Having its office at NBCC Bhawan
Lodhi Road, New Delhi - 110003.
3. The Chief General Manager (HRM)
NBCC (India) Ltd.
NBCC Bhawan, Lodhi Road, New Delhi - 110003.
4. The Executive Director (HRM)
NBCC India Limited
NBCC Bhawan, Lodhi Road, New Delhi - 110003.
5. Dy. General Manager (HRM)
NBCC India Limited
NBCC Bhawan, Lodhi Road, New Delhi - 110003.
...Respondents
By Advocate: Mr. A. Thakur for Res. Nos. 2 to 5
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O R D E R (ORAL)
MANJULA DAS, JUDICIAL MEMBER:
Being aggrieved with the action of the respondents, the instant petition has been preferred by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs:
"8(a) Setting aside and quash the impugned order dated 22.04.2014 issued by the General Manager vide Memo No HRM/PMS/AHQ/2014/1771 (Annexure A - 15).
(b) Setting aside and quash the impugned order dated 30.05.2016 vide office order No 572/2016 issued by Dy General Manager (HRM) in respect of the applicant (Annexure A - 21).
(c) Setting aside and quash the impugned order dated 16.12.2016 issued by the Dy General Manager vide office memo No. 38 (3349)/Estt.4517 (Annexure A - 24).
(d) Direct to the respondent to up gradation of Educational qualification MBA (Finance and Banking) to the applicant in the corporation record and grant two advance increment w.e.f. 27.12.2012 (From the date of first information) (Annexure A - 7).
(e) Direct to the respondent to release total arrear of two advance increment w.e.f. 27.12.2012 along -
with grant interest @ 12% per annum till payment to the applicant."
2. Mr. Kankan Das, learned counsel appearing on behalf of the applicant submitted that the applicant who joined the National Building Construction Corporation Limited (NBCC) on 25.02.1985 as 3 Office Assistant, Gr-II (Account) at Nasik is presently working as Deputy Manager (Finance) at SBG-NER, Guwahati w.e.f. 07.10.2015. During posting at Vijay Nagar, Patna, he took admission in MBA (Finance & Banking) for the session 2010-2012 at Vinayaka Missions University, Salem under the distance education programme and he had completed MBA (Finance & Banking) with First Division and the same was immediately informed through Zonal Head, Bihar to the Executive Director (HRM), NBCC vide his letter dated 27.12.2012 along with Marks Sheet dated 20.12.2012 for updating his educational qualification in the Corporation record.
3. Mr. Das further submitted that the Competent Authority, NBCC had issued a Circular No. 33(113)/2000-Estt./dated to the Corporation employees in the grade of Senior Project Executive (PSE) and higher grade and equivalent grades in other disciplines who acquires higher professional qualification that they are entitled two advance increments. The Competent Authority of NBCC has further issued another Circular under No. 54(12)/96-Estt./2807 dated 11.08.2010 by which it was decided by the authority to keep in abeyance the incentive Scheme related to accelerated promotion and increments on acquiring professional qualification/higher qualification until further orders. Although the applicant vide his letter dated 28.12.2012 had requested the competent authority for upgradation for his educational qualification of MBA (Finance & 4 Banking) in Corporation record, but no action has been taken for the reasons best known to them. The competent authority, NBCC however, vide circular No. 33(113-A)/2000-Estt./2012/3434 dated 16.08.2012 stated that since the promotion/recruitment policy of the Company in under review through a sub-committee of Directors for final approval of the Board, till a final decision is taken by the Board in the above matter, the competent authority has decided to lift the above "kept on hold" decision with immediate effect. Similarly situated employee namely Bhanwar Singh AGM(Engg), R D Sharma DGM (Engg), Vikas Kumar AM-Law, G Satyanarayana AM (Fin) and Ashok Kapoor DM (Fin) were acquired higher/ professional qualification (MBA) from different Universities and accordingly sanctioned two advance increments to them vide office order No. 949/2012 dated 15.12.2012 by following Circular vide No 33(113)/2000-Estt./dated 10.03.2000 and Circular vide No. 33 (113-
a)/2000-estt./2012/3434 dated 16.08.2012. But incentives on acquiring higher qualification by employees has been stopped with immediate effect w.e.f. 20.06.2013.
4. Mr. Das further submitted that a committee has been constituted to formulate a New Policy through Circular No. NBCC/PMS/2012-13/1910 dated 20.06.2013. Applicant submitted representation dated 10.04.2014 to the Chairman Cum Managing Director NBCC by enclosing due to non-response to up-date his 5 earlier all representations by the HRM Division since December 2012 and requested to up-date his additional qualification i.e. MBA (Finance & Banking) in his Corporation Service Record and to grant him two increment w.e.f. 27.12.2012 as per rules & regulation along with Circulars vide No 33(113)/2000-Estt./dated 10.03.2000 and Circular vide No 33(113-A)/2000-Estt./2012/3434 dated 16.08.2012 of the Corporation. The detail representation of the applicant was disposed of vide Memo dated 22.04.2014. According to Mr. Das, representation of the applicant was disposed of by a lower grade Officer i.e. General Manager. By the said Memo dated 22.04.2014, it was informed that incentive scheme on acquiring higher qualifications by the employees has been stopped w.e.f. 20.06.2013 vide office circular No. NBCC/PMS/2012-13/1910. Further informed that a committee has been constituted for formulating a new policy on incentives conferred to the employees on acquiring higher qualification & recognition of the qualification. In response to the letter daterd 22.04.2014 issued by the GM (HRM) NBCC, the applicant filed representation dated 06.05.2014 as well as reminders dated 27.05.2014 & 15.10.2014 to the GM (HRM).
5. It was further submitted by Mr. Das that New Incentive Scheme for acquiring higher/additional qualifications came in force as per Circular No. HRM/PMS/INCENTIVE/2016/419 dated 20.02.2016. According to Mr. Das, said New Scheme is applicable to all regular 6 employees of Corp below board level. Other than deputation, apprentices and contract employees, however, employees who have already acquired higher professional qualification w.e.f. 20.06.2013 onward will be eligible for incentive meaning thereby employee who already acquired the higher professional qualification prior to 20.06.2013 are eligible for incentive as per Circular vide No. 33(113)/2000-Estt./dated 10.03.2000 and 33(113A)2000 Estt/2012/3434 dated 16.08.2012. On the basis of New Policy (HRM/PMS/INS/2016/419 dated 20.02.2016), the respondent authority vide order dated 30.05.2016 granted lump-sum incentive of Rs. 9000/- ignoring the fact of submission of higher qualification i.e. MBA (Finance & Banking) as well as even submission of representation dated 20.06.2016. Hence action of the respondents for granting award/incentive of lump-sum amount of Rs. 9000/- as per new policy is liable to be quashed and set aside. According to Mr. Das, the applicant has acquired higher qualification much prior to the new policy dated 20.06.2013. Hence he is entitled two increment as per earlier policy dated 16.08.2012.
6. On the other hand, Mr. A. Thakur, learned counsel appearing on behalf of respondent Nos. 2 to 5 by filing written statement on 31.01.2018 submitted that with a view to motivate employees to strive for self-development through improving their knowledge and professional competence by undertaking 7 advanced studies (acquire additional/higher qualification) relevant to their respective discipline, business of the Company as well as for better and more efficient performance in their respective functional areas through various modes, the company re-introduced "NBCC Incentive Scheme for Acquiring higher/Additional qualifications"
duly approved by Board of Directors in its 441st meeting held on 10th February 2016 vide Circular dated 20.02.2016. The Incentive Scheme was made applicable to all regular employees on the rolls of the company below board level (who have completed 5 years in the company) other than deputationists, Apprentices and Contract employees. However, regular employees who had already intimated regarding acquiring of higher/additional qualification till the notification of the Circular and Scheme were also covered under this Incentive Scheme subject to the eligibility criteria. According to Mr. Thakur, grant of lump-sum cash award for acquiring qualifications and the procedure to be adopted was given in the Appendix I, II & III of the Incentive Scheme.
7. Mr. Thakur further submitted that before the re- introduction of new incentive scheme of 2016, the earlier incentive scheme of 2000 vide circular No. 33(113)/2000-Estt./dated 10.03.2000 was in operation and as per earlier scheme of the company, employees acquiring higher qualification i.e. either Degree in Engineering/CA/ICWA or MBA were given incentives in the form of 8 accelerated promotion or two advance increments. According to Mr. Thakur, to rationalize the approach of grant of incentive on acquiring additional qualification, competent authority decided to keep in abeyance the earlier incentive scheme of 2000 related to accelerated promotion and increments on acquiring professional qualification/higher qualification until further orders vide circular No. 54(12)/96-Estt./2807 dated 11th August 2010. With the above decision, the Circular pertaining to grant of permission for regular/correspondence courses is also put on hold.
8. Mr. Thakur further submitted that the promotion/recruitment policy of the Company was under review through a sub-committee of Directors for final approval of Board. Till a final decision was taken by the Board in the above matter, the Competent Authority decided to lift the above „kept in hold‟ decision with immediate effect vide circular dated 16th August 2012. In the same context in January 2013, it was decided that in order to bring more relevancy to the qualification acquired by employees from different modes and different institutes, the incentive scheme is to be reviewed by Human Resource Committee of Board of Directors. The committee in its meeting held on 24th May 2013 deliberated on the scheme and decided that incentives given to the employees on acquiring higher qualification need to be rationalized keeping in view the recognition granted to various 9 educational institutions by Government of India and other appropriate authorities. Accordingly, the Committee of Director on HR matters decided that incentive scheme needs review and the incentive scheme on acquiring higher qualification was stopped vide HRM circular No. NBCC/PMS/2012-13/1910 dated 20th June 2013.
9. Mr. Thakur fairly submitted that the applicant‟s intimation dated 27/28.12.2012 to ED (HRM) through GM (Bihar) regarding completion of his MBA (Fin) was received in January 2013. Since the matter regarding grant of incentive on acquiring higher additional qualification was under review through committee of Directors, his matter regarding grant of incentive was taken after finalization of the new incentive scheme which was reintroduced by HRM Division vide Circular No. HRM/PMS/INCENTIVE/2016/419 dated 20th February 2016. Applicant was given a lump-sum cash award of Rs. 9000/- as incentive in accordance with the aforesaid circular dated 20.02.2016 and his qualification was noted in the respective service records for appropriate purposes vide office order No. 572/2016 dated 30.05.2016.
10. It was submitted by Mr. Thakur that as per clause 7.4 of new policy of 2016, grant of incentive under the Scheme shall not entitle and employee to any specific claim for promotion/ categorization as professional or semi-professional which shall be 10 governed as per extant promotion policy. According to Mr. Thakur, as per clause 7.6 of the said policy, no accelerated promotion or grant of any special increment(s) to employees shall be admissible on acquiring higher additional qualification. Hence the present O.A. is inutile and futile and should be summarily rejected.
11. We have heard the learned counsel for the parties, perused the pleadings and material placed on record. It is noted that during posting at Patna, the applicant took admission in MBA (Finance & Banking) for the session 2010-2012 at Vinayaka Missions University, Salem under the distance education programme which was intimated and sought permission by the applicant from the competent authority through proper channel vide his letter dated 19.02.2011. Said letter was forwarded by the then Dy. Manager (P&A) NBCC Ltd to the General Manager (HRM), Head Office. Thereafter, the then Dy. Manager vide his letter dated 19.05.2011 wrote a letter to the Sr. General Manager (HRM) NBCC by enclosing applicant‟s letter dated 19.02.2011 by which the applicant sought permission for study. The applicant vide his letter dated 03.01.2012 had informed the respondent authority that he had passed the Part
- I of MBA (Finance & Banking) course which was forwarded by the Assistant Manager (Fin) to the Sr. GM (HRM), Head Office for further necessary action. Applicant also informed the respondent authority by enclosing marks sheet vide his letter dated 27.12.2012 that he has 11 completed MBA (Finance & Banking) with First Division and requested for updating his educational qualification in the Corporation Record.
12. It is noted that applicant made RTI applications on 23.09.2017 and 06.10.2017 respectively under RTI Act, 2005 seeking circulars issued by the NBCC for up-gradation of its employees against acquiring of higher qualification, but no reply.
13. The Human Resource Employee Manual NBCC Second Edition was updated as on 16th August 2014 where the Circulars dated 10.03.2000 & 11.08.2000 in regard to incentives on acquiring higher qualifications by the employees of NBCC has been quoted. The applicant vide his letter dated 28.12.2012 & 10.07.2013 had requested for upgradation of his educational qualification of MBA (Finance & Banking) in Corporation Record. The respondent authority had also issued another circular dated 16.08.2012 on the subject of „Incentive on acquiring higher qualification by the employees and permission for higher studies‟ which reads as under:
"NBCC vide letter dated 11.08.2010 has kept in abeyance the Incentive Scheme related to the accelerated promotion and incentive on acquiring professional/ higher qualification until further orders.
The promotion/recruitment policy of the Corporation is under review through a sub-committee of Directors for final approval of the Board. Till a final decision is taken by the Board in the above matter, the Competent Authority has decided to lift the above „kept on hold‟ decision with immediate effect.
The Incentive scheme related to the accelerated promotion and incentives on acquiring professional/higher qualification will be applicable from a prospective date as per the prevailing system. However, no benefit/incentive will be allowed to any employee for the past period.12
Henceforth, prior permission is required to be taken by the employees for pursuing higher education, ailing which the same shall not be added to service record of the individual. The circular may be given wide publicity amongst the employees working in your office/Unit/Zone.
This issues with the approval of the competent authority.
S. K. Sambhir Executive Director (HRM)"
14. From the perusal of Office Order No. 949/12 dated 15.12.2012, Annexure-A/10 to the O.A., it is evident that some similarly situated incumbents namely Bhanwar Singh, AGM (Engg), R.D. Sharma, DGM (Engg), Vikas Kumar, AM-Law, G. Satyanarayana, AM (Fin) and Ashok Kapoor, DM (Fin) who acquired higher/professional qualification (MBA) from different Universities were granted two advance increments.
15. Applicant also submitted reminders on 11.09.2013 and 13.11.2013 respectively with a request to up-grade his educational qualification in corporation record and to grant him two advance increment w.e.f. 20.12.2012 [from the date of acquired higher qualification MBA (Finance & Banking)] by informing that his request is pending in the Head Office since January, 2013. The respondent authority vide Circular dated 20.06.2013 has stopped the grant of incentives on acquiring higher qualification by employees with immediate effect w.e.f. 20.06.2013 and a committee has been constituted to formulate a New Policy through Circular No. NBCC/PMS/2012-13/1910 dated 20.06.2013. Thereafter, the applicant submitted a representation dated 10.04.2014 to the Chairman Cum 13 Managing Director, NBCC and requested to up-date his additional educational qualification i.e. MBA (Finance & Banking) in his Corporation Service Record and to grant him two increments w.e.f. 27.12.2012 as per rules. Vide letter dated 22.04.2014, the respondent authority has intimated the applicant as hereunder:
"This refers to your dated 10.04.2014 addressed to Chairman-cum-Managing Director regarding incentive on acquiring higher qualification. In this context, it is informed that the incentive on acquiring higher qualifications by the employees has been stopped with effect from 20.06.2013 vide this office Circular No. NBCC/PMS/2012-13 dated 20.06.2013.
Further, a committee has been constituted for formulating a policy on incentives conferred to employees on acquiring higher qualification & recognition of the qualification.
Based on the policy so formulated, action in your case will be taken accordingly."
16. In reply to the aforesaid letter dated 22.04.2014, the applicant filed a representation dated 06.05.2014 and reminders dated 27.05.2014 & 15.10.2014 to the GM (HRM) with a request to update his additional qualification in his Service Record and to grant increment. It is also noted that new Incentive Scheme for acquiring/additional qualifications came in force as per Circular dated 20.02.2016.
17. Now we are in hand the Circular No. HRM/PMS/INCENTIVE/2016 dated 20.02.2016 which was issued by the National Buildings Construction Corporation Limited on the subject of „NBCC Incentive Scheme for acquiring higher/additional qualifications‟. Para 2.0 of the said Circular reads as under:- 14
"2.0 APPLICABILITY The Scheme shall be applicable to all regular employees in the rolls of the Company below board level other than deputationists, Apprentices & Contract employees. However, employees who have already acquired higher professional qualification with effect from 20.06.2013 onwards will be eligible for incentive under this Scheme subject to their eligibility."
18. It is also noted that applicant filed another detailed representation on 23.02.2016 and requested to the authority for updating his educational qualification in the Corporation Record and grant increments w.e.f. 20.12.2012. However, all the representations dated 27.12.2012, 11.07.2013, 11.09.2013, 13.11.2013, 10.04.2014, 06.05.2014, 27.05.2014, 15.10.2014, 23.02.2016 and 20.06.2016 are still pending before the Corporation i.e. respondent authority. From the perusal of office order No. 572/2016 dated 30.05.2016, it is found that a lump-sum cash award of Rs. 9000/- had been granted to the applicant along with other employees who have already acquired higher/additional qualification by noting their qualifications in the respective Service Records for appropriate purposes. Being aggrieved with the same, the applicant filed representation on 20.06.2016 to the General Manager (HRM), NBCC (India) Limited by requesting him to eliminate the lump-sum cash award granted to the applicant and to grant increment as per rules and regulations of the Corporation in lieu of acquiring higher/additional qualifications. Accordingly, the applicant vide his 15 letter dated 10.08.2016 had returned back the lump-sum cash award of Rs. 9000/- through DD No. 500794 dated 2nd July 2016. Thereafter, the respondent authority vide communication under No. 38(3349)/Estt dated 16.12.2016 has intimated the applicant as hereunder:-
"Shri Ravish Kumar, Dy. Manager (Fin.), SBG Office, Guwahati.
Sub: NBCC Incentive for acquiring higher/ additional qualifications.
Ref:- Circular No: HRM/INCENTIVE/2016/419 on the caption subject dated 02.02.2016 & O.O. No. 427/16 dated 20.06.2016.
Dear Sir, Please refer to your letter dated 10.08.2016 on the subject.
In this connection, it is intimated that your request to sanction of two advance Increments on account of acquiring higher/additional qualifications i.e. MBA (Finance/Banking) is not covered under the existing scheme. However, lum-sum cash award of Rs. 9000/- as admissible under rule has already been granted by the competent authority vide office order No. 427/16 dated 20.06.2016 which you have refused to accept it and sent a Draft no. 500794 dated 02.07.2016 for Rs. 9000/- to this office but the validity of the same has been expired. Hence, the said draft in original is returned and if you are not interested to accept the above award, you may send afresh DD or extend its validity and submit the same in this office.
Thanking you, Yours faithfully Sd/-
(J.J. Ran) Dy. General Manager (HRM)"
19. At the time of hearing, learned counsel for the applicant vociferously argued that similarly situated employees namely Bhanwar Singh AGM(Engg), R D Sharma DGM (Engg), Vikas Kumar 16 AM-Law, G Satyanarayana AM (Fin) and Ashok Kapoor DM (Fin) who acquired higher/ professional qualification (MBA) from different Universities were granted two advance increments to them vide office order No. 949/2012 dated 15.12.2012 by following Circular vide No 33(113)/2000-Estt./dated 10.03.2000 and Circular vide No. 33 (113-a)/2000-estt./2012/3434 dated 16.08.2012 which is also palpable from Annexure - 10 to the O.A. Learned counsel also has drawn our attention on the representations submitted by the applicant w.e.f. 27.12.2012 to 26.06.2016 which are still pending.
20. In view of the discussions made in the foregoing parageraphs, this court has come into finding that let the department be decided the present issue in accordance with law after examining the case of the applicant. Accordingly, we direct the respondent authority to make verification and examination into the case as to whether the applicant is similarly situated with the individuals namely Bhanwar Singh AGM(Engg), R D Sharma DGM (Engg), Vikas Kumar AM-Law, G Satyanarayana AM (Fin) and Ashok Kapoor DM (Fin) and if he is found similarly situated, similar benefits tobe granted.
21. The entire exercise shall be carried out by the respondent authorities within a period of four months from the date of receipt copy of this order.
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22. With the above observations and directions, O.A. stands disposed of. No order as to costs.
(N. NEIHSIAL) (MANJULA DAS)
MEMBER (A) MEMBER (J)
PB