Central Administrative Tribunal - Chandigarh
Dwar Pal (Mes 367024) Son Of Sh. ... vs Union Of India on 23 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH. O.A.No.550/HP/2013 Date of Decision : 23.04.2014 Reserved on : 11.04.2014 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER Dwar Pal (MES 367024) son of Sh. Bishamber Dass, Master Craftsman O/o Assistant Garrison Engineer, E/M Military Engineering Service, Subathu, District Solan (H.P.) Applicant Versus 1. Union of India, through its Secretary to Government, Ministry of Defence, Government of India, New Delhi. 2. Commander Works Engineer, Military Engineering Service, Ministry of Defence, Shimla Hills, Jutogh (Simla) H.P. 3. Garrison Engineer, Military Engineering Service, Shimla Hills, Kasauli, District Solan (H.P.). . Respondents Present: Mr. Subhash Ahuja, counsel for the applicant Ms. Jyoti Chaudhary, counsel for the respondents O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A) This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
8 (i) The Tribunal may pass an order or issue appropriate direction directing the respondents to fix the pay of the applicant at par with his juniors namely Shri Kuldeep Singh and Shri Dev Raj, w.e.f. 07.06.2002 and release him all the service benefits as well as the consequential benefits viz. arrears of pay etc. along with interest @ 18% p.a.
2. The facts of the case are not in dispute. The applicant joined service in the respondent Department as Mazdoor on 22.06.1974 and was appointed as Motor Pump Attendant on 23.02.1978. The post was re-designated as Fitter General Mechanic in 1994 and he was promoted as Fitter General Mechanic Gr.II on 11.12.1995. On restructuring of the cadre the applicant was placed in the Grade / Category of FGM (HS) to FGM (MCM) in the pay scale of Rs.4500-7000 (now revised to Rs.9300-34800+4200 GP) w.e.f. 01.08.2006 vide order dated 19.12.2008 (Annexure A-1). A large number of persons who were appointed as Motor Pump Attendants (re-designated as Fitter General Mechanic) in the pay scale of Rs.210-290 (revised to Rs.260-330 w.e.f. 01.01.1982 and Rs.950-1500 w.e.f. 01.01.1986) were given the 2nd ACP in the pay scale of Rs.5000-8000 of the post of Fitter General Mechanic (HS) Gr.II by the respondents vide order dated 18.01.2004 (Annexure A-3). Resultantly, Shri Kuldeep Kumar and Shri Dev Raj were junior to the applicant in the cadre of Fitter General Mechanic (HS) Gr.II as is evident from Seniority List dated 27.09.2006 (Annexure A-4), in which name of the applicant appears at Sl.No.42 whereas names of Shri Kuldeep Kumar and Shri Dev Raj figure at Sl.Nos. 48 and 49 respectively. These persons are junior to the applicant also as per the Seniority List circulated vide letter dated 09.04.2013 (Annexure A-5). Hence the anomaly had been created in the pay structure as the applicant who was senior was getting lesser pay than his juniors. The applicant submitted a representation on 02.08.2004 requesting the respondents to grant him also the 2nd ACP in the pay scale of Rs.5000-8000 w.e.f. 07.06.2002 at par with his juniors (Annexure A-6). The request of the applicant was declined vide order dated 24.08.2004 (Annexure A-7) on the ground that the applicant was not eligible for 2nd ACP as he was initially appointed as Mazdoor on 28.01.1974 and got two promotions after appointment and thus was not entitled to ACP benefit. Shri Kuldeep Kumar and Dev Raj who were admittedly junior to the applicant were appointed as Motor Pump Attendants by way of direct recruits so they were granted 2nd ACP in the pay scale of Rs.5000-8000 w.e.f. 07.06.2002 since by that time they had earned only one promotion.
3. It is further stated that though the applicant may not be entitled to any benefit under the ACP Scheme after having availed two promotions / financial upgradation but his pay cannot be less than his juniors since as per law pay of senior employee cannot be less than his juniors working in the same cadre / posts. The applicant submitted numerous requests and ultimately served legal notice dated 28.01.2013 (Annexure A-9) but till date his pay had not been refixed / revised at par with his juniors nor he was given a response in the matter. Further, the impugned action of the respondents in paying lesser salary every month since 07.06.2002 to the applicant was arbitrary and illegal and violative of Articles 14 & 16 of the Constitution of India. Hence this OA.
4. In the written statement filed on behalf of the respondents, it has been stated that the legal notice dated 28.01.2013 (Annexure A-9) was responded through letter No.C-11/Dwar Pal/03/E1C, dated 25.03.2013. It has further been stated that as per para 8 of the conditions for grant of benefits under the ACP Scheme which are annexed as Annexure A-2, with OM No.35034/1/97-Estt(D), dated August 9, 1999, it was clearly stated that the financial upgradation under the ACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such there would be no additional financial upgradation for the senior employee on the ground that junior employee in the grade has got higher pay scale under the ACP Scheme.
5. Arguments advanced by the learned counsel for the parties were heard. Learned counsel for the applicant stated that his claim was not for grant of ACP benefits but for stepping up of pay at par with his juniors. Learned counsel cited Commissioner and Secretary to Govt. of Haryana & Ors. Vs. Ram Sarup Ganda & Ors. 2007 (30 RSJ 154) wherein it had been held that:
Haryana Civil Services (Assured Career Progression) Rules, 1998, Rules 5 and 9 ACP scales Stepping up of pay Group D employees promoted on Group C post Given ACP scale after completion of 20 years meant for Group D though promoted as Group C employee Junior group C employees who were recruited direct given ACP scale meant for Group C which was higher Claim for stepping up of pay by Senior group C employees promoted from Group D at par with juniors allowed by High Court Held that Rule 9 of the Rules not applicable to the respondents who joined the service as Group D employees and later got promotion to Group C post by selection If there is any anomaly to the effect that the senior Government servants are receiving lesser pay than their juniors, who entered the service from a different source of recruitment, certainly such senior Government servants are entitled stepping up of their pay in order to bring them on par with the salary which is being received by their juniors The respondents are entitled to fixation of the ACP scales as applicable to Group D employees If the employees who, on fixation of ACP scales, are in receipt of lesser salary than their juniors in same cadre / post, then their salary shall be stepped up accordingly. He also cited T.R. Bansal Vs. Punjab State Electricity Board, 2005 (3) RSJ 143, wherein it has been held as follows:-
Constitution of India, Articles 14 and 16 Classification Pay revision Pay fixation Anomaly in Pay of the petitioner fixed at a stage lower than that of his juniors Sought to be justified on the mode of their entering into the feeder cadre, namely, the petitioner coming as a promotee whereas his juniors as direct recruits Order of fixation of pay quashed Respondents directed to re-fix the pay of the petitioner in the revised pay scale at par with his juniors and to grant him the consequential arrears.
6. Learned counsel for the applicant has also submitted some more copies of judgments as follows:-
i) Punjab State Electricity Board & Ors. Vs. Gurmail Singh 2008 (3) RSJ 309, wherein it had been held as follows:-
Although the order of the Board cannot be said to be wholly illegal and without jurisdiction warranting interference at the hands of the High Court but, we are of the opinion that the respondents should be put at the same scale of pay from the same day which was being paid to the employee who was next below him in the post of LDC.
ii) Madan Gopal Sharma & Ors. Vs. UOI & Anr. in OA No.842/JK/2007, decided on 17.11.2009 and Ashok Kumar Vs. UOI & Ors. in OA No.156/JK/2008, decided on 19.01.2010, where relief as sought by the applicant had been allowed and stepping up of pay of the applicants to bring the same at par with their juniors was directed.
7. Learned counsel for the respondents referred to content of the ACP Scheme and stated that there could be no departure from the same. Since ACP benefits granted to the juniors of the applicant were purely personal to them, the senior, Shri Dwar Pal, applicant in the present case, could not claim stepping up of his pay to bring the same at par with that of his juniors.
8. We have given our thoughtful consideration to the matter with particular reference to the content of the ACP Scheme and the rulings of the Apex Court and the Central Administrative Tribunal mentioned above. It is evident that the issue regarding stepping up of pay as claimed by the applicant in the present OA to bring the same at par with the pay drawn by his juniors which is admittedly higher on account of them being allowed financial upgradation under the ACP Scheme as they were direct recruits and the applicant having been denied similar upgradation as he had already availed promotions and was hence ineligible for such upgradation has been adjudicated upon and directions have been issued that such stepping up is to be allowed. Hence the issue is no longer res integra.
9. Therefore, keeping in view, the position of the Apex Court in Ram Sarup Ganda & Ors (supra), Gurmail Singh (supra) and decisions in OA Nos.842/JK/2007, OA No.156/JK/2008, we have no hesitation in allowing the present OA. The respondents are directed to effect the revision of pay of the applicant to bring the same at par with his juniors namely Shri Kuldeep Kumar and Dev Raj within a period of two months from the date of receipt of a certified copy of this order being served upon the respondents and arrears on this account may be released to the applicant within a further period of one month. No costs.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER.
(DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 23.04.2014 sv:
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(OA.No.550/HP/2013 titled (DWAR PAL VS. UOI & ORS.)