Central Administrative Tribunal - Hyderabad
Ch. V. Giri Babu vs U.O.I. (Oa No. 106/2004) Decided On 29Th ... on 17 February, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 288/2006 Date of order: 17 -02-2009 Between: Ch. V. Giri Babu, occ: Sub Divisional Officer, O/o. Defence Estates Office, Bldg. No. 49-46-4/9A, Akkayapalem, Vizag-16. ... Applicant A N D 1. The Director General, Defence Estates, Ministry of Defence, Rakshasampada Bhavan, Palam Road, Delhi Cantt. 110 010. 2. The CDA, No.1 Staff Road, Secunderabad. 3. Defence Estates Officer, Bldg. No. 49-46-4/9A, Akkayapalem, Vizag - 16. 4. The CDA(Army) O/o. JCDA, CE (Navy) Compound, Station Road, Visakhapatnam. ... Respondents Counsel for the applicant : Mr. K. Sudhaka Reddy Counsel for the respondents : Mr. G. Jayaprakash Babu, Sr.CGSC C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. HRIDAY NARAIN,MEMBER(A) O R D E R
[Per Hon'ble Mrs. Bharati Ray, Member (J)] This application has been filed by the applicant seeking for the following relief :
Set aside the impugned letter No. Pay Tech/4024/T2 dated 5/10-4- 2006 issued by the 2nd respondent as clearly illegal, arbitrary and void-ab-initio and consequently declare that the applicant herein is entitled for the pay scale of Rs. 1400-2300 from the date of his initial appointment as per the para 4(b) of the G.O.I. letter No.1(6)/94/d(civ-I).
2. The applicant was sponsored by the Employment Exchange for the post of SDO Gde-III and was called for a test/interview to be held on 09-4-1997 vide letter No. VIZ/3/APII/IX dated 26-03-1997 in the pay scale of Rs. 1400-40- 1800-EB-50-2300 plus allowances as admissible under central government rules. Copy of advertisement is enclosed as Annexure A-VI to the OA. However, on being selected he was appointed by the respondents vide memorandum dated 30th April, 1997 for the said post in the pay scale of Rs. 1200-30-1560-EB- 40-2040. Copy of the appointment letter is submitted by the applicant. It is the contention of the applicant that in terms of para 4(b) of the Government of India letter dated 15.9.1995 he is entitled for the pay scale of Rs. 1400-2300 from the date of initial appointment i.e. 16-5-1997. The applicant therefore submitted representation on 8.6.1998 which was rejected by the authority concerned vide letter dated Nil July, 1998 on the ground that SDO III being the entry point in Defence Estate Organisation he is not entitled for the pay scale of Rs.1400-2300. However, the applicant was given the pay scale of Rs. 1400-2300 after completion of 5 years of service as SDO III. However, 2nd respondent vide order dated 5/10-4-2006 cancelled the earlier order and ordered for recovery of over payment made in terms of the earlier order on the ground that the conditions envisaged in GOI letter dated 15-9-1995 is not applicable in his case. Copy of the said order is enclosed at page-7 of the OA. Questioning the said order of the 2nd respondent the applicant has approached this Tribunal seeking for the above relief.
3. Respondents have contested the application by filing a counter reply. It is the case of the respondents that pay scale of Rs. 1200-2040 has been reconstituted as Rs.4000-6000 after Central Pay Commission report of 1996.
However, the appointing authority while issuing appointment letter appointed the official in the pay scale of Rs. 4000-6000 in accordance with the recruitment rules of Defence Estates Service being the competent authority. Although they have admitted that applicant was called for interview, but it is their contention that in the said letter the pay scale was wrongly typed as Rs.1400-2300 (pre- revised) instead of Rs.1200-2040 (pre-revised). However, it is not the case of the respondents that they have issued any corrigendum thereafter correcting the error if at all committed as contended by them. It is the contention of the respondents that in the light of Directorate General, Defence Estates letter No. 119/12/ADM/DE/Vol.IV dated 13-8-1998 wherein it is made clear that the existing Recruitment Rules do not provide any special provision for candidates joining with higher qualification and SDO-III being the entry point in the Defence Estates Organisation they are not entitled for pay scale of Rs.1400-2300 (pre- revised) except as envisaged in the Govt. of India, Ministry of Defence letter No.1(6)/94/D(Civ-I) dated 15-9-1995. They have enclosed copy of the letter dated 13.8.1995 and 15-9-1995 as Annexure R-4 and R-1 respectively. However, they have not enclosed the recruitment rule nor they have extracted the relevant recruitment rule in the counter reply. Referring to para-6 of the Govt. of India, Ministry of Defence letter dated 15-9-1995 it is stated by the respondents that these orders shall not apply in respect of cadres of D'Men where D'Men Gr.III (Rs.1200-2040) is the first entry grade by direct recruitment with further promotions to D'Men Gr.II and Gr.I (Rs.1400-2300) (Rs.1600-2660) with the respective qualifications exactly similar to corresponding CPWD categories. They have admitted that the applicant represented to the appointing authority vide his application dated 02-06-1998 for the pay scale of Rs.5000- 150-8000 in accordance with the Govt. of India, Ministry of Defence letter dated 15-9-1995 without going through the essence of the letter particularly the para-6 and inter-alia PD, DE, SC. The appointing authority vide their letter dated 01-7-1998 had intimated that the official has not completed the required length of service as stipulated in sub para (B) of para 3 of Govt. of India, Ministry of Defence dated 15-9-1995 hence he is not entitled to the pay scale of Rs.5000- 8000. However, it was further clarified by the DGDE letter dated 28-05-1997 that there is no provision in the recruitment rule to provide the pay scale of Rs.1400-2300 (pre-revised) to SDO-III being the entry point. It is the contention of the respondents that revision of pay scales of D'men Grade-I, II and III in Govt. of India office is similar to CPWD employees. It is, therefore, the case of the respondents that the case of the applicant has arisen out of misinterpretation of rules inadvertently and the applicant has been given the scale which has been rectified vide impugned order. Therefore, the application is liable to be dismissed. Learned counsel for the respondents has placed reliance on the judgment of CAT Jabalpur Bench in the case of Arvind Kumar Nema vs. U.O.I. (OA No. 106/2004) decided on 29th March,2005 and submits that the applicant in the said case is similar to the applicant herein and therefore the case is liable to be dismissed in view of the order passed by the Jabalpur Bench of the Tribunal.
4. Heard Mr. K. Sudhakar Reddy, learned counsel for the applicant and Mr. G. Jayaprakash Babu, Sr. CGSC for the respondents. We have gone through the pleadings and material papers placed before us. We have also gone through the judgments relied upon by the respondents and copy of the appointment letter of the applicant dated 30-04-1997 submitted by the learned counsel for the applicant.
5. On 05-05-2006, when the matter came up for admission hearing, the Tribunal, by way of interim measure, directed the respondents not to make further recovery from the salary of the applicant in terms of letter dated 05.04.2006.
6. Learned counsel for the respondents strenuously argued that since the applicant was given appointment way back in 30th April, 1997 and the pay scale was categorically mentioned in the appointment letter itself the applicant cannot now agitate for the higher pay scale at this belated stage. In regard to the impugned letter the learned counsel for the respondents submitted that the respondents have inadvertently allowed the higher pay scale after completion of five years in the pay scale of Rs.5000-8000 in terms of Ministry of Defence letter dated 15-9-1995 which is not actually applicable in the case of the applicant as he is a direct recruitee and in such case, para-6 of the letter dated 15.9.1995 made it very much clear that revised pay scale is not applicable in case where the D'Men Gr. III (Rs.1200-2040) is the first entry by direct recruitment. The respondents therefore rectified the mistake committed earlier vide impugned order dated 5/10-4-2006. It is the contention of the learned counsel for the respondents that administration has every right to rectify the mistake and such action cannot be treated as irregular and therefore the impugned order cannot be said to be invalid order and the application is therefore liable to be dismissed.
7. In view of the above the questions that call for consideration are:
(i) Whether the applicant can claim the revised pay scale of Rs.5000-8000 in the year 2006 when he was appointed in the year 1997;
(ii) In the event such claims can be considered at this belated stage,whether the applicant is entitled for the pay scale of Rs.5000-8000 in view of the Govt. of India, Ministry of Defence letter dated 15-9-1995.
8. It is not in dispute that applicant was called for interview by the respondents for the post of SDO Gde.III vide letter dated 26-3-1997, copy of which is enclosed at page 17 of the OA. The pay scale has been categorically mentioned as Rs.1400-40-1800-EB-50-2300 in the said letter. The contention of the applicant in regard to his qualification has not been disputed by the respondents in their counter reply. It is also evident from Govt.of India, Ministry of Defence letter dated 15-9-1995 that the pay scales of Draughtsmen in Defence Establishment has been revised by the President which has been communicated to all the Chief of the Army, Naval and Air staff, copy of which is enclosed as Annexure R-1 to the counter reply. The applicant was called for the interview for the post of SDO Gde. III in the scale of Rs. 1400-2300 two years after the scale was revised. No such case has been made out by the respondents that corrigendum was issued rectifying the mistake if any. It is the specific case of the respondents that in para-6 of the letter dated 15.9.1995 it is categorically mentioned that "these orders shall not apply in respect of cadres of D'Men where D'Men Gr.III (Rs.1200 -2040) is the first entry grade by direct recruitment with further promotions to D' Men Gr.II and Gr.I (Rs.1400-2300) (Rs.1600-2600) with the respective qualifications exactly similar to corresponding CPWD categories. Para-2 of the said letter is also to be read which is extracted herein below :
2. Consequent to the issue of Ministry of Finance O.M.No.13(1)/IC/91 dated 19.10.1994 extending the CPWD pay scales for D'Men Grade I, II and III in other Govt. Departments irrespective of Fulfillment of recruitment qualifications subject to completion of certain length of service, the question of extending similar reliefs to D'Men in Defence Establishments who were in the pre-revised scales has been considered. The President is now pleased to revise the pay scales of Draughtsmen in Defence Establishments as follows :
Sl Category Present pay Revised Pay Revised No. Scales Scales Designation
1. Tracer/D'Men of 975-1540 1200-2040 D'Men any designation (260-430 pre (330-560 pre Gr.III revised) revised)
2. D'Men of any 1200-2040 1400-2300 D'Men Designation (330-560 pre (425-700 pre Gr.II revised) revised)
3. D'Men of any 1400-2300 1600-2660 D'Men (425-700 pre (550-750 pre Gr.I revised) revised) DGDE
4. SDO Gde.III 1200-2040 1400-2300 (330-560 pre (425-700 pre revised) revised)
5. SDO Gde.II 1400-2300 1600-2660 (425-700 pre (550-750 pre revised) revised)
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9. A careful reading of para-2 (supra) shows that President has revised the pay scales of Draughtsmen as indicated therein. It is evident from the above that the SDO Gde.III has been revised from 1200-2040 to 1400-2300. Paragraph-3 deals with the upgradation of pay scales for the incumbents in position before 13.05.1982. Para(4) and 4(b) deal with pay scales of D'Men appointed on or after 13.05.1982 in Rs.1200-2040 (pre revised Rs.330-560) and paragraph-6 deals with pay scales of D'Men Gr.III (Rs.1200-2040) where they have been appointed in the first entry grade by direct recruitment. Therefore, these orders are applicable to those who had already been appointed whereas in this case the applicant had been appointed after the President has revised the pay scale in the defence establishment and the applicant has been called for the interview for SDO-III in the pay scale of Rs.1400-2300. It is true that applicant's case was considered earlier in 1998 for grant of pay scale of Rs.1400-2300 but was rejected in 1998. It is undisputed that subsequently, applicant's case was re-considered and he was granted the higher pay scale with effect from the date he completed 5 years of service, which was subsequently cancelled on the ground that the same is not applicable in his case. Since the matter was reopened and the applicant was given higher scale and the same was cancelled vide impugned order in 2006, we are of the view that learned counsel for the respondents is not correct in saying that the issue cannot be agitated now. In our view, since the respondents have reopened the case and granted the pay scale with effect from the date he had completed 5 years of service by applying a wrong provision, and accordingly rectified the mistake vide impugned order dated 5/10-4-2006 and matter relates to pay scale, the same can be considered even now. In fact, while rectifying the mistake, they should have considered the applicability of the relevant provision which applies in his case.
10. So far as the judgment of Jabalpur Bench of CAT is concerned no such call letter was issued by the respondents therein mentioning the revised pay scale of Rs.1400-2300. Question also arises as to whether, after the pay scale was revised in 1997, there can be two different pay scales for the same post i.e. those who joined directly in the scale and those who joined the post before 1995 either by way of upgradation or by revision of pay scale? It is not the case of the respondents that the applicant does not possess the required qualification. It is also not the case of the respondents that duties and responsibilities performed by the applicant are different from the duties and responsibilities of others who joined before revision of pay scale as mentioned above. From para-5 of the Defence Estates Officer, Visakhapatnam letter addressed to the CDA, Secunderabad it is seen that in case of DGDE organisation, SDO-III scale starts on revised pay scale of Rs.1400-2300 (pre- revised scale Rs.1200-2040), on the other hand the SDO-II & SDO-I are having same single pay scale of Rs.1600-2660 as per para-5 of the letter dated 15-9-1995. However, since a confusion arose the matter was brought to the notice of CDA vide letter dated 21-10-2005 which was disposed of by the authority concerned on 11.12.2005, copy of which is enclosed at page-11 of the OA. From para-2 of the said letter it is seen that the pre-revised scale of Rs.1200-2040 corresponding to revised scale of Rs.1400-2300 is applicable only to D'Men who were in position as on 13.5.1982. As per para (6) of GOI letter dated 15.9.1995 the pay scale is not applicable where D'men grade III is the first entry grade by direct recruitment. Paras 4 & 6 of the OM dated 15-9-1995 deal with pay scales of Draftsmen whereas the applicant was called for the post of Senior Draftsman carrying the pay scale of Rs.1400-2300 in terms of sub para-4 of para-2 of letter dated 15-9-1995. When that is so, how the pay scale of Senior Draftsman-III be lower than Draftsman III, that too who were appointed before 1982 or after 1982 in terms of para-3 and 4 of the OM. If it is the case of respondents that Senior D'Men III and D'Men are of same status, the question will again arise as to how can they carry two different pay scales when the duties and responsibilities are same and the qualification required is also the same.
11. We are, therefore, of the view that this question needs re- consideration by the respondents and thereafter the respondents shall re-consider the case of the applicant for revision of pay scale accordingly duly considering that admittedly, in the interview letter the pay scale was categorically mentioned as Rs.1400-40-1800-EB-50-2300 (revised pay scale) and no corrigendum was issued thereafter to rectify the mistake if any at all, and that pay scale of SDO III was already revised to Rs.1400-2300 before he was called for the interview. It is also noticed that the interview letter was issued in the year 1997 i.e. long after the pay scale was revised by the President and was communicated vide letter dated 15-9-1995. Accordingly, we direct the respondents to consider this aspect and decide as to how there can be two different pay scales for draftsmen for the same category of persons and take a decision and re-consider the case of the applicant in regard to his claim for the pay scale of Rs.1400-2300 and pass appropriate reasoned order and communicate the same to the applicant within a period of two months from the date of receipt of a copy of this order. Till such time the decision is taken and communicated to the applicant no further recovery from the salary of the applicant, will be made in terms of letter dated 05.04.2006.
12. O.A. is disposed of accordingly with no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY)
MEMBER(A) MEMBER (J)