Central Administrative Tribunal - Delhi
Dr. Badri Singh Bhandari vs Union Of India on 23 October, 2013
Central Administrative Tribunal Principal Bench OA No.761/2012 Reserved on: 26.09.2013 Pronounced on:23.10.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) 1. Dr. Badri Singh Bhandari S/o Shri K.S. Bhandari, R/o B-15, HUDCO Place Extn., New Delhi 110 049. Working as Adviser Department of Agriculture & Cooperation, Directorate of Economics & Statistics, Room No.449, Krishi Bhawan, New Delhi 110 001. 2. Dr. K.L. Prasad s/o Sh. K.V. Lokiah, R/o C-22, Nivedita Kunj, Sector-10, R. K. Puram, New Delhi 110 022 Working as Adviser Department of Economic Affairs, Ministry of Finance, North Block, New Delhi 110 001. Applicants (By Advocate: Shri R.N.Singh) Versus 1. Union of India, Ministry of Agriculture, Department of Agriculture & Cooperation, Directorate of Economic & Statistics, Krishi Bhawan, New Delhi 110 001 (Through: Its Secretary). 2. Ministry of Finance, Department of Economic Affairs, North Block, New Delhi 110 001 (Through: Its Secretary) 3. Ministry of Personnel, PG & Pensions, Department of Personnel & Training, North Block, New Delhi 110 001. Respondents (By Advocate: Dr. Ch. Shamsuddin Khan) O R D E R Dr. Birendra Kumar Sinha, Member (A):
The only issue that requires to be decided in the instant case is that whether the benefit of non-functional upgradation granted as a consequence of the implementation of the report of the 6th Central Pay Commission to the applicant from 03.01.2006 shall take effect from 01.01.2006 or shall be reckoned from the same date on which it has been granted to the applicant. The applicant has challenged the DOP&T OM dated 25.09.2009 impugned in this case whereby, as a matter of clarification, the request of the applicant for granting non-functional upgradation w.e.f. 01.01.2006 is stated to be impermissible.
2. The facts of the case are that both the applicants, who are Members of the Indian Economy Service (hereinafter referred to as IES) from 1982 and 983 Batches respectively, are presently working as Advisors under respondent nos. 1 & 2 in Pay Band-4 (hereinafter referred to as PB) in the pay scale of Rs.37,400-67,000/- with Grade Pay of Rs.10,000/-. Admittedly, the IES is an organized Group A Service. The 6th Central Pay Commission in order to remove the stagnation prevailing in the Central and all other All India Services had recommended for providing an upgradation in PB-3 or PB-4 by granting a higher pay scale on non-functional basis whenever any IAS officer of a particular batch is posted at the Centre within these Pay Bands, to the officers of the afore specified categories senior to such IAS officers joining by two years or more. This recommendation was accepted by the Government of India and notified vide the Gazette Notification dated 29.08.2008 to this very effect and it was further reiterated in the OM dated 24.04.2009. The case of the applicants is that one Atanu Chakraborty, IAS (GJ:1985) and one P. Raghvendra, IAS (HY: 1985) were appointed at the level of Joint Secretary with the Government of India w.e.f. 08.11.2005 and 27.10.2005 reseptively. Both these officers have been given the benefit of upgradation in PB-4 w.e.f. 01.01.2006, whereas the applicants have been given the afore benefit of upgradation in PB-4 w.e.f. 03.01.2006 ignoring their rightful claim of revision of the pay scale w.e.f. 01.01.2006 on the basis of the posting of aforesaid two IAS officers at the Centre in 2005 itself. The case of the applicants is that drawing parity with the IAS officers would extend to grant non-functional upgradation benefit w.e.f. 01.01.2006 at par with them and not from two days thereafter.
3. The learned counsel appearing for the applicants has submitted that such denial of benefits from 01.01.2006 will have significant monetary implications upon them throughout their service career and post retiral benefits as the officers getting higher grade pay as on 01.01.2006 would be entitled to get the annual increments on 1st July of the same year whereas the applicants having been granted the non-functional upgradation w.e.f. 03.01.2006 have to forego the annual increment in the year of promotion/upgradation. In support of their claim, the applicants have adopted the following grounds in support of their claim:-
The objective of granting non-functional upgradation was to remove the stagnation and to draw two years parity with the IAS officers in PB-3 & PB-4 joining the Government of India. The effective date for implementation has been provided from 01.01.2006 in the Gazette Notification dated 29.08.2008 and reiterated vide OM dated 24.04.2009 of the DOP&T. What has been provided in the Gazette Notification cannot be withdrawn or curtailed by means of a clarification issued by the Department.
The applicants are admittedly more than two years senior to the IAS officers under reference that being Atanu Chakraborty, IAS (GJ:1985) and one P. Raghvendra, IAS (HY: 1985). The objective of putting in place the non-functional upgradation would not be fully met in the case that the entitled officers were only to be upgraded from the date after 01.01.2006. It is imperative for the sake of complete parity and implementation of the Scheme to the letter and spirit that the date provided in the notification as 01.01.2006 should be respected.
4. The respondents have filed their counter affidavit opposing the prayer of the applicant. The respondents have submitted that the DOP&T OM dated 24.04.2009 whereby instructions have been issued in the light of the recommendations of the 6th Central Pay Commission and accepted by the Government provides that whenever any IAS officer of a particular batch is posted in the Centre to a particular grade carrying a specific grade pay in pay bands PB-3 or PB-4, grant of higher pay scale on non-functional basis to the officers belonging to batches of organized Group-A services that are senior by two years or more should be given by the Government. Since the officers of 1985 batch were first posted after the acceptance of the DOP&T instructions, the earlier batches were to get financial parity in Senior Administrative Grade level. Making the reference to the DOP&T OM dated 25.09.2009, the respondents submit that: These recommendations have been implemented w.e.f. 01.01.2006. As such, any upgradation can only be w.e.t. officers of IAS posted to Centre after 1.1.2006, Since the first IAS officer of 1985 batch posted after 1.1.2006 as Joint Secretary in the Centre on 3.1.2006, as per OM of even number dated 1.7.2010, the officers of Organized Group A Service of 1983 or earlier batches are to be considered for NFU from 3.1.2006. The respondents have further submitted that the applicants are misplaced in the reliance of the case of Union of India & Others versus Keshoram & Others [2005V AD (Delhi) 215] since the facts of that case are totally different to the facts of the present case.
5. The learned counsel for the respondents has vehemently opposed the plea of the applicant stressing the ground that while the Gazette Notification has provided the general rules, the procedure has been clarified vide OM dated 25.09.2009. As such, there is absolutely no contradiction between the Gazette Notification and the Clarification. The latter is only supplementary by nature.
6. Now we take up examination of the issue. Admittedly, it was the 6th Central Pay Commission which had made the recommendation for introduction of the non-functional upgradation which had not been there hitherto. The 6th Pay Commission had recommended to the Government to consider batch-wise parity while empanelling and/or posting of officers at the Centre between respective batches of IAS and other Organized Group A Service with the gap being restricted to two years. Whenever any IAS officer of a particular batch gets posted in the Central to a particular grade carrying a specific Grade Pay in PB-3 & PB-4, grant of higher pay scale on non-functional basis to the officers belonging to the bathes of Organized Group A Services, senior by two years or more, should be given by the Government. Drawing of parity of two years for grant of non-functional upgradation to the IAS officers being posted at the Centre has been considered necessary by the 6th Central Pay Commission in order to remove the relative stagnation prevailing in Services other than the IAS while maintaining a reasonable differential of two years with the latter. The recommendations of the Pay Commission were considered by the Cabinet and are enshrined in the Central Civil Services (Revised Pay) Rules, 2008. In addition, there is a Resolution of the Government published vide the Gazette Notification dated 29.08.2008 which, inter alia, provides:-
Whenever any IAS officer of a particular batch is posted in the Centre to a particular grade carrying a specific grade pay in pay bands PB-3 & PB-4, grant fo higher pay scale on non-functional basis to the officers belonging to batches of organized Group-A service that are senior by two years or more should be given by the government. The same Notification further provided:
2. The Commissions recommendations and Government decision thereon with regard to revised scales of pay and dearness allowance for civilian employees of the Central Government and personnel of All India Services as detailed in the Part-A of the Annex.-I will be made effective from 1st day of January, 2006. The OM dated 24.04.2009 is very specific, relevant part of which reads as under:-
(i). Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay Band 4, the officers belong to batches of Organized Group A Services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on non-functional basis from the date of posting of the Indian Administrative Officers in that particular grade at the Centre.
(ii) Grant of higher scale would be governed by the terms and conditions given in Annex-I. The terms & conditions as provided in the Annexure to the said OM provides:-
1. The non functional up-gradation granted under these orders will be based on empanelment and posting of particular batch of IAS officer in the Centre. Such up-gradation would not be linked to the vacancies in the grade.
2. The up-gradation granted under these orders will be a purely non-functional up-gradation, personal to the officer and it would not bestow any right to the officer to claim promotion or deputation benefits based on non-functional up-gradation in such a manner.
3. All the prescribed eligibility criteria and promotional norms including benchmark for up-gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.
4. A screening committee would be formed by the Ministry for implementation of these orders. There would be three members in committee so formed and they would at-least be one level above the grade for which up-gradation is being considered. Secretary of the Ministry concerned would chair the committee.
7. (i) Pay fixation under on grant of non-functional up-gradation under these orders will be done as per the provisions of CCS (RP) Rules, 2008 i.e. the officers will be granted one increment at the rate of 3% of basic pay and the difference of grade pay will be added to their basic pay.
(ii) As far as similarly placed officers of organized Gr.A Services, who are posted under the Central Staffing Scheme are concerned, they will be granted one additional increment on account of the non-functional up-gradation, but their grade pay will remain unchanged on the ground that they are holding a particular post with a specific grade pay under the Central Staffing Scheme. In such cases the officers granted non-functional up-gradation may continue to draw CDTA if admissible.
8. As and when the normal vacancies in the grade arise, the officer will be considered for regular promotions as per the normal DPC guidelines, based on the provisions of the recruitment rules. UPSC will be consulted wherever the rules provide for the same. However, at the time of promotion, the pay in the grade will not be fixed again for officers who have been granted up-gradation under these orders.
10. Non-functional up-gradation to the next higher grade pay granted under the scheme is a fall back option only, to be applied in cases where officers of a particular Service have not been granted promotion to a particular grade in normal course according to the due procedure.
11. ILLUSTRATION :- If officers of 1987 batch of IAS are empanelled as Joint Secretary in the grade pay of Rs.10,000/- in PB-4 and an officer of the batch gets posted in the Centre (under Central Staffing Scheme) on 15th January 2008, all the officers of the 1985 batch of organized Gr.A Central Services who have not been promoted to the Joint Secretary or equivalent grade and who are eligible for the same on 1/1/2007 for the panel year 2007-08, would be appointed to the same grade on non-functional basis under these instructions w.e.f. 15/1/2008. Same would be the case in the event of posting of an officer of particular batch as Deputy Secretary/Director under Central Staffing Scheme.
7. The learned counsel for the applicants has relied upon some decided cases first of which relates to the matter of Steel Authority of India Ltd. & Others etc. etc. Versus National Union Water Front Workers and Others, etc. [AIR 2001 SC 3527] in para no.9 whereof the Honble Supreme Court has observed that the State policy embodied in Article 43 cast responsibility upon the State to secure a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities for all their workers, including agricultural and industrial workers. While interpreting such legislation, the consideration of the court cannot be divorced from such objectives. In paragraph 25 of this order, the Honble Supreme Court provides as under:-
25. It is a well-settled proposition of law that the function of the Court is to interpret the Statute to ascertain the intent of the legislature-Parliament. Where the language of the Statute is clear and explicit the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. This rule of literal interpretation has to be adhered to and a provision in the Statute has to be understood in its ordinary natural sense unless the Court finds that the provision sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is no obscurity, no ambiguity and no abstruseness. Therefore the words used therein must be construed in their natural ordinary meaning as commonly understood. The above position has been further reiterated in the matter of Union of India & Others versus Keshoram & Others (supra). This judgment is in respect of Assured Career Progression Scheme (ACP) introduced to remove stagnation. In this particular case, this Tribunal had held that the subsequent office orders issued by the appellant could only supplement the provisions of the ACP Scheme but could not supplant. Paragraph 5 of the decision reads as under:-
5. The position of the present case is similar to the one which was decided in the said case by the Supreme Court. We, therefore, are of the considered view that the aforesaid circular which was subsequently issued by the appellant by way of clarification could have only supplement the provisions of the Scheme and could not have supplant the provisions of the Scheme. Since the said circular was intended to supplant, then supplement, the view taken by the learned Tribunal is legal and valid. The aforesaid view that we had taken was also the view which was taken by another Division Bench of this Court in the case of Union of India through Director General Vs. Shri Bhagwati prasad in Writ Petition (Civil) NO. 297/2005. While disposing of the writ petition, the Division Bench held in the following manner:-
"We have perused the order passed by the Central Administrative Tribunal. Learned counsel for the petitioner has contended that in view of the subsequent office order, the Assured Career Scheme could not have been implemented. We are in agreement with the findings of the C.A.T. That when the Assured Career Scheme is clear and unamiguous, any clarification of office order cannot supplant the same. If the petitioner does not want to implement the Assured Career Scheme in letter and spirit, then remedy with them lies in amending the Scheme and not whittling down the Scheme on the ground of exigency of administrative difficulties. We find no merit in the petition . Dismissed."
8. Here we take into account the objection raised by the learned counsel for the respondents that the facts of the case not being similar, this order of the Honble High Court of Delhi is not applicable to the facts of the instant case. However, what we find is that the Honble High Court has laid down the ratio after having considered the matter in some detail and, therefore, we are of the opinion that the above ratio laid down by the Honble High Court is applicable in the instant case.
9. In the case of K.S. Krishnaswamy etc. versus Union of India & Anr. [2007 Lab. I.C. 1991], the Honble Supreme Court having been confronted with similar situation, has held:
18. It is common knowledge that an increase in the pay scale in any recommendation of a pay commission is a corresponding increase in the pay scale. In our view, therefore, Executive Instructions dated 11.5.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30.9.1997, clarified by Executive Instructions dated 17.12.1998. The Executive Instructions dated 11.5.2001 neither over-ride the Policy Resolution dated 30.9.1997 nor Executive Instructions dated 17.12.1998 clarifying the Policy Resolution dated 30.9.1997. The Executive Instructions dated 11.5.2001 were in the form of further clarifying the Executive Instructions dated 17.12.1998 and do not over-ride the same.
10. From the above narration of the facts and discussions, it clearly emerges that what had been recommended was the parity with a two years gap for the entitled categories of services to the IAS officers coming on Central deputation. The objective of the recommendation was removal of stagnation and maintenance of the morale of the entitled Group A Service. This has been extended by the Government of India after due consideration at the level of the Cabinet and having published the Notification on 29.08.2008, the relevant part of which has already been quoted above. We cannot afford to overlook the fact that the recommendations of the 6th Central Pay Commission have been implemented w.e.f. 01.01.2006. Irrespective of the date of joining, the two IAS officers in question, namely, Atanu Chakraborty, IAS (GJ:1985) and one P. Raghvendra, IAS (HY: 1985) were granted non-functional upgradation w.e.f. 01.01.2006 to the scale of Joint Secretary. We do not see any logic in giving the same benefit to the applicants after two days i.e. 03.01.2006. We have taken a note of the fact that it is the two years parity which is being given. Hence, if the two IAS officers in question have got the benefit in PB-4 scale w.e.f. 01.01.2006, there is no logic as to why it should be given to the applicants from a period two days later.
11. Here, we are of the considered opinion that parity implies complete parity with due difference and not a partial parity. In the instant case, under the terms of the impugned O.M. dated 25.09.2009, the differential of two year in fact gets enhanced to two and a half years as it has been rightly contended by the applicants that the next increment would only be due from July. The impugned order serves to create a question of partial parity subject to the permitted differential, which is contrary to the spirit of the Gazette Notification dated 29.08.2008 being the prime decision of the Government. It is understood that while the Gazette Notification has been issued on the basis of the approval granted by the Cabinet, the impugned clarification dated 25.09.2009 has been issued only at the level of the Ministry. This brings us to the next point that whether the letter and spirit of the Notification dated 29.08.2008 can be partially undone by a subsequent clarification.
12. From the cases quoted i.e. Union of India & Others versus Keshoram & Others (supra), Steel Authority of India Ltd. & Others etc. etc. Versus National Union Water Front Workers and Others, etc. (supra) and K.S. Krishnaswamy etc. versus Union of India & Anr. (supra), it is clear that the Government has the responsibility towards its work force and they are to bring the legislation in fulfillment of the same. Regarding interpretation, the same has to be necessarily in favour of the work force. Admittedly, though there is no legislation in the instant case involved but the Resolution of the Government and the formulation of the Scheme have the effect of subordinate legislation. Therefore, to our mind, the ratio enunciated in the aforesaid three cases, also holds good in respect of the instant case as well. However, there is one irritant that being expressed in the illustration already cited. This illustration is a part of the Scheme whereby the entitled Officers have been appointed in PB-4 on non-functional upgradation w.e.f. 15.01.2008 guided by the IAS officers of 1987 batch getting posted in the Centre on 15.01.2008. No doubt, this illustration is a part of the Scheme and it provides complete parity to the officers of the entitled services. Here the IAS officers have been grated the Joint Secretary scale and have been placed in PB-4 w.e.f. 01.01.2006. Therefore, we feel that the same illustration would also work in the favour of the applicants on the principle of complete parity subject to differential and they would stand to be given the PB-4 w.e.f. 01.01.2006.
13. In conclusion of the above discussion, we are of the opinion that the parity envisaged in the Scheme and in the Government Notification will be well served by granting PB-4 to the applicants w.e.f. 01.01.2006 and going after would be sub-par and contrary to the Scheme envisaged. Respondents are directed to consider and take a final decision for grant of benefit of non-functional upgradation to the applicants w.e.f. 01.01.2006 in place of 03.01.2006 within two months from the date of receipt of certified copy of this order.
14. In the result, the Application succeeds and is allowed but without costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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