Central Administrative Tribunal - Hyderabad
P Ramachandra Rao vs M/O Home Affairs on 24 February, 2020
ON fe a CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH, HYDERABAD OA/o21/00854/2014 HYDERABAD, this the 24% day of February 2020 Hon'ble Mr. Justice L. Narasimha Reddy, Chairman Howble Mr. B.V. Sudhakar, Admn. Member P RAMACHANDRA RAO, S//o PL Narayana Rao, Aged 57 years, Occ: Senior Supervisor, O/o The Director of Census Operations, CGO Complex, Sultan Bazar, Hyderabad-95. ~ Applicant (By advocate: KRKV Prasad) Vs. 1. Union of India rep. by its Secretary, Ministry of Home Affairs & Director of Census Operations, New Delhi, 2. The Registrar General of India & Census Commissioner, 2/A, Man Singh Road, New Delhi-110011, 3. The Director of Census Operations, Government of India, Ministry of Home Affairs, Posnet Bhavan, 2™ Floor, Tilak Road,, Hyderabad-482, 4. The Secretary, Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel & Training), North Block, New Delhi-110001. .. Respondents (By advocate: Mr V Vinod Kumar, Sr. CGSC) ORDER (ORAL)
Hon'ble Justice L. Narasimha Reddy:
Applicant was appointed as Data Entry Operator (DEQ) Grade-B, in the Ministry of Home Affairs on regular basis, vide order dated 31.01.1983. When his services were not counted from the date of initial appointment, he approached this Tribunal by filing OA No.216 of 1992 and on the basis of the _ direction issued therein, his services were counted from 28.01.1981 onwards. It is also stated that the applicant was extended the benefit of 1s\ Assured Career Progression (ACP) Scheme. The 2.4 ACP was granted to him from 02.04.2007.
Not satisfied with that, he filed OA No.374 of 2005. That OA was allowed and a direction was issued to count his service from 28.01.1981, and on the basis of that, 2°¢ ACP in the pay scale of Rs.5500-9000 was sanctioned to him with effect from 28.01.2005, by modifying the earlier, Le., 02.04.2007.
2. Applicant contends that some of the juniors to him were extended the Pay Band 2 with Grade Pay of Rs.4600/- as a measure of correction of anomaly and, as the juniors drawiug higher pay vide order dated 28.11.2011, he is entitled for similar benefit. This OA is filed with a prayer to direct the =e respondents to extend the benefit in relation to the dates referable to 22¢ ACP as well as for revision of 2"¢ ACP to the Grade Pay Rs.4600/- with effect from 07.02.2007.
3. Respondents have filed counter affidavit in the OA. It is stated that no employee, who is junior to the applicant, has drawn higher pay and the claim made in the OA is untenable. It is also stated that ACP and MACP contain the clauses to the effect that if a junior starts drawing higher pay on account of being extended the benefit of ACP and MACP, up-gradation of the pay of a senior cannot be allowed, and that the plea of the applicant cannot be accepted at all.
4. We heard Mr. KRKV Prasad, learned counsel for the applicant and Mr. T. Samba Siva Rao, proxy counsel appearing on behalf of Mr. V. Vinod Kumar, learned senior standing counsel for the respondents, in detail.
5. ACP was introduced through O.M. dated 09.08.1999, providing for extension of benefit of upgradation of pay scale of an employee, if he did not earn promotion in spell of 12 years. Similar facility is available for the second spell of 12 years also, if no promotion is earned during that period. The ACP was replaced by MACP, through O.M. dated 19.05.2009.
The periodicity under this is, completion of 10, 20 and 30 amy wer <. cen SSS . SS years. In both the Schemes, clauses are incorporated to the effect that if extension of the benefit results an employee drawing higher pay than a senior, it shall not be a cause for the senior to claim parity.
6. Clause 8 of the ACP Scheme reads as under:
"The financial upgradation under the ACF Scheme shall be purely personal to the employee and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employee on the ground that the junior employee in the grade has got higher pay-scale under the ACP Scheme."
7. Similarly, clause 10 of MACP reads as under:
"No stepping up of pay in the pay band or grade pay would be admissible with regard to junior getting more pay than the senior on account of pay fixation under MACP Scheme"
8. Therefore, the question of an employee claiming stepping up of pay on par with his junior, as a result of implementation of ACP or MACP does not arise. The only basis for the applicant to claim the said parity is the order dated 28.11.2011. The order reads as under:-
"In partial modification to ORGI Order No.32011/14/2007-Ad IV dated 04.05.07 in / pursuance of Ministry of Personnel, PG & Pensions (Department O Personnel and Training) OM NO.35034/03/2008-Estt(D) dated 19.0]5.2009, the following employees working in DCO Andhra Pradesh who have granted 2"! ACP in the pre-revised pay scale of Rs.5500-9000 are hereby granted 24 ACP in the next Pay Band PB-2 of Rs.9300-34800 with Grade pay of Rs.4600/- with effect from the dates as shown against their respective names:-
Sl. Name & designation of employees Due date for No, (Shri/Smt/RKum) and ACP
1. Sri K.G.Vedavrath, Sr Supervisor 03.05.2007 2, Sri Laxminarayan, Jr.Supervisor 14.02.2007 Sri B.Yadagiri, Jr. Supervisor Sri Ch. Chandra Reddy, Jr Supervisor Sri T N Sham Raj, Jr Supervisor Smt. E Sree Lakshmi, Jr Supervisor Sri P Raghu, Jr Supervisor Sri TS S Ramanujam, Jr Supervisor . Sri A Satyanarayanamurthy, DEO Gr B
10. Sri M Varaprasad, DEO Gr B
11. Smt P.Vasundhra Deve, , DEO Gr B is. Sri L Chandra Kumar, DEO Gr B
13. Sri P Ravinder, DEO Gr B
14.C Laxmi, DEO Gr B
15. SriG N Ravinder, DEO Gr B 16, Sri T Sriram, DEG Gr B
17. Sri K Ganeswara Rao, DEO Gr B
18.Sri Pradeep Raj Saxena, DEO Gr B ig, Sri G Seetha, DEO Gr B
20.Sri Md. Najeebuddin, DEO Gr B
21.SriG VS Sastry, DEO Gr B 22, Smt J. Vijaya Rani, DEO Gr B PON ANE 08.02.2007 16.10.2006 15.09.2006 01.02.2007 04.02.2007 22.02.2007 G7.02.2007 14.02.2007 04.02.2007 07,02.2007 01.02.2007
09.02.2007 17.02.2007 01.02.2007 04.02.2007 15.02.2007 03.02.2007 02.02.2007 10.03.2007 09.03.2007
2. The financial upgradation under the ACP Scheme is purely personal and shall have no relevance to their 'seniority'.
3. No stepping up of pay in the pay band or grade pay would be admissible to their senior with regard to them getting more pay than the senior on account ofS, pay fixation under ACP scheme."
9. Except stating that financial upgradation under 224 ACP is granted, it does not mention stepping up of any pay. On the other hand, Clause 3 specifically prohibited any upgradation of the pay of a senior. Therefore, the claim of the applicant is without any basis.
10. Reliance is placed by the applicant, on the order passed by Chandigarh Bench of Central Administrative Tribunal in OA 558 of 2017 dated 30.07.2017. That, in turn, was passed relying upon an order dated 13.07.2018 in Jaswant Kaur & others v. Union of India & others, in OA/60/556/2017, In paragraph 12 of the order in OA No.556/2017, the Tribunal observed as under:
"12. The basic question before this Tribunal is whether operation of the ACP/MACP Scheme simultaneously with the merger of the cadres may be allowed to deny the applicants their prima-facie entitlement of equal pay to their juniors. In this context, we observe that both the ACP and MACP Schemes have clear provisions for the financial upgradation to be purely personal to the employees with no relevance to their seniority position. Also they both provide that there shall be no financial upgradation for the senior employees on the ground that the junior employee in the grade is getting higher pay scale under the ACP/MACP Scheme. It is also ot annie ey
- _ wd true that the Career Progression Schemes have been in operation since 1999 In all the Union Government offices across the country. Any alteration in this Scheme at this point of time may lead to some administrative difficulties. However, on this account alone, the senior employees cannot be denied their right to draw pay at least equal to their juniors especially when both of them are equally qualified and having same level of responsibility. This anomalous situation has arisen because of provisions of the ACP and MACP Scheme disallowing removal of anomaly in such cases, However, these provisions in the ACP and MACP clearly conflict with the principles of equity. There is no reason why senior employees should not get their pay at least equal to their juniors unless there are clear cut distinguishing circumstances like passing of examination by the juniors ete. No such distinguishing circumstances are existing in the present case."
i1. With due respect to the Bench, which passed the order, we are of the view that there are internal contradictions in the reasoning. Not only the prohibition against the upgradation of the pay of senior on account of the benefit of ACP/MACP to the junior was taken note of, but also it was observed that the schemes are unalterable. Still a relief, in clear violation of the specific provision, was granted by invoking equity.
iz. In fact, a typical and peculiar situation arises. If a Judgment is rendered by a Court ignoring a specific provision of law which is relevant for the adjudication, it is prone to be OA et oy treated as 'per incuriam' or 'sub silentio', if cited "as a precedent in another case. In the instant case, we have come across a precedent, which even while acknowledging the binding nature of the provision of law, granted the relief contrary to it; just by citing equity. It is fairly well known that when a situation is covered or governed by a specific provision of law, there does not exist any scope at all, to invoke equity. Such a course, in fact would replace adjudication, with the doling out of benefits, depending upon the discretion of the adjudicator. The reason is that equity is an amorphous phenomenon and its shape would depend upon the mind set or the approach of the one, who invokes it. An approach of this nature would render the very provision of law, a dead letter.
13. In the famous treatise on jurisprudence, 'Salmond on Jurisprudence' (Twelfth Edition), the learned author identified as many as eight circumstances destroying or weakening the binding force of precedent as under:-
"(a) Abrogated decisions, (2) (Perhaps) affirmation or reversal on a different ground (3) Ignorance of statute {4} Inconsistency with earlier decision of higher court Inconsistency between earlier decisions of the same rank | Precedents sub silentio or not fully argued.
Decisions of equally divided courts.
Erroneous decisions."
We are of the view that the 3 circumstance, mentioned above, gets attracted in the instant case. The learned Jurist elaborated that, as under:-
"(3) Ignorance of statute. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, Le., delegated legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case Gnfra,
28), and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the court. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to tts mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. Even a lower court can impugn a precedent on such grounds."
id. Things would have been different, had the relevant clause been challenged and it has been set aside, even on a feeble reasoning. That would have paved the way for granting the relief, as was done.
i, Centr m., ee
15. The same Jurist added this precaution:
"The mere fact that (as is contended) the earlier court misconstrued a statute, or ignored a rule of construction, is no ground for impugning the authority of the precedent. A precedent on the construction of a statute is as much binding as any other, and the fact that it was mistaken in its reasoning does not destroy its binding force."
16. In the cited precedent, the relief was granted contrary to the clause even while the binding nature of the O.M. was not doubted, and was, in fact, acknowledged. We are afraid whether any precedentiary character can be attributed to such an order.
17. We are aware that a coordinate Bench must follow the principle laid down in an eatlier adjudication. What we have found, however, is an instance of granting relief, contrary to specific provision of law and no principle as such was enunciated in the order. On the other hand, it has all the characteristics of an order passed in 'sub silentio', that too, in a typical way. Though it is pleaded that Hon'ble High Court confirmed the order in OA No.556 of 2007, we do not find it to be a factor for us to ignore the basic principles of law.
4oe, vac ae Ss:
es
18. There is a definite purpose underlying the Clauses 8 & 10 of ACP/MACP Schemes, respectively. The extension of benefit of ACP/MACP is only on finding that the employee or officer is otherwise found fit for promotion, but he could not get promoted for want of vacancies or avenue. The benefit is not extended just on expiry of the stipulated period of 12 years or 10 years, as the case may be. He is considered by a Committee constituted for this purpose and it is only on being found ft, that he gets the benefit of ACP or MACP.
i9. In case a senior was not found fit for ACP/MACP and his junior gets it because the Screening Committee finds him fit, the stepping up of pay of the senior would render the process of screening, which is almost a selection, redundant. If this is accepted, the only work to be undertaken by the Department would be to consider the junior-most in the cadre for ACP or MACP, and once he is found fit, to extend the benefit to all his seniors, irrespective of their ACRs and other attributes of service. Such an approach would prove to be detrimental to the entire administration.
Heed pappy, S 12 ~~ Kaen
20. We do not find any merit in the O.A. It is accordingly dismissed. There shall be no order as to casts.
om, Condy pomtg ee 3 oven"
> ™.