Central Administrative Tribunal - Hyderabad
T Rajesh Varma vs M/O Defence on 1 October, 2021
OA No.1085/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/020/01085/2017
Date of CAV : 21.09.2021
Date of Pronouncement : 01.10.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
1. T.Rajesh Varma, S/o T.L.P.Raju, aged 32 years,
SAP No. 4048, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
2. K.P.A.Naidu, S/o K.Narayana Murthy, aged 31 years,
SAP No. 4091, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
3. Parsilli Hari, S/o P.Adinarayana, aged 29 years,
SAP No. 4045, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
4. Rampilli Srinivas, S/o R.Ramana, aged 27 years,
SAP No. 4013, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
5. Molleti Venkata Rao, S/o M.Rama Rao, aged 33 years,
SAP No. 4078, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
6. L.Simhachalam Naidu, S/o L.Appala Naidu, aged 33 years,
SAP No. 4068, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
Page 1 of 19
OA No.1085/2017
7. K.Suresh, S/o K.Pydanna, aged 27 years,
SAP No. 4051, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
8. Botcha Govinda Raju, S/o B. Rama Rao, aged 31 years,
SAP No. 4066, Occ: Construction Assistant-A, O/o
The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
9. Molli Appala Naidu, S/o M. Paidaiah, aged 42 years,
SAP No. 1290, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
10. Boddeda Gopi Krishna, S/o B.Satyanarayana, aged 28 years,
SAP No. 4020, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
11. Samminga Nooka Appa Rao, S/o S.Suri Appa Rao, aged 33 years,
SAP No. 4053, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
12. Gompa Nageswara Rao S/o G. Simhanchalam aged 30 years,
SAP No. 4022, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
13. Kattamuri Santosh Kishore S/o K.Satyanarayana (Late) aged 29
years, SAP No. 4018, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
14. M. Venkataramana S/o M. Maridiyya aged 31 years,
SAP No. 4052, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
Page 2 of 19
OA No.1085/2017
15. KVSN Prasad S/o KVVS Gurunadham aged 33 years,
SAP No. 4067, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
16. A Sanyasi Naidu S/o A Sannibabu aged 29 years,
SAP No. 4084, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
17. Karanam Srinu S/o K Apparao aged 31 years,
SAP No. 4055, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
18. T Umagopal S/o T Apparao ( Late ) aged 33 years,
SAP No. 4056, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
19. Bheesetti Santosh Kumar S/o B Ramana aged 33 years,
SAP No. 4043, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
20. Koilada Tarakeshwara Rao S/o K Venkata Rao aged 31 years,
SAP No. 4042, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
21. S Santosh S/o S. Krishna aged 31 years,
SAP No. 4080, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
22. Athota Madhu S/o Athota Veeraih aged 36 years,
SAP No. 4090, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
Page 3 of 19
OA No.1085/2017
23. Peketi Arunakar S/o P Sudhakara Rao aged 35 years,
SAP No. 4016, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
24. Adari Thrimurthulu S/o Adari Paparao (Late) aged 32 years,
SAP No. 4075, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
25. K. Gowri Sankar S/o K. Mani Raju aged 30 years,
SAP No. 4074, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
26. Dara Satyanarayana S/o D Satya Rao aged 29 years,
SAP No. 4069, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
27. Majji Trinadh S/o M Bhujanga Rao aged 35 years,
SAP No. 4044, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
28 K Ramakrishna S/o K Suryanarayana aged 31 years,
SAP No. 4038, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
29. VV Narsingarao Ragini S/o R. Kuncha Rao (Late) aged 32 years,
SAP No. 4015, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
30. V. Nagamallikarjuna Rao S/o V. Venkateswaralu aged 46 years,
SAP No. 4079, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
Page 4 of 19
OA No.1085/2017
31. P Jagan S/o P Kali aged 29 years,SAP No. 4071,
Occ: Construction Assistant-A, O/o The Projector Director,
Nuclear Engineering Group Department, Varuna Block,
Ship Building Centre, Naval Base Post, Visakhapatnam-530 014.
32. Patnana Atcharao S/o P. Sundara Rao aged 27 years,
SAP No. 4050, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
33. Chintada Jagadesh Kumar S/o CH. Vasantha Rao aged 35 years,
SAP No. 4058, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
34. Yellamlli Nageswara Rao S/o Y Ramprasad aged 32 years,
SAP No. 4077, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
35. Nekkala Paidam Naidu S/o N. Demudu aged 28 Years,
SAP No. 4073, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
36. Ummidi Rajesh S/o U Surya Rao ( Late ) aged 31 years,
SAP No. 4028, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
37. Uppati Demudu S/o U Apparao aged 30 years,
SAP No. 4012, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
38. M. Bhanu Prakash S/o M Ramu Naidu aged 30 years,
SAP No. 4065, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
Page 5 of 19
OA No.1085/2017
39. I Ravi Kumar S/o I David aged 37 years,
SAP No. 4089, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
40. Arasavilli Ramesh Kumar S/o A Appanna aged 29 years,
SAP No. 4081, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
41. CH. Mohan Rao S/o CH. Tata Rao aged 36 years,
SAP No. 4040, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
42. Thotada Vijaya Kumar S/o T. Siva Apparao aged 36 years,
SAP No. 4039, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014.
43. K. Vijaya Prasad S/o K. Rudra (Late ) aged 30 years,
SAP No. 4019, Occ: Construction Assistant-A,
O/o The Projector Director, Nuclear Engineering Group
Department, Varuna Block, Ship Building Centre,
Naval Base Post, Visakhapatnam-530 014. ...Applicants
(By Advocate : Mr.K.R.K.V. Prasad)
Vs.
1. Union of India represented by
The Secretary, Ministry of Defence,
Government of India, South Block,
New Delhi.
2. The Secretary,
Department of Defence (R&D),
Ministry of Defence, DRDO Bhawan,
New Delhi.
3. The Director General,
HQ ATVP, DDR&D,
Ministry of Defence,
Page 6 of 19
OA No.1085/2017
Aakanksha Development Enclave,
Rao Tula Ram Mar, New Delhi.
4. The Project Director,
Ship Building Centre,
Varuna Block, Naval Base (Post),
Visakhapatnam-530 014. ....Respondents
(By Advocate : Mrs. D.Shoba Rani, Addl. CGSC)
---
Page 7 of 19
OA No.1085/2017
ORDER
(As per Hon'ble Mr.B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed in regard to grant of higher pay scale of Rs.1200-
1800 (Pre-revised) (4th CPC) and the grade of Construction Assistant-B (for short "CAB") on par with seniors who got similar relief through legal fora.
3. Brief facts of the case are that the applicants were appointed as Construction Assistants 'A' (for short "CAA") under various trades in the respondents organization. The seniors to the applicants, who too were recruited in the lower scale of Rs.950-1500 (4th CPC) in skilled grade II, equivalent to CAA, violating the Presidential order in vogue approached the legal fora and got the relief of higher pay scale of pay of Rs.1200-1800 (4th CPC) in Highly Skilled Gr.-II which is equal to Construction Assistant B (CAB). Respondents implemented the orders of the Court but refused to grant similar benefit to the applicants who are similarly placed. Hence the OA.
4. The contentions of the applicants are that they were appointed as CAA instead of CAB violating Presidential order dated 18.7.1989 and the allied corrigendum's, the latest dated 14.2.2006. The applicants have been appointed in a similar manner like the senior recruits appointed between 1990 to 1998. The latter were initially granted pay scale of Rs.950-1500 in Skilled Grade-II (for short "SK-II"), equivalent to CAA, and on raising the grievance in OA Nos. 1932/2000; 669/2001; 1432/2001; 1448/2001 & batch, which were allowed, it was hiked to Rs.1200-1800 (4th CPC) in Page 8 of 19 OA No.1085/2017 Highly skilled grade-II ( for short "HSK-II"), which is equivalent to CAB. The relevant petitions filed by the respondents viz., WPs 18129 and 23828 of 2001 were dismissed and WP Nos.25619 of 2001 and 4818 of 2005 were disposed. Later, Lady Luck did not smile on the respondents, with the SLPs filed by them meeting the same fate. Therefore, applicants need to be granted similar equivalent scale as recommended in the succeeding Pay Commissions, in the way it was granted to the seniors in accordance with law and as per previous applicable SRO. Instead, applicants have been appointed in a lower pay scale though they are discharging the same nature of work under the same appointing authority. In fact, the applicants are working in stringent nuclear related working conditions when compared with the seniors corroborating the need to be given higher pay scale. Besides, sailors who do similar work have been granted Military Service Pay, Submarine allowance, Ration etc. Further, applicants have not even been granted night duty allowance, which is being paid to defense employees. The principle of equal pay for equal work has not been followed. Applicants represented and the same was rejected on 31.5.2017 in a mechanical way without referring to the law. The contention of the respondents that the applicants were recruited against advertisement No.3201/RP/2012 dated 2-8 June-2012 as per Statutory Rules and orders No.98/2002 (for short SRO 98/2002) is misconceived, since the same contention when raised was rejected by the legal fora on the ground that the Presidential Manpower sanctions, issued by R-1 & R-2, contain the grade as well the pay scale for the recruits of NYC/SBC/ATVP. R-4 has no competence to decide the issue and hence the impugned memo dated Page 9 of 19 OA No.1085/2017 31.5.2017 is null & void. SRO has to be in accordance with the Presidential manpower sanction. Applicants' accepting the appointment orders is no ground to reject the claim in view of the fact that seniors who faced the same predicament got the benefit through the legal fora. The applicants have higher qualifications than the seniors and therefore, they have to be paid on par with the seniors, if not more. Not granting the eligible pay scale has caused monetary loss on a permanent basis. Indeed, applicants have been discriminated in terms of grade and pay vis-à-vis seniors.
5. Respondent per contra state that the applicants were recruited against notification dated 2-8 June 2012 (Annexure R-1) and SRO 98/2002 dt.17.04.2002 (Annexure R-3) wherein the qualification, experience, pay scales etc. were mentioned. Hence, the Presidential order dated 14.2.2006 is not applicable to the case of the applicant. Accordingly, applicants were offered appointments in the grade of CAA on 17.2.2014/21.6.2014 (Annexure R-2), which they accepted agreeing to the terms and conditions laid therein. The condition that the applicants have to work in radiation environment with relevant guidelines was clearly mentioned. They are to work for 8 hours-a-day and if required, in shift system. There is no violation of the Presidential orders referred to by the applicant culminating in the final order dated 14.2.2006. The SRO 98/2002 is also a Presidential order approved by the Min. of Defense (for short MOD) on 17.4.2002. SRO provides the Recruitment Rules covering qualification, eligibility criteria, no. of posts etc. The senior employees were recruited by Naval Dockyard (for short ND (V)) in the absence of SRO for North Yard Complex/ Ship Building Centre (for short NYC/SBC) and with reference to Page 10 of 19 OA No.1085/2017 the Govt. sanction available at that time by ND(V). Their pay scale was fixed in obedience to the common order of the Hon'ble High Court on 4.4.2005 in WP No.18129 of 2001 as per Presidential order dated 14.2.2006 (Annexure R-6). Applicants cannot compare themselves with sailors as their service rules are different. The contention that the SRO 98/2002 was available when the Courts adjudicated the matter is false. Though the Presidential orders were issued by R-1 & R-2, even R-4 is competent to issue the impugned reply 31.5.2017 with reference to the Presidential order. The applicants have not been discriminated. Seniors were recruited by ND (V) and applicants by SBC (V). No class within class has been formed as alleged by the applicants.
Applicants filed a rejoinder claiming that the terms and conditions of seniors and theirs are one and the same. Applicants are similarly placed and hence, cannot be discriminated. The advertisement issued cannot bring the Presidential order to naught. The OAs decided, apply to the case of the applicants except for the date of recruitment. Respondents have cited the Hon'ble Supreme Court judgments in regard to equal pay for equal work to support their contentions.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is about not granting the higher scale of pay of Rs.1200-1800 (4th CPC) in the grade of CAB as was granted to the seniors of the applicants recruited during the period 1990 to 1998 in the equivalent grade of High Skilled Grade-II. The seniors approached the Tribunal in several OAs which were allowed and upheld by the Hon'ble High Court in different WPs, with Hon'ble Supreme Court not interfering with the order Page 11 of 19 OA No.1085/2017 by dismissing the SLP (Civil) CC No.9910-9913/2005. Thereupon, respondents granted the higher scale of Pay of Rs.1200-1800 instead of Rs.950- 1500 (4th CPC) to the seniors. The argument of the respondents is that at the time of recruitment of the seniors, there was no SRO and hence as per the Court orders, the seniors were granted the higher pay scale by issuing the Presidential order dated 14.2.2006. In contrast, applicants have been recruited as per SRO-98/2002 and in terms of the conditions laid down in the advertisement 3201/RP 2012 dated 2-8 June 2012.
II. We have gone through the details of the case carefully. The seniors to the applicants got higher pay scale upon approaching the Tribunal in several OAs. We have perused OA 1932/2000 dated 12.3.2001 wherein the Tribunal granted the higher Pay scale of Rs.1200-1800 by citing the respondents memo dated 20.4.1993 wherein the scale of Tradesman was shown as Rs.1200-1800 (pre-revised) for which the applicants in the OA are eligible. Though the respondents contended that the said scale was for HSK Grade-II, it was not agreed to in view of the scale mentioned in the memo cited. OA 669/2001 dated 4.7.2001 was allowed as a covered case based on the order in OA 1932/2000. On 4.4.2005, Hon'ble High Court of Andhra Pradesh at Hyderabad in WPs 18129, 23828, 25619 of 2001 & 4818 of 2005 has upheld the orders of the Tribunal in the cited OAs by referring to the memo dated 20.04.1993 of the respondents. Thereafter, a batch of OAs 1448/2001, 991/2004, 1035/2004, 1036/2004, 1037/2004 & 1056/2004 were disposed on 21.4.2005, referring to the orders of the Hon'ble High Court in regard to grant of Pay Scale of Rs.1200-1800 and arrears of pay etc. In a similar way, OA Nos. 1059/2004, Page 12 of 19 OA No.1085/2017 1039/2004, 510/2005 were disposed on 21.4.2005/12.8.2005. Consequent to the directions of the legal fora, Presidential order dated 14.2.2006 was issued.
III. On scrutiny of the orders in the OAs cited and the order of the Hon'ble High Court dtd. 4.4.2005, we find reference made to the memo dated 20.4.1993 and there is no reference to the SRO 98/2002. Therefore, the contention of the applicants that the SRO 98/2002 was referred to in the legal proceedings is false. The applicants have not come with clean hands to the Tribunal and anyone who approaches with unclean hands need not be granted any relief, as observed by the Hon'ble Supreme Court in Chennai Metropolitan Water Supply & Sewerage Board & Ors vs T.T. Murali Babu on 10 February, 2014 in Civil Appeal No.1941 of 2014 (Arising out of S.L.P. (C) No. 15530 of 2013)
14. In State of Maharashtra v. Digambar (1995) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
IV. Nevertheless, we have gone through the other contentions as well, in the interest of justice. The advertisement No.3201/RP/2012 dated 2-8 June 2012 contains the following terms and conditions. Page 13 of 19 OA No.1085/2017
"1.3 Qualifications and age limit:
Post code Grade Educational/ Technical Qualifications Age limit (as on notification date) CAA-F Construction (i) Secondary School Certificate (10th Between 18 and CAA-W Assistant-A; Standard pass under 10+2 system); 27 years CAA-E Trade: (ii) Industrial Training Institute (ITI)/ CAA-IM Fitter, National Apprentice Certificate (NAC) CAA-EM Welder, or equivalent in the required CAA-M Electrician, specialization;
Instrument (iii) Two years experience, in the
mechanic, required trade.
Electronic Preference will be given to Dockyard
Mechanic, Apprenticeship School (DAS) trained
Machinist candidates
CAA-DF Construction (i) Secondary School Certificate (10th Between 18 and
Assistant-A; Standard pass under 10+2 system); 27 years
Trade: (ii) Four years experience in LMV/HMV
Driver-cum- Driving
Fitter
Xxxx
1.4 Work experience: Previous work experience in related field would be given due
credit during candidate screening process.
1.5 Physical standards: Medically fit as per standards.
1.6. Duration of training: One month
1.7 Probation period: 02 years after successful completion of training
1.8 Mode of Selection: Procedure would be as follows:
1.8.1 A written examination in English only (Objective type) of one hour duration will be conducted at Visakhapatnam. Admit card for the written examination including schedule of written examination would be sent by post to eligible candidates only.
1.8.2 The syllabus for the written exam would be as follows:
Xxx 1.8.5 Those candidates qualifying in the written exam shall only be shortlisted for trade test / interview on the following day.
1.8.6 The final selection and ranking will be done on the basis of performance of the candidate in the interview/ trade test (where applicable). The decision of this organization in this regard will be final.
1.9 The organization has no obligation to provide employment to all the successful candidates shortlisted by the procedure mentioned above.
2.0 Pay Structure:
2.0.1 Upon successful selection, the eligible candidates will be considered for absorption in the following grades at the time of appointment: Page 14 of 19 OA No.1085/2017
Grade Corresponding Corresponding Grade Pay Corresponding Pay in Total Emoluments Pay Band Pay Band (Approx.) Xxxx Construction PB-1 Rs.1900/- Rs.5200- Rs.14707/-
Assistant 20200/- "A"
2.0.2 In addition to above, allowances as admissible under Central Government Rules would be applicable."
The advertisement clearly lays down the experience, qualification, pay scale with reference to 6th CPC etc. The selection is based on SRO 98/2002 which is in statutory in nature. The very nomenclature of SRO stands for Statutory Rules and Orders and the Presidential orders are issued in consonance with the SROs issued. The SRO is issued in exercise of powers conferred by Article 309 of the Constitution. The first para of SRO- 98 reads as under:
"In exercise of the powers conferred by the proviso to article 309 of the Constitution, the President hereby makes the following rules further to amend the Department of Defence Research and Development, Ministry of Defence (ATVP Technical Cadre Posts) Recruitment Rules 1999, namely:-
1.(1) These rules may be called the Department of Defence Research and Development, Ministry of Defence (ATVP Technical Cadre Posts) Recruitment (Second Amendment) Rules, 2002.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Department of Defence Research and Development, Ministry of Defence (ATVP Technical Cadre Posts) Recruitment Rules, 1999 -
(a) in rule 2, for items (i) to (viii), the following items shall be substituted, namely:-
"(i) Semiskilled/ Unskilled Labourer - Construction Handler (on completion of five years' regular service)
(ii) Skilled - Construction Assistant 'A'
(iii) Tradesman B/HSK II - Construction Assistant 'B'
(iii) Tradesman A/ HSK I - Construction Assistant 'C'
(v) Senior Chargeman - Deputy Construction Supervisor
(vi) Forman - Construction Supervisor
(vii) ------ - Senior Construction Supervisor
(viii) Senior Forman - Chief Construction Supervisor"Page 15 of 19 OA No.1085/2017
The recruitment has to be done as per Recruitment Rules and SRO 98/2002 contains the recruitment rules. The applicants have been appointed in terms of the advertisement cited and SRO-98/2002. The SRO 98/2002 is also a Presidential order issued by the MOD. In other words, their recruitment is in accordance with the recruitment rules prevailing at the time of their recruitment, whereas the seniors were granted the benefit by the legal fora based on respondents' order dated 20.4.1993. Hence, there can be no comparison between the two. The seniors recruited between 1990-98, were granted the benefit since the respondents erred in not implementing their own order where Tradesmen were granted the pay scale of Rs.1200-1800 (4th CPC). The Recruitment Rules were modified vide SRO 98 on 17.4.2002 and the applicants were appointed as per the latest recruitment rules contained in SRO 98/2002, which cannot be found fault with.
V. Applicants have accepted the offer of appointment vide Annexure R-2 consenting the terms and conditions laid down in the advertisement. Therefore, as per Doctrine of Estoppels, which precludes a person from denying or negating anything contrary to what has been constituted as truth, either by his own actions, by his deeds or by his representations or by the acts of judicial or legislative officers, applicants after accepting the offer of appointment in terms of the advertisement/SRO 98 of 2002, cannot turn around and state that the terms and conditions of the advertisement/SRO 98 of 2002, would not apply to them. In regard to the seniors, the issue was different, as at that juncture of time, there was no Page 16 of 19 OA No.1085/2017 SRO and the respondents failed to follow their own memo dated 20.4.1993. Respondents, it appears, have learnt a lesson and have come up with SRO 98 of 2002 and an advertisement with clear terms and conditions. Selections have to be made as per the terms and conditions laid down in the advertisement and once the process of selection starts, the prescribed selection criteria cannot be changed, as held by the Hon'ble Supreme Court in Secy. A.P. Public Service Commission v B. Swapna (2005) 4 SCC 154, At para 14, it was held that norms of selection cannot be altered after commencement of selection process and the rules regarding qualification for appointment, if amended, during continuation of the process of selection do not affect the same.
Further at para 15, it was held that the power to relax the eligibility condition, if any, to the selection must be clearly spelt out and cannot be otherwise exercised. The said observations are extracted herein below:-
"14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for applicant-Respondent 1 it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka and Gopal Krushna Rath v. M.A.A. Baig)"
Respondents cannot, therefore, go against the conditions laid down in the advertisement applicable in effecting the selections, as per the legal principle laid down in the above verdict nor can the applicants expect that their selection has to be changed on the pattern of seniors. Further, the Tribunal has no power to interpret/rewrite any advertisement as held by the Page 17 of 19 OA No.1085/2017 Hon'ble Supreme Court in Maharashtra Public Service Commission v Sanddeep Shriram Warade on 3.5.2019 in CA 4597/2019.
VI. The contention of the applicants that the advertisement cannot override a Presidential order issued based on statutory rules does not stand to legal scrutiny as the respondents have issued the advertisement dated 2-8 June 2012 in congruence with the latest Statutory Rules framed in SRO - 98/2002. The SRO cited is also a Presidential order. Besides, the orders of legal fora in favour of the seniors are based on different facts and circumstances, as brought out above and are not applicable to the case of the applicants. Applicants' claiming that they are similarly placed is not valid since the seniors' cases were decided with reference to OM dated 20.4.1993 and that of the applicants, in relation to SRO-98/2002. There is an ocean of difference between the two. Hence, the applicants are not discriminated, as contended by them.
In regard to working in strenuous radiation environment, it was specified in the advertisement and the choice was made by the applicants, being fully aware of the working conditions. Having made the choice, they cannot complain after joining the service. Applicants are civilian employees and are not on par with Sailors, who are defense employees having different service conditions with appropriate allowances.
The Principle of equal pay for equal work would not be applicable to the applicants since they have been made known through the advertisement and the SRO 98/2002 that their pay & allowances is for the post of CAA. The applicants expecting the Pay and allowances of CAB, which is a promotional post is unfair and would not come under of the principle of Page 18 of 19 OA No.1085/2017 Equal pay for equal work. Resultantly, the judgments of the Hon'ble Apex Court cited by the applicants would not be of any assistance to the applicants for the reason cited. The question of monetary loss to the applicants would not arise since they are paid for the post of CAA to which they have been appointed. Expecting that they should be appointed as CAB against rules and as it was not conceded to as per rules, imagining an opportunity loss is illogical.
The Presidential orders were issued by R-1 & R-2 and R-4 has given the impugned reply based on the relevant Presidential orders issued. If R-4, were to give a reply which is contrary to the conditions of the advertisement or SRO-98/2002, then there would have been a basis to intervene. The case is not so. The Appointing authorities are different and not the same, as claimed by the applicants, since the seniors were appointed by ND (V) and applicants, by SBC (V). Lastly, as applicants belong to an altogether different class of CAA employees, they cannot compare with seniors of HSK-II Grade, who belong to a different grade/class. Therefore, the contention of the applicants that a class within a class has been formed is not maintainable. Other contentions submitted have also been gone through and they, being of no relevance, have not been commented upon.
VII. In view of the above, the OA being devoid of merit, merits dismissal and hence dismissed with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
Page 19 of 19