Central Administrative Tribunal - Mumbai
E M Desai vs M/O Water Resources on 7 July, 2023
i QAZLIOLS Central Administrative Tribunal, Mumbai Bench, Mumbai. O.AZUIO1S Abad & Beidas: & Se Ny ea Mated tis Friday the 7 Gay af Jaby, 2023, Corany Dr. Bhagwan Sahal, Member (Administrative) Mos. Harvinder Kaur Oberol, Member (Judicial. Laboratory Astr, I (Retired), Ofo The Director, Central Water & Power Ras: earch Station, Khadakwasla, Pune -- 411 G04, Residing at - Pht No 8-4. Vastuna agar Seaci ie, Bilwewad! Kondhava Road, Near Zhale ¢ 'mp! eX, Behind Market Yard, Pune -- 411 037, . Applicant, ( By Advocate Shri GR. Kamal}. Versus i Union of India, thr ough Seeretary, Ministry of Water Resources. Shram Shakti Bhawa an, Rati! New Delhi -- 110 d0]. = Aare So 2. The Director, Central Water and Power Research Ste ation, --Khadahwasla, Pune ~ 41) ¢ 3, Vhe Chief. Administrative Officer, Central Water and Power Research Stati on, Kbade akwasla, Pune ~ 411 ded. . Respondents. bo OA 2201S ORDER Per: Dr Bhagwan Sahai, Member (A)
Shri E.M. Desai, retired Laboratory Assistant (LA} from office of Director, Central Water & Power Research Station (OWPRS), Khadakwasla, Pune has filed this O.A. On 17.12.2014 seeking setting aside impugned orders dated 06.08.2014 and 11.12.2014 and direction to respondents to fix his pay by ignoring his regular promotion granted in 1986 while granting benefit of 2° ACP as per order of 22.05.2014, 2s Summarized facts :
2a). The applicant was appointed as Observer in service under Respondent No.2 from 26.08.1964 in pay scale of Rs.3200-4900.
Thereafter he was promoted as Senior Obese rer from 04.09.1976 in pay scale of Rs.4000-6000 and redesignated as LA-I] from 23.12.1980, was again promoted as LA-I from 03.03.1986 in the pay scale of Rs.4500- 7000, 2(b). This Tribunal by order dated 05.12.1994 in O.A.S34/1990 allowed the pay scale of Rs.425-700 to LA-U from 23.12.1980. Since the respondents did not grant him benefit of 2" ACP as per order of DoPT OM of 09. 08. 1999 he fled O.A.166/2004 and O.A.222/2004 which were allowed by the Tribunal vide order dated 05.07.2005 directing the respondents to ean benefit of 2" ACP ta him in pay seale of Rs.6500- ~ 3 SAE A see a ae ee Ss SOO on cornpleli LON OL 24 Years OF SSPVICEe, 3 BAD V2OES aie). This order of the Tribunal was challenged before High Court mm Wert | which was disposed of on 01.08.2006 directing the respondents ¢ to grant benefit of 7° ACP to him. Thereafter the respondents challenged that Nigh Court order In Supreme Court in Civil Appeals No.S353/2008 and 5355/2008, but these appeals were also dismissed by Supreme Court order dated 13 (1.2013. Since the order of the High Court thereby became final, the respondent No.3 by order dated 22.05.2014 granted 2° ACF to the applicant after approval of Competent Authority Le. Ministry of Water Resources, from the date of DoPT OM dated 09.08.1999, Based on earlier judgment of CAT, as per Setter of Ministry of Water Resources dated 22.08.2014, three officials were treated to have been placed on personal promotion and granted higher pay seale of LA-I on 23.12.1980 ie. prior to the date of their regular promotion as LA-I. Therefore, the regular promotion became inoperative and stood ignored for grant of 2" financial upgradation under ACP Scheme. aid). In view of grant of 28 ACP from 09.08.1999, the applicant subraitted option for fixation of pay under FR-22 Kal) on 27.05. 2014, i ough as per administrative order dated 2 2.05 2014 feels promotion as LA-L was ignored bat the applicant claims that his pay has been Sea's *¥ oy wrongly £ fixed by the respondents by order dated 06.08.2014 withdrawing Iya Mawes Seeds SRE peSS Tee pS Sans AONE TGS and io ths regular PuACoON nal pa POSE AOtiGn given 33 to > Rien BLOM. G3.G3, L986 8ng i. IS 4 QOAZT/2018 pay has been fixed at Rs.7300/- in pay scale of Rs.6500-10500, but it should have been fixed at Rs.7700// as on 01.08.2001 without withdrawing the functional promotion.
Sieh. Agerieved of that order he ied a representation on 05.09.2014 along with clarification dated 16.02.2000 but the respondents replied on 11.12.2014 rejecting his request. The applicant retired on 31.05.2002 and feels that the reply of the respondents is unfair to him.
Therefore, this O.A. has been filed.
3, Contentions of the parties :
A. Applicant :
In the O.A,, rejoinder and during arguments of his counsel, the applicant has contended that -
3{a). action of the respondents withdrawing regular promotion of the applicant granted In 1986 is legal and arbitrary, and he has been deprived of his legitimate right for grant of 2° ACP: 3{b). as per administrative order dated 22.05.2014. while regular promotion was ignored for grant of 2° ACP, the Respondent No.3 has wrongly withdrawn the applicant's regular promotion without any authority and law which is in violation of Article 31(1} of the Constitution of India:
Sfe}. the respondents have provided benefit of 2" ACP to all other employees except him and two others, thereby discrimination against him.
Usa OARLOTS Wrihdrawal of his promotion has been done without any notice or uppartunity to present his case, so it is in violation of principles of natural x eat RY Sons ip ean stone GY oa ge, whys & seen 3 YEO contention of the PESDONGAES Tat Ne Mag SS By x Se Se Sh, Mme Nas cemed > peen given all requisite clarifl ications, written cammunication with rules eic and thereon has no reason to file the present O.A. Since the applicant was entitled for grant of benefit of 2") ACP as per Court orders, the earlier premotion given to him as LA-[ should ne en withdrawn fro am him sinee there is no such Court order. Since the applicant had been promotion as LA-| aye rom 03.03.1986, it stood ignored for arant of 2° financial upgradation benetit under the ACP Scheme;
See). instead of fixation of pay based on 2™ ACP benefit, the fesponde ents have wrongly withdrawn the earlier pay fixation of the applicant which was based on his promotion. The Tribunal ae Ss considered the facts and issues and thereafter allowed evant of 2° ACP benctit to him but while revising Nis pay, the respondents have fixed Ht in the nay scale of Ra.6800- 105800 as on 09.08, 1989 thereb revising his pay oe from 1986;
3. action of the respondents In withdrawing the ecarller pay fixation afer 25 years and that too after the retirement of the apnlicant is against. the S ope me Court decision in case of Sfate af Puntab and a OA.2Y 2013 be allowed and the pay of the applicant should be refixed at Rs.7700/- and not on Rs. 7300 on grant of benefit of 2" ACP.
B. Respondents :
In reply, sur-rejoinder and during arguments of their counsel, the respondents have contended as under :
3{g}. the applicant was given all requisite clarification, written communication with copy of rules, etc and he has no reason to file the 'present application by misinterpreting the facts and arriving at wrong conclusions based on his whims. Therefore, the O.A. should be dismissed with cost;
3(h). The applicant got two promotions and 1] ACP upgradation as follows >
i) - Date of joining, grade & 26.08.1964, Observer pay scale Rs.260-430
ii) Date of promotion (1%), 04.09.1976, Sr. Observer post & pay scale Rs.380-560 (Rs.$000-6000) Merged as LA-II wef, 23.12.1980 ii} Date of promotion (2"5, 03.03.1986, post & pay seals LA-I Rs.425-760 (Rs. 4500-7000) Pay fixed as per FR 22 (DQ)
iv) Date of 2" ACP. pay scale 09.08.1999 granted as per Supreme Rs.6500-1 0500 Court's judgement dated (as per promotional hierarchy 1S.01.2015 ie. RA).
Supreme Court decision dated vou OA 2201S ADs the applicant's contention that his regular promotion has pscome inoperative and, therefore, it should have been ignored while é Eve Serge? SE Ne ex Sey ee Sa ek - seo F ALY ar benen! of pay Nastion based on his 2" functional promotion as LA-[ from 03.03,1986 in the pay scale of Rs 425-700 / (ater revised to Rs. 1400-2500). Tf benefit of tis pay fixation was to be retained, it would 3 have been counted as his 2" promotion and he would not have been enliiied for grant of 2"° ACP tn the pay seale of Rs.G500-1 OS00 in terms of But by not granting 2" ACP to the applicant, the respondents would have committed contempt of the PY 13.11.2015. Hence & was eranted to him:
ae : CNSR RR Xe sia 3 bert 33 Ah. the other employees junior to the applicant in pay scale of ee. ~ Rsa.4e5-700 not promoted as LA-I were eligible for 2" ACP in the next pay scale of Rs.6500-10500 When the applicant was working as LA-II ay pay stale of Rs.360-560), he was granted higher pay seale of JOO applicable to the post of LAcI in terms of earlier onder of ECs AT dated OS.12,1994 from 23.12.1986 Le &. prior to his usual second Gunctional promotion as LA-{ in 1986;
p aeeeRS eae eon gad PEER og anaes Bact oy gra we ha omg Bod Spear aneen ne, x See SRR SE PUACES ek meni of 2° AUP to him, his earlier oramotion as LA-! kad hecome = he ioperative. In the. grade. of LA-] (may. ee Re deh. 700) om | PER OER POR wee nee at ew ere Ue as een Va, ISOS, SYaniOoS OF DSRS Or bay ireation fo him, WOU have been 8 QOABT2015 counted as 2" promotion and then he would not have been entitled for benefit under 2" ACP in the scale of Rs.6500-10500. Some employees junior to the applicant as LA-II, who had not received regular promotion became eligible directly for 2° ACP in the pay scale of Rs.6S00-10509, but this was not an anomaly in pay as per the provisions of ACP Scheme;
3th). the earlier post of Sr. Observer was merged under the unified cadre of Laboratory Assistants in terms of Tribunal's previous order dated 05.12.1994 in O.AS34/1990. While disposing of the Writ Petition No. 7835/2005, the Bombay High Court in its order dated 01.08.2008 stated that Respondent Nos.1 to 3 would be entitled for 2" financial upgradation in the pay scale of Rs.6500-10500 from 09.08.1999 subject to sereening and in accordance with the ACP Scheme. This order was complied by the respondents through order dated 06.08.2014 with grant of 2° ACP benefit to the applicant in the pay scale of Rs.6500-10500 from 09.08.1999 after proper scrutiny of his case;
3{m). as per Supreme Court order dated 13.11.2013 upholding the decision of this Tribunal as well as Bombay High Court, the applicant has been granted benefit of 2° ACP from 09.08.1999 based on screening of his case and as per provisions of DoPT OM dated 09.08.1999 on the ACP Scheme:
Bay the contention of the anplicant is not correct that while granting 2' ACP to him the earlfer promotion had to he ignored because & s rp af 2 ACP benefit but it was Trounal and the High Court, From 01.08.2001, the applicant's basic pay was revised to Rs.7300/- fom his earlk er pay of Rs.7000/- wih all atiencant benefits from 09.08.1999:
Aioh. as recorded by Oepartmental Selection Committee in its Minutes dated 09/10.05.20\4. the first promotion of the applicant was as e Sr. Observer and the second promotion as LA-[ in pay scale of Rs.425- OO Com 23.12.1980 & had become inoperative and was to be lmmored for Be ihe directions of the Court, Accordingly it was done:
Ain). while refixing his pay thereafier the benefit of promotion to the applicant to the post of LA-] was not revoked but it became inoperative when 2 financial upgradation was granted io him in terme of DoPT OM dated 09.08.1999. While granting 2° ACP benefit to him, his ad ' é basio pay was revised as Rs.7300/- from 01.08.2001 with other attendant Raggy oe dies ane bee apd ey Bie PES y> Abacd ey FN ee ag Bk ag SEA benoitls. Sines the order of the Tribunal directed orant of benefit of 2 ACF to him, it was done and his pay was accordingly revised:
hee the contention of the applicant that his 2° promotion as LA-] should not have been withdrawn while fixing his pay under FR 220 Wax) 2: LAGE Ag eS eRe I Pe phys NENT EP OREN EEE ex bas ee E ' is mol as per the provisions af ACP Scheme, The contention af the.
Asels erie 2 meplivee ' at Se heer applicant that His carder gay UNallon was wilhdrawn without giving a iQ OA ZL/20IS notice is misleading. His case was different from others who were working as LA-II in the revised pay scale and to whom revised pay scale of Rs.425-700 was granted from 23.12.1980 in terms of CAT Order dated 05.12.1994 and Hmally granted 2" ACF on completion of 24 years of service in promotional hierarchy in the pay scale of Rs.6$00-10500 from 09,08. 1999: and Sir}. as per order of the Tribunal upheld by the High Court and Supreme Court, his promotion as LA-] was lnored while granting him benefit of 2° ACP. Thus the benefit of applicant's promotion as LA-I has not been withdrawn but it was adjusted while refixing his pay on granting 2" ACP 3(s). With respect to contention of the applicant that he was not oradation ee) given notice before refixing his pay on grant of 2° financial up under the ACP Scheme, the respondents have contended that as per Supreme Court decision in case of Aligarh Muslim University and others Vs. Mansoor Ali Khan, Civil Appeals No.4780/2000 with No.4781/2000 dated 28.08.2000, reported In (2000) 7 SCC 529, ther was no need for it and serving of such a notice would have amounted to only useless formality.
Therefore, the O.A. should be dismissed.
terse We have advanced by counsels of the applicant ar ach). As per details g 04.09.
erver from { By i = 3 : 1980.
Rares 2 SNe. PEN ne O86. Thus by the received two functional promotions.
AS per provisic on of the A dated G9 unable to get promoted qUriNg le = availability of promotional av ENUSS, bad G ase att me promotion, his In the perused the O.A. meme slong ¥ er Hled by the resnc ondents, re 26.08.1964, the applicant gol 8.19899. an employee if asses e he could not get Ruther promoted curing 3 ed for grant of 2 financial u s entitlement was for only OADNIOLS Analysis and conclusions 2 with os yoinder of 'the partics and co nside ered ine arguments and the respondents.
é respondents in Para 3{h) above, his Sarst s a Py a we Gyre 1976, The post af Sr Observer was yy Thereafter he got 2° promotion as < fime the applicant had already P Scheme notified by DoPT OM Ne seed to be Ait for promotion was he was enlilled ke fiest financial ext Le nat entitied for any : ag 2 St ge " pigeg ey ete sey at Ube raualor PTESEHT CASS SUICE | received ard Sonar " 3 * . soy X . ¥ myo functional promotions as Sr. ObserversLA-1 Ue ax Rees SAAS 2 Suet Scher m4 3 2538 cae Soke cin te ye Sy ng of Tt S SUPERS was pol enlitied for grant of am 12 QA SYZ01S financial upgradation, However, because of order of the Tribunal in O.A.166/2004 and O.4,222/2004 dated 05.07.2005, the respondents were directed to grant the applicant 2"° financial upgradation under the ACP Scheme in pay scale of Rs,6500-10500 on completion of 24 years of service and dismissal af challenge to it by the High Court and Supreme Court, in order to avoid contempt of courts the respondents granted him 2° financial upgradation under the ACP Scheme from 09.08.1990 by order dated 22.05 20) 4.
Ad). | From the above facts it js clear that although the applicant Was not entitled for any financial upgradation under the ACP scheme, because of the Court orders he came to be granted 2" financial upgradation under the ACP Scheme from 09.08.1999. When this upgradation was granted his pay had to be refixed As without withdrawing the earlier 2° functional promotion to the applicant, the benefit of 2% ACP was granted to him and his pay as revised as Rs,7300/- from 09.08.1999 jn the pay scale of Rs.65 00-10500 from pay in the earlier pay scale of Rs.425-700 (subsequently revised to Rs. 1400- 2300). Therefore, the contention ef the applicant is false that without giving hin prior notice the benefit of hig 2°: functional promotion was Withdrawn by the respondents.
de}. As ecplined by the fspondents, the second finetional Promotion received by the applicant fram 1985 was not withdrawn, Ui so pened "
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5. Decision -
The OLA. is dismissed. No casts.
_(Mrs.Hatvinder Kaur Oberoi) (Dr. BhbeWan Saffayy Member (1) Member (3).
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