Central Administrative Tribunal - Mumbai
P. Dhanpal vs Union Of India (Uoi) And Anr. on 18 December, 2002
Equivalent citations: 2004(2)SLJ289(CAT)
JUDGMENT G. Ramakrishnan, Member (A)
1. Applicant aggrieved by A1 order dated 15.11.99 by which his plea to protect the post of Assistant Newsreel Officer in Group-B as a separate cadre was rejected and A-4 order dated 12.8.99 by which the post of Assistant Newsreel Officer Group-B was downgraded to a Group-C cadre of Assistant Cameraman without considering the representation made by the applicant and A-5 order dated 7.1.99 by which the Government approved the merger of the posts of Newsreel Officer with the post of Chief Cameraman and redesignated the same as Chief Cameraman, filed this O.A. seeking the following reliefs:
(i) To quash Annexures A1, A4, A5 and to declare that merging the cadre of Assistant Newsreel Officer (Group-B) with a lower Group(C) post is illegal.
(ii) To direct that the applicant is entitled to continue in a Group-B post or in a similar cadre and not liable to be downgraded to a Group-C post.
(iii) To direct the respondents to remove the anomaly if necessary by prescribing quota in promotion for earlier Assistant Newsreel Officers in the Group-B to the higher cadre in gazetted Group-B, promotional post.
(iv) Grant such other reliefs as may be prayed for and the Court may deem fit to grant and
(v) Grant the cost of this original application.
2. According to the averments of the applicant in the O.A. the Fifth Pay Commission without proper appreciation of different cadres in the department recommended declaration of the cadre of Assistant Newsreel Officer as a dying cadre and also the merger of assistant Newsreel Officer in the Group-B cadre with a Group-C cadre of Assistant Cameraman. The second respondent by A2 letter dated 19.6.97 invited representations from employees for removing the anomalies in the draft recommendations of the 5th Pay Commission. Immediately after A2 applicant submitted A3 representation dated 24.6.97 before the second respondent pointing out the irregularities in the proposed merger and requested for upgradation of his cadre or at least to maintain status quo. According to the applicant the merger of Assistant Newsreel Officer with Assistant Cameraman and merger of Newsreel Officer with Chief Cameraman was made totally ignoring cadre structure, duties, responsibilities and status enjoyed by respective cadres. Duties and responsibilities of Assistant Cameraman could not be equated with the independent responsibilities of an Assistant Newsreel Officer. The respondents did not consider A3 representation properly. They had effected the merger without removing the anomalies. Aggrieved by A4 and A5 applicant submitted A6 review petition dated 18.10.99 before the respondents. Without applying mind to A6 petition respondents gave effect to their earlier orders and rejected applicant's petition as not feasible stating merger as a policy of the State through Al order. Applicant was appointed as Assistant Newsreel Officer in the scale of pay of Rs. 1640-60-2600-EB-75-2900 w.e.f. 17.1.94. The qualification required was higher than that of Assistant Cameraman. They were appointed in the Group-B cadre having independent charge. Their duties and responsibilities were 100% same as that of a Newsreel Officer in the Group-B Gazetted cadre. Both the cadres were entrusted with the responsibilities of shooting Tele films in their respective territorial jurisdiction. Their duties were to set up a Camera Tripod etc. They were to assist the Cameraman while shooting Tele films for the department. The post of Asst. Cameraman was several times inferior to that of an Asst. Newsreel Officer, it was claimed. He submitted that the post of Assistant Cameraman required lesser qualification than stipulated for the post of Assistant Newsreel Officers. The Department recruits them directly in the Group-C cadre in the pay scale, of Rs. 1400-2300. They had no independent charge or no territorial jurisdiction. It was submitted that there were only two Assistant Newsreel Officers remaining in the cadre. There were a total of 13 posts in the cadre of Newsreel Officer in the pay scale of Rs. 2375-3500-the promotional post of the applicant prior to merger. The merger of his the promotional post with the post of Chief Cameraman along with downgrading of applicant to a Group-C post proved fatal to promotion opportunities which existed at the time of entry into service. The merger was effected without providing any quota for Assistant Newsreel Officers in the Group-B cadre to their immediate promotional cadre in the gazetted Group-B as Newsreel Officers or other equivalent cadre. According to the applicant the merger resulted in denial of promotion avenues to the applicant to the post of Newsreel Officer which was a promotional post prior to merger and the applicant was downgraded to Group-C cadre. Hence he filed this O.A. seeking the above reliefs.
3. Respondents filed reply statement resisting the claim of the applicant. Respondents explained that the Films Division was the Central Government film producing organisation of the Government of India, Ministry of Information & Broadcasting. As a Government organisation this Division had a certain role to play in projecting the Plan, Projects, Policies of the Government to nation building efforts on behalf of the other Departments, Ministries, Public Sector Undertakings, etc. Considering the above, Films Division was responsible to produce documentaries short and animation films and news magazines for theatrical release every week throughout India. Apart from this, the Division produces feature/fiction films specially designed for rural audience. Before 1984, the division had been producing 52 weekly newsreels which were being shown through theatre all over the country. Due to advent of television and daily news telecast by Doordarshan, the production of newsreels underwent a change in format in 1984 and weekly newsreels were converted into 26 fortnightly news-magazines. The news magazines concentrate on compact coverage of major topics relating to current affairs. Due to drastic change, working pattern in the Newsreel wing, the Assistant Newsreel Officers and Newsreel Officers posted outstation including those in the Headquarters were engaged for production of news-magazines as well as documentaries. The Fifth Pay Commission had considered the matter in depth and vide Para 73.55 (ii) of their report recommenced as under:
"The Cadre of Asst. Newsreel Officer (5 posts) (Rs. 1640-2900) may be declared as "Dying" Cadre and the existing posts may be merged with the cadre of Asstt. Cameraman (Rs. 1600-2660). The existing incumbent would retain their scale as personal to them. Similarly the cadre of Newsreel Officer (13 posts) (Rs. 2375-3500) may be merged with that of Chief Cameraman (2500-4000). This will in effect mean merger of the Newsreels wing with the Camera wing.
This was circulated by A2 among the staff members. The applicant's representation was forwarded to Government. After examining the case, on merits and on the recommendations of the Fifth Central Pay Commission and Government took a decision for merger of the post of Newsreel Officer with that of Chief Cameraman and the post of Assistant Newsreel Officer with that of Asstt. Cameraman by giving pay protection to the incumbents holding the posts of Assistant Newsreel Officers by Annexures R-3 and R-4 letters dated 7.7.98 and 5.7.99 respectively. The Govt. also decided that the cadre of Asstt. Newsreel Officer be declared as a Dying Cadre. Accordingly the 2nd respondent informed the applicant by A4 order dated 12.8.99. The representation submitted by the applicant on 18.10.99 was replied by A1 memorandum dated 15.11.99. It was submitted that against the decision of the Govt. for merger of the two posts of Newsreel Officer which was one of the cadres of the Newsreel wing of Films Division with Chief Cameraman one of the incumbents holding the post of Chief Cameraman filed O.A. 684/98 before the Mumbai Bench of the Tribunal which was pending. It was submitted that the merger of the post of Asstt. Newsreel Officer with that of Asstt. Cameraman was not a downgradation but redesignation by way of merger. As a result of the merger of the post of Assistant Newsreel Officer and Assistant Cameraman there was a promotion grade of Cameraman Group-B Gazetted in the grade of Rs. 6,500-10,500 and also further promotion to the post of Chief Cameraman in the pay scale of Rs. 7,500-12,000. The Government had merged the posts of Newsreel Wing into Camera Wing as a policy decision for adjusting the employees of Newsreel Wing into Camera Wing as per the functional requirement instead of abolishing them. Hence it was not downgradation.
4. Applicant filed rejoinder. According to him equation of an Assistant Newsreel Officer with that of Assistant Cameraman was not based on any valid material and was liable to be struck down as unconstitutional. It was submitted in the additional reply statement the matter was examined by the Pay Commission who recommended merger having taken into account the nature of duties and responsibilities of the two posts.
5. Heard the learned Counsel for the parties. Learned Counsel for the applicant took us through the factual aspects and submitted that the applicant had been downgraded to a Group-C cadre as Assistant Cameraman on the mere ground that Assistant News-reel Officer's cadre was a dying cadre. He submitted that even if a cadre was to be merged on the reason that it was a dying cadre it should have been effected by merging it with another cadre having equal pay, status, duties and responsibilities or to the immediate higher cadre. According to him merger of the posts of Assistant Newsreel Officer and those of Assistant Cameraman and merger of Newsreel Officer with Chief Cameraman were made totally ignoring cadre structure, duties, responsibilities and status enjoyed by respective cadres. Duties and responsibilities of a Assistant Cameraman could not be equated with the independent responsibilities of an Assistant Newsreel Officer. According to him Assistant Newsreel Officer and Newsreel Officers were both independent posts and the incumbents were responsible for production of newsreels and documentaries independently. They were posted independently incharge of news coverages. They were also given independent charge to cover incidents of importance and of universal value. The Assistant Newsreel Officers never worked under the Newsreel Officers. An Assistant Cameraman required lesser qualification than that stipulated for the post of Assistant Newsreel Officer. According to him the equation of the post of Assistant Newsreel Officer with Assistant Cameraman was not based on any rationale and was liable to be struck down as unconstitutional. Learned Counsel for the respondents reiterated the pleas made in the reply and additional reply statements.
6. We have given careful consideration to the submissions made by the learned Counsel for the parties and the rival pleadings and have perused the documents brought on records.
7. We find that the applicant is aggrieved by the action of the respondents to merge the post of Assistant Newsreel Officer with that of Assistant Cameraman. According to him the same is violative of Articles 14 and 16 of the Constitution of India. Respondents have justified their action on the basis of the recommendations of the Fifth Central Pay Commission and the decision taken thereon. They had also justified their action on the basis of the changed pattern of working of the Film Division of the Department with the advent of Television. Their further case is that it was a policy decision taken by the Government. They cited the judgment of the Hon'ble Supreme Court in State of U.P. v. J.P. Chaurasia, AIR 1989 SC 19, and submitted that as per the ratio of the judgment in the said case equation of posts or equation of pay must be left to the Executive Government and must be determined by expert bodies like Pay Commission as they would be the best judge to evaluate the nature of duties and responsibilities of posts. The learned Counsel for the applicant countered by submitting that even if the cadre was to be merged the same must be done with another cadre having equal pay, status and responsibility and in this case the merger effected by the respondents resulted in the down grading applicant from Group-B cadre to a Group-C cadre. He relied on the judgment of the Hon'ble Supreme Court in S.P. Shiva Prasad Pipal v. Union of India, (1998) 4 SCC 598=1998(3) SLJ 108 (SC), and submitted that the rules governing equal posts for merger of cadres given by the Hon'ble Supreme Court in this judgment if applied to the post of Assistant Newsreel Officer and the Assistant Cameraman, the action of merger was ultra vires.
8. We find that the Fifth Pay Commission while prescribing the revised pay scales for different categories of staff in Para 73.55(ii) of their report recommended as follows:
The Cadre of Asstt. Newsreel Officer (5 posts) (Rs. 1640-2900) may be declared as "Dying" cadre and the existing posts may be merged with the cadre of Asstt. Cameraman (Rs. 1600-2660). The existing incumbents would retain their scale as personal to them. Similarly the cadre of Newsreel Officer (13 posts) (Rs. 2375-3500) maybe merged with that of Chief Cameraman (2500-4000). This will in effect mean merger of the Newsreel Wing with the Camera Wing.
9. Respondents by A2 circular dated 19.6.97 circulated the report of the Fifth Pay Commission pertaining to Film Division contained in Paras 73.54 and 73.55 to all the employees seeking their representations if any against the said recommendations so that the same could be examined and consolidated proposal could be sent to the Ministry, for being sent to the Implementation Cell of the Ministry of Finance. We find that pursuant to this, applicant had submitted A3 representation dated 24.6.97. Respondents have considered the representation and took a decision to declare the post of Assistant Newsreel Officer as a dying cadre and issued R-4 letter dated 5.7.99. The said letter reads as under:
Government of India Ministry of Information and Broadcasting 'A' Wing Shastri Bhawan, New Delhi-110001 No. A-42020/33/97-F (A) (Pt. C.I.) Date 5.7.99 The Chief Producer Films Division 94 Peddar Road Mumbai-26.
Sub: Implementation of the recommendations of the 5th Central Pay Commission.
Sir, I am directed to refer to this Ministry's letter No. A-42020/33/97-F(A) dated 13.11.97 and letter No. A-42020/33/97-F(A) (Pt. C-I) dated 7.7.98 and to say that the recommendations contained in Paras 73.54 and 73.55 (ii) of the report of the 5th Central Pay Commission regarding merger of the post of Assistant Newsreel Officer with the post of Assistant Cameraman in the Camera Wing has been considered by this Ministry and it has been decided to merge the posts of Assistant Newsreel Officer in the scale of pay of Rs. 1640-2900 (Pre-revised) with the posts of Assistant Cameraman, in the revised scale of pay of Rs. 5000-8000/(Pre-revised Rs. 1600-2600). However, the existing incumbents of the pre-revised scale of Rs. 1640-2900 as personal to them.
2. The cadre of Assistant Newsreel Officer is hereby declared as a 'dying' cadre.
3. This order would take effect from the date of issue.
4. This issues with the approval of Integrated Finance division of Integrated Finance division of Ministry of I & B vide their U.O. No. 560/99-Fin. II dated 25.6.99.
Yours faithfully, Sd/- R.N. Malhotra Dek Officer.
10. Pursuant to the above letter second respondent issued A4 order which is one of the impugned order in this O.A. The said A4 memorandum dated 12.8.99 reads as under:
No. A-11015/1/98-Est.1 Films Division Ministry of Information & Broadcasting Government of India 24-Dr. G. Deshmukh Marg, Mumbai-26 Dated the 12th August, 1999.
ORDER In pursuance of the recommendations of the 5th Central Pay Commission vide Paras 73.54 and 73.55 (ii), the Government of India, Ministry of Information and Broadcasting vide their letter No. A-42020/33/97-F(A) (Pt. C-I) dated 5th July, 1999 have approved the merger of the post of Assistant Newsreel Officer with the post of Assistant Cameraman in the Camera Wing of the Films Division. Consequent upon merger, the post will be henceforth redesignated as Asstt. Cameraman in the revised pay scale of Rs. 5000-150-8000. However, existing incumbents of the post of Assistant Newsreel Officers will retain their pre-revised scale of Rs. 1640-60-2600-EB-75-2900 which will be replaced in the revised scale of Rs. 5500-175-9000 as personal to them.
2. Government of India, Ministry of Information & Broadcasting have also declared the cadre of Assistant Newsreel Officer as a 'Dying Cadre'.
3. On the merger of the post of Assistant Newsreel Officer with the post of Assistant Cameraman, the headquarter of the post of Assistant Newsreel Officer will correspondingly be the Headquarters of the post of the Assistant Cameraman with immediate effect and until further orders.
Sd/- Kirti K. Gupta Sr. Administrative Officer For Chief Producer
1. Shri S.P. Chauhan, Asstt. Newsreel Officer, Films Division, Jaipur.
2. Shri P. Danpal, Asstt. Newsreel Officer, Film Division, Thiruvananthapuram.
Copy to etc. etc.
11. Against the above order applicant submitted A-6 representation addressed to the second respondent and he received A-1 reply dated 15.11.99 which is also impugned in this O.A. The same reads as under.
No. A-11015/1/98-Est. 1Films Division Ministry of Information & Broadcasting 24-Dr. G. Deshmukh Marg, Mumbai-26 Dated the 15th November, 1999.
MEMORANDUM Sub. Representation for review of the post of Assistant Newsreel Officer which was re-designated as Assistant Cameraman.
With reference to his representation dated the 18th October, 1999, on the subject noted above, Shri P. Dhanpal, Assistant Cameraman posted at Thiruvananthapuram is informed that his representation has been examined by the Competent Authority but regret to inform that it is not feasible to keep the cadre of Assistant Newsreel Officer as separate cadre due to the following reasons:
1. The cadre of Assistant Newsreel Officer with 5 posts in the pre-revised scale of Rs. 1640-2900 have been declared as 'Dying Cadre' by the Govt. on the recommendations of Fifth Central Pay Commission.
2. While merging the cadre of Assistant Newsreel Officer as Assistant Cameraman, the existing incumbents have been allowed to retain their pre-revised scale of Rs. 1640-2900 in the revised pay scale of Rs. 5500-175-9000 as personal to them.
3. The decision taken for merger of the post of Assistant Newsreel Officer as Assistant Cameraman is a policy decision taken by the Government.
Sd/- Kirti K. Gupta Sr. Administrative Officer for Chief Producer Shri P. Danpal Assistant Cameraman Film Division Ministry of Information & Broadcasting Govt. of India CGO, Complex Poonkulam Vellayani Post, Thiruvananthapuram--695 522 We note from the Fifth Pay Commission recommendations that the Pay Commission had declared the cadre of Assistant Newsreel Officer as a dying cadre and the Govt. has accepted the same. When it is declared that the cadre of Assistant Newsreel Officer is a Dying cadre and it is merged with the cadre of Assistant Cameraman in our view the same would mean that the vacant posts of Assistant Newsreel Officers are merged with the cadre of Assistant Cameraman. We come to this conclusion especially because in R-4 letter it had been stipulated that the existing incumbents would continue to be in the scale of Rs. 1640-2900 as personal to them. Further we are of the view that if all the posts of Assistant Newsreel Officer are merged, then the question of calling the cadre of Assistant Newsreel Officer as a Dying Cadre does not arise at all because the Cadre itself does not exist. Thus if the Assistant Newsreel Officer is a Dying cadre and the incumbents of the Assistant Newsreel Officer were to be continued in the scale of pay of the Assistant Newsreel Officer, the incumbents could not be treated as Assistant Cameraman. Moreover a person like the applicant who had been directly recruited as an Assistant Newsreel Officer in Group-B non-gazetted could not be equated as an Assistant Cameraman which post is admittedly in Group-C even if his pay scale is protected. Such an action of the respondents would be illegal and unreasonable and violative of the provisions of Fundamental Rules.
12. Apart from the above, we find from R-4 which we have reproduced above that there was no direction to merge the incumbent Assistant; Newsreel Officers with Assistant Cameraman. When we read A-4 we are of the view that the Department was redesignating all the posts of Asst. Newsreel Officer as Assistant Cameraman and this is cause of the grievance of the applicant. They had perhaps started treating him as an Assistant Cameraman. 13. In S.P. Sivaprasad Pipal v. Union of India and Ors.(supra) Hon'ble Supreme Court held as follows:
5. However, when different cadres are merged certain principles have to be borne in mind. These principles were enunciated in the case of State of Maharashtra v. Chandrakant Anant Kulkarni (SCR at p. 678) while considering the question of integration of Government servants allotted, to the services of the new States when the different States of India were reorganised. This Court cited with approval the principles which had been formulated for effecting integration of services of different States. These principles are: In the matter of equation of posts (1) where there were cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:
(a) Nature and duties of a post;
(b) Powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged;
(c) The minimum qualifications, if any, prescribed for recruitment to the post; and
(d) The salary of the post.
This Court further observed that it is not open to the Court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate.
14. Learned Counsel for the applicant citing the above submitted the cadre of Assistant Newsreel Officer and Assistant Cameraman cannot be merged on the basis of the above principles laid down by the Hon'ble Apex Court. On going through the duties and responsibilities of the posts in the two cadres we find that the two cadres cannot be merged straightaway. Perhaps the first respondent and the Fifth Pay Commission were also aware of the same and that is why they did not merge the two cadres straightaway. They had ordered merger and declaration of one of the cadres being a 'Dying' one. Thus it cannot be held that unequals have been treated as equals as only vacant posts had been merged. Moreover, no new cadre is formed in the present case.
15. As regards the cadre of Newsreel Officer is concerned the same had been merged with that of the Chief Cameraman. In this case the pay scales are same. We are of the view that on the ground of the post being a promotional post of Assistant Newsreel Officer, the relief of interference by this Tribunal in A5 is not called for. Moreover effect on the promotional chances cannot be a reason for interference.
16. Thus, on the basis of the grounds advanced by the applicant, materials placed before us and as per the law laid down by the Supreme Court in the above cited case, we hold that the reliefs sought for by the applicant for quashing A1, A4 and A5 cannot be granted. At the same time what we find is that the respondents had redesignated the applicant herein who had been working as Assistant Newsreel Officer a Group-B post as Assistant Cameraman a Group-C post though the Govt. had not abolished the cadre. Therefore we hold that the incumbents of the Asst. Newsreel Officer cadre have to be continued as Assistant Newsreel Officers, eligible for the conditions of service applicable to them.
17. In the light of the foregoing while declining to interfere with A1, A4 and A5 we direct the respondents to continue the applicant as Assistant Newsreel Officer and grant him the benefits as due to him in accordance with the conditions of service applicable to him, as stated in the foregoing paragraphs.
18. We dispose of the original application as above with no order as to costs.