Central Administrative Tribunal - Delhi
Shri Salimuddin T.No.2520 (Instrument ... vs The Union Of India (Through Secretary) on 8 December, 2011
CENTRAL ADMINISTRTIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.1287/2011 New Delhi, this the 8th day of December, 2011 CORAM: Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Salimuddin T.No.2520 (Instrument Mech.), Gp C Defence Civilian now promoted as CM-II, Aged about 56 years, S/o Shri Hakimuddin, Presently serving in EME in 505 Army Base Workshop, Delhi Cantt Under DGEME in MGOs Branch AHQ, Ministry of Defence, R/o Vill. Bichola Colony, Incholi, Meerut Applicant (By Advocate: Shri V.P.S. Tyagi) Versus 1. The Union of India (Through Secretary), Ministry of Defence, South Block, New Delhi 2. The Secretary, Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training) North Block, New Delhi 110 001 3. The Director General of E.M.E., (Civ-IV) MGOs Branch, AHQ DHQ P.O. New Delhi 4. The Commandant, 510, Army Base Workshop, Meerut Cantt (UP) 5. The Commandant, 505, Army Base Workshop EME, Delhi Cantt. Respondents (By Advocate: Shri K.R. Sachdeva) O R D E R
By Dr. Veena Chhotray:
The applicant has presently been working as a Charge Mechanic (CM), a Defence Civilian, serving in the EME in 505 Army Base Workshop, Meerut Cantonment under the Ministry of Defence. Through this OA, the applicant is agitating claims regarding grant of ACP in the appropriate scale. Besides a prayer for setting aside the impugned order dated 9.8.2010 read with the speaking order dated 2.8.2010, the following reliefs have been sought:
8. (a) Quash and set aside the impugned order (A-1) and the respondents be directed to grant to the applicant 1st ACP in the Pay Scale of Rs.5000-8000 w.e.f. August 1999 and 2nd ACP in the Pay Scale of Rs.5500-9000 w.e.f. Feb. 2003 as per his entitlement in accordance with the provisions of DOP&T Scheme on the subject as is subsequently clarified and also the government instructions as applied to Part B Cadre Trade on par with his juniors.
(b) Refix the applicants pay accordingly and workout the consequential benefits and arrears of pay etc. which may be paid to the applicant with 18% interest there on from the date it fell due till the same is paid.
(c) Before making above refixation the applicants pay need be refixed in the Pay Scale of Rs.4500-7000 by grant of MCM grade which do not count or promotion and the Respondents be directed to grant the same w.e.f. 1.1.96 which could be operative upto 9.8.99 as has been done in other cases pursuance to Govt. instruction.
(d) Direct the Respondents to place before the Honble Tribunal detailed communication made to the DOP&T for clarification in the present issue if any.
(e) Pass any order or direction as deemed just and proper in the facts and circumstances of the case with award to costs.
2. The learned counsels, Shri V.P.S. Tyagi and Shri K.R. Sachdeva would argue respectively for the applicant and the Respondents.
3. The present OA is fourth in the series. While the applicant has been granted the benefit of second ACP in the Scale of Rs.5000-8000 w.e.f. 01.02.2003 after completion of 24 years of service; his claim is for grant of first ACP in the pay scale of Rs.5000-8000 with effect from August, 1999 and the second ACP in the pay scale of Rs.5500-9000 with effect from February 2003.
The request on these lines had initially been rejected by the respondents vide their orders dated 11.10.2004 and 8.12.2004. On a challenge vide the first OA No.1082/2005, the Tribunal by its order dated 19.7.2006 set aside those orders on the ground of non-consideration of the clarification by the Ministry of Defence vide its letter dated 10.11.2001. The reasoned and speaking order dated 30.10.2006 passed by the Respondents was again assailed in the second OA No.2672/2006. By its order dated 3.6.2008, the Ld. Coordinate Bench of the Tribunal found the impugned order having bee issued after thorough examination of the case. However, since as per Condition 11 of the ACP Scheme, any interpretation/clarification with regard to the scope and meaning of promotion of ACP Scheme was to be given by the DOPT, the respondents were directed to refer the case of the applicant by placing full facts to the DOPT and take further action accordingly. It was made clear that this was without expressing opinion on the merit of the case.
Once again an order dated 29.10.2008 passed by the Respondents in consultation with the DOP&T became the subject of challenge in the third OA No.2815/2008. By the Tribunals order dated 3.12.2009, a repeat reference to the DOP&T in the light of the detailed observations in the body of the order was directed. For this purpose, the applicant was directed to make a compact factual statement of his claims to be submitted to the MoD, which in turn was to seek the advice of the DOP&T. Accordingly, a detailed representation dated 31.12.2009 (Annex A/8) was made by the applicant, which has been rejected by the respondents vide their speaking order dated 2.8.2010 as communicated vide the order dated 9.8.2010. This order has occasioned the present OA.
4. Very briefly stated, the service particulars of the applicant are that he had initially been appointed as an Instrument Mechanic (Mate) with effect from February, 1979. Further, it is revealed that though the applicant had applied for direct recruitment as an Instrument Mechanic, he could not be given that post because out of the three prescribed eligibility conditions, though satisfying the ones relating to Matriculation and ITI Certificate, he was deficient in the three years experience in the line. Whereas the post of Instrument Mechanic carried the scale of Rs.380-560, the prevailing scale of Instrument Mechanic (Mate) was Rs.210-290. The appointment of the applicant, though against the sanctioned post of Instrument Mechanic, was in a much lower scale, two rungs below. In between there are posts of Part B category posts such as Turner, Fitter etc in the scale of Rs.260-350. On completion of 3 years service, the applicant had been given the scale of Instrument Mechanic with effect from 1982.
4.1 The pay scales mentioned in Para 4.1 above represent the 3rd CPC scenario. After the 4th CPC, the pay scale of Rs.380-560 was revised to Rs.1320-2040 as a Highly Skilled Grade-I (HS-I) category. The pay scale of Rs.260-350 was revised to Rs.950-1500 and on passing the trade test granted the higher scale of Rs.1200-1800 as Highly Skilled Grade-II. The pay of the applicant was revised and refixed in the HS-I Grade of Rs.1320-2040.
4.2 After the 5th CPC, consequent to restructuring of cadre of Artisan Staff in Defence Establishment, Highly-Skilled Grade-I and II posts were merged and given an integrated revised pay scale of Rs.4000-6000/-. Below this was the Skilled Grade in the pay scale of Rs.3050-4590 and above it the scale of Master Craftsman in the scale of Rs.4500-7000. These were made applicable from 1.1.1996 (Annex. A/3). The pay of the applicant was fixed in the scale of Rs.4000-6000 as Highly Skilled Tradesman Grade w.e.f. 1.1.1996.
4.3 The contentious issue in the present case is whether the placement of the applicant from the pay scale of Rs.210-290 to the higher scale of Rs.380-560 is to be treated a mere restoration of the original scale in the context of the initial appointment or whether it is to be treated as promotion. The claims of the applicant being persistently agitated can hold on, only in the first alternative.
5. In support of his claims, the applicant places reliance on a clarification issued by the Ministry of Defence in consultation with the DOP&T vide their Office letter dated 30.10.2001 (Annex. A/2). Considering the crucial significance of this document, it is being reproduced below in toto:
Subject:-ASSURED CAREER PROGRESSION SCHEME (ACPS) TO EMPLOYEES WHO HAVE PLACED IN SEMI SKILLED GRADE FOR 2/3 YEARS AS A TRAINEE.
A reference was sent to DoP&T for clarifying the position regarding grant of 1st ACP to skilled Grade employees who were placed in semi-skilled Grade for 2/3 years as a Trainee in MoD.
2. DoP&T have offered their comments as under:-
If in respect of Skilled trade recruitment is made against posts sanctioned in the skilled grade (Rs.3050-4590) but the incumbents are allowed semi skilled grade for first two years for direct recruitment with ITI/NCUT Certificate or for 3 years for persons who are promoted from a lower grade after assign the prescribed trade test before they are placed in the skilled grade, then the semi-skilled grade in such cases may need to be viewed only as a trainee scale and such placement in the skilled grade after putting in the specific length of service in the semi-skilled grades may not be treated as promotion/upgradation and may not be offset against entitlement under ACP Scheme. However, in respect of trade where posts may be sanctioned only in semi-skilled grades, if any, then regular incumbents of such posts in semi-skilled grade on promotion to skilled grade, where such avenues exist will be treated as being appointed on promotion and will not be covered by the above clarification. The concerned organizations may take necessary action accordingly.
3. This issues with the concurrence of Defence (Fin./AG) vide their U.O. No.756/PB/01 dated 17.10.2001.
(Based on DoP&T O.M. No.35034/1/2000-Estt. (D) dated 11/14 September, 2001) As per the applicant, his case squarely comes under the aforesaid clarification and the initial period of his working in the lower semi-skilled grade is to be treated only as a training and the subsequent placement in the higher scale is not to be considered as a promotion. This, as a logical corollary, is contended to mean his entitlement for grant of first financial upgradation on introduction of the ACP Scheme in 1999, followed by the second financial upgradation on completion of 24 years of service in 2003. A plea of hostile discrimination has also been raised. Ground 5.4 of the OA raises an objection about the applicant not having been accorded the same treatment as had been given to Part B category Tradesmen and similarly circumstanced persons. In support, examples of certain persons, viz. S/Shri Harbir Singh, S.P. Singh, and Subhash Chander have also been cited in Para 4.9 of the OA.
6. The above contentions of the applicant are not acceptable, as per the respondents. The impugned order states as follows:-
2. AND WHEREAS the subject case has been referred to DOP&T as per the direction of Honble CAT (PB), New Delhi order dt 03 Dec. 2009 and DOP&T vide Dy No.41238/CR/2010 dated 02 Jun 2010 clarified as under:-
As per Order contained in Ministry of Decence ID No.11 (5)/99-D(Civ/I) dated 30 Oct 2001, the employees recruited in Semi-skilled pay scale as Mate against vacancies in Skilled Grade in the pay scale of Rs.3050-4590 are entitled to the benefit of considering their period spent as Mate to be training period. However, the above ID is not applicable to the case of the applicant (Mr Salimuddin), who was appointed in Semi-Skilled grade as Mate against the vacancy of Highly Skilled Trade of Instrument Mechanic (Rs.4000-6000).
As per the ACP Scheme 1st / 2nd financial upgradations are granted on completion of 12/24 years of regular service in the hierarchy if no promotion has been availed by the officer during the 24 years of his service.
The applicant was appointed in Semi-Skilled pay scale as Mate. After three years of service in the grade of Mate he was promoted to the post of Instrument Mechanic Highly Skilled. Accordingly, this promotion would be offset against 1st / 2nd financial upgradation under ACP scheme. Elaborating it further in their para-wise reply 4.4, the Counter Affidavit submits:
From the above, it is clear that the contents of above MOD ID is only applicable to the persons appointed in semi skilled posts against the skilled trades coming under Part-II Cadre in the pay scale of Rs.3050-4590 like Elect (MV), Fitter and Turner. Hence, the said provision of MOD ID is not applicable in case of Shri Salimuddin who was recruited in semi skilled post against Highly Skilled Grade coming under Part-I Cadre in the pay scale of Rs.4000-6000. Unlike the persons recruited in semi skilled post in the skilled trade of Fitter, VM (MV) etc whose pay had been revised in the corresponding pay scale of Rs.3050-4590 after a period of three years, the applicants pay had been revised to the corresponding pay scale of Rs.4000-6000. S his case is not similarly situated. 6.1 The applicants plea of discrimination against those who are claimed to be similarly situated is also stated to be misconceived as per the Respondents. In the para-wise replies 4.2 and 4.3, it is clarified that the Trade of Instrument Mechanic comes under Part-I Cadre, whereas Elect (MV), Fitter etc. are the trades of Part-II cadre. The three cases cited are stated not to be identical with the applicant. In the case of Shri Harbir Singh, the following averment has been made in para 4.9 of the reply:-
It is resubmitted that in his case, the benefits granted to Shri Harbir Singh, the promotion from Elect Mate to Elect (MV), redesignated HS-II and remustered from Elect (Power) to Elect (AFV)) have not been counted as promotions in accordance of Govt. orders vide MOD ID No. II (5)/99-D(Civ-I) dated 30 Oct 2001 and as per SOP, copy of which was issued vide HQ, Base Wksp Gp EME letter No.506/PC/ACP/Est dated 21 Oct 2000. Hence, he has been granted 1st and IInd financial upgradation under ACP Scheme correctly. Thus, his case is not covered under the MoD Clarification dated 30.10.2001. Besides, the SOP issued vide HQrs letter dated 20.10.2010 stated:
Revision/RE-mustering/Re-designation of trades shall not be considered a promotion and all such persons should be provided with the next higher pay scale on completion of 12/24 years of regular service.
7. We have carefully considered the respective submissions and the material on record. We do not find the claims being justified and needing any further pursuance. The reasons for the same are stated below:
7.1 It is not disputed that the initial appointment of the applicant was as an Instrument Mechanic (Mate) in the pay scale of Rs.210-290. This scale was two rungs below the post of Instrument Mechanic carrying the scale of pay of Rs.380-560. Besides, the intervening scale of Rs.260-350 was also there. Whereas the post of Instrument Mechanic was a part A category post, the intervening scale of Rs.260-350 was in Part B category for Turners, Fitters etc. The MoD Clarification of 30.10.2001, on which the applicant is placing reliance, was specifically in respect of recruitments made against Skilled Grades upto the scale of Rs.3050-4590. In such cases a view had been taken that if initially a recruitee is placed in a Semi-Skilled Grade, his subsequent placement in the Skilled Grade on fulfillment of the requisite conditions, is not to offset the entitlement of ACP. However, the post of Instrument Mechanic in which the applicant had later on been restored was in a much higher scale of Rs.4000-6000. This has been clarified by the respondents as a Highly Skilled Grade and thus was not within the scope of the clarification envisaged under the MoD letter of 30.10.2001 7.2 It is not denied that the applicant has been given the second ACP on completion of 24 years of service in the pay scale of Rs.5000-8000. His claim for revamping this benefit would not be entertainable as he has already been given the benefit of a much higher scale of Rs.4000-6000, which in this case is a promotion.
7.3 We also note that the matter has been considered by the Administrative Ministry of Defence in consultation with the Nodal Department i.e. DOP&T on more than one occasion, from various possible aspects and still the case of the applicant has not been found deserving a favourable consideration as per the rules and instructions. Thus, in this case there is no lack of consideration. We do not find a merit in the applicants contention about the respondents view suffering from any non-application of mind, whimsical or arbitrariness. Even a claim of hostile discrimination has not been found to be tenable.
8. Under the circumstances, the prayer vide para 8(c) regarding re-fixation of pay in the scale of Rs.4500-7000 by grant of MCM grade, we had in our earlier order (dated 30.12.2009/OA 2815/2008)found this constituting as a separate cause of action. The relevant para-3 of the order dated 3.12.2009 in the OA 2815/2008 dealing with this issue is reproduced herein below:
3. The claim of the applicant for placement in the scale of Master Craftsman i.e. Rs.4500-7000 (V CPC) before giving benefits of the two claimed ACPs arises out of the decision regarding restructuring of the cadre of the Artisan Staff in defence establishment vide the order dated 20th May 2003 (Annex. A-3). These posts, though forming a part of the newly formed three tier structure were not to be treated as a part of the hierarchy, nor was the placement therein to be treated as a part of the hierarchy, nor was the placement therein to be treated as a promotion. Further, the number of Master Craftsmen was subject of a fixed ratio based on the total sanctioned/authorized strength. Para VI of the order had made clear that this number (not exceeding 25% of highly skilled persons) was to be decided considering the functional requirements of the administrative sections.
Thus, this claim of the applicant for being given the benefits of this grade - which was envisaged only for a limited number of employees had to be viewed in a different context depending upon the factual matrix. This claim is not found to be consequentially linked to the main claim regarding the extent of the ACP benefits, nor has it been considered in either of the earlier OAs.
In the given situation, we are of the view that to do justice to this aspect, it needs to be dealt with as a separate cause of action with supportive factual averments. Hence as per the provision of Rule 10 of the CAT (Procedure) Rules, 1987, this prayer under para 8 (c) of the OA is not being dealt with in this OA, with a liberty, of course, to the applicant to agitate it separately as per remedies available in law. The inclusion of the same plea once again in this OA is barred by the doctrine of res judicata and hence is not being considered.
9. Re-agitation of issues by the Applicant persistently is now bordering on abuse of the process of law. The impugned order passed by the respondents states very clearly as to why the claims of the applicant are not entertainable.
In view of the foregoing, we are of the considered view that the claims in the OA are not found to be justified in accordance with the rules and instructions. The matter needs to be given a quietus. The OA is dismissed with no order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
/pkr/