Central Administrative Tribunal - Cuttack
Biswajit Pandab vs Aviation Research Center on 24 September, 2024
1 O.A.No. 260/00076 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00076 of 2021
Reserved on 19.09.2024 Pronounced on 24.09.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Biswajit Pandab, S/o- Bibekananda Pandab, R/o- At/Po-
Mangarajpur, Via: Charbatia, Cuttack-754028, Odisha at
present working as JFA (PMA), Para Dispatch Section,
ARC, Charbatia, PIN-754028.
......Applicant
VERSUS
1. Union of India represented through the Special
Secretary, ARC Hq. Cabinet Secretariat, East Block-V,
RK Puram, New Delhi-110066.
2. Director General of Security, Aviation Research Centre,
Cabinet Secretariat, East Block-V, RK Puram, New Delhi-
110066.
3. Secretary, Department of Personnel and Training,
Government of India, North Block, New Delhi-110001.
4. Joint Director (A), ARC, Charbatia, PIN-754028, Odisha.
......Respondents
For the applicant : Mr. P.K.Das, Counsel
For the respondents: Mr. M.R.Mohanty, Counsel
2 O.A.No. 260/00076 of 2021
O R D E R
SUDHI RANJAN MISHRA, MEMBER (A):
The applicant has filed this OA praying for quashing the Letter No. IX(1)/ARC/P.VIII/2019-649, dated 11.9.2020 inter alia stating that he joined in service under the respondents as Para Maintenance Assistant (PMA) on 06.05.2013; subsequently, on 19.11.2014 the PMA was redesignated as Junior Field Assistant (Para Maintenance Assistant). Thereafter, Cabinet Secretariat issued Notification No. 10/1/2020-EA-II-1136 dated 13.07.2020 revising the Recruitment Rules thereby redesignating the JFA (PMA) as Multi Tasking Staff (MTS) and the aforesaid notification was given effect to by respondent No.2 vide Circular No. IX(1)/ARC/P.VIII/2019-649, dated 11.9.2020, which is bad in law. According to him, the post of PMA was in Group-C category and MTS was in Group-D category whereas by the notification clubbing the PMA with MTS amounts to downgrading the status of PMA, which is not permissible in law. It is submitted that the applicant was appointed as PMA, which was subsequently redesignated as JFA (PMA) and the duty of the said post are somehow technical in nature, they work under the Jr. Technical Officer as Para maintenance Assistant 3 O.A.No. 260/00076 of 2021 and the duties of the MTS is/was basically of Tailoring, Cobbler, Cook, Porter works, Painter, Horse keeping etc. Now, by virtue of bringing JFA (PMA) with the MTS, the nature and duties of JFA (PMA) changes, which is bad in law. Therefore, according to the Ld. Counsel for the applicant, the notification issued by the Government is liable to be set aside. To substantiate that the vested right accrued on an employee, over the years, cannot be taken out by subsequent amended rules as has been done in the instant case, he has relied on the decision of the Hon'ble Apex Court in the case of UOI Vs. Tushar Ranjan Mohanty, 1994 SCC (5) 450. Further, he has placed reliance on the decision of the Hon'ble Apex Court in the case of Income Tax Officer, Alleppey Vs. M.C.Ponnose & Ors., AIR 1970 SC 385, to justify that rule cannot be enforced retrospectively as has been done in the instant case. Hence, he has reiterated the prayer made in the OA.
2. Respondents filed their counter contesting the case of the applicant, which has been reiterated by Ld. Counsel for the respondents in course of hearing inter stating that after implementation of 6th CPC, DoP&T vide OM dated 30.04.2010 advised all Ministries/Deptt to stop further recruitment in Group-D, and, existing Group-D personnel be 4 O.A.No. 260/00076 of 2021 placed in Group-C with Grade pay of Rs. 1800/- (now level 1 as per 7 th CPC) and all employees placed under this upgradation need to be utilized for multi tasking. The DoPT also instructed that the Deptt. to prepare their proposal and amend the RRs for the erstwhile Group-D post on the above lines by adopting the designation of Multi Tasking Staff. Thereafter, as per guidelines of DoPT OM, Recruitment Rules, 2010 in respect of Junior Field Assistant has been revised and notified vide Cabinet Secretariat notification dated 13.07.2020. Respondents submitted that duties attached to the post of MTS is illustrative and exhaustive and there are no changes w.r.t. the eligibility, pay and promotional avenues. Since, the decision was taken as a matter of policy, which needs no judicial interference and, therefore, OA is liable to be dismissed.
3. We have considered the submissions of the parties and perused the records.
4. The Cabinet Secretariat notification No. A-
49011/2/2006/EA.I(i)/4399 dated 04.11.2010 merging different cadres with redesignation was notified in supersession of all earlier headquarter memos vide impugned OM dated 19.11.2014. We have 5 O.A.No. 260/00076 of 2021 come across that similar matter came up for consideration before the CAT, Allahabad Bench in OA No. 297/2015 (Khimananda & Ors Vs. UOI & Ors.), which has already been dismissed by the Tribunal on 03.04.2024. On examination of the said case vis a vis the case in hand, we find that the issues in both the matter are same and similar. Relevant portion of the order is quoted hereunder:
"4. The facts of the case of the applicants are that the applicants were appointed initially as Air Craft Assistant (ACA) matric in Group C by direct recruitment in the grade of Rs. 825 on 16.11.1987, 10.02.1988 and 11.07.1988. The grievance of the applicants are that they were matriculate and later on in cadre review some class-IV employees of the department were merged with their cadre of Air Craft Assistant (ACA), whereas they were appointed in Group C and merger of Group C & D was prejudicial to their promotional prospect. Further, grievances of the applicants are that some of the cadres were similarly placed like FA(G) and FA(MT) non matric and matric by cadre review were placed in the Grade of Rs. 2400/- with better promotional avenue which was discrimination against the applicants. And the applicants had been trying for their promotion for quite long time and finally gave their representations on 25.07.2014 for review of their cadre and providing them promotional avenue, and the department vide their impugned order dated 19.09.2014 in stead of improving their promotional avenue have down graded their Group C cadre by merging Group D cadre with them and make one cadre of JFA(ACA); in stead of giving them status equal to FA(MT) matric in Rs. 2400/- Grade. Aggrieved by the said order they have approached this Tribunal seeking the relief and hence their OA should be allowed and they should be granted all the reliefs claimed.
5. On notice, the respondents have filed their counter wherein they say that the applicants in the year 1987-1988 were appointed as Assistant in the then pay scale of Rs 825-15-900- EB-20-1200 (4th pay commission) and said post of Assistant 6 O.A.No. 260/00076 of 2021 was carrying the pay scale of Class-IV as per the recruitment rules dated 06.03.1977 and they vehemently denied the claim of the applicants that they were appointed initially as Assistant Matric in Group-C . As at that point of time, educational qualification for the post in question was middle school standard pass, although preferential qualification was matriculation which does not confer right to the applicants to claim service benefits at par with other cadres.
6. They further emphatically say that as per 5th CPC, the applicants have been given first Advanced Career Progression (ACP) in the pay scale of 3050-753950-80-4590 w.e.f. 16.11.1999, 11.07.2020 and 10.02.2000 respectively and after implementation of the 6th CPC they have been given the benefit of Modified Advanced Career Progression Scheme (MACP) in the Grade Pay of Rs. 2000/- (5200- 20,200) in pay Band-1 w.e.f. 01.09.2008 and they emphatically say that this speaks by itself that the applicants have been compensated by way of ACP/MACP against their stagnation.
7. They further say that appointment to the post of JTO-II is by direct recruitment, and departmental candidates, if any, have to be judged along with outside candidates. The said orders, relied by the applicant pertains to training of ACA and that after successful completion of training, the candidates may apply for Direct Recruitment for the post of JTO-II. There was never, and there is no provision for promotion to the post of JTO-II from ACA. And they emphatically say that the order dated 11.01.1988 is just an internal policy guidelines which is subject to change, and it does not provide any right or benefit to the ACAs. The respondents further vehemently say that the cadre FA(MT)/FA (Driver) and JFA(ACA) are separate cadres with different type of duties and responsibilities thus cannot be compared by the applicants for parity and hence, the respondents do not agree with the contention of the applicant as such. They further vehemently contend that the applicants' contention that their grade was downgraded is absolutely incorrect as the erstwhile Group-D employees have been abolished and categorized as Group-C and their duties are distinct from the duties and recruitment rules of FA(MT). Hence, Air Craft Assistant cannot be compared with FA(MT)/FA(G) as claimed by the applicants so 7 O.A.No. 260/00076 of 2021 the respondents are justified in disposing of the representation of the applicants. And similarity in the applicants' educational qualification they being matriculate and other matriculate cadres which are distinct and having distinct cadre rules, so the applicant's argument that they should get parity is erroneous and cannot be accepted. Hence, there is no merit in the claims of the applicants and accordingly this OA should be dismissed.
xxx xxx xxx
16. Furthermore in a long catena of judgements the Hon'ble Apex Court has ruled that Tribunal and High Court shall not entertain and interfere with the policy making domain of the executive wing of the Government. A double Bench of the Hon'ble Apex Court on 14.12.2023 in Civil Appeal No. 14524 of 2015, Union of India and others vs. Air Commodore NK Sharma (2023 SCC OnLine SC 1673) held that a Tribunal subject to the High Court's jurisdiction under Article 226, cannot be permitted by law, to direct the framing of a policy by the Government. In the said case, one of the issues for consideration was following: "
Whether the Tribunal could have issued a direction to the Government to frame a policy for filling up the post of JAG(Air)?"
Inter alia other things, the Hon'ble Apex Court observed following:-
"48. It is in consideration of this statutory scheme that we must look for an answer to the question as to whether the Tribunal could have directed the formation of a policy, albeit in regard to a matter affecting the service of armed forces personnel, to adjudicate which, it otherwise possesses the jurisdiction?
49. Making policy, as is well recognized, is not in the domain of the Judiciary. The Tribunal is also a quasi- judicial body, functioning within the parameters set out in the governing legislation. Although, it cannot be questioned that disputes in respect of promotions and/or filling up of vacancies is within the jurisdiction of the Tribunal, it cannot direct those responsible for making policy, to make a policy in a particular manner.
50. It has been observed time and again that a court cannot direct for a legislation or a policy to be made.8 O.A.No. 260/00076 of 2021
Reference may be made to a recent judgment of this Court in Union of India v. K. Pushpavanam where while adjudicating a challenge to an Order passed by a High Court directing the State to decide the status of the Law Commission as a Statutory or Constitutional body and also to consider the introduction of a bill in respect of torts and State liability, observed as under:-
"..As far as the law of torts and liability thereunder of the State is concerned, the law regarding the liability of the State and individuals has been gradually evolved by Courts. Some aspects of it find place in statutes already in force. It is a debatable issue whether the law of torts and especially liabilities under the law of torts should be codified by a legislation. A writ court cannot direct the Government to consider introducing a particular bill before the House of Legislature within a time frame. Therefore, the first direction issued under the impugned judgment was unwarranted."
51. We may further refer to Union of India v. Ilmo Devi wherein the Court, while considering with the case concerning regularization/absorption of part-time sweepers at a post office in Chandigarh observed:-
"The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and 17 create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts."
52. The above being the settled position of law, it only stands to reason that a Tribunal functioning within the strict boundaries of the governing legislation, would not have the power to direct the formation of a policy. After 9 O.A.No. 260/00076 of 2021 all, a court in Writ jurisdiction is often faced with situations that allegedly fly in the face of fundamental rights, and yet, has not been entrusted with the power to direct such formation of policy."
17. Considering all the above we are clear in our mind that no case is made out by the applicants to grant any relief and hence, we pass following orders:-
The present OA is dismissed. All associated MAs stand disposed of accordingly. No costs."
5. This Tribunal is also reminded by the case of Jacob Puliyel Vs. UOI & Ors, Writ Petition (Civil) No. 607 of 2021, where the Hon'ble Apex Court has observed as under:
"It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed 10 O.A.No. 260/00076 of 2021 to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary."
6. The Hon'ble Apex Court in the case of P.U. Joshi & Ors. Vs The Accountant General, Ahmedabad, AIR 2003 SC 2156, held as under:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its view for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of 11 O.A.No. 260/00076 of 2021 the State to amend, alter and bring into force new rules relating to even an existing service."
7. The policy decision for making all Group-D posts as MTS came up for judicial scrutiny before the CAT, Erakulam Bench of the Tribunal in the case of Pankajakshan Nair Vs Union Of India (OA No. 180/01090/2014 disposed of on 21 March, 2016), and taking into consideration the decision of the Hon'ble Supreme Court in the case of P.U. Joshi (supra), the Tribunal held as under:
"12. As regards the issue in the present O.A is concerned, it is the fact that following the VI CPC recommendation, the erstwhile Group D posts have been re-designated as Group C posts and several scale of pay in the erstwhile Group 'D' category were merged together to a new Pay Band with Grade Pay of Rs. 1800/-. Consequent to the re-designation of Group 'D' category as Group C and also upgradation of pay scale, higher education qualification for the posts were also introduced before introducing the concept of multi-skilling of duties. In that overall context, the respondents vide their communication dated 27.12.2012 revised the charter of duties of erstwhile Group 'D' post wherein several existing cadres have been merged into one taking into account the task performed as well as the purpose for easy switching over from one to another. Accordingly, 7 trades which includes JGO were merged into a single head i.e. Multi- Tasking Staff. We do not find anything wrong in such an approach. Further, just because of the erstwhile post of Lascar and Gestetner Operator had merged into one namely MTS does not amount to or result in any demotion under the revised pay structure as the pay scale of the posts were merged to a single Pay Band of Rs. 5200-20200 with a Grade Pay at Rs.1800/-.
xxx xxx xxx 12 O.A.No. 260/00076 of 2021
14. We are of the view that the respondents as an employer has every right to re-organise the cadre structures and effect merger of the cadre or create new cadres based on the necessity and work requirement. Therefore, the exercise undertaken by the respondents following the VI CPC recommendation by which Group D posts were abolished and converted into Group C posts and laying down revised charter of duties of erstwhile group 'D' posts appears perfectly justified. The merger of seven cadres into one cadre of MTS based on their assessment therefore cannot be faulted. Therefore, we hold the respondents are well within their right in reorganising the erstwhile cadre and merger into one and the order of 27 th December 2012 cannot be held as unjustified.
15. Therefore, after due consideration of all the facts and circumstances of the case, we hold that there is no merit in this O.A and therefore it is liable to be dismissed. The Original Application is accordingly dismissed as above. No order as to costs.
8. The present challenge of the applicant to re-organise the cadre structures and effect merger of the cadre or create new cadres is a matter of policy. We are of the view that the respondents, as an employer, has every right to re-organise the cadre structures and effect merger of the cadre or create new cadres based on the necessity and work requirement, the same being a policy matter. Therefore, the exercise undertaken by the respondents following the VI CPC recommendation by which Group-D posts were abolished and converted into Group-C posts and laying down revised charter of duties 13 O.A.No. 260/00076 of 2021 of erstwhile Group-D posts appears perfectly justified. The merger of cadres into one cadre of MTS based on their assessment cannot be faulted with. Therefore, we hold that the respondents are well within their right in reorganising the erstwhile cadre and merger into one and the orders impugned in this OA cannot be held as unjustified. This view is supported by the decision of this Tribunal dated 25.04.2024, in OA No. 176/2016 (Manoranjan Mishra Vs. UOI & Ors.), we do not find any justification to differ from the view already taken earlier.
9. Hence, going by the facts and law discussed above, coupled with the law of precedent, we find no merit in this O.A and, therefore, this OA is liable to be dismissed and, accordingly, the same is dismissed. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS