Madras High Court
A.E.Stalin Gurumurthy vs Central Administrative Tribunal on 29 October, 2012
Bench: Elipe Dharma Rao, M.Venugopal
THE HIGH COURT OF JUDICATURE AT MADRAS Dated:29.10.2012 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.Nos.27588 to 27590 of 2010 and W.P.Nos.19653 to 19655 of 2011 and W.P.No.25842 of 2011 and W.P.No.21100 of 2011 ***** W.P.Nos.27588 to 27590/2010 and W.P.No.25842/2011: ------------------------------------------------- A.E.Stalin Gurumurthy ... Petitioner in W.P.27588/2010 R.Selvaraj ... Petitioner in W.P.27589/2010 Y.G.Sundaram ... Petitioner in W.P.27590/2010 E.Rajendran ... Petitioner in W.P.25842/2011 Vs. 1.Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai 600 104. 2.Union of India, Rep. By the Director General of Works, Central Public Works Department, Nirman Bhavan New Delhi. 3.The Additional Director General of Works (SR) Central PWD Rajaji Bhavan Chennai 600 090 4.The Chief Engineer (SZ) I, Central Public Works Department G Wing, II Floor, Rajaji Bhawan, Besant Nagar, Chennai 600 090. 5.The Superintending Engineer, Chennai Central Circle II Central PWD 26,Haddows Road, Chennai 600 006 6.The Executive Engineer, Chennai Central Division I Central PWD 26, Haddows Road, Chennai 600 006. ... Respondents in W.P.Nos.27588 to 27590/2010 and W.P.25842/2011 PRAYER in W.P.Nos.27588 to 27590/2010 and W.P.25842/ 2011: Petitions filed under Article 226 of the Constitution of India praying for an issuance of a Writ of Certiorarified Mandamus after calling for the concerned records from the 1st Respondent, quash the order of the 1st Respondent Tribunal passed in O.A.Nos.917, 926, 906 and 916 of 2009 respectively dated 28.10.2010 as illegal, arbitrary and contrary to law in so far as rejecting the prayer restore the pay as fixed by the 5th Respondent in its proceedings No.8(3)(1)/2008/ES/ 2173 dated 26.9.2008 and consequently direct the respondents to restore the pay as fixed by the 5th Respondent in its proceedings No.8(3)(1)/2008/ES/2173 dated 26.9.2008 with all consequential benefits. W.P.Nos.19653 to 19655 of 2011 and W.P.No.21100 of 2011: ------------------------------------------------------- Union of India rep. By The Superintending Engineer, Chennai Central Circle II CPWD Shastri Bhavan, Chennai 600 006. ... Petitioner in W.P.Nos.19653 to 19655 of 2011 and W.P.No.21100 of 2011 Vs. A.E.Stalin Gurumurthy ... 1st Respondent in W.P.19653/2011 E.Rajendran ... 1st Respondent in W.P.19654/2011 R.Selvaraj ... 1st Respondent in W.P.19655/2011 Y.G.Sundaram ... 1st Respondent in W.P.21100/2011 2.Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai 600 104. ... 2nd Respondent in W.P.Nos.19653 to 19655 of 2011 and W.P.No.21100 of 2011 PRAYER IN W.P.Nos.19653 to 19655 of 2011 and W.P.No.21100 of 2011: Petitions filed under Article 226 of the Constitution of India praying for an issuance of a Writ of Certiorari calling for the records in the common order passed by the Central Administrative Tribunal, the 2nd Respondent in O.A.Nos.906, 916, 917 and 926 of 2009 dated 28.10.2010 and quash that portion of the order "with regard to recovery the applicant succeed as we have quashed the order dated 30.09.2009". For Petitioners in W.P.Nos.27588 to 27590/2010 & W.P.No.25842/2011 and For Respondents in W.P.Nos.19653 to 19655 of 2011 & W.P.No.21100 of 2011 : Mr.Balan Haridas For Respondents in W.P.Nos.19653 to 19655 of 2011 & W.P.No.21100 of 2011 and For Petitioners in W.P.Nos.27588 to 27590/2010 & W.P.No.25842/2011 : Mr.Shanmuga Kani for Mr.Sabari Perumal COMMON ORDER
M.VENUGOPAL,J.
In these Writ Petitions, cemented on identical facts, the Writ Petitioners challenge the order passed by the 1st Respondent/Central Administrative Tribunal dated 28.10.2010 in O.A.Nos.906, 916, 917 and 926 of 2009. As such, they are taken up and heard together and disposed of by means of a Common Order.
The Caboodle of Factual Matrix in the Writ Petitions:
2.The Writ Petitioners/Applicants (in 4 O.A.s) were appointed as Work Assistants in the office of the Respondents Department on different dates in the year 1972 and 1973. Other than the Writ Petitioner in W.P.No.27590 of 2010 (O.A.No.906/2009), who was promoted as Care Taker, others are working as such till date. They had completed 36 years of service.
3.According to the Writ Petitioners/Applicants, the Assured Career Progression Scheme was introduced by the Central Government on 09.08.1999. They were granted two financial upgradations in the time scale of Rs.5,500-175-9000 and Rs.6,500-200-10,500 as per the ACP Scheme by the 5th Respondent/Superintending Engineer, Chennai Central Circle II, CPWD, Chennai as per proceedings No.8(3)(1)/2008/ ES/2173 dated 26.09.2008.
4.It is the pea of the Petitioners/Applicants that from the post of Work Assistant only one promotion was available viz., to the post of Care Taker. The pay of the Care Taker was earlier fixed at Rs.4500-175-7000 and was revised with effect from 30th June 1999 as Rs.5500-175-9000. The first ACP was fixed in the scale of Rs.5500-175-9000 and the second ACP was fixed at Rs.6500-200-10,500/-. Only as per the provisions of the ACP Scheme, the Writ Petitioners/ Applicants were conferred with the financial upgradation by the 4th Respondent/ Competent Authority. However, the 4th Respondent/Chief Engineer, CPWD, Chennai on 03.08.2009 cancelled the financial upgradation order dated 26.09.2008 passed by the 5th Respondent/ Superintending Engineer, CPWD, Chennai.
5.Obviously, the impugned order was passed based on the proceedings of the 2nd Respondent (Union of India) issued in O.M.No. 23/74/2001/EC-V dated 18.10.2001 whereby and whereunder it was mentioned that the post of Work Assistant would be eligible for the first financial upgradation as Rs.4500-125-7000 after 12 years of service and Rs.5000-150-8000 after 24 years of service.
6.The Writ Petitioners/Applicants project a stand that the proceedings of the 2nd Respondent dated 18.10.2001, as referred to supra, had not taken into consideration the earlier order issued by the Government of India, Ministry of Finance in O.M.No.7(46)E-III(2) 98 dated 30.06.1999 and the recruitment rules in regard to the post of Care Taker. The contention of the Petitioners is that the proceedings of the 2nd Respondent/Union of India dated 18.10.2001 was contrary to the provisions of ACP Scheme and as such, the said classification could not be acted upon because of the reason that it had no force of law.
7.The Petitioners/Applicants take a plea that absolutely there is no mistake, fraud or misrepresentation by them as well as by the Competent Authority who issued the financial upgradation order on 26.09.2008 [in terms of ACP scheme]. Finally, the 2nd Respondent/ Union of India, through its Director of Administration, passed the rejection order on 31.08.2009 without proper application of mind to the recruitment rules, Provisions of ACP Scheme and the earlier order passed by the Government and the head of the Department. Also, as per recruitment rules, the Petitioners/Applicants are entitled to get the first financial upgradation of the pay scale of Rs.5500-175-9000/- and the second upgradation as per the ACP scheme, they are entitled to the scale of pay Rs.6500-200-10500/-. As a result of the rejection order dated 31.08.2009 passed by the 2nd Respondent/Union of India, steps were taken to reduce their salary and also made the ACP scheme meaningless.
8.The 5th Respondent/Superintending Engineer, Chennai Central Circle II, Central PWD, Chennai sent proposal to the 3rd Respondent/ Additional Director General of Works, CPWD, Chennai justifying the financial upgradation dated 26.09.2008 conferred on the Petitioners and requested him to get appropriate clarification from the 2nd Respondent/Union of India. Germane Plea of the Respondents:
9.The Central Public Works Department, coming under the Ministry of Urban Development consists of various establishments like Regular, Regular Classified and Work Charged Staff and that the salary and allowances of the regular staff are charged to the salary head to the consolidated fund. But the salary of Regular classified and work charged staff are charged to the concerned maintenance work. Later, in CPW Department, there exists posts called Care Taker which comes under the Regular Establishment. Also, there exists the post of Work Assistant which comes under the Regular and Regular Classified Establishment. In Chennai, CPWD maintains the Central Pool Office Accommodation situated in Shastri Bhavan which consists of floor area of 23970 Sqm.
10.According to the Respondents, the Government of India, Ministry of Finance, New Delhi vide O.M.No.7(46)/E III (A/98) dated 30.06.1999 rationalised the cadre of Care Takers as per fifth Pay Commission recommondations and norms and allowances for such posts, which are set out below:
"Floor area of No of posts Scale of Pay The building (pre-revised) Upto 2000 sq, mts no care taker only cares taking allowance Will be paid to the Group C or D employee 2000 sq.mts to 7000 sqm 1 care taker 3050-75-3950-80-4590 7000sq.mt to 14000 sqm 1 care taker 4000-100-6000 14000sqm to 20000 sqm 1 care taker 5000-150-8000 or 5500-175-9000 Depending the complexity of The task Above 20000 sqm 1 care taker 5000-150-8000 or 5500-175-9000 + 1 additional post In lower grade as per the Norms.
11.One post of Care Taker was sanctioned for upkeeping/ maintenance of Shastri Bhavan Building at Chennai under the Superintending Engineer, Chennai Central Circle II, CPWD, Chennai and one M.Kuttappan, Work Assistant was initially selected and promoted as Caretaker and posted to this building having joined in this post on 14.02.1990 and the scale of pay of Rs.4,500-125-7000 was granted to him at that point of time. After protracting correspondence with the Union of India, the scale of pay of M.Kuttappan was revised from existing Rs.4500-125-7000 to 5500-175-9000 [the pay scale attached to the Care Taker post for floor area 20,000 sqm. and above) as the Shastri Bhavan Building consists of a floor area of 23970 sqm.
12.The Government of India, Department of Personnel & Training, New Delhi introduced the Assured Career Progression Scheme with effect from 09.08.1999. The Union of India through O.M.No.23/74/2001/EC-V dated 18.10.2001 extended the following pay scales to Work Assistant (DR) on drawal of 1st & 2nd ACPs respectively. Rs.4000-100-6000 (Initial Appointment) Rs.4500-125-7000 (1st ACP) Rs.5000-150-8000 (2nd ACP)
13.The 5th Respondent/Superintending Engineer, Chennai Central Circle II, Central PWD, Chennai, through his O.O.No.8(3)(1)/2008/ES/ 2173 dated 26.09.2008, by oversight, had revised the Work Assistants (Direct Recruitment) on drawal of 1st and 2nd ACP as hereunder:
Rs.4000-100-6000 (on initial appointment) RS.5500-175-9000 (on drawal of 1st ACP) Rs.6500-200-6900 (on drawal of 2nd ACP).
14.Also, the Superintending Engineer, Chennai Central Circle II, Central PWD, Chennai, through his letter No.10(5)/CCC II/08/ES/2286 dated 22.10.2008 had directed the 6th Respondent/Executive Engineer, Chennai, Central Division I, CPWD to obtain an undertaking towards recovery of excess amount paid pay and allowances in the event of any audit objection from those Work Assistants who were granted the higher pay scales. The Writ Petitioners/Applicants gave an undertaking dated 24.12.2008 that any excess payment made and found out as a result of incorrect fixation of pay in the light of discrepancies noticed subsequently would be refunded to the Government either by adjustment against future payments due to them or otherwise. Hence, the higher pay scale was granted to the Petitioners in accordance with the Superintending Engineer's order dated 26.09.2008 and their pay and allowances were fixed by the Executive Engineer, Chennai Central Division I, CPWD, as per proceedings No.9(6)/CCDI/ACP/E-1/2008/ 3040 dated 07.11.2008.
15.Later on, the Chief Engineer (SZ) I, CPWD, Chennai, through his letter No.16/4/2005-Admn 1 dated 03.08.2009, conveyed to the Superintending Engineer, Chennai Central Circle II, CPWD that his order dated 26.09.2008 was not a proper one. The Superintending Engineer, Chennai Central Circle II, CPWD, through his O.M.No.8(3) (1)/CCC II/ES/1558 dated 05.08.2009, had informed the Executive Engineer, Chennai Central Division I, CPWD that his order dated 26.09.2008 stood withdrawn and directed him to effect recovery of excess amount paid to the concerned Work Assistants. In the meanwhile, the Additional Director General of Works, CPWD, Chennai, thorough his letter No.30/1/2009-Admn/4638-57 dated 15.08.2009 referred the matter in issue to the Union of India for final clarification. Ultimately, the Union of India through its letter No.23/25/2009-ECV dated 31.08.2009 had clarified the matter to the Additional Director General of Works, CPWD, Chennai/3rd Respondent that the Chief Engineer (SZ) I, CPWD stand was correct in the matter. The Executive Engineer, Chennal Central Division I, CPWD, through his O.O.No.9(6)/ CCD-1/ACP/ECI/288-H dated 11.08.2009, had refixed the pay and allowances of the Petitioners. The Executive Engineer, Chennai Central Division-I, CPWD, through his order in proceedings No.2(1)/ CCD-I/HC/2009/2379 dated 30.09.2009, directed the recovery of excess amount paid to the Petitioners.
16.Indeed, the O.M. dated 18.10.2001 issued by the Union of India relates to the implementation of 1st and 2nd ACP Scheme to the Work Assistants, but the order issued by the Government of India, Ministry of Finance O.M.No.7(46)E.III/98 dated 30.06.1999 pertains to those individuals who were actually holding/appointed in the post of Care Taker.
The Contentions of the Writ Petitioners/Applicants:
17.The Learned Counsel for the Petitioners/Applicants contends that the 1st Respondent/Tribunal should have held that the provisions of ACP scheme are clear and without any ambiguity.
18.It is the further submission of the Learned Counsel for the Petitioners that main scheme of ACP is applicable to the Petitioners and further the financial upgradation granted to them on 26.09.2008 was in accordance with the rules.
19.The Learned Counsel for the Petitioners strenuously submits that the O.M.No.23/74/01/EC-E dated 18.10.2001 was issued without taking into consideration of O.M.No.7(46)/EIII98(A)98 dated 30.06.1999 of the Government of India, Ministry of Finance and recruitment rules with regard to the post of Care Taker, but this vital aspect was not taken into account by the 1st Respondent/Tribunal at the time of passing of the orders in original applications.
20.Yet another plea of the Petitioners is that the classification order issued by the 2nd Respondent/Union of India in the proceedings dated 18.10.2001 is contrary to ACP Scheme and therefore, in law, only the ACP Scheme will prevail.
21.The Learned Counsel for the Petitioners urges before this Court that the 1st Respondent/Tribunal should have held that the financial upgradation was part of the service condition and withdrawal of the same would result in civil consequences. Furthermore, it is contended on behalf of the Petitioners that withdrawal of the financial upgradation would result in civil consequences and in any event the action of the official Respondents in withdrawing the same without notice and hearing is in violation of the principles of natural justice.
22.Lastly, it is the submission of the Learned Counsel for the Petitioners/Applicants that the common order of the 1st Respondent/ Tribunal in O.A.Nos.906, 916, 917 and 926 of 2009 dated 28.10.2000, is a non-speaking one and liable to be set aside in so far as not restoring the order of the 5th Respondent/Superintending Engineer, Chennai Central Circle II, CPWD, Chennai dated 26.09.2008.
Respondents' Contentions in W.P.Nos.27588 to 27590/2010 and 25842 of 2011 [Petitioners in W.P.Nos.19653 to 19655/ 2011 and W.P.No.21100/2011]:
23.The Learned Counsel for the Official Respondents submits that the Applicants have not availed any regular promotions and they were granted 1st and 2nd financial upgradation on 14.03.2002 by the 5th Respondent/SE, CCCII, CPWD, Chennai and later, by mistake, passed an order dated 26.09.2008 without jurisdiction by revising the ACP financial upgradation to them as Rs.5500-175-9000 and Rs.6500-200-6900 and this was corrected by Director General, CPWD, New Delhi.
24.According to the Respondents, the first financial upgradation under ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of first financial upgradation subject to fulfilment of the prescribed condition.
25.Also, it is contended on behalf of the Respondents that the two financial upgradations and ACP Scheme in the entire career of a Government employee shall be continued against regular promotion (including in-situ promotion and fast track promotion availed through limited Competitive Examination) availed from the Court in which an employee was appointed as a direct recruitee and this would mean that two financial upgradations under ACP scheme shall be available only if no regular promotions during the period (12 years and 24 years) have been availed of by an employee.
26.Finally, it is the submission of the Learned Counsel for the Respondents that if an employee has already got one regular promotion, then, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. Further, in case two prior promotions of regular basis have already been availed of by an employee, no benefit under ACP Scheme shall accrue to him.
27.It is to be pointed out that the Superintending Engineer (Coord), SR/CPWD/Besant Nagar/Chennai-90 in proceedings No.9/6/3 /2002/Coord/SR dated 02.05.2002 on the subject of 'Grant of ACP to Work Assistant and Lift Operators' addressed to all the Superintending Engineers (Civil & Elec.), all the Executive Engineer (Civil & Elec. (Except CCD.IV), under SR, CPWD, Chennai, has extracted O.M.No. 15034/1/97/Estt.(1)(Vol.IV) dated 10.02.2000 which runs as follows:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Point of Doubt Clarification ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
17) An employee who has completed The following illustration 24 years of service is to be shall clarify the allowed two upgradations doubt: An incumbent directly. What will be the in the pay scale of mode of fixation of pay Rs.4000-6000(S-7) has put in of the employee? 24 years of regular service without a regular promotion. The incumbent shall be allowed two upgradations i.e. To S-8 and S-9.
Pay fixation directly from 5-7 to 5-9 shall not be allowed.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
28.Also, a reference has been made to O.M.No.23/74/2001/ EC.V dated 18.10.2001 on the subject "Assured Career Procession Scheme to Regular Classified Category in respect of Work Assistant, Care Taker and Lift Operators" wherein the statement showing the scale of pay for granting 1st and 2nd financial upgradations under ACP Scheme in respect of Work Assistant, Lift Operator, Caretaker is shown as under:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Name of the post Present pay scale Pay scale after Pay scale after 1st upgradation 1st upgradation after 12 years after 24 years of service of service ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Work Assistant Rs.4000-100-6000 Rs.4500-125-7000 Rs.5000-150-8000 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Lift Operator Rs.3050-4590 Rs.3200-85-4900 Rs.4000-100-6000 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Caretaker Rs.4500-125-7000 Rs.5000-150-8000 Rs.5500-175-9000 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Sd/ Section Officer
29.The Petitioners placed reliance on the Office Order No.125/ 2003 in proceedings No.9/6/3/2003/COORD/SR/901 dated 30.07.2003 issued by the Superintending Engineer (Coord), SR/CPWD/Besant Nagar, Chennai-90, in respect of J.Anbiah, who, consequent upon promotion from Work Assistant to Care Taker in the scale of pay of Rs.5500-175-9000 as approved by the Departmental Promotion Committee, and in pursuance of Government of India, M/o.Finance O.M.No.7(46)E.III(A)98 dated 30.06.1999, has been issued with the transfer and posting order with immediate effect, in the interest of Public. The said J.Anbiah from the office attached viz., TCD, Trivandrum has been posted to the office at Shastri Bhawan under CCDI, Chennai in place of Kuttappan retired.
30.The Office Order, in proceedings No.8(3)(1)2008/ES/2173 dated 26.9.2005 of the Superintending Engineer, Chennai Central Circle II of CPW Department, in and by which, in terms of Government of India, Ministry of Finance O.M.No.7(46)E-III(A)/9 dated 30.06.1999 and as per the instructions contained in D.O. Letter No.23/19/2000/EC dated 11.05.2001 from the Director of Works, O/o DG(W), CPWD, New Delhi, copy received letter No.16/1/99-Admn/978 dated 04.06.2001 of Additional Director General, SR, CPW Chennai and letter No.24(5)98-Admn dated 22.06.2001 of Chief Engineer (SZ) I, CPW Chennai and in accordance with the instruction contained in para-7 of O.M.NO.35034/ 1/97-Estt.(D) dated 09.08.1999 issued by the Government of India, Department of Personnel and Training, New Delhi, approval has been accorded for grant of Assured Career Progression Scheme I & II to the Work Assistant (Direct Recruitment) i.e. who are directly appointed in the following scale of pay.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Name of post Present pay scale Pay scale after Pay scale after 1st upgradation upgradation after 12 years after of services of services ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Work Assistant (DR) Rs.4000-100-9000 Rs.5500-175-9000 Rs.6500-200-6900 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Also, the said order speaks of the fixation of pay will be regulated under FR 22(1)(a) and moreover, the order would come into effect from 09.08.1999.
31.The Writ Petitioners seek in aid of the letter No.10(5)CCCII/ ES/3115 dated 22.11.2005 of Government of India, Central Public Works Department addressed by the Superintending Engineer, Chennai Central Circle II, CPWD, Chennai to the Chief Engineer (SZ), CPWD, Chennai-90 as per O.M.No.23/74/2001/EC-V dated 18.10.2001 of DGW, CPWD, New Delhi, the 1st and II nd upgradation under ACP Scheme is to be sanctioned as detailed below to Work Assistant who have been appointed directly.
I ACP = Rs.4500-125-7000 II ACP = Rs.5000-150-8000 As such, Y.G.Sundaram, Work Assistant (New Caretaker) was granted II ACP in the pay scale of Rs.5000-150-8000 by the Superintending Engineer (Coord), SR, CPWD, Chennai vide O.O.No.62/ 2002 issued under file No.9/5/6/2002/ACP/WA/C/Coord/ SR/332 dated 13/14.3.2002. It is also stated that Y.G.Sundaram, (Petitioner in W.P.27590 of 2010/Applicant in O.A.No.906 of 2009) now working as Caretaker submitted representation vide his letter dated 26.05.2005 that the 1st and II nd ACP was to be granted as detailed below as per promotion order being issued to the Work Assistant to Care Taker in the pay scale of Rs.5500-175-9000.
I ACP = Rs.5500-175-9000 II ACP = Rs.6500-200-10500 In short, the said Y.G.Sundaram has requested that as per ACP rules, the pay scale in the next hierarchy should be followed. As such, the Chief Engineer, CPWD, Chennai was requested to examine the case and in case, he is eligible to grant I & II ACP as claimed by him and to take action at his level as Chief Engineer was the Competent Authority to sanction II ACP to all group 'C' and 'D' employees as per O.M.No.5/1/2004/EC-IV/dated 27.1.2005 of DGW, CPWD, New Delhi.
32.The Superintending Engineer, Chennai Central Circle II of CPWD of Government of India, in his Office Order No.8(3)(1)/2008/ ES/2173 dated 26.09.2008 addressed to the Superintending Engineer (Coord), SR, CPWD, Chennai 90 and all Executive Engineers under CCC II, has, inter alia, stated that the approval was accorded for grant of ACP I and II to the Work Assistant (DR) i.e. who are directly appointed in the following scale of pay.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Name of post Present pay scale Pay scale after Pay scale after 1st upgradation upgradation after 12 years after of services of services ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Work Assistant (DR) Rs.4000-100-6000 Rs.5500-175-9000 Rs.6500-200-6900 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
33.The Superintending Engineer, CCCII of CPWD, Government of India in Letter No.3(3)(1)/CCCII/2009/611 dated 24.03.2009 addressed to the Superintending Engineer (Coord), SR, CPWD, Chennai, has, among other things, stated as follows:
"The sanctioned strength of caretaker post in Chennai is one number only and this post is being filled up on promotion from the post of Work Assistant. Shri.M.Kuttappan who was promoted from the post of Work Assistant to CARETAker had represented for revision of his pay scale to Rs.5500-175-9000 based on the Ministry of Finance O.M.No.7(46)E-III(A)/98 dated 30.06.1999. There was protracted correspondence in this regard between this office and higher offices including DG(W),CPWD, New Delhi. The Government of India, Ministry of Finance, New Delhi vide their O.M.No.7(46)III (A)/98 dated 30.06.1999 has given common yare stick for providing number of posts in different time scale for care taking at government building as also the time scales to be adopted.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Floor Area of Building Scale of Pay No of posts ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Above 20000 sq. mtrs 5500-175-9000 One post of additional post in lower (or) grade as per the norms.
5000-150-8000 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Finally Shri.M.K.Mathur the then ADG (SR) CPWD Chennai wrote a D.O. Letter No.16/1/99/ Admn/361 dated 23.2.2001 (Copy enclosed) to Shri.N.Krishnamoorthy DG(W) CPWD New Delhi.
Shri.B.P.Agarwal Director of Works O/o.DG(W) CPWD New Delhi wrote a D.O. Letter No.23/192000 EC.IV dated 11.05.2001 (copy enclosed) to Shri.T.S.Varadarajan ADG(SR) CPWD Chennai-90 stating that the appointing authority of the caretaker is competent to take action for revising the scale of pay of care taker from Rs.4500-125-7000/ to Rs.5500-175-9000/-.
In this connection also please refer to the following correspondences.
1.No.16/1/99/Admn/978 dt. 4.6.2001 (copy enclosed) of Director of Works (SR) O/o ADG (SR) CPWD, Chennai 90.
2.No.24(5)/98-Admn dt. 22.6.2001 of (copy enclosed) O/o. Chief Engineer (SZ) I, CPWD, Chennai-90.
Based on the above instructions and the post of care taker is classified as group 'C' and the superintending Engineer being the appointing authority this office revised the scale of pay of caretaker from Rs.4500-125-7000 to Rs.5500-175-9000 vide T.O.OO.No.8(3)(1) /CCC II.01/ES/1396 dated 29.06.2001. (Copy enclosed). The fixation of pay of Shri M.Kuttappan care taker was ordered to be revised with effect from 30.06.1999 i.e., the date of issue of Ministry of Finance Office Memorandum.
Further the Government of India Department of Personnel & Training New Delhi introduced ACP-I & II to all Central Government Servants vide O.M.No.35034/9/ Estt (D) dt. 9.8.1999 In this O.M. the Government has stated vide para-7 that the financial upgradation under the scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose."
34.In the aforesaid communication, it is mentioned that their applications were scrutinized and also after Shri M.Kuttappan's retirement, those Work Assistant, who were promoted to the post of CARETAKER by SE (Coord) SR.CPWD, Chennai were also given the pay scale of Rs.5500-175-9000/- and opined that in view of the explanations furnished, the grant of ACP pay scale to the Work Assistant (Direct Recruitment) is correct and moreover, the office had followed the directions of DG (W) for fixing the pay scales.
35.The Superintending Engineer (Coord) SR, CPWD, Chennai, in his letter No.9(5)(6)2009/SE(Coord)SR dated 01.07.2009 addressed to SE, Chennai Central Circle I, Central PWD, Chennai and two others, has, among other things, stated that 'Since the SEs are competent authority to grant ACP in respect of WC (Work Charge) Staff, they may decide regarding grant of ACP in respect of Work Assistants in the line of action taken by the Superintending Engineer, Chennai Central Circle II, Chennai'.
36.The Chief Engineer (SZ) I, Central Public Works Department, Government of India in Letter No.16/4/2005 Admn I, dated 03.08.2009 addressed to the Superintending Engineer, Chennai Central Circle II, Central P.W.D., Chennai, in paragraphs 3 to 5, has stated hereunder:
"3.The matter regarding fixation of scale of pay of Shri Kuttappan on his promotion from the post of work Assistant to caretaker, was taken up with the DGW, DGW advised that the appointing authority was competent to take action at his level. Based on this, the Superintending Engineer, CCC II fixed the scale of pay at Rs.5500-175-9000, he being the appointing authority. This scale has been fixed obviously taking into account the area norms laid down by the Ministry of finance in their aforesaid Official Memorandum. It may be noted that SE has been authorized to fix the scale of the post of care taker for shastri Bhavan only. This scale of pay is therefore not available/applicable for ACP benefits granted to work Assistants.
4.DGW has in his OM.No.23/74/2001 EC, V dated 18.10.2001, communicated the scales of pay to be granted to work Assistants on their first and second up gradations under the ACP scheme (old scheme). The scales to be given on the first and second up gradations under the ACP scheme are Rs.4500-125-7000 and Rs.5000-150-8000 respectively. All Superintending Engineers are to strictly adhere to these instructions of DGW.
5.Superintending Engineer, Chennai Central Circle II CPWD Chennai is therefore directed to immediately fix the pay of all these work Assistants who have been granted the pay scale of Rs.5500-175-9000 on their first financial upgradation and or Rs.6500-200-6900 on their second upgradation in the scales fixed by DGW. He may also immediately withdraw the office order issued under your No.8(3)(1)208/ES/2173 dated 26.09.2008."
37.The Superintending Engineer, Chennai Central Circle II of CPWD, Government of India, Chennai, in Office Memorandum No.8 (3)(1)/CCC II/ES/1558 dated 09.08.2009, has withdrawn with immediate effect the higher ACP pay scales granted to Work Assistants (DR) vide this Office Order No.8(3)(1)/2008/ES/2173 dated 26.09.2008 and further stated that the pay scales (pre-revised) approved by the DG(W), CPWD, New Delhi vide O.M.No.23/24/2001-EC-V dated 18.10.2001 shall be granted. The details of pay scales were as follows:
WORK ASSISTANT
1.Present Pay scale -- Rs.4000-100-6000 (Pre-revised)
2.Pay Scale after 1st Upgadation -- Rs.4500-125-7000 (Pre-revised)
3.Pay scales after 2nd upgradation -- Rs.5000-150-8000 (pre-revised)
38.The Petitioner (Applicant in O.A.No.917 of 2009) has addressed a representation dated 14.08.2009 to the Additional Director General, Southern Region, Central Public Works Department, seeking restoration of ACP I & II granted in the scales of Rs.5500-175-9000 and Rs.6500-200-10500 respectively to Work Assistants serving in southern region. In the said representation, it is mentioned that he joined in the CPWD as Work Assistant under Direct Recruitment Quota on 19.11.1973 and on introduction of ACP Scheme with effect from 09.08.1999, he was granted two financial upgradations under ACP Scheme in the scales of Rs.5500-175-9000 and Rs.6500-200-10500 respectively with effect from 09.08.1999 in accordance with the existing hierarchy vide Condition No.7 of the ACP Scheme. Further, it is also stated that all the Work Assistants who joined under Direct Recruitment Quota were entitled to promotion to the post of Caretaker and there are only three Caretaker posts viz., one each at Chennai, Bangalore and Hyderabad and on 11th May 2001 the Caretaker pay scale was revised from Rs.4500-125-7000 to Rs.5500-172-9000 as per directions issued by the DGW, New Delhi through D.O. Letter to ADG/SR/CPWD/Chennai 90. As per directions, the Competent Authority was empowered to grant pay scale of Rs.5500-175-9000 for the post of Caretaker with effect from 30.06.1999.
39.The plea of the Writ Petitioner (Applicant in O.A.No.917 of 2009) in pith and substance is that the question of withdrawing the scales of pay is contrary to the Government Orders granting higher pay scale to a Promotee and a lower pay scale under ACP scheme to a similarly placed person in the same cadre is also contrary to ACP Scheme.
40.The Additional Director General (SR), Central Public Works Department, Chennai, in his communication No.30/1/2009-ADMN/ 463857 dated 15.08.2009 addressed to the Additional Director General of Works (S&P), CPWD, New Delhi, had, inter alia, stated that 'In view of the fact that the posts of Work Assistant and Caretaker are available in the offices of CPWD located all over India and governed by the same Recruitment Rules, the final decision in the matter, which can be made applicable to all uniformly, has to be taken at Head Quarters'.
41.The Executive Engineer (HQ), in his communication No.16/4/ 2005-Admn.I dated 21.08.2009 addressed to the Superintending Engineer, Chennai Central Circle No.II, Central PWD, 'Chennai, had stated that 'In the light of clarifications sought from D.G.(W) by the ADG (SR) on the subject matter, the instructions contained in para No.4 of the letter cited under Sl.No.1 above may be kept in abeyance till the final clarification is received from D.G.(W) in the matter'.
42.The Director of Administration, Directorate General of Works, Central Public Works Department, in Letter No.23/25/2009-EC.V dated 31.8.2009 addressed to the ADG (Southern Region), CPWD, Chennai, had mentioned that their D.O. Letter dated 11.5.2001 was a reply to the letter No.12/1/98 - Admn dated 8.3.2000 from the O/O CE (SZ-1), wherein the scale of Shri.Kuttappan (who was in Shastri Bhawan having area of more than 20,000 sq. mts) was specifically asked for and they had replied vide the D.O. dated 11.5.2001 that the appointing authority was competent and this was for only one case of fixation of scale in terms of Ministry of Finance O.M. dated 30.06.1999 and had nothing to do with other Caretakers or ACP Scheme.
43.The Superintending Engineer, Chennai Central Circle-II, in Letter No.8(3)(1)/CCC II/Es./1813 dated 14.09.2009 addressed to the Additional Director General of Works, Central P.W.D., Chennai, had, among other things, stated that '.... Moreover, for the promotional post of Caretaker, Work Assistant is the feeder category as per recruitment rules and hence, considering the facts only, the financial upgradation under ACP I and II have been fixed by following the DOPT order O.M.No.35034/1/97-Estt(D) dated 9.8.99'. Added further, it was informed that 'while fixing the ACP, since hierarchy was followed, thus following the above cited DOPT instructions, the procedure followed for fixing the scale is correct'.
44.The Learned Counsel for the Petitioners cites the Condition No.7 for grant of benefits under the ACP Scheme which runs thus:
"7.Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/ category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades financial upgradation shall be given by the Ministries/ Departments concerned in the immediately next higher (standard/ common) pay scales as indicated in Annexure-II which is in keeping with Part-A of the First Schedule annexed to the Notification, dated September 30, 1997 of the Ministry of Finance (Department of expenditure). For instance, incumbents of isolated posts in the pay-scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay-scale S-5 and S-6. Financial upgradation on a dynamic basis (i.e., without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbent of the isolated post, the same shall be filled at its original (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on 'dynamic' basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only."
45.The Director of Works, in his D.O.No.23/19/2000 dated 11.05.2001 addressed to the Additional Director General, CPWD (Southern Region), Chennai, has clearly mentioned that the Appointing Authority of the Caretaker was competent to take action at his level in regard to the revising of pay scale of Caretakers from Rs.4500-7000/- to Rs.5500-9000/-.
46.The Learned Counsel for the Petitioners submits that the Public Information Officer/Assistant Engineer (HQ), CCC II, CPWD, Chennai addressed to the Writ Petitioner (Applicant in O.A.No.906/ 2009) as Regional Secretary, CPWD Workers Union, Chennai, has stated that 'As per VI Central Pay Commission, the post of Work Assistant carries grade Pay of Rs.2400/- in the Pay Band (PBI) Rs.5200-20200. According to Gazette Notification on classification of Posts issued by DOPT, Government of India vide F.No.11012/7/2008-Esst. (H) to 09.04.2009, the post carrying grade pay of Rs.2400/- is Group C Post' and further that 'the post of Work Assistant being a Group C post, the Superintending Engineer is the Appointing Authority as per CPWD Manual Volume-I'.
47.The Learned Counsel for the Petitioners produced an Office Order No.156/2003 dated 22.08.2003 in respect of S.Gopalsamy Iyengar, who was promoted as Caretaker in the scale of pay of Rs.5500-175-9000. Likewise, the Office Order No.113/2003 dated 10.11.2004 in respect of P.Shankar Rao, promoting him as a Caretaker in the scale of pay of Rs.5500-175-9000 was produced. Similarly, the promotion Office Order No.131/2004 dated 03.12.2004 as Caretaker in respect of Y.G.Sundaram in the aforesaid scale of pay was also produced. By virtue of Office Order No.78/2007 dated 20.06.2007, one V.Narayana Rao was promoted as Caretaker from the office of BCDII, Bangalore having a Plinth area Kendriya Sadan 259366 Sq.m. Visveswaraya Guest House 3600 Sq.m. and the revised scale of pay of Rs.5500-175-9000 with effect from 14.07.2006.
48.The main thrust of the argument of the Respondents is that as per O.M.No.7(46)/E. III(A)/98, dated 30.6.1999, the Ministry of Finance, the scale of Caretaker post starts from Rs.4000/- and comes upto Rs.5500/- depending upon the area of the building maintained and in this department, the scale of Caretaker continue to be at Rs.4500-125-7000 only and is not amended as clarified by the 2nd Respondent through letter No.23/25/2009-EC.V dated 31.08.2009.
49.Another plea of the Respondents is that DG, CPWD through his letter No.23/25/2009/EC-V dated 31.08.2009 has clarified that the pay scales admissible to Work Assistant and Caretaker after first and second financial upgradations under ACP Scheme were governed by O.M.No.23/74/2001-EC.V dated 18.10.2001 and the same has not been amended and intimated that the clarification given through letter dated 11.05.2001 in repsect of M.Kuttappan's case in terms of Ministry of Finance O.M. dated 30.06.1999 has nothing to do with the other Caretaker scale or ACP Scheme.
50.The Learned Counsel for the Respondents relied on the service particulars of the Petitioners/Applicants, which is tabulated hereunder:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ S.No. 1 2 3 4 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Name & Y.G.SUNDARAM A.E.STALIN GURUMURTHY R.SELVARAJ, E.RAJENDRAN, Designation CARE TAKER WORK ASSISTANT CARE TAKER WORK ASSISTANT S/Shri ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.No. 27590/2010 27588/2010 27589/2010 25842/2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date of 31172 19/11/1973 26/11/1973 26/07/1973 joining A.N. the service ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Name of the post WORK ASSISTANT WORK ASSISTANT WORK ASSISTANT WORK ASSISTANT ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date of completion of 12 years of continuous service 31184 19/11/1985 27/11/1985 26/07/1985 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date of completion of 24 years of continuous service 31196 19/11/1997 27/11/1997 26/07/1997 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date of Senior Counsel sanction of two (Coord)/SR up gradation No.9/ 5/6/2002/ by ACP/ Director Wk.Asst/SE/ General of Coord/SR/332 Work, dated March New Delhi 13/14.2002 based on instructions laid down in DGW Official Memorandum No.23/74/2001
-EC.V. Dated 18-10-2001 -Do- -Do- -Do-
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I Financial upgradation granted on (ACP-I) Effective Date 9899 9899 9899 9899 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ II Financial upgradation granted on (ACP-II) Effective Date 9899 9899 9899 9899 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Date of 03/12/2004 Official was offered 12.03.2012 Official Promotion as Caretaker Promotion by the as was offered Department on Caretaker Promotion by 27.08.2010 the Department but promotion on 27.08.2010 was declined by the but promotion official was declined by the official.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
51.The primordial contention of the Respondents is that the Ministry of Finance, Official Memorandum dated 30.06.1999 is not applicable to the posts of Caretaker in CPWD where the Caretaker post is specifically created and recruited for caretaking various buildings maintained by the department whereas the said Official Memorandum is applicable to various other departments where the post of caretaker is filled from Group "C" or "D" cadres on deputation/loan basis/part time basis for a fixed tenure after calling options from the staff.
52.The Learned Counsel for the Official Respondents [Writ Petitioners in W.P.Nos.19653 to 19655/2011] refers to G.I., M.F., O.M.No.7(46)/E.III(A)/98, dated 30.06.1999 relating to Rationalization of cadre of caretakers as per V CPC recommendations and norms and allowances for such posts for Government buildings hired or owned by the Government and the President of India has decided hereunder:
"(a) Group 'D' and Group 'C' staff borne on the regular establishment and deployed on caretaking duties, which is not to be treated as deputation to an ex-cadre post, may be paid a Caretaking Allowance of Rs.100 and Rs.200 per month respectively as compensation for long hours of work required by them. The number of persons entitled to the allowance should not, however, exceed the existing strength of caretaking personnel in Groups 'C' and 'D' in all the applicable scales of pay taken together.
(b)No other additional remuneration in the form of Deputation (Duty) Allowance or Special Pay shall be admissible to the personnel so deployed.
(c)In establishments which continue to retain separate posts of Caretakers, these posts shall be merged in the general ministerial cadres in the corresponding scales of pay. In other words, there will be no separate cadre of Caretakers anywhere in the Government.
(d)Where no persons from the cadre is willing to serve as Caretaker, the post may be allowed to be filled up on loan basis instead of deputation basis from other cadres. For filling up the post on loan basis the employees carrying the same scale of pay as applicable to the post or carrying scale next below with three years of service may be made eligible for appointment. On appointment on loan basis the employee may be allowed the scale of pay attached to the post (viz. Post of Caretaker) in addition to Caretaking Allowance.
(e)The norms and level of Caretaking posts to be as indicated below:-
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Floor area of building Scale of Pay (Rs.) No. of posts ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(a)Up to 2000 sq. mts. - No post to be sanctioned.
Group 'C' or 'D' staff may be deployed on part time basis and allowed caretaking allowance of Rs.200 or Rs.100 p.m. as the case may be.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(b)Above 2000 sq. mts. 3,050-75-3,950-80-4,590 One post.
and up to 7000 sq. mts.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(c)Above 7000 sq. mts. 4,000-100-6,000 One post.
and up to 14000 sq. mts.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(d)Above 14000 sq. mts. 5,000-150-8,000 or One post.
and up to 20000 sq. mts. 5,500-175-9,000 Scale to be decided depending on the complexity of the task.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(e)Above 20000 sq. mts. 5,000-150-8,000 or One post + additional post 5,500-175-9,000 in lower grade as per the norms.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
53.Admittedly, in the present case on hand, the caretaking assignment of Shastri Bhavan has a floor area of 23,970 sq. mts., which is in excess of 20,000 sq. mts. The Petitioners have produced an Office Order No.78/2007 in proceedings No.9/6/3/2007/Coord/SR/458 dated 20.06.2007 issued by Superintending Engineer (Coord) SR, CPWD, Rajaji Bhawan, Chennai 90 in respect of an Official V.Narayana Rao, attached to BCDII, Bangalore office in which Kendriya Sadan has a plinth area of 25936 Sq. m., and Visveswaraya Guest House has a plinth area of 3600 Sq. m. and it could be seen that the earlier scale of pay as per O/o No.67/2006 dated 06.06.2006 was Rs.5000-150-8000 and the revised scale of pay is Rs.5500-175-9000 with effect from 14.07.2006.
54.As per Condition No.7 for the grant of benefits under ACP Scheme, the financial upgradation under the Scheme is to be granted to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. In accordance with the existing hierarchy is the post of Caretaker in the scale of Rs.5500-175-9000 as evident from the promotion order issued vide No.9/6/3/2004/Coord/SR/9163 dated 03.12.2004 and other work Assistants commencing from M.Kuttappan and ending with G.Sambasivam (in all 11 persons). Only in this context, the Petitioners praying for the financial upgradation under ACP in the scale of Rs.5500-175-9000 and ACP II in the scale of Rs.6500-200-10500.
55.At this stage, suffice it for this Court to point out that the financial upgradation under ACP Scheme is to be granted to the Petitioners in terms of ACP scheme and the O.M.No.35034/1/97-Estt.(D) dated 09.08.1999 and further, in the terms of Clarification No.32 in the Annexure of O.M.No.35034/1/97-Estt.(D) (Vol. IV) dated 10.02.2000. Significantly, in the said Memorandum dated 10.02.2000, at Serial No.17, it is stated asunder:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ S.No. Point of Doubt Clarification ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 17 An employee who has The following illustration completed 24 years of shall clarify service is to be the doubt: An incumbent in the pay-scale of allowed two Rs.4000-6000/- (S-7) has put in 24 years of upgradations directly. regular service without a regular promotion. The What will be the incumbent shall be allowed mode of fixation of pay two upgradations of the employee? i.e. to S-8 and S-9. His pay shall first be fixed in S-8 and then in S-9.
Pay fixation directly from S-7 to S-9 shall not be allowed.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
56.In regard to the recovery of excess payments made to the Writ Petitioners/Applicants in lieu of the grant of erroneous financial upgradations as per the order of the 5th Respondent dated 30.09.2009, it is to be pointed out that the ordinary employees/average employees will have no income/salary capacity except through forced savings such as provident fund or payment towards LIC premiums etc. If by mistake, an employer makes over payments to the employees and such mistake is not introduced by any representation from the employees side and also when there is lapse of time before the mistake/error is detected, such over paid amounts cannot be recovered from the employees, in the considered opinion of this Court.
57.Further, the pivotal question that arise for one's rumination is "whether it is equitable to uphold an order of recovery". Normally, penal recovery is permissible in respect of any pecuniary loss caused to the Government for which an employee is found to be directly responsible.
58.At this stage, we worth recall the decision of the Hon'ble Supreme Court in Union of India and others V. Ram Gopal Agarwal and others, [(1998) 2 Supreme Court Cases 589] at page 596 wherein at paragraph 14, it is, inter alia, held as follows:
"14. .... The contention is that in case this appeal is allowed the recovery will be pressed against the respondents concerned for the amount already paid and it would result in great hardship. We make it clear that the amount already paid to them in terms of the order of this Court or by the order of Tribunal as aforesaid would not be recovered."
59.We aptly point out the decision of the Hon'ble Supreme Court in Col.B.J. Akkara (Retd.) V. Government of India and others [(2006) 11 Supreme Court Cases 709 at page 713] wherein it is observed that 'The Supreme Court has consistently granted relief against recovery of excess wrong payment of emoluments/ allowances from an employee, if the following conditions are fulfilled:
(a)The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b)Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.'
60.Continuing further, we cite the decision of the Hon'ble Supreme Court in National Fertilizers Limited and others V. Somvir Singh, [2006 Supreme Court Cases (L&S) 1152 at page 1154], wherein it is laid down as follows:
"The salary or any remuneration paid to the respondent workmen who were illegally appointed, and whose services may be dispensed with in terms of the ruling in this order may not be recovered. This order, however, is being passed in exercise of the jurisdiction under Article 142 of the Constitution keeping in view the principles embodied in Section 70 of the Contract Act."
61.As far as the present case is concerned, it is not the case of the Respondents (Union of India and others) that the benefits of revised pay scales have been availed by the Petitioners/Applicants either on the basis of misrepresentation or a fraud being committed by them. Already this Court has come to the conclusion that the grant of financial upgradation conferred on the Petitioners/ Applicants dated 26.09.2008 was in tune with the conditions of ACP Scheme and also in conformity with the Ministry of Finance, Government of India O.M.No.7(46)E.III (A) 98 dated 30.06.1999. As such, the question of recovery of excess payments from the Petitioners /Applicants does not arise. Even otherwise, it is not the case of Respondents (Union of India and others) that the Petitioners/ Applicants are directly responsible for causing any pecuniary loss to the exchequer in regard to the purported excess payments received by them. Per contra, we reiterate and hold that the Office Order dated 26.09.2008 passed by the Superintending Engineer, Chennai Central Circle II of CPWD (5th Respondent) granting financial upgradation is correct and legally tenable one. Viewed in that angle, the recovery order passed by the 6th Respondent/Executive Engineer, CCDI, CPWD, Chennai, in Proceedings No.2(1)/CCD I/2009/ HC/2381 dated 30.09.2009, is illegal and accordingly, it is hereby quashed to prevent an aberration of justice. Consequently, the Writ Petitions filed by the Union of India is devoid of merits.
62.On a careful consideration of respective contentions and taking note of the fact that Condition No.7 of ACP Scheme which clearly specifies that the financial upgradation shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/ category of posts without creating new posts for the purpose and bearing in mind the O.M.No.35034/1/97-Estt.(D), dated 09.08.1999 (G.I., Department of Personnel & Training) and the Clarification No.32 in the Annexure to O.M.No.35034/1/97-Estt.(D) (Vol.IV) dated 10.02.2000 and also taking into consideration the norm and level of caretaking post for a floor area of building above 20000 sq. mts., the scale of pay is to be fixed at Rs.5000-150-8000 or Rs.5500-175-9000. More so, when the Superintending Engineer, Chennai Central Circle II, CPWD, Chennai, in his Office Order dated 29.06.2001, has fixed the pay of M.Kuttappan, Care Taker, Shastri Bhavan, attached to Chennai Central Division I, CPWD, Chennai, by revising the admissible scale of pay at Rs.5500-175-9000 [from existing scale of pay being drawn Rs.4500-125-7000] and also the Office Order No.78/2007 dated 20.06.2007 in respect of one V.Narayana Rao promoted as Care Taker and whose pay was revised at Rs.5500-175-9000 with effect from 14.07.2006 by the Superintending Engineer (Coord) SR, CPWD, Chennai, we hold that the impugned order dated 03.08.2009 in proceedings No.16/4/2005 Admn. I passed by the 3rd Respondent and the order passed by the 1st Respondent in Proceedings No.23/25/2009-EC.V dated 31.08.2009 are illegal and invalid and they are quashed to subserve the ends of justice. Moreover, we hold that the financial upgradation conferred on the Writ Petitioners/Applicants, by means of order dated 26.09.2008, is in conformity with the ACP Scheme and in accordance with the O.M.No.7(46)E.III (A) 98, dated 30.06.1999. Also, we opine that the clarification issued by the 2nd Respondent (Union of India) in Proceedings No.23/74/2001-EC.V dated 18.10.2001 is contrary to the ACP Scheme. No wonder, the conditions/ clauses of the ACP Scheme will prevail over the clarification dated 18.10.2001. To put it succinctly, the ingredients of ACP Scheme are palpably and pellucidly clear free from any ambiguity, cloud or shroud in so far as the Petitioners/Applicants are concerned. Accordingly, we conclude the financial upgradation granted to them on 26.09.2008 is in accordance with the rules. Therefore, the contra view taken by the Tribunal, in dismissing the O.A.Nos.906, 916, 917 and 926 of 2009 filed by the Writ Petitioners/Applicants by observing that it 'does not find any illegality in the action of the Respondents in rectifying the erroneous order passed by the 4th Respondent' is an untenable one and it is set aside in furtherance of substantial cause of justice. Resultantly, the Writ Petitioners/Applicants succeed.
63.In the result, W.P.Nos.27588 to 27590 of 2010 and W.P.No.25842 of 2011 filed by the Writ Petitioners/Applicants are allowed. The Writ Petition Nos.19653 to 19655 of 2011 and W.P.No.21100 of 2011 filed by the Union of India are dismissed. There shall be no order as to costs.
Sgl To
1.Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai 600 104.
2.Union of India, Rep. By the Director General of Works, Central Public Works Department, Nirman Bhavan New Delhi.
3.The Additional Director General of Works (SR) Central PWD Rajaji Bhavan Chennai 600 090
4.The Chief Engineer (SZ) I, Central Public Works Department G Wing, II Floor, Rajaji Bhawan, Besant Nagar, Chennai 600 090.
5.The Superintending Engineer, Chennai Central Circle II Central PWD 27,Haddows Road, Chennai 600 006
6.The Executive Engineer, Chennai Central Division I Central PWD 26, Haddows Road, Chennai 600 006.
7.The Superintending Engineer, Union of India, Chennai Central Circle II CPWD Shastri Bhavan, Chennai 600 006