Central Administrative Tribunal - Allahabad
Nitish Kumar Tripathi vs M/O Defence on 22 April, 2024
OA No. 330/598 of 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Allahabad this, the 22th day of April, 2024
Original Application No. 330/598 of 2014
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Hon'ble Dr. Sanjiv Kumar, Member (Administrative)
1. Nitish Kumar Tripathi, S/o Sri M.P. Tripathi, R/o DT-26, Armapur,
Kanpur, presently posted as Junior Works Manager, Ordnance
Factory, Kanpur
2. Mohit Gautam, S/o late V.K. Gautam, R/o E-67, Armapur, Kanpur
presently posted as Junior Works Manager, Field Gun Factory,
Kanpur ....Applicants
By Advocate: Shri Shrawan Dwivedi
VERSUS
1. Union of India, through the Secretary, Ministry of Defence, South
Block, New Delhi
2. Secretary, Union of India, Ministry of Defence, Department of
Expenditure, E-III, B. Branch, North Block, New Delhi
3. Director General, Ordnance Factory, Government of India,
Ministry of Defence, Ordnance Factory Board, 10 A, Saheed
Khudiram Bose Road, Kolkata 700001
...... Respondents
By Advocate: Shri Amitabh Kumar Sinha
ORDER
By Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial):
The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed by the applicants, who are two in number for the following reliefs:
I. " Issue order or direction setting aside order No.3265/6th CPC/I<PL/2011/A/NG dated 04.02.2011 Page 1 of 11 OA No. 330/598 of 2014 passed by respondent No.3, whereby a decision pursuant to Minutes of 1st (2011) Board Meeting held on 31.01.2011 was convened pursuant to which a decision was taken for merger of posts of Asstt.
Foreman/Foreman/Store Holder in the pay scale of Rs.6500-10500/- and Junior Works Manager to the Pay scale of Rs.7450-11500 (Annexure-A-a) to compilation No.1, II. Issued order or direction setting aside order dated 27.08.2010 passed by respondent No.2, whereby a decision has been taken for merger post of Junior Technical Officers in pre-revised scale of Rs.7450-11500 and Assistant Foreman in the pre-revised scale of Rs.6500-10500 and it advised to implement the recommendation of 6th CPC and merger the two posts of Assistant Foreman and Junior Works Manager in the revised pay band PB-2 with Grade Pay of Rs.4600 immediately (Annexure-A-2) to compilation No.I. III. Issue order or direction setting aside Resolution being Item No.6/I/2013 passed by respondents, whereby it was resolved that in supersession of earlier resolution taken by Board in its 11th (2010) meeting Board in view of Ministry of Finance Department of Expenditure UO No.10(3)/e-iiib/2010 dated 27.08.2010 and dated 02.12.2010 respondent No.1 ID No.PC34(19)/08/D(FY II) dated 18.01.2011 it was resolved to merge the post of Assistant Foreman and equivalent posts (Group B) as per 6th CPC recommendation and the provision of the CDS (RP) Rules notified by SRO (RP) Rules notified by SRO -21 dated 09.09.2008, the merger will be made effective from 01.01.2006 (Annexure-A-3) to compilation No.1.
IV. A suitable order or direction directing the respondents to grant pay Band -2 Rs.9300-34800 with Grade Pay of Rs.4800/- and after four years grade pay of Rs.5400/-. V. Any order suitable order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
VI. Award cost of this application to the applicants."
2. The brief facts as narrated in the instant O.A. is that both the applicants being selected to the post of Juniors Works Manager on the pay scale of Rs.7450-11400 and revised to Rs.9300-34800+4600 Grade Pay after implementation of 6th Pay Commission on 12.08.2010 and 29.06.2009 respectively and posted in Ordnance Factory Kanpur and OFIL, Medak respectively. In exercise of powers conferred under Article 309 of the Constitution of India and Ordnance Factories Page 2 of 11 OA No. 330/598 of 2014 (Recruitment and Conditions of Service of Class-III Personnel), Rules, 1956 as notified on 4.01.1956, new Rules known as Indian Ordnance Factories (Group) C Supervisory and Non-Gazetted Cadre (Recruitment and Conditions of Service ) Rules,1989 (hereinafter referred as 'Rules, 1989) were notified by Notification dated 04.05.1989. Subsequently, again in supersession of Rules 1989, in so far as it relates to the post of Foreman (Tech) except, new Rules as Indian Ordnance Factories Organization, Junior Works Manager (Group 'B' post) Recruitment Rules were notified on 09.10.1996 (hereinafter referred as 'Rules, 1996).
3. It is further stated in the original application that from the aforesaid Rules, 1996, it is apparent that post of Junior Works Manager has been categorized as Group B post and has been shown to be a Gazetted post having managerial nature of duties and as such, the applicants cannot be termed to be a 'Supervisory Group-B' post.
Subsequently, the Secretary, Ministry of Defence, Union of India-
respondent in exercise of power under Article 309 and Clause (5) of Article 148 of the Constitution of India and after consultation with the Comptroller and Auditor General in relation to the persons serving in the Indian Audit and Accounts Department, the President was pleased to enact Rules namely Central Civil Services (Revised Pay) Rules, 2008, vide Notification dated 29.08.2008 and these Rules, 2008 were deemed to have come into effect from 01.01.2006 and Clause (ii) of Section of Part B relating to revised pay scale for certain common categories of staff. On account of merger of pre-revised pay-scale of Rs.5000-8000, 5500-9000 and 6500-10500, some posts which presently constitute feeder and promotion grade will come to fall in an identical grade.
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4. It is further stated in the original application that since the applicants are working to the post of Junior Works Manager, which is Group B Gazetted post and they were treated in pay-scale of Rs.7450- 11500 and as such, after 6th Pay Commission Report, they will become entitled to the grade pay Rs.4800/- and after completion of four years of service in the grade pay of Rs.5400/-, but they were placed in Pay Band-
2 Rs.9300-34800+4600 GP in place of 9300-34800+4800 and on completion of four years service they should be placed in the revised pay band i.e. Rs.5400/-.
5. It is further stated in the Original Application that respondent-3 also recommended the matter before Respondents-1 & 2, but the same remained in vain. Aggrieved by the same, both the applicants also represented the matter before the concerned respondent, but no heed was paid. Hence, present O.A. has been filed.
6. In para 4.26 of the Original Application, it is stated that the judgment /order dated 23.04.2013 passed in O.A. No.776/2010 (Indian Ordnance Factory Gazetted Officer and Ors. Vs. Union of Inida & Ors.) by Central Administrative Tribunal, Jabalpur Bench, Jabalpur, is not barred by principles of res judicata.
7. The respondents have filed their short counter affidavit on 18.03.2015, wherein it has been stated that controversy involved in the present O.A. has already been set at rest as Central Administrative Tribunal, Jabalpur Bench, Jabalpur in O.A. No.776/2010, whereby the similar claim of the applicants of aforesaid O.A. has been dismissed vide order dated 23.04.2013 and as such, present O.A. is liable to be dismissed in view of decision rendered in O.A. No.776/2010.
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8. In reply, rejoinder affidavit has been filed by the learned counsel for the applicants on 24.04.2015 and reiterating the same stand as claimed in Original Application. .
9. We have heard Shri Shrawan Dwivedi, brief holder of Shri Shrawan Dwivedi, learned counsel for the applicant and Shri Amitabh Kumar Sinha, learned counsel for the respondents.
10. Learned counsel for the applicant submits that the order dated 23.04.2013 passed in O.A. No.776/2010 by Central Administrative Tribunal, Jabalpur Bench, Jabalpur is not bared by principles of res judicata and as the applicants were not the parties of the said O.A. and had not given their consent to be the parties in the same proceeding.
11. On the other hand, learned counsel for the respondents submitted that the matter is squarely covered by the order dated 23.04.2013 passed in O.A. No.776/2010 and identical in nature and as such, is liable to be dismissed on the same ground.
12. We have considered the submissions so raised by the learned counsel for both the parties and perused the records.
13. The record reflects that the relief sought by the applicants and relief sought by that applicants in O.A. No.776/2010 before Central Administrative Tribunal, Jabalpur Bench, Jabalpur are identical and similar, which was dismissed vide order dated 23.04.2013. The relief sought by that applicants in O.A. No.776/2010 is quoted as under for ready reference:-
i.) to direct the respondents to implement the revision of pay rules in respect of JWMS working in the Ordnance Factories of India in letter and spirit.
ii.) to direct the respondents to grant pre-revised pay scale of Rs.7500-12000 and the corresponding pay Band PB-2 and grade of Rs.4800/- to JMWs and after a period of 4 years to Page 5 of 11 OA No. 330/598 of 2014 grant them pre-revised pay scale of Rs.8000-13500 by fixing them in the pay bank of PB-3 in the grade of Rs.5400/- with all consequential benefits including difference in the arrears of pay with 18 % interest as per recommendation in Annexure-A-
6.
iii.) to direct the respondents not to merge the post of AF which is a Group C Supervisor non-gazetted post with the post of JWM, which is a group B gazetted ministerial post. iii-a) to quash Annexure A-1 and A-1A iii-b) to quash Annexure-A-1B dated 04.02.2011 and iv.) Any other relief as this Tribunal may deem fit under the facts and circumstances of the case in favour of the applicant may also be granted‟.
14. The Division Bench of Central Administrative Tribunal, Jabalpur Bench, in O.A. No.776/2010, after considering each and every aspect of the matter, dismissed the said O.A. vide order dated 23.04.2013 on the following observation:-
8. The applicant‟s first grievance is regarding denial of pay scale to them at par with the pay scale given to Section Officers/PS/Equivalent in the Secretariat. In this regard Section II of Part -B of SRO21(E) provides as under:-
(In Rupees) Sl. No. Present Revised pay Correspondin Para OV Post Scale Scale g Pay Band & of the Grade Pay Report (1) (2) (3) (4) (5) (6) (7) I OFFICE STAFF IN SECRETARI THE AT 1 Section 6500- 7500-12000 PB-2 4800 3.019 Officer/PS 105001 8000-13500 PB-3 5400 /equivalent 9 (on (on (Modified completion completion of by Govt.) of four years 4 years This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS.Services like AFHQSS/AFHQSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC,UPSC, etc. would therefore be covered.
9. The applicants‟ contention that JWM post is Group 3 Ministerial Gazetted post and, therefore is covered under the word "et." In the above provision, does not appear to be convincing. By bare reading of this provision it is clear that this scale is to be given only in such organizations/services, which have had historical parity with CSS/CSS. The JWM cadre had the grade of Page 6 of 11 OA No. 330/598 of 2014 Rs. 7450-11500 in the Fifth Central Pay Commission and thus they had no parity with the cadre of Section Officer/PS/equivalent as these posts were in the pay scale of Rs. 6500-10500. In fact the word "etc" appears to be in regard to organizations and not the posts and therefore in no way can it be inferred that the JWMs, on the ground of being Group B Ministerial gazette cadre, are part of this group.
10 Applicant‟s have contended that their case for grant of pay scales at par with Section Officer/PS/equivalent of Secretariat, was recommended by the Ministry of Defence, and therefore they deserve to be paid these scales. However, this proposal has been rejected by the department of expenditure vide impugned order dated 27.08.2010 (Annexure A-1). When the issue was sent by Ministry of Defence for reconsideration, it was again rejected by Department of Expenditure with the following observations:
"2. The matter has been re-examined in this Department and observed that -
(i) In the OF Organisation, the posts of Junior Works Manager (JWM) was introduced in the year 1994. Subsequently, on the basis of Fifth CPC recommendations as accepted by the Government of India, the post of JWM (OTS) and JWM (Stores) were introduced in OF Organisation. Hence, the work in the various Ordnance Factories prior to creation of these posts were managed by the then existing cadres. Hence, the justification for JWM does not get established.
(ii) As per the recommendation of 6th CPC, in case a post already exists in hierarchy in the scale of Rs.
7450-11500/- corresponding to the revised pay structure of grade pay of Rs. 4600/- in the payt band PB-2, the post being upgraded from scale of Rs. 6500-10500 should be merged with post already existing in the scale of Rs. 7450-11500.
(iii) JWM and Assistant Foreman (erroneously mentioned earlier as Assistant Work Manager) function alternatively as Head of Section in factories depending upon the availability as is evident from the job description provided by OFB in MOD‟s file.
(iv) The post of JWM falls within the common category of Technical Supervisors. These posts exists across the Ministries/Departments. Acceptance of the proposal of AM would have wider repercussion as similar demands may come up from DGQA & DGAGA and M/Railways where the recommendation of the 6th CPC have already been implemented by way of merging the posts in the pre- revised scale of Rs. 7450-11500 and Rs. 6500-10500 in the GP of Rs. 4600.
(v) As per the RRs, the posts is to be filled up (a) 75% by promotion from Assistant Foreman with 3 years regular service in the grade, 25% by promotion on the basis of Limited Departmental Competitive examination, failing which by direct recruitment. Hence, the DR component is only a „failing which‟ Page 7 of 11 OA No. 330/598 of 2014 clause. Representations are being received in this Department (which had already been forwarded to Ministry of Defence) seeking merger of Assistant Foreman with the Junior Works Manager.
In view of the above, AM is once again advised to implement the recommendations of the 6th CPC and merge the two post of Assistant Foreman and Junior Works Manager in revised pay band PB-2 with Grade pay of Rs.4600/- immediately.
11. We also fined that in the notification GSR 622(E) of Ministry of Finance, by which Central Civil Services (Revised Pay) Rules 2008 have been issued, in its Part-C, Section II, Pay scales in respect of certain cadres of specific departments for which pay scales are different from those provided in Section I, Part A of this notification, have been given. In this Section, under Ministry of Defence, Department of Defence Production, only the cadre of Assistant Accounts Officer in DGQA has been given to upgraded scales. Thus, 6th CPC if it wanted to give upgraded pay scales to the cadre of JWM, it could have made specific recommendations in this Section for this cadre.
12. As regards, the recommendations in Part B, Section II of this notification, under which, the applicants are claiming revised pay scales at par with Section Officer/PS/Equivalent, these recommendations are for certain common categories of staff. However, the cadre of JWM is specific to the organization of Ordnance Factories, and thus, cannot be considered under common categories of staff. Therefore, recommendations if any, in regard to them were to be in Part-C, Section II of this notification. However, as mentioned in previous para, there is no such recommendation about upgradation of pay scales of JWMs belonging to Ordnance Factories in this Section.
13. Thus, we do not find any force in the contention of the applicants that as per Sixty Central Pay Commission Recommendation they were to be paid pay scales as given to Section Officer/PS/Equivalent in Secretariat, as mentioned in Section II of Part-B of Notification GSR 622 (E) of Ministry of Finance.
14. The other grievance of the applicant is regarding merger of their cadre with that of Assistant Foreman. The applicants‟ contention is that there was no requirement of such merger, as per the Sixth CPC recommendations and the respondents have done it unnecessarily. The respondents, in their reply, have submitted that as per Rule (II) of Section I of Part B, of SRO 21 (E), the employees in the pay scale of Rs.6500-10500 have to be upgraded to the pay scale of Rs.7450-11500 if a post in that scale exists. Apart from that, in Section II of Part-B, there is a specific provision for upgradation of pay scale of Assistant Foremen from Rs.6500-10500 to 7450-11500, and therefore, the cadres of Assistant Foreman and JWMs are to be merged as per the provisions of SRO 21(E). Similar posts in the Railway i.e., Section Engineer and Senior Section Engineer have also been merged by the Ministry of Railway. As regards the issue of separate recruitment rules for the two cadres, these can subsequently be Page 8 of 11 OA No. 330/598 of 2014 revised by the Department. Thus, we do not find any fault in the action of the respondents in this regard.
15. In view of the aforesaid, we do not any justification to intervene in the matter. Thus, the Original Application is dismissed with no order in regard to costs.
15. It is well settled principle that this Bench is bound by the Judgment/Order passed by a Bench of equal strength as per the principles pertaining to binding precedent in order to maintain judicial courtesy and decorum.
16. The Apex Court in case of Sundarjas Kanyalal Bhatija v. Collector [(1989) 3 SCC 396 : AIR 1990 SC 261] while dealing with judicial discipline, has expressed thus: (SCC p. 406, para 18) "18. ... One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi- Judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned Single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure."
17. We are agreement with the findings so recorded by the Division Bench of Central Administrative Tribunal, Jabalpur vide order dated 23.04.2013 passed in O.A. No.776 /2010.
18. So far as the principles of res judicata as per section 9 of the code of Civil Procedure (C.P.C.) is concerned, the same is not at all applicable in the instant case as the matter relates to the service, governed by Central Administrative Tribunal Act, 1985. So the argument made by the applicant that he is not the party in the identical matter i.e. O.A.No. 776 of 2010 decided on 23.04.2013 by the Central Page 9 of 11 OA No. 330/598 of 2014 Administrative Tribunal Jaipur Bench is totally misconceived and cannot be accepted.
19. From the bare perusal of the section 22 of Central Administrative Tribunal Act, 1985 which laid down the procedure and power of the Tribunal and as per sub rule (1) of the said section, this Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure 1908 (5 of 1908) but shall be guided by the principles of natural justice subject to other provisions of the act.
20. Sub rule 3 of section 22 of the said Act, the Tribunal shall have, for the purposes of [discharging its functions under this Act], the same power as are vested in civil court under the Code of Civil Procedure, 1908 ( of 1908), while trying a suit, in respect of following matters enumerated.
21. The relevant provisions of section 22 sub rule (1) as well as sub rule (3) of the section 22 of the aforesaid Act is quoted as under:
"22. Procedure and powers of Tribunals - (1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private.
(2) ...... .....
(3) A Tribunal shall have, for the purposes [discharging its functions under this Act], the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;Page 10 of 11
OA No. 330/598 of 2014
(e) issuing commissions for the examination of witness or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding its ex parte,
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte, and
(i) any other matter which may be prescribed by the Central Government."
22. In view of the above discussions, the applicants are not entitled for any relief as claimed in the present Original Application.
23. Under the circumstances, Original Application is liable to be dismissed and is accordingly, dismissed.
24. All pending MAs in this O.A are also stand disposed off.
25. No order as to costs.
(Dr. Sanjiv Kumar) (Justice Rajiv Joshi)
Member(Administrative) Member (Judicial)
PM/
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