Jharkhand High Court
Garib Mahto vs Union Of India & Ors. on 1 May, 2014
Equivalent citations: 2014 (4) AJR 218
Author: R. Banumathi
Bench: Chief Justice
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 638 of 2006
Garib Mahto .. ... Appellant
Versus
Union of India & Others...... ..... Respondents
L.P.A. No. 483 of 2006
Chandan Kumar ... Appellant
Versus
Union of India & Others ..... ....Respondents
L.P.A. No. 522 of 2006
National Institute of Foundary & Forge Technology
Hatia, Ranchi & Ors. ... ... Appellants
Versus
Sudhir Kumar & Ors. ... ... Respondents
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Appellant s : Mr. Sujit Narayan Prasad, Advocate
(L.P.A. No. 638 & 483/2006)
M/s. Rajiv Ranjan & Ram Lakhan Yadav
(L.P. A. No. 522 of 2006)
For the Union of India : Mr. FaizUrRahman, C.G.C.
(In all the cases)
For the NIFFT : Mr. Rajiv Ranjan, Advocate
( L.P.A. Nos. 638 & 483/2006)
For the Respondent Nos.13: Mr. Sujit Narayan Prasad, Advocate
(L.P.A. No. 522 of 2006)
C.A.V. on 23.04.2014 Pronounced on 1st May, 2014
Per Shree Chandrashekhar, J.: The writ petition being W.P.(S) No. 174 of
2004 was filed by 3 Technical Assistants namely, Sudhir Kumar,
Chandan Kumar and Garib Mahto. The writ petition was partly
allowed vide order dated 12.07.2006 in and by which the prayer of
the writpetitioners seeking a direction to the respondents to revise
the payscale of the writpetitioners in the scale of Rs. 5500175
2
9000/ was declined. Aggrieved, the appellantwritpetitioner no. 3
has filed L.P.A. No. 638 of 2006 and appellantwritpetitioner no. 2
has filed L.P.A. No. 483 of 2006. The National Institute of Foundry
and Forge Technology, aggrieved by the direction of the learned
Single Judge to place the appellants in the payscale of Rs. 5000
8000/, has preferred L.P.A. No. 522 of 2006.
2. Whether the writ petitioners are entitled to revision of
their payscales in terms of PartB to the First Schedule of the
Central Civil Services (Revised Pay) Rules, 1997 or not, is the only
issue involved in the present Letters Patent Appeals and therefore,
all the appeals were heard together and are being disposed of by a
common order.
Brief Facts:
3. The writ petitioner no. 1 namely, Sudhir Kumar (who is
not appellant herein) was appointed on the post of Technical
Assistant (Civil) in the National Institute of Foundry and Forge
Technology vide letter dated 03.04.1996. The appellant namely,
Garib Mahto (L.P.A. No. 638 of 2006) and Chandan Kumar (L.P.A.
No. 483 of 2006) were appointed on the post of Technical Assistant
in the National Institute of Foundry and Forge Technology vide
letter dated 21.03.1997 in the payscale of Rs. 1400401800EB
502300/. The minimum educational qualification for the post of
Technical Assistant in NIFFT was Bachelor's degree from a
recognized university with Mathematics, Physics and Chemistry or
3
3 years' Diploma having 2 years' Laboratory/Workshop experience
or I.Sc. with all round Workshop/Laboratory Training and
minimum 5 years' experience in Mechanical/Erection work. They
were appointed on probation for a period of 2 years and their
service conditions were governed by the relevant Rules and Orders
of the Institute in force from time to time.
4. The 5th Pay Commission was constituted on 09.04.1994
which submitted its report to the Central Government on
30.01.1997. The Central Government constituted an Empowered Committee to consider the report of the 5th Pay Commission and recommendation of the Commission was looked into by a Group of Ministers also. The Central Government accepted the recommendation of the 5th Pay Commission on 18.07.1997 and thereafter, the respondentNIFFT implemented PartA to the First Schedule of the C.C.S.(Revised Pay) Rules, 1997 in respect of the Technical Assistantappellants and revised their payscale from Rs. 14002300/ to Rs. 45007000/.
5. The writ petitioners who are diploma engineers claimed themselves belonging to the Subordinate Engineering Cadre and claimed that they are not governed by PartA to the First Schedule rather, they are governed by PartB to the First Schedule of C.C.S. (Revised Pay) Rules, 1997. Raising a claim for grant of payscale of Rs. 55001759000/, the writ petitioners submitted representation to the respondent no. 5 and the 4 respondent no. 5 on 16.10.2003 made recommendation to the Ministry of Human Resources Development, Government of India for sanction of payscale of Rs. 50008000/ to the Technical Assistantappellants. The Technical Assistantappellants renewed their claim vide letters dated 04.12.2003 and 11.12.2003 for implementation of appropriate payscale under the C.C.S. (Revised Pay) Rules, 1997 and lastly, the writ petition was filed seeking a direction to the respondents to implement the Central Civil Services (Revised Pay) Rules, 1997 in its true letter and spirit and to revise payscale of the Technical Assistantappellants in accordance with PartB to the First Schedule of the Central Civil Services (Revised Pay) Rules, 1997.
6. A counteraffidavit has been filed on behalf of the respondent nos. 35 objecting to the maintainability of the writ petition claiming that respondent no. 3 namely, National Institute of Foundry and Forge Technology, being registered under the Society Registration Act, 1860 is not a State. It is stated that the writ petitioners were appointed on the post of Technical Assistants and the conditions of their service are to be governed by the relevant Rules and Orders of the Institute inforce at the time of appointment. The writ petitioners were appointed in the payscale of Rs. 1400401800EB 502300 (prerevised) on the terms and conditions incorporated in their offer of appointment and they do not belong to the Subordinate Engineering Cadre in the Institute. It 5 is further stated that the Institute after approval of the Ministry of Human Resources Development, Government of India implemented the corresponding revised payscale of Rs. 14002300/ to Rs. 45007000/ as per PartA to the First Schedule of the C.C.S. (Revised Pay), Rules, 1997. The claim of the writ petitioners was denied stating that the Institute can implement the payscale attached to the post only and the Institute has no power and authority to implement the higher scale as claimed by the petitioners.
7. The Ministry of Human Resources Development, Government of India also filed a counteraffidavit stating that the Institute correctly implemented the corresponding revised scale that is, from Rs. 14002300/ to Rs. 45007000/ as per PartA to the First Schedule of C.C.S. (Revised Pay) Rules, 1997. The RespondentMinistry of Human Resources Development vide O.M. dated 08.12.1997 directed the Institute to adopt the revised payscale as incorporated in PartA to the First Schedule to the C.C.S. (Revised pay) Rules, 1997 with clear stipulation that revised payscale as incorporated in PartA to the First Schedule to the C.C.S. (Revised Pay) Rules, 1997 alone may be adopted.
8. The writ petition was partly allowed holding that the Technical Assistants cannot claim the payscale of Rs. 55009000/ however, they are entitled for grant of payscale of Rs. 50008000/. Aggrieved, the appellantTechnical Assistants and 6 National Institute of Foundry and Forge have preferred the Letters Patent Appeal.
9. We have heard the learned counsel appearing for the parties and perused the documents on record.
10. Mr. Sujit Narayan Prasad, the learned counsel appearing for the Technical Assistantappellants has submitted that a bare reading of the Preamble of PartA to the First Schedule would indicate that PartA to the First Schedule is not applicable in case of the Technical Assistantappellants for the reason that the posts for which different revised scales have been notified separately are not governed under PartA. Since, the payscale of Rs. 14002300/, the scale in which Technical Assistantappellants were initially appointed has been recommended for revision in the scale of Rs.16002660/, the Technical Assistantappellants are entitled for payscale of Rs. 55001759000/ as incorporated in PartB to the First Schedule. It is submitted that payscale of Rs. 55009000/ has been given to the Technical Assistants belonging to Subordinate Engineering Cadre and the recommendation of the 5th Pay Commission has been accepted by the various institutes/autonomous bodies including the Indian Institute of Technology, Kanpur, Delhi Metro Rail Corporation and the IndoJerman Tool Room therefore, the same payscale should be allowed in case of the Technical Assistantappellants working under the National Institute of Foundry and Forge Technology. It is 7 further submitted that the respondentInstitute has taken a contrary stand before this Court in as much as the respondent no. 5 has written a letter to the respondentUnion of India recommending grant of payscale of Rs. 50008000/ however, it has also filed a separate appeal challenging the direction of the learned Single Judge granting payscale of Rs. 50008000/ to the Technical Assistantappellants.
11. The learned counsel appearing for the respondentUnion of India has submitted that vide O.M. dated 08.12.1997, a direction was issued to all the autonomous organizations/ statutory bodies setup and funded/controlled by the Central Government to implement the revised payscale as incorporated in PartA to the First Schedule to the Central Civil Services (Revised Pay) Rules, 1997 alone and the Institute has rightly implemented and granted the payscale of Rs. 45007000/ as specified in Part A to the First Schedule of C.C.S. (Revised Pay) Rules, 1997 in case of the Technical Assistants working under the National Institute of Foundry and Forge Technology.
12. The learned counsel for the respondentNIFFT has also submitted that the learned Single Judge erred in granting payscale of Rs. 50008000/ to the Technical Assistants, a scale which is not applicable in case of the Technical Assistants working in the NIFFT and therefore, the Institute has also filed Letters Patent Appeal being L.P.A. No. 522 of 2006. It is further submitted that the 8 recommendation made by the respondent no.5 to the respondentUnion of India for grant of payscale of Rs. 50008000/ to the Technical Assistants, was a recommendation merely forwarding the claim of the Technical Assistants to the Ministry of Human Resources Development and it cannot be construed as if the respondentInstitute has admitted the claim of the Technical Assistants for grant of payscale of Rs. 5000 8000/.
13. We have considered the submission of the learned counsel for the parties and perused the documents on record.
14. The Technical Assistantappellants were appointed on probation for a period of two years vide letter dated 21.03.1997 which contained the condition that, "in respect of other conditions of service you will be governed by the relevant rules and orders of the Institute in force from time to time." It is not in dispute that the respondentMinistry of Human Resources Development is the administrative controlling authority of the respondentInstitute and the directions issued by the respondent no. 1 are binding on the respondent no. 5Institute. As noticed hereinabove, the Ministry of Human Resources Development, Government of India vide Office Memorandum dated 08.12.1997 issued the following communications:
"The undersigned is directed to say that the Government of India has issued orders regarding revision of scales of pay of Central Government 9 employees on the recommendations of the Fifth Central Pay Commission. It has been decided that these orders may be extended to the employees of the autonomous organisations, statutory bodies, etc. Based on the orders issued by the Ministry of Finance, the following guidelines are issued for further necessary action. (I) The orders regarding revision of pay scales of the Central Government employees on the recommendations of Fifth Central Pay Commission , as accepted by the government, may be extended to the employees of autonomous organisations whose pattern of emolument structure i.e. pay scales and all other allowances are identical to those of the Central Govt.
employees. This is further subject to the stipulation that conditions of service of the employees of those organisations specially those relating to hours of work, payment of OTA, etc., would also be exactly similar to those in Central Government Departments. It is, however, clarified that the revised pay scales as incorporated in Part A of the First Schedule to the Central Civil Services (Revised pay) Rules, 1997, alone may be adopted."
15. The respondent no. 5Institute has taken a plea that as directed by the respondentMinistry of Human Resources Development, it has implemented the payscale as incorporated in PartA to the First Schedule in case of the technical Assistant working in the institute.
16. Relying on paragraph no. 50.23 of the 5th Pay Commission recommendation, the learned counsel for the Technical Assistantappellants has contended that the payscale of 10 Rs. 14002300/ was proposed to be revised in the payscale of Rs. 16002660/ for the Engineering Subordinate Cadre and since, the Technical Assistantappellants belong to Subordinate Engineering Cadre and who were appointed in the initial payscale of Rs. 14002300/, the payscale corresponding to the payscale of Rs. 16002660/ which is the payscale of Rs. 55009000/ should have been given to the Technical Assistantappellants. This contention merits no acceptance. As noticed above, the minimum educational qualification for the post of Technical Assistants in NIFFT was Bachelor's degree from a recognized university with Mathematics, Physics, Chemistry or experience of 3 years' Diploma having 2 years' Laboratory/Workshop or I.Sc. with all round Workshop/Laboratory Training and minimum 5 years' experience in Mechanical/Erection. It is thus seen that, even a person holding an Intermediate degree in Science is eligible to be appointed on the post of Technical Assistant in NIFFT. The claim of the Technical Assistantappellants that, since they possess a degree in Diploma Engineering they belong to Subordinate Engineering Cadre cannot be accepted. The respondentInstitute has categorically denied that the Technical Assistantappellants belong to the Subordinate Engineering Cadre. Merely because the Technical Assistantappellants possess degree in Diploma Engineering they cannot claim to be covered under the Paragraph no. 50.23 of the 5th Pay Commission Recommendation. 11
17. The contention of the learned counsel for the Technical Assistantappellants that in view of Paragraph No. 50.24, the pay scales indicated in Paragraph No. 50.23 would apply mutatismutandis for diploma engineers in different cadres and thus, it would be applicable in case of appellants also, cannot be accepted for the reason that in Paragraph No. 50.23 a recommendation has been made for improving the initial recruitment payscale of diploma engineers in Government. Admittedly, the Technical Assistantappellants were not appointed on the post of diploma engineers and apparently Paragraph No. 50.24 is attracted only when a degree in diploma engineering is prescribed as an essential educational qualification for being born in the cadre and since, as noticed above, a degree in diploma engineering is not an essential educational qualification for the post of Technical Assistant in NIFFT, the proposed payscale in Paragraph No. 50.23 cannot be implemented for the Technical Assistants working in NIFFT.
18. The contention of the Technical Assistantappellants is that, since the payscale of the Technical Assistants has been recommended to be revised in the payscale of Rs. 16002660/ and since the appellants being diploma engineers belong to Subordinate Engineering Cadre, their payscale should have been revised according to Item IX in PartB which deals with Subordinate Engineering Cadre and which prescribes 12 revised payscale of Rs. 55009000/ for the payscale of Rs. 16002660/. This contention by the appellants is based on the hypothesis that, (i) the appellants belong to Subordinate Engineering Cadre, and (ii) their initial payscale of Rs. 1400 2300/ has already been revised and thus converted in the pay scale of Rs. 16002660/. Both the assumptions are factually incorrect. In so far as, the appellants' contention that they belong to Subordinate Engineering Cadre is concerned, we do not find any material on record in support of such a claim. The respondent nos. 35 have categorically denied that appellants belong to Subordinate Engineering Cadre. In so far as, the assumption of the appellants that in view of the recommendation in Paragraph No. 50.23, the payscale of Rs. 16002660/ should have been taken as their prerevised payscale and the corresponding payscale of Rs. 55009000/ should have been given as prescribed under PartB to the First Schedule, is also factually incorrect. It has been made clear in Preamble to PartB itself that the concerned posts will be governed by the normal replacement scales until the Pay Commission Recommendations are accepted by the concerned Ministries. Moreover, as noticed hereinabove PartB to the First Schedule is not at all applicable to the Technical Assistants appointed in NIFFT. The Central Government vide its Office Memorandum dated 08.12.1997 has categorically directed that the revised payscale as incorporated in PartA to the First 13 Schedule to the Central Civil Services (Revised Pay) Rules, 1997, alone may be adopted.
19. Referring to the contention of the learned counsel appearing for the appellants that PartB to the First Schedule of the C.C.S. (Revised Pay) Rules, 1997 would apply in the case of the Technical Assistantappellants for fixing their payscale in terms of 5th Pay Revision Commission Recommendation, it is seen that the recommendations of the Pay Commission are made subject to fulfillment of specific conditions which inter alia, refer to change in recruitment rules, restructuring of cadres, redistribution of posts into higher group etc. It was left upon to the Ministries concerned to decide upon such issues and agree to the changes suggested by the Pay Commission. Before applying these scales to the posts with effect from 01.01.1996, it is also apparent that, it is implicit in the recommendations of the Pay Commission that the scales necessarily have to take prospective effect and the concerned posts will be governed by the normal replacement scales until then. As noticed above, the respondentMinistry of Human Resources Development vide its Office Memorandum dated 08.12.1997 directed that the revised payscales as incorporated in PartA to the First Schedule to the C.C.S. (Revised Pay) Rules, 1997, alone may be adopted and accordingly, the respondent no. 5NIFFT implemented the payscale as incorporated in PartA to the First Schedule to the Technical Assistant in NIFFT.
14
20. The learned Single Judge though found that the writpetitioners claimed that they be first placed in the payscale of Rs. 16002660/ and then the corresponding payscale of Rs. 55009000/ be given to them cannot be accepted however, taking note of Paragraph No. 50.24 the learned Single Judge held that since separate payscales have been notified under PartB for the diploma engineers, notwithstanding any direction by the Government of India to the contrary, the writpetitioners were entitled for grant of payscale of Rs. 50008000/. It is to be noticed that the Office Memorandum dated 08.12.1997 whereby the Ministry of Human Resources Development, Government of India issued a direction for implementation of revised payscale as incorporated in PartA of the First Schedule only, was not under challenge before the Writ Court. Further, the learned Single Judge has not dwelled upon the issue how the writpetitioners come under the category of diploma engineers in Subordinate Engineering Cadre though, the respondents have categorically denied that the writpetitioners do not belong to Subordinate Engineering Cadre. As noticed hereinabove, the Technical Assistants appointed under RespondentNIFFT do not belong to Subordinate Engineering Cadre and thus, the direction issued by the learned Single Judge granting payscale of Rs. 50008000/ to the Technical Assistantappellants assuming that they are diploma engineers belonging to Subordinate Engineering Cadre, is 15 erroneous and requires interference.
21. In view of the aforesaid discussion, we find no merit in the contention raised on behalf of the appellants in L.P.A. No. 638 of 2006 and L.P.A. No. 483 of 2006 and accordingly, the L.P.A. No. 638 of 2006 and L.P.A. No. 483 of 2006 are dismissed. Since, the learned Single Judge has directed the respondents to grant payscale of Rs. 50008000/ to the Technical Assistantappellants, a direction which in view of the facts noticed hereinabove, cannot be sustained, the L.P.A. No. 522 of 2006 preferred by the National Institute of Foundry and Forge Technology is allowed. Consequently, I.A. No. 2215 of 2007 in L.P.A. No. 522 of 2006 is also disposed of.
(R. Banumathi, C.J.)
(Shree Chandrashekhar, J.)
Jharkhand High Court at Ranchi
The 1st day of May, 2014
satyarthi/A.F.R.