Gauhati High Court
WP(C)/1537/2015 on 18 February, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
GAHC010232942015
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 1537/2015
GS-173517H-Sri C. Chandra Kumar,
S/O Late C. Cheilathurai, J.E.(Civil),
1444 BCC (GREF), (Deployed as I/C-Maintenance (P) Udayak at
Doomdooma, Assam),
C/O 99 APO, Pin-931444.
......Petitioner.
-Versus-
1. The Union of India,
Represented by the Secretary, Ministry of Defence,
New Delhi-110001.
2. The Secretary,
Ministry of Finance,
Department of Expenditure, North Block,
New Delhi-110001.
3. The Secretary (Personnel),
Department of Personnel and Training,
Ministry of Personnel, Public Grievance and Pensions,
North Block, New Delhi-110001.
4. The Director General,
Border Roads Organisation (BRO),
Seema Sadak Bhawan, Ring Road,
Delhi Cantt., New Delhi-110010.
5. The Secretary,
Border Roads Development Board,
Represented by its Secretary,
No.418, B Wing, 4th Floor, Sena Bhawan,
DHQ PO, New Delhi-110011.
6. The Principal Controller of Defence Accounts (Border Roads),
WP(C) 1537/2015 Page - 1 of 16
Seema Sadak Bhawan,
Ring Road, Delhi Cantt., New Delhi-110010.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
For the Petitioner: Mr. I.H. Saikia,
Ms. S. Kanungoe,
Mr. D. Borah,
Mr. K. Kalita,
Mr. M.R. Choudhury. ......Advocates.
For the Respondents: Mr. S.C. Keyal,
Asstt. S.G.I. ......Advocate.
Date of Hearing & Judgment : 18th February, 2020
JUDGMENT AND ORDER (ORAL)
Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Assistant Solicitor General of India, appearing for the respondents.
2. In this petition, the petitioner is seeking the benefits of revised pay scale in terms of the recommendation made by the 5 th Central Pay Commission (CPC) as well as 6th Central Pay Commission (CPC).
3. Only the relevant facts may be noted.
4. The petitioner, who is a Diploma holder in Engineering, which is duly WP(C) 1537/2015 Page - 2 of 16 approved by the All India Council for Technical Education (AICTE), joined the Border Roads Organisation (BRO) on 19.06.1990 as an Overseer. Subsequently, he was reappointed as Superintendent B/R-II after due selection on 20.08.1994. Later, the service of the petitioner as Superintendent B/R-II was redesignated as Junior Engineer w.e.f. 01.01.1996.
5. In the Border Roads Organisation (BRO) the Subordinate Engineers were categorised under three heads of posts, namely, (i) Overseer, (ii) Superintendent Grade-II and (iii) Superintendent Grade-I.
6. The 5th CPC made certain recommendation for revision of pay scales. The recommendation made by the 5th CPC for revision of pay was published on 30.09.1997, which came into effect from 01.01.1996. It appears from the records that the 5th CPC in their report submitted in 1997 had recommended the pay scale of ` 5000-8000/- for all posts carrying minimum direct recruitment qualification of Diploma in Engineering. The said recommendation was accepted by the Government.
7. It may be mentioned that for both the posts of Overseer (Civil) as well as the higher post of Superintendent Grade-II, possession of diploma is an essential qualification as far as the direct recruitment is concerned. For the same reason, the 5th CPC recommended the pay scale of ` 5000-8000/- in respect of Superintendent Grade-II, which recommendation was accepted by the Government of India.
WP(C) 1537/2015 Page - 3 of 16
8. Because of the aforesaid recommendation of the 5 th CPC for fixing of pay scale of ` 5000-8000/- in respect of posts requiring minimum entry level qualification for direct recruitment of Diploma in Engineering and even though the post of Overseer (Civil) was a feeder post for promotion to the higher post of Superintendent Grade-II, the next Pay Commission i.e. 6 th CPC had recommended that the post of Overseer may be upgraded and merged with the promotional post of Superintendent B/R-II.
9. However, it may be mentioned that even though the 5 th CPC had already recommended grant of the pay scale of ` 5000-8000/- to all posts carrying minimum direct recruitment qualification of Diploma in Engineering, the said revised pay scale was not extended to the post of Overseer (Civil) as well as to Superintendent Grade-II. It is in that context that when the 6 th CPC made the recommendation, it specifically dealt with the issues relating to the post of Overseer (Civil) as well as the promotional post of Superintendent Grade-II by recommending that the aforesaid pay scale of ` 5000-8000/- be paid to these posts and also recommending that the post of Overseer may be upgraded and merged with the promotional post of Superintendent B/R-II and the combined cadre be extended the scale of ` 5000-8000/- at the entry level.
10. The petitioner as mentioned above, though initially joined service as Overseer in the year 1990, was subsequently reappointed as Superintendent B/R-II in the year 1994. Thus, when the aforesaid recommendations were made WP(C) 1537/2015 Page - 4 of 16 by the 5th CPC for revision of the pay scale of those posts, which required the minimum entry level qualification for direct recruitment of Diploma in Engineering, the petitioner was already holding the post of Superintendent Grade-II and not the post of Overseer. Under such circumstances, the petitioner, who was already holding the post of Superintendent Grade-II, ought to have been given the benefit of the revised pay scale of ` 5000-8000/- as extended by the 5th CPC as well as by 6 th CPC. However, it appears that the petitioner was not granted such revised pay scale and accordingly, he approached the Madras High Court seeking the relief of grant of the revised pay scale of ` 5000-8000/- in terms of the recommendation of the 5 th CPC as well as 6th CPC and other reliefs. The learned Single Judge of the Madras High Court allowed his petition being WP(C) No.10758/2008 vide order dated 03.01.2011 by directing to revise the pay of the petitioner in the light of the 5 th and 6th CPC report from 01.01.1996 and 01.01.2006 respectively and to grant him the consequential arrears after deducting the legitimate dues to be paid by the petitioner etc. However, the said order passed by the learned Single Judge of the Madras High Court was set aside on appeal by the Division Bench of the Madras High Court on 21.08.2013 on the ground that the Madras High Court did not have territorial jurisdiction to entertain the writ petition. It was only after the said reversal of the said decision of the learned Single Judge in the Madras High Court, that the petitioner has filed this writ petition before this Court claiming the same relief and other ancillary reliefs.
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11. This petition also has been resisted by the respondent authorities by filing affidavit-in-opposition in this regard. The stand of the respondent authorities is to be found in paragraph 7 of the affidavit-in-opposition. The stand in short is that the 6th CPC never recommended time bound higher pay hike to Diploma Engineers of Border Roads Organisation. The position of the respondent authorities is also reflected clearly in their letter dated 25.02.2009 from the Ministry of Shipping, Road Transport & Highways, Border Roads Development Board addressed to the Director General Border Roads in rejecting the claim for revision of pay scale from 01.01.1996, which mentions that the upgradation of the pay scale has been given retrospective effect from 01.01.1996 for the purpose of pay fixation only and the actual benefits will accrue to the incumbents from 01.01.2006. Accordingly, for better appreciation, the aforesaid letter dated 25.02.2009 is reproduced hereinbelow:-
" BRDB/03/191/2007/GE-I
Government of India
Ministry of Shipping, Road Transport & Highways
Border Roads Development Board
'B', Wing, 4th Floor Sena Bhawan,
New Delhi, the 25th February 2009
To
The Director General Border Roads
Seema Sadak Bhawan
Ring Road, Delhi Cantt
New Delhi-110010
Subject: Merger of pay scale of diploma holder Overseer with the
WP(C) 1537/2015 Page - 6 of 16
promotional post of Superintendent BR Grade-II: Implementation of recommendation of 6th Central Pay Commission Sir, I am directed to refer to Dte.GBR's Note No.18368/Rev Pay/BR-II/6 th CPC/02/DGBR/T&C dated 21st October 2008 and to say that in pursuance of recommendations of 6th CPC, pay scale of diploma holder Overseer in BRO may be merged with the promotional post of Superintendent BR Grade-II and to place diploma holder Overseer and diploma holder Superintendent Grade-II (Civil & Electrical/Mechanical) in the scale of Rs.5000-8000 (pre-revised). This up-gradation has been approved by Ministry of Finance, Department of Expenditure (Implementation Cell) vide their UO No.7.39/2/2009-IC dated 20.2.2009 retrospectively wef. 1st January 1996 for the purpose of pay fixation only and actual benefits will accrue to the incumbents of these posts from 1 st January 2006.
Yours faithfully, Sd/-
(K.S. Rao) Under Secretary to the Govt. of India"
12. In order to appreciate the aforesaid stand as reflected in the letter dated 25.02.2009, Mr. Keyal, learned Assistant Solicitor General of India has drawn attention of this Court to the relevant portions of the recommendation made by the 6th CPC.
13. Referring to the said recommendation of the 6 th CPC, it has been submitted that it has been mentioned specifically therein that while dealing with the post of Overseer (Civil), the Commission advised the Government to implement the revision of pay retrospectively from 01.01.1996, at least for the WP(C) 1537/2015 Page - 7 of 16 purpose of fixation of pay. Accordingly, it has been submitted that since the 6 th CPC had recommended revision of pay scale with retrospective effect from 01.01.1996 for the purpose of fixation of pay only and it did not specifically recommend payment of arrear, the Department had taken the stand as mentioned in the letter dated 25.02.2009 for grant of the benefit with retrospective effect from 01.01.1996 for the purpose of pay fixation only and the actual benefit is to be given w.e.f. 01.01.2006.
14. Accordingly, it has been submitted by Mr. Keyal, learned counsel for the Union that since the 6 th CPC had also recommended for grant of revised pay scale w.e.f. 01.01.1996 for the purpose of fixation of pay only, the question of granting any actual benefit or arrear w.e.f. 01.01.1996 as claimed by the petitioner cannot be entertained.
15. As the stand of the Union respondents is derived from the recommendation of the 6th CPC, relevant portions of which have been annexed as Annexure-R2 in the affidavit-in-opposition filed by the respondents, this Court is of the view that a proper examination of the recommendation made by the 6th CPC would help reveal the correct position and unravel the problem. Accordingly, the relevant portions of the said recommendation made by the 6 th CPC are reproduced hereinbelow:-
"Border Roads Organisation Overseer (Civil) 7.39.22 Higher pay scale has been demanded for the post of WP(C) 1537/2015 Page - 8 of 16 Overseer (Civil) in Border Roads Organisation on the ground that the minimum qualification for the post is Diploma in Engineering. The post carries minimum direct recruitment qualification of Diploma in engineering. These minimum qualifications had been prescribed in 1996. Fifth CPC, in their Report submitted in 1997, had recommended the scale of Rs.5000-8000 for all posts carrying minimum direct recruitment qualifications of Diploma in Engineering. This recommendation was accepted. The post should consequently have been extended the scale of Rs.5000-8000 w.e.f. 1.1.1996. This was, however, not done. The Commission, accordingly, recommends that the post of Overseer may be upgraded and merged with their promotional post of Superintendent BR Grade-II (present scale Rs.4500-7000) and the combined cadre extended the scale of Rs.5000-8000. Since the Commission has recommended merger of the scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, the post will be placed in the revised Pay Band PB-2 of Rs.8700-34800 along with a grade pay of Rs.4200. Commission also advises the Government to implement this retrospectively from 1.1.1996, at least for the purposes of fixation of pay.
Superintendent 7.39.23 The post of Superintendent Grade II in the Civil Grade-II Engineering and Electrical & Mechanical Cadre has been extended the pay scale of Rs.4500-7000 even though the minimum qualifications of direct recruitment include diploma in Engineering, Fifth CPC had recommended placement of all posts requiring minimum entry level qualification for direct recruitment of Diploma in Engineering as Rs.5000-8000.. Even though the recommendation was accepted by the Government, it has not been extended in respect of this post because only some of the posts are filled through direct recruitment. This is not the correct interpretation of Fifth CPC recommendation as per which all posts carrying minimum qualification of Diploma in Engineering for DRs had to be placed in the scale of Rs.5000-8000. The post of Superintendent Grade II has an element of direct recruitment, minimum qualifications for which is Diploma in Engineering. The Commission, accordingly, recommends that the post of Superintendent Grade II may be placed in the Pay Band BP-2 of Rs.8700-34800 along with a grade pay of Rs.4200 WP(C) 1537/2015 Page - 9 of 16 corresponding to the pre-revised scale of Rs.5000-8000 that is now being merged with the scales of Rs.5500-9000 and Rs.6500-10500. Other posts similarly placed and carrying minimum qualification of diploma in Engineering should also be extended this pay scale."
16. A close examination of the aforesaid recommendation of the 6 th CPC, however, would reveal something else other than what has been contended by the Union respondents. Coming to the post of Overseer, the 6 th CPC had specifically made the finding that the benefit of revision of pay scale of ` 5000- 8000/- as applicable to posts where the minimum qualification required for direct recruitment is Diploma, which was accepted by the Central Government, in terms of the 5th CPC ought to have been also extended to the post of Overseer w.e.f. 01.01.1996. However, that was not done. Accordingly, the 6 th CPC recommended that the post of Overseer may be upgraded and merged with their promotional post of Superintendent Grade-II and the combined cadre should be extended the pay scale of ` 5000-8000/-. In that context it was recommended that since the Commission had recommended merger of the scales of ` 5000-8000/-, ` 5500-9000/- and ` 6500-10500/- the post will be placed in their revised pay band PB-2 of ` 8700-34800/- along with grade pay of ` 4200/- and the Commission further advised the Government to implement this retrospectively from 01.01.1996 at least for the purpose of fixation of pay.
17. True, the 6th CPC had made the recommendation to implement this revision of pay retrospectively from 01.01.1996 for the purpose of fixation of pay. However, while making the recommendation it was so done in the context WP(C) 1537/2015 Page - 10 of 16 of upgradation of the post of Overseer to the higher post of Superintendent B/R-II. It may be mentioned herein that when the 5 th CPC as well as the 6th CPC made the said recommendation, the petitioner was already holding the post of Superintendent Grade-II having been appointed as such in the year 1994 i.e. prior to the recommendation of the 5 th CPC. In fact, perusal of the recommendation of the 6th CPC as extracted above, would also fairly indicate that the 5th CPC also had recommended the fixation of pay scale of ` 5000- 8000/- in respect of posts requiring minimum entry level qualification for direct recruitment of Diploma in Engineering. There is no dispute to the fact that the entry level qualification required for appointment to the post of Superintendent Grade-II is Diploma in Engineering. Unfortunately, the said benefit was not given to the Superintendent Grade-II, which has been clearly reflected in the recommendation made by the 6th CPC by stating that even though the recommendation was accepted by the Government, it has not been extended in respect of this post (i.e. Superintendent Grade-II) because only some of the posts were filled through direct recruitment. The 6 th CPC, however, made the observation that this is not the correct interpretation of the 5 th CPC recommendation as per which, all posts carrying minimum qualification of Diploma in Engineering for direct recruitment had to be placed in the scale of ` 5000-8000/- and the post of Superintendent Grade-II has an element of direct recruitment minimum qualification for which it is Diploma in Engineering.
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18. Under the aforesaid circumstances, the 6 th CPC also made the recommendation in respect of Superintendent Grade-II that this post may be placed in the pay band PB-2 of ` 8700-34800/- along with the grade pay of ` 4200/- corresponding to the pre-revised scale of ` 5000-8000/- i.e. now being merged with the scale of ` 5500-9000/- and ` 6500-10500/-.
19. It may be also mentioned that while making the said recommendation in respect of Superintendent Grade-II, the 6 th Pay Commission never advised the Government to implement this retrospectively from 01.01.1996 for the purpose of fixation of pay only. In other words, this Court would also hold that the recommendation of the Commission to the Government to implement the revision of pay retrospectively from 01.01.1996 for the purpose of fixation of pay scale was in respect of the post of Overseer which was merged with the post of Superintendent Grade-II and no such recommendation was made in respect of the post of Superintendent Grade-II to which the petitioner was already appointed in the year 1994 as mentioned above. Therefore, this Court would hold that even if the Department would be entitled to take the decision to grant the benefit of revision of pay w.e.f. 01.01.1996 for the purpose of fixation of pay only and to grant the actual benefit from 01.01.2006, it can be only in respect of those person who were holding the post of Overseers whose posts will be merged with Superintendent Grade-II in terms of the recommendation made by the 6th CPC. This limitation or qualification, however, WP(C) 1537/2015 Page - 12 of 16 will not be applicable in respect of those incumbents like the petitioner who were already holding the posts of Superintendent Grade-II to which posts the posts of Overseers were merged.
20. Accordingly, this Court would hold that the decision taken by the Department as contained in the letter dated 25.02.2009 cannot be applicable in respect of the petitioner who was already holding the post of Superintendent Grade-II. Had he been holding the post of Overseer, perhaps this decision contained in the letter dated 25.02.2009 would have been applicable with full force.
21. Accordingly, this Court would hold that the petitioner would be entitled to revision of pay scale of ` 5000-8000/- in terms of the 5 th CPC recommendation with retrospective effect from 01.01.1996 and would be entitled to the arrears thereof and also would be entitled to the benefit of corresponding revision of pay of ` 8700-34800/- in terms of the recommendation made by the 6 th CPC w.e.f. 01.01.2006.
22. Though the petitioner can claim to be entitled to the revision of pay as mentioned above w.e.f. 01.01.1996 and 01.01.2006, Mr. Keyal has submitted that even if he is found to be entitled in law, he would be debarred from getting the benefit because of delay and latches.
23. In this regard, Mr. Keyal, learned Assistant Solicitor General of India for the Union has relied on a decision of the Hon'ble Supreme Court rendered in WP(C) 1537/2015 Page - 13 of 16 Union of India and others Vs. Tarsem Singh 1, by referring to paragraph 5 thereof, which reads as follows:-
"5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
24. In the said case, the Hon'ble Supreme Court held that applying for the benefit relating to arrears should be restricted to the period of 3 years prior to the date of filing of the writ petition and accordingly, the Hon'ble Supreme Court rejected the plea in the said petition as there was a delay of 16 years. 1 Civil Appeal No.5151-5152/2008, decided on 13.08.2008 WP(C) 1537/2015 Page - 14 of 16
25. Mr. Keyal, learned Assistant Solicitor General of India submits that in the present case since the petition was filed in the year 2015 in respect of a decision taken by the department in 2009, there is an inordinate delay of about 6 years and as such the claim made by the petitioner should be rejected on the ground of delay and latches.
26. In response to this contention, learned counsel for the petitioner Mr. Saikia has submitted that it cannot be said that there was undue delay on the part of the petitioner. It has been submitted that, in fact, the petitioner had been pursuing his relief by approaching the Madras High Court in the year 2008, which unfortunately was rejected ultimately by the Division Bench of the Madras High Court on the ground of lack of territorial jurisdiction and soon thereafter, the petitioner approached this Court and as such it cannot be said that there was delay and latches on the part of the petitioner. He submits that merely because the petitioner had approached the wrong forum ought not to dis-entitle him from seeking the relief claimed in this petition and in fact, the Madras High Court on merit had granted the relief claimed which however, was negated by the Division Bench on the ground of being beyond the territorial jurisdiction as mentioned above.
27. This Court is also of the view that though the present petition might have been filed in 2015, the petitioner had been pursuing for redressal of his grievance since 2008 though in the wrong forum and as such it cannot be said WP(C) 1537/2015 Page - 15 of 16 that this petition is barred by delay. Time consumed in seeking redressal in a wrong forum can be always taken into account while considering the issue of limitation. Had the decision of the learned Single Judge of the Madras High Court been upheld, the issue of delay raised by the respondents, could not have been agitated.
28. As regards the other relief claimed in this petition, namely, for grant of project allowance as well as uniform allowance, learned counsel for the petitioner is not pressing for the same and as such no order is required to be passed in that regard.
29. Accordingly, for the reasons discussed above, the petition is allowed.
30. The respondent authorities are directed to grant the petitioner the revised pay scale of ` 5000-8000/- with arrears w.e.f. 01.01.1996 in terms of the recommendation of the 5th CPC and the corresponding arrears of benefit w.e.f. 01.01.2006 in terms of the recommendation made by the 6 th CPC to the post of Superintendent Grade-II, which was accepted by the Department on 25.02.2009. Accordingly, the decision of the Department taken on 25.02.2009 is modified to the extent that the petitioner would be entitled to the arrears as well, and not only be limited to pay fixation, as far as the petitioner is concerned.
Sd/- N. Kotiswar Singh
JUDGE
Comparing Assistant
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