Central Administrative Tribunal - Hyderabad
T Sita Rao vs M/O Labour &Amp; Employment on 26 September, 2018
1 OA 990/2017 & 991/2017
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH: HYDERABAD
Original Application No.021/00990/2017 &
Original Application No.021/00991/2017
Date of CAV: 03.09.2018
Date of Pronouncement:26.09.2018
Between:
Smt. T. Sita Rao, Aged about 64 years,
Welfare Commissioner (Retd),
W/o. Shri T.K. Rao,
Welfare Commissioner (Retd.),
R/o. Plot No. 213, Road No. 6, Ramakrishnapuram,
Saroornagar, Hyderabad - 500102.
... Applicant in both the OAs
And
1. The Union of India,
Rep. by the Secretary,
Govt. of India, Ministry of Labour & Employment,
Shram Shakti Bhavan, Rafi Marg,
New Delhi - 110001.
2. The Director General (Labour Welfare),
Govt. of India, Ministry of Labour & Employment,
Jaisalmar House, Mansingh Road,
New Delhi - 110001.
... Respondents in both the OAs
Counsel for the Applicant ... Mr. T. Koteswara Rao, Advocate
Counsel for the Respondents ... Mr. A. Radhakrishna, Addl. CGSC
CORAM:
Hon'ble Mr. Justice R. Kantha Rao, Member (Judl)
Hon'ble Mr. B.V. Sudhakar, Member (Admn.)
COMMON ORDER
{As per Hon'ble Mr. B.V. Sudhakar, Member (Admn.) } These two OAs 990 & 991 of 2017 could be dealt with by a common order since they relate to the alleged erroneous fixation of pay of the applicant at two stages leading to the claim of the applicant (a) as to arrears of pay and 2 OA 990/2017 & 991/2017 allowances in the JAG level and (b) effective date of NFSG scale and fixation of pay accordingly. This common order would thus, dispose of both the O.As.
2. The challenge in these two OAs is assailing the letter No.C- 18011/15/2013-CLS.1 (Vol.II) dt 31.10.2017 whereby the respondents have rejected the representations dt 6.4.2017 and 23.9.2017 of the applicant wherein she had claimed pay parity and consequential benefits arising out of a decision of the Madras Bench of the Tribunal in OA No. 1312/2010 in the case of one Shri Kandaswamy, an STS Officer of Central Labour Service.
3. A thumbnail sketch of the facts of the case:
The applicant belongs to the Gr. A cadre of the Central Labour service (CLS) under the Ministry of Labour and Employment. She retired while holding the post in Gr-III on 30.11.2013. The Applicant approached this Tribunal in OA No.837/2013 praying for grant of promotion w.e.f. 1.7.2001 from Grade V to Grade IV and also in OA No.1460 of 2013 praying for promotion w.e.f 1.9.2012 from grade IV to grade III post of CLS with all consequential benefits, on the strength of a judgment of the Chennai Bench of this Tribunal in the aforesaid case of Kandaswamy. Her claims as stated above was accepted by the Tribunal and accordingly this tribunal vide orders dt. 10.9.2015 passed necessary orders for affording the applicant the benefits as made available to the said Kandaswamy. When the orders were not complied with, the applicant ignited the contempt jurisdiction of this Tribunal and it was in the wake of the same that the respondents granted notional promotion w.e.f. 1.7.2001 in Grade IV vide order dt. 5.7.2016 and w.e.f. 1.9.2012 vide order dt. 20.7.2016 in Grade III but did not grant consequential benefits. The applicant made a representation dt 6.4.2017 on the same and the Contempt petition was closed taking judicial notice of the above development and with a direction to the respondents to dispose of the 3 OA 990/2017 & 991/2017 representation within 30 days with liberty to the applicant to move the Tribunal again, in case the response of the respondents was not addressing her grievance.
The applicant made another representation dt 23.9.2017 stating that her pay was fixed w.e.f 1.7.2001 and 1.9.2012 i.e. the dates of granting of notional promotions in Grade IV and Grade III respectively and therefore her promotions have to be treated as regular. Accordingly she is entitled for NFU/ NFSG (Non Functional Selection Grade) w.e.f 1.4.2007 and 1.9.2012 respectively. Applicant enclosed the copy of the lr. dt 9.3.2017 of Regional Labour Commissioner, Cochin indicating that Mr Kanda Swamy was given N.F.U (Non functional upgradation) and paid arrears of Pay & allowances from the date of notional promotion granted to him on 13.10.2006 along with her representation made on 23.9.2017 to the respondents . The respondents rejected her request stating reasons.
4. Applicant's main contention is that the Respondents are duty bound to extend all benefits extended to Mr Kanda Swamy by Hon'ble CAT, Chennai Bench to her as per this Tribunal orders in OA Nos.837/2013 and 1460 of 2013. Once pay is fixed as on the date of granting promotion it implies that the promotion is regular and hence eligible to be granted eligible benefits from the dates of notional promotions to the respective grades.
5. Applicant's main prayer sought in OA 991/2017 is: i) Arrears of pay and allowances to the applicant w.e.f. 01.07.2001 i.e. the date of notional promotion to the post of Grade IV of CLS vide Order No. 16 of 2016, dated 05.07.2016 (File No. C-18011/11/2013-CLS-I) as granted to Shri K. Kanda Swamy vide office order No. Amm.1-14(07)/2011, dated 11.11.2001, (ii) Non-Functional Upgradation (NFU) to the applicant in PB-3 by considering her service w.e.f. 1.7.2001, i.e. the date of notional promotion to the post of Grade IV of CLS, as 4 OA 990/2017 & 991/2017 granted to Shri K. Kanda Swamy vide orders of the Ministry No. A.31011/02/2009-CLS-1 (Pt) dated 27.02.2015 by considering his service from the date of notional promotion w.e.f. 13.10.2006.
(ii) in OA 990/2017, she sought for placing her in the NFSG w.e.f. 01.09.2012 on granting promotion to her as per the orders of the Hon'ble Tribunal in OA No. 1460 of 2013.
6. Respondents submitted that the orders dated10.9.2015 of this Tribunal are under challenge before the Hon'ble High Court in W.P. No. 5621/2016 and 6479/2016. Nevertheless, the applicant has been granted notional promotion from Grade V to Grade IV w.e.f. 1.7.2001 and Grade IV to Grade III w.e.f 1.9.2012, with a rider that the same is subject to the outcome of the said W.P Nos. 5621/2016 and 6479/2016 respectively. The applicant took charge of the promotional posts on 11.02.2005 and 23.05.2013 respectively. In case of NFU the respondents state that the benefits flow from the date she joined the Grade IV on 11.02.2005. However, in respect of NFSG, the respondents claim that provision exists for grant of Non Functional Selection Grade (NFSG) to those who are in JAG grade. As per DOP&T OM no 22/1/2000-CRD dt 6.6.2000 "Officer should first hold the post in the basic grade of Junior Administrative Grade before he could be considered for appointment to NFSG". In tune with the above condition, on the applicant's assuming the said promotional post in the JAG, she had been afforded the NFSG grade vide order No. 20 of 2014 dt 5.9.2013, making the same retrospective from 23.5.2013. Respondents further clarify that in regard to Mr Kanda Swamy they granted notional promotion w.e.f.13.10.2006 by the review DPC held on 9.9.2011 as per CAT Chennai Bench orders to correct the error of not considering his candidature in the DPC held on 20.6.2006 though vacancies were available. In case of the applicant the 5 OA 990/2017 & 991/2017 regular DPC met on 15.4.2013 for vacancies of the year 2012-13 and accordingly she was promoted to JAG on 22.5.2013 which she joined on 23.5.2013. Respondents emphasize that the claim of the applicant to consider her NFSG from the date of notional promotion i.e. 1.9.2012 is against rules and hence cannot be considered since DPC met for the vacancies of 2012-13 on 15.4.2013 and orders for promotion were issued on 22.5.2013. Whereas in case of Mr Kanda Swamy, the DPC met on 9.9.2011 for the vacancies of the year 2005-06. The promotion of Mr Kanda Swamy was given from 13.10.2006, the date on which orders were given for others and not from the vacancy year ie 1 st July or 1 Sep of 2005-06. Therefore the claim of the applicant to grant regular promotion from the date of the vacancy year is not tenable. Respondents quote DOP&T letter no. F.22011/5/86-Estt.D dt 10.4.1989 wherein it was specified that promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier years and therefore the Ministry filed Writ Petitions in Hon'ble High Court of Judicature at Hyderabad for the State Telagana and the State of Andhra Pradesh against orders of the Honorable CAT, Hyderabad Bench. The respondents reaffirm that they have complied with the orders of this Tribunal by granting notional promotion w.e.f 1.7.2001 and 1.9.2012 respectively and also fixing pay from the said dates. The respondents also state that the applicant is repeatedly misleading the Tribunal and is asking for reliefs which were already granted as per the extant of rules in compliance with the Tribunal orders and therefore it is res judicata too. Therefore the OAs have no merit and need to be dismissed.
7. Heard the ld counsel appearing on behalf of both the parties. The issue is whether the applicant is entitled to arrears of pay and allowances in respect of 6 OA 990/2017 & 991/2017 her promotion to the Grade IV w.e.f. 01.07.2001 followed by NFU and to the JAG grade w.e.f. 01-09-2012 coupled with NFSG as claimed.
8. First as to promotion with retrospective effect from 01-09-2012 in the JAG: On the basis of the decision in "Kanda Swamy" the applicant has been granted promotion w.e.f. retrospective effect from 01-09-1992. This has been treated as notional. The question for consideration is whether the notional character should be obliterated and promotion made is treated as regular. Vacancy existed from 01-09-2012. It is not on account of any deficiency with the applicant that the promotion was delayed. As such there is no reason to deprive the applicant from grant of actual pay from the date of retrospective promotion. Thus, the applicant is entitled to the pay and allowance as of JAG from 01-09-2012. Similarly, on same logic from 01.07.2001 in respect of the vertical movement from Grade V to Grade IV.
9. Next is as to NFSG. The rules on the subject as pointed out by the respondents in their counter is that as per DOP&T OM no 22/1/2000-CRD dt 6.6.2000 "Officer should first hold the post in the basic grade of Junior Administrative Grade before he could be considered for appointment to NFSG". According to the respondents earlier, the applicant was promoted as JAG w.e.f. 22-05-2013, which was advanced to 01-09-2012. Thus, the period from 01.09.2012 till 22.05.2013 was treated as notional promotion and from 23.05.2013, the promotion was taken as actual and the above provisions of NFSG was applied and pay on actual basis in the NFSG was afforded by the respondents. We differ. When the notional character in respect of promotion as on 01-09-2012 had been changed to one of actual vide the preceding paragraph, notwithstanding the fact that the applicant did not hold the post physically, she shall have to be construed as having actually held the post. Thus, her entitlement 7 OA 990/2017 & 991/2017 to draw the NFSG scale crystallizes from 01-09-2012 itself. Support could be drawn from the decision of the Apex Court in the case of Union of India vs K.B. Rajoria (2000) 3 SCC 562. In that case, one Mr. Krishnamoorti was granted notional promotion as Additional Director General on 10-06-1998 with retrospective effect from 22-02-1995. For further promotion as Director General, the requirement was 8 years regular service. Mr. Krishnamoorti could fulfil this condition only if the notional promotion has been reckoned as regular service. The Apex Court in this case has held as under:-
12. The decision which is somewhat apposite is the case of K. Madhavan v.
Union of India where the eligibility requirement was eight years in the grade "on a regular basis". In that case it was held:
"In our view, therefore, the expression „on a regular basis‟ would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis."
13. It is nobody's case that the notional promotion granted to Krishnamoorti was "irregular". By giving him notional promotion as Additional Director General with effect from 22-2-1995, Krishnamoorti was in fact regularly appointed to the post on that date.
The ratio in the above judgment applies in full to the facts of the case in hand. This is our considered view.
10. However, as of date, the applicant is not in service having already superannuated and writ petition Nos. W.P. No. 5621/2016 and 6479/2016 of 2016 against the earlier orders itself are pending and the benefits of promotions afforded to the applicant have all been made subject to outcome of the said W.Ps. The outcome could be either in favour of the respondents herein or in 8 OA 990/2017 & 991/2017 favour of the respondent before the High Court. In case the applicant is paid the arrears of pay and allowances, and later on if the W.Ps are decided against the applicant, as a pensioner, she may not be in a position to repay the amount drawn. Thus, a via media has to be arrived at as under. Respondents shall work out the amount of arrears of pay and allowances by treating her notional promotion from Grade V to Grade IV as regular on 1.07.2001 and from Grade IV to Grade III on 1.9.2012 along with consequences of granting NFU/ NFSG as discussed above and after deducting any payments made on this count, the disbursement shall be made only when the W.Ps are decided in favour of the applicant. While so disbursing after the disposal of the W.Ps. the respondents shall increment the amount of arrears of pay and allowances worked out with interest calculated at the rate applicable for senior citizens in a nationalized bank and pay the same to the applicant.
11. The OAs are disposed of accordingly. No orders as to costs.
(B.V. SUDHAKAR) (JUSTICE R. KANTHA RAO)
MEMBER (ADMN.) MEMBER (JUDL.)
Dated, the 26th day of September, 2018
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