Central Administrative Tribunal - Ernakulam
S. Haja Najeemudeen vs Director on 7 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 882 of 2010
Wednesday, this the 07th day of March, 2012
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
S. Haja Najeemudeen
Technical Officer (T-5)
Central Marine Fisheries Research Institute (CMFRI)
(Indian Council of Agricultural Research)
P.B. No. 1603, Ernakulam North (P.O)
Cochin - 18. .... Applicant.
(By Advocate Mr. P.K. Madhusoodhanan)
versus
1 Director, Central Marine Fisheries Research Institute
(Indian Council of Agricultural Research)
P.B. No. 1603, Ernakulam North (P.O)
Cochin - 18.
2 TheSecretary
Indian Council of Agricultural Research (ICAR)
Krishi Bhavan, New Delhi
3 Union of India represented by its Secretary
Ministry of Agriculture
Krishi Bhavan, New Delhi - 110 114. .... Respondents
[By Advocate M/s. Varghese & Jacob (R1-2) and
Mr. Varghese P. Thomas, ACGSC (R3)]
This application having been heard on 17.02.2012, the Tribunal on 07.03.12
delivered the following:
O R D E R
By HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER A brief background of the case is as follows:
2. On the recommendations of the IIIrd Central Pay Commission, the Computers in various Institutes under the Indian Council of Agricultural Research (ICAR) were given the pay scale of Rs. 330-560, but the Computers in the ICAR who were designated as Senior Computers were granted the higher pay scale of Rs. 425-600. The claim of Computers from All India Coordinated Rice Improvement Project for the pay scale of Rs. 425-600 was upheld by the Hon'ble High Court. The Writ Appeal as well as the S.L.P. filed against the order of the Hon'ble High Court was dismissed. Thus, the fitment of a Computer under the respondents was in the scale of Rs. 425-600 from 01.01.1973 onwards.
3. The ICAR constituted Agriculture Research Services (ARS) and Technical Services (TS) with effect from 01.10.1975. The Post Graduate ARS Scientists were given the pay scale of Rs. 550-900 and Graduate Technical Assistants were given the scale of Rs. 425-700 with effect from 01.10.1975, although both were doing the same job. The Industrial Tribunal in its award dated 04.02.1988 in I.D. No. 09/82 held that the Graduate TS were entitled to the scale of Rs. 550-900 with effect from 01.10.1975. The SLP No. 5204/1989 filed against the above award was dismissed by the Hon'ble Supreme Court on 06.02.1989 and the Review Application filed against the same was also dismissed by the Apex Court on 27.10.1989. In its order dated 07.09.1993 in O.A. No. 1084/HP/90, the Chandigarh Bench of this Tribunal directed the respondents to fix the pay of the applicant-TA therein in the scale of Rs. 550-900 with effect from 01.10.1975 and to grant him consequential benefits. Thus, a graduate Technical Assistant under the respondents was given placement on par with his Post Graduate Counterparts in the ARS in the pay scale of Rs. 550-900 with effect from 01.10.1975 onwards.
4. The applicant in this O.A was granted along with 3 others the pay scale of Rs. 425-700 with effect from 01.10.1975 vide letter dated 07.06.2003 and further promotion vide letter dated 19.09.2003, which were withdrawn before being made effective. O.A 642/2006 was filed before this Tribunal challenging the order of withdrawal. The O.A was allowed, vide order dated 05.12.2007, extending the benefits granted by Annexures A-3 and A-4 orders to the applicants. The order of the Tribunal in O.A No. 642/2006 was upheld in W.P. (C) No. 9674/2006 dated 07.04.2008 by the Hon'ble High Court of Kerala and in C.A No. 5234/2008 dated 05.05.2009 by the Apex Court.
5. The Annexure A-3 order in O.A. No. 642/06 reads as under :
"CENTRAL MARINE FISHERIES RESEARCH INSTITUTE (INDIAN COUNCIL OF AGRICULTURAL RESEARCH) P.B. No. 1603, TATAPURAM P.O, KOCHI - 682 014.
No. 27-3/94-Adm. Dated : 07.06.2003
OFFICE ORDER
In pursuance of the directives given in Council's letter No. Misc./2001-IA, VI dated 10.08.2001 and the legal opinion thereof obtained from the departmental Counsel vide his letter dated 12.10.2001 and also the report of the Committee comprising the Deputy Director General (Fy.), the Deputy Secretary (Adm.) and the Under Secretary (Fy.), ICAR forwarded under letter No. PS/DDG/(Fy.)/2003 dated 28.03.2003, the undersigned is pleased to implement the orders contained in the judgement of Supreme Court forwarded by the Council vide letter No. 3-6/89-Law-Estt.IV dated 15.01.98 and consequently place the following technical personal who were earlier holding the post of Computors in the scale of pay of Rs. 330-560 in the grade of T-II-3, in the pay scale of Rs. 425-700 under Category-II with effect from 1.10.75 or from the date of their appointment as Computer, as the case may be, as indicated against each :-
S. No. Name of the official Date
1. Sh. A. Kanakkan 01.10.75
2. Sh. S. Haja Najeemudeen 01.10.75
3. Sh. C.J. Prasad 23.04.76
4. Smt. P.L. Ammini 20.11.76
Sd/-
(Mohan Joseph Modayil)
Director "
The portion from Annexure A-4 order in O.A. No. 642/06 relevant to the applicant is extracted as under :
"CENTRAL MARINE FISHERIES RESEARCH INSTITUTE (INDIAN COUNCIL OF AGRICULTURAL RESEARCH) P.B. No. 1603, TATAPURAM P.O, KOCHI - 682 014.
No. 27-2/2003-Adm. Dated : 19.09.2003
OFFICE ORDER
In pursuance of this Office Order of even number dated 7.6.2003 and on the recommendations of the Review Assessment Committee for the grant of merit promotion/advance increments in different grades within category II of Technical Service Rules based on their placement in Computer T-II-3 (Rs. 425-700) with effect from 1.10.75 or from the date of their actual appointment, whichever is later, the undersigned is pleased to approve grant of promotion/advance increments to the following technical personnel in different grades with effect from the dates as indicated below, until further orders:- ..........................
Name Existing Period of Grade to which Effective
Designation, Grade Assessment promotion/No. Of date of
& Pay scale advance increments promotion/
granted with scale of advance
pay increments
Computer T-II-3 1.10.75 to Computer, T-4 1.1.87
Sh. S. Haja Rs. 425-700 30.09.80 Rs. 650-1200
Najeemudeen Computer T-4 1.7.81 to Technical Officer T-5 1.1.87
Rs. 550-900 30.6.86 Rs. 650-1200
Technical Officer 1.1.87 to Three advance 1.7.92
T-5. Rs. 650-1200 31.12.91 increments as
admissible in the pay
scale Rs. 650-1200
.....................................
The above individuals may exercise necessary option for fixation of their pay in each grade to which they have been granted promotion as per the provisions contained in FR-22 (I)(A)(1) within one month from the date of issue of this order.
Sd/-
(Mohan Joseph Modayil) Director"
The applicant who joined the service of CMFRI, Kochi, as Computer on 10.02.1975, was placed in the pay scale of Rs. 425-700 in T-II-3 grade (Computer) with effect from 01.10.1975, granted assessment promotion to T-4 grade on 01.07.1981, promoted to T-5 grade on 01.01.1987, granted 3 advance increments in T-5 grade on 01.07.1992 and assessment promotion as Technical Officer (T-6 grade) with effect from 01.01.1999.
6. Now, based on the award dated 04.02.1988 in I.D.No. 09/1982, the Chandigarh Bench of this Tribunal in O.A. No. 1084/HP/1990 dated 05.12.2007 and the judgements of Hon'ble Supreme Court in SLP No. 5204/1989 dated 06.02.1989, Civil Appeal No. 486/91 dated 19.07.1994 and SLP (Civil) No. 10378/06 dated 14.07.2006, the applicant herein has filed this O.A for the following reliefs:-
(a) Issue necessary directions to the 1st respondent to induct the applicant in scale of pay of Rs. 550-900 in T-4 grade with effect from 1-10-1975, in view of the series of dictums rendered by the various Benches of this Hon'ble Tribunal, upheld by various High Courts and also the Apex Court of India, treating similarly situated alike, extending the benefits uniformly to all similarly placed and grant all consequential benefits arising therefrom, including monetary arrears, with in a time limit to be fixed by this Hon'ble Tribunal;
(b) Issue necessary directions to the 1st and 2nd respondents to consider and pass orders on Annexures -A4 and A5 in accordance with law and the rulings rendered in similar cases, applying the dictum rendered therein and grant and disburse to the applicant all the benefits arising therefrom including monetary benefits, within a time limit to be fixed by this Hon'ble Tribunal;
(c) Declare that the applicant is eligible to be inducted in to scale of pay of Rs. 550-900 in T-4 grade with effect from 1-10-1975 as granted to the applicants in Annexures - A2, A3, A6, A7 and A8 and similar judgments issued in respect of Technical personnel in Technical Service in ICAR and institutes under it, treating similarly situated alike.
(d) Issue necessary directions to the respondents to grant the applicant all consequential revisions in his pay through out his service and disburse all benefits arising therefrom, including monetary arrears, at the earliest.
(e) Award costs of these proceedings.
(f) Grant such other and further reliefs as this Hon'ble Tribunal
deems fit and proper.
7. The contention of the applicant is that he is identically situated as the applicant in O.A. No. 1084/HP/90 ( Annexure A-2) and similar orders. He was granted the pay scale of Rs. 425-700 with effect from 01.10.1975 in July, 2009, in order to give parity with the Graduate Computers of other ICAR Institutes, pursuant to the decision dated 05.12.2007 in O.A. No. 642/06, which was upheld in W.P.(C) No. 9674/08 by the Hon'ble High Court of Kerala dated 07.04.2008 and the Apex Court in Civil Appeal No. 5236/2008 dated 05.05.2009 respectively. His representations as at Annexures A-4 and A-5 for the pay scales of Rs. 550-900 with effect from 01.10.1975 and Rs. 650-
1200 with effect from 01.07.1976 and consequential fixation and benefits arising therefrom as given to the similarly situated as he is, met with no result. He is the only Computer appointed prior to 01.10.1975 now available and denied the above benefits in the Technical Service of CMFRI and ICAR.
8. The objection against granting the pay scale of Rs. 550-900 with effect from 01.10.1975 and Rs. 650-1200 from 01.07.1976 to the applicant on par with similarly situated Computers and Technical personnel is that there is no provision in the Technical Service Rules and in the judgements of Hon'ble Supreme Court in C.A. No. 4729/91 dated 06.10.1994 and C.A. No. 6673/97 dated 26.09.1997. Not extending the benefits already granted to other Computers, to the applicant, when all functional requirements are identical, is violative of the principle of equality and the principle of equal pay for equal work. As per the judgement of the Apex Court in State of Kerala vs. B. Renjith Kumar, (2009) 1 SCC (L&S) 142, and the orders in O.A. No. 3052/2009 dated 19.02.2010 and in O.A. No. 164/2009 dated 19.02.2009 of the CAT, Principal Bench, New Delhi, benefit of a decision, which has become final has to be extended to all similarly situated employees regardless of the fact that they were or were not parties to the litigation. In M.A. No. 822/2009 in O.A. No. 642/06, the respondents had assured that they would grant all consequential benefits to the applicant. However, the respondents have revised the service benefits to the applicant only form 01.10.1975 instead of 10.02.1975, the date on which he was appointed. The judgements in C.A. No. 4729/91 and C.A. No. 6673/97 were delivered in a different context and are not applicable to the present case. The applicant would be satisfied and would not press for revision from 10.02.1975, if he is given placement in the pay scale of Rs. 550-900 with effect from 01.10.1975 and in the pay scale of Rs. 650-1200 with effect from 01.07.1976 with all consequential benefits as granted to similarly situated Computers. The fitment under Technical Service Rules and placement as directed by various Courts are two different subject matters which can co-exist in Technical Service Rules. The applicant has been granted only the fitment in the pay scale of Rs. 425-700 with effect from 01.10.1975 and not the placements done on granting parity with his counter parts in the ARS.
9. The respondents in their reply statement took the stand that the Hon'ble Supreme Court in C.A. No. 4729/91 (Director, General Rice Research Institution & Anr. vs. Khetra Mohan Das) dated 06.10.1994 and C.A. No. 6673/97 dated 26.09.199 (ICAR & Anr. vs. Bibuhti Bhushan Nayak & Ors.) had held that the applicants would be entitled for consideration for promotion to Grade T-4 Category-II in the pay scale of Rs. 550-900 after their fitment in the pay scale of Rs. 425-700 with effect from 01.10.1975 in the Technical Service. The benefit of the scale of Rs. 550-700 and Rs. 650-1200 with effect from 1.10.1975 and 01.07.1976 respectively were extended to Shri A.B. Das, Smt. Sanjukta Das and Shri Ashok Patnaik erroneously. It is settled position in law that nobody can claim parity with an illegal or erroneous decision taken earlier. The illegality cannot be allowed to perpetuate. The applicant was inducted into T-2 grade with effect from 01.10.1975. He has been granted the pay scale of Rs. 425-700 in T-3 grade with effect from 01.10.1975 and Rs. 550-900 in T-4 grade with effect from 01.07.1981 as per the orders of Hon'ble Supreme Court. The claim of the applicant for induction into T-4 grade in the pay scale of Rs. 550-900 with effect from 01.10.1975 is not sustainable under law in view of the judgements in Civil Appeal Nos. 4729/91 dated 06.10.1994 (Annexure R/2) and 6673/97 dated 26.09.1997 (Annexure R/3) and as per provisions in the TSR.
10. Heard Mr. P.K. Madhusoodhanan, learned counsel for the applicant and M/s. Varghese & Jacob, learned counsel for respondents 1 and 2 and Mr. Varghese P. Thomas, ACGSC, learned counsel for the respondent No.3 and perused the records.
11. During the pendency of the O.A, the applicant was given a reply vide Annexure A-4 dated 06.01.2011 rejecting the request for the benefits sought by him. The issue to be adjudicated in this O.A. is whether whether the stand of the respondents in denying the applicant the benefits granted to similarly placed persons is tenable or not.
12. We have carefully considered the rival contentions. The applicant in this O.A. was entitled to the pay scale of Rs. 425-600 from the date of joining the service as Computer on 10.02.1975. The placement in the pay scale of Rs. 550-900 with effect from 01.10.1975 giving parity with the Post Graduate counterparts in the ARS as per the award of the Industrial Tribunal in ID No. 09/1982 and Rs. 650-1200 with effect from 01.07.1976 as per the directions of the various Courts is sought on the ground that similarly placed persons should be treated similarly. The applicant had represented for the pay scale of Rs. 550-900 in T-4 grade with effect from 01.10.1975 vide letters dated 14.01.2010 and 03.06.2010. He had relied upon the decision of various Courts and 3 judgements of the Hon'ble supreme Court. The respondent have no case that the applicant herein is not similarly placed as the applicant in OA. Nos. 1084/HP/90 or 291/95 or 292/95 and other judgements of the Courts nor that the orders herein were not implemented. On implementation of the award of the Industrial Tribunal in ID No. 09.1982, the respondents placed the Computers of IASRI in the scale of Rs. 550-900 (T-4 grade) with effect from 01.10.1975 and further assessed and placed in the next higher scale of Rs. 650-1200 (T-5 grade) with effect from 01.07.1976 and thereafter followed Rule 5(1) of TSR. When a number of Court orders have been implemented notwithstanding the TSR, in the case of the applicant alone, the TSR becoming an insurmountable hurdle in granting the pay scale of Rs. 550- 900 and Rs. 650-1200 is an argument that is unreasonable and unacceptable. When a Court gives a decision in a dispute, it lays down the law which overrides the Rule, the TSR in the instant case, if there is anything contrary in it. The award of the Industrial Tribunal, Delhi, in I.D. No. 09/1982 is a judicial decision in rem and confirmed by the Hon'ble Supreme Court on 16.02.1989 and was implemented by the respondents. In the light of judgement in CWJC No.1732/2002 dated 03.03.2006 of Hon'ble Patna High Court and in S.L.P. No.10378/2006 dated 14.07.2006 and orders in O.A. No. 1084/90 of Chandigarh Bench and O.A. No. 182/1991, O.A. No. 291/1995, O.A. No. 292/95 of the Cuttack Bench and so on and implemented by the respondents, the denial of benefits granted to similarly placed persons to the applicant alone cannot be justified.
13. The other contention of the respondents is that the judgements of Hon'ble Supreme Court in C.A. No. 4729/1991 and C.A. No. 6673/1997 are against granting placement in the aforesaid scales to the applicant. The issue in C.A. No. 4729/1991 and C.A. No. 6673/1997 is the fitment in T-II-3 grade (Rs. 425-700) and in T-4 grade (Rs. 550-900) under Rule 5(1) of TCR. The issue of I.D. No. 09/1982 is the parity of Graduate Technical Personnel (Senior Computers) with Post Graduate counterparts in ARS and similar placement for the former as both are discharging same duties and responsibilities prior to and after 01.10.1975. Therefore, inspite of the judgements in C.A. No. 4729/1991 and C.A. No. 6673/1997, the Cuttack Bench of this Tribunal allowed the O.A. Nos. 291/95 and 292/95. In O.A. No. 177/2002 decided on 12.08.2002, the CAT, Principal Bench, New Delhi, observed that the decision of the Hon'ble Supreme Court in the aforesaid Civil Appeals does not cover the case of the respondents and further held that in view of the fact that the Cuttack Bench had allowed similar benefits to those similarly placed with effect from 01.01.1973 and the decision of the respondents to deny the same to the applicants cannot be countenanced. Again, the fact that th Hon'ble Supreme Court in SLP (C) No. 10378/2006 upheld the judgement of Patna High Court granting relief to the Computer personnels. Therefore, the judgments of the Apex Court in C.A. No. 4729/1991 and C.A. No. 6673/1997 are not relevant for allowing the benefit of order granted in I.D. No. 09.1982. The judgement in C.A. No. 6673/1997 is based on the judgement in C.A. No. 4729/1991. The judgement in C.A. No. 4729/1991 had rejected the claims of Dr. K.M. Das and others. The Cuttack Bench had not considered the judgement in C.A. No. 4729/1991 as a bar for granting the relief to the very same Dr. K.M. Das and others. The said decision of the Cuttack Bench was not challenged and was implemented. Therefore, there is no merit in the argument that the benefit of placement in the scale of Rs. 550-900 with effect from 01.10.1975 and Rs. 650-1200 with effect from 01.07.1976 was extended erroneously to Dr. K.M. Das and others. Implementation of Court orders cannot be termed as erroneous. Therefore, the stand taken by the respondents in Annexure R-4 memo dated 06.01.2011 in rejecting the representation of the applicant is not tenable. The respondents have not contended that the implementation of the order of the Industrial Tribunal in I.I.D. No. 09/1982 granting placement in the pay scale of Rs. 550-900 to Graduate Computers and various Court order granting the same benefit to the similarly placed employees was erroneous. In the conspectus of the facts and circumstances of the instant case and the various Court orders on the issues involved, we are of the considered view that it would only be fair and just if we grant the reliefs prayed for by the applicant. Accordingly it is ordered as under.
15. The Memorandum No. 15(3)2006-Estt.IV dated 06.01.2011 (Annexure R-4) is set aside. We declare that the applicant is eligible to be given placement in the pay scale of Rs. 550-900 in T-4 grade with effect from 01.10.1975 as granted to the applicants in Annexures A-2, A-3, A-6, A-7 and A-8 and similar judgements in respect of Technical personnel in Technical Service in the ICAR and the Institutes under it, treating similarly situated alike. The respondents are directed to grant the applicant all consequential revisions in his pay throughout his service and disburse all benefits arising therefrom within a period of 2 months from the date of receipt of a copy of this order. However, the payment of monetary benefits will be limited to three years prior to filing of this O.A and thereafter.
16. The O.A. is allowed as above with no order as to costs.
(Dated, the 07th March, 2012)
K GEORGE JOSEPH JUSTICE P.R. RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.