Central Administrative Tribunal - Mumbai
Sanjay Padmakar Singatkar vs Union Of India on 29 November, 2010
CENTARL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.
O.A.518/2005
DATED THIS MONDAY THE 29TH DAY OF NOVEMBER, 2010.
CORAM : HON'BLE SHRI JUSTICE P.R. RAMAN, MEMBER (J)
HON'BLE SHRI JOG SINGH, MEMBER (J)
HON'BLE SHRI SUDHAKAR MISHRA, MEMBER (A).
Sanjay Padmakar Singatkar,
Tracer,
Ordnance Factory, Varangaon,
District Jalgaon.
R/o. Keshav Nagar,
Near 32 Kholi Khadka Road,
Bhusawal. ..Applicant.
( By Advocate Shri S.P. Saxena ).
Versus
1. Union of India, through
the Secretary,
Ministry of Defence,
DHQ,PO, New Delhi-110011.
2. The Chairman,
Ordnance Factory Board,
10-A, Auckland Road,
Kolkata-700 001.
3. The General Manager,
Ordnance Factory,
Varangaon District Jalgaon. ..Respondents.
( By Advocate Shri R.R. Shetty ).
O R D E R
Per : Shri Sudhakar Mishra, Member (A).
This reference to the Full Bench has been made as per order dated 16.6.2006 of the Division Bench of the Tribunal, referring the following issue for the Full Bench's decision:-
Whether the placement of Tracers, working in Ordnance Factories under DGOF, in the pay scale of Rs.4000-6000 after completion of 7 years service in the pay scale of Rs.3200-4000 is to be treated as promotion while determining the eligibility for financial upgradation under ACP Scheme.
2. The basic facts of the case as stated in the opening paragraphs of the aforesaid order dated 16.6.2006 are reproduced hereunder:-
1. The applicant has approached the Tribunal seeking direction to the respondents to grant him first financial upgradation under the Assured Career Progression (ACP) Scheme in the pay scale of Rs.5000-8000 w.e.f. 9.8.1999.
2. The applicant has submitted that he was appointed as Tracer in the office of R-3 on regular basis w.e.f. 1.6.1983 in the pay scale of Rs.260-430. The post of Tracer is a feeder post for promotion to the post of Draughtsman as per the Recruitment Rules (RR). The pay scale of Rs.260-430 was revised to Rs.975-1540 w.e.f. 1.1.1986 and was further revised to Rs.3200-4900 w.e.f. 1.1.1996. The applicant has stated that the Tracers after completing 7 years regular service were made eligible for the pay scale of Rs.4000-6000 vide order dt. 27.5.2003. The applicant has contended that since he has been working as a Tracer right from 1.6.1983 and therefore he is entitled for first financial upgradation right from the inception of the ACP Scheme i.e. with effect from 9.8.1999. The pay scale of Draughtsman, the promotion post for Tracer, is Rs.5000-8000. However, the respondents placed the applicant in the pay scale of Rs.4500-7000 w.e.f. 9.8.1999 vide order dt. 13.5.2000. After a period of four years the applicant received a show cause notice dt. 29.7.2004 as to why the financial upgradation given to him vide order dt. 13.5.2000 should not be cancelled. The applicant submitted a reply on 7.8.2004 which was rejected by the respondents vide letter dt. 25.8.2004. The applicant then submitted a representation dt. 6.9.2004 to R-2, but he has not received any reply.
3. Out of the issues arising for the Tribunal's consideration, the issue under the present reference was regarded as the moot point for adjudication and hence the reference.
4. The applicant's contention is that after being appointed as Tracer he had not got any promotion for 12 years in fact for 16 years and hence he was entitled to the first financial upgradation with effect from 9.8.1999 as per the ACP Scheme of 1999. The applicant argued that upgradation of his pay scale after completion of 7 years of service in the same post of Tracer does not tantamount to promotion so as to disqualify him from getting the first ACP benefit. The applicant pointed out that under identity of facts and circumstances this Tribunal, as per its order dated 05.04.2005 in the case of Shri D.S. Patole Vs. Union of India & Others in O.A.No.28/2004, had held that upgradation of pay scales of Tracers after completion of 7 years of service cannot be regarded as promotion. Applicant sought granting of similar relief.
5. On the other hand, the respondents had pointed at the Clarification No.35 as issued on 18.7.2001 as per O.M. No.35034/1/97-Estt.(I)(Vol.IV) and had submitted that as per the clarification issued the case like the applicant's is to be regarded as a case of promotion after 7 years and not otherwise. The respondents had also cited decisions to that effect as given by the co-ordinate Benches of this Tribunal: order dated 08.12.2004 in O.A.No.320/2003 by the Bench at Jabalpur and order dated 20.4.2004 in O.A.No.846/2003 by the Bench at Madras.
6. Noticing the cleavage in the opinion of co-ordinate Benches of the Tribunal on the same issue, this reference has been made. The O.A. will be finally disposed of after receiving decision of the Full Bench on the issue under reference.
7. Before us the learned counsel Shri S.P. Saxena appeared on behalf of the applicant and learned counsel Shri R.R. Shetty appeared on behalf of the respondents. At the outset the learned counsel for the respondents has submitted that facts and circumstances exactly similar to the present case obtained in O.A.No.124/2004 which was decided by this Bench, as per its order dated 28.2.2005, in favour of the applicant Shri K.M. Khopkar and others in that case. Being aggrieved by that order the Union of India through Directorate General of Quality Assurance, Ministry of Defence, New Delhi as well as the Department of Personnel & Training, New Delhi had filed Writ Petition No.5269/2005 before the Hon'ble High Court of Bombay. As per its judgment and order dated 11.12.2006 the Hon'ble High Court rejected the Writ Petition and upheld the order of the Tribunal. The Union of India carried the matter further before the Hon'ble Supreme Court of India but the Hon'ble Supreme Court as per their order dated 10.7.2007 dismissed the Special Leave Petition concerned bearing No.CC.5027/2007. Thereupon, the learned counsel submitted, the issue referred for decision of the Full Bench is no more res-integra and it may be so declared.
8. Learned counsel for the applicant sought to support the O.A. by relying on judgment and order dated 13.1.2000 of the Hon'ble High Court of Madras in Writ Petition No.362/2000 in the case of Union of India & Others vs. Central Administrative Tribunal and Others. Therein the Hon'ble High Court of Madras had upheld the decision dated 31.8.1999 of the co-ordinate Bench of this Tribunal at Madras in O.A.No.1214/1996. SLP No.CC.6408/2000 against Hon'ble High Court's decision was dismissed on 10.7.2007 by the Hon'ble Supreme Court of India.
9. We have heard the learned counsel for the parties and have perused the relevant pleadings and documents on record. At the outset we may mention that an issue having been referred by the Division Bench for its decision, the Full Bench shall have to take decision on it and has to convey it to Division Bench to facilitate eventual disposal of the OA, notwithstanding that the question of law underlying the issue so referred is no more res-integra due to declaration of law by the Apex Court; or otherwise.
10. We find that granting of benefit of higher pay scale after completion of 7 years of service as Tracers is not a recent phenomenon. It was brought into existence as a result of implementation of the recommendations of the 3rd Pay Commission. As against the then existing pay scale of Rs.260-430 of the Tracers the benefit of higher pay scale of Rs.330-560 at the end of 7 years was given on the basis of 3rd Pay Commission's recommendations. On implementation of 4th Pay Commission's recommendations the normal pay scale of Tracers was Rs.975-1540 while the higher pay scale on completion of 7 years was Rs.1200-2040. The basic pay scale of Tracers on implementation of 5th Pay Commission's recommendations was Rs.3200-4900 whereas the higher pay scale on completion of 7 years was Rs.4000-6000.
11. In O.A.No.1214/1996 filed before the Madras Bench, the relief sought by the applicant Tracers was that the benefit of scale pay Rs.330-560 as fixed by the 3rd Pay Commission to be given upon completion of 7 years of service as Tracer, should be given to them. Although the respondents in that case had granted that higher pay scale with effect from 20.4.1999, the applicants sought granting of relief in accordance with the O.M. dated 19.10.1994 of the Ministry of Finance of the Government of India. That OM declared, inter-alia, that the revision of pay scales of Draughtsmen Grade III (corresponding to Tracers) in all Government of India offices shall be made in accordance with revision of pay scales of Draughtsmen of various grades working under the Central Public Works Department, on the basis of the award of the Board of Arbitration. The Tribunal (co-ordinate Bench at Madras) noted that the respondents in that case have chosen to grant to the Tracers in Ordnance Factories of Ministry of Defence pay scales applicable to Draughtsmen Grade III in Central Public Works Department and an order to that effect was passed on 20.4.1999. But considering the submissions made the Tribunal directed the respondents to extend the benefit of OM. Dated 19.10.1994 to the applicants in that case in full, with all consequential benefits.
11.1 The Tribunal's order was challenged in Writ Petition No.362/2000 before the Hon'ble High Court of Madras. The Hon'ble High Court of Madras upheld that order. The SLP No.6408/2000 against the Hon'ble High Court's order was dismissed by the Hon'ble Supreme Court of India on 10.7.2000. The judgment in the said O.A.No.1214/1996 of the Madras Bench of the Tribunal and the subsequent judgments thereon as relied by the Learned counsel for the applicant, we find, are of little help in deciding the issue referred to the Full Bench; excepting, of course, being of incidental assistance as will be presently discussed.
12. The applicant before us, it may be reiterated, was at the relevant time working as Tracer in the Ordnance Factory, Varangaon. In view of the decision of the Madras Bench of this Tribunal in O.A.1214/1996, wherein the applicants were the Tracers in Ordnance Factory, and that decision has since been upheld by the High Court of Madras and also by the Apex Court, we find that the financial upgradation granted to the applicant before us in his present grade as Tracer, has to be viewed as having been granted under similar circumstances.
13. In O.A.No.124/2004 before this Bench granting of financial upgradation under ACP Scheme to the Draughtsmen of various grades of the Directorate General of Quality Assurance (DGQA) was the basic issue. While considering it the Tribunal noticed that pursuant to the aforesaid OM dated 19.10.1994 of the Ministry of Finance, Government of India, the Ministry of Defence as per order dated 15.9.1995 had extended the benefit as per the OM dated 19.10.1994 to the employees of the DGQA Organisation. The Tribunal was of the view that placement in higher pay scale while working in the same post of Draughtsman of various cadres did not amount to promotion. That view was upheld by the Hon'ble High Court of Bombay in its decision dated 11.12.2006, as aforesaid, dismissing the writ filed by the Union of India. The relevant portion of the Hon'ble High Court's order are reproduced hereunder:-
4. It appears that by the impugned order dated 9/8/2003 before the Tribunal, the benefits granted under the ACP Scheme were sought to be withdrawn, contending that the upgradations in the pay scale of Draughtsmen, were already granted to the applicants by the order dated 15/9/1998 or the earlier notification dated 9/10/1994 and the said was, in fact, a promotion. The Tribunal held that by placement in higher scale and redesignation under O.M. dated 15/9/1990, the pay was fixed in terms of pay 97 of OM & FR 22(I)(a)(2) and the said did not amount to promotions in as much as there were no higher responsibilities or duties of greater importance assigned. In addition, there was absence of the promotion process either on the basis of seniority-cum-merit or merit-cum-seniority in the said upgradation by OM dated 15/9/1998. The Tribunal concluded,thus the placement of the pay revision granted in pursuance to CPWD Arbitrat on award cannot be treated as regular promotion and ACP benefit rightly granted to the applicant cannot be withdrawn.
5. This view taken by the Tribunal cannot be said to be grosssly erroneous or perverse so as to call for interference at our hands. Mr.Shetty the learned counsel for the petitioners relief upon the Judgment in the case of State of Rajasthan vs. Fateh Chand Soni [(1996) 1 SCC 562] in support of his contentions that the upgradation given bythe OM dated 15/9/1995 amounted to promotion. We have gone through the said Judgment and we are afraid Mr.Shetty's reliance is misplaced. In fact, the said judgment supports the view taken by the Tribunal in as much as that the upgradation granted in terms of implementation of the CPWD Arbitration Award and the OM dated 15/9/1995 could not be termed as promotion.
6. Hence, the challenge to the impugned Judgment of the Tribunal fails at the threshold and consequently the petition is rejected summarily.
14. The SLP filed by the Union of India against the above decision of the High Court of Bombay was dismissed by the Hon'ble Supreme Court as per their decision dated 10.7.2007 as overleaf:-
We do not find any merit to interfere in this case. The SLP is dismissed. However, the question of law is left open to be considered in an appropriate case.
15. The respondents have fairly conceded that the Draughtsmen of the organisation of DGQA who had approached this Tribunal in O.A.No.124/2004, were granted the higher pay scales in their corresponding grades under circumstances absolutely similar to the circumstances under which the applicant before us has been granted the higher pay scale on completion of 7 years. The Tribunal's decision in O.A.No.124/2004 having since been upheld by the Hon'ble High Court of Bombay and also the Hon'ble Supreme Court of India we respectfully follow the decision dated 10.7.2007 of the Hon'ble Supreme Court in that case (Union of India & Others Vs. K.M. Khopkar, supra).
16. Accordingly, we decide the issue under reference in the negative and in favour of the applicant. The Division Bench shall finally dispose of the O.A. on its merit and in accordance with the decision as taken herein above.
(Sudhakar Mishra) (Jog Singh) (Justice P.R. Raman) Member (A) Member (J) Member (J).
H.