Central Administrative Tribunal - Delhi
Dilip Kumar vs Indian Council Of Agricultural ... on 23 August, 2017
Central Administrative Tribunal
Principal Bench
OA No. 343/2013
New Delhi, this the 23rd day of August, 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
1. Dilip Kumar,
S/o late Shri Jagdev Prasad Verma,
R/o Qtr. No. 563, Krishi Kunj,
Inderpuri, New Delhi
2. Satyendra Kumar,
S/o Shri Vishwakarma Prasad,
R/o Qtr. No. 625, Krishi Kunj,
Inderpuri, New Delhi - Applicants
(By Advocate: Mr. D.S. Mahendru)
VERSUS
1. Indian Council of Agricultural Research (ICAR)
Through the Director General,
Krishi Bhawan, Rajendra Prasad Road,
New Delhi-110001
2. Secretary, ICAR,
Krishi Bhawan, Rajendra Prasad Road,
New Delhi-110001 - Respondents
(By Advocate: Mr. S.K. Gupta)
: O R D E R (ORAL) :
Justice Permod Kohli :
This is the second round of litigation. The grievance of the applicants is that they are seeking parity for grant of pay scales with the Assistants working at ICAR Headquarters.2 OA No. 343/2013
2. Briefly stated the facts as emerge from the record are that an advertisement was issued by the Staff Selection Commission in the Employment News dated 18-24, October, 2003 inviting applications for the Combined Graduate Level (Preliminary) Examination-2004. The applicants claiming to be eligible applied for the said post in response to the advertisement. The post of Assistants was admittedly a Group 'B' (Non Gazetted) post in the Pay-Scale of Rs. 5,500-9000/-. The applicants qualified the Combined Graduate Level (Preliminary) Examination-2004 and were selected by the SSC and are presently working at the ICAR Institute (Pusa) at New Delhi. It is stated that after the selection in ICAR, all the selected Assistants were posted by the respondents either in the ICAR Headquarters or ICAR Institutes on random basis without asking for their choice of posting. It is the case of the applicants that the duties and responsibilities of all the Assistants working in the ICAR Headquarters/Institutes were same. It is the further case of the applicants that on implementation of the Sixth CPC recommendations, pay scale for the post of Assistants i.e. Rs. 55000-9000/- was revised to Rs.9300- 34,800/- plus Grade Pay of Rs.4200/- w.e.f. 01.01.2006, which was applied to all the categories of Assistants irrespective of their posting in Headquarters or in the Institutes. This position continued till 26.11.2010. According to the applicants, vide Office 3 OA No. 343/2013 Order dated 26.11.2010, the respondents revised the pay scale of Assistants posted at ICAR Headquarters to Rs. 9300-34,800 plus grade pay of Rs. 4600/- w.e.f. 01.01.2006. This happened on account of revision of pay scale of Assistants of CSS cadre, CVC, Election Commission, Railways, etc.. Insofar as the Assistants working in the ICAR Institutes are concerned, their pay remained unchanged in the grade pay of Rs.4200/-. According to the applicants, this has created anomaly amongst the persons selected in the same selection process and the applicants having higher merit in the selection process, were discriminated as against their counterparts working in ICAR Headquarters. The applicants made representation seeking parity in the pay scale. They also informed the respondents that they are willing to serve at the ICAR Headquarters. In reply to the aforesaid representation, the applicants were informed vide letter dated 22.3.2011 that the matter for providing higher Grade Pay of Rs. 4600/- is under examination in consultation with the Ministry of Finance (Department of Expenditure) and as and when any final decision in the matter is received, the matter will be examined in the light of other ramifications. The Ministry of Finance rejected the proposal of the ICAR for granting Grade Pay of Rs. 4600 to the Assistants working in the ICAR Institutes. Further representation was made by the applicants on 28.4.2011. It is stated that a 4 OA No. 343/2013 notification dated 14.5.2011 for fresh recruitment of Assistants was published by the ICAR in which the criteria for posting was fixed as merit-cum-preference and also the promotional avenues were informed before applying for the post. But, at the time of selection/appointment of the applicants, no such choice was asked for.
3. Receiving no relief, the applicants filed OA No. 2581/2011 before the CAT, Principal Bench, New Delhi, and the said OA was contested by the respondents and was dismissed by the Tribunal vide its judgment dated 11.01.2012. Aggrieved with the order passed by this Tribunal, the applicants filed WP(C) No. 2154/2012 in the Hon'ble High Court of Delhi. The Hon'ble High Court passed the order dated 17.04.2012 which reads as under:-
"The learned counsel for the petitioner seeks permission to withdraw the writ petition with liberty to make a fresh representation to the Government of India through the Secretary, ICAR. The writ petition is dismissed as withdrawn with the aforesaid liberty. The said representation shall be made within two weeks from today."
4. The applicants made fresh representation in terms of the aforesaid order of the Hon'ble High Court. This representation was disposed vide impugned Office Memorandum dated 10.09.2012 (Annexure A1) declining the relief prayed for by the applicants. The impugned order contains two grounds for 5 OA No. 343/2013 rejection: (i) that the grant of Grade Pay of Rs. 4600/- in PB2 and Rs. 4800/- in PB2 to Assistants and AAOs respectively was earlier sent to the Department of Expenditure, Ministry of Finance, but the same was not agreed to by them for the reason that the pay scale at ICAR Headquarters are patterned on the lines of CSS; and (ii) that the Assistants of ICAR Headquarters and Assistants of ICAR Institutes are separate cadre in ICAR system with different promotional avenues. It is also stated that before the implementation of the Sixth CPC, the pay scale of Assistants at both places (ICAR Headquarters and ICAR Institute) were same. This anomaly has arisen after implementation of the Sixth CPC due to grant of different Grade Pay for ICAR Headquarters and ICAR Institutes. It is also stated that the applicants had again filed an Application before the CAT Principal Bench, New Delhi which has been dismissed.
5. When this matter was taken for hearing, Mr. S.K. Gupta, learned counsel appearing for the respondents, raised a preliminary objection that the present OA is barred by the principle of constructive res judicata. The contention of the respondents is that the applicants had earlier filed OA No. 2581/2011, claiming the same relief, i.e., parity of pay scales between Assistants working in ICAR Institutes and those working 6 OA No. 343/2013 in the ICAR Headquarters. The said Application was dismissed by this Tribunal vide judgment dated 11.01.2012. The Writ Petition filed by the applicants there against was withdrawn with liberty to file a fresh representation. It is, accordingly, contended that with the withdrawal of the Writ Petition filed against the judgment of the Tribunal, the applicants accepted the judgment of the Tribunal as final. The representation was only an indulgence shown by the Court, but the liberty to file a representation does not in any manner nullify the earlier judgment of the Tribunal which has attained finality on account of withdrawal of the Writ Petition by the applicants. It is stated that now the representation having been rejected, the earlier judgement of the Tribunal operates as res judicata and no relief can be granted to the applicants in the present OA. Insofar as the above facts are concerned, there is no dispute. Mr. D.S. Mahendru, learned counsel appearing for the applicants has conceded to this fact. His contention is, however, that in earlier OA, the applicants had not raised the issue of discrimination and, therefore, the Writ Petition was withdrawn with liberty to file a fresh representation, raising the new ground of discrimination, Mr. Mahendru has also relied upon the judgment of the Hon'ble Supreme Court in the case of Brij Nath Sharma vs. Hon'ble Rajasthan High Court at Jodhpur & Anr. reported as (1998)7 SCC 44. Referring to para 6 7 OA No. 343/2013 thereof, it is stated that in the said case, the Writ Petition was withdrawn and a representation was made for promotion to RHJS. The said representation having been rejected by the Full Bench of the High Court, the second Writ Petition was filed. The Hon'ble High Court dismissed the second Writ Petition being barred by principle of res judicata. The Hon'ble Supreme Court set aside the judgment of the Hon'ble High Court and held that the Writ Petition was not barred by principle of res judicata.
6. We have heard the learned counsel for the parties.
7. Even though the Code of Civil Procedure, 1908 is not applicable per se to the proceedings before this Tribunal, however, the principles enunciated under Section 11 of CPC are applicable, which defines the doctrine of res judicata. Under Section 11, the second suit is barred in which the matter directly or substantially in issue has been directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title where the controversy has been heard and finally decided. Relevant Explanation IV to Section 11 reads as under:-
"Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."8 OA No. 343/2013
The abovementioned explanation has purely provided that where ground of defence or attack was available to the party when the former suit was filed and it has not been included as to the basis of such suit, it is deemed that the said matter was directly and substantially in issue in the former suit and it would still operate as res judicata. Mr. Mahendru's contention is that in earlier OA, ground of discrimination was not raised. However, it goes without saying that the entire case of the applicant is based on the ground of discrimination. This ground was definitely available to the applicant in the earlier OA but they omitted to avail this ground in earlier OA. Under the above circumstances, it is deemed that this ground was taken and was directly and substantially in issue in earlier OA and thus, the decision in the earlier OA having been made after hearing the parties, would operate as res judicata in the present OA. Merely, withdrawal of the Writ Petition before the Hon'ble High Court with liberty to make a fresh representation, which ultimately came to be dismissed, will not nullify the concluded judgment of this Tribunal. The ground of discrimination was available to the applicant when the earlier OA was filed. If the applicant omitted to raise this ground in earlier OA, which was dismissed after hearing the parties and the Writ Petition there against having been withdrawn, the second Application is also hit by principle 9 OA No. 343/2013 underlying Order II Rule 2 of CPC, 1908 and for this reason also, no relief can be granted to the applicant. The OA is, accordingly, dismissed.
(K. N. Shrivastava) (Justice Permod Kohli)
Member (A) Chairman
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