Central Administrative Tribunal - Delhi
Rajiv Sinha vs Ministry Of Personnel on 12 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA No.2019/2012 MA No.1666/2012 Reserved on :18.04.2013 Pronounced on: 12.12.2013 HONBLE MR.G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) 1. Rajiv Sinha, aged 46 years S/o Late S.D. Sinha R/o Munirka Apartment Sector-9, Plot No.7 Dwarka, New Delhi-75. 2. P.S. Srivastava, age 44 years S/o Shri Gopal Ji Srivastava R/o Quarter No.1282, Type IV S, Sector-12, R.K. Puram, New Delhi-22. 3. J.M. Kharche, age 47 years S/o Shri M.L. Kharche R/o U-27, HUDCO Place Extension August Kranti Marg, New Delhi-49. 4. C.K. Jain, aged 49 years S/o Late Rajendra Kumar jain R/o GH-9/273, Paschim Vihar, New Delhi-87. 5. W.B. Prasad, age 44 years S/o Shri Wilfred Bhushan Prasad R/o A-201, Pragati Vihar Hostel, Lodhi Road, New Delhi-3. 6. Archana M.Gupta, age 44 years W/o Shri Manoj Gupta, R/o 87, Rashi Apartment, Sector-7, Plot no.3, Dwarka, New Delhi-75. Applicants (By Advocate: Shri Apurb Lal) Versus 1. Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training Through Secretary, North Block, New Delhi-110001. 2. Ministry of Information and Broadcasting Through Secretary, Shastri Bhawan, New Delhi-110001. Respondents (By Advocate: Shri Sameer Aggarwal) O R D E R Per Mr. Sudhir Kumar, Member (A):
MA No.1666/2012, filed under Section 4 (5) (a) of the CAT (Procedure) Rules, 1987, praying for permission for the six applicants joining together in filing a single application, is allowed.
2. The six applicants of this OA are before this Tribunal, being aggrieved by the Annexure-I Terms and Conditions for Grant of Higher Pay Scale on Non-Functional basis to Officers of Organized Group A Services which formed part of the Office Memorandum dated 24.04.2009 Annexure A-1 (on the subject Non-Functional Upgradation for Officers of Organized Group A Services in PB-3 and PB-4). By virtue of the eligibility conditions, as prescribed in the 6th Central Pay Commission (6th CPC, in short), allowing parity of pay to the Officers of all Organized Group A Services with that of the Indian Administrative Service (IAS, in short) two years their junior has been affected on account of prescription of an additional eligibility criteria, which requires to be struck down in order to give the benefits of the recommendations of the 6th CPC to the applicants. Para-3 thereof reads as under:
3. All the prescribed eligibility criteria and promotional norms including benchmark for upgradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.
3. The applicants have submitted that the conditions imposed through Annexure A-1 to the said Memorandum are not in consonance with the recommendations of the 6th CPC, which have been duly accepted by the Government of India, and the restrictions imposed are unreasonable, illegal and without jurisdiction. In the result, they have prayed for the following reliefs:
i) set aside the eligibility conditions imposed by the respondent no.1 in terms of clause 3 of annexure of O.M dated 24.4.2009 in granting Non-Functional grade on the basis of pay parity as recommended by the 6th Central Pay Commission;
(ii) declare the eligibility conditions imposed by the respondent no.1 in granting pay parity to the applicants (officers of Organized Group A Services which is not in consonance with the recommendation of 6th Central Pay Commission as null and void;
(iii) order for grant of pay parity on non-functional basis in higher pay scale of PB-4 with Grade pay Rs.8700 to the applicants no.1 w.e.f. 08.08.2007 instead of 01.04.2008, applicant no.2 w.e.f. 01.07.2009 instead of 01.04.2011, applicants no.4 w.e.f. 01.07.2006 instead of 01.04.2008, applicant no.5 w.e.f. 01.07.2010 instead of 01.04.2011 and applicant no.6 w.e.f. 01.07.2008 instead of 01.04.2011. Similarly the applicant nos.3 and 4 should be accorded the grade of SAG (PB-4 with Grade Pay Rs.10,000) w.e.f. 21.02.2011 and 04.04.2012 respectively in terms of recommendations of 6th Central Pay Commission duly recommended by the Govt. of India.
(iv) pass such other or further order(s) as may deem fit and proper for ends of justice.
4. The applicants have further submitted that the present OA is within the period of limitation, as prescribed under Section 21 of the Administrative Tribunals Act, and, therefore, they did not file any application for condonation of delay whatsoever.
5. The contention of the applicants is that the benefits of the recommendations of the 6th CPC in respect of Organized Group A services, granting them the same grade of pay on Non-functional basis from the date of posting of the IAS Officers in the particular grade at the Centre, could not have been changed by adding and amending the recommendations of 6th CPC by the Respondent No.1 by introducing a rider, as has been envisaged in the above reproduced Clause-3, which they have termed to be arbitrary, unreasonable and without jurisdiction. Therefore, they have contended that the Respondent No.1 cannot add to or amend the recommendations for grant of higher pay parity as prescribed by the 6th CPC, to the disadvantage of the applicants, by issuing the OM, as stated above, which they have termed to be violative of the Articles 14, 16 & 21 of the Constitution of India. In both sub paras (i) of 4.2 and (ii), the applicants have used the words recommendations. In sub para 4.2 (i), the recommendations of 6th CPC and in sub para 4.2 (ii) the recommendations prescribed in respect of the report of the 6th CPC. After the above cited OM being placed as Annexure A-1, and at A-2 they have reproduced the portion of the relevant page of the report of the 6th CPC, relating to the pay scales of Central Services Group A, and at Annexure A-3 they have produced the Government of India Resolution dated 29.08.2008, embodying in a tabular form, the acceptance of the recommendations by the 6th CPC, and have thereafter produced a copy of Office Memorandum dated 21.05.2009, signed by the Deputy Secretary of Department of Personnel and Training (DoP&T, in short) which states as follows:
No.AB.14017/64/2008-Estt. (RR) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training
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New Delhi, the 21st May, 2009 Office Memorandum Subject:- Non-Functional upgradation of Officers of Organized Group A Services in PB-3 and PB-4.
*** A reference is invited to this Department OM of even No. dated 24.04.09 on the above subject. As indicated at point (v) of para 1, the details of batch of the officers belonging to the Indian Administrative Service who have been posted at the Centre in the various grades of PB-3 and PB-4 w.e.f. 01.01.2006 as well as the date of posting of the first officer belonging to the batch is annexed. Necessary action may be taken for grant of higher scale for the Officers belonging to batches of Organized Group A Services that are senior by two year or more and have not so far been promoted to that particular grade.
Hindi version will follow.
Sd/-
(S.J. Kumar) Deputy Secretary to the Government of India Tel. 23092112
1. All Ministries/Departments of Government of India
2. The Presidents Secretariat, New Delhi.
3. The Vice-Presidents Secretariat, New Delhi.
4. The Prime Ministers Office, New Delhi.
5. The Cabinet Secretariat, New Delhi.
6. The Comptroller and Auditor General of India, New Delhi.
7. The Union Public Service Commission, New Delhi.
5. The applicants were selected by the UPSC for the Indian Broadcasting (Engineering) Services in different years, and at present they are working under the control of Respondent No.2, and are presently posted at Doordarshan. The Associations of their Group A services, namely, Engineering Services (Organized Group A Service) had placed its demands before the 6th CPC with regard to faster and better career progression, and other demands, which have been reproduced by them in para 4.5 of the OA.
6. After considering those demands, the recommendations of the 6th CPC were reflected in regard to the Organized Group A Services in para 3.3.12 of the Report of the 6th CPC, which the applicants have produced by way of A-2, pages 173-174 of the Original Report of the 6th CPC. The applicants have pointed out that while notifying its Resolution dated 29.08.2008 through Annexure A-3, the Respondent No.1 accepted the recommendations in the form as given below, in the relevant Gazette Notification at page 52 of the Paper Book) as follows:
(III) Pay scales of Central Services Group A Sl.
No. Recommendations of the Sixth Pay Commission Decision of the Government
(i) Central Services Group A Grade Pay Rs.5400 in PB (Rs.15600-39100) Accepted Whenever any IAS officer of a particular batch is posted in the Centre to a particular grade carrying a specific grade pay in pay bands PB-3 or PB-4, grant of higher pay scale on non-functional basis to the officers belonging to batches of organized Group A services that are senior by two years or more should be given by the Government. Accepted. This will also be applicable to the Indian Police Service and the Indian Forest Service in their respective State cadres for which the relevant cadre controlling authorities will issue the orders.
7. The applicants have stated that the respondents have since refused to follow the 6th CPC recommendations as they had accepted, and have assailed only the stipulation in Para-3 of the Annexure-I of the impugned OM, in which it has been stated that all the prescribed eligibility criteria and promotional norms, including benchmark for upgradation to a particular grade pay, would have to be met at the time of screening for grant of higher pay-scale under these orders. The applicants have submitted that this stipulation of benchmark for grant of higher pay-scale is unreasonable, illegal and without jurisdiction.
8. The applicants have further alleged that even though the Respondent No.1 first circulated the dates by which IAS Officers have been posted at the Centre in PB-3 and PB-4 with effect from 01.01.2006, as well as date of posting of the 1st officer belonging to the batch through OM dated 21.05.2009, Annexure-4, subsequently, the table annexed to that was revised through the Annexure A-5 OM dated 01.07.2010, by modifying some of the dates of posting of the first IAS Officer of the various batches at the Centre. Having compared the two tables, we do not find many modification of the dates, and the subsequent OM dated 01.07.2010 only includes some additional dates. There is no incongruity or mistake or change in the tables below Annexures A-4 & A-5, except addition of the latest information, and by supplying the omissions and the additions of subsequent dates, the respondents have only made the table more accurate.
9. For the purposes of Non-Functional Selection Grade, the applicants can be allowed to claim parity only with Indian Administrative Services officers of 2 years difference in seniority with them, or in accordance with Annexure A-8 dated 10.06.2010, in which it has been clarified that in case no IAS Officer is available for comparison in Super Time Scale Grade, grant of Non-Functional Upgradation to Super Time Scale level may be allowed to the Junior Time Scale Officer of Organized Group A services after 7 years of service in that JTS scale, subject to other terms and conditions as laid down in DoP&T OM dated 24.04.2009. It has been further clarified by Annexure A-8 that the term Batch cannot have different meaning at different places, and the term Batch for direct recruit officers in the induction grade shall be the year following the year in which the competitive exam for their selection was held. This Batch remains attached to the officer for the purposes of his promotion, provided the officer is not superseded due to any reason, and in case he is superseded, he has to be considered along with that Batch with which his seniority is ultimately fixed.
10. The applicants had earlier approached this Tribunal in the year 2010, seeking the benefit of the DoP&T OM dated 24.04.2009 in their previous OA Nos.3622/2010, with 3623/2010, which were disposed of on 01.11.2010, as has been pointed out by the respondents in their counter reply. The applicants have also admitted that after passing of that order of this Tribunal, in compliance thereof, the respondents had issued the OM dated 10.06.2011, at Annexure A-10, thereby granting higher pay scale to 212 persons, including the applicants before us. But the applicants have not been satisfied with this order, and have submitted that the conditions in Paragraphs 2 to 5 of Annexure A-5 dated 10.06.2011 have not actually benefited them. The applicants have assailed that as a result of this Annexure A-10 order, the IB(E)S Officer of 1991 batch itself have got the higher pay scale of PB-4 with Grade Pay of Rs.8700 on Non-Functional basis with different dates, spreading over a span of 5 years, and that 8 officers have got it from the due date of 08.08.2007, 15 Officers having got it from 01.04.2008, 01 Officer has got it on 01.04.2009, and 06 Officers having got it on 01.04.2011.
11. The applicants have alleged that in a similar manner, parity has not been maintained in the case of IB(E)S Officers of other batches also, i.e., the batches prior to theirs, and subsequent to theirs. In the result, while the applicants have assailed the terms and conditions of eligibility for grant of higher pay scales on Non-Functional basis having been included Para-3, which prescribes the eligibility criteria, and promotional norms including Benchmark to be achieved, as reproduced above, the respondents have justified the same, stating that the Government policies determining conditions of service, including the criteria and promotional norms for grant of Non-Functional upgradation, pertain to executive policy, and is within the sole discretion of the Govt. of India, and the policy cannot be called in question seeking a judicial review, in the absence of any mala fide, as this policy criteria is a uniform criteria for implementing the Governments decision for grant of Non-Functional Upgradation to all Group A services, and is fully in-conformity with the recommendations of the 6th CPC.
12. In their rejoinder filed on 13.12.2012, the applicants had alleged that the respondents have failed to explain as to why and how the condition laid down in Clause-3 to the Annexure-I of the O.M. dated 24.04.2009 (reproduced above) is in-conformity with the recommendations of the 6th CPC, and if they have deviated, as to how an authority is available to the respondents to amend, add or modify the recommendations of the 6th CPC, with regard to Non-Functional Upgradation being granted to organized Group A services. The applicants had contended that the 6th CPC did not recommend promotional norms to be prescribed for grant of pay parity on Non-Functional basis, and, therefore, the respondents going beyond the conditions suggested by the 6th CPC is bad in law, and on facts.
13. While accepting that the Govt. of India may accept the recommendations of the 6th CPC regarding pay fixation with modification/deviation before its acceptance, the applicants submitted that such modification/deviation should not amount to defeating the very purpose of grant of pay parity, and, therefore, the Condition No.3 included is unreasonable, and against the law. They had, thereafter, reiterated their contentions as in the OA in their rejoinder, and had submitted that the law of estoppel has no application in the present facts and circumstances of the case, since the applicants have been deprived of the actual benefit by virtue of the impugned Clause-3 to the Annexure-I of the OM dated 24.04.2009.
14. Heard. We have given our anxious consideration to the facts of this case. As even the applicants have accepted, the recommendations of the 6th CPC are not mandatory in nature, and the Government can accept the recommendations of Pay Commission with any modifications or deviations, in view of the executive powers vested in it, and can issue instructions or policy decisions. The respondents have no doubt implemented the core of the recommendation of the 6th CPC while issuing the impugned Circular dated 24.04.2009. The applicants had laid a challenge to this entire O.M. earlier, in O.A. No.3622/2010 with O.A. No.3623/2010 on which orders were passed on 01.11.2010. At that time the applicants had not separately challenged the Condition No.3 of Annexure-I of the said O.M. dated 24.04.2009, which they have now done by way of the prayer at Para-8(i) as reproduced above, from which the prayer at Para-8 (ii) follows, and the prayer at Para-8 (iii) is the resultant of the applicability of that Condition No.3.
15. No doubt the respondents have implemented the system of grant of Non-Functional Upgradation based on empanelment and posting of particular batches of IAS officers at the centre, and have also provided with such upgradation in respect of all other Group A services, without linking them to vacancies in their respective grades. While such upgradations are Non-Functional upgradations, personal to the officers concerned, and do not bestow any right upon the officers to subsequently claim promotion and deputation benefits, but it appears to us that the respondents were fully within their rights to prescribe that the eligibility criteria, and promotional norms, including Benchmark for upgradation to a particular grade of pay, would have to be met by the individual officers concerned, at the time of screening for grant of higher pay scale under such a Scheme. The applicants cannot be allowed to claim the benefit of grant of such Non-Functional upgradation, and the difference of grade pay to their basic pay, without their meeting the eligibility criteria, and promotional norms, including the Benchmark prescribed for their substantive promotion.
16. As is clear from the structure of the Scheme notified, such a grant of Non-Functional Upgradation is only by way of advance grant of the financial benefit, which would have otherwise accrued later to the officer concerned, when he is considered for regular promotion, as per the DPC guidelines, based on the provisions of the Recruitment Rules. This grant of Non-Financial Upgradation cannot, therefore, be considered to be in a vacuum, and cannot be granted without fulfilling any eligibility criteria whatsoever, and other conditions like Vigilance clearance etc. The two years lagged parity with I.A.S. Batches has been recommended by the 6th CPC, and adopted by the Govt. of India, only to eliminate the possibility of a very great difference and distinction in between the pay scales of IAS officers posted with the Central Government on deputation from their respective State cadres, and Central Governments own organized Group A Service Officers, who have to be considered for grant of higher Pay Band/Grade Pay with such lagged parity.
17. The respondent-Union of India is fully within its rights to consider such eligibility of service and other conditions, and Vigilance clearance etc., before granting such higher pay. The other aspects of the 6th CPC recommendations that such Non-Functional upgradation should not have any linkage with the availability of vacancies in the respective cadres of an organized Group A services, has been fully incorporated, and has been already upheld by this Bench, in its order dated 01.11.2010 also (supra). Therefore, we do not find that the applicants cannot now have a case only against the Condition No.3 of Annexure-I to the impugned OM dated 24.04.2009 being prescribed as a matter of policy, which is fully in the domain of the Executive, and cannot be set aside by this Tribunal in the process of judicial review, unless it is mala fide, or abhorrent in the eyes of law, and is violative of the fundamental rights, and other constitutional safeguards available to civil services.
18. Also, there is merit in the contention of the respondents that when once in the previous OA Nos. 3622/2010 with 3623/2010, in which orders were passed on 01.11.2010, the same applicants had assailed the entire OM dated 24.04.2009, and had failed in their attempt, the principles of res-judicata would fully apply in their picking out a particular paragraph of the Annexure to that OM, and assailing it separately once again through this OA, as if this was not the subject matter of consideration by this Tribunal in their previous OAs No.3622/2010 and 3623/2010.
19. It is trite law that the employer can prescribe eligibility criteria for grant of financial and other benefits to its employees, and, on that touchstone also, the Condition No.3 of the Annexure-I to the said OM dated 24.04.2009 passes muster, and does not call for any interference from this Tribunal. In any case, when a concurrent Bench has upheld the full OM dated 24.04.2009 while passing the order dated 01.11.20120 in OA Nos.3622/2010 and 3623/2010, we are bound by those orders of a concurrent Bench.
20. In the result, the present OA does not survive, and is, therefore, rejected. But there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.