Sac Employees' Welfare Association ... vs Union Of India & 3 on 9 June, 2015

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Gujarat High Court

Sac Employees' Welfare Association ... vs Union Of India & 3 on 9 June, 2015

1. By way of this petition, the petitioner- Association along with the petitioner no.2 has challenged the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad dated 28.1.2014 passed in O.A.No.492 of 2012 with M.A.No.111 of 2013, whereby the Tribunal has rejected the O.A. preferred by the present petitioners.

2. The sole issue raised by the petitioners before the learned Tribunal and before this Court is that whether the decision of respondents denying the petitioners' participation in Joint Consultative Machinery (JCM) and exclude them from the membership of the Association on the ground of drawing grade pay of Rs.4800/- is justified or not. That the JCM scheme which was introduced by the Government of India in the year 1966 provides for setting-up of joint councils at the national, departmental and regional/office levels and the said mechanism is available to the employees for resolving issues pertaining to the central government employees. The JCM scheme covers all regular civil employees of the Central Page 2 of 14 C/SCA/6397/2014 JUDGMENT Government except for the following:

(a) the Class I services;

(b) the Class II services, other than the Central Secretariat Services and other comparable services in the headquarters Organization of the Government.

(c) persons in Industrial Establishments employed mainly in managerial or administrative capacity, and those who being employed in supervisory capacity drawing salary not going beyond the grade pay of Rs.4200/- per month.

(d) Employees of the Union Territories and

(e) Police personnel.

2.1 In the year 1975, ISRO which was established in the year 1969 was converted into a Government Department. Thereafter, in the year 1977, respondent no.1-Union of India introduced a scheme for Joint Consultative Machinery (JCM) and Compulsory Arbitration in the Department of Space (DOS). The JCM of the Department of Space (DOS) has been covering all the Group D & C employees. Assistants and Personal Assistants serving in headquarters of DOS Bengaluru and employees serving in the administrative and para-medical categories were not brought within the JCM scheme. In the year 1993, the DOS decided to bring within JCM scheme all those personnel Page 3 of 14 C/SCA/6397/2014 JUDGMENT holding scale of pay of Rs.1640-2900 classified as Group-B non-gazetted posts and passed the order to that effect on 29.7.1993. In November, 1993, the Government of India framed "Central Civil Services Rules, 1992 for granting recognition to various service associations. In the year 1994, respondent no.1 initiated process of verifications of membership for the purpose of recognition of service association and invited applications from eligible associations. In the year 2000, for the first time verification process was taken up and all those employees in Group-B (non-gazetted) were permitted to become member of any one of the service associations and to take part in JCM. In the year 2007, petitioner no.1-original applicant no.1 association came to be formed and respondent no.1 declared that all group B non-gazetted employees holding unrevised scale of Rs.1690-2900 are eligible to participate in JCM. The said association was accorded recognition in the year 2008. In May, 2008, one seat for the purpose of JCM allotted to petitioner no.1-original applicant no.1 and petitioner no.2-original applicant no.2 came to be nominated as a member of petitioner no.1- original applicant no.1-association. In September, 2008, respondent no.1 upgraded the pay scale of Assistants and Personal Assistants, 11 employees serving in DOS, serving in DOS Page 4 of 14 C/SCA/6397/2014 JUDGMENT secretariat from existing 5500-9000/- to 6500- 10500/- w.e.f.15.9.2006. All those Group-B (non- Gazetted) employees serving in the various units/centres of ISRO and drawing the pay scale of Rs.6500-10500/- were not even allowed to become either a prime member or even an office bearer of the service association, thereby depriving them of their right to espouse their common interests in regard to their service conditions. In September, 2008 respondent no.1 decided to revise scale of pay of all posts in Grade A, B, C and D and granted to them the grade pay of Rs.4800/-. Accordingly status and the designation did not undergo any change and all those employees falling within aforesaid equated posts still continued to be group-B (non- gazetted) employees in ISRO. In the year 2009, some centres of DOS/ISRO raised doubts regarding eligibility of employees for participation in JCM under CCS (RSA) Rules, 1993. Thereafter, in the year 2010, respondent no.1 issued clarification that all those categories of employees by designation who were covered under JCM prior to implementation of CCS (RP) Rules, 2008, would continue to be eligible for participation in JCM until next verification of membership under CCS (RSA) Rules, 1993. On 1.5.2012, leader staff side of the Department Council of JCM requested for allowing participation of existing staff side Page 5 of 14 C/SCA/6397/2014 JUDGMENT members with Grade Pay of Rs.4800/- (non- Gazetted) in the departmental council. On 7.5.2012, respondent no.1 clarified that grade pay of Rs.4800/- are allowed to participate in the JCM, the organization would not be able to exclude them in future. On 11.5.2012, respondent no.1 issued common letter conveying its inability to agree to the request made by Leader, staff side to all recognized associations including petitioner no.1-original applicant no.1 association. In September, 2012, the petitioners- original applicants came to know that VSSC, Thiruvananthapuram has made a request for allowing employees in grade pay of Rs.4800/- to participate in JCM and the respondent no.1 came out with a communication that employees in grade pay upto 4600/- only will be eligible for participation in JCM irrespective of the designations held by them and its request for allowing the employees in grade pay of Rs.4800/- for participation in JCM cannot be acceded to. The said decision is applicable to members of petitioner no.1-original applicant no.1 association who are group-B (non-gazetted) employees and currently drawing grade pay of Rs.4800/-. On 1.11.2012, petitioner no.1 association was unanimously resolved to initiate appropriate legal proceedings and accordingly filed O.A.No.492 of 2012. On 28.1.2014, the Page 6 of 14 C/SCA/6397/2014 JUDGMENT Tribunal dismissed the said application.

2.2 In view of the above provisions of the scheme and in view of the admitted position by the respondent ISRO, that ISRO is not an industrial establishment, the class [c] has no application to the members of the petitioner union who are admittedly not in industrial establishment and they clearly falls in class (b). That ISRO is not an industrial establishment as admitted by the respondents in the information supplied under RTI. Therefore, the learned Tribunal has committed an error in rejecting the OA of the petitioners applying class (c) of the scheme. Therefore, the petitioners have approached this Court by way of filing this petition.

3. Heard learned advocate Mr.Rao for the petitioners and learned advocate Mr.Lodha for respondent nos.1 to 3.

4. Learned counsel for the appellant Mr.Rao contended that earlier the department has fixed Rs.4200/- and then Rs.4600/- and now arbitrarily they have fixed Rs.4800/- without any justification which will amount to violation of Articles 14 and 19 of the Constitution of India. He further contended that due to increase to Rs.4800/-, majority of members will not be in a Page 7 of 14 C/SCA/6397/2014 JUDGMENT position to participate in JMC. He, therefore, prayed that the order of the Tribunal be set aside.

5. Learned counsel for the respondent submitted that this is absolute creation of a mechanism inter-department for resolving the issues and it is not a statutory body nor it has any statutory right. He further submitted that the respondents have filed the affidavit before the Tribunal to the effect that the intention of the department is to restrict the participation of JCM members belonging to Group-C, D and all other non-gazetted or non-supervisory staff upto the grade pay of Rs.4600/-. As regards the contentions of the applicants, the respondents submitted that consequent to implementation of CCS (RP) Rules, 2008 and subsequent merger of pre-revised scale of Rs.5500-9000, the Department could not uniformly assign the pay scales as much as while some of the category of employees who were in the pre-revised scale of pay of Rs.5500- 9000 were assigned the Grade Pay of Rs.4600/- particularly in the technical category. Since there was confusion prevailing on this issue and at the same time this issue was raised by some of the ISRO Centres/Units regarding applicability of the DOPT OM dated 30.12.2008, it was clarified that as regards the determination of eligibility Page 8 of 14 C/SCA/6397/2014 JUDGMENT for participation in JCM verification, status quo would continue as per pre-revised scale. This decision of the Department was only an interim decision pending re-verification of Membership of Service Associations in ISRO which was in the offing during the 2nd half of the year 2012-13 and also in order to avoid a situation where some of the category already participating in the JCM would become ineligible to participate in the JCM, as a result of the clarification received from Government and thus seriously affecting the working of JCM scheme in the Department. Hence, the department had issued such a clarification only as a stop-gap arrangement pending the process of re-verification which was due in the 2nd half of 2012-13. The respondents further submitted that the request of the Leader Staff Side of the Departmental Council of JCM for allowing participation of employees in the JCM upto the Grade Pay of Rs.4800/- (Non-Gazetted) was examined by the Department in detail and it decided to allow the participation of only those employees who were drawing Grade Pay upto Rs.4600/- which was mutually agreed by the Management and the Staff Side of the Department council of JCM in the meeting held on 22.10.2012 where all representatives of recognized associations of DOS/ISRO were present and one of the representative of petitioner no.1-original Page 9 of 14 C/SCA/6397/2014 JUDGMENT applicant no.1 of SEWA was also present in the said meeting. He submitted that the Tribunal has discussed in great detail in paragraphs 20, 21 and 22 and has come to the conclusion and hence no interference is called for.

6. Before proceeding with the matter, we are of the opinion that this is a mechanism. Joint Consultative Machinery (JCM) is created only for the purpose of resolving small issues in the inter-department. This is neither statutory firm nor creation of any regulations. In that view of the matter, the application itself before the Tribunal is misconceived. Apart from that, in paragraphs 20, 21 and 22, the Tribunal has discussed in detail which is reproduced hereunder:

"20. We have carefully considered the entire facts and the submissions made by both the sides. The Joint Consultant Machinery was introduced by the Government of India to provide a forum for redressal of the grievances of employees and is a voluntary scheme.

After the ISRO became a regular department, it had also introduced scheme of JCM. As it is an admitted fact that in DOS right from the beginning the eligibity of the employees for participation in JCM process specifies employees of a scale of pay. Initially, it was stipulated as Rs.1640-2900 which was subsequently revised to Rs.5500- 9000/- and as per the Vth CPC with Grade Page 10 of 14 C/SCA/6397/2014 JUDGMENT Pay of Rs.4200 in PB-2 after VIth CPC. The Respondents however, have allowed employees with the Grade Pay of Rs.4600/- to participate in the JCM process. Even though the applicants have contended that ISRO is not an Industrial Establishment and they are equivalent to CSS Cadre as per rules, hence, there should be no applicability or pay scale in their case, the fact remains that right from the beginning when Group `B' non-gazetted employees were covered under JCM on the request of the staff side the scale of pay has been specified in the case of Group `B' (Non Gazetted) employees and it has not been introduced all of a sudden. The stipulation of pay scale towards eligibility of the Group `B' non gazetted employee had never been questioned so far by the employees' unions and has been accepted by the staff side all along. In fact, there was a request from the staff side for further relaxation in the pay scale to the respondent organization. This only go to prove that the fact that the Group `B' employees of the particular scale are entitled to participate in the JCM process have been accepted all along including the Applicant No.1 association. As such, the applicant's contention that pay scale in case of Group `B' non gazetted employees should not be applied does not appear justified.

21. On the issue of allowing Group `B' non gazetted employees in the grade pay of Rs.4800/- to become member of the applicant No.1 association and enabling their participation in the JCM, the applicant's argument is that in spite of getting the higher grade pay of Rs.4800/- the employees continue with Page 11 of 14 C/SCA/6397/2014 JUDGMENT the same designation and perform the same nature of functions. On the other hand, the respondent authorities have contended that the grade pay of Rs.4800/- are admissible to both Gazetted as well as non gazetted employees and those who get grade pay of Rs.4800/- amongst the said category like Senior Project Assistants, Senior Technical Assistants etc., perform supervisory role. Hence, allowing employees having grade pay of Rs.4800/- will lead to confusion, there being several categories of employees both gazetted and non gazetted getting that grade pay and they perform supervisory work. The employees performing supervisory role are normally excluded from participation in JCM. We are of the view that the point made by the respondents seem to have some logic and justification.

22. It is also an accepted fact that JCM is meant for creating a forum for mutual benefit of the employee and the employer to resolve matters of common interest. There need to be an element of trust between the two sides if this purpose is to be achieved. Consequently, it would necessitate that various issues involving the employees including the level of participation are resolved mutually rather being thrust upon. As it is, the Department of Personnel & Training have issued specific guidelines regarding participation of various categories of employees in the JCM process. According to their stipulation, the Group `B' non gazetted employees with a grade pay up to Rs.4200/- can participate in JCM process. In spite of the same, the Respondent department considering the interest of their Page 12 of 14 C/SCA/6397/2014 JUDGMENT employees and in consultation with staff side, have made slight deviation and gone beyond the stipulation of the DOPT by allowing the employees in the grade pay of Rs.4600/- to be eligible for JCM participation as against grade pay of Rs.4200/- stipulated by the DOPT. Therefore, we are of the view that this does not call for further interference by this Tribunal in this matter. The department is however, free to take its own decision on the request of the staff side within the overall framework of JCM taking a holistic view."

7. We are in complete agreement with the reasoning given by the learned Tribunal. Even otherwise, increasing the salary is absolute discretion and it will not be appropriate for the Court in fixing the more salary or the lower salary, as the case may be.

8. In view of the above, this petition is devoid of merits and the same is dismissed. Rule is discharged. As the petition is dismissed, civil application does not survive and the same is also dismissed.





                                                            (K.S.JHAVERI, J.)




                                                                (G.B.SHAH, J.)


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            C/SCA/6397/2014                   JUDGMENT


Srilatha




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