Central Administrative Tribunal - Jabalpur
Pankaj Kumar vs The Union Of India on 23 November, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No. 325 of 2010
Jabalpur, this Monday, this 23rd day of November, 2015
SHRI A.K.PATNAIK, JUDICIAL MEMBER
SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
1. Pankaj Kumar, aged about 34 years, S/o Avdesh Prasad Singh,
R/o Qr. No.14/1, Lekha Nagar, Ridge Road, Jabalpur-482001
2. Jitendra Kumar, Aged about 38 yrs., S/o Late Shri K.D.Singh,
R/o Qr. No. 10/10, Lekha Nagar, Ridge Road, Jabalpur-482001
3. M.C.Sharma, Aged about 37 yrs. S/o Shri K.P.Sharma,
R/o Qr. No.12/7, Lekha Nagar, Ridge Road, Jabalpur-482001
4. B.K.Bimal, aged about 33 years, S/o Shri Kamleshwari Prasad,
R/o Qr. No. 18/12, Lekha Nagar, Ridge Road, Jabalpur-482001
5. Pankaj Kumar, aged about 32 yrs, S/o Late Shri Bhagwat Prasad,
R/o Qr. No. 7/11, Lekha Nagar, Ridge Road, Jabalpur-482001
6. K.N.Mishra, Aged about 33 yrs., S/o Shri U.N.Mishra,
R/o Qr.No.6/10, Lekha Nagar, Ridge Road, Jabalpur-482001
7. Manoj Kumar, aged about 37 yrs., S/o Shri Deo Bansh Sharma,
R/o Qr. No. 57/13, Lekha Nagar, Ridge Road, Jabalpur-482001
8. Ajay Dhawan, Aged about 37 yrs., S/o Shri Shiv Prasad Dhawan,
R/o Behind Old Kali Mandir, Sadar, Jabalpur-482001
9. Ravindra Kumar, Aged about 34 yrs. S/o Shri Hemant Kumar,
R/o Qr. No. 8/7, Lekha Nagar, Ridge Road, Jabalpur-482001
10. Smt. Bharti Singh, aged about 34 yrs., W/o Shri Manoj K. Singh,
R/o Qr. No.7/2, Lekha Nagar, Ridge Road, Jabalpur-482001
11. Rakesh Kumar, aged about 34 years, S/o Shri Makardhwaj Singh,
R/o Qr. No. 11/2, Lekha Nagar, Ridge Road,
Jabalpur-482001 -Applicants
(By Advocate:-Shri Vijay Tripathi)
V e r s u s
1. The Union of India, through its Secretary, Ministry of Finance,
(Department of Expenditure), North Block, New Delhi-110001
2. Government of India, through its Secretary, Ministry of
Personnel Public Grievances and Pensions, (Department of Personnel
& Training), North Block, New Delhi-110001
3. Ministry of Defence, (Finance), Through its Secretary (FADS),
South Block, New Delhi
4. Controller General of Defence Accounts, West Block-V
R.K. Puram, New Delhi-110066
5. Controller of Defence Accounts, Ridge Road,
Jabalpur(M.P.)-482001 -Respondents
(By Advocate:- Shri S.K.Mishra)
(Date of reserving the order:-14.10.2015)
O R D E R
By G.P.Singhal, AM:-
The applicants have prayed for following reliefs in this Original Application:-
(i) Summon the entire relevant record for the kind perusal of this Honble Court.
(ii) Set aside the communication dt. 23.12.08 Annexure A-1 and order dt. 12.3.2010 Annexure A-2.
(iii) Upon holding the rule 13 of R.P. Rules 2008 as unconstitutional/ultra vires, struck down the same. Consequently, command the respondents to maintain parity in the matter of pay fixation of promotee Section Officer (A) applicants from that of direct recruitees and their pay be fixed from the stage, which is fixed for a direct recruitee (13350 in the same PB-2, 9300-34800) and on the basis of the same of same grade pay 4800/-.
(iv) Respondents be directed to complete this exercise within a stipulated time with further direction to pay arrears of the re-fixed pay from 1.1.2006 with interest on delayed payments.
(v) Any other order/direction may also be passed.
(vi) Award cost of the litigation to the applicant.
(vii) Set aside the letter/order of the Ministry of Finance dated 17.7.2012 (Annexure-A/12).
2. The contention of the applicants is that after implementation of 6th Central Pay Commission (for brevity CPC) recommendations, their pay has been fixed as per provisions of the Central Civil Services (Revised Pay) Rules, 2008 (hereinafter referred to as the 2008 Rules). These applicants were in service prior to 01.01.2006 and got promotions after 01.01.2006 and, therefore, their pay has been fixed in accordance with the provisions contained in Rules 7 & 13 of the 2008 Rules. However, their pay is substantially lower than that of direct recruits in the same cadre, who joined after 01.01.2006 and whose pay is to be fixed as per Section-II Part-A of the First Schedule to the 2008 Rules. This violates the principle that similarly situated promotees should not get less pay than the direct recruit appointed on same or a later date. The applicants have placed reliance on the judgments in the matters of Bahgwan Dass and others Vs. State of Haryana and others (1987) 4 SCC 634, State of A.P. Vs. G. Ramakishan and others (2001) 1 SCC 323, State of Haryana and others Vs. Charanjit Singh and others (2006) 9 SCC 321, Union of India Vs. Dineshan K.K. (2008) 1 SCC 586, State of Kerala vs. B. Renjith Kumar and Others, 2008 (4) AIR SCW 4279: (2008) 12 SCC 219, Kamalkar and others Vs. Union of India and others (1999) 4 SCC 756, State of J&K Vs. Trilokinath Khosa and others (1974) 1 SCC 19, General Manager, South Central Railway, Secunderabad and another Vs. A.V.R. Siddhantti and others (1974) 4 SCC 335, Budhan Choudhry and others Vs. State of Bihar AIR 1955 SC 191, Javed and others Vs. State of Haryana and others (2003) 8 SCC 369, and The Confederation of Ex-Servicemen Associations and others Vs. Union of India and others (2006) 8 SCC 399.
3. The respondents, in their reply, have submitted that the controversy involved in the present Original Application was considered by the Ministry of Finance, Department of Expenditure. It will be apparent from the copy of note sheet at Annexure A-12 that Department of Expenditure has recommended in regard to stepping up of pay that in cases where no Direct Recruitment has actually taken place and no anomaly has actually arisen whereby an employee appointed on promotion basis is not actually drawing less pay than a direct recruit for the reason that no DR has yet joined, it is not possible to, ipso facto, extend the Entry Pay prescribed for DRs to those appointed on promotion to the concerned grade. Since, the applicants have not shown that any direct recruit who was junior to them is getting more salary there is no question of stepping up of their pay. Some of the applicants, who were getting lesser salary than their juniors, have already been sanctioned stepping up of pay and their names have been got deleted from the array of the applicants. Thus, the present Original Application being without any merit deserves to be dismissed.
4. Heard the learned counsel for the parties and perused their respective pleadings and the documents annexed therewith. We have also gone through the written submissions made by learned counsel for the applicants and the respondents.
5. Learned counsel for the respondents submitted that this matter has already been considered and decided by the Principal Bench of this Tribunal in the matters of Shri M.S.Raja and anr. Vs. Union of India & anr., (Original Application No. 4135/2013 decided on 23.09.2014). The relevant Paragraphs of the said order are reproduced as under:-
7. It is in the above facts and circumstances of the case, the applicants have filed this OA seeking the following reliefs:-
(a) That the respondent may be directed to honour the agreement reached in the meeting of the National Anomaly Committee held on 17.07.2012.
(b) That the Rule 13 of the CCS (RP) Rules, 2008 may be amended by incorporating a proviso to the effect that a promote to a post on or after 01.01.2006, if his pay on promotion under Rule 13 of the CCS (RP) Rules, 2008 has been fixed at a stage lower than the prescribed entry pay of a direct recruit to the same post as given in Section 2 of the First Schedule of the CCS (RP) Rules, 2008, the pay of the promote shall be stepped up to the same stage of the entry pay of the direct recruit effective from 1.1.2006, date of promotion, whichever is later.
(c) That a promotee to a post not having an element of direct recruitment may also be fixed at the entry pay as prescribed for the respective Grade Pay as given in Section 2 of the First Schedule of the CCS (RP) Rules 2008 effective from 1.1.2006 or date of promotion whichever is later.
(d) That the respondents may be directed to re-fix the pay of promotes from 1.1.2006 date of promotion by stepping up to the level of entry pay and to pay arrears arising there from with interest @ 9% per annum thereon within a period of 3 months. Any other appropriate relief which the Honble Tribunal considers necessary may also be granted.
8. The respondents in their reply have submitted that it was only with the introduction of the concept Minimum Entry Pay for DRs by the 6th CPC that an anomaly has been created in the pay of the seniors in the cadres where there is an element of direct recruits. They have also stated that prior to 6th CPC, DRs were fitted at the minimum of the scale of pay applicable to the Grade in which they were recruited. Hence, the anomaly is to be rectified only in those cases where there is an element of direct recruitment and a junior has been appointed in the cadre on or after 01.01.2006. They have also stated that this anomaly has been crested because the 6th CPC merged pay scales at certain levels and introduced the concept of Pay Bands and Grade Pay to distinguish between the hierarchy of posts sitting within a particular Pay Band. While the pay scales have been merged into Pay Bands, the hierarchy of post has continued to exist. As a result of which, if Direct Recruitment takes place for a certain post which is above the minimum of the Pay Band, the pay can obviously not be fixed at the minimum of the Pay Band. Further, the respondents have stated that the above said position that the 6th CPC recommended the concept of Minimum Entry Pay for the DRs providing a normative basis for matching pay with the level at which the recruitment takes place. The result of this methodology is that in certain situations, the entry pay of a DR could be higher than the pay of a promotee fixed in that Grade. Hence, an anomaly has been created. To overcome the said anomalous situation, the National Anamoly Committee (hereinafter as NAC) recommended that wherever there is a provision of direct recruitment in the Recruitment Rules, pay on promotion in case of promotees would be fixed at the prescribed minimum of the entry pay as provided for the Direct Recruits in the Revised Pay Rule, irrespective of the fact whether direct recruitment has actually taken place or not. The said situation has been discussed in detail and references have already been made to the Ministry of Finance. Even though no reply has been received from the Ministry, yet substantial points are covered by the clarifications dated 20.03.2009 & 12.11.2009 issued by the Ministry in this behalf. In view thereof, the C&AG has also decided to limit the anomaly only to the cadres where the element of direct recruit exist and a junior has been appointed directly to the cadre on or after 01.01.2006. The said issue was again discussed in the meeting of the NAC on 17.07.2012. It has been observed that the system of Entry Pay for Direct recruits was devised by the Pay Commission only to ensure smooth transition of the new structure of running Pay Bands and Grade Pays from the old structure. This was devised by the Pay Commission only to cater to two different situations. It was observed that unless and until an anomaly arises where the pay of a junior DR is actually more than a senior promotee appointed on or after 01.01.2006, it is not appropriate to allow Entry Pay to those where there is no element of direct recruitment. Such a blanket extension of Entry Pay will place employees at a disadvantageous position holding analogous post with the same Grade Pay where Direct Recruitment is not a prescribed mode of recruitment. They will end up demanding similar dispensation. Hence, it was decided to cater to the recommendations of the 6th CPC and the principle of Entry pay is applied where anomaly occurs subject to the following conditions:-
Stepping up of pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basic pay than the seniors. In such cases, the basic pay of the seniors will be stepped up with reference to the pay of the directly recruited junior provided they belong to the same seniority list for all purposes.
(b)Government Servants cannot claim stepping up of their revised basic pay with reference to the entry pay in the revised structure for direct recruits appointed on or after 01.012006 as laid down in Section II of Part A of the First Schedule to the CCS (RP) Rules, 2008, if their cadres does not have an element of direct recruitment or in cases where no junior is drawing basic pay higher than them.
(c) Stepping up of pay of the seniors shall not be applicable in cases where direct recruits have been granted advance increments at the time of recruitment.
9. However, according to the respondents the said recommendation of the National Anomaly Committee was not accepted by the Ministry of Finance on the following grounds:
7. It appears difficult to accept the arguments in favour of the decision of the NAC on account of the following:-
(a) Setting right of an anomaly can take place only after an anomaly actually arises. If no direct recruitment has taken place and no anomaly has therefore resulted, giving the benefit of an increase in pay amounts to giving a benefit not admissible under the normal pay rules. This could potentially lead to a further anomalous situation vis-avis comparable posts where no element of direct recruitment is provided for in the RR, but where the nature of work is similar.
(b) The recommendation of the NAC is to increase the pay of a promotee even where no direct recruitment has taken place but where the RRs prescribe an element of direct recruitment suggesting the setting right of a perceived disparity between pay of a direct recruit and a promotee. It would, however, be necessary to view this recommendation in the larger context of the 6th CPCs conscious movement from multiple pay scales to rationalization of the pay structure by way of Pay Bands and Grade Pay and the consequent introduction of a new concept of entry pay. While it is possible that this may have resulted in a situation where in certain cases, the procedure for calculating entry pay for DRs could result in the entry pay being higher than the pay fixed for senior promoted officers in the same grade, this problem would be rectified on the basis of this Departments decision indicated at para 5 above.
(c) We also have no data with us at the moment as to possible financial implications if we agree to the recommendation of the NAC.
10. They have also stated that in view of the above, the benefit of Entry Pay cannot be granted to all regardless of whether there is an element of Direct Recruitment in that cadre or not. Hence, the OA of the Applicant is not sustainable and is liable to be dismissed. Further, there is no valid ground on the basis of which the Applicants seek amendment of Rule 13 of the CCS (RP) Rules, 2008 or seek arrears of pay, if any. In this regard, the respondents have relied upon the judgment of the Honble High Court of Punjab and Haryana in the case of Ram Milan & Ors vs. Central Administrative Tribunal bearing W.P.(C) No.21738 of 2012 has already held that the pay of the Petitioners therein were to be fixed in terms of Rule 13 of the CCS (RP) Rules, 2008. It has been held that the claim of the Petitioners therein for revised pay scale at par with direct recruits from the date of their promotion is not tenable.
11. We have heard the learned counsel for the applicant Shri S K Vyas and learned counsel for the respondents Ms. Eshita Baruah for Shri Gaurang Kanth. In our considered view, the recommendation of the Anomaly Committee are not binding on the Govt. The respondents in their reply have explained as to why the aforesaid recommendation cannot be implemented. Therefore, it would not be within the jurisdiction of this Tribunal to enforce the aforesaid recommendation of the Anomaly Committee through a judicial order. We, therefore, do not find any reason to interfere with the decision of the respondents in this matter. Accordingly, this OA is dismissed. There shall be no order as to costs.
6. On perusal of the aforesaid order of the Principal Bench of the Tribunal, we are of the considered view that the prayer made in this Original Application is similar to the prayer made by the applicants in the matters of Shri M.S.Raja (supra). The applicants have not produced anything to show that the order passed in the matter of Shri M.S.Raja (supra) has been superceded/modified by any superior Court. Since the issue involved in the present case has already been considered and decided by a co-ordinate Bench of the Tribunal, with which we are in full agreement, we do not find any ground to take a different view in the matter. In this view of the matter the relief sought for by the applicants in the instant Original Application cannot be granted.
7. Accordingly, the Original Application is dismissed, however, without any order as to costs.
(G.P.Singhal) (A.K.Patnaik)
Administrative Member Judicial Member
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Sub: Pay Fixation OA 325-2010
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