Central Administrative Tribunal - Chandigarh
Ticket No. 341 Bishambhar Dass S/O Daya ... vs Union Of India on 16 December, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(ORDER RESERVED ON 09.12.2016)
Date of filing: 27.11.2015
O.A No.060/01083/2015 Date of decision: 16.12.2016
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. Ticket no. 341 Bishambhar Dass s/o Daya Ram
2. Ticket no. 483 Lila Dhar S/o Karam Chand.
3. Ticket no. 346 Kartar Chand S/o Khendu Ram.
4. Ticket no. 353 Satpal S/o Mangu Ram.
5. Ticket no. 360 Jeet Ram S/o Beli Ram.
6. Ticket no.361 Ajit Singh S/o Labhu Ram
7. Ticket no. 363 Rashpal Singh S/o Harbans Singh.
8. Ticket no. 364 Shiv Charan S/o Mani Ram
9. Ticket no. 365 Sewa Ram S/o Kashi Ram
10. Ticket no. 366 Mahinder Singh S/o Kashi Ram.
11. Ticket no. 368 Roop Singh S/o Harnam Singh.
12. Ticket no. 369 Bir Singh S/o Bhim Singh
13. Ticket no. 370 Sarwan Singh S/o Khushi Ram
14. Ticket no. 371 Subhash Chand S/o Hans Raj.
15. Ticket no. 372 Harbans Lal S/o Budda Singh
16. Ticket no. 373 Manohar Lal S/o Chander Bhan.
17. Ticket no. 379 Kewal Krishan S/o Gian Chand.
18. Ticket no. 381 Neel Raj S/o Bishan Dass.
19. Ticket no. 388 Desh Raj S/o Atma Ram.
20. Ticket no. 389 Som Dutt S/o Sheru Ram.
21. Ticket no. 390 Chandu Ram S/o Ram Ditta.
22. Ticket no. 392 Karam Singh S/o Dalip Singh.
23. Ticket no. 397 Kuldeep Singh S/o Ran Singh.
24. Ticket no. 398 Bachan Singh S/o Asha Singh.
25. Ticket no. 399 Gurdas Mal S/o Phimoo Ram.
26. Ticket no. 401 Garu Ram S/o Kaku Ram.
27. Ticket no. 402 Harbans Lal S/o Prem Chand.
28. Ticket no.419 Subhash Chand S/o Labhu Ram.
29. Ticket no.420 Shamsher Singh S/o Kabul Singh.
30. Ticket no. 421 Joginder Singh S/o Bodh Raj.
31. Ticket no. 422 Jagdish Singh S/o Bheem Singh.
32. Ticket no. 424 Joginder Pal S/o Amar Nath.
33. Ticket no. 425 Raj Kumar S/o Bhagtu Ram
34. Ticket no. 426 Swaran Singh S/o Munshi Ram.
35. Ticket no. 432 Darshan Kumar S/o Sansar Chand.
36. Ticket no. 434 Vijay Kumar S/o Gian Chand.
37. Ticket no. 435 Gurdial S/o Ishwar Dass.
38. Ticket no. 436 Swarn Singh S/o Baldev Raj.
39. Ticket no. 441 Satpal S/o Bua Ditta.
40. Ticket no. 443 Des Raj S/o Sewa Ram.
41. Ticket no. 444 Des Raj S/o Kesar Chand.
42. Ticket no. 452 Sagar Mal S/o Sardari Lal.
43. Ticket no. 454 Balwan Singh S/o Girdhari Lal.
44. Ticket no. 459 Sarwan Singh S/o Anchal Singh.
45. Ticket no. 461 Bishambar Dass S/o Labhu Ram.
46. Ticket no. 462 Ramesh Chand S/o Amar Singh.
47. Ticket no. 468 Tilak Raj S/o Kartar Chand.
48. Ticket no. 471 Hans Raj S/o Thundu Ram
49. Ticket no. 480 Amar Singh S/ o Daulat Ram.
50. Ticket no. 551 Ashok Kumar S/o Mangu Ram
51. Ticket no. 343 Subhash Chander S/o Khusia Ram T/Mate
52. Ticket no. 384 Krishan Singh S/o Mehar Singh T/mate.
53. Ticket no. 380 Chaman Lal S/o Madho Ram P/Mate
All working as T. Mate (Group-C) in the office of Commandant, 9 Field Ordinance Depot, Pin code 909909, c/o 56 APO.
APPLICANTS
BY ADVOCATE: Sh. Barjesh Mittal, proxy for Sh. Jagdeep Jaswal.
VERSUS
1. Union of India, Through, Secretary, Ministry of Defence, North Block, New Delhi.
2. Commandant, 9 Field Ordinance Depot, Pin code 909909, c/o 56 APO.
RESPONDENTS
BY ADVOCATE: Sh. K.K. Thakur.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER (A):-
The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of the reply dated 31.03.2015 (A-1) & 29.05.2009 (A-2) and direction to the respondents to step up the pay of the applicants at par with their juniors and fix their pay at par with them from due date with all consequential benefits, as per law laid down by this Tribunal in OA No.156/JK/2009 decided on 19.01.2010 (A-6) and upheld up to Honble Supreme Court of India.
2. It is stated in the OA that the applicants joined service as Mazdoors during the period from 1977 to 1979. Their junior, one Sh. Chaman Lal, was appointed in the same department in same capacity in the year 1981. Applicants in the year 2007 came to know that the junior employees to them were drawing more pay than them as applicant no.15 was getting the basic pay of Rs.3950/- in August 2007, whereas their junior Sh. Chaman Lal, appointed after two years, in 1981, was drawing the basic pay of Rs.4030/- in June 2007. This position was admitted by the respondents in written statement to OA No.758/PB/2007, and the case of the rest of the applicants is also on the same footing. Pay anomaly vis-`-vis senior and junior employees was challenged by applicants in OA No.758/PB/2007 titled as Bishambar Dass & Others versus Union of India & Others, which came to be ultimately decided on 06.03.2009 (Annexure A-4), and while relying upon the provisions contained in ACP Scheme that the senior employees cannot claim financial upgradations of Pay Scale on the ground that junior employees have been granted the benefit of ACP Scheme, the OA was dismissed conditionally directing the respondents to reconsider the matter. Since the issue was kept open by the Honble CAT Chandigarh Bench, regarding the claim of the applicants, it was imperative upon the department to have reconsidered the entire matter as per the rules in force and the law of the land decided from time to time by various courts of law.
3. Since the applicants were not aware about the final decision taken by the respondents as per order dated 06.03.2009 (A-4), passed by this Tribunal, they submitted a legal notice dated 10.01.2015 (Annexure A-5), which has been rejected vide order dated 31.03.2015 (Annexure A-1), intimating that juniors to the applicants are getting more pay under ACP scheme and therefore, senior employees cannot claim additional financial upgradation on the plea that junior has got higher pay scale under the ACP scheme. This issue is no longer re-integra and stands settled in various judgments that though a senior employee will not be entitled for stepping-up of pay scale, in case junior employee starts getting higher pay on grant of financial up-gradation under ACP scheme, such senior employees will still be entitled for stepping up of their basic pay at par with their junior employee. For ready reference the issue has been settled by Central Administrative Tribunal, Chandigarh Bench, in OA No.156/JK/2009 decided on 19.01.2010 (Annexure A-6), titled as Ashok Kumar versus Union of India & Others, on similar facts as in the present case. This judgment was also upheld by the Honble High Court vide judgment dated 23.07.2010 (Annexure A-7), and finally the SLP was also dismissed upholding the said decision. Copy of order dated 02.05.2011, dismissing the SLP is annexed (Annexure A-8). Another case involving similar controversy came up for consideration before Honble CAT Chandigarh Bench in the case of Madan Gopal Sharma & Others versus Union of India & Others decided on 17.11.2009, where in similar circumstances the claim of employees of MES department under Ministry of Defence has been allowed by this Honble Tribunal. This decision has already been accepted and implemented by the MOD, in MES. This order has also been upheld by the Honble J&K High Court. The claim of the applicants for stepping up of pay at par with their junior is also supported with the principle of equality as enshrined in Articles 14 & 16 of Constitution of India and therefore, also the claim of the applicants merits acceptance. In view of the law laid down by the Honble CAT, Chandigarh Bench, in the case of Ashok Kumar versus Union of India & Others in OA No.156/JK/2009 decided on 19.01.2010, which has attained finality up to Honble Apex Court after dismissal of SLP by the Honble Supreme Court, the case of the applicants requires to be accepted. The impugned orders dated 31.03.2015, and 29.05.2009 (Annexures A-1 & A-2) respectively are clearly violative of law laid down by this Tribunal in Ashok Kumars case which has attained finality up to Honble Supreme Court of India and therefore, such orders require to be quashed and applicants held entitled for benefit of stepping up of their pay at par with their juniors from the date they have been getting higher pay than the applicants.
4. In the written statement filed on behalf of the respondents, it has been stated that on introduction of Modified Assured Career Progression (MACP) Scheme w.e.f. 01.09.2008, three up gradations are made applicable to every employee who has not got regular promotion during his service career after completion of 10, 20 & 30 years of regular service. The ACP Scheme was applicable upto 31 August 2008 and was replaced by the MACP Scheme from 01 September 2008. The pay scales were revised under 6th CPC from 01 Jan. 2006 and clarification received with regard to stepping up of pay of senior govt. employees under grant of ACP/MACP vide Gol. DOP&T letter No.35034/1/97-Estt.(D) dt. 04 Oct. 12 (Annexure R-1). Senior employees who got benefit under ACP Scheme prior to 01 Jan. 2006 and are drawing less pay than their juniors who got benefits under ACP Scheme after 01 Jan. 2006 (i.e. between 01 Jan. 2006 to 31 Aug. 2008) were allowed stepping up of pay subject to the following conditions.
(a) Both the junior and the senior government servants should belong to the same cadre and the posts in which they have been promoted/financially upgraded should be identical in the same cadre.
(b) The pre-revised scale of pay and the revised grade pay of the lower and higher posts in which they are entitled to draw pay should be identical.
(c) The Senior Government servant should have been drawing equal or more pay than the junior before receiving ACP promotion.
(d) The stipulations as contained in DOPTs OM No.4/7/92-Estt.(Pay-1) dated 04.11.1993 along with revision of pay scales may be observed while granting such a stepping up of pay.
The applicants do not fulfil the conditions as both seniors and juniors have already got two financial up gradations under ACP Scheme prior to 6th CPC i.e. 01 Jan. 2006. Hence seniors are not eligible. The senior employees were getting pay Rs.3875 prior to 6th CPC i.e. on 31 Dec. 2005 and juniors getting pay Rs.3950/- with effect from same date. Pay Scale Rs.2550-3200, 2610-3540, 2610-4000 & 2650-4000 have been upgraded and merged with S-4 (i.e. Pay Scale Rs.2750-4400) corresponding Pay Band-1 Rs.5200-20200/- with grade pay Rs.1800/- by Govt. under 6th Pay Commission w.e.f. 01 Jan. 2006. The pay of senior was revised from Rs.3875/- to Rs.7210/- with grade pay Rs.1900/- and juniors pay from Rs.3950/- to Rs.7350 with grade pay of Rs.1900/- under 6th CPC w.e.f. 01 Jan. 2006. 2nd ACP was granted and pay of seniors was fixed Rs.7490 + grade pay Rs.2400 in PB-1 and pay of junior fixed Rs.7630 + 2400 w.e.f. 01 Jan. 2006 after completion of 24 years service. 3rd MACP was granted and pay of senior employees fixed to Rs.8750 + GP 2800 w.e.f. 01 Sep. 2008 after completion of 30 years of regular service on revision of orders for 3rd MACP implemented w.e.f. 01 Sep. 2008. The pay of juniors was also fixed Rs.9940+2800 w.e.f. 01 Jul. 2011 as opted to fix the pay after getting annual increment w.e.f. 01 Jul. 2011 after 30 years of service. On 01 Jul. 2011, the seniors were getting pay Rs.9830+2800 and junior was getting pay Rs.9940+2800. Under the provision of Govt. of India, DOP&T letter dated 04 Oct. 2012, seniors are not eligible for getting the benefit of stepping up the pay at par with their junior under ACP/MACP Schemes. Para 8 of Annexure 1 of DOP&T letter No.35034/1/97-Estt. (D) dt. 09 Aug. 1999 remains unchanged as again clarified vide Gol. DOP&T letter dt. 04 Oct. 2012. Thus, the OA merits dismissal. The cause of action, if any, arose in favour of the applicants a long time back and OA has been filed in 2015 and as such the OA may be dismissed on the ground of delay and laches.
5. In the rejoinder filed on behalf of the applicants, it has been stated that the pay of employee junior to the applicants was fixed at higher stage due to implementation of ACP Scheme and applicants since then have drawn lower pay than their junior. Furthermore, in similar matters where the OA was filed after a long period, similar case has been allowed by this Tribunal vide order dated 13.03.2012 and said order has also been upheld by Honble J&K High Court in judgment dated 02.04.2013. Similar matters pertaining to stepping up for pay of Senior Employee viz-a-viz Junior Employee have been under consideration and in one such case titled as All India Postal Account Employee Association versus K. Kanagraj, similar matter has attained finality up to Honble Supreme Court of India. Anomaly of Senior and Junior employee due to grant of ACP scales has also been considered by the Honble Apex Court in the case of Commissioner and Secretary to Government of Haryana versus Ram Saroop Gainda reported as 2007 SCT page 476. In the said case, it has been categorically held by the Honble Supreme Court that the pay of a Senior Employee must be stepped up at par with Junior Employees as a general rule, unless there is any contrary provision under the rule. In the present case, respondents have not been able to deny stepping up of pay on the basis of any such rule and therefore, applicants deserve to be granted stepping up of their pay at par with their Junior w.e.f. 09.08.1999 with all consequential benefits. It is also stated that the pay of Junior employee to the applicants was fixed at higher stage due to implementation of ACP Scheme and applicants since then has drawn lower pay than their junior. The cause of action is accruing to the applicants every month, when he is receiving less pay and hence present O.A. is within limitation.
6. Arguments advanced by learned counsel for the parties were heard, when learned counsel for the applicants reiterated the contents of the OA, rejoinder and written statement respectively.
7. We have given our careful consideration to the matter and material on record. It is seen that the similar matters had been decided vide orders dated 10.02.2016 in OA No.060/00847/2014 titled as Khiali Ram versus Union of India and Others and OA No.061/00050/2015 decided on 20.05.2016 titled as B.R. Gupta Versus Union of India and Others. It was held in para 12 of order dated 10.02.2016 in OA No.060/00847/2014 reads as follows:-
12. Resultantly, the instant O.A. is allowed. Denial of benefit of stepping up of pay of the applicant at par with his juniors Dharam Singh and Chhitar Singh is declared illegal and arbitrary. The respondents are directed to step up pay of the applicant at par with his aforesaid juniors. However, it is made clear that the applicant would be entitled to stepping up of pay only and not to the pay scale. Pay of the applicant may be refixed accordingly and resultant arrears may be paid to him within 3 months from the date of receipt of copy of this order. The applicant shall not be entitled to any interest. The parties are left to bear their own costs. The claim of the applicants appears to be similar and is decided in the same terms. The respondents are directed to review the case of each individual applicant and if any of the applicants is indeed getting lower pay than the junior Sh. Chaman Lal, the pay of such applicant may be re-fixed to bring it to the level of the junior and arrears due to such applicant may be released within a period of three months from the date of a certified copy of this order being served upon the respondents. No costs.
(RAJWANT SANDHU) MEMBER (A) (SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh.
Dated: 16.12.2016.
rishi 1 O.A No.060/01083/2015