Central Administrative Tribunal - Delhi
Vijay Singh vs M/O Personnel,Public Grievances And ... on 1 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 1035/2015
MA 957/2015
Reserved on: 20.07.2016
Pronounced on: 01.08.2016
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Mr. P.K. Basu, Member (A)
1. Vijay Singh
S/o Shri Jorawar Singh
Aged 66 years
Retired general director of India Meteorological
Dept. (IMD)
R/o F-2/537, Sangam Vihar
New Delhi-110062
2. N.P. Bhatnagar
S/o Shri S.P. Bhatnagar
Aged 65 years
Retired general director of India Meteorological
Dept. (IMD)
R/o 12-D, Vasudha Apartments
Vasundhara, Sector-6
Ghaziabad-201012
Uttar Pradesh
3. K.S. Gaharwar
S/o Shri C.S. Gaharwar
Aged 65 years
Retired general director of India Meteorological
Dept. (IMD)
R/o H.No. 210 FF, Ganga Lane
Sector-5, Vaishali
Ghaziabad-201010 ... Applicants
(Through Shri Sagar Saxena, Advocate)
Versus
1. The Secretary
Department of Personnel & Training
Govt. of India, North Block,
New Delhi-110001
2. Union of India
Through the Secretary
Ministry of Earth Sciences
2
OA 1035/2015
Govt. of India, Prithvi Bhawan,
Meteorological Complex
New Delhi-110003
3. Director General of Meteorology
India Meteorological Department
Lodhi Road, New Delhi-110003 ... Respondents
(Through Shri N.D. Kaushik, Advocate)
ORDER
Mr. P.K. Basu, Member (A) The 6th Central Pay Commission (CPC) had recommended grant of Non-Functional Upgradation (NFU) to the organized Group `A' services. This was accepted by the government and the Department of Personnel and Training (DoP&T) issued OM dated 24.04.2009 (Annexure P-8), OM dated 21.05.2009 (Annexure P-9) and OM dated 25.09.2009 (Annexure P-10) to implement this decision.
2. The NFU was applicable only to organized Group `A' services. The respondents have denied NFU to the applicants, who belong to Indian Meteorological Service (IMS). According to the applicants, IMS is an organized Group `A' service. In this regard, they rely on the following documents:
(i) Para 4.2.7 of Second Administrative Reforms Commission, Tenth Report of November 2008, in which table 4.1 is a list of all the Organized Group `A' Central Civil Services in Government of India and at serial number 30, IMS is indicated; 3 OA 1035/2015
(ii) Internal notings received by them through reply dated 20.01.2015 to an RTI application, in which in a noting dated 13.04.2010, the Legal Cell has recorded that attributes of Group `A' services are applicable to India Meteorological Department (IMD);
(iii) Vide order dated 13.10.2014 in W.P. (C) 4067/2014, Joint Action Council of Service Doctor's Organization Vs. Ministry of Personnel, Public Grievances and Pensions, Deptt. of Personnel and Training and others, the Hon'ble High Court of Delhi has allowed grant of benefit of NFU Scheme, treating them as organized Group `A' service. The Hon'ble High Court also observed as follows:
"18.................Pertinently, even when clarifications were issued by the DoPT vide O.M. dated 25.09.2009, the DoPT did not seek to limit the scope of the entitlement to NFU, on the premise that where ACP or DACP schemes are in operation, the NFU shall not be admissible. Therefore, it appears to us, that the stand subsequently taken by the respondents to deny the benefit of the NFU Scheme to the eligible officers of the CHS, is clearly an after-thought.
19. Since we do not find any substance in the reasons given by the respondents to deny the benefit of the NFU Scheme to the officers of the petitioners associations, we have no hesitation in quahing the said decision of the respondents contained in the office memorandum dated 02.04.2010, which we hereby do"; and 4 OA 1035/2015
(iv) Judgment of the Hon'ble High Court of Delhi dated
3.09.2015 in W.P. (C) 153/2013 and connected cases, G.J. Singh and others Vs. Union of India and others, which were filed by officers of CRPF, BSF and ITBP seeking benefit of NFU, which was allowed by the Hon'ble High Court.
3. This matter had been agitated before this Tribunal earlier in OA 4593/2011, Vijay Singh and others Vs. Union of India and others, which was disposed of vide order dated 30.08.2013 and the Tribunal directed that the respondents would examine the issues and pass a reasoned and speaking order.
4. The respondents have issued order dated 15.12.2014, which is under challenge in this OA and the prayer of the applicants for grant of NFU was rejected primarily on the following grounds:
(i) That the Scientists of IMD are already covered by Flexible Complimenting Scheme (FCS) in which in situ promotion is granted, which has no linkage with the vacancy based promotion to higher grade;
(ii) The NFU Scheme is primarily for other organized Group `A' services who get posted at the Centre and receive less pay than those IAS officers who are junior to them by two years or more and are 5 OA 1035/2015 posted at the Centre to a particular grade carrying a specific pay in PB-3 or PB-4; and
(iii) The 6th CPC has specifically recommended separate schemes at various levels after detailed deliberations and hence all in-situ promotion schemes such as FCS to Scientist or Dynamic Assured Career Progression Scheme for doctors or financial upgradation under NFU scheme shall have to be applied in toto. The attributes of one scheme cannot be transposed on another and two schemes cannot run concurrently for a cadre as it would be against the spirit of the 6th CPC recommendations. Hence, the scientists of IMD would continue to be considered for in-situ promotion under FCS and the financial upgradation under NFU scheme would not therefore be applicable on them. The Scientists of IMD would be covered by their own in-situ promotion scheme under FCS. Giving option for being considered under FCS or NFU Scheme to them would not be required.
5. The learned counsel for the respondents, first of all, raised the question of limitation as this OA has been filed only in the year 2015 whereas the cause of action arose in 2009 when NFU was introduced.
6OA 1035/2015
6. It was further argued that NFU was introduced only to remove disparity between IAS officers who are posted at the Centre and other organized Group `A' service officers who are also posted at the Centre but who are not in Joint Secretary scale and, therefore, the two year protection was granted through this Scheme whereas the Scientists in IMD were already enjoying the benefit of FCS.
7. Learned counsel for the respondents drew our attention to letter dated 7.08.2015 from Joint Secretary, DoP&T to all Cadre Controlling Authorities. Through this letter (Annexure R-2), list of Central Group `A' Services, which are organized or not organized, as per records, was circulated. This list mentions at serial 45, IMS as "not organized". Similarly, letter dated 17.08.2015 from Ministry of Earth Sciences addressed to IMD also states that as per list of Central Group `A' Services (Organized/ Not Organized) enclosed with DoP&T's D.O. dated 7.08.2013, status of IMS is "not organized".
8. On direction of the Tribunal, the respondents have also filed a letter dated 13.04.2016, annexure to which indicates that IMS has correctly been shown as "not organized".
9. Regarding judgment of the Hon'ble High Court in G.J. Singh (supra), it is stated that this relates to CRPF, where the facts were different and, therefore, would not be applicable in the present case.
7OA 1035/2015
10. We have heard the learned counsel for the parties and gone through the pleadings available on record as well as the judgments cited by either side.
11. The dispute hinges around verification of one fact, namely whether IMS is organized Group `A' service or not because 2009 OM by which NFU has been introduced, is applicable only to Group `A' Organized Services. Therefore, in our view, it is not relevant that the Scientists in IMD get benefit under FCS or not because DoP&T OM dated 24.04.2009 only provides that when an IAS officer is posted to the Centre carrying a specific Grade Pay in PB-3 or PB-4, officers belonging to other organized Group `A' services and who belong to batches that are senior by two years or more and have not so far been promoted to a particular grade, would be granted the same grade on non-functional basis from the date of posting of IAS in the Centre. But on the question of organized Group `A' service, the situation is not very clear from the documents produced by both sides. From the Tenth Report of Administrative Reforms Commission, it is clear that IMS is an Organized Group `A' Service whereas by a subsequent letter dated 7.08.2015, the respondents have clarified that it is not an organized Group `A' Service. This confusion was also noted by the Hon'ble High Court in G.J. Singh (supra). In fact, the Hon'ble Supreme Court while examining a similar issue in State of Mizoram & Another Vs. Mizoram 8 OA 1035/2015 Engineering Service Association & Anr., AIR 2004 SC 3644, observed as follows:
"Great stress was laid on the fact that Engineering Service in the State was not an organized service and therefore, it did not have categorisation by way of entrance level and senior level posts and for that reason the higher scale of Rs.5900-6700 which was admissible for senior level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Service as an unorganized service in the State is absence of recruitment rules for the service. Who is responsible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly 'No'. For failure of the State Government to frame recruitment rules and bring Engineering Service within the framework of organized service, the engineers cannot be made to suffer. Apart from the reason of absence of recruitment rules for the Engineering Service, we see hardly any difference in organized and unorganized service so far as Government service is concerned In Government service such a distinction does not appear to have any relevance. Civil Service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words 'organised service' and 'unorganised service'. Nothing has been pointed out in this behalf. The argument is wholly misconceived."
12. We accept the argument of the respondents that G.J. Singh (supra) and Joint Action Council of Service Doctor's Organization (supra) cannot be cited as precedent as the facts and job requirements are completely different.
13. On the ground that applicants get the benefit of FCS and hence cannot get NFU, it is seen that whereas FCS is a Scheme which provides upgradation of Scientists within the cadre based on their performance, NFU is a wholly different concept namely protection to other organized Group `A` services in case an IAS 9 OA 1035/2015 officer who is of a lower batch gets posted to Delhi in a higher pay scale. In that case, the other organized Group `A` officer has to be granted protection vis-à-vis that IAS officer, in case he is senior by two or more batches.
14. As regards the argument of applicants not belonging to organized Group `A` Service, in view of the above finding of the Hon'ble Supreme Court in Mizoram Engineering Service Association (supra) and lack of clarity prevailing even now, prima facie it may appear that the applicants have to be given the benefit of NFU treating them as organized Group `A` service. However, what is relevant and more important but not agitated by the respondents, is that the applicants basically entered service as Professional Assistant (Group `B`) in IMD. Then they were promoted as Assistant Meteorologist (Group `B` Gazetted). In 1998, the post of Professional Assistant and further promotional post of Assistant Meteorologist were re- designated as Assistant Meteorologist Grade-II (Group `B` Gazetted) and Assistant Meteorologist Grade-I. They were all promoted as Meteorologist Grade-I (Group `A' Gazetted). In our view, the applicants cannot compare themselves with the other organized Group `A` services. This issue was examined by us in order dated 4.12.2015 in OA 942/2014, Shri Sajjad Khan and others Vs. Secretary, DoP&T and others and we quote below our finding in this regard:
"20. The only issue to be decided here is whether there is distinction between AFHQCS and other 10 OA 1035/2015 services. In our opinion, there is a distinction and the distinction is that services like Indian Audit and Accounts Service (IAAS), Indian Revenue Service (IRS), Indian Railway Accounts Service (IRAS) etc. have induction at Group `A' level and then they go up in their hierarchy. In case of AFHQCS, they are inducted at the level of Assistant Group `B', just like CSS. Then their promotion is again in Group `B' and only thereafter, they are inducted in Group `A'.
There is no comparison between the two services. For example, a person who takes the Civil Services Exam and qualifies in IAAS and another person who does not qualify and then later qualifies for the job of an Assistant in CSS or AFHQCS, if we equate the two in giving the benefit of NFU, it would make a mockery of the system because the latter, though he failed to qualify for Group 'A' service and has to contend with joining as Assistant through this process, would get the same benefit as if he had qualified for IAAS. Clearly, this cannot be the intention of NFU Scheme introduced by the Government. While it may be true that in some other cadre the Government has accepted NFU for those who also have an entry point in Group 'B' but that cannot be used to justify the applicants' case for two reasons, firstly because no negative equality can be drawn as held by the Hon'ble Supreme Court in Union of India and another Vs. International Trading Co. and another, (2003) 5 SCC 437 (para
14) and secondly because that issue is not before us and neither are those persons arrayed as parties before us."
15. The present case is also similar. The applicants entered service in Group `B` in a much lower position than in organized Group `A` service who enter service directly as a Group `A`. In our view, they cannot thus be entitled to the benefit of NFU. The OA is, therefore, dismissed. No costs.
( P.K. Basu ) ( V. Ajay Kumar ) Member (A) Member (J) /dkm/