Central Administrative Tribunal - Jodhpur
Aat Ram vs M/O Information And Broadcasting on 5 September, 2024
1 (OA No.337/2015)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.337/2015
Pronounced on : 05.09.2024
(Reserved on : 23.08.2024)
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. AMIT SAHAI, MEMBER (A)
Aat Ram S/o Shri Jeevan Ram, aged 45 years, R/o Aakashwani Radio
Colony, C-11, Suratgarh, District Sriganganagar. Presently working as
Diesel Technician with All India Radio at Suratgarh, District
Sriganganagar.
.....Applicant
By Advocate: Mr. Manoj Bhandari, Sr. Advocate, assisted by Shreyansh
Bhandari.
Versus
1. The Director General, All India Radio, Aakashwani Bhawan,
Parhament Street, New Delhi-110001.
2. The Director (Personnel), Prasar Bharati, All India Radio,
Secretariat, Second Floor, PTI Building, Sansad Marg, New
Delhi.
3. Chief Engineer, AVM (North Zone), Aakshwani and
Doordarshan, Jam Nagar House, Shahjahan Road, New Delhi-
110011.
........Respondents
By Advocate: Mr. K.S. Yadav
2 (OA No.337/2015)
ORDER
Hon'ble Mr. Justice Rameshwar Vyas, Member (J) Being aggrieved by office order dated 04.08.2015 (Annexure- A/1), whereby the pay of the applicant as Diesel Technician was revised in Pay Band of Rs.5200-20200 with Grade Pay of Rs.2400/- (Old Pay Scale of Rs.4000-6000) with consequential upgradations, the applicant has preferred this OA challenging the above office order along with corrigendum dated 16.07.2015 (Annexure-A/2) and seeking direction against the respondents to revise his pay scale w.e.f. 01.01.2009 in the revised pay scale of Rs.9300-34800 with Grade pay of Rs.4200/- (old pay scale of Rs.5000-8000) with all consequential benefits. The applicant also prays to declare Central Government order dated 25.02.1999 (Annexure-A/7) as illegal so far as prescribing separate categories of pay scale on the same post of Diesel Technician.
2. Facts of the case in brief are as under:-
2.1 The applicant was initially appointed as Diesel Engine Driver on 25.10.1993 on probation of 2 years. After completion of probation period, he was regularised on the said post w.e.f. 25.10.1993 vide order dated 20.03.1996. Vide order dated 17.11.2009 (Annexure-A/5) the applicant was promoted to the cadre of Diesel Technician. After 3 (OA No.337/2015) promotion his pay was fixed in the pay band of Rs.5200-20200+GP 2000 which was revised to Rs.9300-34800 with grade pay of Rs.4200.
Government of India, Ministry of Information and Broadcasting on 25.02.1999 (Annexure-R/1) upgraded the scale of pay of various categories of the employee of All India Radio and Doordarshan in Prasar Bharti as indicated below in Annexure-I: -
Sr. Category of Pay scale granted as per Upgraded scale of pay No. Post Vth Pay Commission Recommendation
1. Diesel 4000-6000 4000-6000 (15% of posts) Technician 4500-7000 (20% of posts) 5000-8000 (65% of posts) 2 Diesel Engine 2650-4000 3050-4590 (75%) Driver 3250-4900 (25 %) 2.2 It is averred by the applicant that he was granted pay scale of Rs.5000-8000, but on 16.07.2015 (Annexure-A/2) an order was passed fixing him in the old pay scale of Rs.4500-7000, which was revised in new pay scale to 5200-20200 with grade pay of Rs.2800/- instead of 4200/- and the benefits which were conferred to the applicant in the year 2009 was changed w.e.f. 01st January, 2011. Thereafter, without giving notice to the applicant, his pay was reduced from Rs.5200-20200 with grade pay of Rs.4200/- to Rs.5200-20200 with grade pay of Rs.2400/- 4 (OA No.337/2015)
(i.e. Old Pay Scale of Rs.4000-6000) w.e.f. 01.07.2009, consequently in the pay scale of Rs.5200-20200 with grade pay of Rs.2800 (old Pay Scale of Rs.4500-7000) w.e.f. 01.07.2011.
2.3. It is further averred that action of the respondents in reducing the pay of the applicant without giving any opportunity of hearing that too with retrospective effect entails evil and civil consequence. Apart from this, the review of pay scales was done treating the applicant in the bottom 15% in pay scale of Rs.4000-6000 and in the pay scale of Rs.4500-7000 treating to be a part of 20% incumbent w.e.f 01.07.2011 revised to Rs.5200-20200 with grade pay of Rs.2800/- in new pay scale. It is the case of the applicant that this revision is nothing but a clear case of gross arbitrary exercise of power on the basis of so-called rectification. The pay of the applicant cannot be reduced. Vide Circular dated 25.02.1999, the incumbents who were first in the 65% of the cadre of Diesel Technician were fixed in the pay scale of Rs.5000-8000, next 20% would be given to the pay scale of Rs.4500-7000 and 15% in the bottom most would be given the pay scale of Rs.4000-6000 respectively. 2.4 It is the case of the applicant that by this criteria, the incumbents who are discharging the duties on the same post and are doing the same work are being conferred three separate pay scales and consequential 5 (OA No.337/2015) benefits merely because they stand at different places in the seniority list. Terming the criteria adopted by the respondents highly arbitrary, unreasonable so as to violative of his legal and fundamental rights, the applicant prayed to quash and set aside the Central Government Circular dated 25.02.1999 so far as it prescribes separate categories of pay scale for the post of Diesel Technician. The applicant has also prayed to quash and set aside the impugned orders dated 16.07.2015 (Annexure-A/2) and order dated 04.08.2015 (Annexure-A/1).
3. In reply filed by the respondents, it is averred that the main thrust of the contentions in challenging the order dated 04.08.2015 is based upon the challenge of validity of order dated 25.02.1999, whereby certain upgraded pay scales were provided by the respondent department in view of some understanding arrived at between the Union representatives and the Department which were also concurred by the DoPT and approved by the Finance Department. The upgradation order dated 25.02.1999 has been issued on somewhat the common principles upon which the ACP/MACP Schemes have been floated. As a consequence of the order dated 25.02.1999 on the basis of seniority provisions pay scales have been upgraded. The pay scale of 15% junior most incumbents in the cadre of Diesel Technician is Rs.4000-6000 and 6 (OA No.337/2015) by efflux of time in consequence of moving upward in seniority when he come within 20% of the posts, the incumbent is upgraded to Rs.4500- 7000 and upon further move upward within 65% of the remaining posts, the incumbent is entitled for upgraded pay scale of Rs.5000-8000. Therefore, the very basis of granting the upgraded pay scale on the post of Diesel Technician is seniority, which is a valid criteria having rational nexus with the object sought to be achieved like ACP and MACP. It is also averred by the respondents that the applicant with open eyes accepted the implementation of Circular dated 25.02.1999 on account of gaining seniority within 20% of the cadre. He has been extended an upgradation in the grade pay of Rs.2800/-. Being a beneficiary of the circular dated 25.02.1999, the applicant is estopped from challenging the validity of the same. Thus, the order dated 25.02.1999 cannot be said to be discriminatory, arbitrary and violative of Article 14 of the Constitution of India.
3.1 Applicant has failed to point out any basis of his claim of highest pay scale in the hierarchy from 01.01.2009 when the applicant was junior most in seniority of Diesel Engine Driver. The applicant was appointed in the pay scale of Rs.950-1500 (4th CPC) on the post of Diesel Engine Driver, which came to be revised to the corresponding 7 (OA No.337/2015) pay scale of Rs.3050-4590 after coming into force the 5th CPC. Later, in the year 1996, applicant's pay was upgraded in the pay scale of Rs.3250-4900 in consequence of coming within 25% of senior most persons in the cadre. On being promoted as Diesel Technician, the entry scale of Rs.4000-6000 (5th CPC) was granted to the applicant which came to be revised to corresponding Grade Pay of Rs.2400/- in PB-1 correctly, but inadvertently the pay of the applicant was fixed in the PB- II with grade pay of Rs.4200/- instead of PB-I with grade Pay of Rs.2400/-. The audit authorities vide letter dated 03.09.2013 instructed to rectify the mistake.
3.2 Pursuant to the objections raised by the audit authorities, impugned order dated 04.08.2015 has been issued whereby fixation of the applicant on promotion has been corrected. The impugned order dated 04.08.2015 is nothing but a rectification of inadvertent mistake committed by the respondents at the time of fixation on promotion to the post of Diesel Technician. No illegality is caused while passing the order dated 04.08.2015. The applicant has rightly been given upgradation as per the Circular dated 25.02.1999.
3.3 It is also averred that this tribunal has no business to ascertain a particular pay scale for a particular post rather it is the domain of 8 (OA No.337/2015) legislature or the rule making authority under proviso to Article 309 of the Constitution of India. The relief claimed by the applicant runs against the verdict of the Hon'ble Supreme Court in the case of Mallikarjun Rao vs. Station of Andhra Pradesh and Ors., reported in (1990) 2 SCC 707. It is also averred that for the purpose of rectification of mistake, no notice is required to be given to the applicant. The pay scale of Rs.5000-8000 is the top pay scale meant for senior most 65% of the employees of the cadre. The applicant was placed at the bottom of the seniority list of Diesel Technician, therefore, he was entitled only for the pay scale of Rs.4000-6000 which is corresponding to PB-I with Grade Pay of Rs.2400/- under 6th CPC. The applicant has failed to show any basis against the reasonable classification and workability of the Circular dated 25.02.1999 on the basis of seniority. Contradicting the claim of the applicant, respondents prayed to dismiss the OA.
4. Heard learned counsel for the parties and perused the material available on record.
5. Learned Senior Counsel for the applicant submitted that by introducing three pay scales for the post of Diesel Technician, the applicant has been discriminated amongst the equals. The respondents cannot deny equal pay for equal work. The classification made by the 9 (OA No.337/2015) respondents in providing three pay scales is irrational. All the employees working on the post of Diesel Technician are performing the same work, therefore, the applicant cannot be denied pay scale of Rs.5000-8000 being received by the person within first 65% of the seniority list. It is further submitted that the Grade Pay of the applicant was revised from Rs.4200/- to Rs.2400/- without any prior notice to the applicant. The learned Senior Counsel in support of his arguments has relied upon the following judgments:-
1. Randhir Singh vs. Union of India, reported in AIR 1982 SC 387.
2. Union of India & Ors. Vs. Dineshan K.K. reported in (2008) 1 SCC 586. 5.1 In the matter of Randhir Singh (supra), the Hon'ble Supreme Court in para No.8 held as under:-
"8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is Constitutional goal. Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women' as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everymen and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Tribunal have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the 10 (OA No.337/2015) state not to deny any person equality before the law or the equal protection of the laws and Article 15 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State."
5.2 In the case of Union of India and Ors, vs. Dineshan K.K. (supra), the Hon'ble Supreme court held that in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was held irrational and arbitrary and thus, violative of Article 14 of the Constitution.
In the last, it is contended that the payment already made to the applicant based upon his previous fixation cannot be recovered from the applicant in view of the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih (White Washer) reported in [(2015) 4 SCC 334], as the applicant belong to group C category post and recovery is more than 5 years old.
6. On the contrary, learned counsel for the respondents submits that this is not the case of discrimination, the respondents introduced an upgradation Scheme on 25.02.1999. This Scheme is similar to that of 11 (OA No.337/2015) the ACP/MACP scheme.. The applicant is also beneficiary of this Scheme. The applicant has failed to establish that the classification of pay scales amongst Diesel Technician on the basis of seniority is irrational. It is further submitted that the applicant was inadvertently granted grade pay of Rs.4200/- instead of 2400/-. The mistake was indicated in the audit report. Therefore, the impugned order of refixation of pay was issued on 04.08.2015 (Annexure-A/1). There is no need to issue prior notice before correcting mistakes caused in the year 2009 while fixing the pay of the applicant on his promotion from the post of Diesel Engine Driver to Diesel Technician. The pay scale of the applicant was wrongly fixed in the correspondence new pay scale of Rs.9300-34800 with grade pay of Rs.4200/- whereas for the said post the old pay scale was Rs.4000-6000 and the correspondence pay scale is Rs.5200-20200 with Grade Pay of Rs.2400/-.
So far as the recovery of excess payment made to the applicant is concerned, learned counsel for the respondent is not in a position to controvert the legal position settled by the Hon'ble Supreme Court.
7. Having regard to the submissions made by learned counsel for the parties and the material available on record, it emerges that Government of India on 25.02.1999 issued a Circular Annexure-A/7 deciding to 12 (OA No.337/2015) further upgrade the scale of pay in the categories of employees of All India Radio and Doordarshan of Prasar Bharti. This decision was taken accepting the demands of higher pay scales by employees belonging to certain cadres in All India Radio and Doordarshan. As per this Scheme, the pay scale of Diesel Technician was upgraded from single pay scale of Rs.4000-6000 to three pay scales i.e. Rs.4000-6000, Rs.4500-7000 and Rs.5000-8000. As per annexure attached to this Circular dated 25.02.1999, the upper most 65% posts of Diesel Technician were upgraded in the pay scale of Rs.5000-8000, next lower 20% posts of Diesel Technician were entitled to pay scale of Rs.4500-7000, whereas rest 15% posts of Diesel Technician remained in the pay scale of Rs.4000-6000. The upgradation was made effective from 01.01.1996, but payment of salary to employees as per upgraded scales of pay was made with effect from 1st March, 1999 (as mentioned in the schedule in the upgraded scale of pay). The Circular further provides that placement of employees in the upgraded scale of pay would be in order of seniority as per the percentage of posts shown against each category in Annexure-I. The applicant prayed for direction to declare the above Circular dated 25.02.1999 illegal and to quash and set aside in so far as 13 (OA No.337/2015) prescribing separate categories of pay scale on the same post of Diesel Technician. In our view the contention of the applicant raising against the above Circular has no basis. Before issuing this Circular, a post of Diesel Technician carries pay scale of Rs.4000-6000, which has been upgraded by providing two more beneficial pay scales for the post of Diesel Technician. The upgradation has been linked to seniority. We find no irrationality in this Scheme. This Scheme of upgradation was introduced after considering the demands raised by the employees for their better pay scale. The applicant himself is a beneficiary of this upgradation scheme.
The applicant has filed this OA under misconception when some mistakes granting wrong Grade Pay was rectified by the impugned order. Before correction in his pay, the applicant never raised any voice against this upgradation scheme, which is similar to the Scheme of ACP/MACP. This tribunal has nothing to do with deciding the pay scale of any members of the services. Various Pay Commissions are there to do this job. In the present matter, the respondents have taken care of the welfare of some categories of employees of All India Radio and Doordarshan of Prasar Bhati. Therefore, so far as the challenge made to Circular dated 25.02.1999, we find no merit.
14 (OA No.337/2015)
It is an admitted position that the applicant was promoted from the post of Diesel Engine Driver to Diesel Technician in the old pay scale of Rs.4000-6000. At that time, the applicant came in the bottom 15% of seniority of his cadre, therefore, vide impugned order he was fixed in the pay scale of Rs.5200-20200 with grade pay of Rs.2400/-, which is corresponding pay scale to old pay scale of Rs.4000-6000. The applicant failed to show that this fixation has not been not made in accordance with the upgradation Scheme adopted by the respondent department. Perusal of the order dated 04.08.2015 (Annexure-A/1) further suggests that the applicant was granted pay scale of Rs.2800/- w.e.f. 01.07.2011 in the pay scale of Rs.5200-20200 which is corresponding to old pay scale of Rs.4500-7000. As per reply by the respondents, this upgradation was on account of gaining within 20% senior next to 15% bottom. In view of this, we find no illegality in the office order dated 04.08.2015, whereby the applicant was refixed in accordance with the upgradation Scheme. The applicant failed to establish that grade pay of Rs.4200/- is payable in pay scale of Rs.5200- 20200. Therefore, we find no illegality in withdrawing the grade pay of Rs.4200/- to the applicant w.e.f 16.09.2009.
15 (OA No.337/2015)
Perusal of the order dated 03.09.2013 (Annexure-R/3) further reveals that there was no order of any competent authority upgrading the pay scale of the applicant from Rs.2400/- to Rs. 4200/-. In view of this, we are of the view that the respondents have not committed any illegality in revising the pay scale of the applicant vide impugned order dated 04.08.2015 (Annexure-A/1).
So far as the recovery of the excess payment made to the applicant is concerned, it is an admitted position that applicant belongs to group C category and revision in the pay scale has been affected after a period of 6 years. In the matter of Rafiq Masih (supra), the Hon'ble Supreme Court held as under:-
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.16 (OA No.337/2015)
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
In view of the principles enunciated by the Hon'ble Supreme Court, the proposed recovery against the applicant is not permissible.
8. In the result while partly allowing this OA, the respondents are directed not to recover excess amount paid to the applicant on account of his wrong fixation of pay vide order dated 16.10.2009 (Annexure-R/2). The prayer made by the applicant to quash and set aside the office order dated 04.05.2015 (Annexure-A/1) and corrigendum dated 16.07.2015 (Annexure-A/2) and Circular dated 25.02.1999, are rejected. No order as to costs.
(AMIT SAHAI) (RAMESHWAR VYAS) MEMBER (A) MEMBER (J) rss