Central Administrative Tribunal - Ernakulam
R.Ayyappan vs Union Of India Represented By The ... on 22 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 735 OF 2008
Friday, this the 22nd, day of January, 2010
CORAM:
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER
R.Ayyappan
House No. 31/44
Junior Janatha, Vyttila
Cochin - 19 ... Applicant
(By Advocate Mr. U.Balagnagadharan )
versus
1. Union of India represented by the Secretary
Ministry of Agriculture
Department of Animal Husbandry, Dairying and Fisheries
Krishi Bhawan, Rafi Marg
New Delhi
2. The Secretary
Ministry of Finance
New Delhi
3. The Director General
National Institute of Fisheries Post Harvest
Technology and Training, Kochi
(Formerly Integrated Fisheries Project) ... Respondents
(By Advocate Mr.Sunil Jacob Jose, SCGSC )
The application having been heard on 18.01.2010, the
Tribunal on 22.01.2010 delivered the following:
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The applicant who is now retired has come up with this OA challenging the hostile discrimination meted to him while in service inasmuch as the pay scale attached to the post of Operator had not been given upward revision, while analogous posts have been.
2. Briefly stated the applicant was in the services of the Integrated Fisheries Project, coming under Respondent No. 3. He was holding the post of Ice Plant Operator. The lone post carried the scale of pay of Rs 425-600 and as per the Recruitment Rules provide for filling up of the post, the qualification is Assistant Operators having 45 years experience in the grade possessing ITI certificate with 5 years qualifying service in the grade. Duties attached to the said post are as under:-
OPERATOR - 425-15-530-EB-15-560-20-600 " He is immediately junior, to the Refrigeration Engineer and is solely responsible for the operation of. Ice-plant. He conduct courses for Freezing Plant Operation and Processing Technology. He has to take all necessary steps for the preventive maintenance of the Ice Factory cum-Freezing Plant for its smooth functioning, checking and routine maintenance, supervising the overhauling and repair work of compressors motors and other equipments and attend to the breakdowns. Taking all necessary steps for the urgent repair work like rewinding of motor,machining and homing of cylinder liners etc. Prepare annual indents of spare parts and consumable articles for the upkeep and smooth operation of both Amonia Plant and small freon plants. Checking the maintenance of the daily log of the plant, maintaining of the ice stock register; register7,of stores for the plant checking the register maintained for tools, ice issues and maintenance of register. Supervise the maintenance of the processing equipments and their accessories whenever required. Arranging the maintenance and repair work of any refrigeration equipment as per work orders eg. Fish stall fridges etc. maintaining of the pump house."
3. According to the applicant, analogous to the above post is the post of Foreman with the scale of pay of Rs 425-640/- The post is filled up by promotion and Qualifications for the above post are Assistant Foreman in Rs 380 - 560 with 7 years regular service in the grade. The duties and responsibilities are as under:-
WORKSHOP FOREMAN - 425-15-560-EB-20-640 :
" He personally and directly supervises the .work of every individual worker of the workshop which consists of a machine shop, a smith shop, a welding section and a carpentry section. He also supervises the individual work of workers of the workshop when they work on vessels laid up for repairs. He distributes the jobs among workers as per instructions of his superior and prepares the material estimates and spare parts for the job. He controls the maintenance of registers of jobs to works, job cadres and register of works and materials. He supervises the maintenance of equipments and machines in the workshop such as Lathe, Chipping machine, Drilling Machine, Grinding machine, Power Saw, Cutting machine, Welding Transformers etc. He has to personally Supervise all the jobs on board vessels and at the Workshop such as .overhaul of engines, pumps hydraulic winches, mechanical winches, steering gear, pipe works, body works (with wood and steel) fabrication work etc. "
4. According to the applicant, the Ice Plant Operator is to report to the Refrigeration Engineer, while the Foreman to the Assistant Engineer.
5. The revised pay scale of the above posts is as under:-
Foreman : Rs 5500 - 9000 Ice Plant Operator in charge of Ice Plant: 4500 - 7000
6. The grievance of the applicant is that the above pay scale of plant operator is thoroughly without considering the fact that the post of foreman and that of Ice plant operator were earlier almost at par with each other (i.e. only Rs 40/- less at the maximum of the scale and functional responsibilities being comparable and the earlier pay scales being almost identical, the pay scale of Ice plant Operator should also be revised at par with that of Foreman.
7. Respondents contested the O.A. Their version is as under:-
" It is submitted that in the workshop section which existed in NIFPHATT prior to its reorganization, below the Workshop Foreman and Slipway Foreman there was also the supervisory posts of Assistant Foreman in various trades in the scale of pay of Rs.1400-2300 (IV CPC) which was granted the replacement scale of pay of Rs.4500-7000 consequent on V CPC. The educational qualification required for the post of Assistant Foreman is Diploma in Mechanical engineering in the respective trades with 2 years experience or ITI certificate in the respective trades with 7 years experience. The post is a supervisory post to be filled by promotion failing which by direct recruitment and hence the said post is comparable to that of Ice plant Operator. As regards the post of Foreman (Workshop/Slipway) the same is in the scale of pay of Rs.5500-9000 and is the promotion post of Assistant Foreman. The post is to be filled by promotion failing which by transfer on deputation and failing both by direct recruitment. Promotion is to be made from Assistant Foreman with 5 years service in the grade.
Since the qualification of Assistant Foreman is Diploma in Mechanical engineering in the respective trades with 2 years experience or ITI certificate in the respective trades with 7 years experience, the Workshop/slipway Foreman being the promotional post of Assistant Foreman, would automatically require possession of ITI cert. for promotees. Therefore the contention of the applicant that the qualification prescribed for Ice Plant Operator is more superior and higher than that of Foreman Workshop and Slipway is not correct. In fact the post of Assistant Foreman which was in the scale of pay of RS.1400-2300 as per IV CPC was comparable to that of Ice plant operator which was also in the same scale of pay. The post of Assistant Foreman is also a supervisory post and they are responsible for the deployment of the workers under them for carrying out various jobs towards the attainment of the targets set for them in an organized and efficient manner. They are also supposed to lead, guide and supervise the workers under them and they are also entirely responsible for the equipments/machinery/tools etc. entrusted to them for their safe keeping and maintenance and also various parts of the machineries disassembled and newly obtained stores/spare parts during the progress of jobs.
None of the grounds mentioned in the above Original Application are either tenable or sustainable in law and facts. Even though no specific recommendations were made by the V CPC with regard to upgradation of pay scale of Ice Plant Operator in this institute proposals were put forth by this respondent to the competent authority for examining whether the existing scale of pay of the posts of Assistant Foreman, ice plant operator may be revised to the scale of pay of Rs.5000-8000 by considering them as 'Technical Supervisors' which however was not acceded to by the competent authority. Hence the question of grant7 of the scale of pay of Rs.5500-9000 to the applicant by treating his post as equivalent to that of Workshop/Slipway Foreman is not at all relevant in the present context. "
8. Applicant has filed a counsel statement in which the difference in the pay scale had been highlighted and the same is as under:-
Post 3rd P.C Upgraded 4th P.C 5th P.C Qualification for scale promotion Operator 425-600 455-700 1400-2300 4500-7000 Asstt.Operator with 5 years experience (with ITI in amended RR) Foreman 425-640 550-900 1640-2500 5500-9000 Operator with 3 years experience (Asstt.FOre3man in 380-560 with 7 years experience in amended RR) Asstt. 380-560 No up- 1400-2300 5000-8000 Foreman gradation
9. Counsel for the applicant submitted that the applicant has been agitating against the injustice meted to him right from the beginning. Earlier he filed OA No. 62/2006 which was disposed of with a direction to the respondent Ministry to arrive at a judicious decision. The Ministry considered the matter and opined as under:-
" Whereas the matter was referred to the Ministry of Finance, Department of Expenditure for their necessary action in the matter. The Ministry of Finance has not agreed to the revision of pay scale to the post of Ice Plant Operator that he ws holding at the time of his retirement, citing that the posts of Foreman (Workshop) and Foreman (Slipway) carry higher recruitment qualifications as compared to Ice Plant Operator and nature of duties and responsibilities are also different as the posts of Foreman are supervisory posts whereas Ice Plant Operator is required to operate the Ice Plant.
In view of forgoing, the request of Shri R.Ayyappan to grant him the pay scale of Rs.1640-2900/- with effect from 03.08.1993 and rs.5500-9000 with effect from 01.01.1996 cannot be acceded to,"
10. Counsel for the applicant submitted that the two reasons - (a) Foreman carries higher recruitment qualifications as compared to Ice Plant Operator and (b) the nature of duties and responsibilities are also different as the post of Foreman are supervisory posts, while that of Ice Plant operator is not so as he is required to operate the ice plant - vide Annexure A-8 are untenable being factually incorrect. He further submitted that the applicant is aggrieved in the hostile discrimination meted to him and that there is hostile discrimination and the applicant has been loser on recurring basis as his pension would have increased had his pay been duly revised. He had taken us through the recruitment rules and other annexures to hammer home the point that earlier the pay scales were comparable while later on the gap had only increased.
11. Senior Central Government Standing Counsel submitted that there has been no equation between the post of Ice plant operator and the foreman. He has further stated that if at all, any such comparison could be made, the same could be only with that of Assistant Foreman.
12. It appears that there is some amendment to the pay scales of the posts of Ice Plant Operator and the Foreman as per the Recruitment Rules. The post of Foreman is Rs 550 - 900, while that of Ice plant Operator is 470
- 700 vide Annexures A-3 and A-2 respectively. Be that as it may, we are of the opinion that comparison of Ice Plant Operator with that of Foreman is not appropriate due to difference in functional responsibilities and recruitment qualification.
13. Arguments were heard and documents perused. The post of Asst. Foreman has the scale of pay of Rs 380 - 560 and the functional responsibilities are as under:-
Assistant Foreman - 380-12-500-15-560 :
" He will be responsible for the deployment of the workers under him for carrying out various jobs towards the attainment of the targets set for the group in an organised and efficient manner. He should arrange the supply of stores, spares etc. required for the job in time. He should be responsible for controlling the workers and maintaining perfect discipline. He will be responsible for the completion of the jobs in time and in perfect order., Not only will lead, guide and supervise the workers under him, he will also work with his own hands, and be a model to them. Assistant Foreman will be entirely responsible for the equipments / machinery/tools etc. entrusted to him for its safe keeping and maintenance as also the various parts of the machineries disassembled and newly obtained stores/spare parts during the progress of jobs."
14. The above pay scale was revised to Rs 1400 - 2300 which was the same as of Operator when the pay scale of Foreman was Rs 1640 - 2600. Thereafter, when the 5th Central Pay Commission Report was rendered, the pay scale of Operator was revised to Rs 4,500 - 7000 while that of Asst. Foremen it was Rs 5000 - 8000/-. Admittedly, the qualification requirements both for the post of Ice Plant Operator and that of Asst. Foreman are comparable. The Pay scale has been made equal under the IV Central Pay Commission Recommendations. The duties and responsibilities as extracted above also are comparable.
15. It would be curious to note that the Administrative Ministry did recommend the case of the applicant, whereas only the Ministry of Finance rejected the same.
16. It is trite that the requirement of qualifications and pay scales commensurate with the qualifications etc., are normally determined by the Administrative Ministry keeping in view the functional responsibilities, the future expansion, and pay scale normally is co-related with the qualifications, experience, functional responsibilities etc., and it is the administrative ministry which normally on a scientific basis work out and make its recommendations. Ministry of Finance, the source of funds for meeting the expenditure, normally considers the entire issue, with particular reference to the financial implications. Whereas the Administrative Ministry bring in a comparison between the Ice Plant Operator on the one hand and the Assistant Foremen on the other, in respect of pay scales, functional responsibilities, qualifications for promotion from the feeder grade etc., the Ministry of Finance reject the proposal giving difference in the qualifications etc. There thus, appears to be some lack of communication and this communication gap could well be filled up by arranging a meeting between two senior officers (of the rank of Joint Secretary or above) of the two ministries, so that in the deliberations, the Ministry of Agriculture could put forth its considered view to the Ministry of Finance. The latter Ministry thereafter may come to a conclusion. Such a dialog amongst the two ministries is not only healthy but essential as well, as it is the administrative Ministry which has to extract work from the individuals concerned and pay package is a consideration for the work involved.
17. The Apex Court has in a number of cases held that prescription of scale of pay should normally be dealt with by expert bodies/committees. (See the latest decision of the Apex Court in the case of Union of India v. Dineshan K.K.,(2008) 1 SCC 586, wherein the Apex Court has held as under:
" It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the executive and expert bodies like the Pay Commission, etc."
18. In view of the above, justice would be rendered, if a direction to the respondents be given that the first respondent, with his recommendations already projected equating the Ice Plant Operator with either Asst. Foreman or Foreman as the case may again refer the matter to the Ministry of Finance, which, after going through the same, call for a meeting, and both the representatives would deliberate on the same and arrive at a consensus. If the decision is to revise the pay scale of Ice Plant Operator, the same may be duly authenticated and if the applicant is one of the beneficiaries, his entitlement be worked out and the arrears of pay and allowances (if any) be granted to him. In addition, arrears of pension be worked out and the same also made available to the applicant. The following decisions be kept in view while considering payment of arrears of pay and allowances.
Dated, the 22nd January, 2010.
K.NOORJEHAN Dr.K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER vs