Central Administrative Tribunal - Ernakulam
Joseph Andrews vs Indian Council Of Agricultural ... on 24 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 944 OF 2010
Monday, this the 24th day of September, 2012
CORAM:
HON'BLE DR.K.B.S RAJAN, JUDICIAL MEMBER
HON'BLE MS. K NOORJEHAN, ADMINISTRATIVE MEMBER
1. Joseph Andrews, aged 63 years
S/o John Andrews (Late)(Retd. Technical Officer T-7/8)
Resarch Centre of CMFRI, Vizhinjam)
Residing at :"SAGARIKA", T.C.33/942(1)
Appanpilla Road, Kochuveli, TTP P.O
Trivandrum - 695 025
2. V.A Narayanankutty, aged 63 years
S/o Appu.V.N (Retd. Technical Officer T-6)
CMFRI, Kochi)
Residing at : Venmanikkara House
Mahakavi G Road, Karikkamuri
Kochi - 682 011, Ernakulam District.
- Applicants
(By Advocate Mr.T.C.Govinda Swamy)
Versus
1. Indian Council of Agricultural Research
represented by its Director General
Krishi Bhavan, Dr.Rajendra Prasad Road
New Delhi - 110 114
2. The Secretary
Indian Council of Agricultural Research
Krishi Bhavan, Dr.Rajendra Prasad Road
New Delhi - 110 114
3. The Director
Central Marine Fisheries Research Institute (CMFRI)
Ernakulam North P.O
Kochi - 682 018 - Respondents
(By Advocate - M/s.Varghese & Jacob)
The application having been heard on 18.09.12, the Tribunal
on 24.09.2012 day delivered the following:
O R D E R
HON'BLE MS. K NOORJEHAN, ADMINISTRATIVE MEMBER
1. The applicants are aggrieved by the non-feasance on the part of the respondents to re-fix the pay of the applicants in the scale of pay of Rs.425-700 with effect from 01.01.1973.
2. To narrate the brief facts of the case, the applicants commenced their service as Lab-cum-Field Assistants in the then pay scale of Rs 110 - 180 under the third respondent in 1969/1970. They possessed degree of Bachelor in Science in Zoology with more than 50% of marks at the time of initial recruitment. According to them, the duty discharged by them was scientific in nature. As on 01.01.1973, the applicants were granted the replacement scale of pay of Rs.260-430/-. They were subsequently promoted in 1976 as Junior Scientific Assistant and placed in the scale of pay of Rs.280- 560/-. As per the re-organisation effected by the ICAR, orders were issued on 01.01.1977, whereby, two streams of services were created. One was Agricultural Research Scientists services (ARS for short) and other was Technical Services(TS for short). The applicants averred that those who were Post Graduates were directly inducted into ARS. Those who were placed in Technical Services were also given an opportunity to migrate to ARS if they acquire a Post Graduate degree on or before 01.10.1980. Even though both applicants got their Post Graduate Degree well before 01.10.1980, they were not inducted into ARS on the ground that they were not in the pay scale of Rs.425-700 as on 01.10.1975 i.e, the date on which ARS and TS came into existence. Later on, they came to know that the 3rd Central Pay Commission recommended the scale of pay of Rs.425-700 for persons like officials discharging scientific duties and having graduate degrees. The applicants therefore, submitted their representations to the respondents to give them the benefit in the scale of pay of Rs.425-700/- with effect from 01.01.1973 with the consequential benefit of induction into ARS either with effect from 01.10.1975 or from the date they acquired the Post Graduate Degree. However, their requests were not acceded to and according to the applicants, not even responded to. While so, two officials of TS working in Cuttak approached Cuttak Bench of CAT by filing O.A 291 & 292 of 1995 praying for the higher scale of Rs.425-700 with effect from 01.01.1973. These O.As were allowed by a common order dated 29.09.1995 (Annexure A-1). However, the respondents did not take any action to implement the order of CAT Cuttak Bench in respect of the applicants who were similarly placed. Thereafter a few other officials approached the Principal Bench of CAT by filing O.A 2878/05 which was allowed by an order dated 05.06.2006 wherein the order of the Cuttak Bench was followed (Annexure A-3). Challenging the Annexure A-3 order, the respondents filed WP(C) 16025/06 before the Hon'ble High Court of Delhi which was dismissed on 25.02.2008 by upholding the decision of the CAT Principal Bench (Annexure A-5). Four other officials filed O.A 642/2006 before this Bench of the Tribunal which was allowed by the order dated 05.12.2007 (Annexure A-5). The applicants superannuated in April/November 2007. They submitted their Annexure A-8 and A-9 representations dated 20/22 Jul 2010 requesting for fixation in the scale of pay of Rs.425-700 from 01.01.1973 and induction into ARS from April 1979. The applicants contend that they are subjected to substantial prejudice, irreparable injury and recurring monthly losses as the respondents have not dealt with their representations and taken a positive decision.
3. The respondents in their reply statement submitted that when the applicants were selected for the post of Lab-cum-Field- Assistants in the scale of pay of Rs.110-180, the minimum qualification required was intermediate in science. So the fact that they were graduates at the time of their appointment was not relevant. The applicants' as Lab-cum-Field Assistants were required to provide support and assistance to the Scientists and in the process of survey as an important link between the researchers and the end users. As per the third CPC recommendations, the applicants' pay scale was revised from Rs.110-180 to Rs.260-430. As on 01.10.1975 two separate services viz, ARS and TS were set up. All the posts where the incumbents were engaged in agricultural research or possessing masters degree in the relevant subject and holding an agricultural or technical post in the pay scale of Rs.425-700 were inducted in ARS. Subsequently, the first respondent issued a clarification that employees in the pay scale of Rs.425-700 and above and who acquire Post Graduate degree in the relevant subject within 5 years from 01.10.1975 will be considered for induction in to ARS with effect from the dates of their acquiring the prescribed qualification. The applicants were not considered for induction to ARS with effect from 01.10.1975 or from later date on their acquiring the post graduate degree as they were not holding the post with the attendant pay scale of Rs.425-700 as on 01.10.1975. As their pay scale was revised to Rs.260-430 with effect from 01.01.1973, they were fitted into Category T-1 grade of technical service with effect from 01.10.1975. They made no objection at that point of time.
4. The respondents submitted that the claim of the applicants for enhanced pay scale of Rs.425-700 and induction in to ARS is not legally valid as the issue has already been dealt with by the Hon'ble Supreme Court in its judgment dated 06.10.1994 in Civil Appeal No.4729 of 1991 AIR 1995 SCC 122. The Apex Court has held that initial induction is to be made strictly as per provisions in Rule 5.1 of TSR and merely because one possessed higher qualification he cannot claim as a matter or right that he should be fitted into a higher pay scale. In support of their claim the respondents produced a copy of the judgment dated 06.10.94 as Annexure R-4. The Hon'ble High Court of Orissa, Cuttak in WP(C) No.12498/2008 filed by ASRB, New Delhi against order dated 21.04.2008 in O.A No.732/2006 passed by the Hon'ble CAT, Cuttak Bench has also, after referring to the Apex Court decision cited above, taken a similar view in its judgment dated 22.04.2010. The Hon'ble High Court of Orisa has held that a person cannot claim, as a matter of right, fitment into Category II in the pay scale of Rs.425-700 merely because he possesses higher qualification as Rule 5.1 of Technical Services Rules does not permit such fitment. Therefore, the respondents contend that the applicants claim for extending the benefit on the basis of judgment passed by Hon'ble High Court of Delhi on 5.02.2008 is not sustainable under law in view of judgment passed on 22.04.2010 by the Hon'ble High Court of Orissa. Further they submitted that Annexure A-5 order of this Tribunal which was upheld by the Hon'ble High Court of Kerala and Hon'ble Supreme Court of India is not applicable to the applicants in the present O.A as the applicants therein were holding the post of "Computors" and it has specifically been ordered by the Hon'ble Apex Court that the said judgment will not set a precedent. The respondents therefore, argued that the claim of the applicants to extend the benefit on the basis of Annexure A-5 order of this Tribunal is not legally sustainable.
5. The applicants filed rejoinder and more or less reiterated their averments in the O.A. They however, pointed out that the claim of the applicants cannot be said to be different from that of the Computers. They averred that in the judgment of the Apex Court only an observation was made while rejecting the contentions of the respondents that the case of the computers before the Supreme Court was barred by principles of res-judicata.
6. Rebutting the contentions of the applicants the respondents in their reply to the rejoinder stated that the Hon'ble Supreme Court specifically ordered that the order of this Tribunal which was upheld by the Hon'ble High Court of Kerala shall not be quoted as a precedent and apart from that, the Apex Court judgment is not applicable to the applicants in the present O.A as they were not holding the post which the applicants in the other O.A. held. They again high-lighted the fact that there is no provision in the 3rd CPC for grant of pay scale of Rs.425-700 to those who were in the pay scale of Rs.110-180/- where the requisite educational qualification for recruitment was intermediate or matriculation. According to them there is no way the applicants who were granted the replacement scale of pay of Rs.260-430 on implementation of III CPC can stake a claim for fitment in the scale of pay of Rs.425-700 by skipping over the higher grades of T2 and T3 in the category one to T-1-3 in Category II.
7. Counsel for the applicants argued as under:-
(a) That the pay scale of Rs.425-700 had been recommended by the Third Pay Commission and accepted by the Government for scientific services where the incumbents were either graduates or above. The applicants are graduates as on 01-01-1973.
(b) In the case of Smt. Sanjukta Das and another vs ICAR, in OA No. 295 of 1995, the claim of the applicants was allowed by the Cuttack Bench and they were placed in the pay scale of Rs. 425-
700 vide order dated 29th September, 1995 and the same had also been implemented.
(c) Again, the Principal Bench, in OA No. 2878 of 2005 decided on 5 June 2006 referred to the decision in the case of Smt. Sanjukta Das and another vs ICAR, in OA No. 295 of 1995, decided on 27th of September 1995 and held that once a decision in respect of similarly circumstanced employees is delivered by the tribunal the others, who are identically situated should not have been denied the benefit if they represent before the respondents. This order of the Principal Bench was challenged before the High Court of Delhi in WP(C) No. 16025 of 2006 and the High Court by its judgment dated 25th of February 2008 dismissed the said writ petition. The applicants rely upon the said judgments.
(d) This Hon'ble Tribunal in the case of OA No. 642 of 2006 allowed the claim of the the applicants therein vide order dated 5 December 2007. This was taken up before the High Court by the respondents in WP(C) 9674 of 2008 (S) and the same was dismissed vide judgment dated 7 April 2008. Special leave petition filed by the respondents vide civil appeal No. 5236 of 2008 was dismissed by a detailed judgment dated 05-05-1969.
(e) The Madras Bench of the Tribunal as recently as 16th February, 2012 in OA No. 753 of 2010 allowed the claim of a similarly situated person.
8. The counsel submitted the two applicants are already retired and they being similarly situated as other applicants in the other O.As as mentioned above, are entitled to identical treatment from 01-01-1973.
9. Argument of the Senior Counsel for the respondents is as under:-
(a) The decision of the Tribunal in OA No. 642 of 2006, has, no doubt been upheld by the High Court as well as the Apex Court, but the Apex Court has clearly held that the same shall not be quoted as a precedent. Hence, the applicants cannot derive any support from that decision.
(b) In so far as the Cuttack Bench case and other cases are concerned, referring to Annexure 4 Judgment of the Supreme Court in CA No. 4729 of 1991 (AIR 1995 SC 122), the senior counsel has stated that the Apex Court has held that initial induction is to be made strictly as per provisions of Rule 5.1 of TSR and merely because one possessed higher qualification he cannot claim as a matter of right that he should be fitted into a higher pay scale. This legal position as propounded by the Apex Court has to be kept in mind while deciding the O.A.
(c) The counsel also referred to another case of the Cuttack Bench in OA No. 732 of 2006 which was allowed by the Tribunal but which decision has been upset by the High Court in WP (C) No. 12498 of 2008 by judgment dated 22-04-2010.
10. Thus, the senior counsel concluded his argument stating that decision be taken in the instant case keeping in view the aforesaid decisions of the Apex Court as well as the Cuttack High Court.
11. Arguments were heard and documents perused. First as to limitation, as limitation is one aspect which the Tribunal has to address as per the judgment of the Apex Court in the case of D.C.S.Negi v. Union of India & others [S.L.P.No.7956/2011] wherein the Apex Court has stressed that it is the duty of the Tribunal to keep in mind the limitation aspect.
12. A Misc. Application for condonation of delay of 738 days has been filed and the reasons given for delay are that the applicants having superannuated in 2007, could come to know about the decisions of various Tribunal and the High Courts, only much late and there was no intention in filing this OA belatedly. The delay is not thus deliberate. Again, the applicants have a meritorious case and as such, the delay be condoned. Respondents have stated that in fact the applicants had approached the respondents as early as in 1985 and they were also informed of the fact that they were not entitled to be posted in T II.3. Again, on merit the applicants have no case and thus, the MA be dismissed and consequently the OA be also dismissed.
13. The above application has been considered. Since many Benches of Tribunal as also the High Court have considered the case, it was felt appropriate that the case be decided on merit. The reasons ascribed by the applicants cannot also be brushed aside, they having superannuated in 2007. Hence, using the discretion of the Tribunal judiciously, delay of 738 days is condoned.
14. Now on merit. The facts are not in dispute. The applicants entered the services of the respondents as Lab-cum-Field Assistants. Their pay scale at that time was Rs 110 - 180, which was replaced by Rs 260 - 430 w.e.f 01-01-1973. Till 30-09-1975, the respondents had a common service in respect of all faculties. However, on 01-10-1975 it was divided into many services, one of which is Agricultural Research Scientists Services (ARS Service). Those belonging to that cadre and like cadre and in the pay scale of Rs 425 - 700 as on 01-10-1975 and also having Post Graduate Degree were directly inducted into the said ARS Service and others in the attendant service called Technical service were allowed to continue in that service. Those who continued in TS were also permitted to switch over to ARS within a period of 5 years from the date of implementation of the new service as and when they acquired Post Graduate Degree in related science, subject to their being in the pay scale of Rs 425-700 as on 01-10-1975. The claim of the applicants is that they were graduates as on 01-01-1973 and the Third Pay Commission recommended the pay scale of Rs 425 - 700 for those who possessed graduate degree and this was actually accepted and implemented by the Government of India in various other departments except isolated institutes like that of the respondents. To substantiate their contention the applicants, as rightly pointed out by the respondents in para 10 of their reply, had not produced any material. In fact, in their rejoinder to para 10 of the reply, the applicants have only stated that various judicial pronouncements have taken judicial note of this preposition and decisions have also been rendered on that basis. It is to be seen whether the applicants did fulfill the conditions prescribed in the Third Pay Commission recommendations to qualify for being placed in the pay scale of Rs 425 - 700. Thus, if the applicants were entitled to be placed in the said pay scale as on 01-01-1973 (as also continued in the same pay scale as on 01-10-1975) and if by then they possessed the post graduation as on 01-10-1975 (or within five years thereafter) then only could they switch over to Category II T-II-4 (Rs 425 - 700). To ascertain the entitlement to the claim of the applicants, therefore, two aspects are to be seen
(a) Entitlement to higher pay scale of Rs 425 - 700 which is by virtue of the recommendations of the Third Pay Commission, and
(b) Placement in a particular category (T-1 or T-II etc.) as per the Technical Service Rules, 1975 i.e. Subject to fulfillment of the twin conditions of being in the pay scale of Rs 425-700 and having the requisite post graduate qualifications. ( The former is from 01-01-1973, while the latter is from 01-10-1975.) In so far as former is concerned, para 42 of the Third Pay Commission Recommendations clearly indicate that the pay scale of Rs 425 - 700 would be available only when the qualification for recruitment to the post is graduation. It would be highly advantageous to reproduce the same and it is as hereunder:-
"42. Based on these general observations, we recommend the following five standard scales of pay for the non-gazetted staff:
Existing Propose Qualification for recruitment scale d Scale Level I 550 - 900 M.Sc/B.E. First Class, B.Sc (Honours) or Diploma 325 - 575 in Engineering second Class B.Sc., with 3 years Experience Level II 425 - 700 Second Class B.Sc (Honours) or B.Sc. With not 210 - 425 less than 55% of marks in aggregate or Diploma in Engineering Level III 330 - 480 The scale would apply only for posts in Scientific 150 - 300 Laboratories and in Production and Inspection Organizations. This should normally be a promotion grade only. Posts engaged in non-
laboratory work should be in the scale of Rs 330 560 Existing Propose Qualification for recruitment scale d Scale Level IV 330 - 480 This should normally be promotion grade 150 - 240 110 - 200 260 - 430 Intermediate or Matriculate."
15. In the instant case, as per the Recruitment Rules for Category I posts, which include the post held by the applicants, the qualification for the post of Lab-cum-Field Assistant held by the applicant as on 01-01- 1973 is as under:-
"Laboratory Technicians Category-I Essential Qualifications
(i) Matriculate with one years trade certificate in the relevant field or Matriculate with 5 years experience of working in the relevant field or Intermediate/equivalent qualification in the relevant field."
16. Thus, since the qualification for recruitment to the post of Lab- cum-Field Assistant is not graduation, in our prima facie opinion, there is no question of grant of pay scale of Rs 425 - 700 as on 01-01-1973 to the applicants. If so, the question of their coming into Cat. I T-1-3 does not arise, much less into Cat II T -II-3 or ARS.
17. Thus, on the above facts and circumstance, the applicants' claim can be thrown out. At the same time, since the applicants relied upon various judgments, the same should also be kept in view before coming to a decision. For, in some of these judgments, the entitlement of the applicants therein (who are similarly situated as the applicants herein) for placement in the scale of pay of Rs 425 - 700 w.e.f. 01-01-1973 had been affirmed.
18. First as to the decision of this Bench of the Tribunal in OA No. 642 of 2006: In this case, as stated earlier, the decision of this Bench was no doubt affirmed by the High Court but while rendering its decision the Apex Court has clearly stated the same shall not be taken as a precedent. Thus, the applicants cannot derive any support from out of the said order.
19. As regards the decision of the Delhi High Court, the High Court has held vide Annexure A-4, as under:-
"The respondents 1 to 3 were appointed as Senior Scientific Assistant/Laboratory Assistant during 1970 - 72. They opted for ICAR Technical service w.e.f. 1-10-1975. Relying upon decision of Cuttack Bench of CAT in Sanjukta Das and others vs ICAR and others in OA No. 291 of 1995, dated 27- 09-1995,f they approached the Tribunal seeking extension of benefit of Sanjukta Das' case to them. The Tribunal disposed of the above OA vide order dated 12-08-2002 observing that the applicant in OA are similarly circumstanced to those before Cuttack Bench and directed for reconsideration of matter for grant of pay scale of Rs 425-700 w.e.f. 1.1.1973 in accordance with Rules and take a final decision by a speaking order.
The petitioner by order dated 6.2.2003 rejected claim of respondents on the ground that they do not fulfill educational qualifications of having 55% of marks in the aggregate of graduation level and the applicants are not performing Scientific tasks as stipulated in the relevant bye- laws. The respondents approached the Tribunal again by OA 2878/2005 which was also allowed and petitioners were directed to extend same benefits to respondents as in Sanjukta Das' case in OA No. 291/1995.
After considering the matter, the Tribunal has held that applicants are similarly situated to the applicants of Sanjukta Das' case (supra). Once an administrative decision has been rendered in respect of particular category of persons, persons who are similarly situated to them cannot be deprived of their rights.
We have heard learned counsel for the petitioner in support of the writ petition. Mr. Praveen Swarup, learned counsel for the petitioner, submits that the respondents in the instant case did not qualify in terms of the criteria of having secured 55% marks in aggregate at the graduation level. Further, they were not performing scientific tasks as were mandated in terms of bye-law 21(a) of ICAR Rules as Bye laws. He submits that in terms of the said bye-laws, technical personnel shall be those, who perform technical service in support of research and education. We are not impressed with this submission as the Senior Scientific Assistant and the Senior Field Assistant have the same job description and works assigned to them in Delhi as they are in the ICAR Office at Cuttack in Orissa.
In view of this, we find no distinguishing feature which should disentitle the Senior Scientific Assistant/Lab Assistant based in Delhi from the above scale. We may also note that the requirement of securing 55% marks in aggregate at the graduation level was an alternative to the work content of the scientific task and these two are not cumulative.
In view of the foregoing discussion, we find no merit in the writ petition as preferred and the same is dismissed."
20. In so far as the decision of the Madras Bench in OA No. 753 of 2010 is concerned, the facts are certainly identical to that of the present case. To narrate, the applicants therein were Degree holders and were in service as Laboratory-cum-Field Assistant in the pay scale of Rs 110 - 180. It is the case of the applicants therein that when the Third Pay Commission's recommendations were implemented by the respondents to various categories of employees, the applicant who belongs to Scientific service B.Sc. Degree with not less than 55%marks in aggregate was to be placed in the pay scale of Rs 425-700. However, the respondents have not granted the said pay scale to him. Instead, he was given the pay scale of Rs 260 - 430. The Madras Bench of the Tribunal, after considering the limitation aspect condoned the delay and on merits the Bench stated:
"....the respondents had implemented the orders of the Cuttack Bench in respect of the applicants therein Dr. (Mrs) Sanjukta Das and Kr. K.M. Das, Field Assistants. Similarly, the judgment of Delhi High Court in W.P. No. 16025 of 2006 dated 25-2-2008 has been implemented in respect of applicants S/Shri Vijay Kumar Sharma and Vijay Verma by the order dated 17-10-2008....... Thus it is clear that the respondents have ... granted the benefit to the employees only when the employees approached the court. The applicant herein is Science graduate and has been working as Lab Assistant/Field Assistant...... The respondents instead of extending the benefit of the Third Pay Commission's recommendations to the applicant who is a Science Graduate have stated that mere possession of higher qualification does not entitle a person for induction into the pay scale of Rs 425
- 700, skipping two grades in between..... In this connection, we would like to reproduce here the relevant portion of the recommendations of the Third Pay Commission in so far as the applicants are concerned:
x x x x x x"42. Based on these general observations, we recommend the following five standard scales of pay for the non-gazetted staff:
Existing Proposed Qualification for recruitment
scale Scale
Level I 550 - 900 M.Sc/B.E. First Class, B.Sc (Honours) or Diploma
325 - 575 in Engineering second Class B.Sc., with 3 years
Experience
Level II 425 - 700 Second Class B.Sc (Honours) or B.Sc. With not
210 - 425 less than 55% of marks in aggtregate or Diploma
in Engineering
Level III 330 - 480 The scale would apply only for posts in Scientific
150 - 300 Laboratories and in Production and Inspection
Organizations. This should normally be a
promotion grade only. Posts engaged in non-
labouratory work should be in the scale of Rs 330 560 Level IV 330 - 480 This should normally be promotion grade 150 - 240 110 - 200 260 - 430 Intermediate or Matriculate."
From the above, it is obvious that the applicant herein belongs to Level II and not any other level. Therefore, it is not only known why the respondents have not accepted the fact that the Third Pay Commission's recommendation applies to the applicant. Moreover, the point gets buttressed when each interpretation has been upheld by various orders of the Tribunal and the High Court which we have discussed above and which has also been implemented by the respondents. ...... But the fact remains that similarly placed persons like that of the applicant in these Original Applications have been granted the pay scale of Rs 425 - 700, pursuant to the orders of the Cuttack and Ernakulam Benches of this Tribunal and also High Court of Delhi...... For the aforesaid reasons and also placing reliance on the orders of the Apex Court and also the coordinate Benches of this Tribunal and the order of the Delhi High Court cited supra, we direct the respondents to grant the pay scale of Rs 425 - 700 with effect from 1-1-1973 to the applicant with all consequential benefits and induct him into the Technical Service from April, 1977. However, the payment of monetary benefits relating to arrears will be restricted to the period of three years prior to the filing of the applicant...
21. The decision of the Madras Bench and the Delhi Bench of the Tribunal (the latter having been upheld by the High Court as well) do go in favour of the applicants. They have also attained finality and implemented. From that point of view the applicants could be stated to have made out a case. However, what is to be seen is whether there is any decision of the Higher Courts which goes diagonally opposite to the above which the Tribunal/High Court had not considered in which event, with due respects, the aforesaid judgments would be termed per incuriam.
22. Respondents have relied upon the decision of the Apex Court by a Three Judge Bench in the case of Central Rice Research Institution v. Khetra Mohan Das, (CA 4729 of 1991 decided on 6th October, 1994) (1994) Supp 3, SCC 595. Though the same relates to Rice Research Institute, the Rules applicable to that institute being the same as those applicable to the applicants herein, reference to the same is appropriate. In that case, the Apex Court has held as under:-
"On 1-10-1975 the Technical Service Rules of the ICAR came into force. Para 3.1 provides as under:
"Categories and Grades of the Services 3.1 The Technical Services are grouped into three categories consisting of the following grades:
Category Grade Pay Scale
Category-I T-1 (i)Rs 260-6-290-EB-6-326-8-366-EB-8-390-10-430
T-2 (ii) Rs 330-10-380-EB-12-500-EB-15-560
T-I-3 (iii) Rs 425-15-500-EB-15-560-20-700 Category-II T-II-3 (i) Rs 425-15-500-EB-15-560-20-700 T-4 (ii) Rs 550-25-750-EB-30-900 T-5 (iii) Rs 650-30-740-35-810-EB-35-880-40-1000-EB-40-
1200
Cat. -III T-6 (i)Rs 700-40-900-EB-40-1100-50-1300
T-7 (ii) Rs 1100-50-1600
T-8 (iii) Rs 1300-50-1700
T-9 (iv) Rs 1500-60-1800-100-2000"
The next relevant paras for the purpose of this case are paras 3.2, 3.3 and 5.1 which read as follows:
"3.2 The pay scales in Categories I and II replace the existing pay scales in the manner indicated in Appendix I. The new pay scales in Category III are the same as the existing pay scales.
3.3 The new pay scales will be applicable both to the future entrants as well as to the existing incumbents from 1-10-1975. However, the existing incumbents may, if they so desire, retain their existing scales as personal to them.
* * * Initial Adjustment of Existing Employees 5.1 The existing permanent and temporary employees appointed through regularly constituted DPC/Selection Committees will be fitted into the grades specified in para 3.1 on `point to point basis' without any further screening irrespective of their qualifications. However, persons holding positions in the merged grade of Rs 425-700 and possessing qualifications prescribed for Category II, will be fitted in grade T-II-3 (Rs 425-700)."
As per these rules the respondent was inducted into Category I Grade T-2 and as seen above the scale of pay for the persons holding post in Category I Grade T-2 was fixed as Rs 330-560. The respondent made a representation that as per the rules he ought to have been fitted in the lowest grade of Category II i.e. T-II-3 for which the scale of pay prescribed is Rs 425-700 and also that a Field/Farm Technician holding either a 3 years' diploma or a bachelor's degree in the relevant field should be fitted in Category II. As the representation was not fruitful he filed a writ application in the High Court of Orissa which after the establishment of the Central Administrative Tribunal was transferred to Cuttack Bench. In the counter-affidavit filed on behalf of CRRI it was stated that the respondent was correctly inducted into Category I Grade T-2 and that as per the provisions of Rule 5.1 the existing permanent and temporary employees will be fitted only in the grades specified in para 3.1 on point to point basis without any further screening irrespective of the qualification. It is, however, stated that only the persons holding positions in the merged grade of Rs 425-700 and possessing qualifications prescribed for Category II would be fitted in Category II Grade T-II-3 carrying the pay scale of Rs 425-700 and that since the respondent was not holding a post carrying the pay scale of Rs 425-700 he would not be entitled to be inducted into Category II of the Technical Service Rules. The Tribunal, however, held that the moment the rules became applicable the necessary consequence was that a person should be fitted in the category for which he possesses the minimum qualification required and that at any rate since the respondent has been promoted to Category I Grade T-I-3 carrying the same scale of Rs 425-700 as that of Category II Grade T-II-3 he should be deemed to have been fitted into Category II Grade T-II-3. In this context the Tribunal also observed that if the respondent is made to remain in Category I then he cannot have any further promotion to Grade T-4 and Grade T-5 in Category II. In this view of the matter the Tribunal allowed the petition and held that the respondent should be deemed to have been appointed into Category II Grade T-II-3.
4. Therefore the only question that arises for consideration is whether the respondent who was admittedly in the pay scale of Rs 330-560 was entitled to be fitted in Category I Grade T-I- 3 and further by virtue of Rule 5.1 he ought to have been fitted in Category II Grade T-II-3. As noted above para 5.1 lays down that all the existing permanent and temporary employees appointed would be fitted into their respective grades specified in para 3.1 on point to point basis. The respondent who was in the pay scale of Rs 330-560 could only be fitted into Category I Grade T-2 and only the persons holding positions in the merged scale of Rs 425-700 i.e. Category I Grade T-I-3 and possessing the necessary qualifications prescribed for Category II could be fitted in Category II Grade T-II-3 for which also the scale is the same. Merely because one possessed the qualification, he cannot claim as a matter of right that he should be fitted into Category II Grade T-II-3. The initial induction should be only on the basis of pay scale. If the respondent was entitled to be fitted in Category I Grade T-I-3 (Rs 425-700) on the relevant date and if he possessed the qualification for Category II then only could he be fitted in Category II Grade T-II-3 by virtue of para 5.1 and the respondent could not be fitted in Category I Grade T-I-3 because of the difference in the pay scale. As per the rules he could be fitted in Category I Grade T-2 and merely because he possessed the qualification for Category II he cannot claim as a matter of right to be fitted in Category II Grade T-II-3. Para 5.1 does not permit such an induction.
7. The Tribunal, however, observed that in the meantime the respondent has been promoted to Grade T-I-3 of Category I carrying the same scale as Grade T-II-3 of Category II, therefore he should be deemed to have been inducted into Grade T-II-3 Category II. This reasoning is erroneous. The crucial date is 1-10-1975 on which date the rules came into force and for fitment into the necessary categories Rule 5.1 has to be applied and the existing employees should be fitted only in the grades specified in para 3.1 on point to point basis on the basis of their existing scales of pay on that date. The subsequent promotion of the respondent from Grade T-2 of Category I to Grade T-I-3, the higher grade in the same category cannot make any difference so far as the initial fitment on 1-10-1975 is concerned as contemplated under Rule 5.1. The Tribunal also made a reference to Rule 8.1 which applies only to direct recruits and it has no relevance so far as the case of the respondent is concerned.
8. For all the above reasons, the finding of the Tribunal that the respondent should be held to have been appointed in Grade T-II-3 of Category II in the pay scale of Rs 425-700 with effect from 1-10-1975 is set aside.
(emphasis supplied)
23. The above decision has been cited in another case of Indian Council of Agricultural Research v. T.K. Suryanarayan, (1997) 6 SCC 766, wherein the Apex Court has held as under:-
"It has been clearly indicated in the said decision of this Court reported in Director, Central Rice Research Institution v. Khetra Mohan Das that the question of fitment in Grade T-1-3 in Category 1 had consequential accelerated promotion to Grade T-2-3 in Category 2 on the basis of educational qualification of such employee on the date of enforcement of the said Service Rules is a one-time exercise. If an employee does not get fitment on the date of enforcement of the said Rules in Grade T-1-3 of Category 1, the question of accelerated promotion to Grade T-2-3 of Category 2 on the basis of educational qualification cannot arise.
3. In appeal arising out of SLP (C) No. 16873 of 1995, the order passed by the Central Administrative Tribunal, Hyderabad Bench on 25-11-1993 in OA No. 992 of 1991 is under challenge. The Tribunal by the impugned judgment has allowed the application filed by Respondents 1 to 3 in view of the fact that the Indian Council of Agricultural Research having allowed a large number of employees to get promotion in different units on the basis of educational qualification and the said respondents having also been given promotion on the basis of higher educational qualification should not suffer any prejudice by being denied such promotions on the ground that the Technical Service Rules of Indian Council of Agricultural Research enforced with effect from 1-10-1975 do not permit such promotion. The Tribunal has also proceeded on the footing that if the said respondents had reached the grade of T-1-3 Category 1 even on promotion, the said respondents, having requisite qualification for holding the posts in Grade T-2-3 of Category 2, were entitled to accelerated promotion to the said T-2-3 grade.
4. It may be indicated that in a similar case, the Indian Council of Agricultural Research and Director, Central Tobacco Research Institute, Rajamundry challenged the decision of the Central Administrative Tribunal, Cuttack Bench against the judgment of the said Tribunal in favour of one Shri Khetra Mohan Das.
5. A three-Judge Bench of this Court has considered the import of Rules 5-1 and 7-2 of the said Service Rules coming into force on 1-10-1975. It has been clearly indicated in the said decision of this Court reported in Director, Central Rice Research Institution v. Khetra Mohan Das that the question of fitment in Grade T-1-3 in Category 1 had consequential accelerated promotion to Grade T-2-3 in Category 2 on the basis of educational qualification of such employee on the date of enforcement of the said Service Rules is a one-time exercise. If an employee does not get fitment on the date of enforcement of the said Rules in Grade T-1-3 of Category 1, the question of accelerated promotion to Grade T-2-3 of Category 2 on the basis of educational qualification cannot arise. It has been clearly indicated that despite higher qualification required for holding the post in Grade T-2-3, if the initial fitment has not been made in Grade T-1-3 such employee is not entitled to claim accelerated promotion to Grade T-2-3 of Category 2. Such employee can come to the higher grade only on the basis of promotion as envisaged in Rule 7. It may however be indicated at this stage that later on there has been some relaxation in the matter of requisite educational qualification for holding the post in Grade T-2-3. It has been held in the case of Khetra Mohan Das that promotion cannot be given contrary to the said Service Rules. Precisely for the said reason, the decision of the Central Administrative Tribunal, Cuttack Bench in Khetra Mohan case was set aside.
6. Mr De, the learned counsel appearing for the respondents in SLP (C) No. 16873 of 1995 has, however, submitted that the decision rendered in Khetra Mohan case should not be taken into consideration for deciding the correctness of the impugned judgment of the Tribunal. In the case of Khetra Mohan the claim of promotion of a direct recruit was involved and the claim of promotion of in-service employees in view of long experience over the years did not come up for consideration in the said case. Mr De has also submitted that the respondents in this case were in the pay scale of Rs 425-700 before 1-1-1977. Therefore, their cases were required to be considered differently. Mr De has also submitted that in any event, hostile discrimination has been made to these respondents. A large number of employees similarly circumstanced have got promotion but the Institute for inexplicable reasons chose not to challenge such order for promotions even though such promotions directed to be given were contrary to the said Service Rules. Such discriminatory stand has resulted in an unfortunate situation where a number of employees who are similarly circumstanced are holding superior posts. But in the case of these respondents, the Institute appears to be keen in enforcing the Service Rules by ignoring the fact that the respondents had qualifications to hold superior grades when the said Service Rules were introduced. Mr De has lastly contended that out of the three respondents, two have already attained the age of superannuation and only one of the respondents is still in service but if the impugned judgment of the Tribunal is interfered with, the said respondent will suffer serious prejudice. Mr De has submitted that in the special facts of this case, this Court should not be inclined to interfere in exercise of its discretionary power under Article 136 of the Constitution.
7. Mr Lalit, the learned counsel appearing for the respondent in SLP (C) No. 19103 of 1995, has also supported Mr De by contending that the management of the Indian Council of Agricultural Research and its constituent units intend to take different stands resulting in hostile discrimination to a large number of employees. He has also drawn our attention to two letters issued by the Indian Council of Agricultural Research dated 27-1-1979 and 28-1- 1980. Mr Lalit has submitted that the said two letters indicate that the Indian Council of Agricultural Research was alive to the unfortunate situation created by the introduction of the said Service Rules and unmerited hardship meted out to a number of employees. It, therefore, directed the units concerned not to implement the said Rules until various representations received by the Institute were considered. Mr Lalit has submitted that the respondents in these SLPs had requisite qualification to get promotion because of the relaxation of the educational qualification and all of them had long experience in service. He has, therefore, submitted that if the promotion claimed by them since allowed by the Central Administrative Tribunal is interfered with at this stage such decision is bound to bring complete frustration to these respondents. In the facts and circumstances of the case, this Court should refrain from interfering with the impugned decision of the Tribunal for the ends of justice.
8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts. Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective on 1-10-1975 should not be adhered to because in some cases erroneous promotions had been given. The statutory rules must be applied strictly in terms of the interpretation of rules as indicated in the decision of a three-Judge Bench of this Court in Khetra Mohan case. When the said Service Rules were introduced w.e.f. 1-10-1975, one-time exercise was required to be made to decide the fitment of the employees in different grades. Except in case of fitment in Grade T-1-3 of Category 1 and consequential accelerated promotion to Grade T-2-3 of Category 2, on the basis of qualification in no other case accelerated promotion on the basis of educational qualification is permissible. If relaxation of educational qualification is made effective on the date of enforcement of the said Service Rules it will be a case of review of initial fitment. In all other cases, promotion is to be given in accordance with the said Service Rules and not otherwise. The respondents in these appeals were not entitled to get initial fitment in Grade T-1-3. As a matter of fact, they got initial fitment in grade lower than Grade T-1-3 of Category 1. Therefore, they are not entitled to accelerated promotion on the basis of educational qualification consequent upon the initial fitment in Grade T- 1-3 of Category 1. The impugned decisions of the Tribunal, therefore, cannot be sustained.
9. It may, however, be indicated that the question of unmerited hardship if any, and need for amendment of the Rules to remove such hardship, are matters for consideration of the rule-making authority. It is reasonably expected that the authority concerned will be sensitive to unmerited hardship to a large number of its employees, if occasioned by introduction of Service Rules so that appropriate remedial measures may be taken. Since the impugned orders of the Tribunal cannot be sustained in law, the impugned judgments in both the appeals are set aside.
24. It is pertinent to mention here that the respondents before the Cuttack Bench, as also before the Principal Bench and the Madras Bench have, somehow, failed to refer to the aforesaid important and very relevant decisions. In all expectation, had the above decisions been cited, the outcome of the cases before the other Benches might have been entirely different. It has been held by the Apex Court in the case of Government of West Bengal vs Tarun K. Roy (2004) 1 SCC 347 -
If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.
25. The claim of the applicants is that their pay scale should be revised to Rs 425 - 700 w.e.f. 01-01-1973 as per the recommendations of the 3rd Pay Commission and thereafter, w.e.f. 01-10-1975 they should further be placed in the category of T-II-4 of Category II and should be afforded the consequential benefits. Their claim is based on the recommendations of the Third Pay Commission as accepted by the Government that graduates should be placed in the pay scale of Rs 425 - 700 and they were graduates at that material point of time. First of all, the applicants have not produced the relevant portion of the III Pay Commission Report. They have stated that various decisions produced by the applicants have taken judicial notice of this proposition and decisions have also been rendered on that basis. It is the decision of the Madras Bench which has extracted para 42 of the 3rd Pay Commission Report which has been reproduced paragraph 14 (Also extracted in the Order of the Madras Bench of the Tribunal at para 20).
26. A careful look at the said recommendations would reveal that the recommendation made is with respect to the qualification for recruitment and not in respect of one who has at his credit the qualification of a graduate. In the instant case, though the applicants may be graduates, the post held by the applicants was Lab-cum-Field Assistants for which the minimum qualification is matriculate with trade certificate or experience or intermediate. In none of the decisions cited by the applicants, the qualification requirement has been spelt out or considered. On the basis of the aforesaid judgments of various fora, the applicants cannot be said to fulfill the requirements or conditions stipulated in the Third Pay Commission Recommendations to qualify for being placed in the scale of pay of Rs 425 - 700. Consequently, they are not eligible to be placed in that scale w.e.f. 01-10-1975 and they had been rightly placed in the replacement scale of Rs 260 - 430. The same scale would have continued as on 01-10-1975 also. Since being in the scale of pay of Rs 425 - 700 as on 01-10-1975 is a sine-qua-non for being considered to be placed in Cat. I T-I-3, the applicants not having the same, they cannot be placed in that category i.e. Cat I T-1-3.
27. The O.A. thus, fails and is, therefore, dismissed. No costs.
K.NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs