Central Administrative Tribunal - Delhi
Mr. Atma Prakash Dixit Sfa (M) vs Union Of India & Ors. Through on 13 May, 2013
Central Administrative Tribunal Principal Bench OA No. 2866/2012 M.A. No.3357/2012 Reserved On17.04.2013 Pronounced on:13:05.2013 Honble Sh. G. George Paracken, Member (J) Honble Sh. Shekhar Agarwal, Member (A) 1. Mr. Atma Prakash Dixit SFA (M), Office of the Inspector General, FTR HQRS, SSB, Patna. 2. Mr. Ravi Verma, SFA (M), Office of the Inspector General, FTR HQRS, SSB, Patna. 3. Mr. M.S. Rao, SFA (M), ITS, SSB, Kolkata, W.B. 4. Mr. Gajraj Singh SFA (M), Office of the Area Organizer, SSB, Kishan Ganj, Bihar. 5. Mr. Nandeswar Boro, SFA(M), Composite Hospital, Tezppur At Salonibari Distt. Sonitpur Assam. 6. Mr. Manoj Kumar Jha, SFA (M), Office of the Area Organizer, SSB, Madhubani, Bihar. 7. Mr. Chandan Singh Gusain AFO (M), FTR HQRS, SSB, Lucknow, UP. 8. Mr. Kumar Kishor Naha, SFA (M), Office of the Circle Organizer, SSB, Kanauli, Dist. Supaul, Bihar. 9. Mr. Vinod Kumar, SFA (M), Office of the Circle Organizer, SSB, Madhwapur, Dist. Madhubani, Bihar. 10. Mr. Ranjay Jha, SFA (M), Office of the Circle Organizer, SSB, Madhwapur, Dist. Madhubani, Bihar. 11. Mr. Rashpal Sharma, SFA (M), FHQ, SSB, R.K. Puram, New Delhi. 12. Mr. Sarvejeet Singh, SFA (M), Office of the Circle Organizer, SSB, Jaynagar, Dist. Madhubani, Bihar. 13. Mr. Surender Kumar, SFA (M), Office of the Circle Organizer, SSB, Umgaon, Dist. Madhubani, Bihar. 14. Mr. Uma Shankar Singh, SFA (M), Office of the Circle Organizer, SSB, Umgaon, Dist. Madhubani, Bihar. 15. Mr.Ashitava Basu Majumdar, SFA (M), Office of the Circle Organizer, SSB, Ladania, Dist. Madhubani, Bihar. 16. Mr.Anand Chand Barai, SFA (M), Office of the Circle Organizer, SSB, Umgaon, Dist. Madhubani, Bihar. 17. Mr.Mohinder Singh, SFA (M), Office of the Circle Organizer, SSB, Trilokpur, Post Pachperwa, Th. Tulsipur, District Balrampur, UP. 18. Mr.Inderjeet Singh, SFA (M), Office of the Circle Organizer, SSB, Diuharwa, Post Vishnanpurbiishram, Th. Tulsipur, District Balrampur, UP. 19. Mr.Karam Chand, SFA (M), Office of the Circle Organizer, SSB, Nautanwa, Maharajganj, Distt. Maharajganj. 20. Mr.Swaran Singh, SFA (M), Office of the Circle Organizer, SSB, Jhulaghat, under Pithoragarh Area, Distt. Pithoragarh, U.K.D. 21. Mr.Surinder Kumar, SFA (M), Office of the Circle Organizer, SSB, Rupaidiha, Teh Nanpara Distt. Bahraich, U.P. 22. Mr.Ramesh Kumar, SFA (M), Office of the Circle Organizer, SSB, Jarwa, Post Jarwa, The. Tusipur, Distt. Balrampur, U.P. 23. Mr.Jodha Raj, SFA (M), Office of the Circle Organizer, SSB, Gangapur, Teh Nanpara Distt. Bahraich, U.P. 24. Mr.Inder Singh, SFA (M), Office of the Circle Organizer, SSB, Maulanapura, Teh Nanpara Distt. Bahraich, U.P. 25. Mr.Jeevan Singh, SFA (M), Office of the Circle Organizer, SSB, Jarwa, Teh Tulsipur, Distt. Balrampur, U.P. 26. Mr.Kamal Kumar, SFA (M), Office of the Circle Organizer, SSB, Julaghat (under Pihtoragarh Area) Distt. Pihtoragarh, U.K.D. 27. Mr.Mohan Lal Vedwal, SFA (M), Office of the Circle Organizer, SSB, Bhinga, U.P. 28. Shri Shrigopal Sharma, SFA (M), Office of Area Organizer, SSB Bhinga, Near Allahabad Bank, Mangal Bhatta, District Sharawasti, U.P. 29. Shri Maharaj Singh, SFA (M) Office of the Circle Organizer, SSB, Sunder Nagar at Sisaiya (under Pihtoragarh Area) Distt. Shrawasti, U.P. 30. Mr. Narinder Singh Chib, SFA (M), Office of the Area Organizer, SSB, Bhinga, Near Allahabad Bank, Mangal Bhatta, Dist. Shrawasti, U.P. 31. Mr. Satish Kumar Nautiyal, SFA (M), Office of the Area Organizer, SSB, Dhyan (under Lohaghat Area) UKD. 32. Mr. Ved Prakash Sharma, SFA (M), Office of the Area Organizer, SSB, Bhinga, Near Allahabad Bank, Mangal Bhatta, Dist. Shrawasti, U.P. 33. Mr. Roshan Lal Azad, SFA (M), Office of the Area Organizer, SSB, Lakhimpur, Khiri, U.P. 34. Mr. Varendra Singh, SFA (M), Office of the Area Organizer, SSB, Nishangarha, Teh. Nanpara, Dist. Baharaich, UP. 35. Mr. Darub Singh, SFA (M), SHQ SSB, Lakhimpur, Khiri, UP. 36. Mr. Khazana Ram, SFA (M), Office of the Area Organizer, SSB, Danga at Tikunia, Under Lakhimpur Khiri Area U.P. 37. Mr. Murari Lal, SFA (M), Office of the Circle Organizer, SSB, Bhinga, U.P. 38. Mr. Hansraj Attri, SFA (M), Office of the Circle Organizer, SSB, Sumer Nagar, Dist. Lakhimpur Kheri, U.P. 39. Mr. Gurudas Ram, SFA (M), Office of the Circle Organizer, SSB, Dhanga at Tikunia, (Under Lakhimpur Kheri Area), U.P. 40. Mr. Gopa Kumar K.R, SFA (M), Office of the Circle Organizer, SSB, Kalapul, The. Kahtima, Under Pilibhit Area, UKD. 41. Mr. N.C. Ramola, AFO (M), Office of the Circle Organizer, SSB, Academy Shrinagar, UKD. 42. Mr. Rajinder Kumar, SFA (M), Office of the Circle Organizer, SSB, Jhulaghat under Pithoragarh Area, Dist. Pithoragarh, UKD. 43. Mr. V.K. Sood, SFA (M), Office of the Circle Organizer, SSB, Gauri Phanta under Pilibhit Area, Dist. Kheri UP. 44. Mr. Prabin Kumar Nath, AFO (M), Office of the Circle Organizer, SSB, Naxalbari, Post-Naxalbari, Dist. Darjeeling (WB)-734429. 45. Mr. Biswajjeet Roy, AFO (M), Office of the Circle Organizer, SHQ, SSB Mujaffarpur, Bihar. 46. Mr. Kanchan Sarkar, SFA (M), Office of the Circle Organizer, SSB, Kadomonijote at vill. Batasi Post-Badrajote Distt. Darjeeling (WB)-734429. 47. Mr. Vijay Pal, SFA (M) Office of the Area Organizer, SHQ, Gangtok, Sikkim. 48. Mr. Sujit Ghosh, SFA (M) Office of the Area Organizer, SSB Jateswar Road, Falakata, District Jalpaiguri-735211. 49. Smt. Baby Biswas, SFA (M) Office of the Area Organizer, SSB Kokrajhar, Assam. 50. Mr. Rajesh Sharma, SFA (M) O/O The Circle Organizer, SSB Sursand District, Sitamarhi, Bihar-843331. 51. Mr. Dilip Kumar Makkar, AFO (M) O/O The Circle Organizer, SSB Sursand District, Sitamarhi, Bihar-843331. 52. Mr. Suresh Chandra, SFA (M) O/O The Circle Organizer, SSB Maulanapurva, Teh. Nanapara UP, District Baharich, UP. 53. Mr. Surendra Kumar Sharma, SFA (M) The Circle Organizer, SSB Rupaidhia, The. Nanapara District Baharich, UP. 54. Mr. Biplav Vikas Pal, SFA (M) Area Organizer, SSB Kishanganj, Bihar. 55. Smt. Maousmi Roy, SFA (M) Office of the Inspector General, Frontier HQRs, SSB Patna. 56. Nr. P.C. Upreti, SFA (M) Office of the Circle Organiser, SSB, Belapursua (Under LakhimpurKheri Area) (UP). 57. Mr. Kartar Singh Thakur, SFA (M) Office of the Circle Organiser, SSB, Belapursua (Under LakhimpurKheri Area) (UP). 58. Mr. Krishanlal Tanwar, SFA (M) Office of the Circle Organiser, SSB, Jauljivai (Under Pithoragarh Area)UKD. 59. Mr. Dilip Singh Thakur, SFA (M) Office of the Circle Organiser, SSB, Sumernagar, Dist. Kheri-262902(UP). 60. Mr. BishnuPadaSarkar, SFA (M) Office of the Circle Organiser, SSB, Garuiphanta (under Pilibhit Area) Dist. Kheri (UP)-26290220. 61. Mr. Pratak Kumar Banerjee, SFA (M) Office of the Circle Organiser, SSB, Krishna Mandir Road, Krishna Nagar, PO-Mirik, Distt. Darjeeling (WB). (Under LakhimpurKheri Area) (UP). 62. Mr. Bikash Chandra Dutta, SFA (M) Office of the Circle Organiser, SSB, Naxalbari, PO-Naxalbari, Distict Darjeeling (WB). 63. Mr. Pallab Kumar Dutta, SFA (M) Office of the Circle Organiser, SSB, Pasupati Fatak at SukhiaPokhri, PO-SukhiaPokhri, Distict Darjeeling (WB). 64. Mr. Dulal Chandra Roy, SFA (M) Office of the Circle Organiser, SSB, /rimbick, PO-Rimbick, Distict Darjeeling (WB). 65. Mr. Vipen Chandra, SFA (M) Office of the Circle Organizer, SSB Amjuli (Under Udalguri Area) District Udalguri (Assam). 66. Mr. A.K. Pandey, SFA (M) Office of the Circle Organizer, SSB Udalguir, District Udalguri (Assam). 67. Ms. Manomati Basumatary, SFA (M) Office of the Circle Organizer, SSB Samgrang (Under Udalguri Area) District Udalguri (Assam). 68. Mr. A.K. Paul, SFA (M) Office of the Area Organizer, Darjeeling Camp at Kadamtala, Siliguri, St. Darjeeling (WB). 69. Mr. Dinesh Kumar, SFA (M) O/O The Area Organizer, SSB Rangia, Assam. 70. Mr. R.P. Saini, SFA (M) Composite Hospital, Purnia, Bihar. 71. Mr. Kirat Ram O/o CO SSB Trilokpur, PO Pach Padwa, Tehsil Tulsipur, District Balrampur (UP). 72. Krishan Kumar Ojha O/o Area Organizer, SSB Balrampur, UP. 73. Jagdish Chandra O/O CO SSB Diuharwa PO Vishanpur Bishram, Tehsil Tulsipur, District Balrampur, UP-271206. 74. Roshan Lal Sharma O/O CO SSB Jarwa, Tehsil Tulsipur, District Balrampur, UP. ..Applicants (By Advocate : Mr. M.K. Bhardwaj) Versus Union of India & Ors. through : 1. The Secretary, Ministry of Finance, North Block, New Delhi. 2. The Director General, Sashastra Seema Bal, East Block, R.K. Puram, New Delhi-110066. 3. The Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi. Respondents By Advocate: Shri Ashish Nischal. O R D ER Sh. G. George Paracken, Member (J):
Applicants in this joint Original Application are serving as Senior Field Assistants(M) [SFAs(M) for short] & Assistant Field Officers(M) [AFOs(M) for short] in Sashastra Seema Bal (SSB for short) under the Ministry of Home Affairs. They are aggrieved by the alleged illegal, arbitrary and discriminatory action on the part of the Respondents in not giving them the Grade Pays of Rs.2400/- and Rs.2800/- respectively w.e.f. 1.1.2006 as given to their counter-parts serving in the various organizations under the Cabinet Secretariat.
2. The brief background of the case is that SSB was originally under the Cabinet Secretariat. From 14.01.2001, its administrative control was transferred to the Ministry of Home Affairs. However, the other similar organizations such as ARC, SSF and RAW continued to be under Cabinet Secretariat. All those organizations including SSB were having the posts of SFA and AFO and their pay scales from time to time were as under:-
Details of post SSB Post (SFA) ARC Post (SFA) SSF Post (SFA) RAW Post (SFA) 4th Pay Commission 975-1660 975-1660 975-1660 975-1660 5th Commission 3200-4900 4000-6000 4000-6000 4000-6000 6th Pay Commission 5200-20200 with Grade Pay 2000 5200-20200 with Grade Pay 2400 5200-20200 with Grade Pay 2400 5200-20200 with Grade Pay 2400 Details of post SSB Post (AFO) ARC Post (AFO) SSF Post (AFO) RAW Post (AFO) 4th Pay Commission 1320-2440 1320-2440 1320-2440 1320-2440 5th Commission 4000-6000 4000-6000 4000-6000 4000-6000 6th Pay Commission 5200-20200 with Grade Pay 2400 5200-20200 with Grade Pay 2800 5200-20200 with Grade Pay 2800 5200-20200 with Grade Pay 2800
3. The Government of India, on the recommendations of the 6th Central Pay Commission, has decided to extend the upgraded pay scales attached to the posts of Constable, Head Constable and Assistant Sub Inspector in various police organizations including IB, RAW and other organizations under the Cabinet Secretariat which were having an established parity with those posts. The relevant part of the said decision is as under:-
Recommendation of the Commission:
The Commission has recommended upgradation of the pay scales attached to the posts of Constable, Head Constable and Assistant Sub Inspector (ASI) in various Police organizations including Intelligence Bureau (IB). This recommendation will be extended to all the posts in R&AW as well as in other various organizations under Cabinet Secretariat that have had an established parity with the posts of Constable, Head Constable and ASI in the police and equivalent posts in Intelligence Bureau. (Para 7.5.14 of the Supplementary Report) Decision of the Government:
Accepted.
4. However, according to the Applicants, in spite of the aforesaid recommendations of the 6th CPC, they are being discriminated as they are granted the lesser grade pay of Rs.2000/- and Rs.2400/- respectively as against the corresponding grade pays of Rs.2400/- and Rs.2800/-.
5. Challenging the aforesaid decision of the Respondents, the Applicants have earlier filed OA No.3743/2009 demanding the higher grades w.e.f. 1.1.2006. The said OA was disposed of vide order dated 30.08.2011 directing the Respondents to consider their claim. The operative part of the said order reads as under:-
Shri Atma Prakash Dixist and others have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking direction to be issued to the respondents to grant them higher grade pay of Rs.2800 w.e.f. 01.01.2006 with all consequential benefits and to remove the anomaly by upgrading the pay scale as per the recommendations of 6th Central Pay Commission from the relevant date along with arrears with interest @12% per annum.
2. Pursuant to notice issued by this Tribunal, respondents by filing their reply contested the cause of the applicant. From the reply filed on behalf of the respondents it would, however, reveal that the Department had submitted a proposal, vide letter No.166 and 167 dated 30.12.2009 to Anomaly Committee constituted by the MHA, and the Anomaly Committee of MHA has recommended the proposal of Ministry of Finance, vide letter dated 07.06.2010. The matter is still pending at that stage.
3. In the facts and circumstances of the case, and particularly when claim of the applicants is still under active consideration of the Government, we dispose of this Original Application directing the Ministry of Finance, respondent no.1 herein, to deal with the matter as expeditiously as possible and pass final orders within three months from today. If the applicants are not satisfied with the recommendations that may be made by Ministry of Finance and their grievance may still subsist, it will be open to them to challenge the same by filing fresh Original Application.
6. The Respondents in implementation of the aforesaid direction issued in the impugned order dated 29.11.2011 stating that the issue with regard to the upgradation of pay scales in respect of FA, SFA and AFOs of SSB was considered by the Anomaly Committee of MHA in consultation with the Ministry of Finance (Department of Expenditure). They have further stated that vide para 7.19.62, the 6th Central Pay Commission has made recommendations in respect of executive cadre of IB which, inter alia, includes the posts of Security Assistant, Junior Intelligence Officer Grade-II and Junior Intelligence Officer Grade-I. They have established parties in the pay scales with the corresponding posts in Delhi Police and CPMFs, namely, Constable, Head Constable and Assistant Sub Inspectors. The said parity was decided to be maintained and on par with the recommendations made for analogous posts in Delhi Police and CPMFs, the Commission has recommended higher pay scales in the executive cadre of IB. The said recommendations of the 6th CPC was accepted and the pay scales of the post of Security Assistant, Jr. Intelligence Officer Grade-II and Junior Intelligence Officer Grade-I in IB have been upgraded. However, since the above recommendations were Post/Department/Ministry specific and the benefit of such recommendation cannot be extended to other posts/organizations. Hence, the said recommendation cannot be made applicable to posts in SSB. Further, they have stated that since there has been no specific recommendations in respect of the post of FA, SFA and AFO in the recommendations of the 6th CPC, those posts are to placed in the normal replacement Grade Pay as mentioned in Part A of CCS (RP) Rules, 2008. Accordingly, the Respondents have rejected the claim of the Applicants for grant of Grade Pay of Rs.2800/- with effect from 1.1.2006.
7. In the meantime, the Field Officers of SSB in the scale of Rs.6500-10500 as per the 5th CPC approached this Tribunal vide OA No. 1011/2011 seeking a direction to the Respondents to grant them the Grade Pay of Rs.4800/- at par with the Field Officers in ARC, SFF and RAW w.e.f. 1.1.2006 with all consequential benefits as they were placed in the normal replacement pay in Pay Band-2 of Rs.9300-34800 with Grade Pay of Rs.4200/-. According to the Respondents in the said OA, a proposal was taken up with MHA for upgradation of pre-revised pay scales and corresponding grade pay to remove anomaly in respect of Field Assistant, Senior Field Assistant, Assistant Field Officer and Field Officer of SSB. The matter was examined by MHA in consultation with Ministry of Finance, Department of Expenditure and it was decided that as the 6th CPC has not made any specific recommendation for non-combatised officers of SSB, the higher grade pays recommended vide para 7.19.62 by the 6th CPC to IB, cannot be extended to SSB officials, i.e. FA, SFA, AFO etc. After due consideration of the submissions of the parties concerned in the said OA, this Tribunal, vide order dated 16.4.2012, held that it is also undisputed that after implementation of the 5th CPC, the scale of the Applicants was Rs.6500-10500, and it was the same, which was admissible to their counterparts in RAW, SFF and ARC. The dispute arises after implementation of the 6th CPC. The details have been given in the OA regarding the scales of pay of the Field Officers from the implementation of the 3rd CPC to 5th CPC, but the anomaly has arisen after implementation of the 6th CPC recommendation, and there is a deviation from the historic parity from other organizations like RAW, SFF and ARC of the Field Officers of the SSB. It is also undisputed that equivalent pay scale of Rs.6500-10500 was granted to the Applicants of Rs.9300-34800 (PB-2) with Grade Pay of Rs.4200. Finally, while allowing the OA vide order dated 16.4.2012, this Tribunal held as under:-
8. The established facts are that the Applicants were at par for all purposes with the Field Officers of RAW, SFF and ARC. They were getting the same scales as per 3rd to 5th CPC. There had been some disparity after implementation of the 6th CPC because there had been a change of certain events in between. With effect from 2001, the administrative control of SSB was shifted from Cabinet Secretariat to MHA, and the learned advocate for the respondents tried to justify the disparity in the Grade Pay of Field Officers of SSB with other organizations due to this reason. But we are not satisfied with the reasoning of disparity. After change of administrative control, there had not been any change in discharging of the duties and responsibilities of the Field Officers of the SSB from the Field Officers of other organizations. They had continuously been discharging the same duties, as had been discharging by the Field Officers of the SSB prior to implementation of the 6th CPC, and after also, the duties remain the same. And moreover, after change of administrative control also, the nature of duties to be performed by the Field Officers of SSB remained the same. There must be some rational reason for making out a distinction in the Grade Pay. And no plausible explanation has been given that how there was disparity of Grade Pay after recommendations of the 6th CPC. However, later on, the Grade Pay was enhanced from Rs.4200/-, as recommended by the 6th CPC, to Rs.4600. But even then, the distinction was maintained in between the Grade Pay of Field Officers of the SSB and other organizations like RAW, SSF and ARC, and this is not justified in our opinion.
9. Moreover, there is a judgment of this Tribunal in OA No.3319/2009 dated 13.08.2010 to the effect the learned counsel for the Respondents would only contend that the Applicants were under the control of Ministry of Home Affairs and the officials in SFF and ARC are under the control of Cabinet Secretariat and, therefore, different scales of pay were justified. The arguments on behalf of the Respondents is totally unacceptable. The service of the Applicants has been placed under the Ministry of Home Affairs only for the functional reasons. They are continuing to perform the same work, which they were performing earlier. This fact has not been disputed. The judgment of the Tribunal was challenged before the Honble High Court in Writ Petition (Civil) No.7526/2010 and the Honble High Court passed the order on 18.11.2010. And it was held by the Honble High Court that It is also not in dispute that permanent absorption under the Ministry of Home Affairs would mean a change of cadre for the officers deputed under the Ministry of Home Affairs and till date no option has been sought for from these persons. It is settled law that an employee in a cadre cannot be permanently absorbed in another cadre without his consent. We hasten to add that it is permissible to merge cadres. But, there is no merger of cadres it would be impermissible to hive of a cadre by sending some persons to a different cadre, without seeking their opinion. The Honble High Court has not dealt with separately regarding disparity of the scale. And it is also a fact there is no dispute of absorption in the present case. And it is nobodys case and it is not a case of organisations like RAW, SFF and ARC. But the Writ Petition was dismissed by the Honble High Court.
10. The learned advocate for the Applicants stated that the order passed by this Tribunal has been complied with by the Respondents. Under these circumstances, as observed by the Tribunal also that change of administrative control from Cabinet Secretariat to Ministry of Home Affairs is not going to make any difference in the discharge of duties and the pay sales also, and as this Tribunal in the earlier order was of the opinion, hence we are of the same opinion, that there can be no disparity from historic parity continuing in the pay scale of the Field Officers of SSB and SFF, ARC and RAW.
11. For the reasons mentioned above, we are of the opinion that the Applicant has proved the case. The OA deserves to be allowed.
12. The OA is allowed. Order dated 29.10.2010 (Annexure A-1) is quashed and respondents are directed to grant Grade Pay of Rs.4800 at par with Field Officers of other organizations like RAW, ARC and SFF to the Applicants w.e.f. 1.1.2006 with all consequential benefits. It is also provided that this parity may be granted to all the similarly situated Field Officers of this organization. The order will be complied with by the Respondents within a period of 3 months from the date of copy of this order is produced before them.
8. Similarly, the Central Government Civilian Employees holding the post of Circle Organisers working in Sashastra Seema Bal (SSB) approached this Tribunal vide OA No.1816/2011 seeking a direction to the Respondents to grant them PB-2 grade pay of Rs.4800/- from 01.10.2006 with consequential benefits. The contention of the Respondents in the said OA was also that the SSB under the control of MHA from Cabinet Secretariat in 2001 and as such any specific recommendation of Pay Commission applicable to Cabinet Secretariat or any other department/Ministry cannot be automatically implemented in SSB. However, the OA was allowed and its operative part is as under:-
6. At the outset, we have carefully gone through the aforesaid order dated 13.8.2010 rendered by the coordinate Bench of this Tribunal in OA No. 3319/2009 (Annexure A-2). As many as 62 applicants had joined that OA. All of them were civil Section Officers and Private Secretaries in SSB (Sashastra Seema Bal, Secretarial service), who were aggrieved by similar orders dated 12.11.2009 and 18.9.2008 by means of which the relevant order was withdrawn granting them grade pay of Rs.4800 in Pay Band (PB) 2 and Rs.5400 in Pay Band (PB) 3 on completion of four years of service. In that case, the only submission, which was made on behalf of the respondents, was that the applicants were under the control of Ministry of Home Affairs and the officers in SSF and ARC were under the control of Cabinet Secretariat, therefore, the different scales of pay were justified. This argument was found to be totally unacceptable. It was, therefore, observed that services of the applicants have been placed under the Ministry of Home Affairs only for the functional reasons. They, however, continued to perform the same work which they were working earlier. This fact was not disputed in that OA. Finally, therefore, the OA was allowed for parity of reasons and respondents were directed to continue the applicants in the pay grade of Rs.4800/- in Pay Band (PB) 2 and Rs.5400/- in Pay Band (PB) 3 on completion of four years of service. This order of coordinate Bench has been also followed by this Tribunal in OA No. 1011/2011, J.S. Thakur & Ors. Vs. UOI & Ors.. This OA was filed by Field Officers working in SSB erstwhile Special Service Bureau, which has now been placed under the control of Ministry of Home Affairs. Considering all the aspects of the matter, this OA was also allowed directing the respondents to grant grade pay of Rs.4800 at par with the Field Officers of other organizations like RAW, ARC and SSF. Further a direction was given to grant parity to all the similarly situated Filed Officers of the organization.
7. In the OA in hand also, there is no quarrel on the point that the services of the applicants have been placed under the control of Ministry of Home Affairs only for the functional reasons, though the learned counsel for respondents wants to term it as administrative reasons. It is also not disputed that they are continuing to perform the same work which they were performing earlier. In the present case also, the only ground on which the claim of the applicants has been rejected is that it cannot be extended since SSB is a part of MHA and not Cabinet Secretariat. As mentioned hereinabove, this contention has already been found to be totally unacceptable by the coordinate Bench of this Tribunal in the aforesaid two cases. We do not find any reason to arrive at a different conclusion on this point, keeping in view the fact that the applicants of this case are also similarly situated persons. We cannot treat the similarly situated persons differently, lest it may amount to discrimination infringing the doctrine of equality before law as envisaged in Article 14 of the Constitution of India.
8. Finally, therefore, the OA is allowed for parity of reasons. The impugned order dated 21.1.2011 (Annexure A-1) is hereby quashed and set aside. Respondents are directed to grant the grade pay of Rs.4800/- in Pay Band (PB) 2 from 1.1.2006 with all consequential benefits to the applicants. Ours is a welfare State and we hope that the respondents being Modal Employers, would do the needful expeditiously say within a period of three months from the date of this order. No order as to costs.
9. They have further relied upon the judgment of the Honble High Court in W.P.C. No.7526/2010 Union of India and Others Vs. P.C. Chinhara and Others decided on 18.11.2010 and its relevant part is as under:-
1. Undisputed facts are that the cadre of secretarial staff under the Cabinet Secretary was trifurcated and two wings were retained under the Cabinet Secretary and one i.e. SSB transferred on as is where is basis under the Ministry of Home Affairs.
2. It is also not in dispute that permanent absorption under the Ministry of Home Affairs would mean a change of cadre for the officers deputed under the Ministry of Home Affairs in the form of SSB Unit assigned to the Ministry of Home Affairs and till date no option has been sought for from these persons.
3. It is settled law that an employee in a cadre cannot be permanently absorbed in another cadre without his consent. We hasten to add that it is permissible to merge cadre. But, where there is no merger of cadres it would be impermissible to hive of a cadre by sending some persons to a different cadre, without seeking their option.
4. The Tribunal has returned a finding of fact that the SSB Unit, which was an integral part of the Cabinet Secretary has been not merged with the Ministry of Home Affairs cadre but only administrative control has been given to the Ministry of Home Affairs.
5. Thus, on the first reasoning of the Tribunal that the respondents continued to be in the cadre strength of Cabinet Secretariat and would be entitled to be placed in the applicable pay band requires to be upheld.
10. The Respondents have filed their reply stating that the SFAs and AFOs of all categories/trades serving in SSB were in the pre-revised pay scales of Rs.3200-4900 and Rs.4000-6000 respectively. As per the recommendation of the 6th Central Pay Commission, the normal replacement pay structure of Grade Pay of Rs.2000/- and Rs.2400/- in the pay band of Rs.5200-20200 were granted to SFAs and AFOs of SSB. Further, according to them, as per the Recruitment Rules of SFAs(M) and AFOs(M) notified on 26.09.2011, their Grade Pay are Rs.2000/- and Rs.2400/- respectively. However, according to them, they have sent a proposal to the Anomaly Committee of Ministry of Home Affairs for upgradation of the pay scale of the Applicants and they have further referred the matter to the Ministry of Finance. The Ministry of Finance, Department of Expenditure informed vide their letter dated 11.11.2011 rejecting the claim of the Applicants on the ground that since there has been no specific recommendation in respect of the posts of FA, SFA and AFO, these posts are to be placed in the normal replacement Grade Pay as in Par A of CCS (RP) Rules, 2008. Therefore, the claims of the Applicants are not tenable. The Respondents have also stated that there is no discrimination in the matter of grant of pay scale to them due to the following reasons:-
1) SSB has been assigned a new role of guarding Indo-Nepal and Indo-Bhutan border w.e.f. 15.01.2001 on the basis of One Border One Force formula recommended by Group of Ministers under Ministry of Home Affairs for comprehensive Border Management and better accountability.
2) The 6th CPC came in force w.e.f. 01.01.2006 i.e. after shifting of administrative control of SSB from Cabinet Secretariat to MHA. Hence, claiming SSB is a part of Cabinet Secretariat is not tenable in the eye of law.
3) The recommendation of 6th CPC as made for R&AW cannot be extended to SSB automatically as SSB is no more a part of Cabinet Secretariat w.e.f. 15.01.2001. Hence, claiming as a part of Cabinet Secretariat at par for the benefit of higher grade pay is not justified.
4) Moreover, benefit of court cases based on the judgments of other court cases cannot be extended automatically as per clarification of DoP&T dated 24.09.1994.
11. As regards the applicability of the order of this Tribunal in OA No. 1011/2009 (supra) and OA No.1816/2011 (supra) is concerned, they have stated that the Court has allowed them to restore historical parity while the entire cadres were functioning under DG(S) with common and combined seniority. As regards those OAs filed by FOs and Circle Organizers are concerned, they have submitted that in view of Government policy conveyed by DOP&T, the benefits given to the Petitioners in a particular cannot be extended automatically to non-petitioners.
12. We have heard the learned counsel for the Applicants, Shri M.K. Bhardwaj and the learned counsel for the Respondents, Shri Ashish Nischal. In our considered view the respondents have failed to consider the claims of the Applicants in this OA in the right perspective. The undisputed fact that there has been historical parity for the purpose of pay scales in respect of the posts of SFA, AFO, DFO, FO etc. in SSB with their counter parts in other three organizations, namely, RAW, SFF and ARC. The said parity could not have been disturbed merely due to shifting the administrative control of SSB from Cabinet Secretariat to Ministry of Home Affairs This issue was considered by this Tribunal at least twice earlier in OA No. 1011/2011 (supra) and OA No.1816/2011 (supra). The Honble High Court of Delhi has also considered the same issue in W.P. (C) 7526/2010 (supra). It is not disputed that the SSB itself has taken up the disparity in the pay scales of their staff with their counter parts with the Anomaly Committee of the MHA. They have in turn taken up the matter with the Ministry of Finance (Department of Expenditure). The only objection of the Ministry of Finance is that there was specific recommendation by the 6th CPC with regard to the corresponding posts in the IB and no such recommendations are in respect of the posts in SSB. Therefore, the pay scale and grade pay recommended and accepted for the corresponding posts in IB cannot be extended to the officers in IB. The said aspect has been considered by this Tribunal in OA 1011/2011 (supra) FOs in SSB. This Tribunal clearly held that the Applicants therein were at par for all purposes, with the FOs of RAW, SFF and ARC. They were also getting the same pay scales as per the recommendations of the 3rd, 4th and 5th Pay Commissions. The disparity has arisen only after the implementation of the 6th CPC due to shift in the administrative control of all those organizations. But the undisputed fact that remains is that when the SSB was shifted to Ministry of Home Affairs w.e.f. 2001, others remained under the Cabinet Secretariat. While doing so the duties and responsibilities of the officers of the four organizations remained same. Therefore, the same reasons for granting the revised pay and grade pay to the organizations under the Cabinet Secretariat will apply to SSB now under the Ministry of Home Affairs. However, for strange reason, in the case of SFAs in the SSB they remained under the lesser pay scale of Rs.3200-4900 during the period of the 5th CPC though they were maintaining parity throughout till that period. By the 6th CPC also they were granted the same pay scale at par with others but lesser grade pay.
13. We are, therefore, of the considered view that the Respondents have acted in violation of Articles 14 and 16 of the Constitution of India in granting lesser grade pay to the SFA, AFO, FO etc. of SSB from SFA, AFO, FO etc. serving in ARC, RAW and SFF without justification. When there is no change in the nature of duties and responsibilities of the Applicants after shifting of administrative control of SSB from Cabinet Secretariat to Ministry of Home Affairs, the Respondents should have maintained the same grade pay to them also at par with the grade of the corresponding posts in all the organizations still under Cabinet Secretariat. The FOs under the SSB, as already stated, have already obtained an order for granting them the grade pay of Rs.4800/- at par with the FOs of ARC, SFF, RAW etc. with effect from 1.1.2006 vide order of this Tribunal in OA No. 1011/2011 (supra) and the Respondents have already implemented the order.
14. We in the above facts and circumstances of the case, allow this OA. Consequently, we quash and set aside the impugned order dated 29.11.2011. We further direct the respondents to grant higher Grade Pay of Rs.2400/- and Rs.2800/- to the Applicants SFAs(M) and AFOs(M) respectively with effect from 1.1.2006 with all consequential benefits including arrears of pay and allowances. We also direct that the aforesaid direction shall be complied within a period of 2 months from the date of receipt of a copy of this order.
15. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh