Central Administrative Tribunal - Allahabad
Khimanand & Ors vs Cabinet Secretariat on 3 April, 2024
(Reserved on 19.03.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Pronounced on 03rd day of _April _, 2024
Hon'ble Mr. Justice B K Shrivastava, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No.330/297/2015
1. Khimanand S/o Late Chandra Ballabh, aged about 46 years, R/o ARC
Campus Q.No. II/95 Sarsawa, Saharanpur and is presently posted as Junior Filed
Assistant Air Craft Assistant (JFA (ACA) under Deputy Chief Engineer, Aviation
Research Centre, Sarsawa, District - Saharanpur.
2. P.K.Sharma S/O Late Chander Deep Sharma, aged about 47 years, R/o
ARC Campus Q. no II/28 Sarsawa, Saharanpur and is presently posted as Junior
Filed Assistant Air Craft Assistant (JFA(ACA) under Deputy Chief Engineer,
Aviation Research Centre, Sarsawa, District - Saharanpur.
3. Yogesh Kumar S/O Late Raja Ram Badola aged about 48 years, R/O H.no.
3/1353 Bhagat Singh Colony, Saharanpur and is presently posted as Junior Filed
Assistant Air Craft Assistant (JFA(ACA) under Deputy Chief Engineer, Aviation
Research Centre, Sarsawa, District - Saharanpur.
. . .Applicants
By Advocate : Shri A D Singh
VERSUS
1. Union of India through its Special Secretary, Aviation Research Centre
H.Q. New Delhi.
2. Director General of Security (Cabinet Secretariat) East Block V R.K.
Puram New Delhi 110066.
3. Assistant Director (Pers-D), Aviation Research Centre, Director General
Security (Cabinet Secretariat) East Block V R.K. Puram New Delhi.
4. Chief Engineer, Aviation Research Centre, H.Q. New Delhi.
. . .Respondents
By Advocate : Shri Arvind Singh
ORDER
( By Hon'ble Dr. Sanjiv Kumar, Member(Administrative) This Original Application is filed under section 19 of the Central Administrative Tribunal Act, 1985 claiming relief to set aside the impugned order dated 19.09.2014 and to direct the respondents to review the cadre of promotional avenue of the applicants in the cadre of F(MT) Matric in the pay 2400/- as par with the cadre of FA (G) and FA(MT) non Matric and Matric and pay the differences of arrears with 18% interest per annum from the date of cadre review was made to the date of actual payment with all other consequential benefits and to grant any other relief found entitled and allow cost.
2. The case came up for final hearing on 19.03.2024. Shri A D Singh, Advocate for the applicants and Shri Arvind Singh, Advocate for the respondents were present and heard.
3. We have carefully gone through the entire records and considered the rival contentions.
4. The facts of the case of the applicants are that the applicants were appointed initially as Air Craft Assistant (ACA) matric in Group C by direct recruitment in the grade of Rs. 825 on 16.11.1987, 10.02.1988 and 11.07.1988. The grievance of the applicants are that they were matriculate and later on in cadre review some class-IV employees of the department were merged with their cadre of Air Craft Assistant (ACA), whereas they were appointed in Group C and merger of Group C & D was prejudicial to their promotional prospect. Further, grievances of the applicants are that some of the cadres were similarly placed like FA(G) and FA(MT) non matric and matric by cadre review were placed in the Grade of Rs. 2400/- with better promotional avenue which was discrimination against the applicants. And the applicants had been trying for their promotion for Page 2 of 14 quite long time and finally gave their representations on 25.07.2014 for review of their cadre and providing them promotional avenue, and the department vide their impugned order dated 19.09.2014 in stead of improving their promotional avenue have down graded their Group C cadre by merging Group D cadre with them and make one cadre of JFA(ACA); in stead of giving them status equal to FA(MT) matric in Rs. 2400/- Grade. Aggrieved by the said order they have approached this Tribunal seeking the relief and hence their OA should be allowed and they should be granted all the reliefs claimed.
5. On notice, the respondents have filed their counter wherein they say that the applicants in the year 1987-1988 were appointed as Aircraft Assistant in the then pay scale of Rs 825-15-900-EB-20-1200 (4th pay commission) and said post of Aircraft Assistant was carrying the pay scale of Class-IV as per the recruitment rules dated 06.03.1977 and they vehemently denied the claim of the applicants that they were appointed initially as Aircraft Assistant Matric in Group-C. As at that point of time, educational qualification for the post in question was middle school standard pass, although preferential qualification was matriculation which does not confer right to the applicants to claim service benefits at par with other cadres.
6. They further emphatically say that as per 5th CPC, the applicants have been given first Advanced Career Progression (ACP) in the pay scale of 3050-75- 3950-80-4590 w.e.f. 16.11.1999, 11.07.2020 and 10.02.2000 respectively and after implementation of the 6th CPC they have been given the benefit of Modified Advanced Career Progression Scheme (MACP) in the Grade Pay of Rs. 2000/- (5200- 20,200) in pay Band-1 w.e.f. 01.09.2008 and they emphatically say that this speaks by itself that the applicants have been compensated by way of ACP/MACP against their stagnation.
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7. They further say that appointment to the post of JTO-II is by direct recruitment, and departmental candidates, if any, have to be judged along with outside candidates. The said orders, relied by the applicant pertains to training of ACA and that after successful completion of training, the candidates may apply for Direct Recruitment for the post of JTO-II. There was never, and there is no provision for promotion to the post of JTO-II from ACA. And they emphatically say that the order dated 11.01.1988 is just an internal policy guidelines which is subject to change, and it does not provide any right or benefit to the ACAs. The respondents further vehemently say that the cadre FA(MT)/FA (Driver) and JFA(ACA) are separate cadres with different type of duties and responsibilities thus cannot be compared by the applicants for parity and hence, the respondents do not agree with the contention of the applicant as such. They further vehemently contend that the applicants' contention that their grade was downgraded is absolutely incorrect as the erstwhile Group-D employees have been abolished and categorized as Group-C and their duties are distinct from the duties and recruitment rules of FA(MT). Hence, Air Craft Assistant cannot be compared with FA(MT)/FA(G) as claimed by the applicants so the respondents are justified in disposing of the representation of the applicants. And similarity in the applicants' educational qualification they being matriculate and other matriculate cadres which are distinct and having distinct cadre rules, so the applicant's argument that they should get parity is erroneous and cannot be accepted. Hence, there is no merit in the claims of the applicants and accordingly this OA should be dismissed.
8. Rejoinder has been filed on behalf of the applicants where they again say that by birth the post of applicant was Group 'C' and not Group 'D' and it is revealed by means of memorandum dated 19.05.1971 and it was re-designated as Page 4 of 14 Air Craft Assistant by means of 31.05.1982. Hence, they say that contention of the respondents are untenable, and hence they must be granted the relief as claimed.
9. We have carefully considered the rival contention and the whole record placed before us. We find in para 11 of the rejoinder where they speak about paragraph 3 where they do not deny about them getting the benefit of ACP & MACP but they vehemently say that they were appointed in Group 'C' and not Group 'D'. And again para 7 of the rejoinder where the applicants had stated that both FA(MT)/ FA(Driver) and JFA(ACA) are separate cadres of different type of duties they cannot be compared with parity and hence, the respondents do not agree with the contention of the applicant as such. The applicants have mentioned following:-
"That the contents of paragraph No. 7, 8, 9 and 10 of the counter affidavit are wholly misconceived, incorrect, and misleading hence vehemently denied. In reply thereto it is submitted that the facts stated in paragraph No. 4.3, 4.4, 4.5 and 4.6 of the O.A. are absolutely correct and reiterated here again. Even though it is further submitted that the applicants are entitled at par with the similar benefits as the respondents has already been granted the benefits to the similarly situated employees as well as the person who has got the low pay initially. Simple reading of the above shows that the applicants have no evidence, ground or basis to counter, they should have given those details along with Comparative Cadre Rules, what is stated in para 7 of the counter, if they thought that there was any similarity between the duties and responsibilities and eligibility for selection and appointment and service condition for FA(MT)/FA(Driver) and JFA(ACA). Hence, we have no other alternative, but to conclude that FA(MT)/FA(Driver) Page 5 of 14 and JFA(ACA) are separate cadres with different duties as asserted by the respondents. Thus, the applicants cannot be compared with other cadres and applicants cannot claim parity with any such distinct cadres.
10. Further, reply to the rejoinder has been given and the respondents vehemently assert that in para 6 of the reply to the rejoinder that the memorandum dated 19.05.1971 relied in the rejoinder to substantiate that Air Craft Assistance is Group 'C' not Group 'D' is a document issued by Administrative Officer, ARC Charbatia; who was not Cadre Controlling Authority for the applicants. And he had no such authority to state equivalence or give clarification on any cadre or rules; and they assert that the applicants have not been able to show any primary rule issued by Ministry of Defence which shows their cadre as being a Group 'C' Cadre from the very beginning as they averred and promotional avenue of ACAs has been protected by the Cadre Review undertaken by the office of the Respondents in the year, 2010. The JFA(ACA) which is the designation of the present applicants are now kept in Group C and they are entitled for the promotion to the rank of FA as well as LDC as per the Recruitment rules. In terms of the Recruitment rules 2011 in vogue as on today, the applicants have been designated as Junior Field Assistants (ACA) for whom 10% of total vacancies in the grade of FA are reserved for promotion including those who are appointed as JFA with different categories, through limited Departmental Examination. Similarly, 10% vacancies in the grade of LDC are reserved for JFAs including JFAs (ACA) through limited departmental examination and 5% are reserved for promotion on seniority basis after 3 years of regular service in the grade of JFA/JFA(ACA). And so, we have to agree that the respondents have taken fair and transparent action in the matter without making any discrimination to anybody.
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11. Next, let us examine the relief clause of the applicant which reads following:-
i. Quash and set aside an impugned order dated 19.09.2014(shown as annexure no. A-1) to this OA in compilation no. I. ii. Direct the respondents to review the cadre of promotional avenue of the applicants in the cadre of F(MT) Matric in the pay 2400/- as par with the cadre of FA(G) and FA(MT) non Matric and Matric and pay the differences of arrears with 18% interest per annum from the date of cadre review was made to the date of actual payment with all other consequential benefits.
iii. Grant such other relief, as the applicants might be found entitled to, in the facts and circumstances of the case.
iv. Allow the Original Application with cost.
Simple reading of the relief clause shows that it intends to get quashed the impugned order dated 19.9.2014; and the main relief claimed is that respondents should review cadre of promotional avenue of the applicants in the cadre of F(MT) Matric in pay of Rs. 2400/- as compared with the Cadre of FA(G) and FA(MT) non Matric and Matric and pay the difference of arrears with 18% per annum from the date of cadre review was made to the date of actual payment with all other consequential benefits. Clearly, the relief claimed is a subject matter of policy not yet formed, and not a matter of right flowing out of any of the existing rules. The applicants want the Tribunal to become cadre reviewing authority and a policy making authority and decide on merger, upgradation and modification of cadres providing better promotional avenues to certain cadres, as desired by the applicants. Clearly those are the domains of the respondent and not this Tribunal Page 7 of 14
12. Although the Tribunal and courts have limited discretion to get into the shoes of cadre controlling and reviewing authorities who reviewed the nature of cadre and their inter-relationship based on their own Departmental requirements. This requires a very different set of specialized skills which can only is possessed by the respective Departments and which can be discharged by the Cadre Controlling Authority who have to finally take work from the individual cadres and they recruit and attract eligible candidates and keep them well-trained with having high morale to do the work efficiently and effectively by having proper promotional and other opportunities and simultaneously maintaining balance and homeostasis between various cadres. Hence, from the point of view that the relief claimed is a policy matter and not matter of right flowing out of existing cadre rules, we have no doubt that the cadre controlling authorities are thoroughly right and competent authority to review the cadre and not this Tribunal or court of law, who have to function within their own confines as provided by law. Hence, we have no doubt in our mind that the applicants' contention does not appear to be very convincing.
13. But for the purpose of discussion and further examination, if we try to understand the grievance of the applicants and their case, as to what would be the basic information required for such review of the Cadre of promotional avenues of the applicants. If one has to examine and embark upon such task then, even a lay person will come to the conclusion that at least following details are essential; , 'First, the applicants have to clearly show what cadre they were appointed and what are the service conditions for appointments including eligibility and service benefits and existing promotional avenues for that cadre. Then secondly, they have to further to show if they ask for any parity like the applicants are claiming with the cadre of FA(MT) Matric in Grade Pay of Rs. 2400/- as on par with cadre Page 8 of 14 of FA(G) and F(MT) Matric, the details of the said cadre with which such parity is claimed, so that those cadres can be compared in terms of how at the time of recruitment their eligibility condition was and what pay structures they had, and what promotional avenues, were available to them. But from the OA, it is clear that no such details have been filed. Hence, there are no basic set of the information made available before us to substantiate the case of the applicant about the similarity or dissimilarity with any other cadre which the applicants wanted to claim parity with. And, hence on this ground also the case of the applicant fails. Even in the rejoinder these details are not forthcoming and as stated by the respondents in their counter both FA(MT) and FA(Driver) and JFA(ACA) are separate cadres with different types of duties and responsibilities and service conditions, and thus, the two cadres cannot be compared. And the respondents do not agree with the contention of the applicants as such it appears to us also to be a reasonable opinion and hence we will have to agree with the respondents on this count. Hence, the applicants fail to make out any case for themselves to interfere with the decision of the respondents.
14. The applicants have further failed to show us any preliminary documents from the Ministry which shows about any of the cadre whether it was Group 'C' or Group 'D'. And when it is between the mere words of the applicants and the respondents. Respondents being the department we have to agree with them as we find that in terms of ACP and MACP the applicants have sufficiently been compensated for the stagnation. The applicants have been provided the benefit of upgradation and ACP/MACP is a policy solution provided to the applicants to resolve their grievances on stagnation and lack of career progression. Hence, the contention of the applicants, that they have no promotional avenue and they must Page 9 of 14 get a cadre review by this Tribunal's intervention is not convincing. Now, if we examine the impugned order dated 19.09.2024, it reads following:-
... "Subject: Review of promotional avenue in JFA(ACA) cadre Reference is made to your Memo dated 14.08.2014 and 21.08.2014 forwarding representations of Shri Khilmanand, JFA(ACA) and Shri P K Sharma, JFA(ACA) respectively on the above subject.
2. It is intimated that aforesaid representations were forwarded to the concerned Branch of ARC Hqrs. After going through the pros and Cons of the case the information received from the branch concerned with the approval of Competent Authority is appended below:-
"All the erstwhile Group-D posts have been abolished and are not treated as Multi tasking force and brought under group-C. There is no distinction per se between JFA(ACA) vis-a vis other JFAs and hence, there is a common seniority list for all the JFAs. Therefore, it is not possible to carve out a special scheme for better promotional avenues for the Aircraft Assistants within a common seniority list of JFAs".
Official concerned may be intimated accordingly.
Simple readings of the above clearly shows that after going through the pros and cons of the case of the applicants and information received from the Branch concerned with the approval of the competent authority their case were decided on merit and with due reasons, that all the erstwhile Group-D posts have been abolished and are now treated as Multi tasking force and brought under group-C. And that there was no distinction per se between JFA(ACA) vis-a vis other JFAs and hence, there was a common seniority list for all the JFAs. Therefore, they concluded that it was not possible to carve out a special scheme for better promotional avenues for the Aircraft Assistants within a common seniority list of Page 10 of 14 JFAs. The applicants' contention that they are matriculate and they have some similarity to others is very superficial similarity in service between various cadres. Whereas the differences between the cadres start from the eligibility conditions and the way a person is recruited and service conditions of that specific cadre and their respective promotional avenues which exist in that cadre. And once entering a particular cadre candidate has accepted the existing cadre rules which exist at the point of time of their entry, and hence they cannot come up later in their service with a case that they want their cadre to be restructured in the particular way they are desiring, suggesting or aspiring for.
15. Even if for a moment, if we accept that applicants cadre was in Group 'C' and some of the cadres of Group 'D' were merged with their cadre, at the time of cadre review whenever multiple cadres are merged; always some cadre will be a higher and another will be a lower one. It does not mean in such cases of merger that someone has been degraded by such merger based on the changed requirement of work and understanding and requirement of the department. The applicants have failed to show anything which the respondents have done is prejudicial to their interest. Hence, we do not find that the office memorandum dated 19.09.2024 is in any way either being non-speaking or perverse or non- judicious or non-reasonable. The applicants also further relied some orders dated 18.11.1987 then, 11.01.1988 and 11.02.1988 and 12.08.2005 and internal communication dated 25.07.2014. Scrutiny of these will show that these are not relevant documents which shed any light on the nature of the cadres and their work content and in any way supporting the case of the applicant that will convince us that they require review of their cadre particularly with respect to the promotional avenue for the applicant in the cadre of F(MT) in the pay scale of Rs 2400/- compared with the cadre of FA(G) and FA(MT) non matric and matric. Page 11 of 14 Hence, from the averments of either parties and the records we are not convinced that the applicant has made out any case that we should interfere with the impugned order.
16. Furthermore in a long catena of judgements the Hon'ble Apex Court has ruled that Tribunal and High Court shall not entertain and interfere with the policy making domain of the executive wing of the Government. A double Bench of the Hon'ble Apex Court on 14.12.2023 in Civil Appeal No. 14524 of 2015, Union of India and others vs. Air Commodore NK Sharma (2023 SCC OnLine SC 1673) held that a Tribunal subject to the High Court's jurisdiction under Article 226, cannot be permitted by law, to direct the framing of a policy by the Government. In the said case, one of the issues for consideration was following: " Whether the Tribunal could have issued a direction to the Government to frame a policy for filling up the post of JAG(Air)?" Inter alia other things, the Hon'ble Apex Court observed following:-
"48. It is in consideration of this statutory scheme that we must look for an answer to the question as to whether the Tribunal could have directed the formation of a policy, albeit in regard to a matter affecting the service of armed forces personnel, to adjudicate which, it otherwise possesses the jurisdiction?
49. Making policy, as is well recognized, is not in the domain of the Judiciary. The Tribunal is also a quasi-judicial body, functioning within the parameters set out in the governing legislation. Although, it cannot be questioned that disputes in respect of promotions and/or filling up of vacancies is within the jurisdiction of the Tribunal, it cannot direct those responsible for making policy, to make a policy in a particular manner.
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50. It has been observed time and again that a court cannot direct for a legislation or a policy to be made. Reference may be made to a recent judgment of this Court in Union of India v. K. Pushpavanam where while adjudicating a challenge to an Order passed by a High Court directing the State to decide the status of the Law Commission as a Statutory or Constitutional body and also to consider the introduction of a bill in respect of torts and State liability, observed as under:-
"..As far as the law of torts and liability thereunder of the State is concerned, the law regarding the liability of the State and individuals has been gradually evolved by Courts. Some aspects of it find place in statutes already in force. It is a debatable issue whether the law of torts and especially liabilities under the law of torts should be codified by a legislation. A writ court cannot direct the Government to consider introducing a particular bill before the House of Legislature within a time frame. Therefore, the first direction issued under the impugned judgment was unwarranted."
51. We may further refer to Union of India v. Ilmo Devi wherein the Court, while considering with the case concerning regularization/absorption of part-time sweepers at a post office in Chandigarh observed:-
"The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and 17 create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot Page 13 of 14 direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts."
52. The above being the settled position of law, it only stands to reason that a Tribunal functioning within the strict boundaries of the governing legislation, would not have the power to direct the formation of a policy. After all, a court in Writ jurisdiction is often faced with situations that allegedly fly in the face of fundamental rights, and yet, has not been entrusted with the power to direct such formation of policy."
17. Considering all the above we are clear in our mind that no case is made out by the applicants to grant any relief and hence, we pass following orders:-
The present OA is dismissed. All associated MAs stand disposed of accordingly. No costs.
(Dr. Sanjiv Kumar) (Justice B K Shrivastava)
Member-A Member-J
/Priyadarshana/
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