Central Administrative Tribunal - Delhi
Mahesh Kumar vs M/O Home Affairs on 13 December, 2023
1 O.A. No. 4208/2017 Item No. 36 (C-3) CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.4208/2017 This the 13th Day of December, 2023 Hon'ble Mr. Tarun Shridhar, Member (A) Hon'ble Mr. Manish Garg, Member (J)
1. Mahesh Kumar Group-C S/o Sh. P.O. Sharma Aged about 48 years R/o A-611, Saroiini Nagar, New Delhi 2 Sandeep Kumar Group-C Aged about 47 years S/o Late Sh. Ramji Dass R/o V. &P.O. Bhuna Dist. Fatehabad (Haryana)
3. KA. Elumalai Group-C S/o Sh. Annamalai Aged about 48 years R/o 234, Block-A, SaroJini Nagar, New Delhi
4. Sankar Kalita Group-C S/o Sh, Upen Kalita Aged- about 43 years R/o C/o Sh. Bijit Kr. Deka, V.&P.O. Napam, Distt. Sonitpur (Assam)-784028
5. Kunal Raj Vishnoi Group-C S/o Late Sh. R.B.S. Vishnoi Aged about 45 years R/o G-1/61, Mandir Marg, Mahavir Enclave, Palam, New Delhi-110045 2 O.A. No. 4208/2017 Item No. 36 (C-3)
6. Ram Singh Group-C S/o Sh. Mangal Ram Aged about 53 years R/o Village--Chalchi, P.O.Biargi, Tehsil Balh, Distt. Mandi (H.P.)
7. Devandra Singh Mehta S/o Late Sh. Amar Singh Mehta Group-C R/o Naini Viihar, Manpur West, Rampur Aged about 45 years Road, Haldwani, Distt. Nainital (UK)
8. Joginder Singh Jaspal Group-C S/o Late Sh. Samer Singh Aged. About 46 years R/o 8-1, 411, Type-3, Multi Story Building. Dev Nagar, Karol Bagh, New Delhi-110055
9. Dharambir Singh Group-C S/o Sh. Beg Singh Dalal Aged about 54 years R/o H.No. 2179, Sector 2-3(Part), Rohtak (Haryana) Pin-124001
10. Rambir Singh Group-C S/o Late Sh, Hukum Singh Aged about 49 R/o C/o Jugal Gandhi, Plot No.-13, Ramkishan Colony; Kalakunwa, Alwar (Rajasthan) Pin code. -301001
11. Shashi Kant Group-C S/o Sh. Urned Singh Aged about 49 years 3 O.A. No. 4208/2017 Item No. 36 (C-3) R/o V.P.0. Jakhoudha, Teh. P.O. Sahadurgurh Distt. Jhajar (Haryana) Pin-124507
12. Mahanth Vishwakarma Group-C S/o Late Sh. Ram Darash Aged- about 52 years R/o 501,T Gayetri Nagar, Near Radar Project Road, Durga Mandir. P.0. Kunraghat, Gorakhpur (U.P)
13. Anoop Chandra Group-C S/o Sh. Mohan Chandra Aged about 49 years R/o Purani Ct).anamari, Beurakham Kathgodam, Distt. Nainital (UK) Pin Code-263126 ....Applicants (By Advocate : Mr. Sudarshan Rajan with Mr. Ramesh Rawat) VERSUS
1. Union of India & Ors.
Through Secretary Ministry of Home Affairs New Delhi
2. The Director General Sashastra Seema Bal, R. K. Puram, New Delhi
3. The Director/Director General Intelligence Bureau Ministry of Home Affairs North Block New Delhi - 110001 .... Respondents (By Advocate : Mr. Ranjan Tyagi) 4 O.A. No. 4208/2017 Item No. 36 (C-3) Order(Oral) By Hon'ble Mr. Tarun Shridhar, Member(A) The applicants herein are Laboratory Technicians in the Intelligence Bureau under the Ministry of Home Affairs. Their grievance as outlined in the present OA is denial of Grade Pay of Rs. 4200/- in terms of the recommendations of the Seventh Central Pay Commission (CPC). They had agitated this grievance before the Director General of Sashastra Seema Bal, which was their parent organisation before their en bloc transfer to Intelligence Bureau. However, it was rejected vide order dated 28.07.2017 on the ground that cadre review which was a pre-condition for grant of the said Grade Pay, has been conducted only of the four central government hospitals and higher Grade Pay of Rs. 4200/- granted to the staff therein. The claim for parity with staff of central government hospitals was, therefore, rejected.
2. The applicants ventilate their grievance in the present OA seeking the following reliefs :
"(i) Quash and set aside the impugned order dated 28.07.2017 whereby the representation of the applicant no. 2 was rejected for grant of Grade pay of Rs. 4200/-
(ii) Quash and set aside the impugned order dated 18.10.2017 whereby the respondents conducted the cadre review in S.S.B. 5 O.A. No. 4208/2017 Item No. 36 (C-3) for Laboratory staff which was not in terms of recommendations of 7 C.P.C.
(iii) Direct the respondents to hold a cadre review for the post of Laboratory Technician/Staff in the S.S.B. in terms of the recommendations of the 7hC.P.C. and amend the recruitment rules by implementing the recommendation of the 7" C.P.C.
(iv) Consequently, direct the respondents to re-designate the post of Laboratory Technicians as Medical Lab Technologist and fix their Grade pay in Pay Band Il Rs. 9300-34800/- with Grade Pay of Rs 4,200/- in the S.S.B. as available in respect of all the Lab Technician (re- designated as Medical Lab Technologist) in the other Central Government Organizations and in other terms implement the provisions of office memorandum dated 17.07.2015 as done in other hospitals, and grant all consequential benefits to the applicants including promotions, arrears of pay and allowances, etc. upon such re-designation from the dates that the counterparts of the applicants have been given such benefits
(v) Direct the respondents to award the cost of the litigation to the Applicants;
(vi) The Hon'ble Tribunal may pass any other suitable order or orders as the Tribunal may deem fit to meet the ends of justice."
3. While briefly narrating the history and background of the case, learned counsel for the respondents has argued that the Seventh Central Pay Commission had made a categorical recommendation that the Grade Pay of Lab Technician should be revised from the existing Rs. 2800/- to Rs. 4200/- and further directed that other administrative ministries may take appropriate steps for aligning the laboratory staff under their respective 6 O.A. No. 4208/2017 Item No. 36 (C-3) jurisdictions on the lines of this recommendation. While making this recommendation, the Central Pay Commission had noted that cadre review of the Laboratory Staff had been undertaken by the Ministry of Health and Family Welfare and it had since been finalised with the concurrence of Ministry of Finance. Subsequent to this cadre review, the post of Lab Technician, after the merger of Level - 2 and 3 was re-designated as Medical Laboratory Technologist in Pay Band-II, in the Grade Pay of Rs. 4200/- .
4. Learned counsel points out that denial of the similar benefit to the present applicants, who too are Laboratory Technicians in another organisation under the Union of India, amounts to discriminatory treatment.
5. He further draws attention to a letter dated 18.10.2017, issued by the Ministry of Home Affairs to the Director General of Sashastra Seema Bal which bears the subject "Cadre Review of Non-Combatised Cadres of Sashastra Seema Bal". He points out that this letter clearly spells out that cadre review has taken place of various categories of non-combatised cadres and one of the cadres mentioned in the said letter is Laboratory Technician, Pay Band - I, Grade Pay Rs. 2800/-. He 7 O.A. No. 4208/2017 Item No. 36 (C-3) explains that this establishes close similarity of the present applicants with the staff of the Ministry of Health and Family Welfare who have already been extended the benefit of Rs. 4200/- after cadre review gets satisfied. Hence, to maintain parity, similar grade pay needs to be awarded to the applicants, be argues.
6. Learned counsel for the respondents vehemently contests the averments made in the OA as also the arguments put forth by the learned counsel. He specifically draws attention to paras 1, 2 and 4 of the "facts of the case" as outlined in the counter reply. The said paras read as under :
1.Shri Mahesh Kumar and 12others Laboratory Technicians of SSB has filed the instant OA for grant of higher grade pay of RS.
4200/- and cadre review of their cadre as per Ministry of Health & Family Welfare Office Memorandum F. No.A-28020/11/2008- PMS (Part-I) dated 17.07.2015. As per said OM dated 17.07.2015, cadre review has been made for the Laboratory Technicians/Medical Laboratory Staff working under the said Ministry i.e. Safdarjung Hospital & VMMC, Dr. RML Hospital LHMC & SSK Hospital and Kalawati Saran Children Hospital only.
2. In this context, it is submitted that the administrative control of SSB Was shifted from Cabinet Secretäriat to Ministry of Home Affairs (MHA) in the year 2001 and assigned the role of Border Guarding Force. After shifting of administrative Control of SSB, the non-combatised/civilian cadres have been declared as "Dying Cadre". The applicants are holding the post/cadre of 8 O.A. No. 4208/2017 Item No. 36 (C-3) Laboratory Technician and belong to non-combatised /civil cadre. As per instructions of MHA, no recruitment will be made in the Force against any civilian post (s) in any cadre. The civilian cadres wil1 be phased out in due course of time as and when the present incumbents vacate such posts and vacancies in these cadres will be filled in by the combatised personnel at the initial recruitment level. This decision has been Conveyed by MHA Vide their letter No, II-27012/80/02-PF. III dated 26.03.2013.
3. ***********
4. It is important to mention here that, the promotional post of Laboratory Technician is Deputy Field Officer (Medic) in the pay matrix Level-6 (Pre-revised PB-2 RS. 9300-34800+ Grade Pay of RS. 4200/-). The post of Deputy Field Officer (Medic) was the last promotional avenue of Lab. Technician. However, as per cadre review dated 18.10.2017, 30 numbers of additional promotional post of Field officer (Medic) (Pay Matrix Level-8, Pre- revised scale PB-2 (9300-34800/- with GP 0f Rs. 4800/-) has been created for further promotion of the applicants to avoid stagnation of the applicants.
7. He emphasises that cadre review has been initiated only with respect to the Ministry of Health and Family Welfare and further points out that the documents being relied upon by the learned counsel for the applicants also makes a mention of the Ministry of Health and Family Welfare only. He would go on to argue that once a particular cadre has been declared as a dying cadre, there could be no cause for further indulgence in terms of granting a higher Grade Pay or any promotional avenue. He draws attention to a document placed as Annexure R-11 9 O.A. No. 4208/2017 Item No. 36 (C-3) which is a letter dated 26.03.2023 wherein the Ministry of Home Affairs has informed the DG, SSB that all civilian cadres in the said force have been declared as a dying cadre and would be phased out in due course. Accordingly, he argues that the claim of the applicants for a higher Grade Pay is misplaced.
8. He also draws attention to the specific averments made to this effect vide para 5 of the counter reply which reads as under :
"5. It is further submitted that, review of any cadre depends on operational requirements/needs of the Department/Organization and not on the basis of any recommendations. Therefore, being "dying cadre" the claim of the applicants for cadre review for their cadre only according to recommendation of 7n CPC and at par with Ministry of Health & Family Welfare & OM dated 17.07.2015 is not justified."
9. He draws support from a judgment of the co-ordinate bench of this Tribunal in OA No 3362/2015 in which the claim of the similarly placed applicants was rejected and the OA was dismissed observing that there is a limit to the judicial power for review of administrative actions and the courts cannot sit as an appellate authority in the matters which are purely within the domain of the executive. The said judgment had further clarified that interference of the court would be warranted only if there is a contravention of 10 O.A. No. 4208/2017 Item No. 36 (C-3) the statutory provisions of the rules or a policy is in conflict with the rules. In the instant case, the decision to grant a particular scale of pay or Grade Pay, falls squarely within the domain of the executive and the court should not be interfering in the same, he concludes.
10. We have heard the learned counsel for the parties at great length and also gone through the documents on record.
11. At the outset, we would concede that our jurisdiction with respect to determining a particular scale of pay or Grade Pay is extremely limited. We cannot appropriate the role and authority to determine this issue which is p urely in the domain of the executive. Scale of pay of government employees is determined on the basis of the recommendations of the Central Pay Commission subject to this acceptance by the appropriate ministry in the Govt. of India, which in the instant case is Ministry of Finance through Department of Expenditure. No doubt, there is a recommendation of the Seventh Central Pay Commission for grant of Grade Pay of Rs. 4200/- to Laboratory Technicians and subsequent recommendation of re- designating the post as Medical Laboratory Technicians, however, this recommendation is in the context of Ministry 11 O.A. No. 4208/2017 Item No. 36 (C-3) of Health and Family Welfare. At the same time, the CPC had also made a recommendation for an appropriate cadre review as a pre-condition to grant of the higher Grade Pay of Rs. 4200/- and duly recorded that the cadre review with respect to the laboratory staff of Ministry of Health and Family Welfare has since been finalised. In addition, the CPC had recommended that other administrative ministries should also take appropriate steps on the same analogy. Admittedly, such steps have not been taken by the respondents in the instant case.
12. While we have noted the submissions made in the counter reply and as argued by Mr. Tyagi, learned counsel for the respondents, that cadre review referred to by the CPC was only with respect to Ministry of Health and Family Welfare, we cannot ignore the document placed at Annexure A-2 dated 18.10.2017 which we have already referred to in one of the preceding paragraphs of this order.
13. For the sake of clarity, we reiterate that the said document clearly states that cadre review of non- combatised cadres has taken place which has resulted in creation and abolition of posts, and one of the cadres mentioned in the said letter, is Laboratory Technician. This cadre review is with respect to the Laboratory Technicians, 12 O.A. No. 4208/2017 Item No. 36 (C-3) resulted in fixing the strength of this cadre in the SSB at 14 instead of 23, after abolition of 9 posts. Subsequently, all of them were, en bloc, transferred to Intelligence Bureau. Therefore, the logical corollary should have been for the respondents to determine the claim of the applicants against this background i.e. recommendation of the CPC, specifically the recommendation with respect to maintaining the analogy with the Ministry of Health and Family Welfare and also the fact that cadre review has taken place. Now, the respondents are repeatedly stating that since Laboratory Technician has been declared as a dying cadre, revision of Grade Pay would not be permissible.
14. We are unable to understand this logic and reasoning. The order in the OA relied upon by the learned counsel for the respondents, which has been quoted above, is with respect to creating a channel of promotion and we do appreciate that in case of a dying cadre, little purpose would be served in creating channel of promotion. But the issue here is Grade Pay which has been duly recommended by the CPC and extended to similarly placed employees of Union of India in other ministries. Denial of the same to the present applicants, if they are identically placed, points 13 O.A. No. 4208/2017 Item No. 36 (C-3) towards discriminatory treatment. Further, the argument of dying cadre falls flat in the face of the fact that the applicants have been transferred from Sashastra Seema Bal to the Intelligence bureau and there is no averment made that even in the IB, it is a dying cadre.
15. Our attention is also drawn towards a recent decision rendered by the Hon'ble Supreme Court in Civil Appeal No. 1663/2016 titled Union of India vs. D.G.O.F. Employees Association and Anr, para 10 of which reads as under :
10. A cumulative perusal of the opinion expressed by this Court would indicate that though the Courts would not undertake the exercise of determining the pay scale keeping in view the nature of the work by comparing employees who are not similarly placed in cases where the exercise of determining such complex issues would arise, at the same time, relief cannot be denied to the employees when the entitlement is denied due to irrational consideration without application of mind to the facts involved in the case by the employer, thereby denying the benefits to the employees. If this aspect of the matter is kept in view, a perusal of the consideration made by the High Court as seen from the portion reproduced above from the judgment of the High Court, it would disclose that the High Court has not undertaken the exercise regarding which restraint has been expressed by this Court. However, on the admitted facts and the earlier situation which existed, a consideration has been made keeping in view the very recommendation of the Pay Commission in reckoning the appropriate application of the pay scale. In that regard, all that has been adverted to by the High Court is as to whether the employees who are the members of the respondent and are employed in the headquarters are similarly placed as that of the 14 O.A. No. 4208/2017 Item No. 36 (C-3) employees of CSS/CSSS and in that regard has considered the matter further to ensure that the members of the respondent are not discriminated upon.
16. We find that the applicant has sought several reliefs, some of them may be in contradiction to each other or may with the passage of time, have become infructuous.
17. In view of what has been detailed and discussed above, we quash and set aside the order/OM dated 28.07.2017 bearing No. 1/149/CR(NC)/SSB/Per- V/2016(CF-3352813)/Pers-II and direct the competent authority amongst the respondents to reconsider the claim of the applicants for grant of Grade Pay of Rs. 4200/- as per the recommendations of the Sixth Central Pay Commission keeping in view not only the recommendations of the CPC but also the facts and circumstances of the present case as have been enumerated and argued above. Such a review shall be undertaken within a period of 12 weeks from the date of receipt of a certified copy of this order and pursuant to this review, an appropriate decision be taken and communicated to the applicants by way of a reasoned communication. Depending upon the decision so taken, if any consequential benefits are to accrue in favour of the applicants, the same too shall be extended in their favour in accordance with the rules. 15 O.A. No. 4208/2017 Item No. 36 (C-3)
18. The OA stands allowed against the background of the aforesaid directions.
There shall be no orders as to costs.
(Manish Garg) (Tarun Shridhar)
Member (J) Member (A)
/NISHA/