Central Administrative Tribunal - Delhi
Sh. Madan Mohan vs Union Of India Through on 21 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 365/2007 With OA 485/2007 NEW DELHI THIS THE 21st DAY OF OCTOBER, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) OA 365/2007 1. Sh. Madan Mohan Employees Code No. A206464 G-430, Sarojini Nagar, New Delhi-110023. 2. Sh. R.S. Rathore, Employees Code No. A066295 S-78, Sunder Block, Shakar Pur, Delhi-1092. 3. Sh. Jawahar Singh, Employee Code No. A065933 Sector-IV-17G, Gole Market, DIZ Area New Delhi-110001. 4. Sh. Devender Kumar Employee Code No. A065805 219, Hari Nagar, Ashram, New Delhi. 5. Sh. Shashi Bhushan Employee Code No. A066617 I-908, Sarojini Nagar, New Delhi-110023. 6. Sh. Sohan Singh Rawat, Employee Code No. A066662 C4C/384, Janak Puri, New Delhi-110058. 7. Sh. D.S. Rautela Employee Code No. A065780 Sector-IX, House No. 610, New Delhi-110022. 8. Sh. Vivek Tyagi Employee Code No. A066815 GI-885, Sarojni Nagar, New Delhi-110023. 9. Sh. Mukesh Kumar Employee Code No. A066055 House No. 3631, Ram Nagar Extn., Shahdra, Delhi-110092. 10. Smt. Neeru Jain Employee Code No. A066141 G1-768, Sarojni Nagar, New Delhi-110023. 11. Smt. Bimla Rani Employee Code No. A065678 62/4, Kavita Colony, Kirari Road, Nagloi, Delhi-110041. 12. Smt. Neelam Taneja Employee Code No. A066154 G-275, Nanak Pura, New Delhi-110021. 13. Smt. Usha Rana Employee Code No. A066761 F-74/2, Andrews Ganj, New Delhi-110049. 14. Smt. Tripta Soni Employee Code No. A066729 68A, Pocket-A, Mayur Vihar, Phase-II, New Delhi-110091. 15. Smt. Parvinder Gulati Employee Code No. A066170 2A/56, Ramesh Nagar, New Delhi-110015 16. Smt. Naishrity Mathur Employee Code No. A22078 J-2, Palika Niketan, Sector-X, R.K. Puram, New Delhi-110022. 17. Sh. Sunil Dawar Employee Code No. A0666646 A-205, Kidwa Nagar (East), New Delhi-110023. 18. Smt. Darshan Nandwani Employee Code No. A065863 2/77, Subhash Nagar, New Delhi-110027. 19. Sh. Mahesh Chand Sharma Employee Code No. A066068 C-II/40, Sector-5, Rohini, Delhi-110085. 20. Smt. Hemlata Radhwani, Employee Code No. A065889 C-I, F-21, Lodi Colony, New Delhi-110003. 21. Smt. Promila Bhatti Employee Code No. A066211 Plot No. 10, Dewat Colony, Khera Dewat Road, Gurgaon (Haryana) 22. Smt. Kamlesh Kandpal Employee Code No. A065988 Sector-I, House No. 17, R.K. Puram, New Delhi-110022. 23. Sh. Rajender Kumar Employee Code No. A206451 A-31, Raj Nagar-II, Palam Colony, New Delhi-110045. 24. Sh. N.C. Kaushik Employee Code No. A066138 178/4, Gali No.2, Padam Nagar, Kishan Ganj, Delhi-110007. 25. Sh. Harinder Singh Bisht Employee Code No. A206505 I-305, Sarojni Nagar, New Delhi-110023. Applicants. (By Advocate Shri Pramod Kumar Sharma) VERSUS Union of India through 1. The Secretary, Department of Expenditure Ministry of Finance, North Block, New Delhi. 2. Secretary, Ministry of Defence, New Delhi. 3. J S (Trg.) and CAO, Ministry of Defence, E Block, Hutments, New Delhi-110011. Respondents. (By Advocate Shri B.K. Berera) OA 485/2007 1. Shri P.S. Jain, Son of late Shri P.D. Jain, 25/100, Street No. 14, Vishwas Nagar, Shahdra, Delhi-110032. 2. Smt. Mithlesh Bhardwaj Wife of Shri V.D. Bhardwaj 16/40, Old Rajender Nagar, New Delhi-110060. 3. Smt. Chander Kanta Saini Wife of J.M. Saini, A-28, Brij Vihar (Pitam Pura), Delhi-110034. 4. Smt. V.P. Chadha Wife of Shri R.C. Chadha, A-28, Brij Vihar (Pitam Pura), Delhi-110034. Applicants. (By Advocate Shri Pramod Kumar Sharma) VERSUS Union of India through 1. Secretary, Department of Expenditure Ministry of Finance, North Block, New Delhi. 2. Secretary, Ministry of Defence, New Delhi. 3. J S (Trg.) and CAO, Ministry of Defence, E Block, Hutments, New Delhi-110011. Respondents. (By Advocate Shri B.K. Berera) ORDER
Mr. G. George Paracken:
Both these Original Applications are similar and, therefore, they are disposed of by this common order. The Applicants in both these OAs are seeking a direction to the Respondents to re-fix their pay in the new EDP pay scale of Data Processing Grade A (Rs.1600-2660) w.e.f. 01.01.1986 or from the date of their promotion/appointment to the post of Data Entry Operator grade B (Senior Computer) with all consequential benefits as has been done in the cases of Petitioners/Applicants in the following cases:-
Civil Writ Petition No.1212/1999 Union of India & Ors. vs. B.N. Sharma & Ors. decided on 10.01.2002 OA 553/2003 B.K. Sharma & Ors. Vs. UOI & Ors., decided on 18.12.2003 OA 2587/2005 Shyama Kaul & Ors. Vs. UOI, decided on 24.11.2006.OA No.365/2007
2. The facts about the applicants in this case are that they have been initially appointed as Computer and later on promoted as Senior Computer in the scale of Rs.1200-2040. The post of Computer was later on re-designated as Data Entry Operator (DEO, for short) Grade A in the scale of Rs.1150-1500 and the post of Senior Computer was re-designated as DEO Grade B in the scale of Rs.1350-2200 vide respondents office order dated 08.01.1991. Subsequently, the post of Computer has again been re-designated as DEO Grade B in the scale of Rs.1350-2200 and the post of Senior Computer as Data Entry Processing Assistant (DEPA, for short) Grade A in the scale of Rs.1600-2600 vide respondents office order dated 06.12.1994. However, when the applicants were promoted as DEO Grade B, they were given only the scale of pay of Rs.1350-2200 against the existing vacancies, vide Annexure A-4 order dated 15.01.1997. They were denied the promotional post of Data Processing Assistant Grade A in the scale of Rs.1600-2660 on the basis of their qualification.
OA No. 485/20073. The Applicants in this case were initially appointed as Jr. Computer and Machine Operators in the scale of pay of Rs.950-1500. Thereafter, they have been promoted as Senior computer in the scale of Rs.1200-2040. Some of the applicants in this OA have approached this Tribunal earlier vide OA 2725/2004 Smt. Mithilesh Bhardwaj Vs. UOI & Anr.. All of them were DPAs and they have assailed the show cause notice issued to them proposing to withdraw some benefits extended to them earlier. The said OA was disposed of vide this Tribunals order dated 21.7.2006 and its relevant part is as under:-
10. In our considered view, the ratio in B.N. Sharmas case (supra) as well as in R.K. Sharmas case (supra) wherein on re-designation in 1994 when the qualifications have been laid down and the qualifications have not been transformed in form of statutory rules, insistence of the qualifications upon the applicants in the matter of grant of revised pay scale as per designated posts, would not be in consonance with law. The ratio in B.N. Sharmas case (supra) and in R.K. Sharmas case (supra), which has not at all been followed once attained finality in the erstwhile cadre of Programme and Technical Assistants, as a principle, would mutatis mutandis apply to the DEO cadre as well. Moreover, the applicants, who had later on earned promotion of regular DPC, cannot be brought down to a lower pay scale, which would amount to alternation of their service conditions to their disadvantage.
11. We also find that applicants have filed a detailed reply to the show cause notice, yet while disposing of the same and refixing the pay of the applicants to a reduced pay scale, no reasons have been assigned. Moreover, we find that the Tribunal in OA-1218/2002 has nowhere directed or accorded the respondents a liberty to issue show cause notice and to reduce their pay in any manner, rather the consequential benefits had been accorded. As an administrative authority when acting on quasi-judicial side in response to the show cause notice, it was incumbent upon them to have applied their mind and reasons in support of consideration should have been assigned in the order. As the order passed is non-speaking, the same cannot stand scrutiny of law being non-transparent, depriving the applicants a reasonable opportunity.
12. In the result, for the foregoing reasons, OA is partly allowed. Impugned show cause notice and orders are set aside. Matter is remanded back to the respondents for reconsideration in the light of our observations made above and also in the light of the decision of Tribunal in R.K. Sharmas case (supra), which has attained finality as well as the decision in B.N. Sharmas case (supra), which has been upheld by the High Court. The reconsideration would be reflected, keeping in light our observations, in a reasoned and speaking order to be issued within a period of three months from the date of receipt of a copy of this order. In the interregnum, we direct respondents not to effect the recovery from the applicants. No costs.
4. In pursuance to the aforesaid order of this Tribunal, the Respondent has issued the impugned Annexure A-1 letter dated 13.11.2006 in OA No.485/2007. The operative part of the said letter reads as under:-
Whereas the ratio of the judgment dated 10 Jan 2002 in CWP 1212/99 and judgment dated 18 Dec 2003 in OA 553/2003 was not required to be applied to the applicants in OA 1218/2002 RK Pareeks case (except the applicants in OA 2725/2004) as they had already been granted the same benefit by virtue of their being found eligible for the same as per Govt. letter dated 06 Dec 94. The applicants in BN Sharma case and RK Sharma case were found not eligible for placement in the higher grade as per rationalization letter and so the they approached the Tribunal/Court and obtained judgment in their favour. However the ratio of judgment in BN Sharma case was not applied to the applicants in present OA 2725/2004 as the same was not sought by the applicants.
Whereas the Government of India has not issued any general order to extend the benefit of the judgment to the non-applicants on the ground of the similarly situated persons, the ratio of the judgment in BN Sharma Case and RK Sharma case cannot be extended to the applicants in OA 1218/2008 (which includes the applicants in OA 2725/2004).
Now, therefore taking the above facts into consideration, the Competent Authority has decided not to extend the benefit of the judgment in RK Sharmas and BN Sharmas case in the implementation of judgment in OA 1218/2002 in respect of the following applicants (applicants in present case):
(a) Smt. Mithilesh Bhardwaj
(b) Smt. Dharshan Bhalla
(c) Smt. VP Chadha
(d) Smt. Chander Kanta Saini
(e) Smt. Avinash Rishi
(f) Sri PS Jain This order is being issued in compliance with the directions of the Honble Central Administrative Tribunal (PB) dated 21 Jul 2006 given in OA 2725/2004.
5. The contention of the applicants in these OAs is that they being similarly situated persons, respondents are bound to treat them similarly and no discrimination can be made. Further, they have submitted that the judgment of the Honble High Court in B.N. Sharmas case (supra) is equally applicable in their case as well, as the said judgment has been relied upon by this Tribunal in its order in R.K. Sharmas case (supra) and Shyam Kauls case (supra) and and it is applicable to all the similarly placed applicants and once the respondents have followed and applied the ratio of the said judgment to all the DEO Grade `B and DPA Grade `A without insisting upon the qualification criteria as envisaged in the Govt. of India Office Memorandum i.e. all the pre-1994 cases regardless of the fact whether the persons belonging to the said DEO Grade `B (Senior Computer) has approached the Tribunal or not, the respondents were expected to grant the benefits arising out of the said judgment to all similarly placed persons.
6. The learned counsel for the applicants has also relied upon the following judgments of the Apex Court, High Court and the Tribunal in support of his argument:
(a) Amrit Lal Vs. Collector, CEC (Revenue) (AIR 1975 SC 538);
(b) K.I. Shephard Vs. Union of India (AIR 1988 SC 686);
(c) Nripendra Ch. Dey Vs. Union of India (1990 (13) ATC 344);
(d) Ordinance Clothing Factory Workers Union Vs. Secretary, Ministry of Defence (ATR 1990 (I) CAT-22);
(e) R. Sundera Raman Vs. Union of India (ATR 1990 (I) CAT 136);
(f) Inder Pal Yadav Vs. Union of India (1985 (2) SLJ 58);
(g) V.P. Rojya Sahkari Bhoomi Vikas Bank Ltd. Vs. Its Workman (AIR 1990 SC 495);
(h) P. Savita and Ors. Vs. Union of India (AIR 1989 (5) SCC 1125);
(j) Mihir Mukhar Biswas & Ors. Vs. Union of India (ATJ 2002 (1) 512);
7. The learned counsel for the applicant has submitted that the law laid down by he Apex Court and as followed by the High Court/Tribunal in all the above judgments is that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law in his favour, others in like circumstances, should be able to rely on sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration. (See. Amrit Lals case (supra).
8. The learned counsel has also relied upon the recommendation of the 5th Pay Commission as accepted by the Government to the following effect:
We recommend that decisions taken in one special case either by the judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the court of law for an identical remedy or relief. We clarify that the decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee.
9. The respondents have filed their replies in these OAs. Vide their impugned letter dated 13.11.2006, they have informed the applicants in OA 485/2007 that the revised pay scales were given only to implement the earlier order of this Tribunal in OA 1218/2004 (supra) and, therefore, re-fixation of new EDP pay scales was restricted to the applicants therein only and no general order for revised pay scales has been issued by the Govt. of India. Therefore, the ACP is granted as per the existing pay scales available to various grades and their request cannot be acceded to. The posts of Computer in the pay scale of Rs.950-1500 and Senior Computer in the pay scale of Rs.1200-2040 were redesignated as DEO `A in the pay scale of Rs.1150-1500 and DEO `B in the pay scale of Rs.1350-2200, respectively. Thereafter, the restructuring of EDP cadre of ADG IT was done vide Govt. letter dated 06.12.1994 and pursuant to the said letter, those who were serving in the grade of Computers (Rs.950-1500) were placed as DEO `B (Rs.1350-2200), subject to meeting eligibility criteria or is to be placed as DEO `A in the pay scale of Rs.1150-1500. Similarly, those who were serving in the grade of Senior Computers (Rs. 1200-2040) were to be placed as DPA `A (Rs.1600-2660) subject to meeting eligibility criteria or is to be placed as DEO `B in the pay scale of Rs.1350-2200. They have further submitted that some of the employees challenged the aforesaid order dated 06.12.1994 regarding the necessity of additional educational qualifications for higher pay scale before this Tribunal and the applicants received favourable judgments granting them revised scale of pay without pre-condition w.e.f. 01.01.1986 or from the date of promotion to the said posts with all consequential benefits. Therefore, all the applicants who were serving in the grade of Computers (Rs.950-1500) and Senior Computers (Rs.1240-2040) were placed as DEO `B (Rs.1350-2200) & DPA `A (Rs.1600-2660), respectively w.e.f. 01.01.1986 or from the date of their promotion or holding the said posts with all consequential benefits. Accordingly, since all the applicants holding the posts of Computer between 01.01.1986 and 06.12.1994 have been placed in the grade of DEO `B (Rs.1350-2200) w.e.f. 01.01.1986 or the date of their appointment in the grade of Computer, whichever is later, without insisting of fulfillment of pre-condition. However, those who were not holding the posts of Senior Computer (Rs.1200-2040) as on 06.12.1994 were not eligible for placement in the grade of DPA `A (Rs.1600-2660) according to the aforesaid order dated 06.12.1994.
10. The Respondents vide their letter dated 30.11.2006 had informed the Applicants in OA 365/2007 also in similar lines. The relevant part of it reads as under:
The applicants may be intimated that the revised pay scales were given to implement the judgment of Honble Tribunal. Re-fixation of new EDP pay scales was restricted to the applicants only. No general order for revised pay scales has been issued by GOI. ACP is granted as per pay scales available to various grades. Hence the request of the applicants cannot be acced to.
11. We have heard the learned counsel for the applicants Shri Pramod Kumar Sharma and the learned counsel for the respondents Shri B.K. Berera and Mrs. Meenu Mainee in the aforesaid O.As.
12. The undisputed facts in chronology are that the 4th Pay Commission, in Paragraph 11.45 of its report recommended that the Department of Electronics (DOE, for short) should examine and suggest the re-organization of existing EDP posts and prescribe uniform pay scales and designations. Pursuant to the said recommendation, the DOE revised the pay structures for the EDP posts and prescribed uniform pay scales and designations vide OM dated 11.09.1989 and later on, w.e.f. 01.01.1986. Based on the said recommendations, the respondents, vide their letter dated 08.01.1991 introduced the revised pay scales for the various EDP posts in AFHQ and ISOs but vide their Annexure A-8 letter dated 06.12.1994. They have decided to divide the existing category of Computer in the scale of Rs.950-1500 into three grads, namely, DEO Grades B,C and A in the scales of pay of Rs.1150-1500, Rs.1350-2200 and Rs.1400-2300 respectively based on educational qualifications and length of service. Similarly, the existing category of Senior Computers in the scale of Rs.1200-2040 were re-designated as DPA Grade A and DPA Grade B in the scales of Rs.1350-2200 and Rs.1600-2660 and respectively. As a result of the aforesaid re-designation of the posts, some anomalies have occurred and some juniors have got regularized earlier and some seniors have been left out because they did not fulfil the eligibility criteria prescribed in the Recruitment Rules notified in the year 1995. They have approached this Tribunal vide OA 2691/1996 and OA 2516/1996 and by order dated 30.05.1997 (Annexure A-9). This Tribunal directed the respondents to reconsider their case without insisting for the eligibility criteria prescribed in the Recruitment Rules. Thereafter, the respondents, vide their order dated 10.01.1997, gave the benefit of the pay scale of Rs.2375-3500 attached in the grade of Programmer to some of the juniors who were Programme Assistants/Statistical Investigators redesignated as DPA Group `B. The aforesaid order was challenged before this Tribunal in OA 725/97 and it was disposed of with a direction to the respondents to review or reconsider the question of giving the same benefits to the applicants therein as was given to their juniors. Pursuant to the aforesaid direction, the respondents passed another order dated 24.07.1997 whereby the benefit of the pay scale of Rs.2375-3500 was given only to 4 of the Programme Assistants who possessed the Masters Degree and fulfilled the requisite condition of experience. Again, some of the affected persons have challenged the aforesaid action in OA 1741/1997 B.N.Sharma Vs. UOI & Ors. (supra) and vide order dated 13.10.1998 (Annexure A-10), this Tribunal, quashed and set aside the respondents said order dated 10.01.1997 and directed them to grant the revised scale of Programmer, namely, Rs.2375-3500 to all the applicants. The aforesaid order of this Tribunal was challenged by the respondents in the Honble High Court of Delhi vide WP (C) No. 1212 of 1999 - Uniion of India & Ors. Vs. B.N. Sharma & Ors. on the ground that the posts of Programmers being promotional posts and vacancies being specified in terms of the Govt. of India order, all the Programme Assistants could not be put in the Programmers grade. However, the High Court, vide its judgment dated 10.01.2002 (Annexure A-11), held that creation of a specific re-designated category became irrelevant once all the incumbents of the pre-revised designations are entitled to the revised designations and pay scales irrespective of their qualifications. The respondents have finally accepted the aforesaid order of this Tribunal as well as the judgment of the High Court and by their order dated 09.05.2002, DPAs `B (erstwhile Statistical Investigators and Programme Assistants) who were in service as on 06.12.1994 were placed in the grade of Programmer in the pre-revised pay scale of Rs.2375-3500. Later, this Tribunal allowed OA 553/2003- R.K. Sharma & Ors. Vs. Union of India & the connected case of OA 550/2003 vide its common order dated 18.12.2003, in terms of the judgment of the High Court in B.N. Sharmas case (supra). Subsequently, vide the respondents order dated 30.04.2004 (Annexure A-13), the applicants in OA 553/2003 (supra) have also been placed in the grade of DPA `B in the pay scale of Rs.2000-3200 w.e.f. 01.01.1986 or with effect from the respective dates of their appointment, whichever is later.
13. Again, another batch of applicants filed OA 2587/2005 Smt. Shyama Kaul Vs. Union of India & Ors. seeking a direction to the respondents to re-fix their pay in the new EDP pay scales of D.E.O. Grade `B (Rs.350-2200), D.P.A. Grade `A (Rs.1600-2660) and Grade `B (Rs.2000-3200) w.e.f. 1.1.1986 or from their respective dates of promotion to those grades, whichever is later, with all consequential monetary/pensionary benefits in terms of the judgment in B.N. Sharma cases (supra). The Tribunal allowed the said OA vide order dated 19.05.2006 and its operative part is as under:
6. We have carefully considered the rival contentions of the parties and perused the material available on record.
7. From the various arguments advanced by the learned counsel for the applicants and the respondents, we have culled out the following issues which need to be addressed in order to arrive at an informed decision:
i) Whether giving retrospective effect to the order of the respondents letter No. A/26031/EDP/CAO/CP dated 6.12.1994 is sustainable?
ii) Whether the relief sought by he applicants is barred by limitation?
iii) Whether the applicants are entitled to receive the benefits of the revised pay scales w.e.f. 1.1.1986?
8. The first issue relating to giving retrospective effect of the order dated 6.12.1994, has been addressed in the order of this Tribunal in B.N. Sharma & Ors. vs. Union of India & Ors., OA NO. 1741/1997 dated 13.10.1998, as follows:
Revision of cadre structure posts and new educational qualifications have necessarily to be incorporated as part of recruitment rules which, as and when incorporated in the amended recruitment rules, could only have prospective application and would apply only to the future recruits/promotees to those posts.
9. In the order of this Tribunal in OA No. 725/1997 dated 23.04.1997 in a similar case it has been categorically stated that 1994 Rules cannot be applied retrospectively. The Honble High Court of Delhi in CWP No. 1212/1999 in its judgment dated 10.01.2002 has further clarified this point as follows:
It is basic principle that a separate cadre on the basis of educational qualification or seniority could be made only by a statute or statutory rules. The cadre of investigator and programme assistant would not have been bifurcated by reason of aforementioned letter dated 6.12.1994. It is not even an executive instruction within the meaning of Article 77...In the said fact of the matter we agree with the submission of the counsel for the Respondent to the effect that having regard to the changed situation, the post of programmer should not be considered to be creation of a fresh post but the same may be taken to be re-designation of the existing posts.
10. As regards the issue of limitation, we would first like to address the matter pertaining to applicability of earlier decisions of this Tribunal and of Honble High Court(supra) in respect of similarly placed individuals to the applicants in the present Original Application. The applicants have stated that the respondents vide their letter No. A/97046/CAO/P2 dated 24.06.2005 (Annexure A-9) have rejected the representations of certain other employees who sought extension of benefit of orders & judgment mentioned above simply on the ground that the Ministry of Finance (Department of Expenditure) had categorically directed to restrict the benefit of the court judgment to the applicants only. Respondents too have stated that they are unable to provide the relief as Government of India has not issued any general order for extending the benefit to the non-applicants. In this context, the applicants have cited a catena of cases, e.g., Amrit Lal vs. Collector CEC (Revenue), AIR 1975 (SC) 538 et al (supra) to establish that relief granted to a particular group is equally applicable to all others, who are similarly placed. Apex Court in K.C. Sharma & Ors. vs. Union of India & Os., 1998 (1) (SC)AISLJ-54, has ruled that similar benefits cannot be denied to the identically situated persons.
11. Coming to the issue of limitation, the case of the respondents is that the applicants had not agitated the case during the past several years and even did not join in the prolonged litigation during the period. The applicants have drawn our attention to the decision of this Tribunal in OA No. 553/2003 dated 18.12.2003 (supra) as well as Apex Courts decision in K.C. Sharma & Ors. vs. Union of India & Ors., 1998 (1)(SC)AISLJ-54. In both these citations, it has been clearly established that the applications filed by similarly placed persons should not be rejected on the ground of limitation. The plea of limitation, therefore, cannot be taken by the respondents.
12. The final issue relates to the entitlement of applicants to the revised pay scales w.e.f. 1.1.1986. Respondents, on the one hand, have stated that Fourth Central Pay Commission had not recommended for grant of revised E.D.P. scales w.e.f. 1.1.1986. However, on the other hand, they have submitted that as per order in OA Nos. 553/2003, OA No. 1741/1997 and C.W.P. No. 1212/1999 dated 10.01.2002(supra), the applicants in those OAs/Writ Petition were given the benefit w.e.f. 1.1.1986 or from the dates of their appointment to the said posts, as the case may be. The applicants have drawn our attention to the order of this Tribunal in OA No. 804/2004 (supra) wherein the respondents were directed to grant revised pay scales to the similarly placed applicants w.e.f. 1.1.1986 or with effect from the date of their appointment, whichever is later, with all consequential benefits. It was further ordered that in case of pensioners, the pension is to be re-fixed and they would be entitled to all consequential benefits.
13. After careful consideration, we arrive at the inevitable conclusion that the applicants are entitled to re-fixation of pay in terms of the revised E.D.P. pay scales of D.E.O. Grade `B (Rs. 1350-2200), D.P.A. Grade `A (Rs. 1600-2660) and D.P.A. Grade `B (Rs. 2000-3200), as the case may be, w.e.f. 1.1.1986 or with effect from the date of their appointment, whichever is later, with all consequential benefits. Their pension would also need to be accordingly re-fixed and they would be entitled to all consequential benefits.
14. In the result, with the above observations, the present Original Application is allowed with the direction to the respondents to re-fix the pay of the applicants in the revised pay scales w.e.f. 1.1.1986 or with effect from the date of their appointment, whichever is later, and also accordingly re-fix their pension and pay them the difference of arrears with consequential benefits, within a period of four months from the date of receipt of a copy of this order. There shall be no order as to costs.
14. The only reason given by the respondents for not extending the judgment of the Honble High Court of Delhi dated 10.01.2002 in B.N. Sharmas case (supra) and the judgments of this Tribunal R.K. Sharmas case (supra) and Shyama Kauls case (supra) is that the Govt. of India has not issued any general order to extend the benefit of judgment to the non-applicants even though they are similarly situated persons. The aforesaid stand of the respondents is against the settled position of law as laid down by the Apex Court in Amrit Lals case etc. (supra). The applicants belong to EDP cadres in the respondent department. Similarly placed employees of the very same department have approached this Tribunal as well as the High Court and obtained orders in their favour alone. It is an anomalous situation that the applicants in the same cadre are in the lower pay scale and others who have approached this Tribunal earlier are in the higher pay scale. Therefore, it is not possible to accept the stand of the respondents that only persons who have approached the legal forum are to be extended the higher pay scales and not to their counterparts who are working along with them who have not chosen to approach the legal forum. We, therefore, reject the contention of the respondents.
15. However, this Tribunal has considered similar issue in OA-1778/2006 M.R.Satyamurthy Vs. Union of India & Ors., 2230/2006 Kishan Lal & Ors. Vs. Union of India & Ors. etc. and dismissed it on the ground on limitation. The applicants therein have challenged the aforesaid Orders before the Honble High Court of Delhi in Writ Petition (Civil) No. 5777/2007 - Kishan Lal & Ors. Vs. Union of India & Ors. and connected cases. The High Court, vide judgment dated 11.12.2009, allowed writ petitions partly with direction to this Tribunal to reconsider the cases to grant the petitioners notional refixation of pay from the appropriate dates and actual re-fixation of pay/pension along with arrears from the period beginning an year before the filing of the Original Applications by each of the writ petitioners. The relevant part of the said judgment is as under:-
28. We find no error in the aforesaid analysis of the Tribunal and we accept the same. Higher grades of pay could not have been claimed with retrospective effect from 01.01.1986 in cases involving creation/re-designation of the posts and the fitment of the incumbents on those posts, as the same required a conscious governmental decision.
29. We find that the Tribunal while dismissing the aforesaid applications of the writ petitioners/applicants has not gone into the issue as to whether their claims for grant of the revised pay scales w.e.f. 01.01.1986 was based merely on the basis of refixation/evision of pay scales, or on the basis of re-designation of posts i.e. creation of posts; upgradation of pay scales, and; assessment of their respective cases for grant of the higher/revised grades/pay scales and designations. The grnt of the notional relief, if any, to the individual writ petitioner would depend on the examination of the aforesaid issue in respect of each of the writ petitioners.
30. While examining the cases of the petitioners for grant of the new EDP pay-scales w.e.f. 01.01.1986 and not 11.09.1989, the decision of the Supreme Court in The Secretary, Madras Civil Audit & Accounts Association and Anr. Etc. (supra) would have to be kept in mind and the revised pay-scales cannot be claimed by those who are placed in the higher grades/redesignated posts as a result of their fitment in those posts on account of their higher experiences and educational qualifications and on the basis of their assessment on merit.
31. Consequently we partly allow these petitioners and remand these cases back to the Tribunal to examine each of the cases in the light of our aforesaid observations and in the light of the decision of the Supreme Court in the The Secretary, Madras Civil Audit & Accounts Association and Anr. Etc. (supra), and if the writ petitioners/applicants are found so entitled, to grant them notional re-fixation of pay from the appropriate dates and actual re-fixation of pay/pension along with arrears from the period beginning one year before the filing of the original applications by each of the writ petitioners.
32. With the aforesaid directions we dispose off these writ petitioners leaving the parties to bear their respective costs.
16. After re-consideration of one of such cases, namely, in OA-1077/2006 Cheral Narayana Shastry Vs. Secretary, Ministry of Expenditure etc., this Tribunal vide order dated 24.9.2010 allowed refixation of the EDP pay scale with effect from 1.1.1986 notionally and actual benefits with effect from an year before filing the OA. The relevant part of the said order is as under:
This OA, which was allowed by the Tribunal vide order dated 15.05.2007 with a direction to the respondents to re-fix the new EDP pay scales of Rs.2000-3200 in respect of applicant from 1.1.1986 with all consequential benefits, including arrears, has been remanded back by the High Court of Delhi in Writ Petition (Civil) No.3258/2008, in which order a reference to a batch of cases decided in Writ Petition (Civil) No.5789/2007 - Shri M.R. Satyarthy v. Union of India & Ors., decided on 11.12.2009, has been relied upon. This issue as to entitlement of EDP pay scale w.e.f. 1.1.1986 was set at rest while observing that as per the decision in Union of India and others v. Secretary, Madras Civil Audit and Accounts Association and Anr. etc., 1992 (1) SLR 667 this has to be kept in mind that the revised pay scale cannot be claimed by those who are placed in the higher grades/re-designated posts as a result of their fitment in those posts on account of their higher experiences and educational qualifications and on the basis of their assessment on merit. Accordingly, it has been held in M.R. Satyarthys case (supra) that if the writ petitioners therein are found so entitled, to grant them notional re-fixation of pay from the appropriate dates and actual re-fixation of pay/pension along with arrears from the period beginning one year before the filing of the original applications by each of the writ petitioners.
2. Applying the aforesaid test to the present case, where the respondents had taken a defence that the educational qualifications and seniority had formed basis for placement in DPA B but nowhere it is indicated that the applicant has been placed in the higher post/grade/re-designated post as a result of the fitment on account of higher experiences and educational qualifications.
3. In the light of the above, following the decisions in M.R. Satyarthys case (supra), OA is partly allowed. Impugned order is set aside. Respondents are directed to accord benefit of re-fixation to applicant in the EDP pay scale of Rs.2000-3200 w.e.f. 1.1.1986 on notional basis and consequential benefits would be given effect from 10.05.2005, i.e., a year before filing of the OA, within a period of three months from the date of receipt of a copy of this order. No costs.
17. Later on the respondents vide the letter No.11002/CNS/JCB/94/CC/D(R&D) dated 28.7.2011 implemented the aforesaid order placing the applicant therein, who was DPA A, in the grade of DPA B in the scale of pay of Rs.2000-3200 with effect from 1.1.1986 on notional basis and consequential benefits from 10.5.2005.
16. In view of the above position, these OAs are partly allowed. Impugned Order No. A/22887/Ex-Cadre/CAO/P-2 dated 30.11.2006 in OA 365/2007 and Order No. A/43010/OA2725/2004/CAO/P-2 dated 13.11.2006 in OA 485/2007 are quashed and set aside. The respondents are directed to accord the benefit of refixation to the applicants both in OA-365/2007 and OA-420/2007 in the EDP pay scale of Rs.1600-2660 w.e.f. 1.1.1986 on notional basis. However, the applicant in OA-365/2007 will be entitled for actual consequential benefits w.e.f. 21.2.2008 i.e. one year before filing of the said OA. In the case of the applicants in OA 485/2007, except for Smt. Mithlesh Bhardwaj, Smt. Darshan Bhalla, Smt. V.P.Chadha, Smt. Chander Kanta Saini, Smt. Avinash Rishi and Sh. P.S.Jain, they will be entitled for similar benefits w.e.f. 13.3.2008. Since those 6 persons have earlier filed OA No.2725/2004 on 5.11.2004, they will get the actual benefits from 5.11.2003. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( G. George Paracken ) Member (A) Member (J) SRD