Central Administrative Tribunal - Kolkata
Anil Kumar vs Education on 8 June, 2022
roe ts 1 OA 1279/2021 O - CENTRAL ADMINISTRATIVE TRIBUNAL : KOLKATA BENCH, KOLKATA a 0.A/351/01279/2021 Date of Order: 49-06 -Ap22 M.A./351/00400/2021 . Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member Inthe matter of : 1. Shri Anil Kumar, son of Late D. Rajappan, aged about 53 years, residing at Dairy Farm- 744103 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, Ferrargunj, South Andaman under the _ Directorate of Education, Andaman & Nicobar Administration, Port Blair. 2. Shri S. Jai Prakash, son of Late S. Selva -- | Raj, aged. about 53 years, residing at Prothrapur-744103 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, Goel Tekry, Nancowry under the _ Directorate of Education, Andaman & Nicobar ~ Administration, Port Blair. 3. Smt. Bright, daughter of Late George, aged about 52 years, residing at Chakkar Goan-744112 and working to the post of © Laboratory Assistant at Government Model Senior Secondary School, Goel Tekry, Nancowry, under the Directorate of -- Mt 20 OA 1279/2021 Education, Andaman & Nicobar Administration, Port Blair. 4. Shri Paul Job, son of Late Job, aged about 55 years, residing at Chakkar Goan-744112 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, School Line, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 5. Shri R. Paradesam, son of Late R. Ramulu, aged about 52 years, residing at Fisheries Colony, Haddo744102 and working to the post of Laboratory Assistant at DDE (Sci.) Siksha Sadan, Port Blair under the Directorate of Education, Andaman. & Nicobar Administration, Port Blair. 6. Shri Dinesh Kumar Bairagi, son of Shri Deben Bairagi, aged about 45 years, residing at Chakkar Goan-744112 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, Wimberlygunj, South Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 7. Shri K. Ramar, son of Shri K. Katturajan, aged about 45 years, residing at VIP Road, Junglighat-744103 and working to the post of Laboratory Assistant at Government - oa 7" 3 OA 1279/2021 Model Senior Secondary School, Mohanpura, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 8. Shri Chandan Mishra, son of Shri Lal Chandra Mishra, aged about 37 years, residing at Wimberlygunj- 744206 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, Wimberlygunj, South Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 9. Smt. Sipra Singh, daughter of Shri R.C. Singh, aged about 36 years, residing at Dhudline-744106 and working to the post of Laboratory Assistant at Government - Model Senior Secondary School, Haddo, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 10. Shri R. Satish Kumar, son of Shri V. Raju, aged about 44 years, residing at Rampur, Rangat-744205 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, Sabri, Middle Andaman under the _ Directorate' of . Education, Andaman & Nicobar Administration, Port Blair. bk 4 OA 1279/2021 11. Shri Arun Kumar Mishra, son of Late K. B. Mishra, aged about 57 years, residing at _ Manglutan, South Andaman-744105 and working to the post of Laboratory Assistant at Government Senior Secondary School, Delanipur, Port Blair under the Directorate of Education, Andaman & _ Nicobar Administration, Port Blair. 12. Shri Govind Prasad Jha, son of Late T. P. © Jha, aged about 50 years, residing at Shadipur, Port Blair, South Andaman- 744106 and working to the post of Laboratory Assistant at Government Senior Secondary School, South Point, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 12(a) Shri Abdul Jabbar, son of Late Abdul Kasim, aged about 56 years, residing at Shadipur, Port Blair, South Andaman- 744106 and working to the post of Laboratory Assistant at Government Secondary School, Mohanpura, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 13. Shri Mihir Kirtania, son of Late Mahendra Nath Kirtania, aged about 46 years, residing at Sabari Junction, Rangat, Middle Andaman-744205 and working to the post of Laboratory Assistant at _-- 5 OA 1279/2021 Government Model Senior Secondary School, Sabari Jn., Middle Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 14. Smt. Raja Lakshmi, daughter of Shri T. Tygarajan, aged about 41 years, residing at Haddo, Port Blair-744102 and working to the post of Laboratory Assistant at Government Senior Secondary School, Bambooflat, South Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 15. Miss. Dipika, daughter of Shri Ramesh Lall, aged about 29 years, residing at Bambooflat, South Andaman-744103 and working to the post of Laboratory Assistant - at Government Secondary School, Junglighat, Port Blair, South Andaman -- under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 16. Shri Kaushik Kumar Mazumdar, son of Late Rameswar Mazumdar, aged about 35 years, residing at Ramkrishnapur, Little Andaman-744207 and working to the post of Laboratory Assistant at Government Model Senior Secondary School, Hut Bay, Little Andaman under the Directorate of © Education, Andaman & Nicobar Administration, Port Blair. hot " «6 OA 1279/2021 17. Smt. M. Fathima Bibi, daughter of Shri M. Abdul Majeed, aged about 36 years, residing at Delanipur, Port Blair-744102 and working to the post of Laboratory Assistant at Government Senior Secondary School, Manpur, | South Andaman under the Directorate of Education, Andaman & 7 Nicobar Administration, Port Blair. 18. Shri A. Jogeshwar Rao, son of Shri A. Devaraj, aged about 32 years, residing at Sisty Nagar, Port Blair-744101 and working to the post of Laboratory Assistant at Government Senior Secondary School, Wimberlygunj, South Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 19. Smt. Seema Pandey, daughter of Late Suresh Mishra, aged about 35 years, residing at Furrergunj, South Andaman- 744206 and working to the post of Laboratory Assistant at Government RBV, Port Blair, South Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 20. Smt. T. Jayalata, daughter of Shri T. Bhima Rao, aged about 30 years, residing at Haddo, Port Blair-744103 and working to the post of Laboratory Assistant at. Government Senior Secondary School, Port Mout, South Andaman under the har a 7 OA 1279/2021 Directorate of Education, Andaman & Nicobar Administration, Port Blair. 21. Shri B. Shiva Shanker Rao, son of Shri B. Shyam Sunder Rao, aged about 38 years, residing at Haddo-744102 and working to the post of Laboratory Assistant at Government Senior Secondary School, Ramkrishnapur, Little Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 22. Smt. Saritha, daughter of Shri R. Sahadevan, aged about 36 years, residing at Shadipur, Port Blair-744106 and working to the post of Laboratory Assistant at Government Boys' Senior Secondary School, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 22(a). Shri Arumugam, son of Shri Ponnuswamy Velar, aged about 55 years, residing at Haddo-744102 and working to | the post of Laboratory Assistant at Government Model Secondary School, Aberdeen Bazar, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 23. Smt. Sneha Sekhar, daughter of Shri. Guna Sekhar, aged about 29 years, residing | at Bathubasthi, Port Blair-744105 and working to the post of Laboratory Assistant - laf a 8 OA 1279/2021 at Government Senior Secondary School, Garacharma, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 24. Shri R. Vinod Mohan, son of Late K. V. Rajendran, aged about 35 years, residing at Lambaline, Port Blair-744103 and working to the post of Laboratory Assistant at Government Senior Secondary School, _Ramkrishnapur, Little Andaman under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. 25. Smt. Fathima Bibi, daughter of Shri C. Mohammed Ali, aged about 36 years, residing at Calicut, Port Blair-744105 and ' working to the post of Laboratory Assistant at Government Senior Secondary School, Wimberlygunj, South Andaman under the Directorate of Education, Andaman | & - Nicobar Administration, Port Blair. 26. Shri Abdul Rahman, son of Late K. Mohammed, aged about 40 years, residing at Naayapuram, Wimberlygunj-744206 and working to the post of Laboratory Assistant . at Government Senior Secondary School, Mohanpura, Port Blair under the Directorate of Education, Andaman & Nicobar Administration, Port Blair. see seesenees Applicants _-- , é s 9 OA 1279/2021 -Versus- 1. Union of India service through the Secretary, Government of India, Ministry of Human Resource Development, Shastri Bhawan, New Delhi-110001. 2. The Lieutenant Governor, Andaman & Nicobar Islands, Raj Niwas, Port Blair- 744101. 3. The Andaman & Nicobar Administration service through the Chief Secretary, Andaman & Nicobar Administration, Secretariat Complex, Port Blair-744101. 4. The Secretary (Education), Andaman & Nicobar Administration, Secretariat, Port Blair-744101. 5. The Director of Education, Andaman & Nicobar Administration, VIP Road, Port Blair-744103. 6. The Deputy Director of Education (Personnel), Andaman & Nicobar Administration, VIP Road, Port Blair- 744103. sessaces Respondents a 10 OA 1279/2021 For The Applicant(s): Mr. P. C. Das, Counsel Ms. T. Maity, Counsel For The Respondent(s): Mr. R. Halder, Counsel ORDER
Per: Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member Aggrieved at not having received the revised pay scale as per recommendations of 4°*, 5", 6 cpc and 7' CPC, the applicants, who are all -- Laboratory Assistants, have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, to seek the following common relief :-
"a) leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as the applicants have a common grievance and they are aggrieved for not enhancement of their revised pay of scale as per 4" cpc, 5"
cpc, 6 cPC and 7" CPC vis-a-vis to the Laboratory Attendant;
b) To quash and/or set aside the impugned speaking order being No. 1300 dated 23.07.2021 issued by the Deputy Director of Education (Personnel) without approval of the Directorate of Education, Andaman and Nicobar Administration who is not a competent authority to take decision of revised of pay scale for - the applicants and who is not considered the fact that despite the applicants are holding the highest post of Lab. Assistants whose who are deprived in respect of not revised their pay scale by the appropriate authority although the incumbents who are holding the post of Lab. Attendants which is a feeder post of the Lab. Assistant, their pay scale has been revised as per recommendations of 4", 5" and 6" CPC by discriminating the present applicants who are holding the post of Lab. Assistants in the same department which violates the recommendation of the 7" CPC and which the respondents authority concerned did not clarify in their impugned speaking order dated 23.07.2021 and rejected the claim of the applicants which is not sustainable in the eye of law being Annexure A-18 of this original application;
c) To pass an appropriate order directing upon the respondents to revise the pay scale in respect of the applicants to the post of Laboratory Assistant in 5" Central Pay Commission in the pay of scale of Rs. 4500-7000/- with effect from 01.01.1996 and under 6 Central Pay Commission in the pay of scale of Rs. 5200-~ 20200/- with grade pay of Rs. 2800/- with effect from Mh 11 * OA 1279/2021 01.01.2006 along with all consequential benefits because all the revised pay benefit was granted in favour of Laboratory Attendant those who are holding the feeder post of Laboratory Assistants. Such treatment has to be made in respect of Laboratory Assistants those who are holding the post of Laboratory Attendant and their pay has been revised in terms of the above pay of scale and the effective date also mentioned to comply with the Article 14 and 16 of the Constitution of India and also complied with the Recruitment Rules published by the Andaman and Nicobar Administration from time to time in respect of post of Laboratory Assistant;
d) To declare that the applicants those who are holding the post of Laboratory Assistants are entitled to get the revised pay scale in 5" Central Pay Commission in the pay of scale of Rs. 4500- ' 7000/- with effect from 01.01.1996 and under 6" Central Pay Commission in the pay of scale of Rs. 5200-20200/- with Grade Pay of Rs. 2800/- with effect from 01.01.2006 and to revise their pay of scale also in 7" Central Pay Commission in Level-5 with Grade Pay of Rs. 2800/- with effect from 01.01.2006 along with all consequential benefits; ,
e) Costs;
f} Any further relief or reliefs as your Honour may deem fit and proper."
2. Heard both Learned Counsel. Examined pleadings and documents on record. No rejoinder has been preferred to rebut the contentions contained in the reply dated 28.09.2021 by the respondents.
3. An M.A. bearing no. 351/00400/2021 has been filed by applicants praying for liberty to jointly pursue such original application.
On being satisfied that the applicants share a common grievance and are pursuing a common cause of action, such liberty is granted under Rule 4(5)(a) of CAT (Procedure) Rules, 1987 subject to payment of individual court fees, M.A. 351/00400/2021 is accordingly disposed of.
4. Learned Counsel for the applicants would submit that, the applicants are working as Laboratory Assistants in various schools of the respondent administration.
we 12 OA 1279/2021 C) That, pursuant to a communication between the Union of India and the Union Territories (annexed at Annexure-A/2 to the OA), Recruitment Rules were notified in the context of Laboratory Attendants (annexed at Annexure-A/3 to the OA).
That, thereafter on 12.01.2004, this Tribunal had disposed of OA 73/AN/2003 (Palaniappan & Ors. vs. Education (A&N) (annexed at Annexure-A/4 to the OA) directing as follows :-
PER POC ORE TEU OAT NOD OEE PE RANE DESSLE RAD RED NADER OED OROOSOCEEERELESSS 4, During the course of hearing Ld. Counsel for the applicant submits that the applicants shall be fully satisfied if the OA is disposed of at this stage directing the respondent authorities, more particularly respondent no. 4 & 5 to consider the representations made by the applicants, filed along with this OA as Annexure 'G' series, keeping in view the office memorandum dated 14.07.72 (Annexure 'C') and treating this OA as a part thereof by __ passing a reasoned and speaking order within a stipulated period.
5. However, Mr. Bahadur, Ld. Counsel for the official respondents has no serious objection to the above submission made by the Ld. Counsel for the applicants. But Mr. Bahadur submits that in case the OA is disposed of with the above direction, then there should not be any observation on the merits of the case.
6. Considering the above submissions made by the Ld. Counsel for both the parties, the official respondents, more particularly the respondents no. 4 & 5 are directed to consider the representations of the applicants under Annexure 'G' series to this OA treating this OA as a p art thereof and keeping in view the office memorandum dated 14.07.72 (Annexure 'C') and dispose of the same by passing a reasoned/speaking order within a period of 2 months from the date of communication of this order. it is made clear that we have not observed anything on merits of this case.
PreT Vee CPrrrriiiitiitiitiiiiirririer rr ey That, in compliance, on 16.08.2004 (annexed at Annexure-A/5 to the OA), the respondent authorities issued an order granting the enhanced scale of pay of Rs. 1200-2040/- (pre-revised as per 4" CPC) to the Laboratory Attendants in such original application.
hobs 13 'OA 1279/2021 And, that, on 27.03.2009 (annexed at Annexure-A/7 to the OA), the 7 respondent administration further revised the pay scale to the post of Laboratory Attendant to Rs. 4500-7000/- (as per 5" CPC).
That, this Tribunal, in OA 2/AN/2010 (Subash Mondal vs. Union of India & Others) directed the respondents to enhance the pay scale of Rs. 1200-2040/- (pre revised as per 4" CPC) from the date of final appointment and to subsequently fix the scale of Rs. 4000-6000/- w.e.f. 01.01.1996 in the light of the orders passed by this Tribunal in OA 71/AN/2008 dated 10.12.2008.
That, such orders were subsequently upheld at the level of the High Court . / of Calcutta as well as Hon'ble Apex Court which found no reason to interfere with the impugned judgement and order of the Hon'ble High Court of Calcutta. The special leave petition of the Union of India was therefore dismissed.
And, that, thereafter, in compliance to this Tribunal's order dated 26.03.2019 in OA 345/AN/2019(Sunil Ekka & ors. vs. Union of India & Ors.) , the respondent authorities, vide their orders dated 14.09.2020, granted the enhanced pay scale as per 5" CPC (annexed at Annexure-A/15 to the OA) to the applicant Laboratory Attendants.
5. Learned Counsel for the applicants would further submit that, subsequently the applicants, who were Laboratory Assistants, preferred various representations to the respondent authority for granting them revised pay scale as per 5" CPC recommendations in the pay scale of Rs. 4500-7000/- w.e.f. 01.01.1996 and in terms of 6 CPC recommendations in the pay scale of Rs. 5200- 20200/- with grade pay of Rs. 2800/-, and, thereafter, to further revise their pay in terms of 7"
CPC recommendations with consequential benefits, but, in vain.
bart, = 14 OA 1279/2021 (3 And, that, thereafter, the Laboratory Assistants approached this Tribunal in - OA 351/118/AN/2021 which was disposed of by this Tribunal on 25.01.2021 directing the respondent no. 5, i.e., the Director of Education of the respondent administration or any other competent respondent authority to dispose of the representations of the applicants keeping in view the relevant rules and | regulations in force. The respondent authorities issued a speaking order on 23.07.2021 (annexed at Annexure-A/18 to the OA) rejecting the prayer of the applicants, upon assailing which, the instant applicants have approached this Tribunal seeking the aforementioned relief.
/ 6. The applicants would, inter alia, advance the following grounds in support of their claim :- | '(i) That, the applicants are occupying a higher post as compared to those of the Laboratory Attendants.
(ii} That, although in terms of various judicial orders, the pay scale of Laboratory Attendants were suitably revised in terms of 4 cpc, 5" cpc, 6"
CPC and 7 CPC recommendations, there was no such consideration with respect to the Laboratory Assistants.
(iii) That, the respondent administration had notified the Recruitment Rules for Laboratory Assistants on 17.01.1978 (annexed at Annexure-A/1 to the OA), where the requisite qualifications was Matriculation with Science subject concerning the Lab for which appointment in required along with knowledge of Hindi language. Such Rules also incorporated a desirable qualification of at least Il Class Higher Secondary with Science subject, along with experience of working as a Laboratory Assistant in any recognized institution.
ba 15° OA 1279/2021
(iv) That, all the applicants are in possession of matriculation and above qualification and they have duly fulfilled the requisite criteria as per the statutory recruitment rules.
(v) That, a notification dated 15.04.1983 from the Union of India (annexed at Annexure-A/1 to the OA) also notified that Class IV employees and Laboratory Attendants, who are Matriculates with Science would be eligible for promotion to the post of Laboratory Assistant which would thereby establish that the Laboratory Attendants is a feeder post to the post of Laboratory Assistant.
(vi) That, although the respondent administration, in response to various judicial orders, implemented the higher revised scale as per recommendations of the various Pay Commission for Laboratory Attendants, they have maintained a studied silence over the issue of revision of pay scale of Laboratory Assistants.
(vii) That, in December, 2010 {annexed at Annexure-A/8 to the OA), the respondent organization notified the recruitment rules for Laboratory Assistant with the following educational and other qualifications prescribed for direct recruits :-
XXXXXXXXAXXXAXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXX
8. | Educational and other Essential :
qualifications prescribed for 1. Must have passed Senior Secondary School Examination direct recruits with Physics, Chemistry and Biology as subjects from a recognized Board/Institution.
Desirable :
1) Bachelor's Degree in Science of the subject concerned.
2) Two years' experience as Laboratory Assistant in any Govt. recognized Institution/School.
3) Knowledge of Hindi.
XXXXXXXXAXXXXXXXX XXXXXXXXXXXXAXX XXXXXXXAXXXXXAXX bor a"
16 OA 1279/2021In such recruitment rules, the pay scale of Laboratory Assistants has been mentioned as Rs. 5200-20200/- with a grade pay of Rs. 2400/-, whereas in the :
case of Laboratory Attendants the pay scale notified is Rs. 5200-20200/- with a grade pay of Rs. 1800/-.
(viii) That, in OA 2/AN/2010 (Subash Mondal vs. Union of India & Others), this Tribunal had directed the respondents to enhance the scale of pay of the applicants on par with six Laboratory Attendants whose pay scale has been so revised vide orders dated 16.08.2004 (annexed at Annexure-A/5 to the OA). A similar order followed in OA 345/AN/2019 (Sunil Ekka & Ors. vs. Union of India & Others), upon which, the respondent authorities enhanced the pay of the applicant Laboratory Attendants in terms of 4 cpc, 5" cpc, 6" CPC and 7™ CPC recommendations.
(ix) That, the Laboratory Assistants who are undisputedly holding the promotional post to Laboratory Attendants would, therefore, claim revised pay scales in accordance with the recommendations of various CPCs and, that, the rejection of their prayer vide orders dated 23.07.2021 is untenable in terms of the recommendations of "pay Rules, 1997, Sub heading XXXVI Union Territories" at Serial No. 42, under the Sub-Heading, Directorate of Education, .
which states that the existing pay scale for Laboratory Assistants as per the 4"
CPC is Rs. 1200-2040 and the corresponding revised pay scale for the said post is Rs. 4000-6000 and the revised scale has been recommended for the said post to Rs. 4500-7000/-.
The respondents, per contra, would argue :-
(i) That, the respondent administration had erred while complying with the orders of this Tribunal in Palaniappan(supra) . The respondents would hot..
"17 OA 1279/2021
OQ contend that, although the Tribunal had only passed an order to consider the representations of the applicants in the light of the OM dated 14.07.72 and to - dispose of the representations with a reasoned and speaking order, the Department had erroneously accepted the prayer of the applicants and granted them the enhanced pay scale which was at par with the pay scale of Laboratory Assistants working in the department.
While issuing its order dated 16.08.2004 (annexed at Annexure-A/5 to the A), a cascading effect followed and another 4 Laboratory Attendants approached this Tribunal in OA 71/AN/2008 (K. Dilip Kumar & Ors.) followed 'by OA 2/AN/2010 (Subash Mondal vs. Union of India & Others) as well as OA
-345/AN/2019(Sunil Ekka & ors. vs. Union of India & Ors.) .
The respondents would further argue that, although the revised pay granted to the Laboratory Attendants was erroneous, the same however attained finality by virtue of the orders of the Hon'ble High Court at Calcutta and the Hon'ble Apex Court, rejecting the respondents' challenge to the orders of this Tribunal in OA 2/AN/2010 (Subash Mondal vs. Union of India & Others). Hence, the pay scale sanctioned to the Laboratory Attendants came to be at par with that of the Laboratory Assistants.
(ii) That, in compliance with the orders of this Tribunal in OA 351/118/AN/2021, the speaking order dated 23.07.2021 was conveyed by the Deputy Director of Education and that, as recorded in the speaking order, it had issued with the approval of the "competent authority", namely, that such orders were issued with the approval of the Secretary, Education and the concurrence of the Secretary, Law.
ne
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8. 18 OA 1279/2021
(iii) The respondents would further argue that, the reference made by the applicants to Pay Commission recommendations is the "First schedule for the pay of Laboratory Attendants" as Rs. 4500-7000/- (annexed at Annexure-A/2 to the OA) does not pertain to the Andaman & Nicobar Islands but only to the Delhi Secretariat as per Serial No. 42 (annexed at Annexure-R/6 to the reply).
(iv) That, the applicants are enjoying a pay scale, as permissible to them in terms of the relevant recruitment rules for the posts of Laboratory Assistants, and, accordingly, as the respondent organization is bound by the statutory recruitment rules, they are constrained from unilaterally enhancing the pay scale of Laboratory Attendants on the grounds that the Laboratory Attendants occupy the feeder post of Laboratory Assistants, and, that the former are enjoying the pay scale at par with the Laboratory Assistants by virtue of judicial orders.
(v) That, none of the Pay Commissions from 4" CPC to 7" CPC, had ever "recommended any upgradation of the Laboratory Assistant. And, that, although the Laboratory Attendants enjoyed a pay scale of Rs. 1200-2040/- as per 4°" CPC, the same was revised to Rs. 4000-6000/- as per 5 CPC and to Rs. 5200-20200/- with grade pay of Rs. 2400/- as per 6" CPC. The Laboratory Attendants, however, were never granted a pay scale of Rs. 4500-7000/- as per a 5" CPC.
We have heard the rival contentions and have examined available pleadings and documents on record. This Tribunal would note that the respondents, at the very outset, had admitted that an error had been committed by the respondent administration in enhancing the pay scale of the Laboratory Attendants, although they were only required to issue a reasoned and speaking hah, "
no 49 OA 1279/2021order by this Tribunal in Palaniappan(supra), and, that, once such revised pay scale had been implemented by the authorities, similarly circumstanced Laboratory Attendants had sought benefit of such revised pay scale and such implementation was upheld by various judicial fora.
In this context, it would be worthwhile to refer to the judgement in WPCT No. 679 of 2012 (Union of India and others vs. Shri Subhash Mondal) issued on 29.01.2014, wherein the High Court of Calcutta at Port Blair held as under .-
it is not in dispute that the petitioner is also a Laboratory Attendant and similarly situated as the petitioners in respect whereof the order dated August 16, 2004 was passed, What is submitted on behalf of the petitioners herein is that the Tribunal had, by its order dated January 12, 2004, only required the representations of certain employees to be considered, but the Administration misread the order and allowed the higher pay scale without giving any reasons. This, it is suggested by the petitioners, was an obvious mistake.
It transpires that another lot of Laboratory Attendants, on the strength of the order dated August 16, 2004, have obtained the same benefits as the employees covered by such order. It is argued that the respondent herein was buoyed by the windfall gain of similarly situated employees to approach the Tribunal for the benefit. | Even though there is no equality recognized by Article 14 of the Constitution in the negative sense, it has also to be regarded that similarly placed persons cannot be dissimilarly treated. To begin with, there cannot arise any presumption that the order dated August 16, 2004 was a mistake. In any event, no attempt was made by the Administration to refer to the order as a mistake or to take steps to rectify the same prior to the petition filed by the respondent before the Tribunal. Further, several employees similarly placed as those originally named in the order of August 16, 2004 have obtained the benefit by referring to such order; and yet the Administration did not discover the 'mistake'. In the circumstances, it cannot be accepted that the order dated August 16, 2004 was a mistake or that similarly placed persons as those referred to in such order obtain the same benefit as conferred by such order.
decepacen non vensasconensanendsneneresen aan sae san bas ousestesesseressassseseeerr een sees' The High Court at Calcutta had categorically observed that similarly placed persons cannot be dissimilarly treated, and, had also remarked that no attempt bth, a O 20 OA 1279/2021 was ever made by the administration to refer to the order as a mistake or to take steps to rectify the same prior to the objection filed before this Tribunal.
Accordingly, the revised pay scale granted to the Laboratory Attendants was settled in terms of the judicial pronouncements of the Hon'ble High Court at Calcutta and subsequently upheld by the Hon'ble Apex Court in Special Leave Appeal Nos. 35982-35983/2016.
The present issue, however, is not that any Laboratory Assistant has been granted a pay scale in transgression of the recruitment rules. It is an admitted fact that the Laboratory Assistants of the respondent administration continue to enjoy such pay scale as prescribed in the Recruitment Rules for Laboratory Assistant (annexed at Annexure-A/8 to the OA). The said recruitment rules notified in December, 2010 are reproduced as under :-
1. | Name of Post Laboratory Assistant
2. | No. of Post(s) 118 (One hundred eighteen) 2010 *(subject to variation dependent upon workload)
3. | Classification General Central Services Group 'C', Non-Gazetted, Non- Ministerial
4. | Pay Band & Grade Pay/Pay Scale (PB-1) Rs. 5200-20200 with Grade Pay Rs. 2400 5S. | Whether selection post or non- Selection . selection post
6. | Age limit for direct recruits For male 18-33 years & For Female 18-38 years [Relaxable for Govt. Servants upto 5 years in accordance with the instructions/orders issued by the Central Govt. from time to time] Note:- The crucial date for determining the age limit shall be the closing date for receipt of names/applications from the Employment Exchange/candidates
7. | Whether benefits of added years of Not applicable service admissible under Rule 30 of CCS (Pension) Rules, 1972?
8, | Educational and other qualifications Essential:
prescribed for direct recruits 1. Must have passed Senior Secondary School Examination with Physics, Chemistry and Biology as subjects from a recognized Board/Institution.
Desirable:
1) Bachelor's Degree in Science of the subject concerned.
2) Two years' experience as Laboratory Assistant in any Govt. recognized Institution/School.
3) Knowledge of Hindi.
9, | Whether age and other qualifications Age :- No prescribed for direct recruits will apply | Educational Qualification :- Yes in case of promotees?
Meh re 21 OA 1279/2021 oO The said recruitment rules clearly prescribe a pay scale of Rs. 5200-20200 with grade pay of Rs. 2400/- for the Laboratory Assistants, it is not the case of the applicants that they have been deprived of such pay scale.
What the applicants seek is upgradation /revision of their pay scale to Rs. 4500-7000/- w.e.f. 01.01.1996 (in terms of 5" CPC), to Rs. 5200-20200 with grade pay of Rs. 2800/- w.e.f 01.01.2006 (in terms of 6" CPC), and, finally, revision of their pay scale in Level-5 with Grade Pay of Rs. 2800/- as per 7" CPC, with all consequential benefits.
9. It is a settled principle of law that, whether statutory rules exist, the state cannot act in violation of such statutory rules, unless so amended. Hence, given the present scenario, the respondent authorities would be bound by their recruitment rules and they cannot exceed their boundaries by granting pay scales any higher than that permitted by such recruitment rules.
In Gurpal Tuli vs. State of Punjab(1985) 3 SLR 259 SC, it was held that, to be entitled to draw a pay scale, the employee must fulfill the eligibility condition whether by way of qualification or otherwise. The recruitment rules lays down the pay scale attached to each post, and, accordingly, once the recruitment rules of Laboratory Assistants has laid down a specific pay scale of Rs. 5200-20200 with commensurate grade pay, the pay scale of 2 category of an employee cannot be upgraded unilaterally on the ground that employees in the feeder posts are enjoying a pay scale at par with those in the promotional post.
in terms of judicial orders in St. Stephen's College vs. University of Delhi (1992) 1 SCC 558 at 612, the Hon'ble Apex Court held that, as public services comprises different grades of employees, the pay scales which are framed in a descending order, mandates that unequals cannot be treated as equals. In the Iw a"
22 OA 1279/2021?
present context, the Laboratory Assistants cannot be held as similarly situated to that of the Laboratory Attendants as their entry qualification, recruitment rules as well as nature of work differ both quantitatively and qualitatively.
In Secretary, Finance Department vs. West Bengal Registration Service Association (AIR 1992 SC 1203 Supp (1) SCC 153), the Hon'ble Apex Court had held as follows :-
"Ordinarily a pay structure is evolved keeping in mind several factors e.g. (i) method of recruitment (ii) level at which recruitment is made (iii) the hierarchy of service in a given cadre (iv) minimum educational and technical qualifications required (v) avenues of promotion (vi) the nature of duties and responsibilities (vii) the horizontal and vertical relativities with similar jobs (viii) public dealings (ix) satisfaction level (x) employer's capacity to pay, etc. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved ay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well."
In the instant context, the respondent organization failed to perceive a carefully evolved pay structure as it had upset the balance between the feeder post of Laboratory Attendants and promotional post of Laboratory Assistants, and, therefore, has caused ripples in the cadre of the Laboratory Assistants. It also cannot be denied that the Laboratory Assistants would nurture a legitimate expectation as holders of the higher posts to enjoy a higher pay scale vis-a-vis that of the Laboratory Attendants who occupy the feeder post.
In Lalit Mohan Deb vs. Union of India (AIR 1972, SC 995), it was held that, pay of a promotional post cannot be same as the pay of a feeder post and that, the state cannot discriminate between equals.
10. This Tribunal, therefore, would not interfere in the speaking order issued by the respondent authorities because the authorities cannot be directed to override the provisions of the recruitment rules.
hn 23 OA 1279/2021 vu At the same time, however, this Tribunal would direct the office of respondent no. 3 who is Chief Secretary, Andaman & Nicobar Administration to formulate a proposal for incorporating a commensurate pay scale for Laboratory Assistants in terms of their Recruitment Rules to the competent authority in the Union of India, particularly, in the light of the Hon'ble Apex Court's observations in West Bengal Registration Service Association (supra).
Once such proposal reaches the office of respondent no. 1, who is represented by Secretary, Ministry of Human Resources Development, Government of India, the said respondent no. 1 may confer, if so required, suitably with the Ministry of Finance to decide on how to resolve the paradox of | those in the feeder post of Laboratory Attendants continuing to enjoy the higher pay scale of the promotional cadre of Laboratory Assistants by virtue of a reportedly inadvertent error of the respondent organization, affirmed by judicial pronouncements. The office of the respondent no. 1 should also decide on the appropriate pay scale of the Laboratory Assistants in the backdrop of the abovenoted scenario.
Let the entire exercise be completed within a period of 6 months from the date of receipt of a copy of this order. |
11. With these directions, the instant OA stands disposed of. No costs.
M.A. No. 351/00400/2021 arising out of this OA, stands disposed of in terms of para 4 of this order.
af (Dr. Nandita Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member sl