Central Administrative Tribunal - Delhi
Smt. Neena Alagh vs Govt. Of Nct Of Delhi on 3 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1268/2009 New Delhi, this the 3rd day of February, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Smt. Neena Alagh, W/o Shri M.S. Alagh, R/o BJ-19 (East), Shalimar Bagh Delhi .Applicant (By Advocate: Shri K.P. Gupta) versus 1. Govt. of NCT of Delhi Through its Secretary (Education), Old Secretariat, Delhi 2. Director of Education, Government of NCT of Delhi Directorate of Education, Old Secretariat, Delhi 3. Assistant Director of Education (GOC), Govt. of NCT of Delhi, Directorate of Education, Old Secretariat, Delhi 4. Administrative Officer (GOC), Government of NCT of Delhi, Directorate of Education, Old Secretariat, Delhi Respondents (By Advocate: Shri Padma Kumar S. for Ms. Jyoti Singh) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant had superannuated as Counselor In-charge under the Directorate of Education, GNCTD, on 30.11.2005. She is aggrieved at non-grant of correct replacement pay scale on implementation of the Vth CPC recommendations and the consequent incorrect fixation of pay under ACP as also in the quantum of retiral dues.
2. By way of relief, the OA seeks quashing of impugned orders dated 24.11.1997 (Annexure A/1) and 15.11.2007 (Annexure A/2) vide the former, in the wake of the Vth CPC the pay scale of the applicant has been revised from Rs.2500-3500 to Rs.6500-10500. The latter Office Order grants financial upgradation under second ACP w.e.f. 9.8.1999, however, taking the same scale of Rs.6500-10500 as the basis and fixation of pay under FR 22(I)(a)(I) taking Rs.10700 as the pay on 9.8.1999.
The OA also seeks the following directions, which are mentioned briefly as:-
Fixation of pay in the scale of Rs.7500-250-12000 since 1.1.1996;
Fixation of pay in the scale of Rs.10,000-325-15200 on 9.8.1999 at Rs.12275/-;
Payment of due annual increments;
Payment of arrears;
Revision of pension and other retiral benefits on the basis of the revised pay; and Award of costs in favour of the applicant and any further relief deemed fit in the circumstances have also been prayed.
3.1 The facts in brief are that the applicant had been appointed initially as Educational & Vocational Guidance Counselor (EVCG) on ad hoc basis in 1968 and on regular basis in 1969. This was in the then prevailing scale of Rs.350-700 which was later revised to Rs.550-900. The applicant was promoted as Counselor In-Charge w.e.f. 5.7.1983, which carried the pay scale of Rs.650-1200, subsequently revised to Rs.2000-3500 w.e.f. 1.1.1986 (as per the 4th CPC). These facts are not disputed.
3.2 The point of contention starts from the 5th CPC scales. Whereas the revised replacement scale granted in this case from 1.1.1996 was Rs.6500-10500; as per the applicant she was entitled to the higher pay scale of Rs.7500-12000/-. The applicant had in a number of representations submitted before the departmental authorities, at various levels, how this had led to an anomalous situation. This had not only resulted in lower pay scale for the Counselors post, which was higher than that of EVCG; but also the pay fixation of the applicant being less than that of the juniors. The OA encloses copies of the detailed representation dated 3.4.1998 (Annexure A/7) and its several follow ups in 1999, 2000 and 2003.
3.3 In the year 2003, the respondents introduced the ACP Scheme with a retrospective effect from 9.8.1999. Though initially this was not considered admissible in her case, however; subsequently after a lot of pursuing and even taking up the matter before the Public Grievance Commission, second ACP was allowed and the order dated 15.11.2007 (impugned in the present OA) issued.
3.4 While approaching the Public Grievance Commission, the applicant had raised two issues : non-grant of ACP and the anomaly in her pay fixation subsequent to the Vth CPC. The case, however, was closed with the decision regarding ACP and grant of arrears on that account. However, the matter regarding the anomaly in pay fixation remained unresolved with the respondents taking the stand that the matter needed to be examined by the Secretariat Branch as per rules (Annexure A/25). Subsequently in response to an appeal under the RTI by a letter from the Additional Director it was also intimated to the applicant that her file had been sent to the Finance Department of Delhi on 12.12.2005 for sending it to the Government of India for rectification of the anomaly (Annexure A/17). This very stand has been reiterated by the respondents in their counter affidavit.
3.5 Even after the closure of the case with the Public Grievance Commission, the applicant had persisted with her representations throughout the years 2008 and 2009, though to no avail.
4. The main grounds adduced by the applicant are (a) the revised pay scale of Rs.2000-3500 was Rs.7500-12000 as applicable to the Teachers/Vice Principals/Counselors/Counselor In-Charge w.e.f. 1.1.1996 (Ground 5.1) (b) It is an admitted fact even as per the respondents that the applicant had been in the pay scale of Rs.2000-3500. Despite such admissions, instead of giving her the appropriate scale of Rs.7500-12000, the respondents had arbitrarily placed her in the lower replacement pay scale of Rs.6500-10500 (Ground 5.4). (c) While fixing pay under 2nd ACP w.e.f. 9.8.1999 in the scale of Rs.10,000-15200 her prior pay fixation in the appropriate scale of Rs.7500-12000 should be the basis (Ground 5.2). (d) Her juniors were allowed to draw more pay than the applicant.
5. In their counter affidavit, the respondents have sought to explain the grant of a lower replacement pay scale of Rs.6500-10500 in case of the Counselor In-Charge, while in case of EVGC for the same existing scale of Rs.2000-35000, by way of senior scale Rs.7500-12000 was allowed. The CA makes the following factual averments:-
The pay scales of EVGC (Educational Vocational Guidance Counselor), Counselor In charge and Guidance Officer in their hierarchy in the 4th & 5th Central Pay Commissions were as under:
S.NO. NAME OF POST PAY SCALE IN 4th C.P.C. PAY SCALE IN 5TH C.P.C.
1. E.V.G.C. Entry Scale 1640-2900 Senior Scale 2000-3500 Selection Scale 2200-4000/- Entry Scale 6500-10500/-
Senor Scale 7500-12000/-
Section Scale 8000-13500/ 2 Counsellor Incharge 2000-3500/- 6500-10500/-
3. Guidance Officer 3000-4500 10000-15200/-
It is mentioned that all teachers in GNCT of Delhi in the 5th C.P.C. and EVGCs who were working earlier in the scale of Rs.1640-2900 were given one scale higher i.e,, the pay scale of Rs.6500-10500/- treating them PGT as they were equated as misc. teachers as conveyed by Govt. of India vide letter dated 16.12.87 and dated 7.8.1998 (Annexure B), whereas the Counselor Incharge who were in the next rank in the hierarchy were given only replacement scale of Rs.6500-10500/-. Grant of higher pay scale of rs.7500-12000 to the juniors cited in the OA i.e. the EVGC Shri S.S. Pali and Smt. Pushpa Nehru is also stated to be on account of grant of replacement of the senior scale of Rs.2000-3500 granted to them. With regard to the anomaly in the case of the applicant, the stand of the respondents is that the matter has been referred to the Finance Department of Government of Delhi for referring it to the Government of India. Further, on settling of this matter, all connected issues regarding refixation of pay and pension etc. would be taken care of.
6. In matters relating to grant of pay scale and pay fixation, the consensus in a catena of judgments is that these are complicated matters having cascading effects and thus should be best left to expert bodies like the Pay Commissions. Besides, it is equally well settled that the recommendations of Pay Commissions are not mandatory in nature; nor do they on their own create any legally enforceable rights in favour of employees. Such recommendations are subject to acceptance by the competent administrative authorities, decision in regard to which is within the legitimate domain of the executive. However, within these broad parameters, any arbitrariness, discrimination, violation of any administrative instructions, statutory or fundamental rights, and contravention of established principles of law have been held to be well within the purview of judicial review. In Haryana State Minor Irrigation Tube Wells Corporation & Ors vs. G.C. Uppal (2008) 2 SCC (L&S) 562, the apex court upheld the justification for the Courts to interfere in matters of pay fixation and parity when the decision was unreasonable. The following dicta was observed:
Fixation of pay and determination of parity in duties is the function of the executive and the scope of judiciary of review of administrative decision is very limited. However, it is equally well settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity wherever find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. The superior courts have also been most zealous in guarding the legitimate rights of public employees and saving them from needless harassment; this is more so in case of retired employees.
Having heard carefully the learned counsels on both the sides and gone through the material on record, we are of the view that the present case is one fully justifying judicial intervention. The following paragraphs would reveal the reasons for our arriving at this view.
7.1 The applicants contention that the post of Counselor In-Charge is not only higher in hierarchy to that of the EVGC and in fact is the promotional post to the latter is not disputed. That the post of Counselor In-Charge is higher in hierarchy to the EVGC is clear from the contentions of the respondents themselves as extracted in the para 5 above. This is also corroborated from the respondents Order dated 22.04.2002 (annexed with the CA) passed by the respondents in pursuance of CATs directions in RA No.162/2001 in OA No.1116/1999 regarding the creation of promotion avenues for the posts of EVGCs. Para 5 of this order states EVGCs are eligible for consideration for promotion to their promotional post of Counselor In-Charge after 3 years of service. That the applicant was promoted from the post of EVGC to the Counselor In-Charge is borne out by the relevant entry in the Service Book of the applicant as per the enclosed extracts. It is also accepted by the respondents in their C.A. 7.2 Taking the respondents contentions ex-facie: while the post of EVGC on grant of Senior Scale in 2000-3500 (IV CPC) has the corresponding replacement scale of 7500-12000 (V CPC); the higher post (which is also the promotional post of EVGC) has been given the replacement scale for the same Rs.2000-3500 as Rs.6500-10500/-. Incidentally this is also said to be replacement scale for EVGC entry scale Rs.1640-2900. Thus, grant of a lower pay scale for a post higher in hierarchy and also the promotional post for a feeder category post shows a clear example of anomaly.
7.3 One of the core grievance of the applicant is grant of lower pay scale and pay fixation than that of her juniors. The names of juniors Shri S.S. Pali and Mrs. Pushpa Nehru have been specifically mentioned. The fact that these persons were junior to the applicant as EVGC is not disputed, the OA encloses the final Seniority List in support (Annexure A/23). In her representation dated 3.4.1998 the applicant had mentioned that these juniors Shri S.S. Pali and Ms. P. Nehru had been granted as the replacement scale of Rs.7500-12000 (on V CPC) and their pay fixed at Rs.11500 (Annexure A/7). This is corroborated by the respondents in their Counter Affidavit and further supported by the documentary evidence annexed with the OA (Annexure A/22). Again in her representation dated 10.1.2009 (Annexure A/30) addressed to the Additional Director (Administration), Public Grievance Cell, reiterating this point the applicant submitted:
May I inform you that the Counselors in the Department are paid more salary than the Counselor In charge, because the Counselors were given the higher scale, whereas the Counselor In charge, next higher post on promotion, was not considered for the same The apex court had in Gurcharan Singh Grewal & Anr. Vs Punjab State Electricity Board & Ors (2009) 1 SCC (L&S) 579, dealing with a case where anomaly had cropped due to difference in incremental benefits had reiterated the settled principle of law that a senior cannot be paid less salary than his junior and had decided that the anomaly should not have been allowed to continue and ought to have been rectified. Thus grant of a lower pay scale and fixation of pay than that of juniors in this case is in contravention of the established principles of law.
7.4 That fact of an anomaly in the case of the applicants pay scale and pay fixation has been implicitly admitted by the respondents. This is obvious from their response under the RTI (Annexure A/17) as also from the averments in the CA (Para 4.5 to 4.7). As per response to the applicants appeal under RTI, the Additional director of Education had vide his letter dated 20.12.2005 informed him that after examination of the file regarding anomaly had been sent to the Finance Department of Delhi Government on 12.12.2005 for sending it to the Govt. of India for rectification of the anomaly. The C.A. filed by the respondents as late as December 2009 reiterates the same stand without indicating any further progress in the matter. For want of any clear commitment on the part of the respondents about the present status of the matter or a final resolution of the issue, the inference that the matter has been lying in cold storage for an indefinite period would not be unjustified.
7.5 The applicant, however, contends that the reference to the GOI is not required since the tenability of her claims is clearly made out from the available instructions. Both the counter as well as the rejoinder refer to certain Govt. of India instructions on the subject. As per the Govt. of MHRD, Deptt. of Education Circular letter No.P-5-14/97-47-1 dated 7.8.98 while mentioning the revised pay scale of School Teachers, for Teachers (TGs/PGT) the replacement scales are stated to be as follows:
1640-2900 : 6500 10500 2000 3500 : 7500 12000 Further vide Para-11, sub para(iii) of this Circular, these revised pay structures are also said to be applicable to equivalent categories of miscellaneous Teachers.
The rejoinder has also enclosed extracts of GOI/Min. of HRD, Deptt. of Education No.F.5-14/97-UT.1 dated 3.11.1987 issuing certain clarifications in the matter of revised pay scales. The learned counsel for the applicant would refer to the clarification No.9 to contend that the applicants were well within the category of Miscellaneous Teachers. The point of doubt raised and the clarification are reproduced below:
Whether these pay scales are applicable to the miscellaneous/allied teachers like Music Teachers, Drawing Teachers, Physical Education Teachers etc. Clarification : These pay scales are applicable to miscellaneous/allied category of teachers like Music Teachers, Drawing Teachers, Art Teachers, Craft Teachers, Vocational Guidance Instructors, Physical Education Teachers, Language Teachers, Librarians or equivalent teaching posts carrying any other designation. The scales of pay in respect of all these categories are equated to one or the other category of teachers. That party will be retained & these teachers will be granted the appropriate pay scales keeping in view the parity that already exists. This very fact is also corroborated from the GOI, Ministry of HRD, Department of Education letter No. F.5-180/86-UT.I dated 16.12.1987 (annexed with the CA) which also clarified the concept of Miscellaneous Teachers and applicability of revised pay scales to them:
Revision of pay-scales of school teachers.
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I am directed to refer to your d.o. letter No.F.30-3(103)/87-Coord. Dated 16 December, 1987 and to say that as per clarification at S.No.9 of this Ministrys letter of even number dated 3.11.87, the revised pay-scales as mentioned in this Ministrys letter dated 12.8.87 is applicable to various miscellaneous/allied categories of teachers like Music teachers, Drawing teachers, Arts teachers, Craft teachers, Vocational guidance instructors/Physical education teachers, Language teachers, Librarians or equivalent teaching posts carrying any other designation. In this connection I am to clarify that these teachers are also eligible for the grant of teaching allowance. In view of these proofs, we find merit in the contention of the learned counsel for the applicant that as per the fifth CPC the replacement scale for Rs.2000-3500 was Rs.7500-12000 for Counselors In-charge as well, who would come in the category of Miscellaneous Teachers. The learned counsels contention that there were no specific replacement scales prescribed as such for Counselor In-charge is not found to be factually rebutted by the respondents.
8. In view of the foregoing, we conclude with the finding that the replacement scale of Rs.6500-10500 granted to the applicant in lieu of the scale of Rs.2000-3500 was not in accordance with the rules and instructions. Instead the applicant was entitled for fixation of the V CPC replacement scale of Rs.7500-12000 and pay fixation in accordance with rules and instructions on the subject. The injustice done to the applicant by grant of lower pay scale and pay fixation vis-`-vis the juniors is also found to be substantiated. This basic mistake got compounded at the time of subsequent grant of ACP and also the fixation of pensionary benefits. Ordinarily in such a case we would have favoured remitting the matter to the respondents themselves for a relook. However, considering the special facts of the case and to meet the ends of justice, we are of the considered view that this long prevailing grievance of the applicant deserves immediate redressal.
Resultantly, the OA is allowed with a direction to the respondents to issue the corrective orders and ensure the consequential payments to the applicant. Considering the harassment to which the applicant was subjected to for years together, and even after her superannuation, we also find it a fit case for awarding interest @ 5% per annum on the arrears along with award of cost of Rs.5,000/- in favour of the applicant. Our directions are to be compiled with by the respondents within a period of three months from the date of receipt of a copy of this order.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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