Punjab-Haryana High Court
C.W.P. No. 13005-Cat Of 2004 vs Central Administrative Tribunal on 14 October, 2010
Author: Ritu Bahri
Bench: Ritu Bahri
In the High Court of Punjab and Haryana, Chandigarh
Date of Decision: October 14, 2010
1. C.W.P. No. 13005-CAT of 2004
Chandigarh Administration and another
...Petitioners
Versus
Central Administrative Tribunal, Chandigarh Bench, Chandigarh and
another
...Respondents
2. C.W.P. No. 15241-CAT of 2004
Karan Avtar Singh and another
...Petitioners
Versus
Central Administrative Tribunal, Chandigarh Bench, Chandigarh and
another
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MS. JUSTICE RITU BAHRI
Present: Ms. Alka Chatrath, Advocate,
for the petitioner(s)
Mr. D.R. Sharma, Advocate,
for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the
Digest?
M.M. KUMAR, J.
1. This order shall dispose of aforementioned two writ petitions. The Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal') by the impugned judgment dated 7.8.2003, allowed Original Application Nos. 792/CH of 2002 and 837/CH of 2002. The Tribunal has quashed the order dated 18/20.12.2001 by which the placement of the applicant(s) in the pre-revised scale of Rs. 1200-2130, which was given effect C.W.P. Nos. 13005 and 15241 - CAT of 2004 2 from 13.11.1989 has been changed and made effective from 1.1.1991. The Tribunal has also issued direction to the petitioners to continue with the old dates of promotion of the applicant-respondent No. 2 in the aforesaid grade of Rs. 1200-2130 with effect from 13.11.1989 and to that of Rs. 1500-2700 (revised scale of Rs. 5000-8100) with effect from 13.11.1994.
2. Brief facts of the case as disclosed in the order of the Tribunal are that the applicant-respondent No. 2 was appointed as a Computor in the pay scale of Rs. 400-660 w.e.f. 13.11.1984. He was promoted as Field Assistant on 5.2.1988 in the pay scale of Rs. 450-800. The grades of Computor and Field Assistants were merged and their posts were re-designated as Investigators. 20% junior-most in the seniority list of Investigators were granted the revised scale of Rs. 950-1800, the next 40% on completion of 5 years service as Investigator were placed in the scale of Rs. 1200-2130 and the 40% senior-most Investigators were given the scale of Rs. 1500-2700, if they had completed minimum of 10 years of service as Investigator. Accordingly, the applicant-respondent No. 2 was given the pay scale of Rs. 1200-2130 on completion of 5 years service on 13.11.1989. Thereafter on completion of further 5 years of service he was granted scale of Rs. 1500-2700 w.e.f. 13.11.1994.
3. The scales were further revised with effect from 1.1.1996 and the pay scale of Rs. 1500-2700 was revised to Rs. 5000-8100 and the applicant- respondent No. 2 was drawing that pay scale.
4. Three grade system in the ratio of 20:40:40 was changed vide notification dated 5.12.2000, which contemplated that 50% of the junior-most were to be placed in the revised scale of Rs. 3120-5160 and the 50% of the senior-most were given the pay scale of Rs. 4400-7000. The pay already C.W.P. Nos. 13005 and 15241 - CAT of 2004 3 granted under the three grade structure on 12.10.1994 (A-2) was to be retained by the person concerned as a measure personal to them. The Circular dated 5.12.2000 was issued on the basis of Amendment made to the Punjab Civil Services (Revised Pay) Rules, 1998, issued on 4.9.2000. The aforesaid circular was adopted by the Chandigarh Administration on 5.12.2000 and substituted/inserted the entries in the second schedule of the notification issued by the Chandigarh Administration on 18.9.1998 read with subsequent notifications dated 4.8.1999 and 4.8.2000. While re-designing three grade system into two grade system, the pay scale granted earlier have been protected as a measure personal to the incumbent of the post. The aforesaid position is evident from the following para of the notification dated 5.12.2000, which reads thus:-
"The designation and the revised equivalent of the un-revised pay scale of officials working as Senior Clerks and Junior Assistants as on 1st January, 1996 as notified in Col. 4 shall be protected as measure personal to them. For future, the total number of posts of clerks including Senior Clerks and Junior Assistants in a cadre existing on 1st January, 1996 shal be bifurcated into the posts of clerks in the pay scale of Rs. 3120-5160 (with initial start of Rs. 3220/-) and junior Assistants in the scale of Rs. 4400-7000 in the ratio of 50:50."
5. Accordingly, the applicant-respondent No. 2, who was drawing pay in the scale of Rs. 5000-8100, could have been placed by virtue of the two grade system introduced by the 2nd Amendment in the pay scale of Rs. 4400- 7000. However, his pay on the date of amendment and issuance of circular C.W.P. Nos. 13005 and 15241 - CAT of 2004 4 was to be protected as a measure personal to him and there would be no injustice caused to such person.
6. The petitioner department interpreted the notification dated 12.10.1994 (A-2) along with notifications dated 4.10.2000/7.11.2001 (A-4), which has merged the cadre of Computor and Field Assistant by re-designating them as Investigators in a narrow manner. According to the aforesaid circulars the grade next higher to the lower grade of Rs. 950-1800 was to be given to 40% of the total number of posts of Investigator. According to the petitioner Administration the requirement of the notification was completion of minimum 5 years of regular service as Investigator. Accordingly, the date of promotion of the applicant-respondent No. 2 to the 2nd grade, which was earlier granted with effect from 13.11.1989 was changed to 1.1.1991 by counting the period of 5 years from the date of issuance of notification merging the cadre. The aforesaid interpretation emanates from the fact that the post of Investigator was created only on 1.1.1986 and, therefore, any promotion granted prior to that date in the 2nd grade was illegal and could be withdrawn. The Tribunal proceeded to consider the aforesaid question and interpreted the circular in the following words:-
" The main issue, therefore, to be decided in this case is whether the interpretation of the circulars cited above can mean that all persons joined together in the cadre of Investigators w.e.f. 1.1.1986 will be placed on an equal footing in the next higher grade. All those who became Investigators were either Computors and Field Assistants and all ofthem were merged into one cadre of Investigators w.e.f. 1.1.1986. It is not open to the Govt., while merging such cadres and laying down further C.W.P. Nos. 13005 and 15241 - CAT of 2004 5 chances of promotion, to wish away the previous service rendered in an equivalent grade. Since all Field Assistants were made Investigators only by change of designation on 1.1.1986, they all cannot be put on an equal footing for further promotions. Those who joined earlier must be given the benefit of their past service otherwise, there would be great injustice to those who had joined the service earlier. The benefit of the earlier service could have been denied for the next higher grade only if the new grade of Investigators was a promotion from the earlier grade of Computor/Field Assistants. This is not the case here, as all Computors and Field Assistant got the scale of Rs. 950-1800 merely by virtue of revision of pay scale w.e.f. 1.1.1986. They were not given any higher grade by virtue of any upgradation/promotion. We, therefore, cannot agree that the circular dated 12.10.1994 and the one dated 4.10.2000/7.11.2001 are legally correct in mentioning that the next higher grade would be given only on completion of a minimum of 5 years' service as Investigators. The intention should be to promote all those who have completed a minimum of 5 years' service in an equivalent grade. In fact, the department itself applied this very principle while granting the applicant the second grade w.e.f. 13.11.89 rightly on his completing 5 years of service in that equivalent grade. Further on completion of 10 years from his date of joining on 13.11.84, he got the highest of the three grades w.e.f. 13.11.94. After having given these grades for severa years, it is highly improper to now construe the meaning of those circulars in such a C.W.P. Nos. 13005 and 15241 - CAT of 2004 6 narrow manner and withdraw the benefit correctly granted in the past by virtue of the benefit of the past service. It can be argued on behalf of the respondents that the applicants have not specially challenged the validity of the aforementioned circulars and have not prayed for quashing them. But the court can grant such a relief under the prayer "any other relief deemed fit by the Court", as made in Para 8(iii) of the relief clause.
In view of the above, we come to the conclusion that the circulars dated 12.10.94, Annexure A-2 and dated 4.10.2000/7.11.2001 (Annexure A-4) need to be modified to the extent they mention that the second and third grades would be available after a minimum of 5 years of regular service as 'Investigators instead of 5 years as 'Investigators' or the equivalent post of Computor/Field Assistant, which were the designations prior to their merger as Investigators."
7. The matter came up for consideration of this Court on 26.8.2004 and the Division Bench while admitting the petition noted the contention raised by the petitioners that the issue raised was identical to the one raised in C.W.P. No. 14922 of 1999. The Division Bench while admitting the petition clarified that whatever would be the fate of C.W.P. No. 14922 of 1999, the petitioners were to abide by the statement and the petition was to be disposed of in terms of the decision of the aforesaid petition.
8. We have examined the record of CWP No. 14922 of 1999 and find that the aforesaid petition filed by the Chandigarh Administration was dismissed. The basic issue raised in these petitions as well as in the disposed of petition (CWP No. 14922 of 1999) is whether the benefit of pay protection C.W.P. Nos. 13005 and 15241 - CAT of 2004 7 could be denied to the applicant-respondent(s) which they have enjoyed by virtue of grant of 2nd grade by changing their dates of revision of pay scale and consequential promotion on the post of Investigator. The answer given by the learned Single Judge while disposing of CWP No. 14922 of 1999 is against the petitioner-Chandigarh Administration and in favour of the applicant- respondent(s). In that regard, learned Single Judge has placed reliance on a Constitution Bench judgment of Hon'ble the Supreme Court rendered in the case of Chairman, Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC
623. Hon'ble the Supreme Court has held that any retrospective amendment which has the effect of taking away an accrued right of an employee is liable to be struck down and accordingly the vested rights have to be given protection.
9. In the present case the revised pay rules of 1998 were sought to be amended twice. In so far as the present petitions are concerned, by first amendment three tier revision of pay scales were contemplated and accordingly the applicant-respondent(s) were placed in the second grade by granting them the pay scale of Rs. 1500-2700, which was revised to Rs. 5000- 8100 w.e.f. 1.1.1996. However the three tire structure was again changed vide notification dated 5.12.2000. The junior most 50% Investigators were placed in the revised scale of Rs. 3120-5160 and the senior-most 50% were given the pay scale of Rs. 4400-7000. As a consequence the pay scale of the applicant- respondent(s) were reduced from Rs. 5000-8100 to Rs. 3120-5160 and vide order dated 20.12.2001 have reduced the pay scale of the applicant(s) from Rs. 5000-8100 to that of Rs. 4020-6200. The pay fixation of Sarvshri Karanpal Singh and Duni Chand-applicant(s) as per order dated 20.12.2001, has been made as under:-
C.W.P. Nos. 13005 and 15241 - CAT of 2004 8
"S. Name & Pay on Revised Pay refixed in Remarks No. Designatio date on scale the revised n Option w.e.f. scale 1.1.1986 of 1.1.198 & Existing 6 & Scale & 1.1.199 Date of 6 Joining 1 2 3 4 5 6 1 xxx xxx xxx xxx xxx
2. Sh. Karan Rs. Rs. 950- 1.1.86 1000 Initial Fixation Pal Singh 420/- 1800 1.1.87 1025 Investigator (400- initial 1.1.88 1050
660) start of 1.1.89 1075 13.11.8 Rs. 1.1.90 1100 4 1000/-
Rs. 1.1.91 = 1200 After completion of 5 years 1200- of Service in a cadre 2130 1.1.92 = 1230 1.1.93 = 1240 + 30 AP 1.1.94 = 1280 + 30 AP 1.1.95 = 1320 + 30 AP 1.1.96 = 4260 revised scale 1.1.96 Rs. 1.1.96 = 4400 (50%) 4400- 1.1.97 = 4550 7000 1.1.98 = 4700 1.1.99 = 4850 20.5.99 = 5000 The pay has been brought at par with Sh. Duni Chand as junior official can not draw higher pay than his senior official vide no. 4387-F&PO (7)/90/ 3861 Dt. 04.09.90 1.5.2000 = 5160 1.5.2001 = 5320 date of next increment 01.05.2002.
3. Sh. Duni Rs. Rs. 950- 20.5.86 1000 Initial Fixation Chand 400/- 1800 1.5.87 1025 Investigator (400- initial 1.5.88 1050
660) start of 1.5.89 1075 20.05.8 Rs. 1.5.90 1100 6 1000/- 1.5.91 1125 Rs. 1200- 20.5.91 = 1200 After completion of 5 2130 years of Service in a cadre 1.5.92 = 1230 1.1.93 = 1200 + 30 AP 1.5.93 = 1240 + 30 1.5.94 = 1280 + 30 1.5.95 = 1320 + 30 C.W.P. Nos. 13005 and 15241 - CAT of 2004 9 Rs. 4020- 1.1.96 = 4260 Revised scale 1.1.96 6200 1.5.96 = 4400 Personal 1.5.97 = 4550 scale 1.5.98 = 4700 1.5.99 = 4850 20.5.99 = 5000 (ACP placement on higher scale of Rs.
3120-6200 but will retain in the personal scale of Rs. 4020-6200 with benefit of one increment 1.5.2000 = 5160 1.5.2001 = 5320 Date of next increment 01.05.2002."
10. The aforesaid fixation has been made without granting any opportunity of hearing to the applicant-respondent(s) apart from the fact that a vested right has accrued in their favour which is sought to be taken away. In any case the petitioners have bound themselves by making a statement that the decision rendered in CWP No. 14922 of 1999 would be binding on them which has been dismissed by the learned Single Judge on 15.12.2009. Even no Letters Patent Appeal against the aforesaid judgment has been filed. Meaning thereby the said judgment has attained finality. Therefore, we are of the view that these petitions are also liable to be dismissed.
11. As a sequel to the aforesaid discussion, these petitions fail and the same are dismissed.
A photocopy of this order be placed on the file of connected case.
(M.M. KUMAR)
JUDGE
(RITU BAHRI)
October 14, 2010 JUDGE
Pkapoor