Central Administrative Tribunal - Delhi
Ram Nath vs Secretary on 5 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.4173/2013
Order reserved on: 18.11.2014
Order pronounced on: 05.12.2014
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Ram Nath
Ex-Halwai
A-128, Karan Vihar, Phase-V
Kirari, Suleiman Vihar,
Delhi-110086. -Applicant
(By Advocate: Shri Vinod Zutsi)
Versus
1. Secretary, Ministry of Defence
South Block, New Delhi-110001
2. Director General
Ordnance Services, Sena Bhawan,
New Delhi-110001.
3. Area Accounts Office (WC)
Delhi Cantt.
Delhi-110010
4. Commandant
Ordnance Depot
Shakur Basti, Delhi-110056. -Respondents
(By Advocate: Shri M.S. Reen)
O R D E R
Mr. Ashok Kumar, Member (A):
Applicant is aggrieved by non-grant of revised pay scales of Canteen Staff including Halwai while implementing the recommendation of the 5th Central Pay Commission (CPC). He has, therefore, filed this OA seeking the following reliefs:-
i) To pass order for the implementation of the recommendations for the Canteen Staff as per the orders of the Ministry of Finance, so as to adjust the applicant in the approved grade of the Cashier and consequently award all the benefits accruing out of the implementation of the 5th and 6th Pay Commission which includes the grant of Special Pay as per the orders of Govt. of India and also the ACP and MACP.
ii) Award cost of this litigation.
iii) Pass any such further order or direction as, in the facts and circumstances of the case, deemed fit and proper in favour of the applicant and against the respondents.
2. According to the applicant he was appointed as Halwai on 22.10.1983 and after the acceptance of the 5th CPC recommendations, he made representation to the respondents on 09.02.2008 for removal of financial anomaly in his matter including the expected scale of pay for the post of Halwai. However, he received impugned communication dated 30.10.2013 communicating that he was absorbed as Cook from the post of Halwai w.e.f. 22.10.1980. The pay scale of Cooks, which were further revised, was granted to him and he was upgraded under the ACP Scheme w.e.f. 09.08.1999 and his pay was fixed on 01.01.2006. Another financial upgradation was granted to him on 26.09.2013 with Grade Pay of Rs.2800 under the MACP Scheme on completion of 30 years regular service. It has been also stated in this communication that he was entitled to the benefits of financial upgradation under the MACP Scheme on completion of 10,20 and 30 years of regular service in the hierarchy of Grade Pay, which was from Rs. 1900 to 2000, 2400 and 2800 respectively. The respondents have not found any anomaly or disparity in the pay fixation and it has been found to be correct as per the policy in vogue. A sheet indicating the various dates of pay fixation of the applicant has been annexed with the impugned communication.
3. Counter reply has been filed on behalf of the respondents stating that the claim of the applicant, which is based on common category of non-statutory/Department Canteen Employees/Staff in various offices of Govt. of India, is not applicable in his case since he was working in the canteen of Defence Installation. The pay and allowances as admissible to the post of Halwai in accordance with DoP&T OM dated 24.09.1998 read with addendum dated 21.10.1998 could not, therefore, be granted to him. The canteen established in Defence Industrial Installations under Section 46 of the Factory Act 1948 are governed under the policy of the Ministry of Defence vide order dated 26.03.1998, which are different from those covered by the DoP&T OM of 24.09.1998. The applicant was treated as Cook after his absorption as Govt. employee and not Halwai as claimed. His service documents also show him absorbed as Cook/Halwai and he has signed it as correct, as would appear from a copy of the records at Annexure R-3. The post of Halwai does not exist in Workers Canteen in the Defence Industrial Installation under the Ministry of Defence. The question of revision of his salary as per the 5th CPC Report, therefore, does not arise. Respondents have, therefore, urged that the applicant has been granted benefits as applicable to him and the policy of the Ministry of Defence cannot be questioned as has been laid down in a catena of judgments of the Honble High Courts and Honble Supreme Court, which have been cited in the counter reply.
4. Rejoinder has also been filed which we have perused along with the other pleadings and documents on record.
5. We have heard both parties. Counsel for the applicant Shri Vinod Zutsi referred to the judgment of the Honble Supreme Court in the matter of Parimal Chandra Raha & Ors. vs. Life Insurance Corporation of India & Ors. 1995 AIR SC 1666. In this judgment the Honble Supreme Court held that no distinction can be made between the employees of statutory canteens and those of non-statutory canteens, and further that the Administrative Instructions on Departmental Canteens in Offices and Industrial Establishments of the Government are applicable to both statutory and non-statutory recognized canteens. Mr. M.S. Reen, learned counsel for the respondents reiterated the contentions in the counter reply.
6. We have considered the arguments of both parties. First of all, it is observed that the matter is hit by limitation because the relief that has been claimed by the applicant relates to the implementation of the 5th & 6th CPC. Moreover, the contention of the applicant is also based on his initial employment in 1985 wherein it was stated that he was appointed as Halwai (Annexure A-2), which respondents have controverted by stating that he was treated as Cook after his absorption on 22.10.1980 itself. The matter, therefore, would have to be gone into with effect from the date of his absorption which took place nearly 28 years back. The Honble Apex Court in S.S. Rathore vs. State of M.P. AIR 1990 SC 10 have categorically held in Paragraph- 22 as follows:-
22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.
(Emphasis added).
7. The first representation filed by the applicant was on 09.02.2008. The period of limitation would, therefore, be counted with effect from the date on which the period of six months had elapsed from the date of first representation of 09.02.2008. Going by the aforenoted judgment, the period of limitation shall be counted w.e.f. 09.06.2008 and not thereafter. On this count the application is highly delayed and such delay cannot be condoned.
8. The aspect of limitation not being considered in certain matters by the Tribunal was noticed by the Honble Supreme Court in D.C.S. Negi vs. Union of India & Ors. SLP (Civil) No.7956/2011 with C.C. No.3709/2011 decided on 07.03.2011. The following extracts of the judgment are reproduced below:-
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-
21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within imitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the Respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact an objection of limitation is not raised by the respondent/non applicant is not at all relevant.
(Emphasis added).
We have, therefore, to take note of the delay that has taken place in the matter.
9. In State of Orissa & Anr. vs. Mamta Mohanty (2011) 3 SCC 436 while dealing with the aspect of delay and laches, the Honble Supreme Court in Paragraphs 53 & 54 held as follows:-
53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.
54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See: M/s Rup Diamonds & Ors., v. Union of India & Ors., AIR 1989 SC 674; State of Karnataka & Ors. v. S.M. Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal & Ors. v. State of Haryana & Ors., AIR 1997 SC 2366).
(Emphasis added).
We are, therefore, of the view that inordinate delay in the matter cannot be overlooked.
10. The second aspect is that the relief claimed has a bearing on the policy of the Ministry with regard to its own employees inasmuch as whether they are entitled for consideration of pay scale as applicable to other employees as distinct from Canteen Workers established in Defence Installations.
11. In Centre for PIL & Anr. vs. Union of India & Anr. (W.P. (C) No.348/2010), the Honble Supreme Court observed in Paragraph-2 of the judgment that Government is not accountable to the courts in respect of policy decision. Similarly, in the matter of P.U. Joshi & Ors. vs. Accountant General, Hyderabad & Ors. with Union of India and Ors. vs. Basudeba Dora and Others (2003) 2 SCC 632; the Honble Supreme Court while rendering the judgment held in Paragraph-10 as follows:-
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
12. Having regard to the above, and in view of the inordinate delay in filing the OA, this OA is not fit to be allowed and the same is accordingly rejected. No costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) cc.