Central Administrative Tribunal - Delhi
Shri M S Raja vs Union Of India Through on 23 September, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.4135/2013 Order reserved on 04.09.2014 Order pronounced on 23.09.2014 Honble Mr. G George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) In the matter of
1. Shri M S Raja Secretary General All India Audit & Accounts Association S/o Late Shri A Vasudevan Bhattathiripad Aged 53 years, R/o 15/1089-90 Vasundhara, P.O. Vasundhara Distt., Ghaziabad-201012 (U.P.)
2. Shri Anil Kumar Senior Auditor O/o Director General of Audit Central Revenue S/o Shri Gyaneshwar Dayal J-55, Pandav Nagar, P.O. Gunj Road Delhi-110092.
.Applicants (By Advocate: Shri S K Vyas) VERSUS Union of India through
1. Secretary to Govt. of India Ministry of Finance D/o Expenditure, North Block New Delhi 110001.
2. Comptroller & Auditor General of India 9, Deen Dayal Upadhyaya Marg New Delhi-110024.
..Respondents (By Advocate: Ms. Eshita Baruah for Shri Gaurang Kanth) Order Shri G. George Paracken:
The applicants in this Original Application are the Secretary General, All India Audit and Accounts Association and one of its members. The main relief sought by them is that the pay of the promotes shall be stepped up to the same stage of the entry of the direct recruits effective from 01.01.2006 or from the date of promotion whichever is later.
2. The brief facts of the case are that the Govt. of India has issued notification No.G.S.R. 622 (E) the Central Civil Services (Revised Pay) Rules, 2008, to implement the Revised Pay Structure recommended by the 6th Central Pay Commission. The said rules provided for fixation of pay in the Revised Pay Structure of employees appointed as fresh recruits on or after 01.01.2006 as in the place of Time Scale of Pay with minimum (entry) pay, rate of increment and maximum pay, the Revised Pay Structure was a Pay Band & Grade Pay Structure having minimum of the Pay Band and the Maximum for several posts clubbed together but without any rate of increment. It was also provided that provisions of the Fundamental Rules (F.Rs.) & all other Central Civil Services (Revised Pay) Rules, 1947, 1960, 1973, 1986 & 1997 shall not, save as otherwise provided in these rules, apply to cases where pay is regulated under those rules, to the extent they are inconsistent with those rules.
3. On the basis of the aforesaid pay Rules, 2008, the Govt. of India decided to set up an Anomaly Committee one at national level and others at departmental level. The said committees consisted of representatives of the official side and the staff side so that the anomalies could be settled. The staff side had submitted many items of anomalies for the consideration of the national anomaly committee and one of the item was about the benefit on promotion and yet another one was related to fixation of pay on promotion on or after 01.01.2006. In yet another item, it was pointed out that the new recruits were given more pay than the promotees of the same Pay Band and Grade Pay though they were senior to the new recruits. In this regard, item No. 33 of the agenda of the National Anomaly committee is reproduced as under:-
ITEM NO.33 NEW RECRUITS GETTING MORE PAY THAN PROMOTEES IN THE SAME PAY BAND AND GRADE PAY In many cases, an individual promoted to Grade Pay of Rs. 4600 or Rs. 4800 (Pre Revised 7450-225-1150 and 7500-250-13000) after 01 January 2006 is drawing less pay than direct recruits who joined the service on or after 1 January 2006. The reason for this anomaly is that the CCS (Revised Pay) Rule 2008 do not protect the promotee to get the minimum entry pay determined for the direct recruits joining service on or after 1 January 2008. This is a serious anomaly and needs immediate rectification by suitable amendment in the CCS (Revised Pay) Rule 2008.
ILLUSTRATION:-
Mr. X joined as an Auditor at the pre revised pay scale of 4500-125-7000/- PM before 1 January 2006. On clearing Section Officer Grade Examination, he is promoted to Section Officer after 1 January 2006. On promotion his pay will be fixed as per rule 13 in PB 2 as follows:-
Pay in the PB 2 = Rs.9300/-
(if after granting one increment on previous Band Pay + Grade Pay in the PB 1 is less than Rs.9300/-
Grade Pay = Rs.4800/-
Total Basic Pay = 14100/- on promotion Whereas the entry level pay for direct recruit who joins the service after 1 January 2006 as Section Officer has been fixed at Rs. 18150. there is a difference of Rs.4050/-
SUGGESTION:-
The CCS (Revised Pay) Rule 2008 should be amended immediately by inserting the sentence subject to minimum entry pay in the revised pay structure for direct recruits joining service on or after 1 January 2006.
4. In the second meeting of the National Anomaly Committee held on 27.03.2010, the staff side stated that while applying Rule 8 of CCS (RP) Rules, 2008, the pay of direct recruits (who are new entrants) is fixed at a higher stage when compared to the pay of the existing employees who are promoted in the same post and grade and demanded that this anomaly should be rectified by incorporating a provision that in case after 1.1.2006, if promotees pay is getting fixed at a stage lower than prescribed entry pay of a direct recruit as given in Section 2 of the First Schedule of CCS (RP) Rules, 2008, then the pay of the promotee shall be stepped up to the stage of the said prescribed entry pay of the direct recruit. The Staff side also referred to the order dated 17.02.2010 issued by the Ministry of Railways for steeping up of he pay of Senior promotee employee if he has been fixed at a stage lower than the prescribed entry pay of direct recruit which rectifies the anomaly partially. In support of the above demand, the Staff Side also referred to provisions of FR 22 according to which the pay of any person who has been promoted cannot be fixed at a stage lower than the minimum of the Pay Scale of the post to which he has been promoted and in the present Revised Pay Structure of Pay Band & Grade Pay such minimum of the pay is what has been prescribed as entry pay for direct recruits for different Grades of Pay. However after prolonged discussion on the matter, it was decided that the Official Side would re-examine the matter. A similar order was issued by the Comptroller & Auditor General of India also vide his letter dated 01.03.2011. The relevant part of the minutes of the meeting held on 27.03.2010, is reproduced as under:-
Agenda Item No.5- Revised Pay Rules
(i) Regarding finalisation of option to be given by the employees for the purpose of pay fixation, it was informed by the representatives of the Department of Expenditure that matter regarding delegation of powers to the administrative Ministries/ Departments to allow the revised option is under consideration.
(iv) Regarding anomaly in fixation of pay between direct recruits and promotees, the Staff Side reiterated that while applying Rule 8 of the CCS (RP) Rules, 2008, the pay of direct recruits and new entrants is fixed at a higher stage when compared to the existing employees who were promoted in the same grade. The Staff Side demanded that this anomaly should be rectified by incorporating a provision that in case after 1.1.2006, if a promotees pay is getting fixed at a stage lower than that of a direct recruit as given in Section 2 of the First Schedule of the CCS (RP) Rules, then the pay of the promotee should be fixed at the same stage as that of a direct recruit/ new entrant so that the existing employees pay is protected at par with the pay given to a new entrant. The Staff Side referred to the orders issued by) the Ministry of Railways for stepping up of the pay of a senior employee who is after promoted after 1.1.2006 and if his / her pay is fixed at a stage less than that of a junior employee who is recruited after 1.1.2006 and requested that Department of Expenditure should issue similar order/clarification in respect of employees of other Ministries/ Departments. The Official Side, however, was of the opinion that such orders should be issued only by the concerned Ministries/ Departments after seeking approval of the Department of Expenditure. Representatives of the Department of Expenditure also informed that the order issued by the Ministry of Railways is not applicable to all the cases and also that the same is applicable only in certain cases subject to fulfilment of certain conditions. Therefore, Representatives of the Department of Expenditure were of the view that a general order in this regard might create more confusion and hence it would be prudent to deal with the issue on case to case basis. In response to the suggestion of the staff side to re-examine the matter, representatives of the Department of Expenditure stated that the matter has already been examined and in cases, where the conditions of stepping up are met, there is no difficulty. However, in cases, where certain conditions are not met, it may not be possible to accommodate the demand of the staff side with the broad principles envisaged by the 6?th CPC in this regard. The staff side than stated that as per the relevant provisions of the Fundamental Rules, anybody who is promoted, his / her pay cannot be fixed at a stage lower than the minimum of the pay scale in which he /she has been promoted. The staff side further stated that any person, who is appointed afresh to a post, is normally appointed at the minimum of that pay scale. Therefore, whatever pay has been prescribed for a direct recruitee, has to be treated as the minimum of that particular post in the concerned pay band. On this basis, the staff side stated that pay of a promotee should not be fixed lower than that of a direct recruitee in a particular pay band. The representatives of the Department of Expenditure stated that as a general preposition, this is not in line with the scheme of things envisaged and implemented as result of the recommendations of the 6th CPC. Therefore, agreeing with the demand of the staff side would mean departing from the general recommendations of the 6th CPC and therefore additional information is required before taking any decision on this matter. In this regard the staff side contended that it is a question of relevant Fundamental Rules and not regarding the recommendations of the 6th CPC. The Staff Side insisted that provisions of the Fundamental Rules are statutory and therefore, they are above the recommendations of the 6th CPC and would prevail over them. Representatives of the Department of Expenditure stated that as per Rule 15 of the CCS (RP) Rules, 2008, the provisions of CCS (RP) Rules 2008 shall prevail in case there is any inconsistency between these rules and Fundamental Rules and therefore, the contention of the Staff Side regarding inconsistency with the Fundamental Rules and provisions regarding fixation of pay on promotion is not correct. After a prolonged discussion on the matter, it was decided that the Official Side will re-examine the matter.
5. Finally, in the 5th meeting of the National Anomaly Committee held on 17.07.2012, the Official Side stated that wherever there is a provision of direct recruitment in the Recruitment Rules, pay on promotion would be fixed at a prescribed minimum of the Entry Pay as provided for the Direct Recruits in the Revised Pay Rules, irrespective of the fact whether direct recruitment has actually taken place or not. The relevant part of the minutes of the said meeting reads as under:-
8.3 Item No.5(ii), (iv) (with 32 & 33), (v) (vii) Rule 8 of the revised pay rules Fixation of pay on promotion Staff Side stated that anomaly in this case is basically due to the fact that it is for the firs time that CPC has recommended specific entry level pay for Direct Recruits (DRs). This has resulted in employees who were appointed in service prior to the DRs and got promoted earlier getting less pay as compared to their counterparts recruited directly and who joined after 01.01.2006. The Official Staff stated that in such cases stepping up of pay is permissible subject to certain conditions. However, the Staff Side insisted that on promotion, the pay of all the promotees should be fixed at the entry level of pay of the post as in the case of the direct recruits wherever there is a provision of direct recruitment in the RRs.
The Staff Side requested that in cases where no direct recruitment actually took place even though RRs provided for the same or when a DR did not join, stepping up of pay should be considered.
This suggestion of the Staff Side was considered by the Official Side, who responded by stating that wherever there is a provision of direct recruitment in the Recruitment Rules, pay on promotion would be fixed at the prescribed minimum of the Entry Pay as provided for the Direct Entrants in the Revised Pay Rules, irrespective of the fact whether direct recruitment has actually taken place or not. The Staff Side agreed to close this issue thereafter."
6. That the Department of Personnel and Training processed the aforesaid decision of the National Anomaly Committee. The applicant obtained a copy of the office notes in File No.10/2/2011-E-III(A)/pt, under the Right to Information Act, 2005. According to the said note, the DOP&T has analyzed the reasons for introduction of the entry pay in case of Direct Recruits in para 8 to 13 of that note and have also examined why a direct recruit may draw higher pay than a senior promotee in the Revised Pay Structure (vide paras 14 & 15 of the said note) & then examined the above decision of the National Anomaly Committee (vide paras 22 to 24 of the said Notes). The Department of Personnel & Training have noted that the level of a minimum entry pay for a post tends to reflect the level of duties and responsibilities assigned to that post. Thus, if a level of pay has been assigned to a new recruit, the fair play demands that the same level be attached to an entrant to that post through promotion route too. For, both direct recruit and promotee are required to perform their functions in an equal measure and promotees are not supposed to fare a shade lower than Direct Recruits. Therefore, if the pay prescribed for Direct Recruits at a time of entry is such as is higher than the pay fixed in the case of promotees under the normal Rules of Fixation (under CCS (RS) Rules 2008) it may amount to creating an unfair distinction between Direct Recruits and promotees. The Department of Personnel & Training have held that since the decision has been taken in the National Anomaly Committee, where both official and staff side were present (including J.S. (Per) of Department of Expenditure) the balance appears to lie in going along with the said decision. The Department of Expenditure has however decided, as per these notes, not to accept this recommendation of the National Anomaly Committee and continue with the earlier decision of permitting stepping of pay only in cases where a junior Direct Recruit is actually drawing higher basic pay than the senior promotee.
7. It is in the above facts and circumstances of the case, the applicants have filed this OA seeking the following reliefs:-
a) That the respondent may be directed to honour the agreement reached in the meeting of the National Anomaly Committee held on 17.07.2012.
b) That the Rule 13 of the CCS (RP) Rules, 2008 may be amended by incorporating a proviso to the effect that a promote to a post on or after 01.01.2006, if his pay on promotion under Rule 13 of the CCS (RP) Rules, 2008 has been fixed at a stage lower than the prescribed entry pay of a direct recruit to the same post as given in Section 2 of the First Schedule of the CCS (RP) Rules, 2008, the pay of the promote shall be stepped up to the same stage of the entry pay of the direct recruit effective from 1.1.2006, date of promotion, whichever is later.
c) That a promotee to a post not having an element of direct recruitment may also be fixed at the entry pay as prescribed for the respective Grade Pay as given in Section 2 of the First Schedule of the CCS (RP) Rules 2008 effective from 1.1.2006 or date of promotion whichever is later.
d) That the respondents may be directed to re-fix the pay of promotes from 1.1.2006 date of promotion by stepping up to the level of entry pay and to pay arrears arising there from with interest @9% per annum thereon within a period of 3 months. Any other appropriate relief which the Honble Tribunal considers necessary may also be granted.
8. The respondents in their reply have submitted that it was only with the introduction of the concept Minimum Entry Pay for DRs by the 6th CPC that an anomaly has been created in the pay of the seniors in the cadres where there is an element of direct recruits. They have also stated that prior to 6th CPC, DRs were fitted at the minimum of the scale of pay applicable to the Grade in which they were recruited. Hence, the anomaly is to be rectified only in those cases where there is an element of direct recruitment and a junior has been appointed in the cadre on or after 01.01.2006. They have also stated that this anomaly has been crested because the 6th CPC merged pay scales at certain levels and introduced the concept of Pay Bands and Grade Pay to distinguish between the hierarchy of posts sitting within a particular Pay Band. While the pay scales have been merged into Pay Bands, the hierarchy of post has continued to exist. As a result of which, if Direct Recruitment takes place for a certain post which is above the minimum of the Pay Band, the pay can obviously not be fixed at the minimum of the Pay Band. Further, the respondents have stated that the above said position that the 6th CPC recommended the concept of Minimum Entry Pay for the DRs providing a normative basis for matching pay with the level at which the recruitment takes place. The result of this methodology is that in certain situations, the entry pay of a DR could be higher than the pay of a promotee fixed in that Grade. Hence, an anomaly has been created. To overcome the said anomalous situation, the National Anamoly Committee (hereinafter as NAC) recommended that wherever there is a provision of direct recruitment in the Recruitment Rules, pay on promotion in case of promotees would be fixed at the prescribed minimum of the entry pay as provided for the Direct Recruits in the Revised Pay Rule, irrespective of the fact whether direct recruitment has actually taken place or not. The said situation has been discussed in detail and references have already been made to the Ministry of Finance. Even though no reply has been received from the Ministry, yet substantial points are covered by the clarifications dated 20.03.2009 & 12.11.2009 issued by the Ministry in this behalf. In view thereof, the C&AG has also decided to limit the anomaly only to the cadres where the element of direct recruit exist and a junior has been appointed directly to the cadre on or after 01.01.2006. The said issue was again discussed in the meeting of the NAC on 17.07.2012. It has been observed that the system of Entry Pay for Direct recruits was devised by the Pay Commission only to ensure smooth transition of the new structure of running Pay Bands and Grade Pays from the old structure. This was devised by the Pay Commission only to cater to two different situations. It was observed that unless and until an anomaly arises where the pay of a junior DR is actually more than a senior promotee appointed on or after 01.01.2006, it is not appropriate to allow Entry Pay to those where there is no element of direct recruitment. Such a blanket extension of Entry Pay will place employees at a disadvantageous position holding analogous post with the same Grade Pay where Direct Recruitment is not a prescribed mode of recruitment. They will end up demanding similar dispensation. Hence, it was decided to cater to the recommendations of the 6th CPC and the principle of Entry pay is applied where anomaly occurs subject to the following conditions:-
Stepping up of pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basic pay than the seniors. In such cases, the basic pay of the seniors will be stepped up with reference to the pay of the directly recruited junior provided they belong to the same seniority list for all purposes.
(b)Government Servants cannot claim stepping up of their revised basic pay with reference to the entry pay in the revised structure for direct recruits appointed on or after 01.012006 as laid down in Section II of Part A of the First Schedule to the CCS (RP) Rules, 2008, if their cadres does not have an element of direct recruitment or in cases where no junior is drawing basic pay higher than them.
(c) Stepping u of pay of the seniors shall not be applicable in cases where direct recruits have bee granted advance increments at the time of recruitment.
9. However, according to the respondents the said recommendation of the National Anomaly Committee was not accepted by the Ministry of Finance on the following grounds:
7. It appears difficult to accept the arguments in favour of the decision of the NAC on account of the following:-
(a) Setting right of an anomaly can take place only after an anomaly actually arises. If no direct recruitment has taken place and no anomaly has therefore resulted, giving the benefit of an increase in pay amounts to giving a benefit not admissible under the normal pay rules. This could potentially lead to a further anomalous situation vis-avis comparable posts where no element of direct recruitment is provided for in the RR, but where the nature of work is similar.
(b) The recommendation of the NAC is to increase the pay of a promotee even where no direct recruitment has taken place but where the RRs prescribe an element of direct recruitment suggesting the setting right of a perceived disparity between pay of a direct recruit and a promotee. It would, however, be necessary to view this recommendation in the larger context of the 6th CPC s conscious movement from multiple pay scales to rationalization of the pay structure by way of Pay Bands and Grade Pay and the consequent introduction of a new concept of entry pay. While it is possible that this may have resulted in a situation where in certain cases, the procedure for calculating entry pay for DRs could result in the entry pay being higher than the pay fixed for senior promoted officers in the same grade, this problem would be rectified on the basis of this Departments decision indicated at para 5 above.
(c) We also have no data with us at the moment as to possible financial implications if we agree to the recommendation of the NAC.
10. They have also stated that in view of the above, the benefit of Entry Pay cannot be granted to all regardless of whether there is an element of Direct Recruitment in that cadre or not. Hence, the OA of the Applicant is not sustainable and is liable to be dismissed. Further, there is no valid ground on the basis of which the Applicants seek amendment of Rule 13 of the CCS (RP) Rules, 2008 or seek arrears of pay, if any. In this regard, the respondents have relied upon the judgment of the Honble High Court of Punjab and Haryana in the case of Ram Milan & Ors vs. Central Administrative Tribunal bearing W.P.(C) No.21738 of 2012 has already held that the pay of the Petitioners therein were to be fixed in terms of Rule 13 of the CCS (RP) Rules, 2008. It has been held that the claim of the Petitioners therein for revised pay scale at par with direct recruits from the date of their promotion is not tenable.
11. We have heard the learned counsel for the applicant Shri S K Vyas and learned counsel for the respondents Ms. Eshita Baruah for Shri Gaurang Kanth. In our considered view, the recommendation of the Anomaly Committee are not binding on the Govt. The respondents in their reply have explained as to why the aforesaid recommendation cannot be implemented. Therefore, it would not be within the jurisdiction of this Tribunal to enforce the aforesaid recommendation of the Anomaly Committee through a judicial order. We, therefore, do not find any reason to interfere with the decision of the respondents in this matter. Accordingly, this OA is dismissed. There shall be no order as to costs.
(Shekhar Agarwal) (G George Paracken)
Member(A) Member(J)
/vb/