Central Administrative Tribunal - Bangalore
Sri Nagesh M Mugadur vs Union Of India on 27 June, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH ORIGINAL APPLICATION NO.170/01014/2016 DATED THIS THE 27th DAY OF JUNE, 2017 HONBLE JUSTICE SHRI HARUN UL RASHID, MEMBER (J) HONBLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (A) Sri Nagesh M Mugadur, 62 years S/o Sri.Martandappa Mugadur Retired Additional Textile Commissioner Presently residing at No.601, B Block Nagarjuna Meadows NCC Apartments, Doddaballapur Road Yelahanka, Bengaluru: 560064. ..Applicant (By Advocate Shri P.A.Kulkarni) Vs. 1. Union of India To be represented by its Secretary Ministry of Textiles Udyog Bhavan New Delhi: 110 011. 2. Secretary Department of Expenditure (Ministry of Finance) North Block Government of India New Delhi: 110001. 3. Secretary Department of Personnel and Training Government of India North Block New Delhi: 110 001. 4. Textile Commissioner Nishta Bhawan 48, New Marine Lines Mumbai: 400 020. 5. Director (Administration) Office of Textile Commissioner Nishta Bhawan 48 New Marine Lines Mumbai: 400 020. .Respondents (By Advocate Sri. M.Vasudeva Rao, Sr.PC for CG O R D E R
(PER HONBLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (ADMN) The applicant has filed the present OA seeking the following relief:
a. Quash the order bearing No: 22(34)/2015/EST-I/29, dated 04.08.2016, Annexure-A2, passed by Textile Commissioner, Ministry of Textiles, Mumbai, Respondent No.4 herein.
b. Direct the respondents to cause placement of the applicant in Non-functional Up-gradation SAG pay scale of Rs.37400-67000+GP of Rs.10000 on the basis of the findings/observations made by this Honble Tribunal in the previous OA of the applicant in TA.12/2016 decided on 29.4.2016 Ann-A1 with all consequential benefits including the monetary benefits flowing therefrom.
c. Direct further the respondents to cause revision of pension and entitled terminal benefits on the basis of the revised pay fixation structure flowing from relief (a) & (b) above.
2. This is second round of litigation. The applicant joined the Office of Textile Commissioner(OTC) as Assistant Director Grade-1 in August, 1986 through UPSC selection. He became Deputy Director in October, 1987 again through UPSC selection as a departmental outsider. Thereafter he was promoted as Director(Non-Technical) in 1994 and became Director (Enforcement) in 1996. He was promoted as Joint Textile Commissioner in December, 2003 and became Additional Textile Commissioner in January 2014. In between he was on deputation to Geological Survey of India from 29.12.2008 till his promotion as Additional Textile Commissioner and assumption of charge on 20.1.2014. Though he was drawing pay in PB-4 with Grade Pay of Rs.10000/- while on deputation to Geological Survey of India, on his promotion, his pay was fixed in the pay scale of PB-4 with Grade Pay of Rs.8900/- which was attached to the post of Additional Textile Commissioner. The applicant had filed three different OAs before the Kolkata Bench of this Tribunal and mainly contended for getting Non-Functional Up-gradation(NFU) SAG pay scale of PB-4 with GP of Rs.10000/-. Those OAs filed before the Kolkata Bench of the Tribunal were transferred to Bangalore Bench of the Tribunal and were heard and disposed together by a common order dated 29.4.2016. The first two OAs namely TA.No.10 & 11/2016 were dismissed and the third OA namely TA.No.12.2016 was disposed of by directing the authority to reconsider the case of the applicant relating to his NFU SAG in the light of observations made in the said order(Annexure-A1). The applicant submits that the observations contained in various paragraphs of the said order should form the basis for applicants present OA. However, the respondents while reconsidering the matter rejected his case vide order dated 4.8.2016(Annexure-A2) which is under challenge. The applicant submits that the Tribunal had observed that the applicant failed to establish that his employment in the Office of Textile Commission(OTC) as an officer of the General Central Service belong to Indian Supply Service (ISS) which is listed as Organized Group A Service. However the Tribunal in its order observed that the applicant has a strong case in so far as his prayer for Non-Functional Upgradation is concerned. It had also referred to another judgment of this Tribunal in OA.No.404/2009 which was upheld by the Honble High Court of Karnataka in WP.No.45591/2012(S-CAT)(Annexures-A5&A6).
3. The applicant submits that his service in OTC is General Central Services. If the General Central Service is also one of the listed Central Civil Services Group A cadre in the Schedule to CCS(CCA) Rules 1965, he should also be entitled for NFU SAG pay scale. This fact was appreciated by the Tribunal in its order dt.29.4.2016. While rejecting the claim of the applicant, the respondents failed to take notice of the scope of DOPT OM dated 20.11.2009(Annexure-A7) as well as the DOPT OM dtd. 31.7.1982 & 24.4.2009(Annexures-A3 & 4). A combined reading of all these OMs indicates that the NFU granted under these orders will be based on empanelment and posting of particular batch of IAS officers in the centre and shall be linked to the vacancies in the grade. This was further clarified by the DOPT in its OM dated 1.7.2010(Annexure-A8).
4. The applicant submits that there cannot be any different treatment between the officers belonging to Organized Group A Central services and Officers belonging to Central Civil Services Group-A cadre in the matter of equal opportunity in public employment and hence the stand taken by the authorities that only the officers belonging to Organized Group A Central Services are alone entitled for the benefit of NFU SAG pay scale would be in violation of the Article-16 of the Constitution of India. Since the highest cadre post of Textile Commissioner is carrying PB-4 pay scale, the applicant is entitled for his claim for the Grade Pay of Rs.10000/- on the basis of his service profile. The Tribunal in its order held that his service belongs to a post termed as Organized Service and hence his claim for the benefit of NFU should be considered. The Group-A service Recruitment Rules of Geological Survey of India states that the said service is classified as General Central Services Group-A gazetted which is automatically an Organized Group-A service and if NFU scale is available to an Organized Group-A cadre, it should also be available to a General Central Service Group-A officer. Therefore, the applicant submits that he fulfils all the terms and conditions laid down in DOPT OM dated 24.4.2009 and as such he is entitled for the NFU SAG pay scale right from 19.11.2007 itself. Therefore, he prayed for granting the relief as sought for.
5. The respondents have filed their reply statement wherein they reiterated the service profile of the applicant as already mentioned earlier. They submit that the applicant vide his letter dated 13.9.2011 and 21.6.2013 has submitted his representation for grant of Non-Functional Upgradation (NFU) in Senior Administrative Grade(SAG) with Grade Pay Rs.10000/- as applicable for Organized Group-A services as per DOPT OM dated 24.4.2009 and dated 1.7.2010. The matter was taken up with the Administrative Ministry i.e Ministry of Textiles who informed that the applicant does not fulfil the eligibility conditions for grant of NFU as the Group-A posts in the Office of the Textile Commissioner do not belong to any Organized Group-A services, but to General Central Service Group-A. This was informed to the applicant vide letter dt.27.8.2013(Annexure-R1). The applicant filed the OA claiming that his Group-A service in the Office of the Textile Commissioner(OTC) comes under Indian Supply Service(ISS) which was rejected by the Tribunal. The Tribunal in its order held that there is no documentary proof that he is or ever was a member of the ISS(Indian Supply Service). He was appointed to the Office of Textile Commissioner and continues to be a member of the staff of OTC which is a subordinate office with its Headquarters in Mumbai.
6. No doubt the Tribunal had asked the respondents organization to consider the representation of the applicant in the light of the DOPT OMs for grant of NFU and take appropriate decision within three months. Accordingly, the matter was considered by the respondents and it was noted that the applicant does not belong to Indian Supply Service and does not come under General Central Service Group-A, and hence cannot be considered for grant of NFU.
7. Moreover, the DOPT in its OM dated 20.11.2009 has clearly outlined the attributes of Organised Group-A services in order to remove any doubt and to differentiate the organised Group-A service from other services/cadres. The said attributes are also not attracted/fulfilled by the Group-A services of the office of the Textile Commissioner, Mumbai. The attributes of Organized Group-A service and fulfilment thereto by the posts in office of the Textile Commissioner are as under:
Attributes of Organised Group A Services Fulfilment thereto by the Group A posts in Office of the Textile Commissioner
(i) The highest cadre post is not below the level of Rs.37400/- 67000/- plus Grade Pay Rs.10000/- (SAG) The highest cadre post which is filled up by promotion, in the Office of the Textile Commissioner, is in the level of Rs.37400-67000/- plus Grade Pay Rs.8900/-. Though the top level post in the Office of the Textile Commissioner i.e. Textile Commissioner is in the level of Rs.37400-67000/- plus Grade Pay Rs.10000/-, the said post is not filled up by promotion, but by deputation under Central Staffing Scheme through the DoP&T. Hence, does not fulfil this point.
(ii) Have all the standard grades namely Grade Pays of Rs.5400/-(JTS), Rs.6600/-(STS), Rs.7600/-(JAG), Rs.8700/-(NFSG) and Rs.10000/-(SAG).
The Group A posts which is filled up by promotion in the Office of the Textile Commissioner have Grade Pays of Rs.5400, Rs.6600, Rs.7600, Rs.8700 and Rs.8900/- only.
Hence, does not fulfil this point.
(iii) At least 50% of the vacancies in JTS are required to be filled up by direct recruitment.
The group A post i.e. the post of Assistant Director Grade-I (Non-Technical), which carries the similar pay scale of JTS, in which the applicant was initially appointed by direct recruitment is being filled up 1/3rd (33.33%) only by direct recruitment and rest is being filled up by promotion.
Hence, does not fulfil this point.
(iv) All the vacancies above JTS and up to SAG level are filled up by promotion from the next lower grade.
In the office of the Textile Commissioner, the post of Deputy Director(Non-Technical) which carries the similar pay scale of STS is also filled up 50% by direct recruitment. The applicant himself was appointed in the post of Assistant Director Grade-I (Non-Technical) equivalent to JTS and in the post of Deputy Director (Non-Technical) equivalent to STS again by direct recruitment only. The last promotional post is Additional Textile Commissioner at the level of PB-4 of Rs.37400-67000/- + Grade Pay Rs.8900/- only (Grade Pay is not Rs.10000/-).
Hence, does not fulfil this point.
(v) While a service may comprise one or more distinct cadre(s), all such cadres should be governed by composite Service Rules facilitating horizontal and vertical movement of officers of a particular cadre at least up to SAG level.
The Group A posts in the Office of the Textile Commissioner are not governed by composite Service Rules, but governed only by the respective/individual post Recruitment Rules. The last promotional post is not at SAG level, but below SAG level i.e. Grade Pay Rs.8900/- only.
Hence, does not fulfil this point.
(vi) Consists of two distinct components, namely Regular Duty Posts and Reserves.
No such components are available in the Recruitment Rules of the Group A posts which were held by the applicant in the Office of the Textile Commissioner.
Hence, does not fulfil this point.
8. From the above, it can be clearly concluded that the Group-A posts in the office of the Textile Commissioner, which are classified as General Central Service do not meet the basis requirements or conform to the basic attributes of the Organized Group-A service. They have also referred to the recruitment rules in respect of Group-A posts in the office of Textile Commissioner in support of their contention(Annexure-R3 to R8). It is crystal clear that any post classified as General Central Service does not belong to Organized Group-A service and therefore the applicant is not entitled for grant of NFU in Senior Administrative Grade(SAG). The respondents have therefore considered the entire matter and were unable to consider the request of the applicant for grant of NFU as his claim is not supported by the DOPT guidelines and hence it was rejected. Therefore, there is no merit in the contention made by the applicant.
9. Heard the Learned Counsel for the parties. The Learned Counsel for the applicant while reiterating the submission made in the OA referred in detail to the observation of the Tribunal in its earlier order of 29.4.2016 in TA.No.12/2016 and stated that the Tribunal had felt that he has a strong case for grant of NFU. There is no dispute that the applicant belongs to General Central Service Group-A service, but there cannot be any distinction between Organised Group-A service and General Central Services and hence the applicant is entitled to the Non-Functional Upgradation as available to the organised Group-A services. He submits that the respondents have not considered the matter in a proper perspective and in the light of the observation made by the Tribunal. The applicant was also getting the Grade Pay of Rs.10000/- during the period of deputation. Therefore, denying the applicant the Non-Functional Upgradation is quite unfair and it should be allowed.
10. The Learned Counsel for the respondents, on the other hand, referred in detail to the reply statement and submits that the applicant tried to give different logic for getting higher Grade Pay. First he claimed parity on deputation post and then he claimed that he belongs to Indian Supply Service which was turned down by the Tribunal. Then he attempted to get the Non-Functional Upgradation available to Organized Group-A services. The Tribunal only asked the respondents to reconsider the matter and the issue has been examined in detail by the respondents in the light of the various orders of the DOPT. The applicant was part of the Office of Textile Commissioner which is only General Central Services and does not belong to any Organised Group-A service and therefore, he is not entitled to any monetary upgradation available to Organised Group-A service.
11. We have carefully considered the facts of the case and submissions made by either side. The matter was earlier considered by the Tribunal in TA.No.12/2016 as stated by the applicant and the Tribunal had directed the respondents to consider the representation of the applicant in the light of its findings and take an appropriate decision within three months after receiving copy of the order. The Tribunal had referred to the contention of the applicant that initially there was no defined definition of organised service and the DOPT prescribed certain attributes relating to organised services. The DOPT does not maintain an exhaustive list of organized services from time to time. However it does maintain the list of Group-A General Central Services. The General Central Services Group-A and the ISS figure at Serial No.8 and 31 respectively. The DOPTs OM dated 31.7.1982 contains the list of two types of organised services for the purpose of introduction of selection grade in the organised Group-A Central Services. Therefore, though they reject the claim of the applicant that he comes under the Indian Supply Service they felt that the representation of the applicant can be considered in the light of the claim made by the applicant in the OA. They also referred to the decision of this Tribunal in OA.No.404/2009 which was upheld by the Honble High Court of Karnataka. The respondents had considered the matter in the light of the Tribunals order and made a detailed analysis of various contentions made by the applicant in his representation and was of the view that the applicant does not belong to Organised Group-A service and hence he cannot be granted Non-Functional Upgradation in terms of DOPT OM dated 24.4.2009.
12. The issue therefore is whether the applicant is entitled for Non-Functional Upgradation(NFU) available for the officers of Organised Group-A Services. The DOPT OM dated 24.4.2009 which was issued following the Sixth Pay Commission recommendation has allowed the NFU for officers of Organized Group-A Services in PB-3 and PB-4. Since various service associations started claiming the status of an Organised Group-A Service and the consequential benefits, the DOPT vide its further OM dated 20.11.2009 issued a clarification regarding attributes of Organised Group-A Central Services just to highlight that all services cannot be treated as Organised Group-A Services. The respondents in their reply has compared the attributes of the Organised Group-A Services and fulfilment thereto by the Group-A posts in Office of the Textile Commissioner. The said comparison clearly show that the Group-A posts in the Office of Textile Commissioner do not meet the basic requirements or conform to the basic attributes of the Organised Group-A service. On careful examination of the same, it is crystal clear that the claim of the applicant that the Office of Textile Commissioner which is a General Central Service should be treated as Organised Group-A Service lacks substance and not justified. The applicant does not belong to Organised Group-A service and hence he would not be entitled for grant of Non-Functional Upgradation in the SAG level as allowed under DOPT OM dated 24.4.2009.
13. Reference has also been made on an earlier order of the Tribunal in OA.No.404/2009 which was upheld by the Honble High Court of Karnataka. The said order of the Tribunal pertains to a case of Geological Survey of India which is an Organised Group-A Service and grant of the benefits to the applicant therein from an earlier date. The applicant in the present case belong to General Central Services and claims for benefits at par with Organised Group-A services. Hence the issues are not similar in both the cases in the above said OA and the said order of the Tribunal in OA.404/2009 as confirmed by the High Court of Karnataka is not relevant to the present case.
14. From the detailed examination of all records, it is quite apparent that the applicant who served in the office of Textile Commissioner only belongs to General Central Services and hence cannot be extended the benefits as applicable to the Organised Group-A Services. Hence the applicant cannot be considered for grant of Non-Functional Upgradation(NFU) in SAG at par with Organised Group-A Services as claimed by him. On going through the speaking order dt.4.8.2016 issued by the respondents, we did not find anything wrong in their analysis and the conclusion drawn and rejection of the prayer of the applicant.
15. On detailed consideration of the facts and circumstances of the case, we hold that the OA is clearly devoid of any merit and is liable to be dismissed. Accordingly, the OA is dismissed. No order as to costs.
(P.K.PRADHAN) (JUSICE HARUN UL RASHID)
MEMBER (A) MEMBER (J)
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