Central Administrative Tribunal - Ernakulam
P K Karunakaran Nair vs Cpwd on 12 July, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00351/2020
Wednesday, this the 12th day of July 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
1. P.K.Karunakaran Nair, Aged 77 years,
S/o.Kunhikannan Nair,
Retired Assistant Engineer (Civil),
CPWD, O/o.the Executive Engineer,
Mysore, Central Division, CPWD,
Nirman Bhavan, T.Narasipura Road,
Siddhatha Nagar, Mysore - 570 011.
Residing at Honey Dew, Cheliya P.O.,
Edakulam-Koyilandy, Kozhikode - 673 306.
2. M.V.Kidav,
S/o.late K.M.Achuthan Nair,
Retired Assistant Engineer (Valuation),
O/o.the Executive Engineer (Valuation),
Income Tax Department, Kozhikode.
Residing at Pankaj, 33/3780, Flt.Lt.Arun Road,
Chevayur P.O. Calicut - 673 017.
3. C.Krishna Kumaran, Aged 77 years,
S/o.A.Sankara Menon,
Retired Assistant Engineer (Civil),
O/o.the Executive Engineer,
Cochin Central Division, CPWD,
II Floor, Block No.C-2, Kendriya Bhavan,
Kakkanad, Kochi - 682 037.
Residing at Changarangath House,
P.O.Veluthur, Thrissur - 680 012.
4. T.Jayadevan Nedungadi, Aged 78 years,
S/o.late PCMK Raja,
Retired Assistant Engineer (Civil),
O/o.the Superintending Engineer,
Chennai Centre, Circle 2, CPWD, Shastribhavan,
Haddows Road, Chennai - 600 006.
Residing at Mullasseri House, Mankave,
Kozhikode - 673 007.
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5. P.Ramachandran, Aged 76 years,
S/o.Sankunni Panicker,
Retired Assistant Engineer (Civil),
CPWD, Thrissur Central Division, Thrissur.
Residing at Krishnakripa, Bhimand Post,
Palakkad - 678 601.
6. V.C.Kunhjammed, Aged 77 years,
S/o.Sooppy,
Retired Assistant Engineer (Civil),
O/o.the Executive Engineer, CPWD,
Calicut Central Division, Kallai, Kozhikode.
Residing at Taj House, Pathiyarakkara,
Vadakara - 673 105.
7. E.P.Nalini (Family Pensioner), Aged 64 years,
W/o.late K.K.Sankaran Nair,
Retired Assistant Engineer (Civil),
O/o.the Executive Engineer, CPWD,
Calicut Central Division, Kallai, Kozhikode.
Residing at Madhavanilayam, P.O.Ulliyery,
Via Quilandy, Kozhikode, Kerala - 673 620.
8. C.H.Balakrishnan, Aged 77 years,
S/o.C.Kannan,
Retired Assistant Engineer (Civil),
O/o.the Chief Engineer,
South Zone III, CPWD, Bengaluru.
Residing at Soubhagya Nivas,
Janatha Road to Kannamkuzhi Temple Road,
Narayana Nagaram, P.O.Vadakara, Kozhikode - 673 101.
9. Sandakumaran.P., Aged 76 years,
S/o.Patannayil Choyi,
Retired Assistant Engineer (Civil),
CPWD, Hyderabad Central Division, Hyderabad.
Residing at Sreepuri Nanminda, Kozhikode - 673 613.
10. Sarasa Narayanan (Family Pensioner), Aged 72 years,
W/o.late K.Narayanan,
Retired Assistant Engineer (Civil),
O/o.the Chief Engineer (Valuation),
Income Tax Department, Valuation Cell,
3rd Floor, Prakash Prasidium Building,
110, Uthamar Gandhi Road,
Numgambakkam, Chennai - 600 034.
Residing at Akarsh, 2/62 A, Malakkal Road,
East Hill, P.O. Karaparamba, Kozhikode - 673 010.
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11. K.M.Sylaja, Aged 68 years,
W/o.late Sandakumaran P.,
Retired Assistant Engineer (Civil),
CPWD, Hyderabad Central Division, Hyderabad.
Residing at Sreepuri Nanminda, Kozhikode - 673 613.
12. P.Sajini, Aged 50 years,
D/o.late Sandakumaran P.,
Retired Assistant Engineer (Civil),
CPWD, Hyderabad Central Division, Hyderabad.
Residing at Sreepuri Nanminda, Kozhikode - 673 613.
13. P.Sajith Kumar, Aged 44 years,
S/o.late Sandakumaran P.,
Retired Assistant Engineer (Civil),
CPWD, Hyderabad Central Division, Hyderabad.
Residing at Sreepuri Nanminda, Kozhikode - 673 613. ...Applicants
(By Advocate Mr.R.Sreeraj)
versus
1. Union of India represented
by its Secretary to the Government of India,
Ministry of Housing and Urban Affairs,
Nirman Bhavan, Maulana Azad Road,
New Delhi - 110 011.
2. The Director General,
CPWD, Nirman Bhavan,
Maulana Azad Road, New Delhi - 110 011. ...Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil, SPC)
This application having been heard on 23 rd June 2023, the Tribunal on
12th July 2023 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicants in this O.A are retired Assistant Engineers (Civil) (AE Civil) of the Central Public Works Department (CPWD) or the legal heirs of retired Assistant Engineers (Civil). They have filed the O.A because they state that they are aggrieved by the inaction on the part of the respondents -4- (1st respondent - Secretary, Ministry of Housing and Urban Affairs, Nirman Bhavan, New Delhi and 2nd respondent - Director General, CPWD, Nirman Bhavan, New Delhi) in extending them the benefit of the Rs.7500-12000 scale of pay with effect from 01.01.1996. It is submitted by the applicants that the reason for this inaction is because there had been a difference of opinion between the respondents (CPWD/its administrative ministry, Ministry of Housing & Urban Affairs) with the Department of Expenditure under the Ministry of Finance. However, if this was the case, it is significant to note that the said Department of Expenditure was not been made a respondent in the case. To be fair, nor have the respondents during the course of pleadings sought to incorporate them in the respondents array. We are thus passing orders in this case on the basis of the averments filed on behalf of the respondents - Secretary, Ministry of Housing and Urban Affairs and the Director General, CPWD only.
2. The applicants submit that several of their juniors, who had been earlier declared ineligible, have since been extended the benefit of the scale of pay of Rs.7500-12000 against the years 2002 and 2003 on the basis of orders of various Benches of the Tribunal. It is also submitted by them that the CPWD itself does not have any quarrel with the eligibility of the applicants for the scale, but it is being dragged on because of their disagreement with the Department of Expenditure. Again, given this situation, it is indeed surprising that both sides have not cared to include the Department of Expenditure in the array of parties. This Tribunal too, at this -5- late stage, does not wish to prolong the matter further by any suo moto orders in this regard. The applicants submit that by granting the higher pay structure for juniors and at the same time by denying the same benefit to the seniors, the respondents are treating 'the equals unequally on arbitrary and irrational grounds'.
3. It is submitted that the 1 st applicant in the O.A., Shri.P.K.Karunakaran Nair, retired Assistant Engineer (Civil) of the CPWD, had commenced service on 24.04.1964 as a Junior Engineer (Civil). He was confirmed in the post with effect from 01.04.1981. On 20/21.02.1991 he had been promoted as Assistant Engineer (Civil) on a regular basis. He then retired on superannuation with effect from 30.06.2002. It is submitted that all the applicants who were promoted as Assistant Engineer (Civil) during the year 1991 (or even earlier) had retired in 2002/2003. While leading a retired life they came across an Office Order dated 24.08.2016 copy produced at Annexure A-1 (almost 13 to 14 years after retirement) by which the competent authority in the CPWD modified the distribution of the posts of Assistant Engineers (Civil & Electrical) and Assistant Director (Horticulture), year wise in the CPWD from 1996-97 to 2002-03, in the scale of Rs.6500-10500/- and Rs.7500-12000/-. This Office Order revealed that in the case of Assistant Engineer (Civil) there were as many as 931 posts in the scale of pay of Rs.7500-12000/- in the year 1996-97. Further the order directed the Chief Engineer to take further action regarding grant of scale of pay to individual officers.
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4. The applicants submit that the order at Annexure A-1 is the basic order as per which the scale of pay of Rs.7500-12000/- had been sanctioned to the 50% senior most Assistant Engineers (Civil & Electrical) & Assistant Director (Horticulture) in CPWD. It is submitted that subsequent to the order at Annexure A-1, the respondents CPWD issued a provisional eligibility list of Assistant Engineers (Civil) for grant of the said scale of pay of Rs.7500-12000/- to the 50% senior most Assistant Engineers and Executive Engineers by the O.M produced at Annexure A-2 dated 06.01.2017. The draft eligibility list was prepared and circulated to all concerned for bringing forth any omissions or discrepancies in regard to their date of birth/date of appointment as Junior Engineer as well as Assistant Engineer, qualification etc. therein to be brought to the notice of their controlling officers.
5. It is submitted that the retired Assistant Engineers (Civil) linked with this O.A appear at Sl.Nos.874, 872, 828, 900, 880, 922, 870, 902, 904 and 492 in the list. Hence, in other words, they fall within the total of 931 posts which were set apart for grant of the scale of pay of Rs.7500-12000/- during the year 1996-97. Further, as required at Annexure A-2, their respective offices furnished the confirmation of their service details among others, to the CPWD Headquarters. In proof of this a copy of letter dated 15.06.2017 in respect of the 1st applicant has been produced at Annexure A-3. The applicants submit that given these developments they were quite confident that the scale of pay of Rs.7500-12000/- would be extended to them with -7- effect from 01.01.1996 in due course. However, after this was done, there was no further action taken until another O.M was issued by the CPWD Headquarters on 12.11.2018 which is produced at Annexure A-4 in the O.A. In this O.M the Director General, CPWD under the subject of 'Grant of pay scale of Rs.7500-12000/- to Assistant Engineers/Executive Engineers' recorded that in reference to the Office Order dated 13.05.1998 and in compliance of the Office Order dated 24.08.2016 "it has been decided to grant the pay scale of Rs.7500-12000/- to those Assistant Engineers/Executive Engineers who were the applicants in various court cases from the date mentioned against their name as per the details given at Annexure. They would be paid arrears with fixation of pay accordingly. Earlier they have been declared ineligible as they were not covered in senior most 50% of the posts as per the relevant seniority lists. However, now after modification in the distribution of posts in the grade of Assistant Engineers vide Office Order dated 4/10/2016-S&D/689 dated 24.08.2016, their claim have been re-examined and they have been found eligible for grant of the pay scale of Rs.7500-12000/- as per the details given at Annexure." In the Annexure to the O.M., a list of 48 names was indicated wherein various Executive Engineers and Assistant Engineers (Civil) were to be granted the said scale with effect from 01.01.2002/01.01.2003, being applicants in various O.As filed in different Benches of this Tribunal in 2010 and 2011 and also where approval of Department of Expenditure was received in 2010/2011.
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6. The applicants are aggrieved because the names which find a place in the above Annexure A-4 list are only of those who had filed court cases and who have had orders issued in their favour and where the Department of Expenditure has agreed with the proposal of the CPWD. The seniority of the Assistant Engineers is ignored and it is submitted that, in fact, all the persons who appeared in the Annexure A-4 list are juniors to the Assistant Engineers in this O.A. The dates of eligibility for grant of the scale of pay of Rs.7500-12000/- for all these officials in Annexure A-4 falls either in 2002 or in 2003, whereas the retired Assistant Engineers linked with this O.A were eligible for the same with effect from 1996-97. Hence there is no apparent reason to deny these applicants the benefits of the scale of pay of Rs.7500-12000/- with effect from 1996-97.
7. Hence, aggrieved by the above developments as revealed by the Annexure A-4 list dated 12.11.2018, the 1st applicant submitted a representation to his controlling officer, the Chief Engineer, Southern Zone III, CPWD, Bangalore on 07.12.2018. He indicated in the representation that even after more than a year had passed since his service details were furnished to the office, he was still not aware about the steps taken by the said Chief Engineer to implement the pay scale of Rs.7500-12000/- in his case with effect from 01.01.1996. When there was no response from the office concerned, the 1st applicant made a further representation/grievance to the Department of Pensions & Pensioners Welfare, Government of India, -9- Pensioners' Grievance Portal. It is in response to this application that the 1st applicant received the impugned order at Annexure A-8 dated 19.09.2019. It was indicated as follows in the order :
" It is informed to you that the matter related to grant of pay scale of Rs.7500-12000 to all eligible 50% of Assistant Engineers working in CPWD as per the recommendation of the 5th CPC for the period 01.01.1996 to 21.07.2003 was taken up with Department of Expenditure. However, Department of Expenditure did not agree to the proposal of granting that scale to all the eligible 50% senior most A.Es. It has been decided that the pay scale was granted to those A.Es who is the applicant of the Court cases as per the direction of the Hon'ble CAT, after obtaining concurrence of Department of Expenditure."
A similar letter issued to the 2nd applicant is produced at Annexure A-11. It is in these circumstances that the applicants have filed this O.A seeking the following relief :
1. Call for the records leading to the issue of Annexure A-8 and Annexure A-11 and quash the same.
2. Declare that the inaction on the part of the respondents in granting the applicants the benefit of the scale of pay of Rs.7500-12000 with effect from 01.01.1996 is illegal, arbitrary, unjust, unreasonable and irrational and that the same violates Articles 14 & 16 of the Constitution of India.
3. Direct the respondents to extend the applicants the benefit of the scale of pay of Rs.7500-12000 with effect from 01.01.1996 with all consequential benefits including arrears, refixation of pay, revision of pension, interest etc.
4. Such other relief as may be prayed for and this Hon'ble Tribunal may deem fit to grant.
5. Grant the cost of this Original Application.-10-
8. The applicants submit that the CPWD has been inordinately delaying the benefits of the scale of pay of Rs.7500-12000 to them on the ground that it has not been agreed to by the Department of Expenditure. At the same time, several juniors of the applicant/Assistant Engineers (Civil), who were earlier declared ineligible, have since been extended the benefit against the years 2002 and 2003 as evidenced by Annexure A-4, on the basis of the orders of the Coordinate Benches of the Tribunal. It is also submitted that the CPWD does not apparently have any quarrel with the eligibility of these applicants herein, but have not extended the benefit only because of the non-concurrence of the Department of Expenditure. The applicants submit that it is incorrect to deny a section of the employees a financial benefit on the ground of objection from the Department of Expenditure, while extending the same benefit to another section who are juniors to the former.
It is submitted that this decision of not giving them the benefit flies in the face of the ratio laid down in the Hon'ble Supreme Court's judgment in Dr.S.M.Ilyas & Ors. vs. Indian Council of Agricultural Research & Ors., delivered on 13.11.1992 in C.A.No.2736/1991. The Hon'ble Supreme Court observed in the judgment that "....It is no doubt correct that while introducing a new scheme of pay scales and fixing new grades of posts, some of the incumbents may have to put to less advantageous position than others, but at the same time the granting of new pay scales cannot be allowed to act arbitrarily and cannot create a situation in which the juniors may become senior or vice-versa."
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9. In addition the applicants also submit that by the implementation of the higher pay structure for juniors while at the same time denying the same benefit to the seniors the respondents are treating equals, unequally on arbitrary, unreasonable and irrational grounds which violates Articles 14 & 16 of the Constitution of India. The Hon'ble High Court of Kerala in its judgment in Kamala Devi vs. K.S.F.E Ltd., reported in 2002 (1) KLT 157 had gone into the issue of classification of employees and had referred to various judgments of the Hon'ble Supreme Court which had laid down certain tests in respect of the effect of Article 14 in such matters. It was indicated in this judgment that the Hon'ble Supreme Court had laid down that the measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. Further, the Hon'ble Supreme Court had also indicated that a classification is bad as under
inclusive, when a State benefits or burdens persons in a manner that further a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. It is submitted by the applicants that the ratio of these above decisions applies squarely in the facts and circumstances of the present case. The decision of the respondents not to extend the scale of pay of Rs.7500-12000 to the applicants herein was not based on valid relevant principles applicable to all those similarly situated but has only been guided by or based on extraneous or irrelevant considerations. The applicants have quoted a number of other decisions as well in their grounds to establish this position.-12-
10. The respondents have filed two reply statements. In their initial reply statement dated 22.06.2022, it was submitted that the recommendation for grant of upgraded scale of Rs.7500-12000 to 50% of senior most A.Es had been taken up with the Ministry of Finance, Department of Expenditure.
After the approval of Ministry of Finance, 884 posts were placed in the scale of Rs.7500-12000 and the remaining 884 posts in the scale of Rs.6500-10500 vide order dated 19.06.1998, which has been produced at Annexure R-1. It is submitted that this order was implemented prospectively with effect from 13.05.1998 in accordance with the approval of the Ministry of Finance. Later, the Association of JEs/AEs took strong objection to the said move under the pretext that the new higher scale was considered as 2nd ACP. Subsequently, in consultation with Department of Expenditure, it was decided to place all A.Es in a single revised scale of Rs.6500-10500. As a result the scale of pay of Rs.7500-12000 which was to be extended to 50% of the posts stood abolished. It is submitted by the respondents that the order of the CPWD placing all the posts of Assistant Engineer and Assistant Director (Horticulture) in a single revised pay scale of Rs.6500-10500 was issued on 21.07.2003, produced at Annexure R-2. Thus, by this order the pay scale of Rs.7500-12000 granted vide the earlier order was withdrawn. It is submitted by the respondents that after the abolition of the same, no such scales exist for A.Es in the department (CPWD).
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11. It is submitted however that during the currency of the operation of the order at Annexure R-1, one Mr.R.C.Jain, AE approached the concerned Bench of this Tribunal for the grant of the Rs.7500-12000 Pay Scale during 01.01.1996 to 21.07.2003. The Tribunal had allowed the prayer of the applicant. Further, the order of the Tribunal was appealed against in the Hon'ble High Court, but was dismissed. Subsequently, the Hon'ble Supreme Court also had dismised the department's appeal. Thus, the said Mr.Jain was given the pay scale of Rs.7500-12000. It is submitted that thereafter some other A.Es also approached the Tribunal/Courts and as per the direction of the Tribunals/Courts, based on their eligibility, the higher scale was granted to them with the concurrence of the Department of Expenditure. Consequently, the Department proposed for extension of the same benefit to all other remaining A.Es. However, the Department of Expenditure did not agree to extend the same to others. In other words, it is submitted that the benefit of higher scale was granted only to certain A.Es who had approached the Courts during the currency of operation of Annexure R-1. The same was extended to them on orders of the Tribunal/Courts after duly assessing their eligibility and with the concurrence of Department of Expenditure. However, the Department of Expenditure has not agreed to extend similar benefits to all other similarly situated A.Es. The Government has already issued orders withdrawing the scale of pay of Rs.7500-12000 allowed to 50% of senior most A.Es. In other words, the said scale does not exist in the department. It is only those who got orders from the Courts during the operational existence of the scale -14- who had secured the higher scale. Hence, as the same has been withdrawn the claim of the applicants for a higher scale cannot be granted. It is again reiterated that a proposal for extending the scale of Rs.7500-12000 to those A.Es/E.Es who are non applicants in various O.As was referred to the Department of Expenditure by the CPWD. However, the Department of Expenditure did not agree to the same. The pay scale of Rs.7500-12000 was being granted on case to case basis after the concurrence of Department of Expenditure based on the directions of the Tribunals. Hence, there is no question of any prejudice caused by the department's action to grant the higher pay scale to juniors and denying the same benefits to the senior as these benefits of the pay scale were extended only after fulfilling all the necessary conditions and in pursuance of Court orders.
12. The applicant stoutly opposed the above contentions in his rejoinder by contending that it was not acceptable that the order conveying the benefit of the higher pay scale of Rs.7500-12000 had been withdrawn and that they (the applicants) cannot claim it. The proof of withdrawal has not been furnished by the respondents. The respondents' case is that the higher scale was withdrawn and some of the juniors of the applicants had approached the Tribunals during the currency of the order conveying the grant of the higher scale and by virtue of favourable orders from the said Tribunals had got the benefit. It is submitted that the respondents should not be permitted to get away with the matter by treating it lightly like this. If their contention was accepted, it would be like permitting creation of a -15- sub classification among a class of homogeneous people in violation of Articles 14 and 16 of the Constitution of India. Further, it will go against the decision in Dr.S.M.Illyas (supra) as well as the findings of the Hon'ble High Court of Kerala in Kamala Devi (supra). The applicants have referred to the Hon'ble Supreme Court's judgments in other cases about similar treatment in such cases. They submit that they are entitled to the extended benefit of this higher pay scale of Rs.7500-12000 from their respective due dates as they satisfied all the conditions.
13. During oral submission learned counsel for the applicants, Shri.R.Sreeraj also pointed out that the orders in different O.As in various Benches of this Tribunal as indicated in the Annexure A-4 order granting the enhanced pay scale to those who had approached different Tribunals, reveals that most of these O.As were filed either in 2010 or 2011 and that the applicants, therein, have been granted the pay scale of Rs.7500-12000 with effect from 2002/2003 respectively. This fact flies in the face of the contention of the respondents that the grant of the pay scale of Rs.7500-12000 was in respect of all those who had filed O.As in the period from 1996 to 21.07.2003. In any case, discrimination is writ large in the sense that similarly placed employees are not treated similarly only on the ground that they are not applicants in these O.As filed in that period or soon after.
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14. It is submitted that the applicants herein have filed this O.A on the basis of the assurances/developments which had been initiated by the respondents vide Annexure A-1, Annexure A-2 as well as Annexure A-3. These orders/O.Ms indicated that the CPWD had once again decided to grant the pay scale of Rs.7500-12000. This is revealed especially in the letter at Annexure A-1 dated 24.08.2016 where as many as 931 A.Es (Civil) from 1996-1997 have been shown at Annexure A-1 as eligible for the pay scale of Rs.7500-12000. Otherwise, the question arises as to why the respondents should collect all the records and prepare an eligibility list vide Annexure A-2 which included all the applicants' names therein. Further steps to verify their service records as shown vide Annexure A-3 were also initiated. In addition to this, learned counsel for the applicants has produced orders of the Principal Bench of this Tribunal in O.A.No.1751/2007 in the matter of Shri.H.K.Garg vs. Union of India & Anr., delivered on 17.03.2009 as well as an order in O.A.No.2120/2004 in the case of C.L.Sharma vs. Union of India & Anr., delivered on 10.08.2005. These orders show that even after the apparent order of withdrawal passed vide Annexure R-2 on 21.07.2003, the Principal Bench of this Tribunal had extended the benefit of the higher pay scale to the applicants therein. Further, in O.A.No.1751/2007 the applicant had retired in 2001, but had been in service on 13.05.1998. The Tribunal was of the opinion in that matter that subjecting the applicant therein to discrimination by negativing his claim would be violative of the right of equality. It was held that there was no doubt that he was senior and he should be deemed to be entitled to -17- the higher pay scale of Rs.7500-12000 from the date it had been extended to his colleagues. Besides the orders passed by the Principal Bench, learned counsel also contended that the respondents have not given any response as to why the details at Annexure A-1, Annexure A-2 and Annexure A-3 had been collected. Further, they also have no response to the orders cited above.
15. Learned Senior Panel Counsel for the respondents, Shri.Thomas Mathew Nellimoottil reiterated the points made in the reply statement. He submitted a copy of the order passed by the Principal Bench of this Tribunal in O.A.No.1658/2013 filed by one Azizur Rehman Siddiqui, retired Assistant Engineer (Civil) on 07.08.2019. The applicant had retired from service on 31.07.2002 and had filed O.A.No.1658/2013, wherein, after hearing both sides it was ordered that the respondents should consider the representation made by the applicant and pass a reasoned order. It was submitted that in this case too, the Tribunal may only direct the respondents to pass a reasoned order in the facts and circumstances of the contentions made by the applicants similar to the order of the Principal Bench of this Tribunal in O.A.No.1658/2013.
16. We have carefully considered the above contentions. At the outset, we are of the opinion that in the absence of any alternative indication by the respondents as to why they had proceeded to collect the information vide Annexure A-1, Annexure A-2 and Annexure A-3 and also in the absence of -18- any denial regarding the same, it does appear, prima facie, that the respondent/CPWD had decided once again to actively consider extending the enhanced scale of pay to the retired A.Es of CPWD with effect from their due dates ie., in the case of the applicants herein from 01.01.1996 in the scale of pay of Rs.7500-12000. This contention of the applicants has not been controverted by the respondents in both their reply statements. On the other hand, the entire blame for non grant of the scale is put on the Department of Expenditure a sister Department of the Government of India, who were not even made a party in the case by either side. It is not for us to speculate on the reasons for this but to go by the given facts and circumstances. Hence, taking into account all the details at hand as provided, we feel that the applicants have been able to build a strong case, in terms of the cited cases above in relation to clear and overt discrimination on the applicants vis-a-vis similarly situated employees. The reasons have been brought out earlier and the orders of the Principal Bench of the Tribunal in the case of C.L.Sharma (supra) and H.K.Garg (supra) in O.A.No.2120/2004 and O.A.No.1751/2007 respectively are relevant in this regard. Given this, we feel that the applicants have established their right to be given the scale of pay of Rs.7500-12000 with effect from 01.01.1996 on the main ground that there has been discrimination against them in relation to their peers as well as juniors. Further, we note the orders of the Principal Bench in O.A.No.1658/2013 had only directed a consideration of the representation of the applicant therein. However, the facts in this case as analyzed above have encouraged us to make a more positive direction. -19- Further since, as per the respondents, the Department of Expenditure has also only responded to orders of Courts/Tribunals, we are further encouraged in our decision
17. In view of the above, the O.A is allowed to the following extent. The respondents are directed to notionally grant the pay scale of Rs.7500-12000 with effect from 01.01.1996 to the applicants. However, the arrears of pension so calculated may be released to the applicants only with effect from the date of the Office Order produced at Annexure A-1, viz., 24.08.2016. The retirement benefits may be refixed on the basis of the notional grant of the scale of Rs.7500-12000 from 01.01.1996 and any arrears in this regard also released to the applicants. All action in this regard may be completed by the respondents within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(Dated this the 12th day of July 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00351/2020
1. Annexure A-1 - A copy of the Office Order No.04/10/2016- (S&D)/689 dated 24.08.2016.
2. Annexure A-2 - A copy of the Office Memorandum No.23/66/2011- EC.III (PART-2) dated 06.01.2017.
3. Annexure A-3 - A copy of the File No.8(12)/MyCD/2017-18/171(H) dated 15.06.2017 of the Executive Engineer, Mysore Central Division.
4. Annexure A-4 - A copy of the Office Memorandum No.23/66/2011/EC-III (Vol.II) dated 12.11.2018.
5. Annexure A-5 - A copy of the representation dated 07.12.2018 submitted by the 1st applicant.
6. Annexure A-6- A copy of the representation dated 27.08.2019 submitted by the 1st applicant.
7. Annexure A-7 - A copy of the Letter dated 06.09.2019 issued by the Department of Pensions and Pensioners Welfare.
8. Annexure A-8 - A copy of the Letter No.33/10/2019 EC-III dated 19.09.2019 issued to the 1st applicant.
9. Annexure A-9 - A copy of the representation dated 22.08.2019 submitted by the 2nd applicant.
10. Annexure A-10 - A copy of the letter dated 06.09.2019 issued by the Department of Pensions and Pensioners Welfare.
11. Annexure A-11- A copy of the Letter No.33/10/2019 EC-III dated 19.09.2019 issued to the 2nd applicant.
12. Annexure R-1 - A copy of the Order No.4/10/97-DW(S&D)/3943- 4453 dated 19.06.1998.
13. Annexure R-2 - A copy of the Order No.24021/2/94-EW.2/EW.1 dated 21.07.2003.
14. Annexure MA-1 - A copy of the death certificate of the 9th applicant.
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