Central Administrative Tribunal - Ernakulam
B. Kishore Kumar vs Union Of India on 20 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.180/00084/2014
Wednesday, this the 20th day of July, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
B. Kishore Kumar
Radio Telephone Operator
Centre for Marine Living Resources &
Ecology (CMLRE), Ministry of Earth Sciences,
Kakkanad, Cochin - 682 037. - Applicant
(By Advocate Mr. Arun Raj. S)
Versus
1. Union of India, Ministry of Earth Sciences,
New Delhi - 110 003. Represented by its Secretary.
2. Under Secretary,
Government of India,
Ministry of Earth Sciences,
New Delhi - 110 003.
3. The Director, Ministry of Earth Sciences,
Centre for Marine Living Resources & Ecology,
Kendriya Bhavan, 6th Floor, Block - C,
P.B. No. 5415, CSEZ (P.O),
Kakkanad, Kochi - 682 037.
4. The Director (Establishment),
Government of India, Ministry of Earth Sciences
Prithvi Bhavan, IMD Campus
Opp. India Habitat Centre,
Lodi Road, New Delhi - 110 003. - Respondents
(By Advocate Mr. N. Anil Kumar, Senior PCGC)
The application having been heard on 24.06.2016, the Tribunal
on 20.07.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicant is challenging Annexure A-15, Office Memorandum issued by the 2nd respondent, informing that the representation of the applicant for considering him for the post of Technical Assistant/Senior Technical Assistant cannot be acceded to. The applicant has been working in the Centre for Marine Living Resources & Ecology as Radio Telephone Operator (RTO) from 01.11.2004. The CMLRE is the nodal agency of the Ministry of Earth Sciences to promote the implementation of Marine Living Resource Programme (MLRP). The post of RTO is an isolated post which is neither a feeder cadre to any other post nor has any feeder post nor any promotional avenues. The applicant has been doing the same duties as of Technical Assistant/Senior Technical Assistant, a fact which is recognized and accepted by the officials in the CMLRE. The Department of Personnel and Training vide Annexure A-6 Office Memorandum dated 23.05.1990 laid down certain guidelines relating to isolated posts in various Ministries/Departments of the Government of India. After laying down the guidelines, all Ministries/Departments were requested to conduct a review of isolated posts under their control and to take necessary action as directed thereon. Also, the department in its O.M directed that the Ministries should in the first instance, include the isolated posts in one of the organised services wherever the duties of the posts have relevance to such posts in which it is proposed to be encadered.
2. The 5th Pay Commission while dealing specifically with isolated posts, has stated in paragraph 22.41 of its Report as follows:-
'22.41. Promotion opportunities to those holding isolated posts are almost non-existent. Since such isolated posts are filled by direct recruitment, incumbents of those posts generally retire in the same post to which they were recruited. Representations have been received by the Commission that in many cases, isolated posts are created even when the nature of duties assigned to the post are similar to those of cadre post. We, therefore, feel that as a matter of policy, no isolated post should be created/sanctioned in future in Government. Posts sanctioned by Ministries/Departments should always be a part of some organised cadre. If creation of a single post is indispensable, and it cannot be part of an organised cadre in the Ministry, efforts should be made to encadre such a post in an organised cadre existing in some other Department/Ministry. Such an attempt needs to be made even now and Ministries/Departments should review the isolated posts with a view to encadre them in an organised cadre in the Ministry /Department or outside it. In case creation of an isolated post becomes indispensable, the two higher scales to be given in a time bound manner under the Assured Career Progression Scheme should be indicated in the orders for creation of the post itself'.
3. The 6th Pay Commission had also recommended as follows:-
'Conclusion 6.3.15. The Commission is not making specific recommendations regarding restructuring of individual services and cadres as task will be better performed by the Ministries and Departments. The main recommendations of the Commission relate to rationalization of pay structures for promoting effective and responsive service delivery and motivating employees and encouraging changes in processes with greater delegation, accountability and stakeholder orientation through the mechanism of variable increments and Performance Related Incentive Scheme (PRIS). It is expected that the recommendations of the VI th Central Pay Commission contained in this report will provide an enabling framework for desired change towards innovative, effective and responsive service delivery to stakeholders in the entire government machinery in sustainable manner.'
4. The Director, CMLRE, Kochi had sent Annexure A-13 detailed letter dated 26.02.2013 to the Joint Secretary, Ministry of Earth Science, New Delhi narrating the facts of the applicant's case and the recommendation of Vth and VIth CPC and also categorically stating that the duties performed by the applicant (RTO) and that of Senior Technical Assistant (STA) are one and the same. The RTO post being an isolated post, it was strongly recommended for re-designation of the post of RTO as STA taking into account that the nature of duties of both the posts are the same. The CMLRE had 04 technical staff (01 Senior Technical Assistant (STA), 02 Technical Assistant (TA) and Radio Telphone Operator (RTO) to assist in the co-ordination of science programmes and ship activities. The duties were therefore, equally divided between the staff of CMLRE i.e. Technical Assistant/Senior Technical Assistant and RTO. The applicant submits that he was also doing the same duties as that of the Technical Assistant/Senior Technical Assistant. Annexures A-7, A-9 and A-13 are the official recommendations sent for the applicant.
5. The CMLRE vide letter dated 09.06.2008, had post VI th CPC, submitted the case of isolated post of RTO for consideration by the Anomalies Committee and had requested to re-designate the post of RTO to Technical Assistant (Communication) [presently redesignated as STA] and having the same pay scale and promotion at par with TA in CMLRE. The VIth Pay Commission had merged the post of Senior Technical Assistant and Technical Assistant into one grade pay of Rs. 4200/- taking into consideration the nature of duties carried out by them.
'7.12.7 Technical Assistants in Centre for Marine Living Resources and Ecology, Kochi are presently in the pay scale of Rs. 4500-7000. Minimum qualification for the post includes 3 years diploma in engineering or a degree in science. Keeping in view the functions attached to the post may be placed in the pay band PB-2 of Rs. 8400- 34800 along with a grade pay of Rs. 4200/- corresponding to the pre- revised pay scale of Rs. 6500-10500. This will place the post on par with Senior Technical Assistants in the Institute who are in the scale of Rs. 5500-9000 because the Commission has recommended merger of the scales of Rs. 5000-8000, Rs. 5500-9000 and Rs. 6500-10500. The posts would, therefore, stand merged or treated equivalent.' The Government of India thereafter issued notification dated 17.01.2012 merging the post of TA, JTA and STA and designated them as Senior Technical Assistant (STA) with effect from 01.01.1996.
6. The applicant submits a comparison of the differing pay scales drawn during the Vth CPC and after the VIth CPC as below despite performing the same nature of duties:
Post Pay as per 5th CPC Pay as per 6th CPC Duties & responsibilities held RTO 4000-100-6000 GP 2400/- Same TA 4500-125-7000 GP 4200/- (merged Same with STA scale) STA 5500-9000 GP 4200 Same
The applicant was besides radio operation also looking after the stores and purchase of equipments and consumables under the Marine Living Resources programme. There was an average purchase of 8-10 lakhs worth consumables every year and costly scientific equipments of approximate value of 2 crore has been accounted for. He was required to keep stock and account for all the purchases under the science programmes, project requirement of consumables for various activities and issue consumables as per requirement. He was responsible to produce stock for verification and keep records of all the fixed items / machineries in CMLRE. The applicant in support of his contention for parity submits the duties done by himself and the technical staffs of CMLRE as on 01.12.2013 as follows:-
Sl. Designation Duties carried out
No.
01 Senior Management of Ship, Southern
Technical Assistant 1 Ocean, Accostics.
02 Senior Technical Assistant 2 Deep Sea and Distant Water Fishery (DSDWF) (3 inhouse and 9 grant-in-aid programme), Library 03 Senior Technical Assistant 3 Ship Sailing Programme, Monitoring and Modelling of Marine Ecosystems (MMME) (5 inhouse and 14 grant-in-aid programmes), Library 04 RTO Integrated Taxonomical Information System (ITIS) (5 inhouse and 20 grant-in-aid programmes), MLR Technology Development (MLR-TD) (4 inhouse and 14 grant-in-aid programmes) The applicant as RTO is handling 9 inhouse and 34 grant-in-aid MLR programmes and is also in-charge of stores which is more than any other Senior Technical Assistant's duties and responsibilities. Further, the applicant was recommended by the CMLRE for the award for best employee and was awarded the same for the year 2013. The required qualification for TA/STA is a graduate in science or diploma. The applicant is a graduate in Information Technology and a qualified telegraphist from the Indian Navy. The principle of equal pay for equal work has been considered and held in various decisions by the Hon'ble Supreme Court of India, which further strengthens the position that the individuals who are doing equal work shall be entitled to equal remuneration. The term equal pay includes basic salary and also other benefits.
7. Relief sought by the applicant is to direct the respondents to re- designate the isolated post of Radio Telephone Operator in Centre for Marine Living Resources and Ecology, as Senior Technical Assistant in the grade pay of Rs. 4200/- with effect from 01.01.2006, complying with the Vth and VIth CPC recommendations and DoPT orders and also considering Article 39(d), 14 and 16 of the Constitution.
8. The respondents in reply statement submits that the applicant applied for the post of Radio Telephone Operator (RTO) on deputation basis in the Ministry of Earth Sciences (erstwhile Department of Ocean Development) for CMLRE, Kochi in the pay scale of Rs. 4000-100- 6000/- (VIth CPC). He was selected on deputation basis. The applicant was subsequently absorbed in CMLRE in the same post. CMLRE being a small organisation, hierarchical patterns similar to big organisations is not practical in the office. Other officials of CMLRE have been carrying out additional responsibilities. The rules regarding ACP and subsequently MACP are applicable to the post of RTO and the benefits on this account are given to RTO as per his eligibility. With reference to VIth CPC order, the applicant had represented for consideration to grant him grade pay of Rs. 2800/- as the Pay Band of Pradhan Navik has been given Rs. 4500-7000 + Grade Pay of Rs. 2800/- in his previous Department and also to consider for Technical Assistant post taking into consideration of his present duties. The representation of the applicant was examined in the Ministry. However, his request could not be acceded to in the absence of any such provisions in existing rules. It is submitted that the increase in work load on account of increase in the quantum of in house research activities is not restricted to any single category. Other officials in CMLRE have shouldered several additional responsibilities which are necessary for progress of the organisation as well advancement of the country in the area of Scientific Research. Hence the respondent is admitting the fact that the applicant is performing duties in addition to radio telephone operations. Respondent while admitting that applicant like other STA is performing additional duties and has been given best employee award, has not given the applicant the pay scale and promotional benefits of STA.
9. Heard learned counsel for the applicant and respondents and written submissions made.
10. The applicant is occupying an isolated post and seeks to be re- designated as STA which will remove him from isolation, and provide him entry into the pay scale of STA with its promotional prospects. The applicant has submitted detailed arguments in support of his case including the observations of the Vth and VIth CPC on treatment of isolated posts. The respondent also supports the contention of diverse jobs assigned to the applicant at par with other STA and admits that a complete compartmentalization of work carried out by officials in the organisation is not possible or practicable. In addition to normal duties RTO & STA carry out other work which in larger organisations would be handled by a Senior Technical Assistant with a designation solely identified by the prescribed duty performed instead of multifarious duties performed by STA in CMLRE. The respondent thereby draws a case for similarity and parity without overtly admitting the same in words. The applicant has also brought out a comparative chart of his duties and that of STA. The respondent in the reply statement submits that CMLRE is a small organisation and hence all officials have been carrying out additional responsibilities. The respondents have not rebutted the additional responsibilities attended by the applicant which appears to be more than the responsibilities attended by other STA as brought out in pre-para above. Having admitted that the nature of duties of applicant and STA are similar, respondent does not present any sound arguments disallowing him the designation and pay scale. The applicant is performing the duties of Radio Telephone Operator for which he appears to be specifically trained, in addition to other duties. The respondent may be apprehensive that on being re-designated as STA they may lose an official who has Radio Telephone qualification which is required for keeping in touch with any offshore establishment or ship in the high sea. This could be resolved by including in the STA Recruitment Rules that one post of STA should have five years experience in radio telephone operation in the defence service. This will enable the isolated post to be re designated as STA with its attendant benefits of pay and promotion channels and also retain the ability of the incumbent to attend to radio telephone functions. This will also address the guidelines issued by the Department of Personnel GOI to encadre such posts in organised cadre to enable them to receive the benefits of promotion and pay scale.
11. The applicant is capable of holding the post of STA and has in addition to radio telephony, been looking after the Computer Centre/Data Centre. The applicant cites GOI orders and directions for absorbing the isolated posts into the organised services/cadre whenever the duties of such posts have relevance to service posts. Applicant is looking after 20+14 grant-in-aid programmes, whereas other STAs are looking after 5+14 and 3+9 grant-in-aid programmes. So it is not a case that applicant is doing less work than other STAs. On perusal of job description of STA provided in para 16 of the O.A, it is noted that it is varied and diverse covering different areas of technical operation. The applicant's post can be re-designated as STA 4 with duties of radio telephony, ITIS, grant-in-aid programmes, MLR technology development, store-in-charge, etc., as the respondent deems fit. Hence, there appears to be sufficient functional reasons to encadre the RTO post of applicant in the STA cadre by re-designating his post as STA Radio Telephone which will continue to ensure future recruitment of persons with radio telephone qualifications. The job description can be drafted to fit all the additional duties he is currently performing. The applicant states that he possesses the educational qualification for the post of STA. If so, there cannot be any impediment with regard to the qualification required.
12. The respondent is directed to re-designate the post of Radio Telephone Operator as STA and give the applicant the pay scale of the post with effect from 01.01.2006 in compliance of GOI orders on isolated posts. Applicant on being placed in STA cadre will be absorbed on bottom seniority, and the arrears be restricted to three years immediately prior to the filing of O.A as held by the Apex Court in Union of India v. Tarsem Singh - (2008) 2 SCC L&S 765. This O.A was filed on 30.01.2014.
13. The Original Application is disposed as above. No order as to costs.
(Dated, this the 20th day of July, 2016)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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