Central Administrative Tribunal - Delhi
Mr. Sudesh Kumar Upadhaya vs Union Of India : Through on 21 January, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4276/2011 Monday, this the 21st day of January 2013 Honble Mr. G George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Mr. Sudesh Kumar Upadhaya, S/o Shri G.S. Upadhaya, Working as Telecommunication Mechanic Under the Commandant, 509, Army Base Workshop, Agra. .. Applicant (By Advocate: Mr. Manjeet Singh Reen) Versus Union of India : through 1. The Secretary, Ministry of Defence, South Block, New Delhi. 2. The Director General (EME), EME Directorate, Army Headquarters, New Delhi. 3. The Commandant, 509, Army Base Workshop, Agra (U.P.). ..Respondents (By Advocate: Sh. A.K. Singh) O R D E R (ORAL)
Mr. G George Paracken:
The impugned Annexure A-1 letter dated 15.09.2011 has been issued to the applicant by the respondents in reply to his Annexure A-10 representation dated 02.09.2011. According to the said representation, he was appointed as a Telecommunication Mechanic in the Army Base Workshop under the respondent No.3 w.e.f. 28.04.1988. However, since he was holding a Diploma in Computer Programming and Application, the respondents had posted him in computer centre from the very first day of his appointment. Since the process of computerization in the workshop was in full swing at that time, he was entrusted with the task of making new programs, modification of the existing programs, repair of computers etc. which were generally done by a Programmer and totally different from the task in the trade of Telecommunication Mechanic to which he was appointed. While his own post of Telecommunication Mechanic was carrying the scale of Rs.1320-30-EB-1640-2060, the post of Programmer was in the scale of pay of Rs.2375-75-3200-100-3500 as per the 4th Central Pay Commission. The said scale was replaced by the scale of Rs.7500-250-12000 as per the recommendations of the 5th CPC. From the time he was posted in the Computer Centre with effect from 28.04.1988, he was frequently asking the respondents to transfer him to work on his own post of Telecommunication Mechanic but he was given the transfer only on 05.11.2000. His grievance, therefore, in this Original Application is that even though he was performing the task of a Programmer from 28.4.1988 to 05.11.2000 and he was paid only as per the scale of pay of Technician. According to him, he had been requesting the respondents to create a post of Programmer and to allow him to work against it or to pay him according to the higher pay scale attached to the post of Programmer for the aforesaid period. However, the respondents, vide Annexure A-1 impugned order dated 15.09.2011, rejected his request stating that no post of Computer Programmer was authorized in the Base Workshop or even in Corps of EME. Moreover, there is a general ban on creation of new posts and, therefore, it was not feasible to process his case for the consideration of the higher authorities. The applicant has, therefore, filed this Original Application seeking the following reliefs:-
8.1 That this Honble Tribunal may graciously be pleased to allow this original application with the directions of respondent no.2 to consider and grant the pay and allowances for the post of Programmer in pay scale of Rs.2375-3500 as per 4th CPC and in the pay scale of Rs.7500-12000 as per implementation of 5th CPC without any discrimination.
8.2 That this Honble Tribunal may graciously be pleased to allow this application and set-aside the impugned order dt. 15.9.2011.
8.3 That this Honble Tribunal may graciously be pleased to extend the benefits of judgment in case of Kailash Chand Joshi & V.K. Kalras case passed by this Honble Tribunal without any discrimination.
8.4 That any other or further relief which this Honble Tribunal may be deem fit and proper under the circumstances of the case may also be granted in favour of the applicant.
8.5 That the cost of the proceedings may also be awarded in favour to the applicant.
2. He has also stated that he had earlier filed OA No.3961/2010 before this Tribunal praying for granting the benefits under the 1st and 2nd Assured Career Progression Schemes w.e.f. April 2000 and September, 2008 and this Tribunal, vide Order dated 17.10.2011, allowed it with the direction to the respondents to grant the aforesaid benefits to him. The relevant part of the said order is as under:-
5. We have heard the learned counsel for the Applicant, Shri M.S. Reen and the learned counsel for the Respondents, Shri A.K. Singh. Since there is no dispute with regard to the facts stated by the Applicant in this OA, it is for the Respondents to compensate for the loss suffered by the Applicant and to prevent his future loss which would affect his monthly pay and allowances and even his terminal benefits. It is an admitted position that the Applicant was not granted the 1st ACP on due date as he did not pass the qualifying Trade Test which he could have done on 28.04.1996, itself. It is also an admitted fact that he could not qualify in the Trade Test only because he did not have the adequate technical knowledge which he could have gained if he was not prevented from working on his own post, namely, Telecommunication Mechanic. As held by the Apex Court in the case of Nirmal Chandra Bhattacharjee Vs. Union of India, JT 1991 (5) SC 35, the mistake or delay on the part of the department should not be permitted to recoil on the Applicant.
6. In view of the above facts and circumstances of the case, we come to the considered conclusion that due to the action of the Respondents the Applicant could not get his trade experience and ultimately could not pass the relevant tests. Indirectly/directly the applicant was engaged in the activities which prevented him to the tests passed. He cannot be blamed for the belated passing of the tests. Thus, he is entitled to get his 1st and 2nd ACP from the due dates. Resultantly, we allow this OA and direct the 2nd Respondent to grant the 1st and 2nd ACP benefits to the Applicant from the due dates, as if the Applicant has passed the Trade and other Tests held on or before the dates 1st financial upgradation under ACP was due. In this peculiar circumstance the above order is passed qua the applicant and this order is not meant for general application as a precedent. However, he will not be entitled for any back wages. The Respondents shall also pass necessary orders in this regard within a period of two months from the date of receipt of a copy of this order, under intimation to the Applicant. There shall be no order as to costs.
3. The respondents in their reply have submitted that though he was appointed as a Telecommunication Mechanic in 509 Army Base Workshop, Agra, 28.04.1988, due to exigency of work, he was initially posted to work in the computer centre of the Unit. They have also submitted that in the process of introducing automation, the respondent No.3 entrusted the task of developing pay-package software under the Human Resources Information System to a private concern to generate computerized pay bills/check rolls and pay slips of the employees on the basis of data that was being fed into the pay-package software. The clerical staff in the unit of respondent No.3 have been entrusted the task of feeding the input data pertaining to attendance, periodic increments and various allowances payable to each employee in the pay-package software to generate computerized pay bills/check rolls and pay slips. The applicant was initially entrusted with the task of maintaining and observing the data feeding process and to generate the print-out of processed data in the form of pay bills/check rolls and pay slips. Later on, he suggested few modifications in the pay package software and carried out few changes in the software at his own wish and discretion but the Respondent No.3 never insisted the applicant to carry out any modifications in the pay-package software. They have also stated that the applicant had made a representation on 18.05.2000 requesting to take up his case with the higher authorities to include a post of Computer Programmer in the trade authorization under the respondent No.3 and also staking claim for pay as a Computer Programmer or grant of special allowance in compensation. However, according to them, since no post of Data Entry Operator, Computer Programmer or any other post relating to computer operation has been introduced by the Govt. in the organizations functioning under the Ministry of Defence, claiming pay for a post which has not been introduced by the Govt. in that particular organization is illogical, unsustainable, unjustified and void.
4. We have heard the learned counsel for the applicant, Shri Manjeet Singh Reen and the learned counsel for the respondents, Shri A.K. Singh. There is no dispute that the applicant was initially appointed as a Telecommunication Mechanic but his services were utilized in the computer related work. Since the applicant was conversant with the computer applications he wanted the respondents to create a post of Computer Programmer so that he can work in that capacity. However, the respondents did not sanction any computer related post and thereby not accepted his request. He has, therefore, claimed the pay of Programmer for the period from 28.4.1988 to 05.11.2000, i.e., the period he continued in the Computer Centre.
5. In our considered view, the request of the applicant is quite misplaced. Of course, there is no doubt that the applicant was directed to work in a section where computerization was going on and he was performing the computer related work for quite some time. While the Electronic Data Processing was introduced in the Govt. after the recommendations of the 4th Central Pay Commission, specialized staff were required to perform the work of Data Processing Assistant, Computer Programmer etc. However, today the position is different. The entire administrative system is becoming computer based and everyone in the department have to work under the new system. Just because the applicant who was having knowledge in computer application was made to work in the section which dealt with various computer applications, it does not mean that he was working as a Computer Programmer. As far as the question of payment of higher pay is concerned, it will arise only when there is actually a higher post in the department and the applicant has been specifically asked to work against that post. In this case, it is only an imagination of the applicant that work he was doing was that of a Computer Programmer whereas there are no such posts existing in the department. Again, just because he has been doing the computer related work in the office, the same does not entitle him to get the salary attached to a Computer Programmer as claimed by him. We, therefore, do not find any merit in this case and accordingly the same is dismissed. There shall be no order as to costs.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
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