Central Administrative Tribunal - Cuttack
Golak Chandra Mallick vs M/O Water Resources on 17 February, 2023
1 260/000730 of 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
O.A.No. 260/000730 of 2013
Reserved on 08.02.2023 Pronounced on:17.02.2023
Coram:
THE HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
1. Sri Golak Chandra Mallick, aged about 56 years, S/o Late
Baikunta Nath Mallick, at present working as U.D. Clerk in the
Office of the Executive Engineer, Central Ground Water Board,
Raipur, Ex-U.D. Clerk in the office of the Executive Engineer,
Division-X Central Ground Water Board, Bhujal Bhawan,
Khandagiri, Bhubaneswar-30, Dist-Khurda.
2. Gopal Krishan Pallai, aged abour 51 years, S/o Late Basudev
Pallai, At present working as L.D. Clerk in the Office of the
Executive Engineer, Central Ground Water Board, Division-X,
Bhujal Bhawan, Khandagiri, Bhubaneswar, Dist-Khurda.
...Applicants
VERSUS
1. Union of India, represented through it's Secretary, Ministry of
Water Resources, Jamnagar House, New Delhi.
2. Secretary, Ministry of Personnel, Public Grievances & Pension,
Department of Personnel & Training, Lok Nayak Bhawan, 3rd floor,
New Delhi.
3. Director(Admn.) Central Ground Water Board, NH-IV, Faridabad-
121001.
4. Regional Director, Central Ground Water Board, South Eastern
Region, Bhujal Bhawan, Khandagiri Square, Bhubaneswar, Dist-
Khurda.
2 260/000730 of 2013
5. Executive Engineer, Central Ground Water Board, Division No.-X,
Bhujal Bhawan, Khandagiri Square, Bhubaneswar, Dist-Khurda.
......Respondents
For the applicant : Mr. J.M.Patnaik, Counsel
For the respondents : Mr. G.R.Verma, Counsel for UOI
O R D E R
(Third Member)
Pramod Kumar Das, Member (A):
It may be stated that initially the OA was filed by two applicants, namely Sri Golak Chandra Mallick (applicant No.1) and Sri Gopal Srishna Pallai (applicant No.2). The OA was dismissed by this Tribunal vide order dated 04.02.2016. Applicant No.1, Sri Golak Chandra Mallick challenged the said order before the Hon'ble High Court of Orissa in W.P.(C) No. 11517/2016 and the Hon'ble High Court was pleased to quash the order of this Tribunal and remitted the matter back to this Tribunal with certain observation for readjudication afresh in accordance with law by giving opportunity of hearing to the parties concerned. It is noticed that the Ld. Counsel appearing for the applicants had confined his pleadings in respect of applicant No.1, Sri Golak Chandra Mallick, now and also before DB. Therefore, the Division Bench of the Tribunal in its order dealt the case in respect of applicant No.1 only. It may further be stated that in 3 260/000730 of 2013 view of the divergent opinions of the Division Bench, the Hon'ble Chairman, in exercise of the power conferred under Section 26 of AT Act, 1985, nominated the 3rd Member to hear and decide his case vide letter No. PB/13/02/2-22-JA dated 09.12.2022. Accordingly, this matter has been listed to give opportunity to the parties concerned to put forth their points if any.
2. The case in brief is that the applicant was working as Surveyor (Jr.) in Pay Scale of Rs. 260-430/- in the Office of the erstwhile Deputy Directory (Agriculture), DNK Project, Govt. of India, Koraput, Odisha. The pay scale of Surveyor (Sr.) in DNK Project was Rs. 330- 560/- at the relevant point of time. The pay scale of Jr. Surveyor (Rs 260-430/-) was revised to Rs. 975-1540/- w.e.f. 01.01.1986. On 01.08.1987, the applicant was declared surplus due to closure of the DNK Project. In terms of the extant surplus rules floated by the of the Govt. of India, he was adjusted/appointed under Central Grounds Water Board (CGWB) in the post of Lower Division Clerk (LDC) carrying the scale of pay of Rs. 950-1500/- but his pay was fixed at Rs. 975-1540/- providing him pay protection as per Rules. Subsequently, the Govt. of India merged both the posts and scale pay of Surveyor (Jr.) and Surveyor (Sr.) and a common scale of pay of Rs.
4 260/000730 of 2013 1200-2040/- was allowed retrospectively w.e.f. 01.01.1986. According to the applicant as per the extant rules, he was entitled to pay protection, when he was adjusted in the post of LDC carrying the scale of pay of Rs. 950-1500/-, from the date of his joining in CGWB w.e.f. 08.09.1987; which in fact was allowed when his pay was fixed at Rs. 975-1540/-. Since on amalgamation of two posts (Jr. Surveyor & Sr. Surveyor), a unified scale of Rs. 1200-2040/- was provided w.e.f. 01.01.1986 which was prior to his adjustment, he was entitled to the said scale of pay of Rs. 1200-2040 in place of Rs.975-1540/-. He had submitted representation to the Nodal Ministry, i.e. DoP&T, and CGWB. There was no response from the DoP&T, however, the CGWB rejected his claim. The applicant challenged the said decision on the above grounds and submitted that there was no impediment on the part of the respondents to grant him the protection when the pay scale of Rs. 975-1540/- was revised retrospectively w.e.f. 01.01.1986 to the scale of Rs. 1200-2040/-.Hence, in this instant OA No. 730/2013, his prayer is to direct the respondents to fix the pay of the applicant in the scale of pay of Rs. 1200-2040/- w.e.f. 01.01.1986 and the scale of pay of Rs. 4000-6000/- w.e.f. 01.01.1996 and to grant the consequential financial up gradation from the dates as due to them.
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3. Respondents by filing counter contested the case and, after considering the matter, the Division Bench of this Tribunal dismissed the OA vide order dated 04.02.2016. As stated above, Sri Golak Chandra Mallick/Appl. No.1, challenged the said order of dismissal before the Hon'ble High Court of Orissa in W.P.(C) No. 11517/2016 and the Hon'ble High Court vide order dated 06.05.2022 quashed the order of this Tribunal dated 04.02.2016 and remitted the matter back to this Bench for fresh adjudication in accordance with law with the following observations:
"6. Having heard learned counsel for the parties and after going through the records, it appears from the order impugned itself that the tribunal by taking into consideration that the petitioner had not given any document to show that the Fourth Pay Commission revised the pay scale of Surveyor from 975-1540 to Rs.1200-2040/- and averment that the petitioner was allowed the pay scale of Rs.1200-2040 is a wrong statement, therefore, on the basis of wrong statement, the benefit cannot be admissible to the petitioner. This observation of the tribunal was refuted by the learned counsel for the petitioner, contending that if the revised scale of pay is admissible to the post itself, whether the petitioner or somebody else is not the question. The question is the post is admissible to get revised scale of pay. Therefore, if the petitioner is the holder of the post, he is entitled to get such benefit. But the tribunal has not examined the case in its proper prospective and rejected the application on the ground that the petitioner was satisfied with order dated 16.11.2004 and, therefore, he had not sought quashing of the same in the O.A. 6 260/000730 of 2013
7. Needles to say that if the order of the tribunal is examined, it is evident that the tribunal has only noted down various stage for which the benefit has not been extended to the petitioner by quoting different types of orders passed by the tribunal as well as the authority from time to time, but has not come to a finding or reasons as to why the petitioner is entitled to such benefit. The reason, which appears from the order of the tribunal is absolutely a misconceived one in view of the fact that, it has been stated that the petitioner was satisfied with the said order dated 16.11.2004, as the said order was not sought to be quashed in the O.A. Thereby the tribunal has not applied its mind in proper prospective."
4. The Hon'ble Member (J) after taking into consideration the facts and circumstances of the matter and keeping in mind the observation of the Hon'ble High Court of Orissa, referred to above, came to the conclusion as under:
"6. There cannot be any doubt that the applicant was a regular Govt. of India employee and became surplus due to closure of the DNK project where he was working and, thus, was holding a civil post. At the time of declaration of surplus, he was in the pay scale of Rs. 975-1540/- although he was adjusted in the post of LDC carrying the scale of pay of Rs. 950-1500/-, he was granted pay scale of Rs. 975-1540/- as personal to the applicant in the Writ Petition as evident in the Office Order No. 2014/1987 dated 08.09.1987. The stand of the respondents department is that as the applicant accepted and joined in the post of LDC, carrying the scale of 950-1500/- and there being no nexus in the post of LDC and the post wherefrom he was declared surplus revision of pay scale cannot entitle the applicant to get the scale. When, it is the specific case of the applicant that the scale of pay of 975-1540/- was revised to Rs. 1200-2040/- w.e.f. 1.1.1986 and both the posts are civil posts of the Govt. of India, certainly the applicant was entitled to the replaced 7 260/000730 of 2013 scale from the date he joined in the post of LDC w.e.f. 08.09.1987 as personal to him. The applicant has specifically stated the pay scale of Rs. 1200-2040/- was granted to other similarly situated persons on their adjustment after being surplus, viz. Sri M.D.Jena and R.K.Seth and by the order of Hon'ble Chhattisgarh High Court to Sri K.Shiva Prasad and that of Sri N.Sambhulinga and Sri K. Balakrishana as per the order of the Bangalore Bench and Ernakulam Bench of the Tribunal, there being no impediment on the part of the respondents department to grant the pay protection as personal to him as has been given at the time of his joining in the post of LDC. The respondents-department denied for grant of the benefit to the above named employees shifting the onus on the applicant to prove the same. The applicant is a retired employee and in case of grant of the benefits, he would be entitled to some monetary benefits which would be of immense help for survival for rest part of his life. It may be recorded that discrimination is antithesis to rule of law and the mandate enshrined in Article 14 and 16 of the Constitute of India. Time and again, it has been reiterated by the various courts that there may be no discrimination between similarly situated employees in the matter of pay etc. Therefore, ends of justice would be met if a direction is made to the Respondent No. 3 [Director (Admn), CGWB, Faridabad] to examine as to whether the pay scale of 1200-2040/- has been allowed to Sri M.D.Jena, Sri K.Shiva Prasad, Sri N.Sambhulinga, K.Balakrishna and R.K.Seth or to any other similarly situated employee and, in the event, it is found that the said scale of pay was allowed to them or to any other employee, the benefit should also be extended in favour of the applicant in the light of the provisions based on which his pay in the pay scale of 975- 1540/- was protected while appointing him in the post of LDC carrying the scale of pay of Rs. 950- 1500/- w.e.f. the date of his redeployment and thereafter but it is made clear that the fixation should be on notional basis till his date of retirement. The decision be communicated to the 8 260/000730 of 2013 applicant within a period of 90 days from the date of receipt of a copy of this order.
7. In the result, the O.A. stands disposed of with the aforesaid terms...."
5. The Hon'ble Member (Admn.) did not agree with the findings of the Hon'ble Member (Judl.) and, according to him, this OA is liable to be dismissed on the grounds as under:
"17. The applicants are also mixing up their issue of pay scale with regards to fixation of pay of Surveyors who were in the pay scale of 975-1540 which was revised to 4000-6000 vide order 28.10.1997. This order is of the Central Water Commission [Anexxure-3 of O.A 88/2000 refers] which organization is different from CGWB and so the same is not applicable in the CGWB and also concerns Surveyor which the applicants are not. It is specifically with respect to those who were in the designated post of Surveyor whereas the applicants were absorbed on the designated post of LDC in 1987 in CGWB and were never designated or appointed as Surveyor on absorption and hence no case can be made out to help the applicants from this angle also.
18. This brings us to the close of the discussions with respect to fixation of pay atleast up to level 1200-2040 and it is held that there is no legally possible way to grant the applicants the pay scale of 1200-2040.
19. Finally, it is worth a glance at the relief prayed for which is as under:
Para-8 of O.A 730/2013-relief para:
8. RELIEF(S) SOUGHT FOR 9 260/000730 of 2013 Under the above facts, applicant prays that the Hon'ble Tribunal may graciously be pleased to direct the respondents to fix the pay of the applicant in the scale of pay of Rs 1200-2040/-w.e.f. 01.01.86 and the scale of pay of Rs.4000-6000/- wef 01.01.96 and to grant the consequential financial up-gradation from the dates, on which it is due to the applicant.
In above context, logically per the discussions above, the equivalent of pay scale of 975-1540 of the 4th Pay Commission is 3200-4900 in the fifth Pay Commission and this is what the applicants have been given. There is no way pay scale of 4000-6000 can be given because it requires birth starting from pay scale of 330-560 which the applicants as discussed above never worked on. Logically therefore, any benefit consequential to pay scale of 4000-6000 can also not be given. This brings us to the end of the relief prayed for by the applicants.
20. In light of the discussions above, every pain possible has been taken to analyse the documents across the history of the case starting year 2000 and with no stone or pebble unturned, nor any grain unshifted, the conclusion is clear; the O.A has no merits and is liable to be dismissed and is dismissed."
6. Ld. Counsel for the applicant in support of the decision of the Hon'ble Member (Judl.) has averred submitting it to be well justified for the same has been taken after proper understanding of the facts and the issues in an appropriate manner whereas the conclusion reached by the Hon'ble Member (Admn.) appears to be the outcome of improper appreciation of facts and circumstances and, therefore, the applicant is entitled to the relief.
10 260/000730 of 2013
7. On the other hand, Ld Counsel appearing for the respondents department by reiterating the stand taken in the counter has submitted that the decision reached by the Hon'ble Member (Admn.) is supported by the facts and the issue, arising out of the case which cannot be faulted with and, therefore, this OA is liable to be dismissed.
8. After giving in-depth consideration to the arguments advanced by the respective parties, perused the pleadings and divergent views of the Hon'ble Members. It would suffice to state that the Hon'ble Member (Judl.) has rightly appreciated the facts of the matter to the effect that the applicant was a regular Govt. of India employee and became surplus due to closure of the DNK project and, at the time of declaration of surplus, he was holding the post of Junior Surveyor in the pay scale of Rs. 975-1540/-. However, on adjustment against the post of LDC (Rs. 950-1500/-), his pay was protected as per Rules his pay was fixed at Rs. 975-1540/-, as personal to him w.e.f. 08.09.1987 i.e. the date of his joining in the post of LDC. It is the specific case of the applicant that the scale of pay of 975-1540/- of the erstwhile post of Jr. Surveyor in DNK was revised to Rs. 1200-2040/- w.e.f. 1.1.1986 by competent authority after merger of Sr. & Jr. Surveyor, certainly 11 260/000730 of 2013 the applicant was entitled to the replaced scale w.e.f. 01.01.1986 when he was still in DNK. Hence, he is deemed to be in this revised scale on the day he was declared surplus i.e. 01.01.1987. In view of this fact, he is entitled to the pay protection at Rs. 1200-2040/- as per Rules from the date he joined in the post of LDC w.e.f. 08.09.1987 as personal to him. The stand of the respondents that as the applicant is not enitlted to the benefit as claimed by him as he accepted and joined in the post of LDC, carrying the scale of 950-1500/- and there being no nexus in the post of LDC and the post wherefrom he was declared surplus, revision of pay scale of 975-1540/- to Rs. 1200- 2040/-, cannot stand the scrutiny of facts since the applicant is not claiming to be in the scale of Rs. 1200-2040/- after his absorption/adjustment in CGWB as LDC in scale of pay of Rs. 950- 1500/- but his case is that he comes to the post of LDC along with revised scale on the date of his appointment as LDC as per pay protection rules. It is the specific case of the applicant that he is deemed to be in this scale of Rs. 1200-2040/- w.e.f. 01.01.1986 when he was still in DNK. Hence, this argument of Respondents cannot be accepted.
12 260/000730 of 2013
9. Further, the applicant has specifically stated that in the office order No. No. 20-13/84-Estt.( M) (OO No.2014 of 1987) dated 8th September, 1987 (Annx. A/1) while absorbing in CGWB as LDC in the pay scale of Rs. 950-1500/-, it was specifically made clear that as per the provisions of the scheme for Redeployment of surplus staff the applicant is to carry their own pay scale of Rs. 975-1540/- as personal to him in the post of LDC in the scale of Rs. 950-1500/. On revision of scale of pay of Rs. 975-1540/- retrospectively w.e.f. 01.01.1986, he is entitled to the revised pay scale of Rs. 1200-2040/-. The applicant has also stated that this pay scale of Rs. 1200-2040/- was granted to other similarly situated persons on their adjustment after being surplus, viz. Sri M.D.Jena, Jr. Surveyor and R.K.Seth, Jr. Surveyor and by the order of Hon'ble Chhattisgarh High Court to Sri K.Shiva Prasad and that of Sri N.Sambhulinga and Sri K. Balakrishana as per the order of the Bangalore Bench and Ernakulam Bench of the Tribunal. In support of the above stand the applicant has placed copy of the letter No. 4 (195)/87-08-III dated 9th December, 1987 (Annx.A/3) wherein such pay protection was allowed to Shri M.D.Jena. The respondents-department denied grant of the benefit to the above named employees shifting the onus on the applicant to prove the same but without controverting the document placed at 13 260/000730 of 2013 Annx.A/3 to be a bogus or false one. The applicant is a retired employee, aged about 68 years now, and in case of grant of the benefits, he would be entitled to some monetary benefits. I do also agree that discrimination between similarly situated employees in the matter of pay is ante-thesis to rule of law. Hence, applicant is entitled to pay protection in the post of LDC (Rs. 950-1500) at the pay of Rs. 1200-2040/- in the light of the provisions based on which his pay in the pay scale of 975-1540/- was protected while appointing him in the post of LDC carrying the scale of pay of Rs. 950- 1500/- w.e.f. the date of his redeployment notionally till his date of retirement. But he is not entitled to the pay scale of Rs. 4000-6000/- w.e.f. 01.01.1986 as claimed by him as pay scale of Rs. 4000-6000/- was allowed to those who were, after being declared surplus, appointed/adjusted in the scale carrying the pay scale of Rs. 975- 1540/- which scale was replaced with Rs. 4000-6000/- w.e.f. 01.01.1996 whereas the applicant was appointed in the post of LDC in scale of pay of Rs. 950-1500/- carrying his own pay scale of Rs. 975- 1540/- as personal to him and thus, would be entitled to further up gradation of pay and other financial benefits as applicable to the post of LDC from time to time as per extant rules. Law is well settled that once it 14 260/000730 of 2013 was decided by the Government to absorb the surplus employee, it was obligatory for the Government to follow such norms and conditions as may have been laid down from time to time for absorption of surplus /retrenched employee. Hence, I am in agreement with the views taken by the Hon'ble Member (Judl.). Accordingly, the reference is answered as under:
1. Whether the applicant can be given Yes. The applicant was higher pay scale of 330-560/1200- entitled to this scale 2040 while still in the DNK at least 26 w.e.f. 01.01.1986 when years after under the provisions of CCS both scales (Rs.260-
(Redeployment of Surplus Staff) Rules, 430/- and Rs.330-560/-) 1990 now? were merged and replaced with the scale of Rs.1200-2040/- w.e.f.
01.01.1986 when the applicant was still in DNK.
2 Whether the applicant who never The point of reference is
challenged his pay of 260-430/975- not relevant to the facts
1540 while in DNK can be allowed to and issues discussed
challenge the same now in 2013 on the above.
grounds of his belief that he should be
given the revised post of Jnr. Surveyor
while he was working in DNK?
3 Whether the applicant can now be The point of reference is
given the higher pay of a post different not relevant on the issue
from the one in which he was absorbed sought to be adjudicated
per the CCS Redeployment Rules as in the OA.
Clerk just because he has got so called
qualifications of a Surveyor and all this
under the framework of CCS
(Redeployment of Surplus Staff) Rules,
1990 now?
15 260/000730 of 2013
4 Can Central Water Commission pay Yes.
rules apply on CGWB as per the
provisions of CCS (Redeployment of
Surplus Staff) Rules, 1990 now?
5 Will not the law of Limitation apply for No. The applicant is
seeking relief with regards to pay agitating his grievance
fixation more than 26 years after from the right time, apart
allegedly due and pay protection given from the grievance of the
when not due in the first place ever in applicant being a
service? recurring cause of action
where law of limitation is
not attracted as has been
held in the case of M. R
Gupta Vrs Union of
India, 1996 AIR 669.
6 Whether, after being declared Yes. Surplus employee is
surplus in one department and upon entitled to protection of
adjustment in another department in pay in terms of CCS
different post carrying different scale, (Redeployment of
the employee concerned is entitled to Surplus Staff) Rules,
protection of pay in terms of CCS 1990.
(Redeployment of Surplus Staff)
Rules, 1990?
7 Whether the applicant after being Yes.
adjusted in a new department on being
surplus is entitled to the benefit of
revision of pay scale effected in
erstwhile department retrospectively,
i.e. prior to his declaration as surplus?
8 Whether in terms of CCS In the facts and
(Redeployment of Surplus Staff) Rules, circumstances, discussed
1990, the applicant, who was above, this point of
appointed as LDC on 09.08.1987 in the reference is answered
pay scale of Rs. 950-1500/- under affirmatively.
CGWB allowing him protection of his
pay scale of Rs. 975-1540/-, which he
was getting under DNK, is entitled to
protection/revision of pay of Rs. 1200-
2040/-, which was revised
retrospectively w.e.f. 01.01.1986 in his
erstwhile department ?
16 260/000730 of 2013
10. In view of the discussions made above, it is reiterated that I am in agreement with the views of Hon'ble Member (Judl.) and the OA is accordingly disposed of. No costs.
(PRAMOD KUMAR DAS) Member (Admn.) RK/PS