Central Administrative Tribunal - Allahabad
Ram Bishan vs U.O.I. Through Secretary on 18 January, 2011
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD Original Application No.215 of 2000 Allahabad, this the 18th day of _January, 2011 Honble Mr. Justice S.C. Sharma, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Ram Bishan, Asstt. Supervisor P.C. No. 562 I/C Welfare Canteen O.C.F. Shahjahanpur. Applicant By Advocate: Mr. K.C. Saxena Vs. 1. U.O.I. through Secretary, Ministry of Defence, Production, New Delhi. 2. The General Manager, Ordnance Clothing Factory, Shahjahanpur. Respondents By Advocate: Mr. Ajay Singh O R D E R
By Honble Mr. Justice S.C. Sharma, J.M. Instant O.A. has been instituted for the following relief (s): -
(a) his pay may correctly be fixed in the Vth C.P.C. scales starting from the initial fixation in 1980 according to rules, equity and justice,
(b) and in case it is revised from any stage, arrears due to him may also please be ordered to be paid and if case is finalized after his superannuation, pension and pensionary benefits as may be available may also be allowed;
(c) Salary due to Supervisor Canteen on which higher post he was directed to work after the retirement of D.P. Shukla from the post w.e.f. 1.8.97 be allowed to him as has been done by the order of this Honble Tribunal in the case of D.P. Shukla when he was directed to work in the post held by Sri K.K. Gupta when he retired from the post of Supervisor Canteen on 31.7.93. After giving the applicant same benefit in pay scale as has been given to D.P. Shukla through L.R. Nirmala Shukla & 4 others Vs. U.O.I. O.A. No. 911 of 1997 decided on 12.2.2004 and converting the same pay in the Vth Pay Commission report all monetary benefits as admissible to him be allowed including the A.C.P.s as they fell due till the date of his superannuation and all pensionary benefits on the basis of last pay drawn.
2. The pleadings of the parties may be summarized as follows: -
The applicant having been appointed on 01.11.193 in the Welfare Canteen vide letter dated 29.10.1963 as Accountant-cum-Cashier in the O.C.F.S. Canteen in the grade Rs.100-4-120-EB-140-5-180 was designated as Assistant Supervisor in the pay scale of Rs.110-180 in 1965 and was made a full fledged Government employee w.e.f. 22.10.1980 in the grade of Rs. 210-4-226-EB-4-250-EB-5-290 and re designated as Assistant Supervisor-cum-Cashier vide Ministry of Defence (for short MOD) letter dated 21.09.1982. On the basis of MOD letter dated 21.09.1982, respondent No. 2 fixed the pay of the applicant at Rs. 290/- + Rs.44/- as P.P. and subsequently suo moto reduced the salary to Rs. 210/- p.m. vide F.O Part II No. 1829 dated 02.05.1986. O.A. No. 694 of 1987 was instituted in the CAT, Allahabad Bench and the CAT, Allahabad Bench vide Judgment dated 04.03.1993 restored the originally fixed pay i.e. 290 + 44 (as P.P.) per month which order the O.P. No. 2 implemented. The fixation of initial pay became erroneous as the applicant and others in his category were drawing more pay than the maximum of the scale allowed but, instead of giving excess amount as personal pay, the pay should have been fixed in the next higher scale, which was existing. The same errors continued in future fixation of pay in 4th and 5th C.P.C. On the basis of pay fixation due to the Orders of the Tribunal, the pay of the applicant was fixed at ` 290 + 44 P.P. w.e.f. 22.10.1980, the pay of the applicant was fixed at ` 1090/- w.e.f. 01.01.1986 on revision of pay by the 4th C.P.C. vide F.O. Part II No. 1347 dated 18.06.1993 which continued in the scale of pay ` 800-1150/- till he was given provisional in-situ promotion in the grade of ` 825-15-900-EB-20-1200 w.e.f. 01.04.1991 and was drawing basic pay ` 1210 + I.R. (fixed) ` 100/- + I.R. 10% 121 + O.T. Allowance 228 + N.D.A. ` 153 + D.A. ` 1646/- + OT BON ` 646, gross total emoluments of ` 4104/- in the promotional grade. The said in-situ promotion was also given to Sri D.P. Shukla-In charge Canteen who retired on superannuation on 31.07.1997. The applicant was appointed in his place as In-charge canteen w.e.f. 01.08.1997. The opposite party No. 2 vide letter dated 23.12.1997 offered promotion to the applicant as In charge Canteen from Assistant Supervisor Grade II to Assistant Supervisor Grade I, which he accepted. In the meantime, 5th C.P.C. report after approval of the Government of India was implemented and the opposite party No. 2 converted the applicants grade of ` 825-1200 into ` 2750-70-3800-75-4400 in the revised scale of pay while he converted the labour class Cooks grade of ` 750-940/- into -the grade of ` 3050-4590/- i.e. Cooks were given higher grade than the In charge Canteen Assistant Supervisor Grade I under whom they worked. The representations were made in this connection but the same were rejected with the observations that Q.F. Bd. Calcutta to whom the matter was referred for opinion, as not disclosed to the applicant. According to 5th C.P.C., the pay of Assistant Supervisor and Cashier cum Clerk in the pay scale of ` 800-1150/- placed on the condition that he should be placed in the pay scale of ` 950-1500/- to be filled by direct recruitment with a Matriculation qualification. These positions along with Supervisory posts of Grade III (Rs.950-1500, Supervisor Grade II [Rs.1200-1800] and Supervisor Grade I [Rs.1200-2040]) may be organized into a three grades structure with two higher Supervisory grades of Supervisor Grade III and Supervisor Grade II in the pay scales of Rs.1320-2040/- and Rs.1600-2660/- respectively. It is stated that direct recruitment to be made at the level of Rs.950-1500/- only, whereas the next two grades may be filled by promotion only. The two scales shall also be the two higher scales under ACP scheme for those recruited as Assistant Supervisor and Clerk cum Cashier. It is claimed that the applicants pay must be fixed either in the coveted grades of S-7 of Rs.4000-100-6000/- of S-9 of Rs.5000-150-8000 with 2 ACPs in addition in higher scales. Direct recruitment will be made in S-5 grade of Rs.3050-4590. As the respondents have not acceded to the request of the applicant hence, this O.A.
3. The respondents contested the case and filed a Counter Reply. It has further been alleged that prior to implementation of 5th Pay Commission, the applicant was drawing salary in the grade of Rs.825-1200. The 5th Pay Commission after considering the various comments on pay has revised the scale of Rs.825-1200/- and the equivalent scale in the revised scale Rs.2750-4400/-. It is incorrect to state that the applicant was not given the benefit of the revised pay scale under the 5th Pay Commission report. In the 5th Pay Commission report, scale of Rs.825-1200 has nowhere been revised to Rs.3050-4590/-. As a consequence of the decision taken by the Government of India, all the canteen employees were treated as Government employees and brought on the strength of Non-Industrial Establishment (Group C and D) of this factory with effect from 22.10.1980, and in this manner, the applicant was designated as Assistant Supervisor w.e.f. 22.10.1980. By the letter of the Ministry of Defence (for short MOD) 18.09.1982 and 21.09.1982, the pay of the applicant was fixed at Rs.290/- + Rs.44/- PP in the pay scale of Rs. 210-4-226-EB-4-5-290 vide Factory Order Part II No. 1347 dated 16.03.1993 as per direction of Controller of Accounts (Fys), Calcutta. On the recommendation of the 4th Pay Commission, pay of the applicant was fixed at Rs.1090/- per month on 01.01.1986 in the revised pay scale of Rs.800-15-1010-EB-1150 and subsequent increments were granted to him as due from time to time. On 01.04.1991, the applicant was granted in-situ promotion and pay of the applicant was fixed at Rs.1200/- per month w.e.f. 01.04.1991 in the pay scale of Rs.825-15-900-EB-20-1200. Ad hoc increment was granted after two years of qualifying service as per rules. As per recommendation of the 5th Pay Commission under CCS (RP) Rules, 1996, pay of the applicant was fixed at Rs.3800/- per month w.e.f. 01.01.1996 in the revised pay scale of Rs.2750-7 3800-75-4400 and subsequent increments. Vide letter of MOD dated 26.03.1998, existing pay scale of Canteen Cooks i.e. Rs.775-1025/- has been revised to Rs.3050-4590/- and also the existing pay scale of Assistant Supervisor/ Canteen i.e. Rs.800-1150/- has been revised to Rs.3050-4590 w.e.f. 01.01.1996 but since the applicant was granted in-situ promotion w.e.f. 01.04.1991 in the pre-revised pay scale of Rs.825-1200 (Revised pay scale Rs.2750-4400) his case does not come within the purview of revised scale vide MOD letter dated 26.03.1998. The scale of Rs.825-1200 has not further been revised but a pay fixation statement in respect of the applicant on the scale of Rs.3050-75-3950-80-4590/- was submitted to the Principal Controller of Accounts for examination but the same was not approved by the same. It was stated that the revised pay scale of Rs. .3050-75-3950-80-4590/- is applicable to those Assistant Supervisors/Canteen who were in the pre-revised scale of Rs.800-1150. On scrutiny, it was also seen that the Cooks were in the pre-revised scale of Rs.825-1200/- and as such the revised pay scale with effect from 01.01.1996, as mentioned in the Government order, is not applicable to the case of the applicant. The salary of the applicant was also reduced to Rs.210/- per month vide Factory Order Part-II No. 1829 dated 02.05.1986 but the same has been restored to Rs.290/- per month. It is stated that the applicant was never promoted as In charge Canteen/Assistant Supervisor Part I grade and he remained as Assistant Supervisor Grade II till the date of his superannuation in February 2000. It is further submitted that as per CCS (RP) Rules, 1996, pre-revised pay scale of Rs.825-1200 in respect of Assistant Supervisor/Canteen has been revised in the pay scale of Rs.2750-70-3800-75-4400 w.e.f. 01.01.1996 a Table has been annexed for ready reference. The pay scale of Cook was revised from the pay scale of Rs.775-1025/- to Rs.3050-4590/- as per Ministry of Defence letter dated 26.03.1998 whereas the Assistant Supervisor/Canteen who were receiving the pay scale of Rs.825-1200 has not been revised but they were drawing pay in the equivalent revised scale of Rs.2750-4400/- as per 5th Pay Commission, and the matter was referred to the Calcutta and they were not agreed to the recommendation and the pay of the Cooks have been fixed in the revised pay scale. In view of the above, respondents prayed for dismissal of the O.A.
4. We have heard Mr. K.C. Saxena, Advocate for the applicant and Mr. Ajay Singh, Advocate for the respondents and perused the entire facts of the case.
5. It is an admitted fact, as is evident from perusal of parties pleadings, that the applicant had been working in the Welfare Canteen since 01.11.1963 as Accountant cum Cashier in the OCFS Canteen in the grade of Rs. 100-4-120-EB-140-5-180. Later on, he was designated as Assistant Supervisor in the pay scale of Rs.110-180 in the year 1965. The applicant became full-fledged Government servant w.e.f. 22.10.1980 in the pay scale of Rs.210-4-226-EB-4-250-EB-5-290 and re-designated as Assistant Supervisor-cum-Cashier vide MOD letter dated 21.09.1982. The basic salary of the applicant was fixed vide MOD letter dated 21.09.1982 at Rs.290 + 44 PP, and subsequently suo moto reduced the salary to Rs.210/- per month but, the salary so reduced was restored in pursuance to the directions given by this Bench in O.A. 694 of 1987. It has also been alleged by the applicant that after implementation of 4th and 5th Central Pay Commission, salary of the applicant was fixed accordingly. After implementation of the 4th Pay Commission w.e.f. 01.01.1986, salary of the applicant was revised on dated 18.06.1993, which continued in the scale of Rs.800-1150/- till he was given provision in-situ promotion in the grade of Rs.825-15-900-EB-20-1200 w.e.f. 01.04.1991. All these facts are admitted to both the parties. Second in-situ promotion was provided to the applicant, applicant was placed in the pay scale of Rs.825-1200, and prior to that he was in the scale of Rs.800-1150. The total emoluments of the applicant were Rs.4104/- in the promotional grade. It is stated that in-situ promotion was provided to one Sri D.P. Shukla-In charge/Canteen who retired on superannuation on 31.07.1997 (A.N.). The applicant was promoted in his place as In charge/Canteen w.e.f 01.08.1997. It has not been admitted by the respondents that the applicant was promoted as Incharge/Canteen. Provisionally, the applicant was directed to work in place of Mr. D.P. Shukla, after his retirement.
6. According to the respondents as well as admitted by the applicant that vide letter dated 23.12.1997, the respondents offered promotion to the applicant as Incharge/Canteen from Assistant Supervisor Grade II to Assistant Supervisor Grade I, and the applicant accepted it. But, the respondents specifically denied this fact. They have alleged that it is a fact that promotion of the applicant from Assistant Supervisor Grade II to Assistant Supervisor Grade I was offered but he declined the offer. The point in controversy is whether the applicant was promoted in the grade of Assistant Supervisor Grade I from Assistant Supervisor Grade II in pursuance of the letter dated 23.12.1997 and whether the applicant declined to be promoted in that scale, as alleged by the respondents.
7. It is also a disputed point that what should be the scale of the applicant after implementation of 5th Central Pay Commission. It has been alleged that the respondent No. 2 converted the scale of the applicant from the grade of Rs.825-1200 into Rs.2750-70-3800-75-4400/- in the revised scale. It has also been alleged by the applicant that this scale was also provided to labour class Cook grade of Rs.750-940. It is stated that the applicant had been working as Incharge Canteen-Assistant Supervisor Grade I hence he was not supposed to be equated with labour class Cook grade. Hence, there was an anomaly in the scale of the applicant as Assistant Supervisor with the grades of Cooks and other menial staff. A representation was made on 26.02.1999 but the representation was rejected on the basis of observation of the Ordnance Board, Calcutta to whom the matter was referred for opinion. It is stated that the applicant is entitled to be placed above the scale of labour class Cooks and other menial staff as he had been working as Incharge Canteen/ Assistant Supervisor Grade I and a prayer has been made for giving direction to the respondents to fix the salary of the applicant in converted grade of S-7 of Rs.4000-100-6000 or of S-9 of Rs.5000-150-8000 with two ACPs in addition to higher scales. The same scale has been provided to direct recruit in the grade of S-5 of Rs.3050-4590. The respondents alleged that the matter was referred to the Ordnance Factory Board, Calcutta with full details but the Ordnance Factory Board clarified that the Factorys action in respect of Sri Ram Bishuns case (applicant) seems to be in order. But the Principal Controller of Accounts (FYS) Calcutta turned down this request. It has also been alleged that the scale of Canteen Cooks was revised to Rs.3050-75-3950-80-4590 w.e.f. 01.01.1986 vide MOD letter dated 26.03.1998. The pay of Cooks has been fixed in the revised pay scale. The respondents alleged that the scale of the applicant has been rightly fixed. We have to decide that whether in the matter of scale, person who is on higher post may be equated with the services of the Cook- a labour class.
8. It has been alleged by the applicant that he was promoted as Assistant Supervisor Grade I from Grade II vide letter dated 23.12.1997. Vide this letter, an offer was made to the applicant for promotion in the higher category and that applicant had admitted this fact whereas the respondents specifically denied from this fact. They have alleged that the applicant in writing informed the respondents that he is not accepting the offer of promotion in Grade I from Grade II. The applicant filed a letter of offer of respondents, which is annexure A-5, and the respondents filed the same document annexure CA-3. The contents of both the letter are identical. It is a fact that an offer was made to the applicant for promotion in the scale of Assistant Supervisor Grade I (Canteen) from Assistant Supervisor Grade II. But the respondents specifically alleged that the applicant declined to accept the offer. Annexure CA-4 is the letter of decline of the applicant. We have perused the contents of this letter. It has been alleged in the letter by the applicant that this offer is unjust and arbitrary and in contravention of the Government instructions. It is also stated that in the Welfare Canteen there is no post of Supervisor Grade I, sanctioned by the Government. It has also not been disclosed in the letter of offer that in the proposal whether the post of Assistant Supervisor Grade I shall be of Class III or Class IV. If the post comes in the category of NIE Class III, then the offer is not acceptable to him. Learned counsel for the respondents argued that the applicant declined to accept the offer on the basis of above facts, and that no post was sanctioned by the Government of Assistant Supervisor Grade I, and it was not clarified that whether this promotional post of Assistant Supervisor Grade I will be in the category of Class III or Class IV and that is why this was the basis for declining the offer of promotion. It has also not been alleged by the applicant that after offer of promotion and thereafter, applicant denying the offer of promotion, the respondents accepted the declination of the applicant and they accepted the contention of the applicant, alleged in the letter of declination. As it has not been disclosed before us that the applicant was promoted from Assistant Supervisor Grade II to Assistant Supervisor Grade I, there is no other material before us to ascertain this fact. Under these circumstances, we have no option before us except to rely on the contention of the respondents and the fact is that the applicant was not promoted in the grade of Assistant Supervisor Grade I from Assistant Supervisor Grade II.
9. It has also been alleged by the applicant that after implementation of 5th Pay Commission, there had been a gross anomaly in the scale of Supervisory staff and that of Canteen Cook. It is stated that earlier the scale of the applicant was higher than the scale of Cook. The scale of the applicant was Rs.825-1200 when he was promoted in-situ category earlier when the applicant was not promoted on the basis of in-situ promotion, the scale was Rs.800-1150/-, whereas according to the applicant and not disputed by the respondents, the scale of labour class Cook was lower than the scale of Supervisory Staff. But on the face of it, there is gross anomaly in the scale of the applicant after implementation of the 5th Central Pay Commission. The scale of labour class Cooks has been revised from the scale of Rs.750-940/- to the scale of Rs.3050-4590/- whereas the scale of the applicant was revised as Rs.2750-70-3800-75-4400, and hence there was dissimilarity in the pay scale of the applicant to Labour Class Cooks whereas the applicant was working in the capacity of Assistant Supervisor Grade-II and also had been the Incharge canteens, and the Cooks were working under the control of the applicant but surprisingly the scale of the applicant was lower to the scale of Cooks, on the face of it this contention of the applicant appears to be justified.
10. We have stated above that the scale of Supervisory staff was higher than the scale of Labour Class Cooks earlier to the implementation of 5th Central Pay Commission. Earlier the scale of the applicant after in-situ promotion was Rs.825-1200/- whereas the scale of Cooks was Rs.750-940/-. After implementation of 5th Pay Commission, the scale of Cooks was revised higher than that of the Supervisory staff including the applicant. In our opinion, this is most unjustified. An employee of Supervisory grade cannot be equated with that of Cooks-Labour class employee. On the face of it, it does not appeal to common sense. It is a fact that the respondents also agreed with this anomaly and the matter was referred to the Headquarters Ordnance Factory Board, Calcutta, and they recommended that this is an anomaly and it must be clarified. However, Principal Controller of Accounts did not agree with the recommendations of the Board and they have stated that whatever scale has been granted to the applicant, is in accordance with the Fifth Pay Commission. Learned counsel for the applicant also argued that in pursuance of the recommendation of Fifth Pay Commission, the scales were fixed. A table has also been filed along with the Counter Affidavit, which is annexure CA-1. Learned counsel also argued that as the applicant was in the scale of Rs.825-1200, and this scale was revised to Rs.2750-4400/- whereas the scale of Cook which was Rs.750-940/-, was revised to Rs.3050-4590/-, and it has been done according to the recommendation of the 5th C.P.C. and the respondents did not agree to the anomaly to the representation of the applicant. But, it is not justified on the part of the respondents to equate the supervisory staff with that of labour class Cooks. Earlier to the implementation of the 5th C.P.C., scale of Supervisor was higher than that of the scale of Cooks. After implementation of 5th C.P.C., the scale must have been higher in proportionate rather lesser than that of the scale of Labour Class Cooks. It has been alleged by learned counsel for the applicant that either the grade of S-7 of Rs.4000-6000/- or of S-9 of Rs.5000-8000/- with two ACPs must be granted to the applicant.
11. We have decided above that there had been a gross anomaly in the scale of the applicant posted as Assistant Supervisor Grade II because the scale of the Cooks was revised higher than the scale of Assistant Supervisor. In our opinion, the scale of the applicant must be higher being holding the higher post that of Assistant Supervisor Grade II. It has been suggested by learned counsel for the applicant that the applicant must be placed either in the grade of S-7 of Rs.4000-6000/- or S-9 of Rs.5000-8000/-. Learned counsel for the applicant also argued that the scale of direct recruit had been fixed in S-5 of Rs.3050-4590/- and hence considering that fact also it must be higher. The point for consideration is what should be the scale of the applicant after implementation of 5th C.P.C. Much has been argued by learned counsel for the applicant that it must be of S-9 of Rs.5000-8000/- with two ACPs. It is undisputed fact that in the case of direct recruitment of the persons in the grade of Assistant Supervisor is Rs.3050-4590/-, and on promotion it must be to a higher post. Earlier also, the applicant was promoted in-situ grade and placed in the grade of Rs.825-1200. Earlier, the normal scale of the applicant was Rs.800-1150 till the applicant was provisionally promoted in situ. In case the applicant might have been recruited as direct recruit, then his scale according to the recommendation of the 5th Pay Commission might have been Rs.3050-4590. It is initial scale of Supervisory staff for direct recruitment. Thereafter, the applicant was promoted in the scale of Rs.825-1200/- to the higher scale. At the time of recommendation of 5th C.P.C., the applicant had been working in the scale of Rs.825-1200/- much higher to the grade of Labour Class Cook who had been working in the scale of Rs.750-940. In comparison to their and direct recruit in the Supervisory grade, promotional scale must be higher. Learned counsel for the applicant placed reliance on this point and argued that the appropriate scale must be Rs.5000-8000/-. We think it just and proper to provide that the applicant will be entitled for this scale after implementation of 5th C.P.C. because normal scale for a Supervisory Staff in the case of direct recruit had been as Rs.3050-4590/- after implementation of 5th C.P.C. and a promotion was provided to the applicant in-situ in the scale of Rs.825-1200/- hence it must be higher to that. In case the grade of Rs.4000-6000/- is provided to the applicant, then it will be equivalent to in-situ promotion but after implementation of 5th C.P.C., person must be in the higher grade itself naturally, and common sense appeals that the applicant is entitled to the scale of Rs.5000-8000, and not in the scale of Rs.4000-6000/-. The applicant had been working since 1963 and at the time of implementation of 5th C.P.C., the applicant had put in a lot of service. A prayer has also been made for providing the scale with two ACPs in addition to higher scale. But the two ACPs will be admissible according to the length of service in the respective grades.
12. For the reasons mentioned above, we are of the opinion that the applicant is entitled for higher scale after implementation of 5th C.P.C. and he is entitled to Rs.5000-8000/-. We have also decided above that the applicant was offered for promotion as Assistant Supervisor Grade I after retirement of Mr. D.P. Shukla, Incharge/Canteen but applicant in writing declined the offer. No reason has been mentioned that as to why this offer may not be accepted. In our opinion, it shall be held that the applicant was not promoted as Assistant Supervisor Grade I from Assistant Supervisor Grade-II.
13. O.A. is allowed partly to the effect that the applicant is entitled to the scale of Rs.5000-8000/- after implementation of 5th C.P.C. w.e.f. 01.01.1996. However, the O.A. is dismissed partly so far as regards admissibility of promotion in the scale of Assistant Supervisor Grade-I. Applicant is entitled to all consequential benefits with effect from 01.01.1996 and on superannuation the pension may be revised accordingly and payment of the arrears be made accordingly within a period of three months from the date of Judgment. No costs.
{Manjulika Gautam} [Justice S.C. Sharma]
Member A Member - J
/M.M/