Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India Through on 19 February, 2013
1 O.A. No.119/2008 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 119/2008 Tuesday, this the 19th February, 2013 CORAM: HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER(J) HON'BLE SMT. LEENA MEHENDALE, MEMBER(A) Shri Jagannath V. Bhatkar, 103, Shri. Saiteerth Co-op. Housing Society, Ghanashyam Gupte Road, Jai Hind Colony, Post - Dombivali(West), Dist. - Thane, Dombivali(W)-421 202. ... Applicant (By Advocate Shri V.M. Bendre) VERSUS 1. Union of India through the Secretary, Department of Atomic Energy, Anushakti Bhavan, C.S.M. Marg, Mumbai 400 001. 2. The Additional Secretary (Administration), Administration Section, Department of Atomic Energy, Anushakti Bhavan, C.S.M. Marg, Mumbai 400 001. ... Respondents (By Advocate Shri V.S. Masurkar) O R D E R Per: Smt. Leena Mehendale, Member (A)
This OA is filed on 12th February, 2008 for the purpose of revised pensionary benefits by giving advantage of stepping up of his pay with reference to his junior Mr. Gupte. He has impugned Annexure A-1 dated 01/08/2007 and Annexure A-2 dated 31/05/2007, both from DAE, rejecting his request for such a stepping up. However, at prayer 8(b) he makes an apparently consequential prayer to give him 2 O.A. No.119/2008 officiating benefit from 1971 to 1973.
2. Brief facts as stated by the Applicant are that he was appointed as CGII in Western Railway and worked there from October 1955 to September 1962. Thereafter, he applied for a post of UDC (Upper Division Clerk) in BARC, was selected and started working w.e.f. September 1962. He had resigned from his post in Western Railway to join BARC. He claims that at the time of selection the Respondents had assured him that his earlier government service with Western Railway will be protected and counted for all practical purposes. However, it was not done so. In 1969, he was transferred to Heavy Water Project division where his seniority was fixed and he was the senior most UDC (no document produced to show that he was declared senior most in 1969). The Respondents promoted him to an available regular vacancy of Assistant Accountant (AA for short), on officiating basis in May 1971. Initially, he did not receive any benefits for this higher post on officiating basis. After he gave representation, he started getting benefits for the officiating job w.e.f. December 1971. But the same was withdrawn though he continued to work as officiating AA till he was given a regular promotion on 31/07/1973.
3. It is, therefore, the claim of the Applicant that he is entitled to the benefits of a regular promotion as AA w.e.f. May 1971 which was denied by the Respondents and he was given the benefits only from December 1973, by fixing his pay at the bottom of pay scale.
3 O.A. No.119/20084. Applicant claims that as per the rule for pay fixation for ad-hoc officiating basis, he is entitled to the benefits from May 1971 or at least from December 1971. He got financial benefits for his ad-hoc post as AA and thereafter a break after which once again posted regularly as Assistant Accountant w.e.f. 31/07/1973. Had he been given condonation of break, his pay on 31/07/1973 would have been higher than the bottom of the pay scale. In this OA, he does not give period for which he got financial benefit for working as AA.
5. Since this was not done, he started receiving bottom of pay scale of AA i.e. Rs.210/- w.e.f. December, 1973.
6. The Department had not prepared seniority list of Assistant Accountants for a long time and a provisional list was first prepared in 1991 which is at Annexure A-4 and it shows the applicant at No.1 position with date of appointment to the grade of Assistant Accountant as 31.7.1973. It also shows another Assistant Accountant Shri N.Y. Gupte at S1.No.2 whose date of appointment to that grade is 17.3.1976. It is undisputed that Gupte was UDC in 1960 while the date of entry of applicant to government service is shown as 1962 in Annexure A-4. Therefore, it raises a question whether his claim to earlier government service in Railways in 1955 was acceptable to respondents.
7. On 1.10.1976, the applicant was transferred from BARC's Heavy Water Division and brought to their Central Office which is also called as Secretariat Office. Thereafter, he was to retire w.e.f. 31.3.1993 on superannuation. He claims that while he was completing the 4 O.A. No.119/2008 pre-retirement formalities, it came to his notice that the said Shri Gupte although junior to him as per seniority list of 1991, was actually drawing higher salary than him. Therefore, he gave a representation on 24.10.1992. The applicant claims that the Department has failed on three counts:
(i) They did not give him the benefit of his earlier service with the Railways from October, 1955 to September, 1962, although it was orally promised. Had he been given this benefit, he would have been at a higher point in the pay scale of UDC;
(ii) Since he had worked as officiating Assistant Accountant w.e.f. May, 1971, he should have been given the benefit of this period for the purpose of fixing his pay after actual official promotion w.e.f. 31.7.1973. Thus he would have been at a higher point in the pay scale of Assistant Accountant;
(iii) Had the Department considered his representation of 24.10.1992 he would have been able to get pay at the same level as his junior was getting on that date.
8. However, the Department did not respond favourably on all the three occasions. He claims that after his representation on 24.10.1992 he was orally advised to pursue his representation under F.R. 22 (c) under which he would get speedier and more favourable decision.
9. At this stage, we find a serious lacunae by the applicant. He claims that in 1992 and 1993 he was more busy in completing his pre-retirement preparations. Thereafter, he superannuated on 31.3.1993 keeping in mind the advise that he should make a fresh application under FR 22 (c). However, he actually made this application only on 27.10.2004, which is after 11 years. He claims that since various pay revisions viz. on 01.1.1986 and 01.1.1996 were 5 O.A. No.119/2008 due, he expected certain delay on his representation of 1992. After his application in 2004, he was again asked to submit a detailed representation under F.R. 22 (c) which he did on 09.5.2005 (Annexure A-8), bringing out for the first time, the question of his seniority over Gupte's. We also find that Annexure A-8 is not a proper representation under F.R. 22 (c). The applicant has worked as Assistant Accountant for a long number of years and therefore he definitely should be understanding the forms to be filled up under F.R. 22 (c) and other formalities, which he does not seem to have completed.
10. The applicant mentions at para 29 and 30 of the O.A. that the respondents have rejected his representation by their order dated 16.12.2005. They had taken the ground that Shri Gupte was appointed as UDC on 08.8.1960 while the applicant was appointed on 17.9.1962. In 1976, Shri Gupte's salary under the grade of Assistant Accountant got fixed at Rs.500/-whereas, the applicant was promoted in 1973 but his salary got fixed at the bottom of the scale i.e. Rs.470/-. He further claims that the respondents had not carried out his pension revision that was due w.e.f. 01.1.1996 which goes to show that the respondents were still considering his representation of 24.10.1992. Therefore, his application under F.R. 22 (c) dated 27.10.2004 cannot be considered as a delay and laches on his side.
11. The applicant made one more attempt by applying to the Department of Administrative Reforms and Public Grievances on 22.5.2006 (Annexure A-9), but the same was rejected by 6 O.A. No.119/2008 order dated 29.5.2007 (Annexure A-2). Same was again reiterated by the respondents on 01.8.2007 (Annexure A-1), by providing a detailed comparative chart. After that, he has filed this O.A. on 2nd February, 2008 and hence there is no delay on his part.
12. The applicant has made two more claims. Firstly, he has narrated the working arrangements in BARC under which it was not possible for him to know at an earlier date that Shri Gupte who was actually promoted as Assistant Accountant in 1976 was drawing more salary than him. He came to know of it only in 1992. Secondly, while rejecting his claim as per the representation of 24.10.1992 and the subsequent representation dated 02.11.2004, the respondents have relied upon para 1(a) (1) of GIO (23) under FR22. However, the said para was a result of the IVth Pay Commission recommendations of 1986 under which there were stricter rules in the matters of benefit of adhoc, officiating services. Since the conditions were different prior to 01.1.1986 and more particularly in 1973, the respondents should have given him the benefit of his officiating service between 1971 to 1973.
13. The main plea taken by respondents while opposing the application is the ground of delay. The respondents cite several citations to plead that the OA should be dismissed on the ground of delay alone. They further claim that the applicant has also received the benefit of his past service with Railways w.e.f. 10.10.1955 to 16.9.1962 after retirement in the sense that his revised pensionary benefits have been fixed for full service of 33 years 7 O.A. No.119/2008 (Annexures R-1 and R-2 dt. 1.12.1995 and 6.2.1996 respectively). This takes into account his service with Railways. Further, when he was appointed to officiate as Assistant Accountant for a period of 48 days Viz. 13.12.1971 to 29.1.1972 he was given the minimum salary of Assistant Accountant by fixing his pay at Rs.210/However, this was only a temporary situation. Thereafter the applicant was reverted back to the post of UDC on 30.1.1972 till once again, he was given regular promotion as Assistant Accountant w.e.f. 31.7.1973. He received UDC's salary in the intervening period, hence his pay got fixed at Rs.210/- w.e.f. 31.7.1993. We, however, find that this statement does not tally with the chart attached to the impugned order at Annexure A-1 which show him to have worked as Assistant Accountant from 13.12.1971 to 30.11.1972 before reverting him back as UDC, thus rendering his break only to 7 months and not 18 months.
14. We have gone through the record submitted by both the counsel, including the rejoinder and sur-rejoinder. We are not inclined to dismiss the OA in limine on grounds of delay, but to examine the details of case.
15. The applicant has cited an earlier OA No.337/99 decided by this Bench. It was held that there can be no apparent discriminatory treatment among various classes of employees who are equally placed. This was also upheld by the High Court in Writ Petition No.2887/2003. We will, however, discuss below how the said O.A. does not come to rescue of the applicant.
16. Looking at Annexures A-1, A-2, A-4 and para 12 of the reply statement, something needs to be commented about the 8 O.A. No.119/2008 office of respondents. Coming to Annexure A-1, we find that it is a letter from the respondents to the applicant dt. 1.8.2007 where it is stated that Shri Gupte was never junior to the applicant, Since he joined BARC in 1960 and since he had been officiating as Assistant Accountant since 8.9.1967 continuously till the date of his regular appointment on 17.3.1976 with a small break of 5 months). Also since the applicant was appointed only in 1962 and his date of continuous appointment as Assistant Accountant was 31.7.1973, hence all along Shri Gupte has been drawing more salary than the applicant. The respondents have rejected the representation on this ground. Hence, the applicant has impugned Annexure A-1. Another impugned order is at Annexure A-2 dt. 31.5.2007. It is reiterated here that Shri Gupte is senior to the applicant in the grade of UDC and had started working as Assistant Accountant on ad hoc basis much prior to the date of promotion of the applicant as Assistant Accountant. Therefore, the question of stepping up of pay for the applicant does not arise. It is seen from the provisional seniority list of Assistant Accountant published on 13.9.1991 (Annexure A-4) that as on 31.7.1991 the applicant is shown to be at Sl. No.1 with date of entry in government service as 17.9.1962 and date of appointment to the grade of Assistant Accountant as 31.7.1973, whereas Shri Gupte is shown at Sl. No.2 with date of appointment in the government service on 22.11.1956 and date of appointment to the grade of Assistant Accountant on 17.3.1976. This seniority list, is however, silent on the possible reason as to why in 1991 the 9 O.A. No.119/2008 applicant was shown at seniority No.1 as compared to Shri Gupte. It is also silent on the aspect of ad hoc promotion enjoyed by Shri Gupte w.e.f. 8.9.1967 as stated in Annexure A-1. The comparative chart at Annexure-A-1 shows very clearly on year to year basis how the two officers have been given the posting and how their pay was fixed, and how all along Shri Gupte was getting higher salary.
17. We find from Annexures A-5 dt. 24.10.1992, A-6 dt. 27.10.2004 and A-7 dt. 2.11.2004 that the applicant has simply raised the question of giving him financial benefit for his ad-hoc service as Assistant Accountant which he claims to be his continuous job chart from 1971 onwards although technically he was given a break. It is not clear whether the break is of 7 months or 18 months. Annexure A-1 shows it as 7 months but para 12 of reply shows it as 18 months.
18. In Annexure A-1 it is mentioned that Shri Gupte became regular Assistant Accountant on 17.3.1976 but no such remark of `regular' is kept in the chart for the applicant although he is shown as Assistant Accountant continuously from 31.7.1973. The chart also shows that both are appointed in substantive capacity as Assistant Accountant w.e.f. 14.5.1984. This description is at variance with the description given in Annexure A-4 which is provisional seniority list of Assistant Accountant as on 31.7.1991 and it mentions date of appointment to the grade for the applicant as 31.7.1973, but the date of appointment of Shri Gupte to the grade as 17.3.1976. Unless the actual appointment order of both the applicant and Shri Gupte to 10 O.A. No.119/2008 the grade of Assistant Accountant is compared it will not be understood as to how in 1973, the respondents considered the applicant as more eligible for appointment to the grade than Shri Gupte. Was it because they had in principle accepted him to be a recruitee of 1955 or was it for reasons of some other selection criterion for promotion to the grade or was it for the reason that Shri Gupte was already occupying the seat of Assistant Accountant?
19. The OA No.337/199 cited by the applicant is a matter between Atomic Energy Workers and Staff Union and Ors. v. Union of India and the issue involved therein was of cadre review after certain recommendations by the IV th Pay Commission recommendations in 1986. Thus, it would affect a large number of persons. The present OA relates to individual AA and the question of condoning his break in his officiating service vis-a-vis condoning a similar break in the officiating service of another employee Shri Gupte. Though Shri Gupte became AA on ad hoc basis, but almost continuously from 1967 onwards with a small break of 5 months over a period of 9 years. In comparison break for applicant is 7 (or 18 months) out of 2 years. Hence, the two are not comparable. He has stated in the OA at para 23 that he came to know about Shri Gupte being junior to him and yet drawing higher pay only some time in 1992 when he was preparing for his pension papers. Yet, he has raised the question of pay parity and stepping up of his pay with respect to the pay of Shri Gupte only on 9.5.2005 as seen from Annexure A-8 and repeated on 22.5.2006 as seen from Annexure A-9.
11 O.A. No.119/200820. We thus, find that from 1962 to 1973 the applicant has not received anything in writing from the respondents to clarify whether his earlier service in the Railways from 1955 is being counted or not. But he did not agitate this issue. He got his regular promotion as Assistant Accountant w.e.f. 31.7.1973. Whereas, his junior Gupte got his regular promotion from 17.3.1976. We agree with the applicant that till 1991 he may not have any occasion to know that Shri Gupte was always drawing more salary than him right from 1960 onwards. However, the provisional seniority list of 1991 would be tantamount to accepting the applicant as a recruitee of 1965 unless there was some other reason such as merit for giving him the grade in 1973. A person working as Assistant Accountant definitely must understand these niceties, since he is the one who deals with the pay and pay fixation of many more people. Even then we find that throughout the years 1992 to 2004 he does not raise the question of his prior service or of his seniority over Shri Gupte, but only harps upon his claim for a seamless promotion as Assistant Accountant w.e.f. 13.12.1971. It can again be said to his advantage that while so claiming although he was aware of a technical break of 7 months in his own case, he was not aware of a similar technical break of 5 months in case of Shri Gupte and also may not have known that on re-appointment as ad hoc Assistant Accountant Shri Gupte was given the benefit of a seamless pay scale of Assistant Accountant which has started from 1967. On the other hand, even if he was given this benefit of seamless increment in the grade of 12 O.A. No.119/2008 Assistant Accountant his salary would still have remained lower to the salary of Shri Gupte who was given his UDC salary from 1960 and his ad-hoc Assistant Accountant salary from 1967. It has been stated by the applicant himself that prior to 1.1.1986 (IV th Pay Commission recommendations) the rules permitted such seamless promotions for ad hoc appointees. If that be the case, then he has to accept that Shri Gupte would also be entitled to such an advantage and therefore, there is nothing wrong if Shri Gupte has been drawing higher salary than the applicant as Assistant Accountant right from 1967.
21. Thus, we see that there are three aspects to the case of the applicant and they are independent of each other. First aspect is whether he should have been given the benefit of his service from 1955. There is no representation from his side on this point. Yet the respondents have given him the benefit of 33 years of service for the purpose of fixing his pension. Therefore, nothing more remains to be done on that point at this stage. The second aspect is whether he can be given higher salary than Shri Gupte at any stage during his service. The chart at Annexure A-1 shows that Shri Gupte has always drawn higher salary than him both in the grade of UDC and in the grade of officiating AA. The applicant could get higher salary than Shri Gupte only if at any time during his entire service he had pressed his claim of being treated as an UDC recruitee of 1955 which he has not done. Since the ad hoc service as AA of Shri Gupte has continued from 1967 seamlessly, hence the applicant would 13 O.A. No.119/2008 not have got higher salary than Shri Gupte. Even if his ad hoc promotion as AA could become seamless it could be so at the most from 13.12.1971. Thus, the effect of (Annexure-A4) that declares him as more senior to Shri Gupte gets nullified by the fact that Shri Gupte has been given officiating post of Assistant Accountant in 1967 itself. Hence, the question of his seniority is no longer relevant at this stage. It is also not the prayer. The third aspect of the case is that Shri Gupte seems to have worked continuously as ad-hoc AA from 8.9.1967 to 19.5.1970 (which is more than 30 months) before a break of 6 months was suffered by him. Whereas, the applicant worked as ad-hoc AA from 13.12.1971 to 30.11.1972 which is 10 months before he got a break of nearly 8 months before getting regular appointment as AA. Whether he should be given advantage of a seamless service as AA on the same lines in case of Shri Gupte despite so much variation in the time span? We find this aspect to be too remote in time to be settled at present.
22. In view of this, the OA is dismissed. No order as to costs.
(Smt.Leena Mehendale) (Justice A.K.Basheer) Member (A) Member (J) B.