Central Administrative Tribunal - Chandigarh
Mohinder Singh Panwar vs Navodya Vidyalaya Samiti on 11 April, 2023
1- O.A. No. 660/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/00660/2019
Chandigarh, this the 11th April, 2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
1. Mohinder Singh Panwar s/o Sh. B.S.Panwar age 43 years r/o village
Thatyur, Tehsil Dhanaulti, District Tihri Garhwal, Uttrakhand, Presently
Posted at Jawahar Navodya Vidyalya, Sandhuan, Distt. Ropar (PB)-
140001.
2. Anurag Vats, s/o Sh. A.K.Vats, age 44 R/o H.No.257, Sector 32-A,
Chandigarh. Presently posted at Jawahar Navodya Vidyalya, Kunihar,
Tehsil Arki, Solan (HP)-173211-12.
3. Surinder Mohan s/o Sh. Mangal Singh age 39, r/o village Khundgal, P.O.
Tambol, District Bilaspur, (H.P), Presently posted at Jawahar Navodya
Vidyalya, Rakoli, District SAS Nagar,Mohali-140055.
4. Arvind Kumar s/o Sh. Om Parkash, aged 43 years, resident of H.No.
122, Mansa Devi Complex, Sector-4, Panchkula, presently Posted at
Jawahar Navodya Vidyalya, Farour Distt. Fatehgarh Sahib (PB)-140407.
5. Nitin Meshram s/o Shri Tarachand Meshram, age 42 years, resident of
NIT 54, Lashkaribagh Bhoslewadi, Nagpur, presently posted at Jawahar
Navodya Vidyalya, Sector 25 (West), Chandigarh-160017.
6. Kishan Verma S/o Shri L.R. Verma, age 40 years, resident of # 464,
Model Colony, Haridwar (U.K.) presently posted at Jawahar Navodya
Vidyalya, Fatehpur rajputan, Patiala (PB)-147001.
7. Vinay Kumar Sinha S/o Shri Brahm Deo Prasad Sinha, aged 48 years,
resident of VPO Darura, Tehsil Noor Sarai, District Nalanda, Bihar
presently posted at Jawahar Navodya Vidyalya Pojewal, District SBS
Nagar (Punjab) - 141007.
8. Rajinder Kumar s/o late Sh. Angdui, age 39 years, resident of Village
Yoche, P.O. Darcha, district Lahaul Spiti, presently posted at Jawahar
Navodya Vidyalya, Pandoh, District Mandi (HP).
9. Sanjay Kumar Bist s/o Late Sh. Mohan Singh Bist, age 50 years, r/o
Bhudeep Bhawan, Atulanu vihar, Pilli Kothi, Haldwani, Distt. Nainital,
presently posted at Jawahar Navodya Vidyalya, Baseda Taga, Distt.
Almorah (U.K.)-263601.
2- O.A. No. 660/2019
10. Bahadur S/o Sh. Bargi Ram, aged 40 years, resident of VPO Karsai
Tehsil Bargar, Distt Hamirpur (H.P.) PIN-174312, presently posted at
Jawahar Navodya Vidyalya, Lohara, District Moga (PB)-142001.
11. Sandeep Sharma s/o Joginder Prasad Sharma, aged 43 years, resident
of Sharma Niwas VPO Maranda, Tehsil Palampur, District Kangra (H.P.)
presently posted at Jawahar Navodya Vidyalya, Sarol, District chamba
(H.P.) - 176310.
....Applicants
(By Advocate: Mr. Vishal Gupta)
Versus
1. Union of India through the Secretary, Ministry of Human Resource
Development, Department of School Education and Literacy, Shastri
Bhawan, New Delhi.
2. The Additional Secretary & Financial Advisor (HRD) , Ministry of HRD,
Room No.118, C-Wing, First Floor, Shastri Bhawan, New Delhi.
3. Navodya Vidalya Samiti, (an Autonomous Organization under Ministry of
Human Resource Development, Department of School Education and
Literacy, Government of India), B-15, Institutional Area, Sector 62,
Noida through its Commissioner.
4. The Deputy Commissioner, Navodya Vidalya Samiti, Chandigarh Region,
Bay No.26-27, Sector 31-A, Chandigarh.
... .Respondents
(By Advocate: Mr. Sanjay Goyal)
O R D E R (Oral)
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"(i) For directing the respondents to grant special allowance @10% of the basic pay as being granted to teaching staff and Librarians in the JNVs being run by the respondents in the interest of justice.
(ii) For issuance of direction to respondents to grant the special allowance in terms of the judgment passed by the Principal Bench of the Tribunal in case of Staff Nurses who are working in the JNVs and working round the clock as the present applicants." 3- O.A. No. 660/2019
2. The facts of the case are that the applicants have been appointed as Catering Assistants with the respondent no. 3 Navodaya Vidyalaya Samiti (hereinafter referred to as NVS) on various dates and have joined the services of the respondent Samiti. They are responsible for the running of the mess in the residential school being operated by the respondent Samiti under the aegis of Ministry of Human Resource Development, working as Catering Assistants. The duties of the Catering Assistants including taking care of the food requirement of about 600 students and staff for which the applicants being the Catering Assistants have to undertake numerous job/duties as detailed in the O.A. The NVS has recommended to the Secretary, 6th Central Pay Commission vide letter dated 29.12.2006 for implementation of Government of India Pension Scheme for the employees of the NVS and for fixation of their working hours and for grant of special allowance to the applicants on account of the applicants working round the clock while discharging their duties. The applicants while discharging their duties as Catering Assistants are working for 18 hours a day, had time and again requested the respondents to consider curtailing their working hours as the applicants, who are earlier termed as teaching staff were subsequently granted the status of a non- teaching staff. The persons similarly situated like the present applicants had filed an O.A. No.389 of 2009 titled as M.V. Varghese and others Versus Union of India and others before the Central Administrative Tribunal, Ernakulam Bench, seeking the relief of grant of appropriate pay scale and special allowance as has been recommended by 6th Pay Commission and fixation of their working 4- O.A. No. 660/2019 hours. The said O.A. was allowed vide order dated 5.8.2010 with the direction to the respondents to call the meeting of the Governing Body of the Jawahar Navodya Samiti. In consonance with the directions given by the Ernakulam Bench of this Tribunal, the respondent convened a meeting of the Navodya Vidyalya Samiti on 10.02.2011. The NVS in its meeting had duly deliberated the issue regarding the fixation of working hours for Vidyalya Mess Staff and creation of additional post for running the second shift for JNV‟s for smooth functioning. The NVS had reached the conclusion that the working hours of the mess staff should be from 5.30 a.m. to 2.00 p.m. and second shift would be from 2.00 p.m. to 10.30 p.m. and further recommended that one Catering Assistant, one Cook and two Mess Helpers should be there for each shift. However, the Ministry has failed to take any decision on the request made by the Finance Committee of the Navodya Vidyalya Samiti to the Ministry. Thereafter another group of catering assistant filed O.A. No.436 of 2009, titled as P.Ranjan Versus Union of India and others before the Central Administrative Tribunal, Cuttack Bench, Cuttack. The Cuttack bench of the Tribunal vide order dated 4.8.2011 directed the respondents to take early decision on the minutes circulated vide letter dated 18.2.2011 in its 47th meeting of the Finance Committee of the Navodya Vidyalyas.
3. The applicants have filed another OA No.659 of 2018 before this Tribunal for regulating the working hours of the Catering Assistant as they have to work from 5.30 in the morning till 10.30 in the night. It has also been mentioned that the decision of the Ministry taken on 28.09.2011 whereby they have at the first instance 5- O.A. No. 660/2019 considered the plea of the Catering Assistants for grant of the 10% special allowance has been rejected only on the ground that the 6th Pay Commission has not recommended 10% special allowance to the sport staff of the residential school. It is pertinent to mention here that while arriving at such a decision it has been duly admitted and acknowledged by the Ministry that the sport staff of NVS is overworked and it has to work for 7 days a week for long hours, however, instead of special allowance, they recommended that the issue of long working hours and increased work load need to be resolved by engaging more workers or outsourcing of work and not by sanctioning additional allowance. In view of the above said reasoning, the Department of Expenditure has rejected the demand /proposal for extending the special allowance @10% of the non-teaching staff of NVS. Along with the said letter dated 28.09.2011, the respondents have also brought on record the recommendation of the Joint Commissioner Personal, NVS made to the Deputy Secretary, Government of India, Ministry of Human Resource Development, whereby the NVS has itself recommended the grant of 10% basic pay to support staff of the Vidyalyas even though they are working round the clock and having more working hours than the teaching staff. Thus, the decision taken by the Ministry with regard to the rejection of the claim of the applicant for grant of special allowance @10% of the basic pay, has been conveyed/brought to the knowledge of the applicants only in the month of January 2019 by way of above mentioned decision being brought on record in the earlier OA filed by the applicants. The Government of India while filing the reply in the above mentioned OA brought on record the decision dated 26.10.2012 taken in pursuance to 6- O.A. No. 660/2019 the orders passed by the C.A.T. Ernakulam Bench dated 3.10.2012. In the said letter it has been decided that the grant of special pay at the rate of 10% of the pay and to fix working hours has already been decided by the Ministry and conveyed vide Ministry letter of even number dated 28.09.2011. It has been further stated that the matter was re-examined and it has been observed that no special allowance to cooks and mess helpers is provided in Sainik Schools and they not have such a cadre.
4. It has been contended that the staff Nurses working in the JNVs also approached the Principal Bench of the Tribunal at New Delhi for redressal of their grievance and the Principal Bench has vide order dated 23.01.2019 while duly considering the fact that the Nursing staff has to remain available roundthe clock and the benefit of special allowance has already been extended to Teaching Staff and Librarian, has reached the conclusion that the decision taken by the Ministry is totally untenable and as such directed the Union of India to reconsider the issue keeping in view the proposal made by the NVS and necessary exercise was directed to be completed within a period of two months. It has been contended that the benefit of additional allowance has been granted to the Nurses, Teaching Staff and Librarians of the JNVs, but the applicants have been discriminated against. It has also been contended that their counterparts in the Sainik Schools and Oak Grove Schools being run by the Ministry of Defence and Ministry of Railways, have been allowed special pay and allowances but the applicants are being deprived of those benefits. They made a detailed representation dated 28.02.2018 to the respondents in this regard, however, till date 7- O.A. No. 660/2019 no action has been taken on the representation made by the applicants.
5. The respondents have filed the written statement contesting the case of the applicants. It has been submitted that the JNVs being residential schools no fixed working hours have been defined for the teaching and non teaching staff. The Catering Assistant is very important functionary in the Dining System of a JNV, but he is not having the sole responsibility to run the mess, but the dining system in a JNV is controlled with the shared responsibilities of Mess Committee, Principal, Vice Principal, Staff Nurse, Duty Teacher, Catering Assistant, Mess Helpers, other staff members and student representatives etc. The Catering Assistant is a non ministerial post. The working hours for the post cannot be fixed like the ministerial staff. The JNVs being the fully residential schools, a Catering Assistant is to work in scattered hours as per the recruitment of the job. Though, no continuous working hours have been fixed for a Catering Assistant, but he is not required to work for more than 7-8 hours a day in sphere of his duties. Necessary instructions have been issued to give a compulsory weekly off to the Mess staff, on rational basis. Also a Catering Assistant is to handle the work of Vidyalaya Mess only for nine months in a year as Vidyalaya Mess runs for nine months a year. The respondents have further submitted that in a similar issue, the C.A.T, Ernakulam Bench, Ernakulam disposed of the OA NO. 389/2009 vide order dated 05.08.2010,with the direction to call meeting of the Governing Body of the Jawahar Navodaya Samiti, deliberate and reconsider the following 8- O.A. No. 660/2019 issues, as early as possible at any rates within three months from the date of receipt of this order:-
(i) To grant higher pay scale w.e.f. 01.01.2006
(ii) To grant special allowance @ 10%
(iii) To evolve a scheme for promotion as in the case of Drivers/Teachers, etc. referred to above.
(iv) To fix the working hours.
The said matter was placed before Executive Committee of NVS in its 14th meeting held on 01.07.2011. The recommendation of the Executive Committee was examined by the Ministry of HRD in consultation with the Department of Expenditure, Ministry of Finance, but not acceded to, vide letter dated 26.10.2012 (Annexure R-2). Further, the same issue regarding the higher pay scale of the Catering Assistant was again agitated by the Catering Assistants before the C.A.T., Ernakulam Bench, Ernakulam in O.A. No.549/2013, which was disposed of vide order dated 07.12.2015 directing the respondents to reconsider the grant of higher pay to the Catering Assistants. In pursuance thereof, the issue regarding higher pay scale to the Catering Assistants was reconsidered by Ministry of HRD but again not acceded to vide letter dated 12.12.2018 (Annexure R-3). It has been observed by the Department of Expenditure, Ministry of Finance that the qualification in case of Staff Nurse is Senior Secondary, whereas in the case of Catering Assistant it is Secondary school. Likewise, in case of Librarian, the qualification prescribed is Degree in Library Science, which is certainly higher than in the case of Catering Assistant. Therefore, drawing parallel from the post of Staff Nurse and Librarian will not be appropriate. The 6 th Central 9- O.A. No. 660/2019 Pay Commission in para 3.8.15 of its report had specifically made recommendation for higher pay scale in case of Nurses. The Commission had while observing that it will affect some of the existing relativities in the Nursing Cadres viz-a-viz other para medical staff, mentioned that it was a conscious decision of the Commission for giving a better deal to the Nurses in recognition of the duties performed by them. Thus, it is clear that the Commission made a specific recommendation for higher pay scale in case of Nurses in view of the nature of functions, which the Commission did not find applicable in other cases where the relativities of the pay scale would be disturbed. Accordingly, the Department of Expenditure is of the view that recommending a higher pay scale in the case of the Catering Staff of NVS by drawing a parallel from the case of Nurses goes against the basic premise of the recommendations of the 6th CPC, which was an Expert Body headed by a retired Justice of the Hon‟ble Supreme Court. It has been thus, prayed that the issue relating to the higher pay scale to the Catering Assistants has already been considered twice by Ministry of Finance. Agitating again and again the same issue (i.e. higher pay scale to the Catering Assistant) is nothing but an extraneous effort of the applicant which is not just and proper under eye of law.
6. I have gone through the pleadings and considered the arguments advanced by learned counsel for both the sides.
7. From the facts mentioned in the pleadings of the case, it is crystal clear that this is not the first time that the issue of granting 10% additional allowance to the category of the applicants, who are Catering Assistants working in the JNVs, has come up for consideration before the Tribunal. The issue has already been considered not only once but 10- O.A. No. 660/2019 twice by the Ernakulam Bench, wherein the direction was issued to the respondents to call meeting of the Governing body of the Jawahar Navodaya Samiti to consider the issue of granting 10% additional allowance to the applicants and pass a resolution in view of the observations made in the order that they are entitled to 10% extra allowance per month as they are required to be available in the Vidyalaya and work for more than 18 hours a day, on all days. A direction dated 04.08.2011 was also issued by the Cuttack Bench of the Tribunal to the respondents to take an early decision on the minutes dated 18.02.2011 of the 47th meeting of the Finance Committee of the NVS. As averred in the detailed written statement filed by the respondents, in pursuance of the directions given by the Ernakulam Bench of the Tribunal, the matter has been duly considered by the Executive Committee of NVS on 01.07.2011 and the recommendations were made to the Ministry of HRD, which further considered the matter in consultation with the Ministry of Expenditure and Ministry of Finance and finally did not accede to grant special allowance to the Catering Assistants. After a similar direction was passed by the Ernakulam Bench of the Tribunal in 549/2013 on 07.12.2015, the matter was again re- considered by the Ministry of HRD, but rejected vide letter dated 12.12.2018 (Annexure R-3). The detailed reasoning has been given in the letter aforementioned to reject the plea of the applicants to treat them at par with the Nurses, teaching staff and Library staff of the JNVs, for the purpose of grant of additional allowance @10%, and it has been observed therein as under:-
"3. It has been observed by the Department of Expenditure that the qualifications in case of Staff Nurse is Senior Secondary, whereas in the case 11- O.A. No. 660/2019 of Catering Assistant it is Secondary School. Likewise, in case of Librarian, the qualification prescribed is Degree in Library Science, which is certainly higher than in the case of Catering Assistant. Therefore, drawing parallel from the post of Staff Nurse and Librarian will not be appropriate.
4. The 6th Central Pay Commission in para 3.8.15 of its report had specifically made recommendation for higher pay scale in case of Nurses. The Commission had while observing that it will affect some of the existing relativities in the Nursing Cadres viz-a-viz other para medical staff, mentioned that it was a conscious decision of the Commission for giving a better deal to the Nurses in recognition of the duties performed by them. Thus, it is clear that the Commission made a specific recommendation for higher pay scale in case of Nurses in view of the nature of functions, which the Commission did not find applicable in other cases where the relativities of the pay scale would be disturbed.
5. Accordingly, the Department of Expenditure is of the view that recommending a higher pay scale in the case of the Catering Staff of NVS by drawing a parallel from the case of Nurses goes against the basic premise of the recommendations of the 6th CPC, which was an Expert Body headed by a retired Justice of the Hon'ble Supreme Court. ".
8. This Tribunal is of the view that the aforementioned reasoning is binding and conclusive as regards entitlement of the applicants to additional allowance at par with the teaching and nursing staff of the JNVs. Such matters of claiming allowance at par with other category of the employees, are best left to the expert bodies. The Ernakulam Bench of the Tribunal, therefore, directed the respondents to take a decision on the issue which has already been taken and announced by the respondents vide order dated 12.12.2018. Issuance of similar direction by the Tribunals and sending the same recommendations by the departments to the Ministry would not change the conscious decision 12- O.A. No. 660/2019 taken by the Ministry of HRD after consulting with the concerned Ministry of Finance and Department of Expenditure vide a detailed reasoned order dated 12.12.2018.
9. Moreover, the applicants have claimed parity with the Teaching, Nursing and Library staff of the JNV to claim special allowance. The nature of duties and the service conditions of the categories to which parity is being claimed, are totally different from that of the applicants, who are Catering Assistant. The qualifications required for the post of Catering Assistant is of Secondary, whereas in the case of Nursing Staff, it is Senior Secondary and for Librarian it is degree in Library Science. The duties of Staff Nurse come under the emergency and exigency duties and they perform their duty in the day time as well as in night also whenever there is need, which is not a situation in the case of applicants. The factor has been considered by the Principal Bench in order dated 23.01.2019 while observing as under:-
"The duties of Staff Nurse in JNVs are more essential. She performs more hours of duty in a day and remains alert and vigilant round the clock. She looks after the health and wellness of about 500 students in the JNV campus. She performs her duties in the day time as well in night also. The duties of Staff Nurse come under the emergency and exigency duties. In JNVs, the Staff Nurse performs the duties more than the librarian who are availing the facility of 10% SPA. The Staff Nurse is bound to stay in the Vidyalaya campus round the clock. In comparison to the duties of Staff Nurses in the hospitals, the Staff Nurse in JNVs performs the duties without nursing allowance, whereas the nurse in hospitals and other institutions are getting nursing allowance with 08 hours duty in day."
On the other hand, the Catering Assistants have scattered working hours between 5.30 a.m. to 10.30.pm, as per the requirement of the 13- O.A. No. 660/2019 job. It is also the contention of the respondents that no continuous working hours have been fixed for a Catering Assistant, but he is not required to work for more than 7-8 hours a day in sphere of his duties. It was for these reasons that the claim of the applicants on the basis of parity with the Nursing Staff, though recommended by the JNV Executive Committee, was not accepted by the Ministry of HRD after noticing the observations of Department of Expenditure, vide order dated 12.12.2018 (Annexure R-3). Accordingly, the plea claiming parity with the Nursing Staff is hereby rejected.
10. In view of the above, the Original Application is dismissed being devoid of merit. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟