Central Administrative Tribunal - Delhi
Shri H.K.Garg vs Union Of India & Ors Through on 17 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1751/2007 New Delhi this the 17th day of March, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Shri H.K.Garg, 6/20, Gali No.4, Vishwas Nagar, Shahdara, Delhi-110032 Applicant (By Advocate Shri D.S. Mahendru proxy for Ms. Gauri Oak ) VERSUS 1. Union of India & Ors through Secretary, M/o Urban Affairs and Employment, Nirman Bhawan, New Delhi. 2. The Director General of Works, C.P.W.D., Nirman Bhawan, New Delhi. Respondents (By Advocate Shri S.M. Arif along with Mr. A.K. Singh ) O R D E R ( Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
There is certain amount of delay in filing this application, but the applicant submits that in view of the nature of the claim, which ultimately, if allowed, would elevate its status as a continuing claim strict yardstick is not to be employed. Further, similar benefits have been made available to his colleagues, of course, after intervention of the Tribunal, these could not have been denied to the applicant for technical reason. It was further submitted by counsel that in fact the department has a duty to ensure that after declaration of eligibility, conferment of benefits to persons similarly situated and a benevolent approach should have been shown. Admissible benefits to persons who are similarly situated should have been voluntarily granted and to this extend, and if the issues are examined in this perspective there is arbitrariness in the approach of the respondents. We may examine the relevant facts of the case which are narrated herein below.
2. Applicant had retired as Assistant Engineer (Civil) from the CPWD on 30.9.1997. In the light of the recommendations of 5th Pay Commission, Government had provided two sets of scales to the Assistant Engineers (C & E). Scales of Rs. 6500-10500 was a normal scale, and simultaneously 50 % of the AEs on the rolls were to get higher scale of Rs. 7500-12000/-. These were payable with effect from 1.1.1996. The order as above providing for this situation dated 13.5.1998 was not, however, implemented. One Assistant Engineer Shri F.C. Jain had filed OA No. 818/2000 pointing out that admissible grade was being withheld without any reason.
3. The OA had been allowed by order, dated 27.9.2000. Writ Petition ( C ) 4664/2001 challenging the order had been dismissed by the High Court and SLP 289/2003 against the judgment of the High Court also had been dismissed in September, 2003. The benefits thereafter had been extended to Mr Jain. The applicant, according to him, was making representation for the benefit as he was identically situated like Mr. Jain but was no favoured with reply. As a matter of fact, claims similar to one made by Jain, had been submitted, by certain other officers as well, and they were also finally adjudicated and in their favour. One of the orders as above as Annexure A-8 passed in OA 2009/2004. The High Court dismissed the Writ Petition filed by the Department. Mr. V.K.Sharma, applicant therein had been given the benefits of the higher payscales. Therefore, there was no justification for taking a different stand when the petitioners claim was presented. The disparity could not have been normally overlooked.
4. Respondents refers to the aspect of delay and had pleaded that the claim should not have been entertained, especially because the order dated 13.5.1998, had been found as unworkable and had been later on withdrawn on 21.7.2003. If the contentions as urged by the applicant are accepted, it may lead to difficult position viz., enforcing an order which was no more in existence. Respondents further contended that there is no claim for the applicant that any of his junior had been sanctioned higher payscales. It has further been pointed out that no sustenance could have been drawn from V.K.Sharmas order, since the court had taken notice of a peculiar circumstance, namely that F.C. Jain, was his junior and it would have anomalous position for Mr. Jain to get higher payscales while the senior remained to continue in a lower payscales. Whereas such a contingency was not there as far as the present claimant was concerned.
5. However, we find that Mr Jains case had been decided with reference to O.M. dated 13.5.1998 with regard to his eligibility. This position cannot be ignored. We have also noted that the judgment of the Tribunal in V.K.Sharmas case on 14.3.2005 too was after the order had been withdrawn by the department on 21.7.2003. When admittedly the applicant was in service on 13.5.1998 and had retired in 2001 alone, and during the time the order was in force, we are of the opinion that subjecting him to discrimination by negativing his claim would be violative of the right of equality. The only question relevant is as to whether by virtue of his seniority status, the applicant was entitled higher payscale prescribed for the 50 % employees of the cadre. The claim as put in by the applicant in this respect has not been rebutted, and is presumed to have been not disputed. If that be so the claims are admissible on the basis of the earlier judgments.
6. In view of the discsussion as made above, we hold that the applicant should be deemed as entitled to higher pay scale of Rs.7500-12000, from the date it had been extended to his colleagues. The delay cannot be at least in this case put up as an impediment. We direct that appropriate follow up orders are to be passed for re-fixing his pay. It should be ensured that he gets the resultant advantages, consequent to the above declaration.
7. OA is allowed. However, we make no order as to costs.
( N. D. Dayal ) ( M. Ramachandran ) Member (A) Vice Chairman (J) sk