Delhi High Court
S P Ashta vs Delhi Agricultrual Marketing Board on 20 May, 2015
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : May 20, 2015
+ LPA 305/2015
S P ASHTA ..... Appellant
Represented by: Mr.M.L.Bhargava, Advocate
versus
DELHI AGRICULTURAL MARKETING BOARD ..... Respondent
Represented by: Ms.Avnish Ahlawat, Advocate
with Ms.Latika Chaudhary, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. Appellant's challenge to the order dated October 17, 2011 before the learned Single Judge has been unsuccessful. On March 23, 2015, WP(C) 7102/2001 filed by the appellant has been dismissed.
2. Working as a Superintending Engineer with the Delhi Agricultural Marketing Board the claim of the appellant was that his salary should be fixed with effect from November 08, 1997 in the pay scale of `14300-400- 18300 and not `12000-375-16500.
3. The undisputed facts are that the petitioner joined Delhi Agricultural Marketing Board as an Assistant Engineer on July 01, 1989 and was promoted as an Executive Engineer. He earned further promotion as Superintending Engineer on November 07, 1997.
4. The dispute arises out of the recommendations of the 5 th Central Pay Commission and this would take us back to the 2nd Central Pay Commission.
5. The relevant facts have been noted in para 50.45 of the LPA No.305/2015 Page 1 of 6 recommendations of the 5th Central Pay Commission which reads as under:-
"50.45 We would however, like to make an exception only in the case of Superintending engineers. It is a fact that the Second CPC had already established a parity between Superintending Engineers and Conservators of Forests by granting them both the scale of `1300-1800. Thus parity was cemented further by the Third CPC which observed that "For the post of Conservators of Forests we recommend the scale which we have recommended for the Superintending Engineer Grade of the Central Class I Engineering Service viz `1800- 2000" for the Selection Grade of `2000-2250 should be introduced for the Conservator of Forests, on the same principles as recommended for the Selection Grade in the Central Class I Engineering Service. Between the third and Fourth CPCs, there was an upgradation of the first grade for CFS to `1800-2000. Subsequently, the fourth CPC merged the Scales of `1800-2000 and the Selection Grade of `2000-2250 and gave CFs the single functional scale of `4500-5700. The same treatment in spirit was unfortunately not accorded to the SES who were given a JAG of `3700-5000 and an NFSG of `4500-5700. Taking into account the significant role of engineering services in the nation building process and the fact that the promotion prospects in engineering cadres are rather bleak. We recommend that the NFSG of `4500-5700 should be converted into a single functional scale for Superintending Engineers and the scale of `3700-5000 should instead be the non-functional JAG for Ex.Engineers. However in order to avoid too fast a rate of promotion in certain cadres to this grade, it is further recommended that promotion to the scale of `4500-5700 would be permitted only on completion of 13 years of service in Group „A‟. Although the above recommendation is being made in the context of CPWD engineers, it is clarified that the dispensation will be available to all Engineering Cadres in the Government."
6. Facts noted in the paragraph in question by the 5 th Central Pay Commission are not in dispute.
7. It is thus apparent that parity between Superintending Engineers and LPA No.305/2015 Page 2 of 6 Conservator of Forests was accorded by the 2 nd Central Pay Commission when both posts were put in the pay scale of `1300-1800. The parity was cemented further by the 3rd Central Pay Commission which recommended the pay scale of `1800-2000 for Superintending Engineers in Central Class-I Engineering Service with further benefit of selection grade in sum of `2000- 2250 being introduced both for Conservator of Forests and Superintending Engineers. But the same spirit was not followed when the 4 th Central Pay Commission gave recommendations. The replacement scale of `1800-2000 was `3700-5000 which was the Junior Administrative Grade in which Superintending Engineers were placed. The replacement scale of `2000- 2250 was the non-functional selection grade of `4500-5700 in which Conservator of Forests were placed.
8. Since the Conservator of Forests was placed in the non-functional selection grade, to bring back the parity the 5th Central Pay Commission recommended that while granting the benefit of replacement scale of the Junior Administrative Grade to `12000-16500, there would be an automatic entitlement to be placed in the grade `14300-18300, if in Group 'A' post 13 years' service was rendered.
9. In the writ petition filed by the appellant this aspect has been accepted, if we read paragraph 7 of the writ petition.
10. In the counter affidavit filed the case of the respondent was that the post of an Executive Engineer under it is a Group ' A' post and not the post of Assistant Engineer and thus the appellant would be entitled to have 13 years Group 'A' service reckoned with effect from June 07, 1989 when he was promoted as an Executive Engineer. As per the respondent, they did the needful by upgrading appellant's pay to `14300-18300 when he rendered 13 years service in a Group 'A' post.
LPA No.305/2015 Page 3 of 611. In the rejoinder filed by the appellant he took the stand that under the Central Government Group 'A', service starts at the post of Assistant Executive Engineer, the appellant pointed out that under the Board there is no post of Assistant Executive Engineer.
12. If this be so, the appellant would have no case for the reason the requirement of law is to place a Superintending Engineer in the pay scale `12000-16500 and upon completing 13 years service in a Group 'A' post, the same to be enhanced to `14300-18300.
13. The appellant has another string in his bow. The appellant relies upon a circular issued by the Department of Telecommunications concerning placement of officers in the pay scales.
14. The office order draws a distinction between those who directly entered service viz-a-viz who earned promotions. The clarifications sought and given by the Ministry of Finance upon which the appellant relies read as under:-
Sl.No. Clarification sought by Clarification given by the the Deptt. MoF 1 Whether the upgraded The upgraded pay scale of pay scale of `14,300- `14,300-18300 is 400-18300 is applicable applicable to all the SEs, to Direct Recruitment whether DR or promotees Group „A‟ officers and who were holding the post promotee officers as well as on 1-1-1996 and had put in 13 years of Group „A‟ service on that date.
However, in case of promotees, the condition of 13 years on regular Group „A‟ service would be relevant, if they, also like DRs enter Group „A‟ through JTS. If they enter through STS directly, then LPA No.305/2015 Page 4 of 6 only 9 years of Group „A‟ service will be required.
2. Whether officiating As already clarified, only periods in the Group „A‟ regular service in Group post shall be taken into „A‟ post shall be taken into account for computing account for computing of 13 13 years of Group „A‟. years of Group „A‟ service.
3. The upgraded pay scale The upgraded scale of of `14,300-400-18300 is `14,300-18,300 shall not be admissible to the retired admissible to those Group Group „A‟ Officers. „A‟ officers who retired before 6-6-2000.
4. Admissibility of one As per the CCS (RP) Rules increment for every three 1997, the benefit of one increments (including increment in the revised stagnation increments) scale of pay for every three in the revised scale of increments in the applicable pay `14,300-18,300 to pre-revised scale of pay is those who were not in to be allowed in all the the selection grade of cases.
JAG, Group „A‟ but in the scale of pay `3,700- 5000.
15. A perusal of the clarification given makes it clear that upgradation of the pay scale to `14,300-18,300 is applicable to all Superintending Engineers whether appointed by direct recruitment or by promotion who were holding the post as on January 01, 1996 but subject to having put in 13 years Group 'A' service as on said date. The exception carved out for promotees is that if they entered Group 'A' service through JTS alone would condition of 13 years apply but if they entered through STS directly then only 9 years Group 'A' service requirement would be applicable. The respondent does not have the concept of recruitment through JTS and STS and thus the clarificatory circular upon which the appellant relies would not be applicable.
LPA No.305/2015 Page 5 of 616. We concur with the view taken by the learned Single Judge.
17. The appeal is dismissed. The impugned order dated March 23, 2015 is upheld.
18. No costs.
(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE MAY 20, 2015 skb LPA No.305/2015 Page 6 of 6