Central Administrative Tribunal - Delhi
Jagdish Prasad vs Union Of India on 3 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2332/2011 ORDER RESERVED ON: 22.08.2012 ORDER PRONOUNCED ON: 03.09.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) 1. Jagdish Prasad, S/o Shri Khem Chand, R/o A-105, Maharani Enclave, Village Hastal, Uttam Nagar, Delhi-110059. 2. Rohtas Meena, S/o Shri Ram Chander Meena, R/o 22/304, DMS Colony, Hari Nagar, New Delhi. Applicants. (By Advocate Shri S.M. Garg) Versus 1. Union of India Through the Secretary, Ministry of Agriculture, (Department of Agriculture, Animal Husbandry & Dairying), Krishi Bhawan, New Delhi-110001. 2. The General Manager, Delhi Milk Scheme, Patel Nagar, New Delhi-110008. Respondents. (By Advocate Mrs. Avinash Kaur) O R D E R
Shri G. George Paracken:
The applicant in this Original Application is seeking the following reliefs:
call for the records of the case;
pass an order quashing and setting aside impugned orders dated 19.06.2010 passed by respondents in respect of applicant No. 1 and orders dated 18.04.2011 and 11.06.2011 passed in respect of Applicant No.2;
pass an order directing the respondents to grant the scale of pay of Rs.4000-6000 to the applicants w.e.f. 09.08.1999 in the grade of Skilled Operatives, the date from which the persons in the feeder grades were granted the said scale of pay, and place them in the pay scale of Rs.4500-7000 on grant of first ACP w.e.f. the due date on completion of 12/11 years of service in the grade of Skilled Operatives, with all the consequential benefits including arrears of pay and corresponding pay fixation.
2. The brief background of this case is that Applicant No. 1 was initially appointed as Skilled Operative in the pre-revised pay scale of Rs.950-1500 with effect from 29.07.1992, vide order dated 05.11.1992. Similarly, Applicant No. 2 was appointed in the same post in its revised scale of 950-1500 i.e. Rs.3050-4590 with effect from 19.06.1999. According to them, the 5th Central Pay Commission has given the pay scale of Rs.4000-6000 which was the replacement scale of Rs.950-1400/1500 to all Skilled Operatives/Sukhani Supervisors/Compositors Gr.1/Senior Machine Assistants,etc. At the same time, the Semi-skilled Operatives in the pay scale of Rs.775-1150, 800-1150 or 825-1200 were given the replacement scale of pay of Rs.3050-4590. Again, according to them, instead of granting them the scale of pay of Rs.4000-6000 recommended by the 5th Central Pay Commission, the respondent Delhi Milk Scheme (`DMS for short) has placed them in the scale of pay of Rs.3050-4590 applicable to semi-skilled workers. However, they have given the pay scale of Rs.4000-6000 to all the Semi-skilled Operatives, Dairy Mates and Semi Skilled Fitters as the first financial upgradation on the basis of the Assured Career Progression Scheme (`ACP Scheme for short), thus creating an anomalous situation.
3. In the above situation, 14 Skilled Operatives including the applicants approached this Tribunal earlier vide OA 2721/2001 seeking parity of pay scales with the Skilled Operatives of other departments of Government of India or at least at par with the persons who were in the lower posts of Semi-skilled Operatives, Dairy Mates and Semi-skilled Fitters who have been placed in the scale of Rs.4000-6000 by giving them the benefits under ACP Scheme. This Tribunal, vide its order dated 24.10.2002 allowed the OA and its operative part is as under:
7. .Following the said Scheme, the respondents granted the benefit of pay scale to the Dairy Mates and Semi Skilled Fitters and they were directly placed in the pay scale of Rs.4000-6000. This fact has not been denied by the respondents in their counter affidavit. In other words, persons, who were earlier in the lower scales than the applicants, and obviously junior to them had been placed in the higher scale on the basis of Assured Career Progression Scheme. This anomaly had resulted because the representation of the applicants had been rejected while on the basis of the Assured Career Progression Scheme referred to above the Semi-Skilled Operatives of Delhi Milk Scheme had been placed in the higher scale of Rs.4000-6000. We have no hesitation in concluding that this amounts to discrimination and unequal treatment to the applicants. This is for the reason that the persons who were Semi-Skilled Fitters and were one grade lower than the applicants, on basis of the said scheme had been placed in the higher scale of pay.
8. As a result of the same, it is necessary to protect the rights of the applicants. They must be given the same scale of pay with effect from the date persons junior to them or those who were in the feeder posts have been given the said scale.
9. For those reasons, we allow the present application and direct that the applicants should be granted the scale of Rs.4000-6000 with effect from the date their juniors or persons in the feeder cadre have been granted the aforesaid scale of Rs.4000-6000.
4. As the aforesaid OA was not implemented by the respondents, the applicants filed CP 378/2003 and the same was disposed of on 19.02.2004. The relevant part of the said order reads as under:
3. In our considered view, the directions of the Tribunal contained in order dated 24.10.2002 do not require linkage of the benefit of grant of higher scale of Rs.4000-6000 to the applicants with the stipulations of the ACP Scheme. In this view of the matter, respondents have ignored applicants S/Shri Jagdish Prasad and Rohtas Meena by denying them the grant of higher scale of Rs.4000-6000. We are (not) taking a serious view of this and direct the respondents to accord the higher pay scale of Rs.4000-6000 to these applicants as well with effect from the date their juniors or persons in the feeder cadre were granted the aforesaid scale of Rs.4000-6000. This direction shall be complied by the respondents within a period of two months from the date of receipt of a copy of this order. Thus, Contempt Petition is disposed of. Notices are discharged.
5. Thereafter, in compliance of the aforesaid order of this Tribunal, all the applicants therein as well as other Skilled Operatives were granted the pay scale of Rs.4000-6000 w.e.f. 09.08.1999 vide letter dated 15.05.2004 on personal basis and subject to the following two conditions:
(i) this will be granted and adjusted against the Ist A.C.P. due w.e.f. 19.6.2011 and 29.7.2004 respectively.
(ii) They will be considered for grant of 2nd A.C.P. benefits w.e.f. 19-6-2023 and 29.7.2016 if due.
6. Later, vide Annexure P-5 letter dated 05.11.2004, Applicant No. 1, who was working as Skilled Operative, was granted the ACP in the scale of Rs.4500-150-8000 w.e.f. 29.07.2004. However, by the subsequent Annexure P-6 corrigendum dated 13.10.2005, the respondents recalled the earlier order granting the first ACP to the first applicant in the scale of Rs.4500-8000 on the ground that the scale of pay of Rs.4000-6000 was granted to him only on personal basis w.e.f. 29.07.2004. According to the applicant, Shri Jagdish Prasad, he was actually entitled for the grant of first ACP in the scale of Rs.4500-8000 w.e.f. 09.08.1999 by treating him as Skilled Operative in the basic scale of pay of Rs.4000-6000 in compliance of the order of this Tribunal dated 24.10.2002 in OA 2721/2001 (supra) and second ACP in the scale of Rs.5000-8000. Both those ACPs were also given to him. He has also stated that this Tribunal has already held in its order dated 19.02.2004 (supra) that the grant of pay scale of Rs.4000-6000 at par with his juniors in the feeder cadre was not linked under the ACP Scheme and, therefore, the corrigendum dated 13.10.2005 is contrary to law. He has also pointed out that in the case of Shri Ishwar Singh, on his promotion as Skilled Operative, the respondents themselves have granted the pay scale of Rs.4000-6000 from the date of his promotion and not as a benefit under the ACP Scheme. Similarly, Shri Rohtash Meena, Skilled Operative, the applicant No. 2 herein, was also granted the pay scale of Rs.4000-6000 w.e.f. 09.08.1999 with arrears. Thus, the Skilled Operatives of the respondentDMS were treated differently for the benefit of the order dated 24.10.2002 in OA 2721/2001 (supra). As a result, according to the applicants, their 12 years of service have gone waste without any justification. They have, therefore, requested the respondents to implement only the Annexure P-5 order dated 05.11.2004 in their cases. The first applicant, another similarly placed person, Shri Niranjan Singh Kardan, has, therefore, made the Annexure P-7 representation dated 08.08.2006 to the respondents to review the aforesaid corrigendum dated 13.10.2005.
7. As the aforesaid request of the applicants was not considered, the first applicant has again approached this Tribunal by filing OA 2534/2009 and the same was disposed of, vide Annexure A-10 order dated 08.09.2009, and its operative part reads as under:
4. We have heard the counsel for the applicants.
5. Since it is stated by the counsel for the applicants that representation has not even been decided by the respondents, therefore, we dispose of this OA, at the admission stage itself, without going into the merits of the case, directing the Respondent No. 2 to consider the grievance of the applicants and to decide their representation by passing a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order under intimation to the applicants.
8. As the aforesaid direction was not complied with, the applicant filed CP 439/2010 before this Tribunal. With reply to the said contempt petition, the respondents annexed a copy of the order dated 19.06.2010 which has been challenged in this OA. By the said order, the respondents have rejected his claim on the ground that the official joined service in DMS on 29.07.1992 and as such he is eligible for upgradation under the ACP Scheme only on completion of 12 years regular service i.e. w.e.f. 29.07.2004 whereas he has already been given the benefit of upgradation of the pay scale of Rs.4000-6000 on personal basis vide Office Order No. 22-4/01-Estt. II dated 15th May 2004 with the stipulations that the same will be adjusted against the Ist ACP due w.e.f. 29.07.2004 (already adjusted vide office order No. A11157-11/04-Estt. II dated 13.10.2005) and he will be considered for grant of 2nd ACP benefits w.e.f. 29.07.2016 if due. In the case of the applicant No. 2, though he was granted the pay scale of Rs.4000-6000 w.e.f. 09.08.1999 in compliance of the order dated 24.10.2002 in OA 2721/2001 (supra) and order dated 09.02.2004 in CP 378/2003 (supra) but he was also denied on the same ground, vide Annexure A-1 (colly) orders dated 18.04.2011 and 10.06.2011.
9. The respondents in their reply have submitted that from the start of DMS, the following categories of the Class IV staff have been working in the Central Dairy, Transport Workshop, Dairy Engineering Section, etc.:
S.No. Name of the post Pay Scale
1. Mate Rs.70-1-80-EB-2-85 (Revised to Rs.2650-4000)
2. Semi Skilled Fitter Rs.75-1-85-EB-2-95 (Revised to Rs.2650-4000
3. Semi Skilled Operative Rs.75-1-85-EB-2-95 (Revised to Rs.2750-4400)
4. Skilled Operative Rs.110-155 (Revised to Rs.3050-4590) They have further stated that the Mates working in the Central Dairy are promoted to the post of Semi Skilled Operative and thereafter to the post of Skilled Operative. The Mates working in the Transport Workshop and Dairy Engineering are promoted to the post of Semi Skilled Fitter and thereafter to the post of Fitter. The Mates posted in Distribution Wing have no promotional avenue. However, only those Mates who were 5th Class and having Driving Licence were considered for appointment to the post of Driver (Miscellaneous Duty). On the recommendation of the 5th Central Pay Commission, their pay scale had been revised w.e.f. 01.01.1996 as under:
Name of post Pre-revised Pay Scale Revised Pay Scale Mate Rs.800-1150 Rs.2650-4000 S.S.F Rs.800-1150 Rs.2650-4000 S.S.O Rs.825-1200 Rs.2750-4400 S.O Rs.950-1500 Rs.3050-4590 Driver (Misc. Duty) Rs.950-1500 Rs.3050-4590 Mechanic Rs.1200-2040 Rs.4000-6000 They have also stated that the promotional avenues of Mates stream-wise are as under:
Central Dairy Transport Dairy Distribution Workshop Engineering Section Mate (Rs.2650-4000) Mate Designated as Semi Skilled Fitter (Rs.2650-4000) Mate Designated as Semi Skilled Fitter (Rs.2650-4000) Mate (Rs.2650-4000) Ist Promotion Semi Skilled Operative (Rs.2750-4400) Fitter (Rs.3050-4590) Fitter (Rs.3050-4590)
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2nd Promotion Skilled Operative (Rs.3050-4590) Mechanic (Rs.4000-6000) Mechanic (Rs.4000-6000) The respondents have further submitted that the Ministry of Personnel, Public Grievances and Pensions (DOPT) had introduced Assured Career Progression Scheme for Central Government Civilian Employees vide No. 35034/1/97-Estt. (D) Vol. IV dated 09.08.1999 and the subsequent clarification dated 10.02.2000. According to the said Scheme, one/two financial upgradations are to be given to Group `B, `C and `D employees who had not got any promotion on their completion of 12 years and 24 years of regular service and in the hierarchical pay scale. If an employee had got one promotion, he would be entitled for 2nd Financial upgradation only. Where an employee had already got two promotions, he would not be entitled for any financial upgradation. They also submitted that prior to 01.01.1996, the pay scale of Mates was increased from Rs.750-940 to Rs.800-1150 i.e. equal to the pay scale of SSF w.e.f. 01.01.1990. Therefore, the promotion of the Mates to the post of SSF was ignored. As such the SSF were granted Ist ACP in the promotional pay scale of Rs.3050-4590 attached to the hierarchical/promotional post of Fitter and 2nd financial upgradation in the pay scale of Rs.4000-6000 attached to the next promotional post of Mechanic. The Mates are also allowed Ist ACP in the pay scale of Rs.3050-4590 and 2nd ACP in the pay scale of Rs.4000-6000, after obtaining the concurrence from DOPT vide their UO dated 28.3.2000 which was conveyed by the Department of AHD&F vide their letter dated 20.04.2000. Thereafter, the SSOs who were working in the pay scale of Rs.2750-4400 after getting one promotion from the post of Mates have also been granted 2nd ACP in the pay scale of Rs.4000-6000 i.e. the same pay scale as granted to Mates subject to the following conditions:
(i) Their written opinion for availing the ACP Scheme and not the promotional scheme;
(ii) if they avail the ACP Scheme, they will be treated at par with the Mates and there would be inter change ability in their duties with the Mates. Those who were appointed directly as SOs were granted Ist ACP in the standard/common pay scale of Rs.3200-4000 and 2nd ACP in standard/common pay scale of Rs.4000-6000 as there is no further promotional avenues to SOs. Those SOs who were initially appointed as Mates in the revised pay scale of Rs.2650-4000 got promoted to the post of SSO (in the revised pay sale of Rs.2750-4400) and then got promoted to the post of SO in the revised pay scale of Rs.3050-4590. The case of SOs was also sent to the Govt. but the Govt. did not agree to give the 2nd ACP in the pay scale of Rs.4000-6000 as they had already been given two promotions. Aggrieved by the aforesaid decision of the Government, Shri Sujan Singh and 14 other Skilled Operatives (including the two applicants herein) have filed OA No. 2721/2001 (supra), MA No. 2236/2001 and Contempt Petition No. 378/2003 therein seeking parity of pay with the Skilled Operatives of other Departments of Govt. of India and or at least at par with persons who were in the lower posts of Semi Skilled Operatives, Dairy Mates and Semi Skilled Fitters and placed in the pay scale of Rs.4000-6000 by giving the benefits of Assured Career Progression Scheme. This Tribunal allowed the aforesaid OA vide is order dated 24.10.2002 and the same was implemented.
10. Again, according to the respondents, Applicant No. 1 Shri Jagdish Prasad was appointed to the post of Skilled Operative as Direct Recruit w.e.f. 29.07.1992 in the pre-revised pay scale of Rs.950-1500 (revised to Rs.3050-4590) and further revised to Pay Band 1/Grade Pay Rs.1900. This Tribunal vide its orders dated 24.10.2002 and 09.02.2004 in the aforesaid OA and CP respectively gave directions that he should be granted the pay scale of Rs.4000-6000 with effect from the date of their juniors or persons in the feeder cadre have been granted the aforesaid scale of Rs.4000-6000. Accordingly, Shri Jagdish Prasad was given the pay scale of Rs.4000-6000 on personal basis w.e.f. 09.08.1999 i.e. the date from which the Mates and Semi Skilled Operatives were granted 2nd ACP in the pre-revised pay scale of Rs.4000-6000, vide Office Order No. 22-4/01-Estt.II, dated 15.05.2004, subject to the condition that the same will be adjusted against the Ist ACP due w.e.f. 29.7.2004. As regards Applicant No. 2 Shri Rohtas Meena, he was appointed to the post of Skilled Operative as Direct Recruit w.e.f. 19.06.1999 in the pre-revised pay scale of Rs.3050-4590. In terms of the aforesaid orders of this Tribunal in OAs 2721/2001 and CP 378/2003, he was granted the pay scale of Rs.4000-6000 on personal basis w.e.f. 09.08.1999 the date from which the Mates and Semi Skilled Operatives were granted the 2nd ACP in the pre-revised pay scale of Rs.4000-6000, vide Office Order No. 22-4/01-Estt.II dated 15.05.2004 subject to the condition that the same will be adjusted against the first ACP becomes due on 19.06.2011.
11. According to them, in the case of the applicant No. 1, since the higher pay scale of Rs.4000-6000 has already been granted w.e.f. 09.08.1999 as per the above orders of this Tribunal, the Ist ACP which became due on 29.07.2004, was not granted as the official was already drawing the said pay scale on personal basis w.e.f. 09.08.1999. Therefore, no benefit of pay fixation was also given to him. The applicant was accordingly informed vide order dated 19.06.2010. The applicant No. 2 completed 12 years of regular service on 18.06.2011 and he is not covered under the ACP Scheme but he is covered under MACP Scheme which is operative from 01.09.2008. As he is already drawing his pay in PB-1/GP Rs.2400 on personal basis, he was also not considered for grant of first MACP. Further, according to them, the matter was referred to the Ministry of Agriculture, Department of Animal Husbandry, Dairying & Fisheries for clarification and according to their clarification also, the applicants were not entitled for first MACP and he was informed accordingly, vide order dated 18.04.2011. Thereafter, the applicant No. 2 again represented vide his application dated 26.04.2011 and it was followed by the reminder dated 31.05.2011 and he was again informed vide Memorandum dated 10.06.2011 that he is not entitled for Ist MACP.
12. We have heard the learned counsel for the parties. We have also carefully perused the earlier order of this Tribunal in the case of the applicants and other documents available on record. This Tribunal, vide its earlier order in OA 2721/2001 (supra) held that there was anomaly in granting the pay scales to the Semi Skilled Operatives and the Skilled Operatives. It has further held that while the Semi Skilled Operatives in the basic scale of Rs.2750-4400 were given the first ACP scale of Rs.4000-6000, in the case of the applicants who belong to the category of Skilled Operatives in the scale of pay of Rs.3050-4590 were also given the scale of Rs.4000-6000 as the Ist ACP. This Tribunal has, therefore, considered it as an anomalous situation, vide its order dated 24.10.2002 (supra) and observed that the Semi Skilled Fitters were directly placed in the scale of Rs.4000-6000. In other words, persons who were earlier in the lower scales than the scale granted to applicants and junior to them had been placed in the higher scale on the basis of ACP Scheme. Accordingly, this Tribunal, in order to protect their rights, directed the respondents to place the applicants in the scale of Rs.4000-6000 with effect from the date their juniors or persons in the feeder cadre have been granted the aforesaid scale of Rs.4000-6000. Pursuant to the aforesaid direction, the respondents vide their Office Order dated 15.05.2004, granted the pay scale of Rs.4000-6000 to the applicants but subject to the following riders:
(i) this will be granted and adjusted against the Ist A.C.P. due w.e.f. 19.6.2011 and 29.7.2004 respectively.
(ii) They will be considered for grant of 2nd A.C.P. benefits w.e.f. 19-6-2023 and 29.7.2016 if due. Thereafter, the applicant No. 1, Shri Jagdish Prasad, has been granted the Ist ACP in the scale of Rs.4500-8000 w.e.f. 29.07.2004, vide Office Order dated 05.11.2004. However, by the subsequent Annexure P-6 corrigendum dated 13.10.2005, the respondent brought back the applicant No. 1 to his earlier scale of Rs.4000-6000. As the Annexure P-7 representation against the aforesaid corrigendum was not considered by the respondents, the Ist applicant and another aggrieved person Shri Niranjan Singh Kardam have challenged it before this Tribunal vide OA 2534/2009 (supra). When the respondents did not implement the directions of this Tribunal in the said OA, they have filed CP 439/2010 therein. Along with the reply to the said CP, the respondents filed the impugned Annexure P-1 order dated 19.06.2010, which has been challenged in this OA. By the said order, the respondents informed the applicant No. 1 as under:
AND WHEREAS the Honble CAT vide its order dated 8.9.09 directed the respondents to consider the grievance of the applicant and to decide his representation by passing a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order under intimation to the applicant.
AND WHEREAS on scrutiny of the service record of the official, it is found that the official joined service in DMS on 29.7.1992 as such he is eligible for upgradation under the ACP Scheme only on completion of 12 years regular service i.e. w.e.f. 29.7.2004, however, he was given the benefit of upgradatino of the pay scale of Rs.4000-6000 on personal basis as per Honble CAT judgment dated 24.10.2002 and 9.2.2004 with clear stipulation in Office Order No. 22-4/01-Estt.II dated 15th May 2004 that this will be granted and adjusted against the Ist ACP due w.e.f. 29.7.2004 (already adjusted vide office order No. A-11157-11/04-Estt.II dated 13.10.05) and he will be considered for grant of 2nd ACP benefits w.e.f. 29.7.2016 if due.
AND WHEREAS the official is/will be eligible for grant of Ist ACP/2nd ACP w.e.f. 29.7.2004/29.7.2016 in pre-revised pay scale of Rs.3200-4900 and Rs.4000-6000 respectively and the same is adjustable against the upgradation already granted to him on personal basis in the pre-revised pay scale of Rs.4000-6000 w.e.f. 9.8.99. Similarly, the respondent-DMS, vide its impugned Annexure P-1 (colly) orders dated 18.04.2011 and 10.04.2011 held that the Applicant No. 2 was also not entitled for the Ist ACP scale of Rs.4000-6000.
13. In our considered view, the aforesaid impugned orders are nothing but the re-statement of the factual position contained in the Annexure P-4 Office Order of the respondents dated 15.05.2004. It is based on the said order that the respondents have issued the Annexure P-6 Office Corrigendum dated 13.10.2005 withdrawing the benefits under the ACP Scheme given to the applicant No. 1 vide their Annexure A-5 Office Order dated 05.11.2004. Therefore, the basic order in this case is the Annexure P-4 Office Order dated 15.05.2004 which has never been challenged. In the above facts and circumstances of the case, we do not find any reason to interfere with impugned order in this OA and accordingly the same is dismissed. No costs.
(SUDHIR KUMAR) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD