Central Administrative Tribunal - Delhi
Pawan Jindal vs M/O Defence on 22 May, 2023
1
Item No. 22 (C-4)
O.A. No. 1766/2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1766/2016
This the 22nd day of May, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
1. Pawan Jindal
S/o Shri B.K. Jindal
House No. C-356,
New Delhi.
Saraswati ?Vihar
2. Sunil Bhalla,
S/o Late Shri Roshan Lal Bhalla
House No.X-308, Sarojini Nagar,
New Delhi-110023.
3. Z. Tirkey
S/o Late S. Tirkey House No. 839/UG-4,
Aman Residnecy, Shalimar Garden Extension-I Sahibabad-
201005.
4. Upendra Kumar
S/oShri Una Shankar Mehta Flat No. 514, Pocket3-C, Sector 16-
B, Dwarka, New Delhi110078.
...Applicants
(By Advocate: Mr. SM Garg)
Versus
1. Union of India through
Secretary to the Government of India
Department of Defence Production
2
Item No. 22 (C-4)
O.A. No. 1766/2016
Ministry of Defence
South Block,
New Delhi-110011.
2. Directorate General, Quality Assurance
Department of Defence Production
Ministry of Defence
South Block, New Delhi-110011
...Respondents
(By Advocate: Mr. Subhash Gosai)
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Item No. 22 (C-4)
O.A. No. 1766/2016
O R D E R (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A):-
Aggrieved by denial of non functional grade of Rs.
5400/- on the analogy of similarly placed employees, the applicants have approached this Tribunal seeking the following relief(s):-
(a) "Call for the records of the case;
(b) pass an order quashing and setting aside impugned order dated 13.12.2013(Annexure-A) and 10.11.2014 (Annexure B);
(c) pass an order directing the respondents to grant the benefit of non-functional grade pay of Rs. 5400/- to the applicants with effect from the date(s) on which the applicants have completed 4 years regular service in the grade pay of Rs. 4800/- (PB-2) as per Resolution of Ministry of Finance dated 29.08.2008;
(d) pass an order directing the respondents to grant the benefit within a period of one month from the date of receipt of order of this Hon'ble Tribunal or within a reasonable time frame which this Hon'ble Tribunal deems appropriate;
(e) pass an order directing the respondents to grant all consequential benefits as admissible under the rules upon grant of non-functional grade pay of Rs. 5400/- to the applicants;
(f) pass an order directing the respondents to pay interest @ 12% per annum to the applicants on the arrears as there has been deliberate delay on the part of respondent in granting the entitled benefit to the applicants as soon as they became eligible for the said benefit;
(g) award cost to the applicants;
(h) pass such further or other orders which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."4
Item No. 22 (C-4) O.A. No. 1766/2016
2. Learned counsel for the applicants, at the outset, submits that the issue at stake in the present O.A. has been conclusively decided by a coordinate Bench of this Tribunal in O.A. No. 3768/2018 on 06.01.2022. He further informs that the case of the applicants is further settled by the judgment passed by the Hon'ble High Court of Delhi on 14.03.2023 in W.P. (C) No. 5518/2021. He quotes from the relevant part of the said judgment which reads as under :
"20. It is highly unacceptable that the benefit of grant of Non Functional Grade Pay of Rs.5,400 recommended under the Sixth Pay Commission, which has been followed in the Seventh Pay Commission, has been granted only to the cadre of Senior Private Secretaries in the Border Roads Organisation and Assistant Accounts Officers of the Defence Accounts Department upon completion of four years in the Grade Pay of Rs.4,800 and not to Assistant Engineers and Draughtsmen. It is not the case of respondents that the petitioners before this Court have not completed four years in the Grade Pay of Rs.4,800. Accordingly, in our considered opinion the petitioners, who have completed four years of service in Grade pay of Rs.4,800, either by promotion or by ACP/MACP, are entitled to get benefit of Non Functional Up gradation Scale of Rs.5,400/- as has been granted to the Senior Private Secretaries employed in Border Road Organization and Assistant Accounts Officers of the Defence Accounts Department. Consequently, respondents shall pass necessary orders to this effect within four weeks."
He argues that pursuant to this judgment read with the order of the Tribunal in OA No 3768/2018, there is no 5 Item No. 22 (C-4) O.A. No. 1766/2016 alternative except to allow the present OA and grant the relief as sought for in the OA.
3. Learned counsel goes on to draw attention to the relief sought in the present OA and the reliefs prayed for in OA No 3768/2018 and submits that there is a close similarity between the two OAs in terms of the reliefs sought.
4. He submits that in view of the unambiguous judgment rendered by this Tribunal in the aforequoted OA as also the judgment of the Hon'ble High Court referred to above, there is no cause to take a divergent view.
5. Learned counsel for the respondents opposing the pleadings of the applicants and the arguments put forth by the learned counsel for the applicants submits that the impugned order dated 13.12.2013 categorically mentions that the recommendations of the 6th Central Pay Commission for grant of Grade Pay of Rs. 5400/- was specific to certain services and departments. The applicants do not belong to either of them. He draws attention from 6 Item No. 22 (C-4) O.A. No. 1766/2016 para 2c of the order dated 10.11.2014 (Annexure A2) which reads as under:-
"2(c) VIth CPC has recommended Grade Pay of Rs 5400/- to officers of specific cadres i.e. Delhi and Andaman & Nicobar Islands Civil Service and Delhi and Andaman & Nicobar Islands Police Service, SO/PS of CSS/CSSS, Senior SO/AAOs of IA&AD Deptt, Group B officers of Ministry of Railways and Group 'B' officers of Departments of Posts, Revenue etc and the technical cadre of DGỌA İs not included under any of the categories."
6. He emphatically states that in view of this provision, the relief as claimed cannot be granted in favour of the applicants. He further submits that the judgment of the Hon'ble High Court of Delhi and order of the Tribunal being relied upon by the applicants would not be applicable in this matter because these judgments are specific to the applicants/petitioners before the Court/Tribunal. He further argues that determination of appropriate scale of pay and grade pay is, amongst other conditions, also dependent upon the duties and responsibilities assigned to various categories. In this case the applicants' duties are not the same as the other categories. He further mentions that the judgment of the Hon'ble High Court of Delhi was with respect to personnel of Border Roads Organisation; the 7 Item No. 22 (C-4) O.A. No. 1766/2016 applicants do not belong to this organization. Hence, they cannot seek extension of the benefit of the same. He goes on to argue that there has been no historical parity which could have been a ground for considering the claim of the applicants.
7. We have heard the learned counsel for the parties and also gone through the pleadings on record. We have given a careful reading to the order of this Tribunal in O.A. No. 3768/2018 as also the judgment of the Hon'ble High Court of Delhi in W.P.(C) No. 5518/2021. It would be worthwhile to quote the relevant extracts from the order of the Tribunal in the O.A. referred to above.
"11. The learned counsel for the applicants have demonstrated that the Coordinate Benches of the Tribunal at Madras in OA No.1524/2019 - All India Association of Central Excise Gazetted Executive Officers Association (Chennai Unit) v. Union of India & Ors. and Allahabad Bench in OA No.536/2020 - Suresh Chander Sharma v. Union of India held that the judgment of the Hon‟ble Madras High Court in M. Subramaniam (supra) is judgment in rem and passed orders to extend the benefits of the judgments to the applicants therein.
12. Further, the Jabalpur Bench of this Tribunal vide its judgment dated 13.09.2018 was pleased to allow OA No.24/2015 & other connected matters by placing reliance on the judgment passed by the Hon‟ble High Court of Madras in M. Subramaniam (supra) and the 8 Item No. 22 (C-4) O.A. No. 1766/2016 said judgment has also been implemented vide order dated 27.06.2019 (Annexure A-14). It is pertinent to mention here that the respondents vide their office order dated 06.12.2019 have extended the benefit of the judgment of the Hon‟ble High Court of Madras in M. Subramaniam (supra )to the applicants in OA No.358/2019 - Shiladitya Maitra & Ors. v. Union of India (Kolkata Bench) vide their office order dated 06.12.2019 (Annexure A15).
13. From the above it is clear that the impugned orders qua the applicants cannot sustain in the eyes of law. As such, we are satisfied that the applicants are similarly situated with M. Subramaniam (supra) and are required to be extended the benefit of the said judgment.
14. During the course of the argument, Shri Ahuja, learned counsel for the applicants brought to our notice that the Civil Appeal No.(s)8883 of 2011 filed before the Hon‟ble Supreme Court at the hands of the department, has been dismissed vide order dated 10.10.2017.
15. The respondents in their reply have taken the stand for not granting Grade Pay of Rs.5400/- to the applicants in PB-2 on non-functional basis after four years of regular service in the Grade Pay of Rs.4800/- in PB-2, which has undoubtedly been considered by the Hon‟ble High Court of Madras in M. Subramaniam (supra). Furthermore, the Civil Appeal No.(s)8883 of 2011 filed before the Hon‟ble Supreme Court by the respondent- Department has also been dismissed on 10.10.2017 and the said verdict of Hon‟ble High Court of Madras has become final. Once the decision of the Hon‟ble High Court of Madras in M. Subramaniam (supra) has attained finality, the respondents cannot deny the benefit of the same to the applicants before us, who are similarly placed. We, therefore, hold that the applicants herein also entitled for similar benefits, as has been extended to M. Subramaniam (supra).
16. Resultantly, for the foregoing reasons, this OA succeeds and is accordingly allowed. The respondents are 9 Item No. 22 (C-4) O.A. No. 1766/2016 directed to grant the Grade Pay of Rs.5400/- to the applicants on non-functional basis with effect from the date(s) they had completed four years of regular service in the Grade Pay of Rs.4800/- with all consequential benefits, within a period of 90 days from the date of receipt of a certified copy of this order.
17. We also notice that the respondents are ignoring the fact that apart from this Bench, other Benches of the Tribunal have repeatedly directed compliance of the said judgment of M. Subramaniam (supra) holding that the judgment is to be complied in rem and not to be treated as in personam. We, therefore, hold that the said judgment is not in personam and benefit of the same is required to be extended to all similarly situated persons including the applicants before us, to avoid needless litigation in future.
18. However, in the facts and circumstances of the case, there shall be no order as to costs."
8. If there were some doubt that the applicants in the O.A. 3768/2018 belong to an altogether different category and department, the same would get fully addressed in the judgment of Hon'ble High Court of Delhi. The relevant extract of the same reads as under:-
"14. The afore-noted recommendations issued vide Resolution dated 29.08.2008 by the Ministry of Finance, speaks about grant of Non Functional Grade Pay of Rs.5,400 to different cadres under the Sixth Pay Commission. The undisputed position is that the recommendation of the Sixth Pay Commissions with regard to grant of Non Functional Upgradation to the Grade Pay of Rs.5,400 stood extended to the Seventh Pay Commission as Level 9. It is also not disputed that vide order dated 15.11.2016, respondents have granted Grade Pay of Rs.5,400 i.e. Level-9 to the Senior Private Secretaries on completion of four years in the Grade Pay of Rs.4,800/- under the Seventh Pay Commission.10
Item No. 22 (C-4) O.A. No. 1766/2016
15. While claiming the benefit of Non Functional Grade Pay of Rs.5,400, the petitioners have placed reliance upon recommendations of the Seventh Pay Commission mentioned in Para-7.4.13 (iv) (b). A bare reading thereof shows that it has been recommended therein that 80 per cent of the employees in Level 8 will be eligible for non- functional upgrade to Level 9 upon completion of four years in Level 8, on a seniority-cum-suitability basis. It is relevant to note the recommendations of the Seventh Pay Commission, enumerated in Para-7.4.13, which are as under:-
"Subordinate Engineering Cadres Analysis and Recommendations 7.4.13 the following is recommended:
i. The VI CPC had recommended that posts carrying minimum qualifications of diploma in engineering should be placed in GP 4200, while those requiring a degree in Engineering should be placed in GP 4600. The Commission is also of a similar view. Accordingly, normal replacement pay scales are recommended.
XXXX iii.The issue of MACP does not solely concern the Engineering cadres, but affects all Central Government Employees. Separate recommendations regarding MACP have been made in Chapter 5.1 of the Report. They will apply to subordinate engineering cadres as well. iv. The commission took note of the issue of stagnation raised by the various representative staff associations. Accordingly, the following is recommended:
a. The concerned ministries should earmark posts in Level 8 equal to 10 percent of total sanctioned strength in Level 6 and 7. 70 percent of such earmarked posts should be filled through promotion from Level 7, while 30 percent should be filled through a Limited Departmental Competitive Examination in which employees from both Levels 6 and 7 would be eligible to compete. This will 11 Item No. 22 (C-4) O.A. No. 1766/2016 enable deserving and meritorious employees at Level 6 to jump Level 7 and to directly to Level 8.
b. 80 percent of the employees in Level 8, will be eligible for no-functional upgrade to Level 9 upon completion of four years in Level 8, on a senioritycum-suitability basis."
16. The respondents have averred that Para-7.4.13 (iv) (b) has to be read in consonance with Para 7.4.13 (iv) (a) thereof. We find that Para 7.4.13 (iv) (a) relates to filling of posts in Levels 6 & 7 through promotion as well as through LDCE to Level 8. It is only the Clause Para-7.4.13
(iv) (b) which speaks of non functional upgradation to Level 9. Further, the afore-noted extracts of Seventh Pay Commission in Para-7.4.13 (i) specifically note in respect of Subordinate Engineering Cadres that in terms of recommendations of the Sixth Pay Commission, the Grade Pay in the Engineering cadre shall be based upon the qualification. The aforesaid position is not disputed. Also, by virtue of recommendations of the Sixth Pay Commission vide Resolution dated 29.08.2008 by the Ministry of Finance, Non Functional Grade Pay of Rs.5,400 has been directed to be given to different cadres. But the respondents in contravention of aforesaid Resolution dated 29.08.2008, vide communication dated 17.02.2009, restricted grant of Non-Functional Grade Pay of Rs.5400 to the post of Senior Private Secretary only. In our opinion, the competent authority concerned did not consider that though the scale of Assistant Engineer and Chief Draughtsman is fixed at Grade Pay of Rs.4,600, however, upon implementation of Modified Assured Career Progression Scheme („MACP‟) on completion of 10, 20 and 30 years of service respectively, the next Grade Pay of Rs.4,600/- is Rs.4,800/- (Level-8) and after completion of four years in Level-8, the incumbent becomes eligible for grant of Non Functional Grade Pay of Rs.5,400/- (Level-9). The plea of respondents that because the entry level pay of petitioners is not in the Grade Pay of Rs.4,800, therefore, they are not entitled to Non Functional Grade Pay of Rs.5,400 cannot be accepted. Whether entry to the Grade pay of Rs.4,800 is by promotion or by direct recruitment, the condition precedent for grant of Non Functional 12 Item No. 22 (C-4) O.A. No. 1766/2016 Grade Pay of Rs.5,400 is that the incumbent should have completed four years in the Grade Pay of Rs.4,800/-.
17. Also, the recommendations of the Seventh Pay Commission in Para-7.4.17 notes that the post of Senior Draughtsman and Chief Draughtsman have relativities with the post of Junior Engineer/ equivalent and Assistant Engineer/ equivalent of subordinate engineering cadre and they have similar minimum educational qualification requirements and pay structure; and since the Commission has not recommended any pay upgrades for the post of Junior Engineer/ equivalent and Assistant Engineers/ equivalent of subordinate engineering cadre, therefore, the Commission has not recommended any upgrades for the cadre of Draughtsman.
18. On this aspect we find that the recommendation of the Seventh Pay Commission in respect of Draughtsman noted in Para-7.4.17 has to be read in consonance with Para-7.4.13 (iv) (b) wherein with regard to Subordinate Engineering Cadres it is recommended that 80 per cent of the employees in Level 8 will be eligible for non- functional upgrade to Level 9 upon completion of four years in Level 8, on a seniority-cum-suitability basis.
19. The High Court of Madras in M. Subramaniam (Supra), dealt with a case wherein it was held that once a clarification vide letter dated 21.11.2004 by the Deputy Secretary to the Government of India has been given with regard to how period of four years has to be counted to the officer, it is held that the four years period is to be counted with effect from the date when an officer is placed in the pay scale of Rs.7,500- 12,000 (pre-revised). The said judgment was challenged by the Government of India in Civil Appeal No. 8883/2011 and the same was dismissed vide decision dated 10.10.2017 and thereby, the decision of the Madras High Court attained finality. The Supreme Court held that the Grade Pay of Rs.5,400/- has to be granted as per the CCS (RP) Rules, 2008 and as per Government of India Resolution on the subject, on completion of four years of continuous service in GP of Rs. 4800/- in PB2 [Rs. 7500-12000 (pre-revised)], 13 Item No. 22 (C-4) O.A. No. 1766/2016 irrespective of whether the GP of Rs. 4800 [Rs. 7500- 12000 (pre-revised)] was gained by way of promotion or ACP/MACP.
20. It is highly unacceptable that the benefit of grant of Non Functional Grade Pay of Rs.5,400 recommended under the Sixth Pay Commission, which has been followed in the Seventh Pay Commission, has been granted only to the cadre of Senior Private Secretaries in the Border Roads Organisation and Assistant Accounts Officers of the Defence Accounts Department upon completion of four years in the Grade Pay of Rs.4,800 and not to Assistant Engineers and Draughtsmen. It is not the case of respondents that the petitioners before this Court have not completed four years in the Grade Pay of Rs.4,800. Accordingly, in our considered opinion the petitioners, who have completed four years of service in Grade pay of Rs.4,800, either by promotion or by ACP/MACP, are entitled to get benefit of Non Functional Up gradation Scale of Rs.5,400/- as has been granted to the Senior Private Secretaries employed in Border Road Organization and Assistant Accounts Officers of the Defence Accounts Department. Consequently, respondents shall pass necessary orders to this effect within four weeks.
21. With directions as aforesaid, the present petition and pending application, if any, are accordingly disposed of."
9. Now, the applicants herein are employees of Directorate General of Quality Assurance (DGQA), which is an organization under the Ministry of Defence. The petitioners before the Hon'ble High Court of Delhi in the aforequoted W.P.(C) were employees of BRO which too is an organization under the control of the Ministry of Defence. But the petitioners before the Hon'ble High Court of Delhi 14 Item No. 22 (C-4) O.A. No. 1766/2016 included Assistant Engineers. The present applicants too are Assistant Engineers. If employees of one organization of the same department and Ministry have been extended the benefit, how could the same be denied to similar employees of the same Ministry/Department could not be justified. Moreover, we notice that this Tribunal while passing the order in O.A. No. 3768/2018 had given a clear direction that the said judgment should be applied in rem and not to be considered in personam. Therefore, once such a judgment was on record, the respondents were obliged to consider the application of the same on similarly placed employees instead of pushing them into avoidable litigation. We reiterate that the judgment of the Hon'ble High Court, relevant extracts of which have been quoted above, leaves no further scope to take a view which could be divergent because the issue and principles at stake are identical.
10. In view of what has been detailed above, the O.A. is allowed. The orders dated 13.12.2013 and 10.11.2014 (Annexure A and B respectively) which are impugned in the present O.A. are quashed and set aside. The competent 15 Item No. 22 (C-4) O.A. No. 1766/2016 authority amongst the respondents shall pass appropriate orders granting the benefit of non functional grade of Rs. 5400/- with effect from the date they attain qualifying service of four years in accordance with the Ministry of Finance resolution dated 29.08.2008. Consequent upon the grant of non functional grade, the applicants shall also be entitled to all the consequential benefits which may accrue. These directions shall be complied with within a period of twelve weeks from the date of receipt of a certified copy of this order. No order as to costs.
11. If the orders are complied with, including grant and release of consequential benefits, within the period stipulated in the present order, the applicants shall not be entitled to payment of any interest thereto. However, in the event of any delay, such payment including the payment of arrears shall accompany simple interest at the rate of 6% per annum.
(Pratima K. Gupta) (Tarun Shridhar)
Member (J) Member (A)
/dd/