Central Administrative Tribunal - Ernakulam
P.R. Anandvally Amma vs Union Of India on 14 October, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH, ERNAKULAM
O.A. No. 656 of 2012 & O.A. No. 953 of 2012
Date of order : 14th October,2013
O.A. No. 656/2012.
Between:
P.R. Anandvally Amma, aged 53 yrs,
W/o. K. Vijaya Kumar, Junior Hindi Translator,
National Institute of Fisheries Post Harvest
Technology and Training, Cochin - 682 016,
R/o. No. 30/1504 C, Temple Road,
Ponnurunny, Vytilla, Kochi 682 019. ... Applicant
A N D
1. Union of India, rep., by the Secretary
to the Government of India,
Ministry of Agriculture, Krishi Bhavan,
New Delhi - 110 001.
2. The Director,
National Institute of Fisheries Post Harvest
Technology and Training,
Cochin - 682 016.
3. The Pay and Accounts Officer,
Pay and Accounts Office,
Ministry of Agriculture,
Fore Shore Road, Cochin 682 016. ... Respndents
Counsel for the applicant : Mr. Shafik M.A., Advocate
Counsel for the respondents : Mr. Sunil Jacob Jose, SCGSC
O.A. 953 of 2012
Between:
T.M. Thomas, aged 46 yrs.,
S/o. Late Ouseph Mathew,
Junior Hindi Translator,
O/o Development Commissioner,
Cochin Special Economic Zone, Kakkanad,
Residing at 'Thaiyedail House',Vaikom P.O.,
Vaikom, Kottayam District. ... Applicant
A N D
1. Union of India, rep. by the Secretary,
Ministry of Commerce and industry,
New Delhi - 110 001.
2. The Under Secretary to Government of India,
SEZ Section, Department of Commerce,
Ministry of Commerce and Industry,
New Delhi110 001.
3. The Development Commissioner,
Cochin Special Economic Zone(CSEZ),
Kakkanad, Cochin 682 037. ... Respondents
Counsel for the applicant : Mr. Shafik M.A., Advocate
Counsel for the respondents : Mr. George Joseph,ACGSC
C O R A M :
THE HON'BLE MR. JUSTICE P. SWAROOP REDDY, MEMBER(J)
THE HON'BLE MR. G. SHANTHAPPA, MEMBER (J)
THE HON'BLE MR. P.K. BASU, MEMBER (A)
O R D E R
(Per Hon'ble Mr. Justice P. Swaroop Reddy, Member (J) As the Division Bench of the Hon'ble CAT Ernakulam Bench referred the matter with regard to OA 656/2012 and OA 953/2012 to Full Bench observing that scrutiny of the order of the Co- ordinate Bench in OA No. 107/20111 can be construed as to take the colour of sitting in appeal over it, the Full Bench was constituted by the Hon'ble Chairman of CAT.
2. No specific point for reference is made but in view of the issue framed in the order in OAs 656/2012 and 953/2012 which is as follows :
"Whether JHTs in the Subordinate Offices of the Central Government are entitled to Grade Pay of Rs.4600/- from 01.01.2006 on the basis of OM dated 13.11.2009 or not. "
the same issue has to be held to be the issue referred to the Full Bench
3. In OA 656/2012, the applicant is a Junior Hindi Translator (JHT) in the National Institute of Fisheries Post Harvest Technology and Training, Cochin. She was regularised as JHT in the pay scale of Rs.5500- 8000. Her pay scale was upgraded to Rs.5500-9000 with effect from 01.01.1996 notionally and with monetary benefits with effect from 11.02.2003 on the direction of the Tribunal in OA No. 675/2005. She was granted grade pay of Rs.4600/- in Pay Band of Rs.9300-34800 with effect from 01.01.2006 vide order dated 22.03.2010.
Holding that the order for grant of Grade Pay of Rs.4600/- was not in accordance with OM dated 24.11.2008 and OM dated 13.11.2009, it was cancelled vide order dated 21.07.2012.
The applicant was granted first financial upgradation under the ACP Scheme with effect from 09.05.2006 after the implementation of the 6th Central Pay revision with retrospective effect from 01.01.2006.
4. Applicant in OA 953/12 is also a JHT in the office of the Development Commissioner, Cochin Special Economic Zone, Kakkanad whose pay scale was Rs.5000-8000. He was given the replacement scale in Pay Ban of Rs.9300-34800 with grade pay of Rs.4200/- with effect from 01.01.2006. He is aggrieved by the denial of Grade pay of Rs.4600/- as was given to other officials similarly placed as him. He was given first financial upgradation under the ACP scheme on 12.12.2006 to the pay scale of Rs.5500-9000 after the VI Pay revision with retrospective effect from 01.01.2006.
5. Thus the applicants in both the OAs claim that they are entitled for Grade Pay of Rs.4600/- in PB-2 of Rs.9300-34800 with effect from 01.01.2006 on the basis of OM dated 13.11.2009. According to them on the basis of above OM dated 13.11.2009 those posts which were in the pre-revised pay scales of Rs.5000-8000 / 5500-9000 as on 01.01.2006 should be granted the grade pay of Rs.4600/- in the Pay Band PB-2, corresponding to the pre-revised scale of Rs.7450-11500 which were granted the normal replacement pay structure of Grade Pay of Rs.4600/- in the Pay Band PB-2 with effect from 01.01.2006.
6. The contention of the applicants is also that if the Government had no intention of raising their Grade Pay from Rs.4200/- to Rs.4600/- there was no need to revise their pay as their pre-revised pay itself would have been enough to get the Grade Pay of Rs.4200/-
7. Both the applicants have relied on the decision of Co- ordinate Bench of the Tribunal in OA No. 107/2011. The applicant in OA No. 656/2012 also relied upon the decision of the Tribunal in OA No. 675/2005 which has been confirmed by the Hon'ble High Court of Kerala.
8. The respondents contested the OA and with respect to the applicants in OA 656/2012 it was contended that granting her Grade Pay of Rs.4600/- with effect from 01.01.2006 was issued on a wrong interpretation of the OM dated 13.11.2009. The pay scales of Rs.5000- 8000, 5500-9000 and Rs.6500-10500 were merged and were placed in the revised Pay Ban PB-2 of Rs.9300-34800 with Grade Pay of Rs.4200/- For certain posts in the pay scale of Rs.6500-10500, the VI Central Pay Commission had specifically recommended the Grade Pay of Rs.4600/- in Part-B, Section-II of the CCS (Revised Pay) Rules,2008. For those categories of posts in the pay scale of Rs.6500- 10500 mentioned in paras (ii)(iii) and (iv) of Section I, Part-B, the upgradation as in (ii) above may be done in consultation with the Department of Expenditure, Ministry of Finance. Regarding (iii) and (iv) above, upgradation may be done by the Ministries concerned in consultation with their integrated finance. As per OM dated 24.11.2008 and corrigendum dated 27.11.2008 the pay scales of JHT and SHT were upgraded with effect from 01.01.2006 as 6500-10500 and 7450- 11500 in the pre-revised scale respectively and in Pay Band PB-2 with Grade Pay of Rs.4200/- and Rs.4600/- respectively. As per the amended Recruitment Rules, the Pay Band of JHT is Rs.9300-34800 with Grade Pay of Rs.4200/-. As per Annexure R-3 in OA No. 656/12 dated 24.08.2012 the pay scale of JHT as on 01.01.2006 was Rs.5500- 9000 and not Rs.6500-10500. It was upgraded to Rs.6500-10500 vide OM dated 24.11.2008 with effect from 01.01.2006 as per the VI Pay Revision. In view of that, the OM dated 13.11.2009 is not applicable in the case of JHT who has been given the grade pay of Rs.4200/-. The Grade Pay of Rs.4600/- was given to the Sr. Hindi Translator (SHT).
The Division Bench framed the following issue :
9. Whether JHTs in the Subordinate Offices of the Central Government are entitled to Grade Pay of Rs.4600/- from 01.01.2006 on the basis of OM dated 13.11.2009 or not.
10. After extracting the relevant OM i.e. OM dated 13.11.2009 which reads as below :
"F.No. 1/1/2008-IC Government of India Ministry of Finance Department of Expenditure Implementation Cell New Delhi, dated 13th November, 2009 OFFICE MEMORANDUM Subject: Grant of the revised pay structure of grade pay of Rs.4600 in the pay ban PB-2 to posts that existed in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band PB-2 Sixth Pay commission recommended merger of the three pre-revised scale of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 and replaced them by the revised pay structure of grade pay of Rs.4200 in the pay ban PB-2. Vide para 2.2.21(v) of its report, the Commission recommended that on account of the merger of these 3 scales, some posts which constituted feeder and promotion grades would come to like in an identical grade. The Commission gave specific recommendations in its Report granting higher grade pay of Rs.4600 to some categories of these posts. As regards the other posts, the Commission recommended that it should first be seen if the posts in these 3 scales can be merged without any functional disturbance and if possible, the same should be done. Further, the Commission recommended that in case it is not feasible to merge the posts in these pay scales on functional considerations, the posts in the scale of Rs.5000-8000 and Rs.5500-9000 should be merged with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in the pay band PB-2 with grade pay of Rs.4600 corresponding to the pre-revised scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-10500.
2. The above recommendations of the Sixth Pay Commission were notified vide para (ii), Section I in Parts B and C of the First Schedule to the CCS(RP) Rules,2008. While Part B of the First Schedule of the CCS(RP) Rules relates to revised pay scales for common categories of staff, Part C notifies revised pay structure for certain posts in Ministries, Departments and Union Territories. The above provisions of the Rules specifically mentioned that upgradations in terms of para (ii) Section I may be done in consultation with Department of Expenditure, Ministry of Finance.
3. Consequent upon the Notification of CCS(RP) Rules,2008, Department of Expenditure has received a large number of references from administrative ministries / departments proposing upgradation of the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 by granting them grade pay of Rs.4600 in the pay band PB-2. The matter has been considered and it has now been decided that the posts which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band PB-2, will be granted grade pay of Rs.4600 in the pay band PB-2 corresponding to the pre-revised scale of Rs.7450-11500 w.e.f. 1.1.2006. Further, in terms of the aforementioned provisions of CCS (RP) Rules,2008, in case a post already existed in the pre-revised scale of Rs.7450-11500, the posts being upgraded from the scale of Rs.5600-10500 should be merged with the post in the scale of Rs.7450-11500.
4. Accordingly, in terms of Rule 6 of CCS (RP) Rules, 2008, revised pay of Government servants in the pre-revised scale of Rs.6500-10500 who were earlier granted grade pay of Rs.4200 and who have already exercised their option for drawal of pay in the revised pay structure in the format prescribed in the Second Schedule to the Rules, will be fixed again in accordance with illustration 4A annexed to CCS(RP) Rules,2008.
5. In case of all such Government servants in the pre-revised scale of Rs.6500-10500 who were earlier granted grade pay of Rs.4200 and who had opted to have their pay fixed under CCS(RP) Rules, 2008, action as prescribed in this Department's O.M. Of even number dated 30th August,2008 will be taken. In case a Government servant desires to revise his earlier option for coming over to the revised pay structure, he may be permitted to do so without making any reference to this Department.
6. On account of pay fixation in the revised pay structure of grade pay of Rs.4600 in the pay band PB-2, arrears of pay will be recalculated and difference of arrears in respect of the entire amount will be paid immediately. The manner of drawal of arrears has already been indicated in this Departments/s O.M. of even number dated 30.8.2008.
7. Hindi version will follow.
Sd/-
Alok Saxena/Director"
(emphasis supplied) the Division Bench held that it is only to some categories of these posts, not to all categories of these posts which got merged that the Grade Pay of Rs.4600/- is to be given and that the applicants have not grasped that aspect.
The Division Bench has also referred to the Section-I of Part-C of the First Schedule to CCS (Revised Pay)Rules,2008 which is as follows :
'FIRST SCHEDULE PART - C REVISED PAY STRUCTURE FOR CERTAIN POSTS IN MINISTRIES, DEPARTMENTS AND UNION TERRITORIES Section I
(i) The revised pay structure mentioned in Column (5) and (6) of this part of the Notification for the posts mentioned in Column (2) have been approved by the Government. The initial fixation as on 1.1.2006 will be done in accordance with Note 2 below Rule 7 of this Notification.
(ii) On account of merger of pre-revised pay scales of Rs.5000-
8000, Rs.5500-9000 and Rs.6500-10500, some posts which presently constitute feeder and promotion grades will come to lie in an identical grade. The specific recommendations about some categories of these posts made by the Pay Commission are included Section II of Part C. As regards other posts, the posts in these three scales should be merged. In case it is not feasible to merge the posts in these pay scales on functional considerations, the posts in the scale of Rs.5000- 8000 and Rs.5500-9000 should be merged, with the post in the scale of Rs.6500-10500 being upgraded to the next higher grade in pay ban PB-2 i.e. to the grade pay of Rs.4600 corresponding to the pre-revised pay scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500- 10500 should be merged with the post in the scale of Rs.7450-11500.
(iii) Posts in the scale of Rs.6500-10500 carrying minimum qualification of either Degree in Engineering or a Degree in Law should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.
(iv) Posts of scientific staff in the scale of Rs.6500-10500 carrying minimum qualification of engineering degree or a post-graduate degree should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600
(v) Upgradation as in (ii) above may be done in consultation with Department of Expenditure, Ministry of Finance. Regarding (iii) and (iv) above, upgradation may be done by the Ministries concerned in consultation with their Integrated Finance."
(emphasis supplied)
11. In para-10 of the order the Division Bench held that on a wrong understanding of OM dated 13.11.2009 many organisations granted JHT in the pay scales of Rs.5000-8000 or 5500-9000 upgradation to the post in the pay scale of Rs.7450-11500 corresponding to the Grade Pay of Rs.4600/- in PB-2 and in all probability, that must have been done without consulting the Department of Expenditure and that the applicant in OA No. 656/2012 has not proved that she was granted the grade pay of Rs.4600/- in consultation with the Department of Expenditure, Ministry of Finance.
12. In para-13 of the order the Division Bench has observed that in OA No. 107/2011, the grievance of the applicant was the wrong fixation of pay on the grant of 1st and 2nd financial upgradations ignoring para 5 of the Modified Assured Career Progression Scheme (MACPS). In para-14 the Division Bench observed that in order to arrive at the findings made, the Co-ordinate Bench relied on the following factual matrix as stated in para 11 of the order dated 27.09.11 in the said OA.
"..........This pay scale of Rs.5,500 - 9000/- was replaced by Rs.7450 - 11,500/- vide Annexure A-3 dated 24.11.2008 (as modified by Annexure A-4 dated 27.11.2008). This pay scale of Rs.7,450 - 11,500/- is replaced by the Revised Pay scale (PB-2_ of Rs.9,300/- - 34,800 with a grade pay of Rs.4,600/-. There is no quarrel upto this stage."
It is further observed :
"..........It is at a very late stage i.e. w.e.f. 01.01.2006 that the pay scale of Junior Hindi Translator was revised to Rs.7,450 -
11,500/- and the grade pay attached to the same is Rs.4600/- as per the aforesaid First Schedule. This is the admitted position, as could be seen from Annexures A-6 Pay fixation as well as the statement annexed thereto, Annexure A-8 proforma (vide entry against para 3(i) and (iv) thereof, Annexure R-6 and para-7 of Annexure MA1."
13. The Division Bench further observed that the pre-revised pay scale of Rs.7450-11500 mentioned above related to Senior Hindi Translator. The applicant in OA NO. 107/11 was given financial upgradation under the ACP Scheme to the scale of Rs.5500-9000 on 30.03.2002, i.e. before the VI Pay Revision.
That as per the above factual matrix, the pay scale of Rs.5500-9000 is revised to Rs.7450-11500. The admitted position is based on the documents produced by the applicant therein except Annexure R-6. The respondents have not admitted the aforesaid factual matrix in respect of JHT in their reply statement.
That Annexure R-6 in the above OA conveys approval of the competent authority to grant PB-2 of Rs.9300-34800 plus Grade Pay of Rs.4600/- to the applicant therein who was junior JHT who got upgradation to the scale of SHT under ACP Scheme.
14. The Division Bench further observed that they are of the considered view that the above statement (not admitted by the respondents in their reply) that the pay scale of JHT was revised to Rs.7450-11500 cannot be taken out of the context in the OA No. 107/2011 of a JHT who had been granted financial ugradation under the ACP Scheme as early as 2002 and made to serve as a finding to sustain the claim of the applicants in OA Nos. 656/2012 and 953/2012 for a second upgradation of their pay on 01.01.2006 to Rs.7450-11500 to get the Grade Pay of Rs.4600/- on 01.01.2006. In para-15 of the judgment the Tribunal held that the correctness of granting Grade Pay of Rs.4600/- to JHT as on 01.01.2006 was not focused at all. The bone of contention was para 5 of the MACP Scheme in OA No. 107/2011. In O.P. (CAT) No. 467/2012 filed against the decision of the Co-ordinate Bench the Honble High Court of Kerala upheld the finding that the applicant therein was entitled to the benefit of para 5 of the MACP Scheme and also took note of the fact that her claim for the financial upgradations in the manner claimed, was virtually found in her favour in the Internal Audit Department note. That the contention of the applicants in the said O.P. (CAT) before the Hon'ble High Court was that the remarks / recommendations of the Internal Audit Department which were not finalised cannot give any support to the claim was not deliberated upon in the judgment of the Hon'ble High Court of Kerala. The Division Bench also held that it is erroneous to contend, in the absence of a declaration by the Co-ordinate Bench, that it had decided or explained the issue of granting the Grade Pay of Rs.4600/- to JHT in OA No. 107/11 and that the Hon'ble High Court had confirmed it in O.P. (CAT) No. 467/2012.
In para-17 of the judgment the Division Bench observed that facts and issues being different the OAs are not similar and the reliance of the applicants on the decision in OA No. 107/2011 or 675/2005 is misplaced. The applicants have not reproduced the part of the order of the Co-ordinate Bench or judgment of the Hon'ble High Court on which they relied to claim the Grade Pay of Rs.4600/-
15. Thus as already referred, in para-8 of the order, the Division Bench framed the issue as to whether JHTs in the Subordinate Offices of the Central Government are entitled to Grade Pay of Rs.4600/- from 01.01.2006 on the basis of OM dated 13.11.2009 or not.
16. Thus, the Division Bench observed in para-15, that it is erroneous to contend in the absence of a declaration by the Co- ordinate Bench, that it had decided or explain the issue of granting the grade pay of Rs.4600/- to JHT in OA No. 107/11 and again the Division Bench observed in para-17 of the order that the facts and issues being different, the OAs are not similar and the reliance of the applicants on the decision in OA No. 107/2011 or 675/2005 is misplaced.
Thus, when the opinion of the Division Bench was that the issue with regard to the applicability of grade pay of Rs.4600/- to JHTs on the basis of OM dated 13.11.2009 was not decided in OA 107/2011 and when the issue raised in the present OAs 656/2012 and 953/2012 is different, that is applicability of the same (whether JHTs in the Subordinate Offices of the Central Government are entitled to Grade Pay of Rs.4600/- from 01.01.2006 on the basis of OM dated 13.11.2009 or not ), the Hon'ble Division Bench could have taken a view.
17. In the judgment in OA 107/2011, para-11 would show that the pay scale of Rs.7450 - 11,500 is replaced by the Revised pay scale (PB-2) of Rs.9300-34,800/- with a grade pay of Rs.4600/- ie with reference to the JHTs. In para-12 of the same judgment it was observed by the Division Bench, that "And since, the grade pay the applicant was drawing was Rs.4600/- ......." In para-14 of the same judgment the Division Bench observed that "It is at a very late stage ie w.e.f. 01.01.2006 that the pay scale of Junior Hindi Translator was revised to Rs.7450-11,500/- and the grade pay attached to the same is Rs.4600/- as per the aforesaid First Schedule"
18. Thus, in OA 107/2011 there is specific finding with regard to JHTs grade pay being Rs.4600/-. No doubt as observed by the Hon'ble Division Bench in OAs 656/2012 and 953/2012, in OA 107/2011 there was no substantial focus on the question of JHTs being entitled for the grade pay of Rs.4600/- and as observed that question was not the bone of contention, but still there was finding to the extent that JHTs are entitled for Grade Pay of Rs.4600/- with effect from 1-1-2006.
19. The above decision of the Division Bench in OA 107/2011 was confirmed by the Hon'ble High Court of Kerala in OP(CAT) No. 467/2012. In the concluding portion of para-5 of the judgment, the Hon'ble High Court observed that "As per Annexure A5 office memorandum dated 13.11.2009, the pay scale of Rs.6500-10500 with grade pay of Rs.4200/- was revised to 7450-11500 w.e.f. 1.1.2006 and the grade pay was enhanced to Rs.4600/-" In para-11 of the judgment the Hon'ble High Court observed that the contention of the petitioner was that the Tribunal ought not to have found that the pay scale of Junior Hindi Translator was revised to Rs.7450-11500 w.e.f. 1.1.2006 because the said scale is attached to the post of Senior Hindi Translator and not to the post of Junior Hindi Translator. That since the grade pay of Rs.4600/- is attached to the post of Senior Hindi Translator, the Tribunal ought to have found that the respondent who is Junior Hindi Translator was only be treated as continuing in the very initial grade pay of Rs.4200/- instead of the grade pay of Rs.4600/-.
Thus the contention that the JHT was entitled to grade pay of Rs.4600/- was raised before the Hon'ble High Court while dealing with the writ petition No. OP(CAT) No.467/2012 against the order in OA 107/2011 and it has to be accepted that the question was considered and confirmed by the Hon'ble High Court.
20. In the paragraph-11, of its judgment in O.P. (CAT) 467/2012 the Hon'ble High Court observed that, essentially the contentions of the petitioner would reveal that according to them, paragraph-5 of the OM dated 13.11.2009 is not applicable to the respondent. Thus, the issue raised as per para-8 in the order in OA Nos.656/2012 & 953/2012 to which at the cost of repetition we would refer again whether JHTs in the Subordinate Offices of the Central Government are entitled to Grade Pay of Rs.4600/- from 01.01.2006 on the basis of the OM dated 13.11.2009 or not was considered specifically in the judgment of the Hon'ble High Court in OP(CAT) No. 467/2012 against the order in OA 107/2011.
21. Thus it has to be accepted that the question, as to whether the JHTs are entitled for Grade Pay of Rs.4600/- on the basis of the OM dated 13.11.2009 was answered positively in OA 107/2011 and was confirmed by the Hon'ble High Court in OP(CAT) No. 467/2012.
22. In the circumstances, the reference as to whether JHTs in the Subordinate Offices of the Central Government are entitled to Grade Pay of Rs.4600/- from 01.01.2006 on the basis of the O.M. Dated 13.11.2009 or not has to be held to be in favour of the applicants and in the circumstances of the case there is no necessity of again referring the matter to the Division Bench for deciding the matter on facts. We hold that both the OAs are liable to be allowed and the same are accordingly allowed.
23. No order as to costs.
(P.K.BASU) (G.SHANTHAPPA) (P.SWAROOP REDDY)
MEMBER(A) MEMBER(J) MEMBER(J)
Dated: this the 14th day of October,2013
MD