Central Administrative Tribunal - Lucknow
Pradeep Shukla vs Union Of India on 3 July, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
LUCKNOW BENCH, LUCKNOW
Original Application No. 410 of 2012
Order reserved on : 24.03.2017
Order pronounced on: 03.07.2017
Present : Honble Mr. Justice V.C. Gupta, Judicial Member,
Honble Mr. O.P. S. Malik, Administrative Member.
1. Pradeep Shukla, aged about 43 years, S/o-Sri Vishnu Chandra Shukla, presently posted as J.E. (W)/C&W Shop/Lucknow, Northern Railway, R/o-H.No. D-50, Sector-D, L.D.A. Colony, Kanpur Road, Lucknow-226012.
2. Sunil Kumar Singh, aged about 45 years, S/o-Sri Mahendra Kumar Singh, presently Posted as J.E. (W)/BSB/Northern Railway, R/o-H.No. N-10/79-F, New Colony, Kakarmatta, DLW, B.H.U. Road, Varanasi.
3. Ravindra Nath Chaturvedi, aged about 42 years, S/o-Sri S.N. Chaturvedi, presently posted as J.E. (W)/BSB/Northern Railway, R/o-H.No.-162-A, AEN Colony, Cantt, Varanasi.
.. Applicants
By Advocate : Sri Sachindra Pratap Singh.
Versus
1. Union of India, through its Secretary, Ministry of Railways, Government of India, New Delhi.
2. Chairman, Railway Board, New Delhi.
3. The General Manager, Northern Railway, Baroda House, New Delhi.
4. Divisional Railway Manager, Northern Railway, Lucknow Division, Lucknow.
.. Respondents.
By Advocate: Sri Asit Kumar Chaturvedi, Senior Advocate assisted by Sri S. Verma.
O R D E R
Delivered by JUSTICE V.C. GUPTA, JM The Joint original application under section 19 of AT Act-1985 has been filed by the applicants who were appointed on the post of SOM (Sub-Oversees Mistry)/Supervisor (Works). They are qualified diploma holder in Civil Engineering. They were selected after due process of selection in pursuance of advertisement dated 20.1.1990. The Vth Central Pay Commission by its recommendation in Para No. 50.23 and 50.24 recommended the pay structure in the Engineering subordinate cadre. These recommendation of 5th Central Pay Commission (5th CPC) were accepted and implemented by the Government of India consequently the diploma holder who were working in the grade of 1400-2300 or below were allowed the scale of Rs. 5000-8000 in the 5th CPC. The aforesaid recommendation were accepted and implemented by the railway also except in cases of the post of SOM/Supervisor (Works). According to the applicants the pay scale of the Supervisor (Works) and inspector of Works was the same i.e. 5000-8000. It was further contended that post of Master Craftsman (MCM) which is next lower post to Supervisor (Works) having pay scale of Rs. 1340-2040 as per 4th CPC were placed in the scale of Rs. 4500-7000 in the 5th CPC and later they were granted scale of Rs. 5000-8000 w.e.f. 01.01.1996. It was also contended that the post of Draftsman in the railway having minimum prescribed qualification of two years ITI certificate course in respective discipline were placed in the grade of 1400-2300, now they were placed in scale of Rs. 5000-8000 with changed designation as Junior Engineer (Drawing) w.e.f. 01.01.1996. The applicants aggrieved by the action of the respondents allowing the scale of Rs. 5000-8000 to the employees working one post below to the applicants but not granting benefit of pay scale of 5000-8000 to the applicants, made representation through federation of Railway. The Railway Board formed a sub committee to examine anomalies and the subcommittee in its report recommended for grant of pay scale 5000-8000 to supervisor after merging the said post in the post of Junior Engineer-II in the Scale of Rs. 5000-8000 considering the qualification and nature of duties and training for the post being similar and consequently the applicants were designated as Junior Engineer-II (Works) and placed in the scale of Rs. 5000-8000 vide order dated 08.11.2004 w.e.f. 01.11.2003. The applicants being dissatisfied with the aforesaid order claimed benefit from 01.01.1996 instead of 01.11.2003. It was further contended that Master Crafts Man (MCM) is one post lower to the applicant, has been placed in pay scale 5000-8000 w.e.f. 01.01.1996 and not granting benefit w.e.f. 1.1.96 to the applicants the respondents acted in violating of article 14 &16 of Constitution of India.
2. When authorities has not acted according to demands of applicants, the applicants files OA No. 247 of 2005 which was disposed of on 15.09.2005 with direction to decide the representations of the applicants but the representation of the applicant was rejected vide order dated 12.12.2005. The copy of which has been annexed as Annexure No. A-4 is extracted here in below for ready reference:
NORTHERN RAILWAY Division office Lucknow No. 754E/IIDA/Engg/SOM Dt. 12.12.2005
1. Shri Pradeep Shukla S/o V.C. Shukla, JE-II/W under SSE/W/NR/CB/LKO
2. Shri Sunil Kumar Singh S/o M.K. Singh, JE-II/W
3. Shri Ravindra Nath Chaturvedi S/o Sh. S.N. Chaturvedi, JE-II/W
4. Shri Kamta Prasad Sharma S/o Lt. Ram Nihore, JE-II All three are working under SSE/W/NR/BSB Sub: Compliance of Honble CAT/LKOs Judgment and order dated 15.09.2005 passed in OA No. 247/2005 titled as Pradeep Shukla JE-II/W and 3 others Vs. UOI and others.
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In compliance of the judgment and orders passed in above noted case, your representations dated 06.04.2005 & 07.04.2005 have been carefully considered by the undersigned as per orders of the Honble Central Administrative Tribunal. On perusal of the same, and taking into the considerations the settled proposition of rule as issued by the Rly Board, it has been found that your claim for granting the grade of Rs. 5000-8000 w.e.f. 01.01.96 is not genuine and has no substance in the eyes of law. However, following orders, which is being sent to you for your perusal and records, are being passed.
Para 1: That as per seniority, the names of applicant no. 1, 2,3 &4 are lying at S. No. 5,4,3 & 8 respectively. They being diploma holders were initially appointed on 23.08.91, 23.08.91, 27.11.92 & 01.01.95 respectively as Sub Oversees Mistri in grade 425-700(RS) since they were diploma holders, all were appointed directly as Sub-Overseas Mistri.
Para 2: Upon perusal of said fact, it is clear that the applicant were pre-appointee 4th & 5th Pay Commission of Govt. of India. Now as per 5th Pay Commission report duly approved by Ministry of Rlys, Govt. of India, as circulated by the Rly. Bd. Through circular no. RBE 138/97 through letter no. PC-5/97/1/RSRP@1 dated 16.10.97, notifying that with regard to schedule for revised scales in two parts namely viz known as first schedule for revised scale for post in present scale in group D,C,B &A, except in respect of post for which different revised pay scales were notified separately. The second schedule was annexure B for revised pay scales of certain specified categories of staff. As per instructions of first schedule, (1) the revised pay scales of pay are applicable for all categories of Rly. Servant irrespective of their designation strictly on the basis of existing scale of pay except those who are covered by S-14, which is applicable only to Group-B Officers of Rly. in present scale of Rs. 2375-75-3050-100-3750. Fixation is to be made directly in the revised scale and not in the notional pre-revised scale, (2) the existing classification of Rly. Servants in Group-D,C, B & A on the basis of existing scales of pay will continue in the revised scales till further orders. No change in the classification should be made in the revised scale. Here it is relevant to mention that no category of Su-Overseas Mistri in grade 425-700 (RS)/1400-2300(RPS) was included in the specified category of Annexure-B and as such, the category/post of applicant was to be dealt with as per first schedule of Annexure-A. The scale of 1400-2300 meant for SOM was replaced to the grade of 4500-7000(RSRP). The S.No. 8 of first schedule with regard to scale no. (S-8) the revised scale of SOM was effective from 01.01.96.
I have also seen the concerning and relevant records and I found that athier pay was fixed w.e.f. 01.01.96 in revised scale of pay strictly in accordance with rule made for the purpose. The extract of the said circular is attached herewith as Annexure-A. Subsequently the Rly. Bd. Through circular no. RBE-264/48 issued further instructions in pursuance of previous recommendation of 5th Central Pay Commission granting the revised pay scale to the skilled artisan staff and as well as Mistrys and Master Craftsman. A photocopy of Rly. Bds letter dated 24.11.98 is enclosed herewith. Upon perusal of the same, it would be clearly revealed that the last three grades of skilled artisan Grade-I, Mistrys and Master Craftsman have been modified. The applicants are working as Sub-Overseas Mistry and hence the revised pay scale of 4500-7000 was not enhanced but Rs. 100/- per month was granted in addition to the existing scale of pay, which has already been granted not only to applicants but others also being Sub-Overseas Mistry with a clear stipulation that the remuneration of Rs. 100/- per month will not be counted for any purpose such as determining rates of various allowances and pay fixation on promotion etc. The aforesaid orders have been issued with the approval of Honble President of India.
Apart from above, at a subsequent stage, the Rly. Bd. After making a review with regard to restructuring of certain Group-C&D cadres have decided with the approval of President of India that the Group-C&D categories of staff as indicated in the Annexure to the letter 09.10.03 as enclosed by the applicants as Annexure-1 to OA, should be restructured in accordance with the revised percentage indicated therein through RBE No. 177/2003 (Annexure 1 to OA). Accordingly in terms of latest instructions as contained para 13(a) of the letter said circular Subject to provisions of para 13.2 below, all the posts of Supervisors (Erstwhile Mistries) in grade 4500-7000. Rs. 100/- special allowance (excluding supervisors, P.Way should enblock be upgraded to the post of JE Grade-II in pay scale of Rs. 5000-8000 and merged with the respective cadre of Technical Supervisors with its spread effect in higher grade 5500-9000, 6500-10500 and 7450-11500 as per the revised percentage distribution of posts prescribed for Technical Supervisors in these orders and as such the category of SOM grade of SOM grade 4500-7000 +100/- special allowance was merged with the JE-II in grade 5000-8000 was made applicable and effective w.e.f. 01.11.03 in terms of instructions contained in Rly. Bd. Circular through RBE No. 5/2004 as circulated through letter no. PC-III/2003/CRC/06 dated 06.01.2004, a photocopy of which is enclosed herewith. As per instruction of sub para 1 of para 3 taking into account both the orders and instruction issued therein all the incumbents working as SOM in different units were placed on the panel of JE-II/Works in grade 5000-8000(RSRP) w.e.f. 01.11.03 under cadre restructuring. They have rightly been promoted in grade 5000-8000 (RSRP) w.e.f. 01.11.03 and posted on the same place of working through office order dated 08/16.11.04.
In view of aforesaid facts, reasons and circumstances coupled with the facts and events and eventualities taken place in the matter, it is crystal clear that in terms of instruction as explained above, all the actions have been taken by the official respondents are strictly in accordance with rule and the applicants claim for granting them the grade of Rs. 5000-8000 w.e.f. 01.01.96 is not tenable being based on surmises and conjectures because of the facts that Rly. Bd is rule making body and their circular have statutory force in the eyes of law. All the dues and admissible benefits have already been granted in accordance with the extent rules and their pay have also been fixed by granting them their seniority w.e.f. 01.11.03 i.e. on empanelment as JE-II/Works by applying modified procedure under cadre restructuring. In this way, their claim is rejected.
DA/- As above (R.K. Gupta) Divl. Rly Manager NR/LKO
3. Aggrieved by aforesaid order of rejection, the applicant files another OA No. 580 of 2006. The Tribunal in that OA was of the view that the applicant may be entitled to revise pay scale of 5000-8000 from 01.01.1996 and to consider the anomaly directed respondents to place the case of the applicant before anomaly committee and on the basis of recommendation of the anomaly committee, the appropriate decision should be taken within 6 months. The operative portion of the order dated 10.09.2008 is extracted herein below:
14. We, therefore, direct that the claim of the applicants to have parity with MCM, in that the revised pay scales should be given to them w.e.f. 1.1.96 may be placed before the Anomaly Committee and on the basis of their recommendation, the Respondent No. 1 should take appropriate decision preferable within 6 months from the date of receipt of the representation and a copy of this order. Needless to say that this matter brooks no delay as the recommendations of the next Pay Commission are now under implementation.
4. Thereafter the respondents filed Miscellaneous Application for extension of time for making of compliance of the order and 3 months more time was allowed. Thereafter a contempt petition No. 75 of 2009 was filed for non-compliance of the order in OA No. 580 of 2006. During the pendency of that contempt petition, the impugned order dated 20.07.2009 was communicated to the applicants. By the aforesaid order it has been contended that the tenure of the anomaly committee of 5th CPC was over so it was not possible to place the matter before anomaly committee of 5th CPC. Therefore the authority decided the claim on the basis of own records. The applicant has filed miscellaneous application No. 35 of 2010 in the pending contempt petition. A compliance report has been filed repeating the stand taken in the order dated 20.07.2009. The Tribunal, after considering the compliance report submitted after order dated 31.03.2011 passed by the Tribunal in contempt case dropped the contempt proceedings. The relevant portions of the order contained in Para 12 & 13 are extracted herein below:
12. Nevertheless, the redeeming factor is that in the facts and circumstances of this case the direction of this Tribunal (regarding consideration of the anomaly of the applicants) has been considered by the highest decision making Forum of the Central Government i.e. Ministry of Finance, which would have been the case even if, Anomaly Committee was to recommend such a consideration. Some delay was there but, it does not appear to be deliberate as the correspondence on record shows which involved the Ministry of Finance, Ministry of Railways, Railway Board and DOPT. Besides, an apology has also been tendered for delay. But from the side of the petitioners, it was vehemently emphasized that the respondents should be punished for committing willful contempt. There were indeed some lapses and carelessness on the part of the respondents and their counsel as specifically discussed above in paras 10 and 11. They should be careful in future. But, from the entire facts and circumstances it does not appear that there was any deliberate and willful disobedience of this Tribunals order. In the absence of that we refrain ourselves from taking any action in the light of the observation made in the following case law cited from the side of the respondents:-
(i) (2003) 11 SCC-1 Ashok Paper Kamgar Union Vs. Dharam Godha & Others.
(ii) 1994 SCC (6) 332-Niaz Mohammed Vs. State of Haryana.
13. Finally, therefore, in view of the above, this C.C.P. is struck off and notices stand dismissed.
5. After decision of the contempt petition, the applicant filed writ petition before Honble High Court but the same was disposed of by giving liberty to the applicant to challenge the order dated 20.07.2009 by filing the fresh OA. Thereafter, the OA was filed and the impugned order dated 20.07.2009 sought to be quashed in the present OA by seeking the following relief (s):
i) Issue order or direction quashing the impugned order, dated 20.07.2009, contained in Annexure no. 1 to this original applicant.
ii) issue a order to the respondents to allow the post of Junior Engineer-II (Works) and the pay scale of Rs. 5000-8000 to the applicants w.e.f. 01.01.1996 (instead of 01.11.2003) with all the consequential benefits accordingly viz. payment of arrears on account of difference in salary, pay fixation, fixation of the inter-se seniority of the applicants, w.e.f. their date of initial appointment etc.
iii) any other order or directions, which this Honble Court may deem fit and proper in the circumstances of the case may also be passed in favour of the applicants.
iv) award the cost of the Original Application.
6. By filing supplementary affidavit by the applicant placed on record a copy of order passed in OA No. 1684 of 2000 dated 12.09.2001 which was affirmed by Honble Delhi High Court by order dated 10.08.2010. The order passed in the writ petition was challenged before Honble Supreme Court by filing SLP No. CC 13815 of 2011 but the SLP was also dismissed on the ground of delay. Thereafter the order was implemented vide an order dated 01.1.2011 granting the benefit to the applicants Ram Chandra and others.
7. Reply has been filed by the respondents alleging therein the that impugned order passed is accordance with law and as per recruitment rules as contained in Para 143 of the Indian Railway Establishment Manual (Vol.I) it has been contended that in the advertisement dated 20.1.1990 due to unintentional error and inadvertent mistake the educational qualification for the post of SOM was mentioned as diploma in Civil Engineering from any recognized institution instead of 10+2 with Science and Math. However, as per recruitment rules the minimum qualification to the post of SOM is 10+2 with science and math. Diploma holder in Civil/Mechanical would also be eligible to appear in the said examination. Thereafter, the person having diploma in Civil/Mechanical engineering possessing post of SOM would not be entitled to higher pay scale on the basis of his qualification. The benefit has been given to the applicants w.e.f. 01.11.2003 on the basis of restructuring of the cadre and as such there is no illegality in the impugned order. It was also contended that Master Craftsman are not the feeder cadre of SOM and certain percentage of MCM were given benefit on personal basis. The cadre of MCM is a dying cadre.
8. Rejoinder has also been filed by the applicants and reiterated earlier stand taken in O.A.
9. We have heard Ld. Counsel for the applicant and counsel for the respondents and perused the records.
10. Before proceeding further the impugned order is necessary to be looked into and as such extracted herein below:
GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (Railway Board) NO. PC-V/2008/CC/12/NR New Delhi, dated 20.07.2009 The General Manager, Northern Railway, Baroda House, New Delhi Sub: Order dated 10.09.2008 of Honble CAT/LKO in OA No. 580/2006 (Pradeep Shukla & ors. Vs. UOI & ors.) Ref: N Rilways letter No. 754-E/II/DA/Engg/SOM dated 28.11.2008 In compliance of the directions dated 10.09.2008 of Honble CAT/Lucknow in OA No. 580/2006(Pradeep Shukla & ors. Vs. UOI & ors.) the matter was referred to Ministry of Finance with request to place applicants claim for grant of pay scale of Rs. 5000-8000 to the Overseer Mistries before the Anomaly Committee. Observations of Ministry of Finance are as under:-
The Honble Tribunal has specifically directed for placing the matter before the Anomaly Committee. The grant of higher pay scale of Rs. 5000-8000 to Mistries w.e.f. 1.1.96 pertains to Anomaly Committee formed to resolve the anomalies arising out of the implementations of 5th CPC recommendations, the tenure of which has already been lapsed and now, DOPT have issued directions for setting up of Anomaly Committee to settle the anomalies arising out of the implementation of 6th CPC recommendations. Therefore, DOP&T was requested to advise whether the present case relating to 5th CPC may be referred to the Anomaly Committee for 6th CPC. DOP&T has advised that the mandate of the present Anomaly Committee is to resolve the anomalies arising out of the implementation of 6th CPC recommendations. Therefore, it may not be appropriate to refer the instant court case judgement relating to 5th CPC to the Anomaly Committee constituted for 6th CPC.
2. Keeping in view of the above circumstances, the Ministry of Finance has examined Railway Boards reference made in connection with the case on merits and took note of the factual position relating with case as under:-
i) As per the RRs, the minimum qualification for the post of SOM is 10+2 with Science & Maths. However, Diploma holders in Engineering are also eligible.
ii) The MCM post is not a feeder post of SOM and MCM posts are held by Technician Grade-I on personal basis. The work of MCMs is supervised y JE-II not by SOM.
iii) Mistries and their Supervisory Inspectors were in the same pay scale of Rs. 1400-2300 before 5th CPC. In view of this, the 5th CPC in pare 83.181 and 83.182 had recommended to retain the pay scale of Mistries as Rs. 1400-2300(corresponding to Rs. 4500-7000) and upgraded the pay scale of Inspector (JE-II) to Rs. 1600-2660(corresponding to Rs. 5000-8000). Thus, 5th CPC have resolved the aforementioned anomaly by placing JE-II in higher grade of Rs. 5000-8000 and normal replacement grade for Mistries (Rs. 4500-7000)
iv) The pay scale of Rs. 5000-8000 is available to the promotional post for Mistries i.e. JE-II and accordingly grant of pay scale of Rs. 5000-8000 to Mistries w.e.f. 1.1.96 will again give rise to an anomalous situation placing supervisor (i.e. JE-II) and supervised (i.e. Sub Overseer Mistry) in same pay scale of Rs. 5000-8000.
v) There are several similarly placed categories in Railways in the scale of Rs. 4500-8000 who would then also demand the scale of Rs. 5000-8000.
vi) Further, the recommendations of 5th CPC for grant of pay scale of Rs. 5000-8000 to Diploma Holding Engineers are not applicable for the post of SOM as the minimum qualification for the post of SOM is 10+2 with Science & Maths and not Diploma in Engineering.
3. In view of the above observations in relation to factual position of the case the Ministry of Finance has not found any merit for upgradation of pay scale of Mistries from Rs. 4000-7000 to 5000-8000.
4. It is, therefore, advised that the position mentioned in para 1 to 3 above may please be brought to the notice of Honble Tribunal by way of an MA in consultation with the conducting counsel immediately.
5. Action taken in the matter may please be advised to Boards office.
(N. P. Singh) Deputy Director, Pay Commission-V Railway Board.
11. The normal channel of the promotion of permanent staff in Civil Engineering is covered by recruitment rules and the same are extracted herein below:
2.05. That element of Direct Recruitment was later introduced in the category of Mistries in different streams of Civil Engineering i.e. Permanent Way and Works (as contained in Paragraph 143 & 144 of the Indian Railway Establishment Manual, Volume-1 (1989 Edition) as under:
V. CIVIL ENGINEERING DEPARTMENT
(i) PERMANENT WAY MISTRY
143. (1) The posts in the category of Supervisor (Permanent Way) in the pay scale of Rs. 1400-2300 will be filled as under:-
i. -50 % by direct recruitment through Railway Recruitment Boards: and
ii. -50% by promotion by seniority cum suitability through a written suitability test.
(2) Qualification etc. for direct recruitment are as under :
(i) Educational : (10+2) with Science and Maths. Diploma holders in Civil/Mechanical/Electrical Engineering also be eligible.
(ii)Age : Between 18 and 20 Years.
(iii) Training & Stipend : They will be on training for a period upto one year on a stipend of Rs. 1400/-
(3) Channel of Promotion/Higher grades : They are eligible for promotion by selection to the post of PW-I scale Rs. 1400-2300/- and further as per para- 143.
Note: Outlay direct recruitment quota of 50% of the Vacancies 25% will be filled through a limited Deptt. Examination from amongst gangman and keyman who have the Qualification of 10+2 with Science and Maths and have put in a minimum of three years regular service shortfall, if any, against the limited Departmental examination will be added to direct Recruitment quota. This will be on experimental basis upto 30-9-90.
(ii) PERMANENT WAY INSPECTOR (PWI)
144. (1) The vacancies in the category of Permanent Way Inspector Grade III in scale Rs. 1400-2300 will be filled as under :
(i) 66-2/3% by direct recruitment through Railway Recruitment Boards; and
(ii) 33-?% by promotion by selection of Permanent Way Mistries in the pay scale of Rs. 1400-2300.
(2) Qualification etc. direct recruitment are as under:-
(i) Educational :- Diploma in Civil or Mechanical or Electrical Engineering.
Note:- If enough candidates with qualification of Diploma Civil Engineering become available the recruitment could be confined to them.
(ii) Age:- Between 18-28 years.
(iii) Training & Stipend: Training one year, Stipend Rs. 1400.
(3) Channel of Promotion/Higher grades: The following higher grade posts are available to the category in the normal channel of promotion by selection or non-selection, as the case may be.
PERMANENT PAY INSPECTOR GR. II (1600-2660) I PERMANENT WAY INSPECTOR GR.I (2000-3200) I CHIEF PERMANENT WAY INSPECTOR I (2375-3500) E(ng)ii-84 rc 2/39 DT. 20.03.85 & pc-iii-84wp 4/3 DT. 1.5.85 (4) 20% of the vacancies in the grade of PWI Grade I (2000-3200) will be filled by direct recruitment through the Railway Recruitment Boards as under:-
(i) Educational Qualification : Degree in Civil Engineering.
(ii) Age : Between 20 and 30 years.
(iii) Training : Upto one year.
(iv) Stipend : Rs. 2000.
12. The relevant recommendations made by 5th CPC for engineering services as contained in para 50.23 and 50.24 and accepted by the Central Government are as under:
50.23 We have carefully considered the demands of the Federation and the views of the administrative Ministries/Departments in the light of our general approach on the pay scales of different professional/technical groups of staff and existing relativities between technical and non-technical categories. We have, as a general rule, decided to improve the initial recruitment pay scale of diploma engineers in government. We, accordingly, recommend following pay structure for engineers subordinate cadres:-
Existing Proposed (in present terms) (Rs.) (Rs.) 1400-2300 1600-2660 1600-2660* 1640-2900 1640-2900* 1640-2900 2000-3200* 2000-3500 2000-3500 2000-3500 2375-3500 2375-3750 2375-3750 2500-4000 *Some of these are graduates in engineering, others are diploma holders.
50.24 These pay scales will apply mutatis-mutandis for diploma engineers in different cadres depending upon the availability of specific existing pay scales. We have also recommended specific pay structure for different engineering cadres.
13. Perusal of Recruitment Rules reveals that the educational qualification for direct recruitment against the post of SOM is 10+2 with science and maths. The Diploma holder in Civil /Mechanical/Electrical Engineering will also be eligible.
14. It is not in dispute that 5th CPC recommended upgradation of that post, which is filled by diploma holder being the minimum qualification. It is also not in dispute that recommendation has been accepted by the Central Government. The benefit of the same has been granted to all the post which requires recruitment on the basis of educational qualification of diploma by the holder of the post in pursuance of recruitment rules. In the case of the applicant the benefit of upgradation on the basis of the holding diploma has not been extended on the ground that recruitment rules requires the minimum qualification 10+2 and not diploma though the diploma holder were also eligible for seeking appointment to the post of SOM. It is not in dispute that the applicants were appointed as direct recruittee for the post of SOM and they are holding diploma in civil engineering.
15. A decision has been taken by the department to restructure the cadre of Group C & D by RBE No. 177/2003. Para 13(a) Subject to provisions of Para-13.2 below, all the posts of Supervisors (erstwhile Mistries) in grade Rs. 4500-7000+Rs. 100 Special Allowance (excluding Supervisors (P.Way) should en block upgraded to the posts of Junior Engineer Gr.II in the pay scale of Rs. 5000-8000 by merger of cadre of SOM with JE Gr. II.
16. It is not in dispute that the applicants were working in pay scale of 1400-2300 , the normal replacement pay scale in the 5th CPC is 4500-7000. The applicants are not granted the benefit of upgradation in the 5th CPC. Therefore they granted 100/- special allowance but later on the department has taken a decision that the post of SOM be merged in the promotional post of mistries i.e. J.E.-II and consequently the mistries were granted the benefit of upgradation after re-structuring.
17. The applicant also claimed the benefit on the ground that MCM were given pay scale of 5000-8000 who are in comparison of Mistries (SOM) is lower post and MCM are being supervised by the SOM but their pay scale is lesser to MCM.
18. It is not in dispute that the post of MCM is from the stream of artisans. The artisans become MCM by way of promotion from Skilled Gr.I as is evident from RBE No.34/86. The introduction of the post of MCM in the artisan category in scale of 425-640 is also the outcome of aforesaid RBE No.34/86. The copy of RBE is extracted herein below:R.B.E. No. 34/86
Subject: Introduction of Master Craftsman scale Rs. 425-640 in Artisan Category.
No. PCIII/82/PS-3/10, dated 14.02.21986 Pursuant to the recommendations of the Third Pay Commission contained in Para 16, Chapter XIX, Vol.I, the Department of Railways have decided with the Presidents approval to introduce the category of Master Craftsmen in the artisan category in the scale Rs. 425-640. The sanction of the Department for these posts will be subject to the following conditions:
(i) The posts of Master Craftsmen scale Rs. 425-640 to the extant of 10%(Ten per cent) of the posts of Skilled Grade I Rs. 380-560 will be created by converting an equal number of posts of skilled Grade I Rs. 380-560. The number of such posts shall not exceed 5% (Five per cent) of the posts of Skilled artisans Grade I, Grade II & Grade III in the category of Electrical Signal Maintenance and 3% (Three per cent) of such posts in other artisan categories.
(ii) The posts of Master Craftsmen scale Rs. 425-640 will be available for promotion to employees working in Skilled Grade I Rs. 380-560 who have completed ten years of continuous service in the same or allied trade in the Skilled Grade I, II & III inclusive of a period of at least three years service in Skilled Grade I Rs. 380-560.
(iii) The scale of Rs. 425-640 as Master Craftsmen will be personel to the incumbent. In other words, the post held by a Master Craftsman will revert to the scale of Skilled Grade I Rs. 380-560 with the retirement of/or otherwise vacation of the post by the individual incumbent.
(iv) The posts of Master Craftsmen will, in partial modification of the prescribed Trade Test procedure, be filled on the basis of suitability for the post being specifically adjudged by a Departmental Committee consisting of three Officers of whom two will be Technical Officers not lower than Senior Scale; a departure from this level of the Technical Officers constituting the Departmental Committee may be made on the personal orders of the Principal Head of Department concerned in cases where such level of Officers is not available and in such cases the Technical Officers may be in Junior Scale/Group B (Class II). The said committee should keep before them the following criteris while determining the suitability of the candidates for promotion as Master Craftsmen in scale Rs. 425-640:
(a) The standard of Craftsmanship will be judged on the basis of persistent attainment of a very high skill, covering both the quality of Craftsmanship and time for creation over a length of period rather than a single achievement.
(b) Work attributed to the person recommended for the job and designation of Master Craftsman shall be available to the extent possible for Inspection by the Members of the Departmental Committee.
(v) In case the requisite number of persons do not qualify for promotion as Master Craftsmen (in terms of (ii) & (iv) above), the posts of Master Craftsman created in terms of (i) which can therefore, not be operated will be operated in Skilled Grade I till such time as persons to qualify.
2. The employees who are duly selected and appointed to the post of Master Craftsman Rs. 425-640 will have their pay fixed in the higher scale under Rule 2018B (FR-22C) on Proforma basis from 1.1.84 and current payments from 1.1.86. This provision of Proforma fixation/current payments will, however, apply only to the first incumbents of the specific posts sanctioned vide para (i) above. Further, even in such cases, the benefit will be given from 1.1.1984 (Proforma) and 1.1.86 (actual) OR from the date from which he employee became eligible in terms of para 1 (ii) above whichever is later.
3. After creation of posts of Master Craftsmen, the Railway Administrations should take appropriate action to ensure that the work of Master Craftsman is supervised by Chargeman/Technical Supervisor only in scale Rs. 425-700 and above.
4. In partial amendment of the Boards letter No. PCIII/73/WS/Incentive Bonus dated 24.6.1978, the hourly rate of Incentive Bonus for Master Craftsman who will be utilized in Workshops and Production Units under the Incentive Scheme, will be 195 paise (one hundred and ninty five paise). This will be payable only as and from the date of actual promotion and not from 1.1.1986 or 1.1.1984.
5. The existing rules and orders in regard to reservation for SC/ST will apply in this case also.
6. The basic functions, duties and responsibilities attached to the posts of Skilled Grade I promoted as Master Craftsman will continue to which may be added such other duties and responsibilities as are considered appropriate.
7. The Board desire that restructuring of posts and posting of staff after due process of adjudgement of suitability as provided in this order should be completed expeditiously.
8. The Railway will carefully assess the requirement of funds on account of this restructuring for the year 1986-87 and include them in the Budget Estimates for 1986-87 by telegraphic advice to Addl. Director, Finance (B), Railway Board.
19. The benefit granted to the employees or artisan category/cadre on personal basis to certain percentage of artisans in Skilled grade-I . The MCM were given the benefit of up gradation. The scale given to them was made personal to the incumbent and post held by MCM will revert to the scale of skilled grade-I on retirement or otherwise vacation to the post by incumbent or if remained unfilled. The MCM are being supervised by charge man/Technical supervisor in the scale of 425-700 and above and not by mistries/SOM. So far the benefit of MCM is concerned that benefit is purely personal benefit to a particular cadre and the same has not been extended on the basis of recommendation of 5th CPC but by a separate policy decision which cannot be applied in the case of the applicant.
20. The SOM/PWA is in different cadre. They are appointed on direct recruitment basis or by way of promotion as contained in aforesaid Rule 143. The next promotional post for SOM/PWM is Permanent Way Inspector (PWI) as contained in Rule 143(3). PWI may be appointed on direct recruitment basis and also by way of promotion of PWM/SOM as contained in aforesaid Rue 144. The pay scale of SOM/PWM is similar to pay scale of PWI Grade III. However the minimum educational qualification for entry level of PWI Gr.III is Diploma in Civil or Mechanical or Electrical Engineering. The next promotion of PWI Gr.III is PWI Gr.II in pay scale of 1600-2660 (Corresponding to 5000-8000 in 5th CPC)
21. A litigation was taken place before Principal Bench of this Tribunal having OA No. 1684/2000 which was decided on 12.10.2001. The Tribunal in that case granted the benefit of same pay scale equal to Technician or Mistries holding diploma in Civil Engineering, to MCM in the light of recommendations of 3rd CPC w.e.f. the date of commencement of 4th CPC. The pay scale granted after upgraded to MCM was 425-640 which was corresponding to Rs. 1400-2300 in 4th CPC and benefit of that had been granted from the 1.1.1986. In this judgment the diploma holding personnel placed in 4th CPC in the pay scale of Rs. 1400-2300. On that basis the applicants of the present OA are claiming that after ignoring the restructuring of the cadre the applicants should be given the benefit of recommendation of 5th CPC for employees of Engineering Service holding diploma w.e.f. 1.1.1996.
22. The post which are to be filled by diploma holder i.e. the post which requires minimum qualification of diploma were upgraded by placing them in the pay scale of Rs. 5000-8000. The benefit has not been extended to the applicants due to reason that the post of SOM requires minimum educational qualification of 10+2 and not Diploma.
23. It is also a fact that some of the applicants appeared in recruitment for SOM in pursuance of an advertisement issued for selection on 20.01.1989. It is also true that the respondents in the counter reply admitted that in the advertisement issued for selection of the applicants on 20.01.1989 for the post of SOM/Supervisor (Works) the educational qualification required was diploma and not 10+2 (paragraph 2.9 of the counter reply) and only those holding diploma in Civil/Mechanical Engineering were allowed to participate. It has been contended that if it was inadvertently mentioned as stated by respondents in the advertisement it cannot be said to contrary to the recruitment rules because diploma in Civil Engineering is also one of the qualifications for the post of SOM.
24. The contention of the respondents in this regard is that the advertisement not against the rules of recruitment will not be sufficient to grant the benefit of recommendation of 5th CPC because the post which requires the minimum educational qualification of the diploma were upgraded and in recruitment rules for SOM minimum qualification is of 10+2 . The applicants cannot be placed in the category of those posts of engineering services which are to be filed by direct recruitment having minimum qualification of diploma.
25. It is not in dispute that the applicants when inducted in the service, they were in the pay scale of Rs. 1400-2300. It is also not in dispute that the promotional post for available to the applicants is PWI Gr.III in the same pay scale and then PWI Gr.II in the pay scale of 1600-2660 equal to pay scale of JE-II in the pay scale of 1600-2660 of which normal replacement scale is of Rs. 5000-8000. It is a fact that the minimum educational requirement to appear in the recruitment for the post held by the applicant as SOM was 10+2, however diploma holder have also allowed to appear in the examination and is not least qualification for the post. Therefore, the respondent rightly granted the benefit of pay scale of 5000-8000 to the applicant after restructuring of cadre and after merging the post held by the applicants to the post of JE Gr II. There could not be two scales for one post.
26. Hence, in view of the above, we are of the firm view that original application has no merits and is accordingly dismissed. However there shall be no order as to costs.
(O.P.S. Malik) (Justice V.C. Gupta)
Administrative Member Judicial Member
JNS
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