Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 2175 (DEL)

AVTAR SINGH v. UOI

2006-11-24

MANMOHAN SARIN, VIPIN SANGHI

body2006
VIPIN SANGHI, J. ( 1 ) BY this petition under Article 226 of the Constitution of India, the petitioner challenges order dated 12. 10. 2006, passed by the Principal Bench of the Central Administrative Tribunal (the Tribunal) in OA No. 2080/2006. By the said order, the Tribunal dismissed the Original Application preferred by the petitioner denying his claim for promotion to the post of Senior Flight Engineer (SFE) and also denying his claim for flying pay @ Rs. 7,000/- p. m. ( 2 ) THE petitioner joined the Indian Air Force in 1967. He came to aviation Research Centre (ARC) on deputation in 1989, while he was serving as warrant Officer in the Indian Air Force. On 9. 7. 1991, he was absorbed as a junior Flight Engineer (JFE) a class 'a' post in ARC and so he resigned from the air Force. Petitioner states he served as a JFE with sincerity. In August, 1996 he represented to the respondents against his being given flying pay @ Rs. 900/-p. m. (pre-revised), which as revised to Rs. 5,500/- p. m. instead of Rs. 1,200 p. m. (pre-revised), which stands revised to Rs. 7,000/- p. m. in May, 2005. He further represented to the respondents that he be promoted to the post of SFE by claiming that he fulfilled the required eligibility criteria. The representations of the petitioner were rejected by the respondents in September, 2004 Petitioner sought review of the decision of the respondents in November, 2004, which was again rejected by the respondents in July, 2006. The respondents sent a further communication dated 22nd August, 2006 wherein, they stated:-"2]. the case was taken up with Cab. Sectt. and DOP and T. They have opined, that a amendment would be needed to the existing RRs for the post of SFE, so as to provide career progression from JFE for those who joined ARC on re-employment before attaining the age of superannuation. Therefore, a case would be taken up with the 6th Pay Commission depending upon the recommendations of the Cadre review Committee. 3]. With regard to enhancement of flying pay ; Cab. Sectt. have turned down the case after deliberations with the DOPandt. The deliberations state that the yardstick governing the quantum of flying allowance is the post held by the individual and not the pay scale. 3]. With regard to enhancement of flying pay ; Cab. Sectt. have turned down the case after deliberations with the DOPandt. The deliberations state that the yardstick governing the quantum of flying allowance is the post held by the individual and not the pay scale. No privileges related to status of the higher post will be applicable in the event of financial upgradation in the grade of higher post. " ( 3 ) THEREAFTER, petitioner preferred Original Application No. 2080/2006 before the Tribunal which was dismissed by the order impugned before us. Before the Tribunal, the petitioner primarily sought the relief of quashing of the aforesaid communication dated 22nd August, 2006 of the respondents and a direction to the respondents to amend the existing Recruitment Rules for promotion of the petitioner to the post of SFE and also sought compensation from the respondents. ( 4 ) THE Tribunal took note of the fact that the petitioner had been granted the first financial upgradation under the ACP Scheme. From the letter dated 22nd August, 2006 of the respondents, it was clear that at present under the Recruitment Rules there was no provision for promotion from the post of JFE to post of SFE. Petitioner placed reliance on the decision of the Hon'ble supreme Court in State of Tripura and Ors. Vs. K. K. Roy AIR 2004 SC 1249 wherein, the Supreme Court held that every employee should have an avenue of promotion to a higher post and that such a right cannot be waived and there can be no estoppel pleaded against the employee to deny the right to be considered for promotion. However, the said judgment itself took note of the fact that to ameliorate the situation where employees were not having sufficient promotional avenues the Assured Career Progression Schemes had been introduced. Consequently, the Tribunal distinguished the said decision since petitioner had admittedly been given the first upgradation under the ACP Scheme and therefore it could not be said that the petitioner had been deprived of his legitimate due or expectation. In view of the communication dated 22nd August, 2006, the tribunal held that the matter regarding amendment of the Recruitment Rules was pending consideration and that no final decision had been arrived at and consequently it was pre-mature to deal with the petitioner's grievance. In view of the communication dated 22nd August, 2006, the tribunal held that the matter regarding amendment of the Recruitment Rules was pending consideration and that no final decision had been arrived at and consequently it was pre-mature to deal with the petitioner's grievance. ( 5 ) LEARNED counsel for the petitioner contends that petitioner has not received even a single penny under the garb of ACP. He submits that the pay scale of a JFE was Rs. 10,500-15,200/- and when the so called financial upgradation was granted to him under the ACP Scheme he was already drawing rs. 12975/- as a JFE. The scale of a SFE begins from Rs. 12,000/- only. As such, he was already drawing salary higher than the minimum of the pay scale of SFE. ( 6 ) LEARNED counsel for the petitioner submits that the JFEs who are employed on deputation from Air Force are discriminated against vis-a-vis those, who are directly recruited. The Recruitment Rules, which had been framed in 1977, do not provide and cater to the legitimate needs of the petitioner, who was employed in 1991. No heed has been paid to the several representations of the petitioner. On the issue of flying pay he states that the pay scale of a jfe in ARC is almost the same as that of a Sqn. Ldr. in the Air Force and since the Sqn. Ldr. in the Air Force get flying pay of Rs. 7,000/- P. M. , the JFE in arc should also get the same. ( 7 ) ON the other hand, Mr. Bhardwaj learned counsel for the respondents submits that non accruing of immediate pecuniary benefit does not mean that ACP has not been granted to the petitioner. He admits that under the recruitment Rules as they exist there is no promotional avenue provided for jfes, who joined from Air Force on deputation and are not direct recruits and are absorbed at the Aviation Research Centre. He also places reliance on 'state of Tripura Vs. K. K. Roy' reported at AIR 2004 Supreme Court 1249 to state that the Assured Career Promotion Scheme was introduced, based on the recommendation of the Pay Commission to cater to situations where promotional avenues are not available. In such cases, a higher scale of pay can be given upon completion of 12 years and another after 24 years, and this would be reasonable. In such cases, a higher scale of pay can be given upon completion of 12 years and another after 24 years, and this would be reasonable. ( 8 ) HE states that the petitioner is not right in contending that he did not get any real benefit by the financial upgradation, merely because the said upgradation did not result in an immediate increase in his pay. The petitioner would be getting his future increments based on the rate of increment applicable to the higher promotional scale. Perhaps petitioner should have got additional increment under the ACP scheme upon being granted the higher scale, but that is not the challenge in the present proceeding. However, in the interest of justice appropriate direction in this regard can be given. ( 9 ) MR. Bhardwaj by referring to the petitioner's representation dated 6th May, 2004 also urged that under the Recruitment Rules in existence for the time being in force, for promotion to the post of SFE, the candidate should have a license issued by the Director General, Civil Aviation (DGCA ). He further submits that the petitioner not being a directly recruited JFE and not possessing a license issued by the DGCA, could not be considered for promotion as claimed by him. ( 10 ) ON the issue of flying pay, the Respondents contend that this is not a case of equal pay for equal work since the flying pay is linked to the post held by the individual and not to the pay scale. ( 11 ) LEARNED counsel for the petitioner does not deny that the petitioner does not possess the DGCA qualification and licence. He rather submits that his experience more than compensates for the lack of DGCA qualifications. ( 12 ) HAVING heard the parties, we are not inclined to interfere with the order of the Tribunal, but with a direction to the Respondents as stated hereinafter. He rather submits that his experience more than compensates for the lack of DGCA qualifications. ( 12 ) HAVING heard the parties, we are not inclined to interfere with the order of the Tribunal, but with a direction to the Respondents as stated hereinafter. Though the petitioner may be right in contending that the recruitment Rules of 1977 for the post of SFE do not cater to the situation where JFE's get appointed from the Air Force before their superannuation, and he has been denied any promotional avenue, the Petitioner cannot have a valid grievance, firstly, because he has been granted the first financial upgradation under the ACP Scheme upon completion of 12 years of service and, secondly, because the aspect of amendment of the Recruitment Rules would be taken up with the 6th Pay Commission depending upon the recommendation of the Cadre Review committee. The Court would not issue a direction that the Recruitment Rules be amended, and that too in a particular way. We do not agree that the petitioners experience can be substituted for the requirement of a licence from the DGCA in the existing Recruitment Rules for the post of SFE. There is no discrimination between the JFEs who came on deputation from the Air Force and got subsequently absorbed in ARC (like the petitioner) and those who were directly recruited as jfes in ARC having a DGCA licence. These are two different streams and constitute different classes. Merely because the Recruitment Rules for the post of SFE prescribe as one of the requirement, the possession of a licence from dgca, it cannot be said that the Recruitment Rules are discriminatory. Nothing prevented the petitioner from taking steps to obtain the said licence from DGCA. ( 13 ) SO far as the aspect of Flying Pay is concerned, the petitioner cannot claim parity with the flying pay admissible to Sqn. Ldr. of the Air force, since they are different posts, in different organisations, with different set of responsibilities and different status. Consequently, we uphold the impugned order of the Tribunal and dismiss this petition. ( 14 ) IT appears that the petitioner should have got higher pay fixation upon being granted the higher pay scale under the ACP Scheme which is also not disputed by the Respondents. Consequently, we uphold the impugned order of the Tribunal and dismiss this petition. ( 14 ) IT appears that the petitioner should have got higher pay fixation upon being granted the higher pay scale under the ACP Scheme which is also not disputed by the Respondents. We direct the respondents to consider this aspect of the matter within one month and to inform the petitioner of the result of the said consideration. In case, it is found that his pay fixation after grant of ACP Scheme benefit was less than what he was legally entitled to, the respondents shall pay the arrears to the petitioner within two months and shall henceforth pay to the petitioner his salary at the refixed rate. ( 15 ) SUBJECT to the aforesaid direction, this writ petition is dismissed leaving the parties to bear their respective costs.