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2008 DIGILAW 149 (GAU)

Ajoy Kumar Swami v. Union of India

2008-02-22

ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. These two writ petitions have been filed against the communication made by the senior. Dr. Accountant General (P&F), Office of the Accountant General (P&E), Assam, Maidamgaon, Beltola (Respondent No. 4 in both the writ petitions) on 24.5.2006, whereby and whereupon the pension cases of 16 writ Petitioners in all have been returned to the Director of Sports and Youth Welfare, Government of Assam (Respondent No. 3) directing to refix their basic pay as Rs.360 as on 1.1.1973, requesting not to submit any more Pension case of National Discipline Scheme Instructors without checking of the pay of 1.1.1973. 2. The contentions raised and the relief sought for being the same, both the writ petitions have been heard together and disposed of by this common judgment. 3. Background facts in a nutshell are as follows: The writ Petitioners herein have claimed their basic pay which have been fixed at Rs.380 as on 1.1.1973 in pursuance to the judgment and order passed by the Apex Court reported in Union of India and Anr. v. R.G. Kashikar and Anr. (1986) 1 SCC 458 . The same thus cannot be curtailed since they were enjoying their basic pay fixed at Rs.380 as on 1.1.1973 which is in consonance with the primary teachers of Kendriya Vidyalaya Sangathan and Railway Schools all over India. By the impugned communication their basic pay cannot be fixed at Rs.360 in violation of the order of the Apex Court and the subsequent communication dated 19.5.1986 made thereon by the Central Government. 4. The controversy raised in the pleadings relates back to the year 1954 when the National Discipline Scheme ('NDS') was introduced by the Ministry of Rehabilitation, Government of India for instilling discipline and imparting training in mass drill among the younger generation in the refugee camps and colonies. The said NDS Scheme was transferred to the Ministry of Education, Government of India in the year 1958. In the year 1963 NDS Scheme was renamed as National Fitness Corps ('NFC'). 5. The Petitioners were recruited as trainee Instructors to the said Programme and they were appointed in High Schools as NDS Instructor (Junior Grade-II) in Assam on completion of the scheduled training and accordingly they joined in the service in the scale of pay of Rs.95-3-131-EB-4-155. Thereafter in the year 1971 the Petitioners were upgraded to NDS Instructor (Jr. 5. The Petitioners were recruited as trainee Instructors to the said Programme and they were appointed in High Schools as NDS Instructor (Junior Grade-II) in Assam on completion of the scheduled training and accordingly they joined in the service in the scale of pay of Rs.95-3-131-EB-4-155. Thereafter in the year 1971 the Petitioners were upgraded to NDS Instructor (Jr. Grade-I) in the scale of Rs.110-4-150-EB-4-170-5-180-EB-5-200 with effect from 1.3.1971 and they were treated as an employee of the Central Government. The proposal of transfer of the establishment of NFC to the administrative control of the State Governments was made as far back as in the year 1965 bit the actual transfer of the services of the Petitioners to the State of Assam took place vide Notification dated 17.9.1973. Accordingly, they have joined and absorbed in the state service and they became employees of the State of Assam with effect from 1.10.1973. During this period revisions of pay scales on the recommendations of the 3rd pay commission made in respect of employees of the Central Government, but the revision of pay scales of Instructors on the establishment of the National Fitness Corps were not made by the Central Government which resulted in filing writ petitions by some of the Instructors of the State of Karnataka before the Karnataka High Court ventilating their grievances of denying the revision of pay scales, the benefit of which was given to the similarly situated employees of the Central Government. 6. The High Court of Karnataka extended the benefit of the revision of pay scales from 1st January, 1967 to 1st January, 1973 to the Instructor Grade-II in the National Fitness Corps as accorded to all other Central Government employees against which the Union of India went to the Apex Court by a special leave petition. The Apex Court vide its judgment dated 20.12.1985 dismissed the special leave petition by affirming the judgment of the High Court of Karnataka holding that the Instructors are entitled to get the benefit of revision of pay scales as accorded to the other employees of the Central Government, denial of which would tantamount to violation of Articles 14 and 16 of the Constitution of India. 7. 7. The special leave petition filed by the Union of India before the Apex Court being dismissed, the Ministry of Human Resources Development Department of Youth Affairs and Sports, New Delhi issued a communication on 19.5.1986 to the Education Secretaries of all the states throughout India including the concerned department dealing with the cases of erstwhile National Fitness Corps the decision of the Central Government that the following revised pay scales be extended to the NDS Instructors who have been absorbed in the State Service: Sl. No. Old scale of pay Revised pay scale Date from which the benefit is to be given 1. 110-200 118-225 1.1.67 2. 110-225 118-270 21.12.67 3. 118-270 125-330 27.5.70 4. 125-330 165-330 1.9.72 5. 165-330 330-560 1.1.73 The said communication further directed that it has the sanction of the President to the grant of the revised pay scales as mentioned hereinabove to the NDS Instructors absorbed in the State Service and also to the payment of arrears resulting the fixation of their pay in the revised scale with effect from 1.1.1967, 21.12.1967, 27.5.1970, 1.9.1972 and 1.1.1973 till the date of their absorption in the State Service. It has further conveyed that after fixation of pay in the scale of 330-560 with effect from 1.1.1973 and grant of increment upto the date of their absorption in the State Services, pay of each NDS Instructors would work out to be much more than what he/she was drawing in the pre-revised scale on the date of absorption. Re-fixation of pay in the state scale on the basis of revised pay drawn by each NDS Instructors on the date of absorption would be done by the State Governments in consultation with the Central Government. Concluding paragraphs of the said communication summarized as follows- Accordingly you are requested to- (i) Get the arrears resulting from grant of revised pay scales (as mentioned in paragraph 2 above) calculated up to the date of their absorption in State Service, get them verified from the Accountant General concerned and get the total amount of arrears intimated to this department so as to enable the Central Government to allocate additional funds to the State Government. This may kindly be got done by 31st July, 1986. This may kindly be got done by 31st July, 1986. While calculating the arrears it may kindly be ensured that payment of arrears of additional dearness allowance sanctioned and paid to them from 1.5.1973 till the date of absorption is also taken into account. It may also be made clear in the order or re-fixation of pay that any excess payment, if any, made erroneously would be recoverable from them. (ii) Send a few sample cases of refixation of pay in the State scale on the basis of the pay drawn by them in the revised Central scale on the date of absorption for verification. It would be better if these cases are sent after getting verified from the Accountant General concerned. It may kindly be ensured that the NDS Instructors get the revised pay in the State scale from the date of absorption only after re-fixation has been approved by the Central Government. (emphasis supplied). The communication was issued with the approval of the Finance Unit vide their DO. No. 1713-86-FU dated 15.5.1986. Copies of the communication was sent to all the concerned departments including the Accountant General in all concerned states. 8. The Union of India, Ministry of Human Resource Development (Department of Youth Affairs and Sports), New Delhi issued another communication on 16.12.1986 in continuation of earlier communication dated 19.5.1986 enclosing various letters issued by the Kendriya Vidyalaya Sangathan, New Delhi whereby the re-fixation of revised scale of pay of Rs.330-560 of Primary teachers was fixed with effect from 1.1.1973 reiterating the stand of the Central Government as disclosed in the earlier communication. Thereafter another communication dated 19.4.1988 was issued by the Central Government referring the earlier communication dated 16.12.1986 forwarding & copy of the Kendriya Vidyalaya Sangathan letter No. 19-1/75-KVs (pay-section) dated 15.10.1975 wherein the pay scale of Rs.330-560, as mentioned earlier dated 16.12.1986, EB be read between Rs.350 and Rs.380. The communication dated 15.10.1975 issued by Kendriya Vidyalaya Sangathan relates to pay fixation of Principals and teaching staff in the Revised Pay Scale recommended by the third pay commission and drawal of consequent arrears. 9. In the meantime the Department of Sports and Youth Welfare, Government of Assam had sent to Respondent No. 4, the pension papers and service books of its NDS Instructors for finalization of their pensions. On receipts of the pension papers etc. 9. In the meantime the Department of Sports and Youth Welfare, Government of Assam had sent to Respondent No. 4, the pension papers and service books of its NDS Instructors for finalization of their pensions. On receipts of the pension papers etc. the Accountant General (A&E), Assam the Respondent No. 4 issued a communication on 25.11.2005 to the Director of Sports and Youth Welfare, Assam the Respondent No. 3, conveying the decision that on scrutiny, it was revealed that the basic scale of pay was refixed on 1.1.1973 @ 380 instead of Rs.360, thus requested to amend the fixation in the service book as Rs.360. The service books were returned with the observation as indicated above with further request to resubmit the same after complying with the observation. 10. In reply to the above communication, the Respondent No. 3 had sent a response on 10.4.2006 indicating the judgment of the Apex Court whereby accorded pay benefit to the "Ex-NDS Instructors all over the country in line with the pay benefits accorded to the different categories of the employees of the Central Schools since its inception in the year 1967 and therefore spelt out that the Ex-NDS Instructors working under the Central Government revised their scale of pay from time to time vide their letter Nos. (I) F-10-2/70 KVS(SP) dated 13.10.1970, (2) 18-184/74-KVS(SS) dated 10.9.1975 and (3) 19-1-75-KVS(PS) dated 15.10.1975. As the employees working in the Central Schools are enjoying pay benefits like other Central Government employees and hence Government of India decided to bring those employees under the purview of the 3rd Central Pay Commission with effect from 1.1.1973. Accordingly, the KVS directed the Central Schools authorities to refix the pay of each employee as per 3rd Central pay commission vide letter No. 19-1/750/KVS(PS) dated 15.10.1975. When the question of re-fixation of scale of pay of NDS Instructors arose, Government of India had decided to accord pay benefit as per instructions in the KVS's letter No. referred to. Accordingly, the KVS directed the Central Schools authorities to refix the pay of each employee as per 3rd Central pay commission vide letter No. 19-1/750/KVS(PS) dated 15.10.1975. When the question of re-fixation of scale of pay of NDS Instructors arose, Government of India had decided to accord pay benefit as per instructions in the KVS's letter No. referred to. Accordingly, the pay of NDS Instructors of the States were refixed at Rs.165 on 1.3.1971 with DNI on 1/3/1972 in the scale of pay of Rs.165-360 P.M. In the meantime, Government of India accepted the report of the 3rd Code of Civil Procedure and had accorded pay benefits to the NDS Instructors in the scale of pay of Rs.3,30,650 P.M. fixing at 330 as minimum basic pay on 1.1.1973 with DNI on 1.3.1973 vide KVS's letter No. 19-1/75-KVS(PS) dated 15.10.1975." The said communication has further spelt out that the "services of Ex- NDS Instructors were brought under the State Government with effect from 1.10.1973 and accordingly the fixation of pay of these categories of employees were duly checked at every level of this Directorate as well as Govt. of Assam, in the Department of Sports & Youth Welfare and Finance Department before sanctioning the required fund for payment of arrear pay and allowances vide Government letter No. SYW, 176/95/77 dated 10.2.1997." However, it was further made clear that since the KVS letter dated 15.10.1975 was not available in the record the Respondent No. 4 has been requested to "refer the fixation of pay of Ex-NDS Instructors at Rs.380 in the State of Karnataka on the basis of due and drawn statement (enclosed) and the arrear statement (enclosed) of NDS Instructors of the State of West Bengal in order to substantiate the Fixation of pay at Rs.380 of the NDS Instructors of the State of Assam", requesting the Respondent No. 4 to fix Rs.3S0 as their basic pay as on 1.1.1973 in the scale of pay of Rs.3,30,650 RM. and hence returned the service books of Ex-NDS for resettlement of pensionary benefits. 11. The Respondent No. 4 on receipt of the communication dated 10.4.2006 from the Respondent No. 3 issued a communication on 14.5.2006 requesting to fix pay of NDS Instructors at Rs.360 as their basic pay on 1.1.1973 and to regulate the pay accordingly. and hence returned the service books of Ex-NDS for resettlement of pensionary benefits. 11. The Respondent No. 4 on receipt of the communication dated 10.4.2006 from the Respondent No. 3 issued a communication on 14.5.2006 requesting to fix pay of NDS Instructors at Rs.360 as their basic pay on 1.1.1973 and to regulate the pay accordingly. By the said communication it has further been requested not to submit any more pension case of NDS Instructors without checking of the pay of 1.1.1973 and accordingly returned the pension case for refixation. The said communication dated 24.5.2006 is under challenge in both the writ petitions. 12. In support of the pleadings in W.P(C) No. 3978 of 2006 Mr. B. Banerjee, advocate and in W.P(C) No. 5090 of 2006 Mr. K.K. Mahanta senior advocate assisted by Mr. K. Konwar, advocate initially referred the decision rendered by the Apex Court in (1986) 1 SCC 458 (supra), more particularly, paragraph 8 of the judgment and contended that there being no rational basis for depriving the Petitioners from the benefit of revision of pay scales as on 1.1.1973 as has been accorded to the employees of the Central Government till they are finally absorbed in the State Service, the entitlement of Rs.380 as basic pay fixed on 1.1.1973 cannot be denied since the teachers in KVS have got their basic pay fixed at Rs.380 as on 1.1.1973 and hence urged that the communication dated 24.5.2006 issued by the Respondent No. 4 require to be interfered with in exercise of power under Article 226of the Constitution of India. 13. Referring to the communication dated 19.5.1986 issued by the Deputy Secretary to the Government of India, conveying their entitlement of revision of pay scale on the basis of recommendation of 3rd Central Pay Commission till their absorption in the State Service requesting to calculate the arrears resulting from grant of revised pay scales up to the date of absorption upon verified from the Accountant General, of concerned State which was to be done by 31st July, 1986 and copies of which had been sent to all concerned including the Accountant General, Assam and accordingly their scale has been refixed on revision at Rs.380 as their basic pay on 1.1.1973 and accordingly in their service book the basic pay at Rs.380 as on 1.1.1973 has been fixed. The Petitioners got their arrears in accordance with the basic pay fixed at Rs.380 and the Respondent No. 4 was a party to the said communication. Therefore, the learned Counsel have urged that the Respondent No. 4 has acted in violation of the above referred letter dated 19.5.1986 whereby and whereupon basic pay of Ex-NDS Instructors all over the country has been fixed at Rs.380 as on 1.1.1973 and hence contended that the communication dated 24.5.2006 is liable to be set aside being violative of Articles 14 and 16 of the Constitution of India. 14. The counsel have further referred the communications dated 15.10.1975, 4.8.1986, 16.12.1986 and 19.4.1988 and contended that these communications would show that in accordance with the recommendation made by the 3rd Central Pay Commission, their basic scale of pay was fixed at Rs.380 as on 1.1.1973 which is in consonance with the basic pay of their counterpart serving under the Central Government and therefore, the communication dated 24.5.2006 is not sustainable under the law and the same is liable to be interfered with in the facts and circumstances of the case, more so, when the arrears had been reimbursed by the Central Government treating the basic pay at Rs.380 as on 1.1.1973. 15. Both the learned Counsels have further drawn the attention of the court, the communication dated 10.4.2006 issued by the Respondent No. 3 to the Respondent No. 4 referring the fixation of pay of Ex-NDS Instructors at Rs.380 of the State of Karnataka on the basis of due and drawn amount (a copy of which was made available to the Respondent No. 4) and the arrear statement of NDS Instructors of the State of West Bengal (a copy of which was. made available to the Respondent No. 4) and therefore requested to look into the matter of re-settlement of pensionary benefits to the Ex-NDS Instructors of the State keeping Rs.380 as their basic pay as on 1.1.1973, more so, when the Department with the concurrence, after proper verification, had fixed their basic pay at Rs.380 as on 1.1.1973 and, therefore, the reason cited by the Respondent No. 4 cannot be sustained in the facts and circumstances of the case. 16. The counsels have also drawn the attention of the court regarding fixation of pay of 11 Ex-NDS Instructors by the Respondent No. 4 at Rs.380 as on 1.1.1973, who had superannuated long back. 16. The counsels have also drawn the attention of the court regarding fixation of pay of 11 Ex-NDS Instructors by the Respondent No. 4 at Rs.380 as on 1.1.1973, who had superannuated long back. It had been brought to the notice of the court that the Officer under Respondent No. 4 who has sweared the affidavit supporting the case of the Respondent No. 4 had granted the benefit of basic pay of two of its Ex-NDS Instructors at Rs.380, viz., Shri B.B. Ghosh and Shri M.M. Singh and, therefore, the contentions raised in the communication dated 24.5.2006 is violative of Articles 14 and 16 of the Constitution and requires to be interfered within the facts and circumstances as disclosed in the pleadings. 17. Countering the argument advanced by the counsel appearing for the Petitioners, Mr. K. Paul representing the Respondent No. 4 has drawn the attention of paragraphs 4, 9 and 12 of the affidavit-in-opposition and has urged that the breaking of scale of pay at Rs.3,30-560 with effect from 1.1.1973, the total emoluments come to Rs.343 in the revised scale of Rs.330-560 and, therefore, their basic pay has been calculated at Rs.360 and not Rs.380 as fixed and, therefore, there is no illegality in computing the basic pay at Rs.360 and hence the Respondent No. 3 was requested to resubmit the pension papers refixing at Rs.360 as on 1.1.1973 and, therefore, the writ petition is not maintainable being failed to show violation of Article 14 of the Constitution of India. 18. The second contention as urged relates to the benefit of pay scaio fixed at Rs.380 on revision and the benefit given to 11 of its employees which would be reviewed and if found anomalies, necessary correction will be made with the consent of the department in accordance with Rule 198 of the A.S.P.R. 1969 immediately. 19. The third contentions raised relates to the communication dated 19.5.1986 which, as alleged was not placed before the Respondent No, 4 for verification and thus there was no occasion to deal with the matter and therefore urged that the Respondent No. 3 be directed to place the communication dated 19.5.1986. Since the cases were not sent to the Office of the Respondent No. 4 for verification, the decision communicated on 24.5.2006 cannot be termed as illegal and/or arbitrary. 20. Since the cases were not sent to the Office of the Respondent No. 4 for verification, the decision communicated on 24.5.2006 cannot be termed as illegal and/or arbitrary. 20. Considered the submissions urged by the learned Counsel appearing on behalf of the parties. The facts pleaded and proved by the Petitioners as urged that in pursuance to the decision of the Apex Court the revision of pay scale was accorded to the NDS Instructors on the basis of recommendation of 3rd Central Pay Commission. The teachers of the KVS had got the basic pay fixed at Rs.380 as on 1.1.1973 as it would reveal from the communication dated 15.10.1975 which has not been controverted by the official Respondent No. 4 in their affidavit-in-opposition. The other basic facts which has not been controverted by the Respondent No. 4 relates to fixation of basic pay on revision of scale of pay as per 3rd Central Pay commission at Rs.380 as on 1.1.1973 and all the states had granted the benefit of revision of pay scale at Rs.380 as on 1.1.1973 of the NDS Instructors which is available in the corresponding letter dated 10.4.2006, wherein, two instances have been shown, relating to fixation of basic pay fixed at Rs.380 as on 1.1.1973 in case of State of Karnataka and West Bengal and therefore no reason has been assigned why the same benefit should not be accorded to the Petitioners in the instant case. 21. Admittedly the Respondent No. 4 has already determined the basic pay of 11 of the Ex-NDS Instructors similarly situated with the Petitioners, whereby and whereupon their basic pay had been fixed at Rs.380 as on 1.1.1973 and they are getting their benefit on their revised scale of pay and therefore there is no point to refix their scale of pay at Rs.360 as on 1.1.1973 which, if allowed, would be against the fixation of revision of pay scales as on 1.1.1973 throughout India and the Petitioners would be treated in isolation against the Ex-NDS Instructors all over India and, therefore, this Court is inclined to interfere with the communication dated 24.5.2006 issued by the Respondent No. 4. 22. 22. The next contention raised relating to the communication dated 19.5.1986, which has been quoted at paragraph 5 of the affidavit-in-opposition holds no good, in view of the fact that the copies had been sent to the Respondent No. 4 vide communication dated 19.5.1986 and 16.12.1986 and the Respondent No. 4 was aware of the revision of scale of pay and fixation of basic pay at Rs.380 as on 1.1.1973 which has been granted to 11 of Ex-NDS Instructors, mostly of who have been retired long back are getting the benefit of basic pay fixed at Rs.380 as on 1.1.1973. Moreover, the Respondent No. 4 had not disclosed the reason of classification between the NDS Instructors of State of Assam and the NDS of other States, more particularly NDS of the State of Karnataka and the State of West Bengal as disclosed in the communication dated 10.4.2006 issued by the Respondent No. 3. Therefore, the court has no hesitation to set aside the communication dated 24.5.2006 holding that the communication, if allowed to stand, would be violative of Article 14 of the Constitution of India. 23. In the result the writ petitions are allowed. The communication dated 24.5.2006 issued by the Respondent No. 4 is set aside and quashed. Respondent No. 3 is directed to resubmit the Pension cases of the Petitioners, to the Respondent No. 4 to release the full and final pensionary benefits of all the Petitioners fixing Rs.380 as their basic pay as on 1.1.1973. The whole exercise is to be completed within a period of three months from the date of receipt of this order. 24. With the above directions the writ petitions are disposed of. However, under the circumstances, there shall be no order as to costs. Petition allowed.