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2012 DIGILAW 888 (GAU)

Union of India v. Surendra Nath Deuri

2012-07-26

AMITAVA ROY, P.K.MUSAHARY

body2012
JUDGMENT Amitava Roy, J. 1. In assailment is the judgment and order dated 05.03.2012, passed by the learned Central Administrative Tribunal (for short hereafter referred to as the Tribunal) in O.A. No. 52/2009, directing the respondents therein to grant pay scale of Rs. 5500-9000/- to the applicants for the period from 01.01.1996 to 31.12.2005 with consequential benefits, however, sans the arrear and allowances. A time frame of four months was fixed for the purpose. Being dissatisfied, an application for review of the said decision was made by the respondents, which was registered as Review Application No. 03/2010 and was, eventually, rejected by the learned Tribunal vide its order dated 05.03.2010. This verdict, on the application for review, thus, also constitutes the subject matter of challenge in the instant petition. The respondents before the learned Tribunal are the writ petitioners herein. We have heard Ms. D Sinha, learned Central Government Counsel for the petitioners and Mr. D Mazumdar, learned counsel for the respondents (Applicants in the proceeding before the learned Tribunal). 2. Filtering out the unnecessary details, the facts in bare minimum projected by the rival pleadings have to be outlined at the outset to better comprehend the arguments advanced. The respondents are in the rolls of the Survey of India, Assam Nagaland GDC, Guwahati (for short hereafter also referred to as the SOI) and are presently posted as Survey Assistants. They were initially appointed as Topo Trainee Type B and were promoted, at the first instance, to the post of Plain Tabler/ASD/Man/Topo Auxiliary Grade-IV and, eventually, as Survey Assistant under Division-I (Establishment) of SOI in the pay scale of Rs. 5000-8000/- . According to them, their duties include topographical survey in the field, fair drawing of topo sheets, digitization, examination of topo sheets etc. They have stated that in Division-I (Establishment) of SOI, there are three categories of posts, namely, Surveyor, Survey Assistant and Draftsman (Grade-I). Whereas, the post of Survey Assistant and Draftsman are to be filled up by promotion from the feeder post of Plain Tabler Grade-II/ASD/MAN/Topo Auxiliary Grade-II and Draftsman Grade-II respectively, 66 2/3% of the posts of Surveyor is to be filled up by direct recruitment of Topo Trainee Type-A on completion of two years of successful training. The remaining 33 1/3% is, however, filled up by promotion from the feeder categories, including Plane Tabler Grade-II/ASD/MAN/Topo Auxiliary Grade-II through departmental examination in Division-II (Establishment). 3. The remaining 33 1/3% is, however, filled up by promotion from the feeder categories, including Plane Tabler Grade-II/ASD/MAN/Topo Auxiliary Grade-II through departmental examination in Division-II (Establishment). 3. The respondents before the learned Tribunal elaborated that in Division-II there are two categories of posts, viz, Plane Tabler/ASD Man/Topo Auxiliary (Grade-II) and Draftsmen (Grade-II) with the pay scale of Rs. 4500-7000/- . It is matter of record that these pay scales were prevalent for the period prior to 01.01.2006. In terms of the recommendation of the 5th Central Pay Commission (for short also referred to the CPC), the pay scales of the posts of Surveyors, Survey Assistant and Draftsman Grade-I in Division-I of the Establishment were prescribed to be at par i.e. Rs. 5,000-8000/- . As questions of pay anomalies of various categories of posts in SOI surfaced for resolution, a departmental Ad-hoc Anomaly Committee was constituted, which, on a thorough scrutiny of all relevant aspects pertaining thereto, vide its recommendation dated 11.07.2005 suggested that the pay scale of Rs. 5500-9000/- be awarded to the Surveyors as well as the Survey Assistant of the Establishment. The reasons in support of the recommendations as recorded, inter alia, evince that the posts of Surveyor and Survey Assistant in the SOI were inter-changeable and that they formed the common feeder cadre for the next higher post of Officer Surveyor (Gazetted). On the touchstone of horizontal relativity of these two posts, this Committee, therefore, recommended the same pay scale of Rs. 5500-9000/- therefor. As inspite of this, the writ petitioners (respondents before the learned Tribunal) did not implement this recommendation of the Ad-hoc Anomaly Committee (for short also referred to as the Committee), the Officer Surveyors approached the learned Central Administrative Tribunal, Madras Bench with OA No. 747/2006, seeking direction for enforcement thereof. It is a matter of record that this proceeding was disposed of on 04.05.2007 with a direction to the writ petitioners to take a decision on the pay scale of the Surveyors and Officer Surveyors considering the report of the Committee. It is also not disputed that inconformity with the said direction, the pay scale of Rs. 5500-9000/- had, since, been granted to the Surveyors. In this factual backdrop, the respondents herein, the Survey Assistants of SOI submitted representations before the appropriate authorities seeking upgradation of their pay scale of Rs. 5000-8000 to Rs. It is also not disputed that inconformity with the said direction, the pay scale of Rs. 5500-9000/- had, since, been granted to the Surveyors. In this factual backdrop, the respondents herein, the Survey Assistants of SOI submitted representations before the appropriate authorities seeking upgradation of their pay scale of Rs. 5000-8000 to Rs. 5500-9000/- based on the recommendation of the Committee and also the directions, amongst others, of the learned Central Administrative Tribunal, Madras Bench as above. The representations having been rejected vide the office memorandum dated 31.12.2008, they approached the learned Tribunal seeking redress, which, by the judgment and order impugned, remedied their grievance. 4. The writ petitioners in their written statement, while admitting that the Committee had recommended a higher pay scale of Rs. 5500-9000/- for all Division-I employees, including Survey Assistant, also conceded that in terms of the decision rendered by the learned Central Administrative Tribunal, Madras Bench in OA No. 747/2006 it had accepted the recommendations of the Committee for granting the higher pay scale of Rs. 5500-9000/- to the Surveyors. They, however, contended that the decision of the learned Central Administrative Tribunal, Madras Bench not being one in vem was not required to be complied with vis-à-vis the Survey Assistant/other categories of officers, they not being parties to the said adjudication. According to them, the claim of the Survey Assistant for upgradation of pay at par with that of the Surveyors was untenable in view of the dissimilarities in matters of academic qualification at the entry level, mode of recruitment/appointment and duties and responsibilities to be performed/discharged by these two categories of officers. They pleaded further that the grouping of the Surveyors and the Survey Assistant in the Combined Seniority List did not, per se, signify the equivalence of these two posts and that the decision with regard to the pay parity based on objective criteria, as above, being that of the executive, no interference therewith in the exercise of power of judicial review, was available to the learned Tribunal. 5. The learned Tribunal, on an indepth analysis of the pleadings of the parties and the documents in support thereof sustained the claim of the respondents on the following grounds: 1) The Surveyors and the Survey Assistants in the SOI are in the combined seniority list and belong to the feeder cadre for promotion to the next higher post of Officer Surveyor. 2) The pay scale of these two posts as per the 3, 4 and 5 CPC was same. 3) The Committee, vide its recommendation dated 11.07.2005, had suggested to remove the anomalies in pay scales and had prescribed the same pay scale for these posts noticing the horizontal relativity thereof. 3) The Deputy Surveyor General, SOI, by his official communications dated 01.10.2007 and 31.10.2007 addressed to the Secretary to the Government or India, Ministry of Science and Technology (Department of Science and Technology) as well as the Member Secretary, VI CPC had, with reference to the decision dated 04.05.2007 of the learned Central Administrative Tribunal, Madras Bench, in WA No. 474/2006 and the recommendation dated 11.07.2005 of the Ad-hoc Anomaly Committee, advocated for the upgradation of the pay scale of the Survey Assistant from Rs. 5000-8000/- to Rs. 5500-9000/- at par with that of the Surveyor. 4) In terms of the 6th CPC, the post of Surveyor and Survey Assistant had been merged logically with the same scale of pay. 6. As stated hereinabove, the writ petitioners' application, seeking review of this judgment, highlighting the perceived distinctions in the domain of academic qualification, mode of recruitment and the nature of duties and responsibilities qua the posts was rejected on due consideration of all pleas relatable thereto by order dated 07.05.2010. 7. Ms. Sinha has emphatically urged with particular reference to office memorandum dated 31.12.2008 that as it would be evident there from that the rejection of the respondents' (applicants before the learned Tribunal) prayer for upgradation of their pay scale at par with that of the Surveyor being founded on valid reasons, the learned Tribunal had grossly erred in law and on facts in interfering therewith and directing pay parity for all intents and purposes. According to her, as apparent differences on the count of academic qualification, mode of recruitment/appointment as well as the duties and responsibilities of the incumbents of these two posts were manifest on the face of the records, the learned Tribunal acted illegally and in excess of its jurisdictional limits in directing upgradation of pay of Survey Assistant to that of Surveyor in utter disregard to the factors recited in the office memorandum dated 31.12.2008. She further submitted that the recommendations of the Committee being not binding on the SOI, its decision rejecting the claim of the Survey Assistant on due analysis of the relevant facts bearing on their service conditions, did not merit interference by the learned Tribunal. To reinforce her pleas Ms. Sinha has placed reliance on the decisions of the Apex Court in Sub-Inspector Rooplal & Anr. Vs. Lt. Governor through the Chief Secretary, Delhi & Anr. (2000) 1 SCC 644 , T. Venkateswarulu Vs. Executive Officer, Tirumala Tirupathi Devasthanams & Ors., (2009) 1 SCC 546 , Lala Shri Bhagwan & Anr. Vs. Ram Chand & Anr., AIR 1965 SC 1767 (1) and Tribhovandas Purshottamdas Thakkar Vs. Ratilal Motilal Patel & Ors., AIR 1968 SC 372 . 8. Mr. Mazumdar, per contra has urged that the learned Tribunal having decided the issue in favour of the respondents, on an exhaustive consideration of all pertaining aspects bearing on the debate, no interference on the grounds urged, in the exercise of this Court's writ jurisdiction, is called for. Referring to the chart depicting the hierarchy of posts in SOI, he has urged that it would be apparent therefrom that direct recruitment to the post of Surveyor is contemplated against only 66 2/3% of the posts of Surveyor from the Topo Trainee Type A and that the remaining 33 1/3% is to be filled up by promotion from eligible incumbents of feeder posts including that of Plane Tabler/ADS Man Topo Auxiliary (Grade-II) of the Division-II (Establishment) of SOI. He argued further that promotion from the said feeder post in the Division-II (Establishment) to that of the Survey Assistant in Division-I (Establishment) was contemplated and, thus, the assumed disparity in the mode of recruitment to the post of Surveyor and the Survey Assistant could not have been applied to deny equivalence of the post of Surveyor and Survey Assistant. Adverting to the office memorandum dated 07.12.2008, Mr. Mazumdar has urged that a close reading thereof would conclusively demonstrate the striking features of similarities in the two posts in the areas of recruitment, academic qualification and nature of duties and responsibilities. Adverting to the office memorandum dated 07.12.2008, Mr. Mazumdar has urged that a close reading thereof would conclusively demonstrate the striking features of similarities in the two posts in the areas of recruitment, academic qualification and nature of duties and responsibilities. According to him, this coupled with the admitted fact that both the posts of Surveyor and Survey Assistant are feeder posts for promotion to that of Officer Surveyor, the contemplation of dissimilarities in the two posts entertained by the writ petitioners is wholly flawed and in that view of the matter, the analysis of the learned Tribunal besides being logical and wholly founded on the materials on record, no interference therewith is called for. To buttress his arguments, Mr. Mazumdar has pressed into service the decisions of the Apex Court in Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association and Ors., 1993 Supp. (1) SCC 153, KT Veerappa & Ors. Vs. State of Karnataka & Ors., (2006) 9 SCC 406 and Union of India & Ors. Vs. Jagadish Pandey and Ors., (2010) SCC 689. 9. The pleaded facts are mostly matters of records and do not call for reiteration. Suffice it to state that the reservation expressed by the writ petitioners against the entitlement of the respondents for the upgradation of their pay from 01.01.1996 to 31.12.2005 enjoyed by the Surveyors is synopsised in the following table : -12. The comparison of two posts in the terms of following parameters is as under: Parameter Surveyor Survey Assistant Method of Recruitment Promotion or direct recruitment. 33 1/3% Surveyors are recruited through LDCE from Div. II Grade II. The remaining 66 2/3% Surveyors are recruited directly through open competition from those who are B.Sc. with mathematics Survey Assistant are recruited by promotion through DPC from Div.II Grade II from those who possess educational qualification intermediate with mathematics. Educational qualifications both for promotion and direct recruitment, if any. B.Sc. with Maths for direct recruitment and Stereoscopic Fusion test. Intermediate with mathematics for those who were selected through LDCE among Div. II Grade. II. Intermediate with Maths and promotion through DPC, seniority cum fitness. Promotional post and pay scale attached to such post. Officer Surveyor and Pay scale Rs. 6500-10500. Officer Surveyor and pay scale Rs. 6500-10500 Feeder post and pay scale attached to such post. (i) Initially appointed as TTT A pay scale Rs. 3050-4590. II Grade. II. Intermediate with Maths and promotion through DPC, seniority cum fitness. Promotional post and pay scale attached to such post. Officer Surveyor and Pay scale Rs. 6500-10500. Officer Surveyor and pay scale Rs. 6500-10500 Feeder post and pay scale attached to such post. (i) Initially appointed as TTT A pay scale Rs. 3050-4590. (ii) Surveyors during training period get pay scale of Rs. 3050-4590 and after completion of two years training they are classified as Surveyor in the pay scale of Rs. 5000-8000. This was enhanced to Rs. 5500-9000 with effect from 01.01.1996. In pursuance of directions of Honble CAT. Initially appointed as TTT B pay scale Rs. 3050-4590 and Group C Div. II Grade II through LDCE in the pay scale of Rs. 4500-7000. Duties and responsibilities (i) They are generally deployed as detachment officer for carrying out instrumental work related to control work required for surveying and mapping. (ii) Deployed as camp officer in the filed to supervise the plane-tabling camp and the works as section officer in recess for carrying out the supervision of mapping work (cartographic work). (i) Deployed as section officer for supervision of mapping work (cartographic) also specialized in examination of fair mapping sheets etc. (ii) In the filed deployed as camp officer for supervision of plane tabling camp etc. and can be employed as detachment officer for instrumental work similar to surveyor. Area, and deployment Cartographic work as well as field work. Cartographic work as well as filed work. 10. Noticeably, the mode of recruitment to the post of Surveyor and the Survey Assistant as has been reflected in the chart aforementioned and narrated hereinabove remains unrefuted by the writ petitioners. As a matter of fact, we find reiteration thereof in the above extract dealing with the parameter "mode of recruitment, promotion or direct recruitment". It appears therefrom that though, 66 2/3% of the Surveyors are recruited directly, the remaining posts are filled up by promotion from in service eligible incumbents of grades/posts in Division-II (Establishment). The post of the Survey Assistant in Division-I (Establishment) is, however, filled up wholly by promotion through DPC from Division-II of the Establishment. In that view of the matter, the mode of recruitment to the post of Surveyor cannot be said to be entirely different from that of Survey Assistant in absolute terms. The post of the Survey Assistant in Division-I (Establishment) is, however, filled up wholly by promotion through DPC from Division-II of the Establishment. In that view of the matter, the mode of recruitment to the post of Surveyor cannot be said to be entirely different from that of Survey Assistant in absolute terms. In this premise, the difference in the academic qualification for the direct recruitment quota also does not introduce an absolute disparity between the two posts i.e. Surveyor and Survey Assistant. The comparative narration vis-à-vis the duties and responsibilities attached to these two posts, on a close reading, exhibits pronounced resemblances against differentiation of these two posts on this count to deny the same pay. Significantly, there is no difference in the areas of deployment. To reiterate, the posts of Surveyor and Survey Assistant are feeder posts for the common promotional post of Officer Surveyor. Undeniably the CPC in its 3rd 4th and 5th recommendations had suggested the same pay scale for these two posts. The Committee had also endorsed this recommendation. As referred to hereinabove, the Deputy Surveyor General, SOI by his letters dated 01.10.2007 and 31.10.2007 had unequivocally affirmed this entitlement of the Survey Assistant. To reiterate, the learned Central Administrative Tribunal, Madras Bench by its order dated 04.05.2007, passed in OA No. 747/2006 had directed, in essence, the implementation of the recommendations of the Ad-hoc Anomaly Committee prescribing equal pay in the scale of Rs. 5500-9000/- for the posts of Surveyor and Survey Assistant. By the recommendation of the 6th CPC, these posts have been merged. The Hon'ble Apex Court in Secretary, Finance Department & Ors. (Supra) and KT Veerappa & Ors. (Supra), while acknowledging the primacy of the executive on the issue of equation of posts and determination of pay scales, observed that the same did not, per se, signify the ouster of the jurisdiction of the Court to remedy an arbitrary state action or inaction. 11. The Apex Court in Sub-Inspector Rooplal & Anr. (Supra) as well as T. Venkateswarulu (Supra), reiterated the oft quoted proposition that equation/equivalence of posts and the pay scale associated therewith is a function within the executive domain and that courts should not generally interfere therewith, unless there is cogent material indicating grave error necessitating its intervention to remedy the injustice consequent thereto. (Supra) as well as T. Venkateswarulu (Supra), reiterated the oft quoted proposition that equation/equivalence of posts and the pay scale associated therewith is a function within the executive domain and that courts should not generally interfere therewith, unless there is cogent material indicating grave error necessitating its intervention to remedy the injustice consequent thereto. In the conspectus of the facts examined hereinabove, we are of the considered opinion, having regard to the scope of scrutiny in the exercise under Article 226 of the Constitution of India that no interference with the judgment and order assailed in the instant proceeding is called for. The facts and circumstances of the present case do, according to us, overwhelmingly demonstrate that the factors relied upon by the petitioners to negate the claim of the respondents (applicants before the learned Tribunal) for upgradation of pay of Rs. 5500-9000/- at par with that of the Surveyor for the period from 01.01.1996 to 31.12.2005 and the consequential benefits as accorded by the order dated 05.03.2012, passed in OA No. 52/2009 do not merit acceptance. The petition, therefore, lacks in substance and is dismissed. No costs. Petition dismissed.