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2014 DIGILAW 300 (MEG)

Union of India v. Dharamvir Singh

2014-12-16

T.NANDAKUMAR SINGH, UMA NATH SINGH

body2014
Judgment T. Nandakumar Singh, J. 1. This writ appeal is directed against the judgment and order of the learned Single Judge dated 27.11.2012 passed in WP(C) No. (SH)283/2009 and order dated 08.02.2013 passed in Review Petition No. (SH) 1/2013 (Ref:-WP(C) No. (SH)283/2009); and learned Single Judge under the impugned judgment and order held that the respondent/writ petitioner is entitled to get the revised scale. 2. Heard Mr. SC Shyam, learned senior counsel assisted by Mr. B Deb, learned counsel appearing for the appellant. 3. The graphic statement of facts leading to the filing of the WP(C) No. (SH)283/2009, had been mentioned in the impugned judgment and order dated 27.11.2012. However, for deciding the grounds for appeal in the present writ appeal, the concise fact of the case of the parties is briefly noted. After joining Assam Rifles in 1981 as Nursing Assistant in the rank of Sepoy, the respondent/writ petitioner on 19.08.1983, through the process of selection was directly recruited to the post of Draughtsman in the rank of Havildar in the Engineering Setup under the Draughtsman Recruitment Rules, 1981. The posts of Draughtsman in Assam Rifles in both civilian and combatant categories have common recruitment rules. The Draughtsman of both streams were enrolled and appointed under the Assam Rifles Draughtsman Rules, 1981. As the posts of Draughtsman in the Assam Rifles are in both civilian and combatant categories, not only the qualification for recruitment but also the nature of the work are same. The Ministry of Finance, Govt. of India vide Office Memorandum No. F-5 (59)-E-III/82 dated 13.03.1984, revised the pay scale of the Draughtsman Grade-III, II and I in all offices and departments of Govt. of India whose recruitment qualifications are similar to CPWD Draughtsman. It is the case of the respondent/writ petitioner that he was entitled to get the benefits of the revised scale of pay prescribed by the said Office Memorandum of the Govt. of India dated 13.03.1984. Since the promotion and other benefits remain stagnant, the respondent/writ petitioner approached the erstwhile Gauhati High Court by filing a writ petition being Civil Rule No. 12 of 1995, but the same was dismissed vide judgment and order dated 29.08.2002. On appeal being WA No. 27(SH)2008, learned Division Bench disposed of the appeal vide judgment and order dated 25.11.2008, which reads as follows:- WA No. 27(SH)2002 25.11.2008 Heard Mr. On appeal being WA No. 27(SH)2008, learned Division Bench disposed of the appeal vide judgment and order dated 25.11.2008, which reads as follows:- WA No. 27(SH)2002 25.11.2008 Heard Mr. TT Diengdoh, learned counsel appearing on behalf of the appellant and Mr. SC Shyam, learned CGC appearing on behalf of the respondents. This appeal is directed against the judgment and order dated 29.08.2002 passed by the learned Single Judge in Civil Rule No. 12 of 1995. The writ petition was filed claiming the relief of higher pay under the office memorandum dated 13.3.1984 issued by the Deputy Secretary to the Government of India, Ministry of Finance. The learned single Judge rejected the prayer of the petitioner in that regard on the ground that he did not fulfill the requisite qualification as those prescribed for Grade-II Draftsman in the CPWD and as such, the revised scale of pay as prescribed by the Government of India would not automatically be applicable to the petitioner. Mr. TT Diengdoh, learned counsel appearing on behalf of the appellant bas brought to our notice that the Government of India, Ministry of Finance issued another office memorandum dated 19.10.1994 under which revised scale should be given irrespective of the recruitment qualification in all Government of India offices. Learned counsel for the appellant further submits that, the said subsequent office memorandum was not brought to the notice of the learned single Judge and, as such, the same was never considered while disposing the writ petition. We have considered the matter and having regards to all the relevant considerations, this case is remanded to the learned single Jude for proceeding afresh by taking into consideration of the above said subsequent office memorandum dated 19.10.1994. The impugned judgment is hereby quashed and the appeal is allowed. The writ appeal stands disposed." 4. In the writ petition i.e. WP(C) No. (SH)283/2009, as directed by the Division Bench under the judgment and order dated 25.11.2008, had considered, if the respondent/writ petitioner is entitled to get the revised pay scale as per the Office Memorandum dated 19.10.1994. Before the learned Single Judge, Mr. The writ appeal stands disposed." 4. In the writ petition i.e. WP(C) No. (SH)283/2009, as directed by the Division Bench under the judgment and order dated 25.11.2008, had considered, if the respondent/writ petitioner is entitled to get the revised pay scale as per the Office Memorandum dated 19.10.1994. Before the learned Single Judge, Mr. SC Shyam, learned senior counsel appearing for the appellants (respondents in the writ petition) submitted that the respondent/writ petitioner was not qualified as per the term of CPWD hence, he cannot be allowed to get the revised pay scale and the said submission had been elaborately discussed by the learned Single Judge in the impugned judgment and order dated 27.11.2012 passed in WP(C) No. (SH)283/2009. Mr. SC Shyam, learned senior counsel appearing for the appellants (respondents in the writ petition), further contended that even if the respondent/writ petitioner is found fit as per the Office Memorandum dated 19.10.1994, it should not be given effect retrospectively, as the respondent/writ petitioner approached the Court lately. Learned Single Judge had considered in threadbare the said submission of Mr. SC Shyam, learned senior counsel appearing for the present appellants (respondents in the writ petition) in the impugned judgment and order dated 27.11.2012 Mr. SC Shyam, learned senior counsel reiterated before us the same submission made before the learned Single Judge. 5. The discussions and findings of the learned Single Judge in the impugned judgment and order dated 27.11.2012 passed in WP(C) No. (SH)283/2009 read as follows:- WP(C) No. (SH)283 of 2009 "JUDGMENT AND ORDER (ORAL) 27.11.2012 Heard learned counsel Mr. T.T. Diengdoh, for and on behalf of the petitioner as well as Mr. S.C. Shyam, learned CGC for the respondents. 1. Petitioner story in short is that he joined Assam Rifles in the year 1981 as a Nursing Assistant in the rank of a Sepoy and subsequently on 19.08.1983 he was recruited as a Draughtsman through selection process and is still working in the same capacity. Since promotion and other financial benefits remained stagnant, petitioner approached this Court by way of a writ initially in the year 1995 as Civil Rule No. 12 of 1995 and the same Civil Rule was dismissed vide judgment and order dated 29.08.2002. Being aggrieved by the said judgment of Single Judge the petitioner approached the Division Bench of this Court by way of an appeal. Being aggrieved by the said judgment of Single Judge the petitioner approached the Division Bench of this Court by way of an appeal. The Hon'ble Division Bench vide order dated 25.11.2008 in WA No. 27(SH)2002 was pleased to remand the matter to the Single Judge for a fresh proceeding taking into consideration the subsequent Office Memorandum dated 19.10.1994. Hence this instant writ petition. 3. Learned counsel for the petitioner, Mr. T.T. Diengdoh, submits that even if petitioner is not qualified as per the norms of CPWD Draughtsman he is entitled to get the revised Scale as per Office Memorandum dated 19.10.1994. He also further contends that one Mr. Alok Acharjee, having the same qualifications as petitioner is having also got the revised scale w.e.f. 1.11.1983 and to support his contention learned counsel relied on the judgment given by Hon'ble Apex Court in the case of Union of India and others vs. Debashis Kar and others reported in : 1995 Supp (3) SCC 528. 4. On the other hand, learned counsel for the respondent Mr. S.C. Shyam, CGC, submits that petitioner was not found qualified as Draughtsman as per the norms and terms of CPWD, hence he could not be allowed to get the revised scale and that has been elaborately discussed by the Single Judge in Civil Rule No. 12 of 1995. Learned counsel for the respondents also further contends that even if he is found fit as per the Office Memorandum dated 19.10.94, it should not be given effect retrospectively as the petitioner approached the Court lately. 5. While going through the record it is admitted fact that no affidavit-in-opposition has been filed by the respondents as appeared from the order dated 23.4.2010. 6. After hearing the submissions as advanced by learned counsels for the parties, I find the crux issue involved in the instant writ petition where the petitioner is entitled for the revised scale as per the Office Memorandum dated 19.08.1994. Before coming to any conclusion I feel it will be appropriate on my part to make a comparative study of Office Memorandum dated 13.03.1984 at page 26 of the writ petitioner was well as Office Memorandum dated 19.10.1994, reproduced at page 6 of the writ petition. Both the Office Memorandums are reproduced herein under:- "New Delhi, the 13th March, 1984. Before coming to any conclusion I feel it will be appropriate on my part to make a comparative study of Office Memorandum dated 13.03.1984 at page 26 of the writ petitioner was well as Office Memorandum dated 19.10.1994, reproduced at page 6 of the writ petition. Both the Office Memorandums are reproduced herein under:- "New Delhi, the 13th March, 1984. OFFICE MEMORAMDUM Subject: Revision of pay scales of Draughtsmen Grade III, II and I in all Government of India offices on the basis of the Award of Board of Arbitration in the case of Central Public Works Department. The undersigned is directed to state that a committee of the National Council (Joint Consultative Machinery) was set up to consider the request of the staff side that the following revised scales of Pay allowed to the Draughtsmen Grade-I, II and III working in Central Public Works Department on the basis of the Award of Board of Arbitration may be extended to Draughtsmen Grade III, II and I in all Government of India Offices: 2. The President is now pleased to decide that the scales of pay of Draughtsmen Grade III, II and I in Offices/Department of the Government of India other than the Central Public Works Department, may be revised as above provided their recruitment, qualifications are similar to those prescribed in the case of Draughtsment in Central Public Works Department. Those who do not fulfill the above recruitment qualification will continue in the pre-revised scales. The benefit of this revision of scales of pay would be given notionally with effect from 13.5.1982, the actual benefit being allowed with effect from 1.11.1983. 3. Hindi version will follow. Sd/- (R.C. PURI) DEPUTY SECY. TO THE GOVT. OF INDIA To All Ministries." "OFFICE MEMORANDUM Subject: Revision of pay scales of Draughtsmen Grade I, II and III in all Government of India offices on the basis of the Award of the Board of Arbitration in the case of Central Public Works Department. 3. Hindi version will follow. Sd/- (R.C. PURI) DEPUTY SECY. TO THE GOVT. OF INDIA To All Ministries." "OFFICE MEMORANDUM Subject: Revision of pay scales of Draughtsmen Grade I, II and III in all Government of India offices on the basis of the Award of the Board of Arbitration in the case of Central Public Works Department. The undersigned is directed to refer to this Department's OM No. F. 5(59)-E. III/82 dated 13-3-1984 on the subject mentioned above and to say that a Committee of the National Council (JCM) was set up to consider the request of the staff side that the following scales of pay, allowed to the Draughtsmen Grade I, II and III working in CPWD on the basis of the Award of Board of Arbitration, may be extended to Draughtsmen Grade I, II and III irrespective of their recruitment qualification, in all Government of India offices: 2. The President of India is now pleased to decide that the Draughtsmen Grade I, II and III in offices/departments of the Government of India other than in CPWD may also be placed in the scale of pay mentioned above subject to the following: a) Minimum period of service for placement from the post carrying scale of Rs. 975-1540 to Rs. 1200-2040 (pre-revised Rs. 260-430 to Rs. 330-560)-7 years b) Minimum period of service for placement from the post carrying scale of Rs. 1200-2040 to Rs. 1400-2300 (pre-revised Rs. 330-560 to Rs. 425-700)-5 years c) Minimum period of service for placement from the post carrying scale of Rs. 1400-2300 to Rs. 1600-2600 (pre-revised Rs. 425-700 to Rs. 550-750)-5 years 3. Once the Draughtsmen are placed in the regular scales, further promotions would be made against available vacancies in higher grade and in accordance with the normal eligibility criteria laid down in the recruitment rules. 4. The benefit of this revision of scales of pay would be given with effect from 13-5-1982 notionally and actually from 1-11-1983. Sd/- (Shyam Sunder) Under Secretary to the Government of India" 7. Now after reading the Office Memorandum dated 13.03.1984, it appears that to get revised scale one requires to possess requisite qualification as possessed by a Draughtsman in the CPWD. Therefore, the Office Memorandum 1984, emphasized and placed a pre-condition i.e. requisite qualification as required by a Draughtsman in CPWD. Sd/- (Shyam Sunder) Under Secretary to the Government of India" 7. Now after reading the Office Memorandum dated 13.03.1984, it appears that to get revised scale one requires to possess requisite qualification as possessed by a Draughtsman in the CPWD. Therefore, the Office Memorandum 1984, emphasized and placed a pre-condition i.e. requisite qualification as required by a Draughtsman in CPWD. On the other hand, Office Memorandum dated 19.10.1994 speaks irrespective of their recruitment qualification but pre-condition has been placed as 4, 5 and 7 years of service. So after comparative study of both the Memorandums it is apparent that Memorandum of 1983 has placed requisite qualification as required for CPWD as pre-condition whereas, Memorandum dated 19.10.94 has placed the years of service as 4, 5 and 7 years as pre-condition. 8. Even if petitioner does not possess requisite qualification as per Office Memorandum dated 13.03.1984 but he possessed requisite qualification/experience/length of service as prescribed by Office Memorandum dated 19.10.1994, because it is undisputed fact that petitioner is serving as Grade III Draughtsman w.e.f. 19.08.1983 and he has completed 4 years of service in the year 1997, as such, in my prima-facie view, petitioner is entitled to get the revised scale with effect from the date on which he has completed the 4 years of service in the same post as mentioned in the Office Memorandum dated 19.10.94. 9. I also could not agree with the submission advanced by the learned counsel for the respondents that the petitioner has approached this Court lately. From record it appears that he has approached the Court in the year 1995 and since then the matter is pending before the Court. Therefore, the respondents are directed to give the revised scale to Petitioner w.e.f. 19.9.1987. It is further directed to the respondents to consider the promotion of the petitioner as and when the vacancy arises. 10. With this observation and direction the instant writ petition is allowed and disposed of." 6. As there were some typographical mistakes in the judgment and order dated 27.11.2012 passed in WP(C) No. 283/2012, the respondent/writ petitioner filed the review petition being Review Petition No. (SH)1/2013 for correcting the typographical mistakes. Learned Single Judge vide order dated 08.02.2013 passed in Review Petition No. (SH)1/2013, had corrected the typographical mistakes. The said order dated 08.02.2013 passed in Review Petition No. (SH)1/2013 is read as follows:- "08.02.13 Heard Mr. Learned Single Judge vide order dated 08.02.2013 passed in Review Petition No. (SH)1/2013, had corrected the typographical mistakes. The said order dated 08.02.2013 passed in Review Petition No. (SH)1/2013 is read as follows:- "08.02.13 Heard Mr. R. Jha, the learned counsel for the petitioner who pointed out that there is a typing mistake in the judgment order dated 27.11.12 passed in WP(C) No. 283 of 2009. He further submits that at internal Page No. 5 of the said judgment in clause-c, issue have been 4(four) years instead of 5(five) years and in Page-6, issue have been 1987 instead of 1997 and prayed that the error may be corrected. Mr. SC Shyam, the learned CGC is present and agrees with the submissions submitted by the learned counsel for the petitioner. Accordingly typing mistakes at Page-5 & 6 are hereby corrected. Henceforth it will be considered as 4(four) years instead of 5(five) years and in place of 1987 it will be 1997. With these observations and directions, this Review Petition is allowed and disposed of." 7. After giving our anxious consideration to the submission of Mr. SC Shyam, learned senior counsel appearing for the appellants vis-a-vis the said Office Memorandum dated 19.10.1994 and the impugned judgment and order dated 27.11.2012, we are of the view that under the Office Memorandum dated 19.10.1994, pre-condition for revision of pay scale is the length of service irrespective of recruitment qualification. Accordingly, we are in complete agreement with the reasons and findings of the learned Single Judge in the impugned judgment and order dated 27.11.2012. 8. In the result, the appeal is devoid of merit and accordingly dismissed.