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2014 DIGILAW 571 (JHR)

Garib Mahto v. Union of India

2014-05-01

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
Judgment : Per Shree Chandrashekhar, J.: The writ petition being W.P.(S) No. 174 of 2004 was filed by 3 Technical Assistants namely, Sudhir Kumar, Chandan Kumar and Garib Mahto. The writ petition was partly allowed vide order dated 12.07.2006 in and by which the prayer of the writ petitioners seeking a direction to the respondents to revise the payscale of the writ petitioners in the scale of Rs. 5,500-175-9,000/was declined. Aggrieved, the appellant writ petitioner no. 3 has filed L.P.A. No. 638 of 2006 and appellant writ petitioner no. 2 has filed L.P.A. No. 483 of 2006. The National Institute of Foundry and Forge Technology, aggrieved by the direction of the learned Single Judge to place the appellants in the pay scale of Rs. 5000-8000/, has preferred L.P.A. No. 522 of 2006. 2. Whether the writ petitioners are entitled to revision of their payscales in terms of Part B to the First Schedule of the Central Civil Services (Revised Pay) Rules, 1997 or not, is the only issue involved in the present Letters Patent Appeals and therefore, all the appeals were heard together and are being disposed of by a common order. Brief Facts: 3. The writ petitioner no. 1 namely, Sudhir Kumar (who is not appellant herein) was appointed on the post of Technical Assistant (Civil) in the National Institute of Foundry and Forge Technology vide letter dated 03.04.1996. The appellant namely, Garib Mahto (L.P.A. No. 638 of 2006) and Chandan Kumar (L.P.A. No. 483 of 2006) were appointed on the post of Technical Assistant in the National Institute of Foundry and Forge Technology vide letter dated 21.03.1997 in the payscale of Rs. 1400-401-800EB502300/. The minimum educational qualification for the post of Technical Assistant in NIFFT was Bachelor's degree from a recognized university with Mathematics, Physics and Chemistry or 3 years' Diploma having 2 years' Laboratory/Workshop experience or I.Sc. with all round Workshop/Laboratory Training and minimum 5 years' experience in Mechanical/Erection work. They were appointed on probation for a period of 2 years and their service conditions were governed by the relevant Rules and Orders of the Institute in force from time to time. 4. The 5th Pay Commission was constituted on 09.04.1994 which submitted its report to the Central Government on 30.01.1997. They were appointed on probation for a period of 2 years and their service conditions were governed by the relevant Rules and Orders of the Institute in force from time to time. 4. The 5th Pay Commission was constituted on 09.04.1994 which submitted its report to the Central Government on 30.01.1997. The Central Government constituted an Empowered Committee to consider the report of the 5th Pay Commission and recommendation of the Commission was looked into by a Group of Ministers also. The Central Government accepted the recommendation of the 5th Pay Commission on 18.07.1997 and thereafter, the respondent-NIFFT implemented Part A to the First Schedule of the C.C.S.(Revised Pay) Rules, 1997 in respect of the Technical Assistant-appellants and revised their payscale from Rs. 14002300/ to Rs. 45007000/. 5. The writ petitioners who are diploma engineers claimed themselves belonging to the Subordinate Engineering Cadre and claimed that they are not governed by Part A to the First Schedule rather, they are governed by Part B to the First Schedule of C.C.S. (Revised Pay) Rules, 1997. Raising a claim for grant of payscale of Rs. 5500-175-9000/, the writ petitioners submitted representation to the respondent no. 5 and the respondent no. 5 on 16.10.2003 made recommendation to the Ministry of Human Resources Development, Government of India for sanction of payscale of Rs. 5000-8000/to the Technical Assistant-appellants. The Technical Assistant-appellants renewed their claim vide letters dated 04.12.2003 and 11.12.2003 for implementation of appropriate payscale under the C.C.S. (Revised Pay) Rules, 1997 and lastly, the writ petition was filed seeking a direction to the respondents to implement the Central Civil Services (Revised Pay) Rules, 1997 in its true letter and spirit and to revise payscale of the Technical Assistant appellants in accordance with Part B to the First Schedule of the Central Civil Services (Revised Pay) Rules, 1997. 6. A counter affidavit has been filed on behalf of the respondent nos. 35 objecting to the maintainability of the writ petition claiming that respondent no. 3 namely, National Institute of Foundry and Forge Technology, being registered under the Society Registration Act, 1860 is not a State. It is stated that the writ petitioners were appointed on the post of Technical Assistants and the conditions of their service are to be governed by the relevant Rules and Orders of the Institute in force at the time of appointment. It is stated that the writ petitioners were appointed on the post of Technical Assistants and the conditions of their service are to be governed by the relevant Rules and Orders of the Institute in force at the time of appointment. The writ petitioners were appointed in the payscale of Rs. 1400-40-1800EB 50-2300 (prerevised) on the terms and conditions incorporated in their offer of appointment and they do not belong to the Subordinate Engineering Cadre in the Institute. It is further stated that the Institute after approval of the Ministry of Human Resources Development, Government of India implemented the corresponding revised payscale of Rs. 1400-2300/to Rs. 4500-7000/as per Part A to the First Schedule of the C.C.S. (Revised Pay), Rules, 1997. The claim of the writ petitioners was denied stating that the Institute can implement the payscale attached to the post only and the Institute has no power and authority to implement the higher scale as claimed by the petitioners. 7. The Ministry of Human Resources Development, Government of India also filed a counter affidavit stating that the Institute correctly implemented the corresponding revised scale that is, from Rs. 1400-2300/to Rs. 4500-7000/as per Part A to the First Schedule of C.C.S. (Revised Pay) Rules, 1997. The Respondent Ministry of Human Resources Development vide O.M. dated 08.12.1997 directed the Institute to adopt the revised payscale as incorporated in Part A to the First Schedule to the C.C.S. (Revised pay) Rules, 1997 with clear stipulation that revised payscale as incorporated in Part A to the First Schedule to the C.C.S. (Revised Pay) Rules, 1997 alone may be adopted. 8. The writ petition was partly allowed holding that the Technical Assistants cannot claim the payscale of Rs. 5500-9000/however, they are entitled for grant of payscale of Rs. 5000-8000/. Aggrieved, the appellant Technical Assistants and National Institute of Foundry and Forge have preferred the Letters Patent Appeal. 9. We have heard the learned counsel appearing for the parties and perused the documents on record. 10. Mr. Sujit Narayan Prasad, the learned counsel appearing for the Technical Assistant appellants has submitted that a bare reading of the Preamble of Part A to the First Schedule would indicate that Part A to the First Schedule is not applicable in case of the Technical Assistant-appellants for the reason that the posts for which different revised scales have been notified separately are not governed under PartA. Since, the payscale of Rs. 1400-2300/, the scale in which Technical Assistant appellants were initially appointed has been recommended for revision in the scale of Rs.1600-2660/, the Technical Assistant appellants are entitled for payscale of Rs. 5500-175-9000/as incorporated in Part B to the First Schedule. It is submitted that payscale of Rs. 5500-9000/has been given to the Technical Assistants belonging to Subordinate Engineering Cadre and the recommendation of the 5th Pay Commission has been accepted by the various institutes/autonomous bodies including the Indian Institute of Technology, Kanpur, Delhi Metro Rail Corporation and the Indo-Jerman Tool Room therefore, the same payscale should be allowed in case of the Technical Assistant appellants working under the National Institute of Foundry and Forge Technology. It is further submitted that the respondent Institute has taken a contrary stand before this Court in as much as the respondent no. 5 has written a letter to the respondent Union of India recommending grant of payscale of Rs. 5000-8000/however, it has also filed a separate appeal challenging the direction of the learned Single Judge granting payscale of Rs. 5000-8000/to the Technical Assistant appellants. 11. The learned counsel appearing for the respondent Union of India has submitted that vide O.M. dated 08.12.1997, a direction was issued to all the autonomous organizations/ statutory bodies setup and funded/controlled by the Central Government to implement the revised payscale as incorporated in Part A to the First Schedule to the Central Civil Services (Revised Pay) Rules, 1997 alone and the Institute has rightly implemented and granted the payscale of Rs. 4500-7000/as specified in Part A to the First Schedule of C.C.S. (Revised Pay) Rules, 1997 in case of the Technical Assistants working under the National Institute of Foundry and Forge Technology. 12. The learned counsel for the respondent NIFFT has also submitted that the learned Single Judge erred in granting payscale of Rs. 5000-8000/to the Technical Assistants, a scale which is not applicable in case of the Technical Assistants working in the NIFFT and therefore, the Institute has also filed Letters Patent Appeal being L.P.A. No. 522 of 2006. It is further submitted that the recommendation made by the respondent no.5 to the respondent Union of India for grant of payscale of Rs. 5000-8000/to the Technical Assistants, a scale which is not applicable in case of the Technical Assistants working in the NIFFT and therefore, the Institute has also filed Letters Patent Appeal being L.P.A. No. 522 of 2006. It is further submitted that the recommendation made by the respondent no.5 to the respondent Union of India for grant of payscale of Rs. 5000-8000/to the Technical Assistants, was a recommendation merely forwarding the claim of the Technical Assistants to the Ministry of Human Resources Development and it cannot be construed as if the respondent Institute has admitted the claim of the Technical Assistants for grant of payscale of Rs. 5000-8000/. 13. We have considered the submission of the learned counsel for the parties and perused the documents on record. 14. The Technical Assistant appellants were appointed on probation for a period of two years vide letter dated 21.03.1997 which contained the condition that, “in respect of other conditions of service you will be governed by the relevant rules and orders of the Institute in force from time to time.” It is not in dispute that the respondent Ministry of Human Resources Development is the administrative controlling authority of the respondent Institute and the directions issued by the respondent no. 1 are binding on the respondent no. 5Institute. As noticed hereinabove, the Ministry of Human Resources Development, Government of India vide Office Memorandum dated 08.12.1997 issued the following communications: “The undersigned is directed to say that the Government of India has issued orders regarding revision of scales of pay of Central Government employees on the recommendations of the Fifth Central Pay Commission. It has been decided that these orders may be extended to the employees of the autonomous organisations, statutory bodies, etc. Based on the orders issued by the Ministry of Finance, the following guidelines are issued for further necessary action. (I) The orders regarding revision of pay scales of the Central Government employees on the recommendations of Fifth Central Pay Commission, as accepted by the government, may be extended to the employees of autonomous organisations whose pattern of emolument structure i.e. pay scales and all other allowances are identical to those of the Central Govt. employees. (I) The orders regarding revision of pay scales of the Central Government employees on the recommendations of Fifth Central Pay Commission, as accepted by the government, may be extended to the employees of autonomous organisations whose pattern of emolument structure i.e. pay scales and all other allowances are identical to those of the Central Govt. employees. This is further subject to the stipulation that conditions of service of the employees of those organisations specially those relating to hours of work, payment of OTA, etc., would also be exactly similar to those in Central Government Departments. It is, however, clarified that the revised pay scales as incorporated in Part A of the First Schedule to the Central Civil Services (Revised pay) Rules, 1997, alone may be adopted.” 15. The respondent no. 5Institute has taken a plea that as directed by the respondent Ministry of Human Resources Development, it has implemented the payscale as incorporated in Part A to the First Schedule in case of the technical Assistant working in the institute. 16. Relying on paragraph no. 50.23 of the 5th Pay Commission recommendation, the learned counsel for the Technical Assistant appellants has contended that the payscale of Rs. 1400-2300/was proposed to be revised in the payscale of Rs. 1600-2660/for the Engineering Subordinate Cadre and since, the Technical Assistant appellants belong to Subordinate Engineering Cadre and who were appointed in the initial payscale of Rs. 1400-2300/, the payscale corresponding to the payscale of Rs. 1600-2660/which is the payscale of Rs. 5500-9000/should have been given to the Technical Assistant appellants. This contention merits no acceptance. As noticed above, the minimum educational qualification for the post of Technical Assistants in NIFFT was Bachelor's degree from a recognized university with Mathematics, Physics, Chemistry or experience of 3 years' Diploma having 2 years' Laboratory/Workshop or I.Sc. with all round Workshop/Laboratory Training and minimum 5 years' experience in Mechanical/Erection. It is thus seen that, even a person holding an Intermediate degree in Science is eligible to be appointed on the post of Technical Assistant in NIFFT. The claim of the Technical Assistant appellants that, since they possess a degree in Diploma Engineering they belong to Subordinate Engineering Cadre cannot be accepted. The respondent Institute has categorically denied that the Technical Assistant appellants belong to the Subordinate Engineering Cadre. The claim of the Technical Assistant appellants that, since they possess a degree in Diploma Engineering they belong to Subordinate Engineering Cadre cannot be accepted. The respondent Institute has categorically denied that the Technical Assistant appellants belong to the Subordinate Engineering Cadre. Merely because the Technical Assistant appellants possess degree in Diploma Engineering they cannot claim to be covered under the Paragraph no. 50.23 of the 5th Pay Commission Recommendation. 17. The contention of the learned counsel for the Technical Assistant appellants that in view of Paragraph No. 50.24, the payscales indicated in Paragraph No. 50.23 would apply mutatis mutandis for diploma engineers in different cadres and thus, it would be applicable in case of appellants also, cannot be accepted for the reason that in Paragraph No. 50.23 a recommendation has been made for improving the initial recruitment payscale of diploma engineers in Government. Admittedly, the Technical Assistant-appellants were not appointed on the post of diploma engineers and apparently Paragraph No. 50.24 is attracted only when a degree in diploma engineering is prescribed as an essential educational qualification for being born in the cadre and since, as noticed above, a degree in diploma engineering is not an essential educational qualification for the post of Technical Assistant in NIFFT, the proposed payscale in Paragraph No. 50.23 cannot be implemented for the Technical Assistants working in NIFFT. 18. The contention of the Technical Assistant appellants is that, since the payscale of the Technical Assistants has been recommended to be revised in the payscale of Rs. 1600-2660/and since the appellants being diploma engineers belong to Subordinate Engineering Cadre, their payscale should have been revised according to Item IX in PartB which deals with Subordinate Engineering Cadre and which prescribes revised payscale of Rs. 5500-9000/for the payscale of Rs. 1600-2660/. This contention by the appellants is based on the hypothesis that, (i) the appellants belong to Subordinate Engineering Cadre, and (ii) their initial payscale of Rs. 1400-2300/has already been revised and thus converted in the payscale of Rs. 1600-2660/. Both the assumptions are factually incorrect. In so far as, the appellants' contention that they belong to Subordinate Engineering Cadre is concerned, we do not find any material on record in support of such a claim. The respondent nos. 35 have categorically denied that appellants belong to Subordinate Engineering Cadre. 1600-2660/. Both the assumptions are factually incorrect. In so far as, the appellants' contention that they belong to Subordinate Engineering Cadre is concerned, we do not find any material on record in support of such a claim. The respondent nos. 35 have categorically denied that appellants belong to Subordinate Engineering Cadre. In so far as, the assumption of the appellants that in view of the recommendation in Paragraph No. 50.23, the payscale of Rs. 1600-2660/should have been taken as their prerevised payscale and the corresponding payscale of Rs. 5500-9000/should have been given as prescribed under Part B to the First Schedule, is also factually incorrect. It has been made clear in Preamble to Part B itself that the concerned posts will be governed by the normal replacement scales until the Pay Commission Recommendations are accepted by the concerned Ministries. Moreover, as noticed hereinabove Part B to the First Schedule is not at all applicable to the Technical Assistants appointed in NIFFT. The Central Government vide its Office Memorandum dated 08.12.1997 has categorically directed that the revised payscale as incorporated in Part A to the First Schedule to the Central Civil Services (Revised Pay) Rules, 1997, alone may be adopted. 19. Referring to the contention of the learned counsel appearing for the appellants that Part B to the First Schedule of the C.C.S. (Revised Pay) Rules, 1997 would apply in the case of the Technical Assistant appellants for fixing their payscale in terms of 5th Pay Revision Commission Recommendation, it is seen that the recommendations of the Pay Commission are made subject to fulfillment of specific conditions which inter alia, refer to change in recruitment rules, restructuring of cadres, redistribution of posts into higher group etc. It was left upon to the Ministries concerned to decide upon such issues and agree to the changes suggested by the Pay Commission. Before applying these scales to the posts with effect from 01.01.1996, it is also apparent that, it is implicit in the recommendations of the Pay Commission that the scales necessarily have to take prospective effect and the concerned posts will be governed by the normal replacement scales until then. Before applying these scales to the posts with effect from 01.01.1996, it is also apparent that, it is implicit in the recommendations of the Pay Commission that the scales necessarily have to take prospective effect and the concerned posts will be governed by the normal replacement scales until then. As noticed above, the respondent Ministry of Human Resources Development vide its Office Memorandum dated 08.12.1997 directed that the revised payscales as incorporated in Part A to the First Schedule to the C.C.S. (Revised Pay) Rules, 1997, alone may be adopted and accordingly, the respondent no. 5 NIFFT implemented the payscale as incorporated in Part A to the First Schedule to the Technical Assistant in NIFFT. 20. The learned Single Judge though found that the writ petitioners claimed that they be first placed in the payscale of Rs. 1600-2660/and then the corresponding payscale of Rs. 5500-9000/be given to them cannot be accepted however, taking note of Paragraph No. 50.24 the learned Single Judge held that since separate payscales have been notified under Part B for the diploma engineers, notwithstanding any direction by the Government of India to the contrary, the writ petitioners were entitled for grant of payscale of Rs. 5000-8000/. It is to be noticed that the Office Memorandum dated 08.12.1997 whereby the Ministry of Human Resources Development, Government of India issued a direction for implementation of revised payscale as incorporated in Part A of the First Schedule only, was not under challenge before the Writ Court. Further, the learned Single Judge has not dwelled upon the issue how the writ petitioners come under the category of diploma engineers in Subordinate Engineering Cadre though, the respondents have categorically denied that the writ petitioners do not belong to Subordinate Engineering Cadre. As noticed hereinabove, the Technical Assistants appointed under Respondent NIFFT do not belong to Subordinate Engineering Cadre and thus, the direction issued by the learned Single Judge granting payscale of Rs. 5000-8000/to the Technical Assistant appellants assuming that they are diploma engineers belonging to Subordinate Engineering Cadre, is erroneous and requires interference. 21. In view of the aforesaid discussion, we find no merit in the contention raised on behalf of the appellants in L.P.A. No. 638 of 2006 and L.P.A. No. 483 of 2006 and accordingly, the L.P.A. No. 638 of 2006 and L.P.A. No. 483 of 2006 are dismissed. 21. In view of the aforesaid discussion, we find no merit in the contention raised on behalf of the appellants in L.P.A. No. 638 of 2006 and L.P.A. No. 483 of 2006 and accordingly, the L.P.A. No. 638 of 2006 and L.P.A. No. 483 of 2006 are dismissed. Since, the learned Single Judge has directed the respondents to grant payscale of Rs. 5000-8000/to the Technical Assistant-appellants, a direction which in view of the facts noticed hereinabove, cannot be sustained, the L.P.A. No. 522 of 2006 preferred by the National Institute of Foundry and Forge Technology is allowed. Consequently, I.A. No. 2215 of 2007 in L.P.A. No. 522 of 2006 is also disposed of.