S. Ravindran v. The Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SHAMPA SARKAR AND THE HON'BLE JUSTICE ANANDA KUMAR MUKHERJEE WP. CT/3/2022 S. Ravindran ... Petitioner Vs.

The Union of India and Others

...Respondents

For the petitioner : Mrs. Anjili Nag For the respondents : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal Hearing concluded on : April 19, 2022 Judgment on : April 29, 2022 SHAMPA SARKAR, J.

1.

This application has been filed challenging a final order dated December 14, 2021 passed in OA No. 351/01615/2017, by the learned Central Administrative Tribunal, Kolkata Bench (circuit at Port Blair).

2.

By the order impugned, the original application filed by the petitioner herein and the prayer of the petitioner for grant of a pay scale at par with the Chargemen in the Electricity Department of the Administration, was rejected. The ground for rejection was that the petitioner was in the feeder post to the post of Chargeman, and did not fulfill the requisite criteria for the post of Chargeman (Mechanical) as per the recruitment rules. As such, the claim of the writ petitioner for grant of the upgraded pay scale of Rs. 5000-1508000 with effect from March 15, 2005 and thereafter the grant of second Modified Assured Career Progression (MACP) after completion of 20 years of regular service in pay band of Rs. 930034800/- with grade pay of Rs. 4600/- with effect from March 15, 2013, was rejected.

3.

The said decision was rendered upon a de novo hearing of the original application pursuant to an order of remand passed by this Court dated December 16, 2019, in WPCT/190/2019. 4.

The petitioner approached the learned Tribunal by filing the original application under section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:- "(a) An order be passed quashing the order dated 28.7.2015 issued by the Assistant Director (Admin) of the Andaman & Nicobar Administration whereby the authorities held that the pay fixation of the applicant is correct.

(b) An order be passed directing the respondent authorities to implement the recommendation of the Assistant Director (Admn.) for the applicant whereby the Assistant Director (Admn.) requested the Andaman & Nicobar Administration to grant the upgraded pay scale of Rs. 5000-150-8000/- with grade pay of Rs. 4200/- to the Chargeman of this department by the Honourable High Court and by this Hon'ble Central Administrative Tribunal.

(c) An order be passed directing the respondent authorities to consider the representation of the applicant dated 1.12.2016.

(d) An order directing the respondent authorities to grant all consequential and monetary benefits to the applicant after granting the financial upgradation benefits i.e. ACP and MACP in the following manner:- 1.

First ACP w.e.f 15.3.2005 in the scale of pay of Rs. 5000-150-8000.

2.

Second MACP in the pay band of Rs. 9300-34800 with grade pay of Rs. 4600/- w.e.f 15.3.2013. (e) An order directing the respondent authorities to act in accordance with law.

(f) An order to issue directing the respondents to produce the records of the case before this Hon'ble Tribunal so that conscious abide justice may be done.

(g) Such other or further order directing or directions, as your Lordships deem fit and proper in the interest of justice."

5.

The original application was disposed of by an order dated March 26, 2019 by the learned Tribunal holding, inter alia, as follows:- "By taking into account the entire conspectus of the case, we are of the view that the applicant is entitled to the grant of the scale of Fifth Central Pay Commission of Chargeman in case of Electricity Department, so extended by the Hon'ble High Court. Accordingly, the said benefit shall be extended to the applicant also w.e.f. 15.3.2005 along with all consequential benefits within a period of four months from the date of receipt of this order.

The O.A. stands allowed. No order as to costs."

6.

The respondents challenged the order by filing WPCT No. 190 of 2019. The High Court after having considered the rival contention of the parties, set aside the order dated March 26, 2019 passed by the Central Administrative Tribunal and remanded the matter to the learned Tribunal, for fresh consideration on merits. In WPCT No. 190 of 2019, the respondents raised an objection with regard to the eligibility of the writ petitioner and stated that the recommendation of the Fifth Central Pay Commission could not be implemented in case of the petitioner. It was contended that the petitioner did not have a diploma in engineering and did not belong to the subordinate engineering cadre. The Fifth Central Pay Commission had recommended a revision of the pay structure of the persons belonging to the engineering subordinate cadres, possessing diploma in engineering.

7.

Facts of the case are as follows :- (a) The petitioner retired from the post of Fitter (Mechanical) under the department of Electricity, Andaman and Nicobar Administration, Port Blair.

(b) The petitioner was appointed as a Fitter (Mechanical), DRM on contractual basis by an order dated March 15, 1993.Thereafter,the petitioner was appointed to the post of Fitter (Mechanical) by order dated September 25, 1997 on

temporary basis. The petitioner was confirmed in the post of Fitter (Mechanical) by order dated February 24, 2007. The petitioner passed class XI and had an ITI training. (c) The first ACP was granted to the petitioner by an order dated February 24, 2007 in the scale of pay Rs. 4500-125-7000 with immediate effect.

(d) Some Chargemen in the Electricity Department approached the learned Central Administrative Tribunal (circuit at Port Blair) by filing original application No. 25/AN/2009 praying for the benefit of the revised pay structures for the engineering subordinate cadre, as per the Fifth Central Pay Commission's recommendation.

(e) The learned Tribunal disposed of the aforementioned original application, by directing the respondents to decide the claims of those Chargemen. The respondent authorities rejected their claim.

(f) Aggrieved, the Chargemen filed O.A. 182/AN/2010. The said original application was dismissed by the learned Tribunal. Aggrieved, the said Chargemen filed WPCT/594/2012.

WPCT/594/2012 was allowed by the High Court and the respondent authorities were directed to extend the benefit of the recommendation of the Fifth Central Pay Commission to the Chargemen. The recommendation was with regard to the

revision of pay scale and pay structure of engineering subordinate cadres possessing diploma in engineering, in the department.

(g) On the basis of the order of the High Court, Office Order No. 643 dated April 25, 2013 was issued by the Assistant Director (Administration) revising the pay scale of the Chargemen who were diploma holders and were initially appointed in the pay scale of 4500-125-7000 to the revised pay scale of Rs. 5000150-8000, with effect from the dates of their appointment. The petitioner claims the same benefit.

(h) The second MACP was granted to the petitioner after completion of 20 years of regular service vide order dated January 7, 2014. The second MACP was granted in the scale of Rs. 9300-Rs. 34,800/- with grade pay of Rs. 4,200/-. (i) The petitioner preferred a representation before the authority alleging that there was an anomaly in the pay scale given to the petitioner while granting him grade pay of Rs. 4200/-, although a grade pay of 4600/- had been allowed to the other incumbents attached to the post of Fitter (Mechanical) and Fitter (Electrical) of LMMR. The petitioner prayed for grade pay of Rs. 4600-/.

(j) The petitioner was informed by a communication from the Assistant Director (Administration) dated July 31, 2015 that

as the petitioner was serving as a Fitter (Mechanical), and would be eligible to the next promotional post of Chargeman (Mechanical), he was rightly allowed the next higher pay scale attached to the post of Chargeman. The authority was of the opinion that the pay scale and the grade pay which was granted to the petitioner were correct.

8.

The petitioner's claim is based on the ground that the first financial upgradation was granted to the petitioner, considering him to be eligible for promotion to the post of Chargeman. The pay scale attached to the scale of Chargeman had been granted. Once the financial upgradation was given on the petitioner at par with the pay scale attached to the post of Chargeman (Mechanical), similar scale should be given to the petitioner as was granted to Chargemen, the direction of the High Court upon the implementation of the recommendation of the Fifth Central Pay Commission. 9.

Accordingly, the petitioner approached the department with such prayer. The department rejected such claim of the petitioner, inter alia, finding that the pay scale fixed in respect of the petitioner was correct. The petitioner moved the original application. The original application was allowed and the benefit extended to Chargemen of the Electricity Department pursuant to the order of the High Court was directed to be extended to the petitioner with effect from March

15, 2005 with all consequential benefits within a period of four months from the date of the communication of the said order. 10.

Challenging the aforementioned order, the respondents preferred WPCT/190/2019. WPCT/190/2019 was disposed of with a direction upon the learned Tribunal to consider the matter afresh. By the order impugned, the learned Tribunal refused the claim of the petitioner. The High Court noted that the question with regard to the qualification and eligibility of the petitioner had been raised by the respondents for the first time before the High Court and as such the matter required a fresh adjudication by the learned Tribunal. The order impugned was passed upon fresh hearing of the original application.

11.

The petitioner alleges that the Tribunal misinterpreted the order of remand and wrongly applied the recruitment rules dated March 18, 2011. As per the rules applicable at time of grant of the first financial upgradation to the petitioner in 2005, neither the qualification of diploma in mechanical engineering nor 13 years' service in the feeder post were necessary for the promotion of Fitter (Mechanical) to the post of Chargeman.

12.

It appears that the basis of the decision of the Tribunal was that in terms of the Assured Career Progression Scheme dated August 9,

1999, the petitioner was given the scale of Chargeman after 12 years of regular service as Fitter (Mechanical).

13.

The tribunal found that the scheme stated that the regular service for the purpose of ACP scheme should be interpreted to mean eligible service counted for regular promotion in terms of the recruitment rules. According to the Tribunal, as the petitioner, after 12 years of regular service did not have any promotional avenue, his case was considered for grant of the ACP. The benefit of the ACP was given to him to deal with the problem of stagnation and hardships.

14.

The learned Tribunal found that the petitioner had not been appointed as a Chargeman, nor was he discharging the duties of a Chargeman. Thus, the benefit of the decision in case of another Chargeman, namely, Raj Pal (Chargeman) could not be granted to the petitioner. The learned Tribunal came to the conclusion that the grant of the first ACP and the scale attached to the post of Chargeman could not be considered as a promotion of the petitioner to the post of Chargeman.

15.

According to Mrs. Nag, learned Advocate for the petitioner, such finding was erroneous as the Administration had considered the petitioner to be eligible for the post of Chargeman (Mechanical) and

hence had allowed the first ACP on the basis thereof. The recruitment rule which was in force at the time of grant of first ACP should have been looked into. The same provided for 12 years service in the feeder post for promotion to the post of Chargeman and not 13 years. The learned Tribunal wrongly considered the recruitment rules of 2011. She submitted that the petitioner having been considered to be eligible to be promoted to the post of Chargeman, ought to have been given the benefit of the Fifth Central Pay Commission with effect from 2005 in terms of the direction of the High Court and consequent order passed by the Assistant Director (Administration).

The petitioner prays for quashing of the order of the learned Tribunal and extension of the revised pay scale granted in respect of the Chargeman (Mechanical) pursuant to the order of the High Court and implementation thereof by the Administration. Consequent revision of the pensionary benefit and all other retirement benefits by retrospective pay fixation in terms of the recommendation of the Fifth Central Pay Commission, has been prayed.

16.

Mr. Chakraborty, learned Advocate appearing on behalf of the Administration denies the claim of the petitioner. He submits that the recommendation of the Fifth Central Pay Commission was restricted to Chargemen who were diploma holders in engineering. The petitioner wrongly interpreted the order of the High Court and

has tried to build a case on pay parity and equal pay for equal work with Chargemen. Although, the petitioner was granted a financial upgradation which was at par with the scale of pay attached to the post of Chargeman (Mechanical) in the year 2005,the petitioner was neither promoted to the post of Chargeman nor was the petitioner eligible to be a Chargeman, not having the diploma in mechanical engineering as per the recruitment rules of 2011. The petitioner retired from the feeder post and the financial upgradation that was given to the petitioner in order to prevent stagnation could not be construed as a promotion granted to the petitioner, to the post of Chargeman (Mechanical).

17.

The petitioner was granted the first financial upgradation under the ACP scheme on completion of 12 years regular service with effect from March 15, 2005 vide order dated February 24, 2007 in the pay of scale of Rs. 4500-125-7000.

18.

That the recommendation of the Fifth Central Pay Commission was made in respect of employees being engineering graduates or diploma holders. The upgraded scale of Rs. 5000 to Rs. 8000 with grade pay of Rs. 4200/- was recommended for such persons only. The petitioner had passed class XI and possessed an ITI certificate. He was directly recruited to the post of Fitter (Mechanical) and as such did not have the qualification for grant of the revised pay scale

as per the recommendation of the Fifth Central Pay Commission and the order of the High Court. He submitted that the learned Tribunal rightly rejected the case of the petitioner. 19.

Heard the learned Advocates for the respective parties. The original application was allowed in favour of the petitioner by the learned Tribunal by order dated March 26, 2019. The said order was challenged by the Administration by filing WPCT No. 190 of 2019. The contention of the Administration for the first time before this Court was that the scale as per the recommendation of the Fifth Central Pay Commission, which was directed to be implemented by the High Court, was applicable only in case of Chargemen working in the Electricity Department of the Andaman and Nicobar Islands belonging to the engineering subordinate cadre and possessing a degree or diploma in engineering.

20.

The case of the Administration was that the petitioner did not belong to the engineering subordinate cadre and did not have the requisite diploma in engineering. The recommendation of revised pay scale in respect of those Chargemen who belonged to the engineering subordinate cadre, would not be applicable in case of the petitioner.

21.

As the Administration raised this issue for the first time in the original writ petition, the matter was remanded to the learned

Tribunal for de novo hearing. The initial order granting the revised scale to the petitioner dated March 26, 2019, was set aside. 22.

The relevant portions of the order of the High Court is quoted below for convenience:- "Learned advocate appearing for the petitioners submits that, the Central Administrative Tribunal by the impugned order directed grant of the scale of Fifth Pay Commission of chargeman in case of Electricity Department to the private respondent on the basis of an earlier judgment and order of the High Court and on the basis of the recommendation of the Fifth Pay Commission.

He submits that the private respondent do not have the requisite educational qualification to receive the benefits. According to him, the High Court in the earlier round of litigation was concerned with the persons who had requisite qualification i.e. they were either degree or diploma holders. The recommendation of the Fifth Pay Commission was for diploma holders. The private respondent does not possess such educational qualification. In his usual fairness, he further submits that, this point was not raised before the Central Administrative Tribunal.

...

...

...

Since the point affecting the rights of the parties is sought to be taken for the first time in this proceedings and since such point, if decided, will affect the right of the parties, it would be appropriate that, the impugned order is set aside and OA 351/01615/2017 is remanded to the Central Administrative Tribunal for fresh consideration on merits."

23.

We have perused the order impugned and we find that the learned Tribunal proceeded on the basis of the recruitment rules dated March 18, 2011. The learned Tribunal considered the question of eligibility of the petitioner for promotion to the post of Chargeman as

per the said recruitment rules and held that as the petitioner had not completed 13 years of service as Fitter (Mechanical) and was not eligible to be promoted to the post of Chargeman (Mechanical), he would be ineligible for the scale of pay recommended by the Fifth Central Pay Commission. The case of the petitioner was distinct from that of Shri Raj Pal, who was granted the benefit. 24.

According to the learned Tribunal, Raj Pal was a Chargeman (Mechanical). The petitioner who retired as a Fitter (Mechanical) was not eligible as per the recruitment rules of 2011, to be promoted to the post of Chargeman (Mechanical). Thus, the benefit of recommendation of the Fifth Pay Commission and consequent order of the Assistant Director (Administration) implementing such pay scale, in case of Chargemen, was not extendable to the petitioner. 25.

We find that the specific point raised by the Administration before this court in WPCT No. 190 of 2019, was that the petitioner was not eligible to be given revised scale of pay of Chargeman (Mechanical) because the petitioner did not belong to the engineering subordinate cadre. The respondents contended that the recommendation of the Fifth Central Pay Commission revising the pay structure of Chargeman (Mechanical) was applicable to persons having a degree or diploma in engineering. Thus, neither the recommendation of the Fifth Central Pay Commission, nor the decision of the High Court

for implementation of said pay structure in respect of Chargeman (Mechanical) could be applied in case of the petitioner. This was the main contention of the respondents in WPCT 190 of 2019. The petitioner passed class XI and was a holder of an ITI certificate. The respondents urged that the petitioner was not in the same category as Chargemen and pay parity could not be granted. The petitioner was not similarly situated. Such contentions of the respondents were recorded by this Court in its order dated December 16, 2019. 26.

As these points were raised for the first time by the Administration before the High Court, WPCT No. 190 of 2019 was disposed of by the High Court and the learned Tribunal was directed to consider the matter afresh.

27.

In our view, the learned Tribunal failed to consider the matter in the light of the decision of the High Court dated December 16, 2019 while remanding the matter. The learned Tribunal ought to have decided O.A. No. 351/01615/2017 in the light of the decision of High Court dated December 16, 2019 passed in WPCT No. 190 of 2019 and should have arrived at the specific finding as to whether the petitioner's case for grant of the revised pay structure recommended by the Fifth Central Pay Commission in case of Chargemen, could be allowed in terms of the recommendation of the Fifth Central Pay Commission contained in clause 50.23 thereof, or

not. Whether the order of the High Court dated November 30, 2012 passed in WPCT No. 594 of 2012 would be applicable to the petitioner should have been decided. The specific direction of the High Court and its findings in the order dated November 30, 2012, read with the recommendation of the Fifth Central Pay Commission and the relevant clause, should have been taken into account by the learned Tribunal. The case of the petitioner should have been tested on these parameters. Whether the petitioner was similarly situated with the beneficiaries of the office order No. 643 dated April 25, 2013 and with Shri Raj Pal ought to have been a relevant issue, for adjudication by the learned Tribunal.

28.

The order impugned is thus set aside as the above issues were not decided by the learned Tribunal. The matter is remanded for a fresh decision in the light of the discussion made hereinabove. 29.

With the above directions, the writ petition stands disposed of. 30.

Parties are directed to act on the server copy of this order. (SHAMPA SARKAR, J.) 31.

I agree (ANANDA KUMAR MUKHERJEE, J.)