Bipul Kumar Mistry And ORS v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

WP.CT/13/2024 Bipul Kumar Mistry and others Vs.

The Union of India and others Ms. Anjili Nag ... for the petitioners Mr. Tulsi Lall Mr. Rakesh Kumar ... for the respondents February 9, 2024 [SR] Item No.5 The Judgment and order dated January 04, 2024 passed by the Central Administrative Tribunal, Kolkata Bench holding its Circuit at Port Blair (for short "the Tribunal") in OA/351/00720/2019/AN is under challenge at the instance of the original applicants.

Before the learned Tribunal, the original applicants/ petitioners herein prayed for setting aside and quashing the order dated 17th May passed by the Superintending Engineer, Electricity Department, Andaman and Nicobar Administration and for a direction upon the respondent authorities to grant the grade pay of Rs.4200/- instead of Rs.2800/- from the date of their promotion to the post of Chargeman.

The original applicants were initially appointed as Fitter in the Electricity Department. Subsequently, they were promoted to the post of Chargeman and were awarded the grade pay of Rs.2800/-.

It is the case of the petitioners that the Junior Engineers of the Electricity Department were also not awarded the upgraded the pay scale on the ground of not having the degree and diploma in Engineering. The Government of India, Ministry of Power, New Delhi, vide letter dated 21.10.2008 granted the pay scale of Rs.5000-8000 to the non-diploma holder Junior Engineers of Electricity Department with effect

from 01.01.1996 putting the non-diploma holder Junior Engineers of the Electricity Department at par with the Junior Engineers having degree and diploma in Engineering. The petitioners allege that one Shri Jagjeevan Lall, who retired as Chargeman in the Electricity Department also did not have a degree or diploma in electrical or mechanical engineering, but was awarded the grade pay of Rs.4200/-. The petitioners submitted a representation before the respondent authority seeking grant of upgraded scale of pay of Rs.9300-34,800/- with Grade Pay of Rs.4,200/-. Such prayer stood rejected by the Order dated 17.5.19 which was challenged before the learned Tribunal.

The learned Tribunal, by the order impugned, rejected the claim of the petitioners on the ground that they are nondiploma holders and therefore, the benefit of either 5th Central Pay Commission Report (paragraph 50.23 and 50.24) or those granted by the Hon'ble High Court in other writ petition are not applicable to them.

Ms. Anjili Nag, learned advocate appearing for the petitioners/original applicants draws the attention of the Court to the notification dated 21.08.2008 in support of her contention that the Ministry has decided to grant the upgraded scale of pay of Rs.5000-8000 to the non-diploma holder Junior Engineers of the Electricity Department of Andaman and Nicobar Administration with effect from 01.01.1996.

By referring to the Recruitment Rules published vide notification dated 12.12.1975, she submits that qualification required for the post of Chargeman is 8th standard and he/she should have not less than ten years experience in that trade or should possess diploma in mechanical engineering with two years experience or should possess a trade certificate in the subject from a recognized institution with seven years experience. She, therefore submits that, diploma or decree in Mechanial/Electrical Engineering is not essential in order to be promoted to the post of Chargeman.

Ms.Nag further refers to the order No.299 dated 14th February, 2012 in support of her contention that several other Line Man Meter Reader (in short 'LMMR') who also did not possess requisite degree or diploma in Mechanical/Electrical Engineering were also granted the grade pay of Rs.4200/-.

Mr.

Lall, learned advocate representing Administration refers to an order of a Coordinate Bench dated November 30, 2012 and in particular refers to clause 50.23 of the Vth Central Pay Commission recommendations and submits that unless the applicants possess the degree or diploma qualification in Engineering, they are not entitled to the benefits of the said pay structure.

Heard the learned advocates appearing for the parties and perused the material placed.

After going through the order of the Superintending Engineer, this Court finds that the prayer of the petitioners for upgradation of pay scale of the post of Chargeman in Electricity Department from Rs.4500-7000 to Rs.5000-8000 was rejected by placing reliance on the reply of the Ministry vide letter dated 17.12.2009. It appears therefrom that the Ministry observed that Diploma in Electrical/Mechanical Engineering is an essential qualification for the post of chargeman in Electricity Department.

After going through the Recruitment Rules published vide notification dated 12th December, 1975, this Court finds that the feeder post for promotion to chargeman is Fitter. It further appears therefrom that Diploma in Electrical/Mechanical Engineering cannot be said to be an essential qualification in view of the expressions "or" used in clause 2 under serial Nos. 13 and 14.

It further appears from the said Recruitmetn Rules that Degree/Diploma in Electrical/Mechanical Engineering is an essential qualification for promotion to Junior Engineers. After going through the notification dated 21.08.2008, this Court finds that the Government of India, Ministry of Power vide notification dated August 21, 2008 decided to grant the upgraded scale of pay of Rs.5000-8000 to the non-diploma

Junior Engineers of the Electricity Department of the Andaman and Nicobar Administration with effect from 01.01.1996. It further appears from the order impugned that the said notification was relied upon in course of hearing of the original application.

However, the impugned order does not return any finding as to the applicability or otherwise of the said notification dated 21.08.2008.

Record reveals that one Jag Jeevan Lall was promoted to the post of chargeman from the post of LMMR. He was granted the revised pay scale in PB-2 Rs.9300-34800 + Grade Pay of Rs.4,200/-.

It further appears that Office Order No.299 dated 14.02.2012 was also part of the rejoinder filed by the original applicants before the Tribunal. The impugned order also does not take into consideration the fact that LMMRs were also granted the grade pay of Rs.4200/- in spite of the fact that they did not possess the diploma/degree in engineering. The fact that one Jag Jeevan Lall who has since retired as Chargeman of Electricity Department was also granted the grade pay of Rs.4200/- in spite of the fact that he only had the qualification of having passed AISSE and two years course of Electrician from Model Training Institute would be evident from the reply to the information sought for under the provisions of the Right to Information Act, 2005. It appears to this Court that a similarly situated employee was granted the grade pay of Rs.

4200/- and the learned Tribunal did not return any finding as to how the petitioner could have been denied similar benefit. Upon going through the notification dated 21.08.2008, this Court is of the prima facie view that the petitioners are entitled to the upgraded scale of pay of Rs.5000-8000. We are also of the prima facie view that Jagjeevan Lall, a similarly situated employee was extended the grade pay of Rs.4200/- without having the diploma or degree in engineering. The Order No.

grade pay of Rs.4200/-even without possessing the diploma or degree in engineering.

The learned Tribunal dismissed the Original Application on the ground that the benefits of 5th Central Pay Commission Report (Para 50.23 & 50.24) cannot be extended to the petitioners as they are Non-Diploma Holders. This Court is of the prima facie view that upgraded scale of pay as prayed by the petitioners could not have been rejected on the ground that they are non-diploma holders in view of the Government Order dated 21.08.2008 and the Office Order No.299 dated 14.02.2012.

These aspects have not been gone into by the learned Tribunal.

For the reasons as aforesaid, we are of the considered view that the Tribunal should be directed to decide the matter afresh in the light of the observations and findings in this order. The impugned order is accordingly set aside. The original application is restored to the file of the learned Tribunal and the learned Tribunal is directed to rehear the said original application upon giving an opportunity of hearing to the respective parties and pass a reasoned order in the light of the observations and findings given herein before, as expeditiously as possible but positively within a period of six weeks from the date of receipt of the server copy of this order.

With above observations and directions, WP.CT/13/2024 is accordingly disposed of.

Parties to act on a server copy of this order duly downloaded from the official website of the Hon'ble High Court at Calcutta.

( Moushumi Bhattacharya, J. ) ( Hiranmay Bhattacharyya, J. )