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Judgment
O R D E R
Justice K.Haripal
Applicants 1 to 3 are Junior Engineers(Quantity Surveying and Contracts) in Military Engineer Services, MES for short, whereas the 4th applicant is an Assistant Engineer(Civil). All are aggrieved by the non-granting of the benefit of bunching in terms of illustration 4A of Rule 7(1) of CCS(RP) Rules, 2008. So, they made representations before the respondents. The representation made by the 1st applicant and All India MES Civil Engineers Association have been rejected by Annexure-A10 order, which is under challenge. The respondents have taken the stand that the benefit of Annexure-A1 order of the Jaipur Bench of this Tribunal cannot be extended to non-applicants. Aggrieved by the same, the applicants have moved this Tribunal seeking to quash Annexure-A10, to direct the respondents to extend the benefit of Annexure-A1 final order to the applicants by granting them the benefit of bunching as per illustration 4A of Rule 7(1) of the CCS(RP) Rules on fixation of pay in the upgraded pay scale of Rs.7450-11500 with consequential benefits including payment of arrears with effect from 01.01.2006 with interest and exemplary costs.
The definite case of the applicants is that, as on 01.01.2006, they were in pre-revised scale of Rs.6500-10500, which was upgraded to the pre-revised scale of Rs.7450-11500, pursuant to the Office Memorandum issued by the Ministry of Expenditure dated 13.11.2009, Annexure-A1/R1. But while fixing the upgraded pay scale the affected employees of the Military Engineer Services were denied the benefit of bunching. Aggrieved by the same, some of them approached the Jaipur Bench of this Tribunal with O.A.s 141/2012 to 146/2012, which were allowed by Annexure-A1 order dated 28.02.2013. Accordingly, benefits were granted to the applicants in those O.A.s. However, when the All India MES Civilian Engineers Association moved representation, the respondents have taken the stand that those benefits are applicable only to the applicants in those O.A.s, which cannot be extended to non-applicants, who were similarly placed. Referring to Annexures-A4 and A5 communications, it is pointed out that benefit of bunching has been extended to the Assistant Engineers of CPWD and officers similarly placed in the IT Department.
According to the applicants, the stand of the respondents that the applicants are not entitled to get the benefits is illegal, arbitrary and therefore liable to be interfered with.
This is the second time that the matter comes up before this Tribunal for disposal. Earlier, the respondents filed a cryptic reply statement contending that the benefits of Annexure-A1 order of the Jaipur Bench cannot be extended to the applicants. Rejecting the same by order dated 19.12.2018, this Tribunal disposed of the O.A. directing the respondents to extend the benefits to the applicants as well, and to pass orders within a period of two months from the date of receipt of a copy of the order. Even though initially the respondents had sought extensions of time, later they moved the Hon’ble High Court with OP(CAT) 29/2020. The High Court, on the premise that there is no proper consideration of the contentions of the parties, set aside the order and directed this Tribunal to restore the O.A., leaving opportunity to the respondents to file a detailed affidavit. Thus, the case came back to the Tribunal again.
Pursuant to the said direction, the respondents filed affidavit contending that the applicants are not entitled to get the benefit of bunching. According to them, the 1st applicant was drawing Rs.8,100/- in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 by way of personal pay. Annexure-A1 order is not applicable as the Jaipur Bench was dealing with cases of Technical Officers who were drawing in pre-revised scale of Rs.6500-10500. But such a benefit cannot be extended to the applicants for the following reasons.
Recruitment Rules for the posts of JE(QS&C) and Technical Officer are different and both belong to different categories;
Substantive pay scale of Technical Officers as per 5th CPC is Rs.6500-10500 (corresponding to 6th CPC (PB 2 Rs.9300-34800 with grade pay of Rs.4,600/-), whereas that of JE(QS&C) as per 5th CPC is Rs.5000-8000 (corresponding to 6th CPC PB 2 Rs.9300-34800 with grade pay Rs.4,200/-);
The pay scales of Technical Officers has been upgraded from Rs.6500-10500 to Rs.7450-11500 (corresponding to revised pay band PB 2 of Rs.9300-34800 with grade pay of Rs.4,600/-) with effect from 01.01.2006 vide Government of India, Ministry of Defence letter No. B/770330/VI CPC/Gp'B' Offrs/CSCC/757/2010/D (Works-II) dated 15.03.2010, Annexure-R5;
Illustration 4A of Note 2A of paragraph 7(1) of CCS(RP) Rules 2008 is not applicable to JE(QS&C) as the pay scale of Rs.5000-8000 only and not Rs.6500-11500 and hence not upgraded to the pay scale of Rs.7450-11500 in terms of Government of India, Ministry of Finance Department of Expenditure OM No.F.1/1/2008-IC dated 13.11.2009, Annexure-A11/R11, as in the case of Technical Officers.
According to the respondents, the claims of the applicants are misleading. The proper equivalence of post of AEs of CPWD and Assistant Valuation Officers of Income Tax Department are that of AEs of MES and not JEs. Moreover, since pay scales of the Technical Officers and JEs are different, the benefit of the dictum in Annexure-A1 cannot be extended to the applicants. The applicants are not similarly situated. The JEs are holding non-gazetted posts, Recruitment Rules are different, substantive pay also is different and therefore, according to them, the applicants are not entitled to get any relief.
The applicants filed a rejoinder stating that the positive averments made in the O.A. regarding the scale of pay are not met in the reply affidavit filed by the respondents. Referring to Annexure-A10(a) statement of fixation of the 1st applicant, it is stated that he had been getting pay of Rs.8,100/- in the scale of pay of Rs.6500-10500 and therefore they are entitled to get the benefit of bunching. The contention that Junior Engineers were getting pay of Rs.5000-8000 has no relevance. But for the difference in designation the applicants were drawing at the scale of Rs.6500-10500 on 01.01.2006.
The respondents filed an additional reply contending that Technical Officers who are applicants in Annexure-A1, are Group-B Gazetted Officers, whereas JE/Draftsman, who was drawing at the scale of Rs.5000-8000 with grade pay of Rs.4200/- is a Group-C non-Gazetted post. They were granted scale of Rs.6500-10500 with grade pay of Rs.4,600/- only on non-functional basis, on grant of ACP after putting in 12 years of service. Thus they reiterated the stand that the applicants are not entitled to get the benefit.
The applicants filed an additional rejoinder reiterating the earlier contentions and also producing Annexures-A12 and A13 documents.
We heard Sri.R.Sreeraj, learned counsel for the applicants and Sri.N.Anilkumar, learned ACGSC for the respondents, in detail.
The facts of the case are not in dispute. The applicants 1 to 3 are Junior Engineers (QS&C), who were drawing in non-functional scale of Rs.6500-10500 as on 01.01.2006, whereas the 4th applicant is holding a substantive post of Assistant Engineer. The case of the applicants is that the respondents failed to grant the benefit of bunching as per illustration 4A of Rule 7(1) of CCS(RP)Rules. The relevant Rule reads thus:
“Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands……………..”
When such benefit was denied to the Technical Officers of the MES, they approached the Jaipur Bench of this Tribunal and in Annexure-A1 order, their applications were allowed and benefits were granted to them. The applicants claim that they are also similarly placed and thus approached the respondents. But the representations were rejected on the ground that the benefit of Annexure-A1 order cannot be extended to them as the applicants or the members of the association were not applicants before the Tribunal. To put it in other words, in Annexure-A10 or Annexure-R2 or other communications sent by the respondents, initially they had no case that the benefit is not extendable to similarly placed employees. They took a highly technical stand that Annexure-A1 is a judgment in personam, so that it is of no avail to the non-applicants.
Only during the second phase of hearing, after the restoration of the O.A., the respondents raised the contentions that the applicants are holding substantive posts of JE(QS&C) with scale of Rs.5000-8000, that Recruitment Rules of JEs and Technical Officers/AEs are different, that JE is a non-Gazetted Group-C post, whereas AE/TO is a Group-B Gazetted post etc.
As rightly pointed out by the learned counsel for the applicants, after the order was passed by this Tribunal on 19.12.2018, the respondents sought extensions of time, for more than once, for implementing the same. After much dilly and dallying they moved the High Court, noticing that the respondents did not file a proper reply, the case was returned to this Tribunal. It is very clear from Annexure-A11/R11, that the posts in the scale of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 were merged and upgraded to the higher scale of PB2 with grade pay of Rs.4,600/- corresponding to the pre-revised scale of Rs.7450-11500.
Note 2A of Rule 7 of the CCS(RP) Rules reads thus:
"NOTE 2A. Where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1-1-2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition. Illustration 4A in this regard is in the Explanatory Memorandum to these Rules.” It deals with cases of upgradation of the post. Similarly, note 2B deals with merger of pay scales. In this connection, Annexure-R19 communication dated 01.07.2022 issued from the office of the Engineer-in-Chief's Branch has some relevance. After referring to Notes 2A and 2B dealing with IIlustrations 4A and 4B, it reads thus:
“ (c) While going through the description of Note 2A & Note 2B as well as description of Illustration of 4A & Illustration 4B, it can be concluded that the methodology adopted in pay fixation in respect of both the categories i.e. upgradation or merger are identical.
(d)Actually the term upgradation of the post has been used keeping in view of the departments where pre-revised scale 7450-11500 is not existing for example MES. However the term merger of the pay scales has been used keeping in view of departments where pre-revised scale 7450-11500 is already existing.
(e)Only one Note & only one Illustration applicable to both categories i.e upgradation as well as merger would have been sufficient and confusion would have been avoided upto greater extent.
3.The clarification given in OM No. F.No. 1/1/2008-IC dated 13 Nov 2009 is applicable to the employees whose pay still has not been upgraded to the grade pay of Rs 4600/-corresponding to the pre-revised scale 7450-11500 but has been fixed with grade pay of Rs.4200/- only, enabling them to get their pay re-fixed with grade pay Rs.4600/- corresponding to pre-revised scale of 7450-11500. However, it has been categorically mentioned in Para 4 of the letter that the pay is to be re-fixed as per Illustration 4A.
4.Regarding the benefit of bunching, the same is to be given if admissible. Copy of fitment table in r/o pre-revised scale Rs. 3050-75-3950-80-4590 scale Rs.5000-150-8000 and scale Rs. 6500-200-10500 is enclosed, which includes the effect of bunching also wherever applicable.” From a reading of Notes 2A and 2B of CCS(RP) Rules, it is very clear that what is relevant is the existing basic pay as on 01.01.2006 (emphasis supplied) and not the post or designation.
It is not relevant how the basic pay was acquired. In other words, whether it was acquired by non-functional basis or as substantive pay is not relevant. In this connection, Rule 3(1) of the CCS(RP) Rules defines 'existing basic pay' as, 'pay drawn in the prescribed existing scale of pay, including stagnation increment(s), but does not include any other type of pay like ‘special pay’ etc'. Similarly, 'existing scale' is defined as 'the present scale applicable to the post held by the Government servant (or, as the case may be, personal scale applicable to him) as on the 1st day of January 2006 whether in a substantive or officiating capacity'. That means, what is important is the scale drawn by the officer on the relevant date notwithstanding the question whether it was substantive pay or personal pay. In the circumstances, the belated contentions of the respondents that the applicants were holding substantive post of JE, their erstwhile pay was Rs.5000-8000 etc. pale into insignificance.
In this context, it is also important to underscore that in all the reply statements, the respondents have ignored the fact that the 4th applicant is working as Assistant Engineer. Even if all the contentions raised by the respondents are upheld, there is absolutely no justification in denying her the benefit of bunching as she holds an equivalent post.
Annexure-A1 has become final and stands implemented. Annexures-A4 and A5 indicate that the benefit of bunching has been granted to Assistant Engineers in the CPWD and Valuation Officers in the Income Tax Department. For the reason that the applicants 1 to 3 hold substantive post of JE(QS&C), benefit cannot be denied to them. Upgradation or merger, what is relevant and important is the basic pay held by them on 01.01.2006. There is no dispute on the claim that they were drawing at the scale of Rs.6500-10500 prior to 01.01.2006. Therefore, there is no justification in denying the benefits to them.
As indicated earlier, initially the respondents took the plea that being non-applicants in Annexure-A1, benefits cannot be extended to the applicants. At that stage they did not have a case that the applicants do not have entitlement to get the benefit. Without denying the claim they took a highly technical plea that Annexure-A1 is a judgment in personam. Thereafter, they continued to seek enlargement of time for implementing the order. At last they moved the High Court with an Original Petition. After the remand, they have taken untenable contentions. Now in Annexure-R20 dated 06.07.2018 and R21 dated 09.10.2019 they have gone to the extent that there is no bunching at all, which cannot stand judicial scrutiny. In fact, Annexure-A13 document dated 11.05.2022 indicate that the respondents, even after raising such a contention before this Tribunal, contemplated to extend the benefits to individual officers in the manner illustrated as 4A, after avoiding further litigation. All these show lack of consistency in the stands taken by the respondents besides expose their multiple standards.
After evaluating all these aspects we find that Annexure-A10 cannot stand. It is quashed. The respondents are directed to extend the benefit of bunching as provided in illustration 4A to Rule 7(1) of CCS(RP) Rules to the applicants. Orders shall be passed within a period of 60 days from the date of receipt of a copy of this order.
Original Application is allowed as above. No costs.
List of Annexures
Annexure A1: True copy of the order dated 28.2.2013 in OA 141/2012 to OA 146/2012 on the file of the Jaipur Bench of this Hon'ble Tribunal
Annexure A2: True copy of the Letter No. B/15006/637/E1B/E1 Legal(O) dated 12.8.2013 issued by the Engineer-in-Chief's Branch
Annexure A3: True copy of the Letter No.B/10601/Bunching/274/ E1B(P&A) dated 30.8.2017 issued by the Engineer-in-Chief's Branch
Annexure A4: True copy of the the OM No. 8/52/2011-EC.III dated 10.3.2017 issued by the Director (Admin)-1, Directorate General, Central Public Works Department
Annexure A5: True copy of the Revised Pay Fixation No SOL/Jt.CIT/R-1&2/Est/Pay Fixation/BV/ 2015-16 dated 26.2.2016 issued by the Joint Commissioner of Income Tax, Range-1 & 2, Solapur
Annexure A6: True copy of the representation dated 1.7.2016 submitted by the 1st applicant to the 3rd respondent
Annexure A7: True copy of the reminders dated 17.11.2016 submitted by the 1st applicant to the 3rd respondent
Annexure A8: True copy of the reminders dated 21.3.2017 submitted by the 1st applicant to the 3rd respondent
Annexure A9: True copy of the representation dated 19.5.2017 submitted by the 1st applicant to the 3rd respondent
Annexure A10: True copy of the Letter No. 170101/CE (NW) Kochi/THU/EIR (P/F-III) dated 24.8.2017 issued on behalf of the 3rd respondent
Annexure A-10(a): True copy of the Statement of Fixation of Pay of the 1st applicant under CCS (RP) Rules 2008
Annexure A-11: True copy of the Government of India, Ministry of Finance, Department of Expenditure OM F No. 1/1/2008-IC dated 13.11.2009
Annexure A-12: True copy of the final order dated 14.9.2018 in OA 314/2018 on the file of the Guwahati Bench of this Hon'ble Tribunal
Annexure A-13: True copy of the Letter CC-B/77030/VICPC/ Upgradation-Bunching/CSCC dated 11.5.2022 issued by the Dir(Pers)/CSCC, Office of the 2nd respondent
Annexure- R1 True copy of the Letter dated 05.05.2017.
Annexure- R2 True copy of the letter dated 16.6.2017.
Annexure – R3 True copy of order dated 19.12.2018 in OA No.279/2018.
Annexure-R4 True copy of order dated 29.01.2020 in OP (CAT) No.29/2020.
Annexure-R5 True copy of Letter No. B/770330/VI CPC/Gp.
"B"Offrs /CSCC/757/ 2010/ D (Works-II) dated 15.03.2010.
Annexure-R6 True copy of Recruitment Rules for the post of JEs (QS &C).
Annexure-R7 True copy of Recruitment Rules for the post of TOS.
Annexure-R8 True copy of Rule 7(1) of Civilian in Defence Service (Revised Pay) Rules 2008
Annexure-R9 True copy of Note 2A of Civilian in Defence Service (Revised Pay) Rules 2008
Annexure-R10 True copy of illustration 4A of Civilian in Defence Service (Revised Pay) Rules 2008.
Annexure-R11 True copy of OM No. F.1/1/2008 IC dated 13.11.2009
Annexure-R12 True copy of CAT Jaipur Bench's order dated 28.02.2013 in OA No. 141/2012 to 146/2012.
Annexure-R13: True copy of RTI application of Shri V K Abdulla and reply to RTI by the respondent No-
Annexure-R14: True copy of order dated 02.01.2019 in OA No. 798/2016 of Hon'ble CAT Jaipur Bench
Annexure-R15: True copy of letter No. B/770330/VI CPC/ Gp'B'Offrs/ CSCC/757/2010/D (Works-II) dated 15 Mar 2010
Annexure R-16: True copy of Recruitment Rules for the post of JEs (QS & C)
Annexure R-17: True copy of Recruitment Rules for the post of TOs
Annexure-R18: True copy of Hon'ble CAT Jaipur Bench order dated 28 Feb 2013 in OA No. 141/2012 to 146/2012
Annexure R-19: True copy of Engineer-in-Chief's Branch, New Delhi vide letter No CC-B/77030/VICPC/Upgradation-Bunching/CSCC dated 01 July 2022.
Annexure R-20: True copy of Govt. of India,Ministry of Finance, Department of Expenditure ID No 689165/E.III(A)/2018 dated 06 July 2018.
Annexure R-21: True copy of Govt. of India, Ministry of Finance, Department of Expenditure F.No.3-26/2019-E.III-A dated 09 Oct 2019.
Annexure MA-1 : True copy of order dated 19.12.2018 in OA No. 279 of 2018.
Annexure MA-2: True copy of letter No.136858/KAHO/43/LC dated 26.03.2019
Annexure MA-3 - True copy of order dated 28.05.2019.
Annexure MA-4 - True copy of letter No. 136858/KAHO/58/LC dated 02.08.2019