Sh. Jiwan Singh vs Union of India (UOI) and Others

Anil Kumar, J.—The petitioner has challenged the order dated 27th November, 2009 passed by the Central Administrative Tribunal, Principal Bench in O.A No. 865/2009 titled Sh. Jiwan Singh v. Union of India and Ors. dismissing the original application filed by the petitioner u/s 19 of Administrative Tribunal Act, 1985 seeking direction to the respondent to accord the appropriate grade and pay scale on grant of first ACP with effect from 9th August, 1999 in the scale of Rs. 4000- 6000/- and second ACP with effect from 30th September, 2004 in the scale of Rs. 4500-7000/- with all consequential benefits along with interest at 12% per annum from the date it became due.

Brief facts to comprehend the controversies are that the petitioner was appointed as a Civilian Cook in 6 para Regiment at Agra with effect from 28th September, 1980. On completion of his term of engagement he was adjusted under surplus and deficiency Scheme in the same grade and pay with effect from 28th September, 1982 and posted to 510 Army Base Workshop, Meerut.

The petitioner was granted pay scale of Rs. 3050-4590/- as replacement scale of 5th Central Pay revision. Under the Assured Career Progression Scheme, two financial upgradations on completion of 12 years and 24 years were required to be given. Since the petitioner was in isolated post, therefore, an anomalous situation arose in implementation of the scheme. The anomaly was referred to DOPT for clarification pursuant to which an O.M No. 35034/1/97-Estt (D) Vol. II dated 10th February, 2000 was issued regarding implementation of ACP Scheme.

The relevant clarification No. 10 issued is as under:

10 For isolated posts, the For isolated posts, the scale of pay for ACPs as recommended scales of pay for ACPs shall by the Pay Commission may be be the same as those implemented and not applicable for similar posts the standard/common in the same Ministry/Department/Cadre pay-scales indicated vide except where the Pay Annexure-II of the Office Commission has recommended specific pay Memorandum dated August 9, 1999. scales for mobility under ACPs. Such specific cases may be examined by respective Ministries/Departments in consultation with the Department of Personnel and Training. In the case of remaining isolated posts, the pay scales contained in Annexure - II of the Office Memorandum dated August 9, 1999 (ACPS) shall apply.

The petitioner was given financial upgradation in the scale of Rs. 3200-4500/- in the non existing grade with effect from 9th August, 1999 and on grant of second ACP his pay has been fixed in the pay scale of Rs. 4000-6000/- with effect from 30th September, 2004.

The petitioner challenged his pay fixation pursuant to the above noted clarification and relying on Ministry of Defence communication No. 1 1(1)/2002/D (Civ) dated 20th May, 2003 stipulating cadre restructuring of Artisan Staff in Defence Establishment which provides the scale of Rs. 3050-4590/- to the skilled; Rs. 4000-6000/- to highly skilled and Rs. 4500-7000/- to Master Craftsman. Consequently, the petitioner claimed that the first financial upgradation ought to have given to him in the scale of Rs. 4000-6000/- and second financial upgradation should be in the scale of Rs. 4500-7000/- with effect from 30th September, 2004 and not Rs. 3200-4900/- with effect from 9th August, 1999 and second upgradation in the pay scale of Rs. 4000- 6000/- with effect from 30th September, 2004 which according to the petitioner is based on a non existing grade.

The claim of the petitioner was resisted by the respondents contending inter-alia that petitioner is a cook and he is holding an isolated post but he does not belong to the skilled category to which the communication dated 20th May, 2003 is concerned, as the post of Civilian Cook has not been categorized as a skilled category and, therefore, the petitioner is not entitled for skilled category grades. The respondents also contend that his case falls in the residuary Clause 2 of the clarification No. 10, therefore, he is only entitled for financial upgradation to the pay scale of Rs. 3200-4900/-.

The Tribunal has held that since the post of the petitioner as a Civilian Cook was an isolated post, therefore, the pay scale would be the same as applicable to the similar post in the same Ministry/Department/Cadre. On the basis of clarification No. 10 it was further held that the case of the petitioner does not fall in the first clause of the aforesaid clarification and his cases has to be examined under the second clause providing that the pay scales contained in Annexure II of O.M dated 9th August, 1999 would apply. Consequently, the Tribunal has declined the relief sought by the petitioner and dismissed the original application.

The learned Counsel for the petitioner has raised the same pleas and contentions before this Court which had been raised before the Tribunal. In view of the clarification No. 10 and the admitted fact that the Civilian Cook is an isolated post, it cannot be denied that Annexure II of the office memorandum dated 9th August, 1999 (ACPS) shall apply. This also has not been disputed by the petitioner and cannot be disputed that in terms of communication dated 28th March, 2001, the revised pay scale of the petitioner was Rs. 3050-75-3950-80-4590/- (S5). As per Annexure II of the office memorandum the S6 grade is Rs. 3200-85-4900/- and S7 grade is Rs. 4000-100-6000/-. Consequently, under the ACP following the clarification No. 10 from the scale of Rs. 3050-4590/-, on first upgradation the petitioner shall be entitled to the pay scale of Rs. 3200-85-4900/- and on second upgradation the petitioner shall be entitled for Rs. 4000-6000/- and on first upgradation he shall not be entitled for the pay scale of Rs. 4000- 6000/- from Rs. 3050-4590/- as has been claimed by the petitioner. The plea of the petitioner in the facts and circumstances is not sustainable and the findings of the Tribunal cannot be faulted nor there is any such illegality or irregularity in the order of the Tribunal dated 27th November, 2009 which shall require any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

The writ petition is, therefore, without any merit, and it is dismissed.