High Court
Case Details
WP(C) 2613/2010 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR. JUSTICE P. K. MUSAHARY JUDGMENT & ORDER (ORAL) (Ansari, J) By making this writ petition under Article 226 of the Constitution of In dia, the petitioner has put to challenge the order, dated 17.11.2009, passed, in Original Application (in snort, ’OA’) No. 140/2007, by the learned Member, Cent ral Administrative Tribunal, Guwahati Bench (hereinafter referred to as ’the lea rned Tribunal’), whereby the learned Tribunal has dismissed the OA No. 140/2007 and upheld the order, dated 14.03.2007, as well as the order, dated 09.01.2003, which stood impugned before the learned Tribunal, whereby the respondents herein have, in effect, reduced the petitioner’s pay scale from Rs. 14,300 - 18,300/- to Rs. 12,000 - 16,500/- and also directed recovery of the excess payment, which had been made to the petitioner before the reduction in the petitioner’s pay sc ale was ordered.
Legal Reasoning
We have heard Mrs. U. Dutta, learned counsel for the writ petitioner. W 2. e have also heard Mr. S. Chakraborty, learned Central Government Counsel, appear ing for the respondents. 3. as under: The material facts, which are not in dispute, may, in brief, be set out (i) The petitioner herein, who holds a degree in Civil Engineering, was appointed, on 19.09.1986, as Assistant Director (Group A), with effect from 29.09.1986, in the Directorate of Training, Central Water Commission, under the Ministry of Water Resources, Government of India, and he was promoted, on 01.10 .1993, to the next higher grade of Deputy Director/Executive Engineer (non-funct ional Junior Administrative Grade, in short ’JAG’) in terms of the Central Wager Engineering (Group A) Service Rules, 1995 (hereinafter referred to as ’the Serv ice Rules, 1995’), which came into effect on and from 02.11.1995. The criteria of eligibility for promotion to the post of JAG (Ordinary Grade) (Superintendin g Engineer/Director) read as follows: (cid:28)Officers in the senior time scale with 5 years regular service in the grade and possessing a degree in Engineering (Civil or Mechanical) or equivalent from a r ecognized University/Institute (cid:29). 4. Director/Executive Engineer was Director/Superintending Engineer. In terms of the Service Rules, 1995, the next higher grade for a Deputy 5. Following the 5th Central Pay Commission’s recommendations, the Ministry of Finance, Government of India, introduced, on 30.09.2007, Central Civil Servi ce (Revised Pay) Rules, 1997, w.e.f. 01.01.1996 and the Government of India issu ed, in this regard, Office Memorandum (in short, ’OM’), on 20.09.1997, wherein t he pay scale of Group-A Engineering Service were shown as under: (cid:28)Posts (a) Supdt. Engineer (b)Executive Engineer Pre-revised Scale 3700-125-4700-150-5000 3000-100-3500-125-4500 ) Corresponding revised scale 14300-400-18300 10000-325-15200 and 12000-375-16500 (Non functional JAG 6. By OM, dated 17.10.1997, Government of India, Ministry of Water Resource s, provisionally implemented the revised pay scale of Rs. 14,300-18,300/- in res pect of Superintending Engineer/Director of Central Water Engineering (Group A) Services, who had completed 13 years of service in Group ’A’ as per extent rules . Thereafter, the petitioner was promoted to the post of Director/Superintendin g Engineer (in the grade of JAG), on ad hoc basis, w.e.f. 11.10.1999, and his pa y was provisionally fixed in the scale of Rs. 14,300-18,300/-, i.e., his initial pay having been fixed at Rs. 14,300/- w.e.f. 11.10.1999. The petitioner accord ingly started drawing the pay scale of Rs. 14,300-18,300/-. By issuing OM, date d 06.06.2000, Government of India, DOP&T, introduced the following two grades: (i) The ’non-functional’ pre-revised pay scale of Rs. 4500-5700 (revised Rs. 14300-18300), applicable to the Superintending Engineers in the Central Public Works Department, was converted into a ’functional’ grade and promotion in this scale was made permissible only on competition of 13 years of regular service in Group ’A’. (ii) The ’functional’ pre-revised pay scale of Rs. 3700-5000/- (revised Rs. 1200 0-16500/-), applicable to the Superintending Engineers as the first grade on the ir promotion from the posts of Executive Engineers was made ’non-functional’ gra de for Executive Engineers in the pre-revised pay scale of Rs. 3000-4500/- (revi sed Rs. 10000-15200/-). 7. The above mentioned OM, dated 06.06.2000, was followed by another OM, da ted 20.12.2000, whereby the OM,. dated 06.06.2000, was modified by laying down t hat in order to be entitled to be put in the ’functional grade’ Rs. 143000-18300 0, an incumbent has to put 9 years of regular service in the grade of Executive Enginer. 8. With the issuance of the modified OM, dated 20.12.2000, the problems for the present petitioner commenced inasmuch as an order was issued by the respond ents, on 06.06.2001, reducing his pay scale from 14,300-18,300/- to Rs. 12,000-1 6,500/- and also directing recovery of the excess amount, which, in the meanwhil e, the petitioner had received in the pay scale of Rs. 14,300-18,300/-. 9. Thereafter, a detailed representation was made by the petitioner, on 02. 07.2001, against the reduction of his pay scale and also the recovery of the all eged excess amount, which he had received. In his said representation, the peti tioner clearly pointed out that though he was promoted to the grade of Director/ Superintending Engineer, on ad hoc basis, w.e.f. 11.10.1999, and his promotion w as regularized by holding Departmental Promotion Committee (in short, ’DPC’), on 08.06.2001, the fact of the matter remained that posts, in the grade of Directo r/Superintending Engineer, were lying vacant even on the date of his ad hoc prom otion to the grade of Director/Superintending Engineer and that the holding of t he DPC was delayed for no fault of the petitioner. 10. In response to the representation, so made, the respondents passed an or der, on 14.03.2007, whereby they pointed that, in terms of the modified OM, date d 20.12.2000, aforementioned, a person was required to put in minimum 9 years of regular service in the grade of Executive Engineer in order to receive the pay scale of Rs. 14,300 - 18,300/- on promotion to the grade of Director/Superintend ing Engineer, but, as the petitioner had not completed the requisite 9 years of regular service in the grade of Executive Engineer, he was not entitled to recei ve the pay scale of Rs. 14,300-18,300/-. With this observation, the petitioner’ s representation was turned down. 11. It is basically in the above factual background that the petitioner made the OA No. 140/2007, which came to be dismissed by the impugned order, dated 17 .11.2009, passed by the learned Tribunal.
Decision
12. While considering the present writ petition, it is of paramount importan ce to note that, in the light of the OM, dated 30.09.1997, aforementioned, the p etitioner would have received the pay scale of Rs. 14,300-18,300/-, but for the modified OM, dated 20.12.2000. However, while dealing with the petitioner’s cas e, what appears to have escaped the attention of the respondents and also of the learned Tribunal is that the validity of the OM, dated 20.12.2000, had been put to challenge in a writ petition, before this Court. As the writ petition was d ismissed, the petitioners preferred an appeal and the appeal came to be conclude d by judgement and order, dated 01.04.2009, passed by a Division Bench of this C ourt, in WA 07/2006, whereby the Division Bench pointed out and held that as far as the OM, dated 20.12.2000, aforementioned was concerned, the same was illegal , because the conditions of service could not have been modified, changed and/or altered by issuance of an Office Memorandum, when the Service Rules, 1995, were holding the field and that the conditions of service of persons, such as, the p resent petitioner, were governed by the Service Rules, 1995. With the conclusio ns, so reached, the Division Bench allowed the appeal and set aside and quashed the OM, dated 20.12.2000, aforementioned. Dissatisfied with the decision of this Court, whereby the OM, dated 20.12.2000, had been set aside, the respondents ca rried the matter, by way of Special Leave Petition, to the Supreme Court. It is not in dispute before us that the Supreme Court has upheld the conclusion, whic h had been reached by this Court that the OM, dated 20.12.2000, was not sustaina ble in law. 13. What surfaces from the above discussion is that the OM, dated 20.12.2000 , aforementioned has to be treated as non est in law. The requirement, therefor e, of a person having put in 9 years of regular service in the grade of Executiv e Engineer, in order to enable him to receive pay scale of 14300-18300/-, on bei ng promoted to the grade of Director/Superintending Engineer, has become non est and is not enforceable in law. With the OM, dated 20.12.2000, having been held as invalid, the petitioner was, obviously, entitled to receive the pay scale of Rs. 14,300-18,300/- on his promotion to the grade of Director/Superintending En gineer. 14. The limited question, which, however, remains to be answered, is: What w ould be the effective date of drawing of the pay scale of Rs. 14,300-18,300/- by the petitioner ? 15. While considering the question, posed above, it needs to be noted that t he petitioner was promoted, on ad hoc basis, to the grade of Director/Superinten ding Engineer, in the pay scale of Rs. 14,300-18,300/-, w.e.f. 11.10.1999. He w as, however, regularly promoted to the said grade on 08.06.2001. In the backdro p of these facts, whether the petitioner would receive the pay scale of Rs. 14,3 00-18,300/-, meant for the grade of Director/Superintending Engineer, w.e.f. the date of his ad hoc promotion, which took place on 11.10.1999, or w.e.f. his reg ular promotion, which was granted to him on 06.06.2001 ? 16. While seeking answer to the above question, it is pertinent to note, whi ch we have already indicated above, that the petitioner had made representation, on 02.07.2001, against the reduction of his pay scale and against the recovery of the alleged excess payment, made to him, by pointing out that no regular DPC had been held at the time, when he was granted promotion, on ad hoc basis, to th e grade of Director/Superintending Engineer. While responding to the petitioner ’s representation, the respondents had not disputed this factual assertion of th e petitioner and took shelter of the OM, dated 20.12.2000, aforementioned in ord er to justify their action of directing reduction of pay scale of the petitioner and recovery of the alleged excess payment made to him. 17. Considering the fact that it has remained undisputed by the respondents that when the petitioner was promoted to the grade of Director/Superintending En gineer, posts, in the grade of Director/Superintending Engineer, were lying vaca nt, but no DPC was convened and that the petitioner received regular promotion o nly when DPC was held, we have no hesitation to hold, and we do hold, that the p etitioner’s promotion ought to have been, and must be, treated to have related b ack to the date of his ad hoc promotion, i.e., 11.10.1999, and, in fact, the pet itioner had been receiving pay scale of Rs. 14,300-18,300/- until the time the O ffice Order, dated 06.06.2001, was issued reducing his pay scale from Rs. 14,300 -18,300/- to Rs. 12,000-16,500/- on the strength of the OM, dated 20.12.2000, wh ich has already been held to be invalid by this Court. Because of what have been discussed and pointed out above, this writ pet 18. ition succeeds. The order, dated 17.11.2009, passed by the learned Tribunal, is hereby set aside. We also set aside and quash the Office Order, dated 06.06.20 01, as well as the Office Order, dated 14.03.2007, and, in consequence thereof, we hold and direct that the petitioner shall be treated as a person entitled to receive pay scale of Rs. 14300-18300/- w.e.f. 11.10.1999 (i.e., the day of his a d hoc promotion) and the same shall be made available to him. We further direct that the deductions, if any, which may have been made from the petitioner’s sal ary and allowances in consequence of the Office Order, dated 06.06.2001, shall b e returned to the petitioner. 19. nd disposed of. With the above observations and directions, this writ petition shall sta 20. No order as to costs.