The Union Of India (Uoi) And Ors. vs All India Cpwd Office Staff ...
2005 Latest Caselaw 322 Del

JUDGMENT

Vijender Jain, J.

1. This writ petition challenges the order passed by the Tribunal insofar as it allowed the OA of the respondent to grant the benefit of the Fifth Pay Commission for the higher scale on the basis of the arbitration award, from 1st of January, 1996. Mr. Bhardwaj learned counsel appearing for the petitioner has vehemently contended that this could not have been done in view of the order dated 14th August, 2003, which is to the following effect:-

3. Now the issue of payment of benefits of higher scale of Rs. 5600-200-10500 to these 32 in all Circle Office Superintendents Gr.1 effective from 1.1.96 was under examination in consultation with the M/o UDandPA and M/o Finance and Co. Affai Rs. It has been advised by the M/o Finance and Co. Affairs that higher pay scale of Rs. 6500-200-10500 could actually be extended to the concerned officials only with prospective effect and not retrospectively from 1.1.96 either on notional or on actual basis.

4. The competent authority in the CPWD had decided to implement advice given by the M/o Finance. Accordingly, higher pay scale of Rs. 6500-200-10500 could actually extend to 20 C.O.Ss upgraded from C.O.S. Gr. II to Gr. I vide Office Order No.165 of 1999 dated 1st September, 1999 from the date they took over the charge of post of C.O.S. Gr.I. Similarly, higher pay scale of Rs. 6500-200-10500 could actually be extended to 12 C.O. Ss. upgraded from C.O.S. Gr.II to Gr.I vide Office Order No. 2.7.2000-ECIV(C) Vol II dated 27th June, 2002 from the date they took over the charge of post of C.O.S.Gr.I.

5. In support of his contention, learned counsel for the petitioner has also placed reliance on State of Rajasthan and Anr. v. Gopaldas, and has cited para 7 of the judgment, which reads as under:-

The Rules providing for the revised pay scales were made by the State Government as a result of the recommendation of the Pay Commission which was headed by Mr. B.P. Beri, a former Chief Justice of the Rajasthan High Court. In the process of consideration of the recommendations of the Pay Commission and its implementation, the likelihood of various anomalies and omissions cannot be ruled out. An anomalies committee is normally appointed to straighten the discrepancies and deal with the omissions which might come to the notice of the Government after the initial process of pay revision. This was precisely what was done by the State of Rajasthan by issuing the fourteen notifications relating to different departments where under the revised pay scales which could not be included under the Rules, were provided and enforced. So far as the notification dated 23.1.1985 relating to the UDCs of subordinate offices is concerned, it was not with a view to remove any anomaly or to make any provision for a category which was left out of the Rules. It was a notification issued as a result of the acceptance of the demand of the UDCs of the subordinate offices for grant of higher pay scale which was given to their counterparts in the Secretariat. The High Court failed to appreciate that the factual basis for issuing the notification dated 23.1.1985 and the fourteen notifications relied upon by the High Court were entirely different. No fault could be found with the notification dated 23.1.1985 and the State Government was justified in granting revised S-10 to the respondent and other UDCs of subordinate offices with effect from 1.2.1985.

6. Mr. Bhardwaj has also contended that on the basis of the original award the total number of posts of Office Supdtts. in the revised pay scale was 20% and not 40%.

7. We have given our careful consideration to the arguments advanced by the learned counsel for the parties. The office order of the petitioner dated 27th June, 2002 is as under:-

It has been decided in consultation with Department of Personnel and Training and Department of Expenditure (Implementation Cell). Ministry of Finance it has been decided to place 40% of the posts of Office Superintendent in the revised pay scale of Rs. 6500-10500 w.e.f. 1.1.1996 in the existing sanctioned strength as on 1.1.1996 on the basis of arbitration award.

8. From the plain reading of the said office memorandum, it is clear that the placement of the post on higher scale was on the basis of the arbitration award and the effective date was 1st of January, 1996. The reliance placed by the learned counsel for the petitioner on order dated 14th August, 2003 is totally misplaced as said order is in total contradiction of the two orders issued by the petitioners themselves on 27th June, 2002. As a matter of fact in order to avoid payment to its own employees, respondent in spite of putting the posts on the higher scale from 1st January, 1996 wants to pay the scale from prospective dates which is not permissible.

9. The reliance placed by the learned counsel for the petitioner of Gopaldas case (Supra) is of no help to him as in the said case the Apex Court held that fourteen notifications were issued by the State of Rajasthan to remove anomalies in different departments and to straighten the discrepancies. The Supreme Court had opined that normally anomaly committees are appointed to meet such situations.

10. It seems that earlier the Tribunal, in view of the stand of the petitioner which has been vehemently argued before us by the learned counsel for the petitioner, had directed the petitioner to constitute an Anomaly Committee. The Anomaly Committee recommendation is at page 87 of the paper book. It is relevant to quote from the said recommendation, which reads as under:-

Shri Ashok Kumar and 14 others, all Circle Office Supdtts. of CPWD had filed an application in CAT Pr.Bench praying that all the Office Supdtts. (if that is not granted at least 40% of them) in CPWD may be placed in the scale of Rs. 6500-10500 w.e.f. 1.1.96. The prayer for granting the above scale at least for the 40% of the Supdttds. is based on the fact that as per the arbitration award dated 30.7.84, 40% of the posts of Circle Office Supdtts. in CPWD were to be placed in the scale of Rs. 550-900 (scale prior to the 4th Pay Commissions recommendations) and the rest were to be placed in the scale of Rs. 550-750. The prayer for grant of the scale of Rs. 6500-10500 to all the Circle Office Supdtts. was on the ground that their counter-parts in DDA and Delhi Administration are getting this scale. The application is at page 1-11/cor.

CAT has disposed of this application vide order dated 8.11.2000 with the following directions-the course open to us, therefore, is to direct the respondents to refer the matter to a Special Departmental Anomaly Committee which they could always constitute to sort out such issues and take a decision thereon. We would, therefore, direct respondents to refer the matter to a specially constituted Anomaly Committee which should take into account, before making recommendations, the implications of the acceptance of the award and also other factors placed before us. In ordering the above, we have taken note of the fact that the Ministry of Finance as nodal Ministry for the purpose of the recommendations of the 5th Pay Commission had themselves approved the continuance of the award but their views on this were belatedly received and could not be placed before the Commission. We further direct the respondents to allow the applicants to state their views before the Special Anomaly Committee. The order may be complied with within a period of 2 months from the date of receipt and within next two months, the recommendations/decision taken in the matter should be implemented.

11. After consulting Finance Division, Department of Personnel and Training, a Committee was constituted under the Chairmanship of AS(UD) with ADG (SandP), CPWD, Director (F) and Director (Works), M/o UD and PA as Membe Rs. The Committee first met on 12.2.01 and considered the matter. It was observed that prior to recommendation of the 4th Pay Commission, 40% of the circle Office Supdtts. were in the scale of Rs. 550-900 and 60% in the scale of Rs. 550-750. The 4th Pay Commission recommended the replacement scales of Rs. 1600-2660 for Supdtts. in the scale of Rs. 550-750 and Rs. 1640-2900 for the Supdtts. in the scale of Rs. 550-900. The 5th Pay Commission granted the scale of Rs. 5500-9000 for Office Supdtts. in the scale of Rs. 1600-2660 for all Office Supdtts working in organisations outside the Secretariat. For the Supdtts. of CPWD, Pay Commission has specifically recommended the scale of Rs. 5500-9000 for those in the scale of Rs. 1600-2660. The Commission has further recommended that out of the 80 posts of Supdtts., 20 may be placed in the scale of Rs. 6500-10500.

12. The committee also heard the applicants (11 of the 15 applicants attended the meeting) on 14.2.2001. The applicants gave special emphasis on the fact that as per the Arbitration Award, the Supdtts. in the CPWD were in 2 scales in the ratio of 40:60 and, therefore, the 5th Pay Commission could not give the higher scales to 40% of the Supdtts. and thus the sanctity of the award has been violated. They were adamant that 40% of the Supdtts. be placed in the scale of Rs. 6500-10500 as the Pay Commission has given; the scale of Rs. 5500-9000 to the Supdtts., in the scale of Rs. 1600-2660. They also stated that all the Supdtts. in DDA, MCD etc. are getting the scale of Rs. 6500-10500. They requested that if not 100% at least 40% of them may be placed in the scale of Rs. 6500-10500.

13. The Committee further met on 14th Feb itself and discussed the case taking into consideration the statements given by the applicants. The Committee felt that the fact that the Supdtts. of CPWD are in two scales of Rs. 1660-2660 and Rs. 1640-2900 in the ratio of 60:40 as per Arbitration Award could not be brought to the notice of 5th CPC. Committee also felt that had the fact been brought to the knowledge of CPC, perhaps the Commission could have recommended 40% of the posts in the higher scale of Rs. 6500-10500 instead of 20 posts. Committee felt that 40% of the 80 posts (posts in existence at the time of Pay Commission made its recommendations) may be placed in the higher scale of Rs. 6500-10500. This is, however, subject to approval by Ministry of finance and Department of Personnel and Training.

14. It was also decided that CPWD may apprise CAT that the recommendation of the Committee has been sent for approval of Government and obtain extension of time by 3 months for implementation of the judgment.

15. In view of the Anomaly Committee recommendation, instead of opposing the matter before Tribunal and now before this Court, the petitioner was required to implement the recommendation from 1st of January, 1996 as directed by Central Administrative Tribunal.

16. We find no merit in this writ petition.