Sh.Jiwan Singh vs Union Of India & Ors
2010 Latest Caselaw 1523 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.405/2010

%                       Date of Decision: 18.03.2010

Sh.Jiwan Singh                                             .... Petitioner
                     Through Mr.V.P.S.Tyagi, Advocate.

                                 Versus

Union of India & Ors                                 .... Respondents
                  Through     Mr.D.S.Mahendru, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be            YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?              NO
3.     Whether the judgment should be reported             NO
       in the Digest?



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 & Ors

dismissing the original application filed by the petitioner under Section

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 scales of pay for ACPs shall

recommended by the be the same as those

Pay Commission may applicable for similar posts

be implemented and in the same

not the Ministry/Department/Cadre

standard/common pay- except where the Pay

scales indicated vide Commission has

Annexure-II of the recommended specific pay

Office Memorandum scales for mobility under

dated August 9, 1999. 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.11(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.

ANIL KUMAR, J.

MARCH 18, 2010                                   MOOL CHAND GARG, J.
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