Shri S.P.Astha vs Delhi Agricultural Marketing ...
2015 Latest Caselaw 2440 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 7102/2001

%                                                    23rd March, 2015

SHRI S.P.ASTHA                                            ..... Petitioner
                          Through:       Mr. M.L.Bhargava, Adv.


                                 Versus



DELHI AGRICULTURAL MARKETING BOARD        ..... Respondent

Through: Ms. Avnish Ahlawat and Ms. Latika Chaudhary, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, petitioner, who was a Superintending Engineer with the

respondent- Delhi Agricultural Marketing Board, impugns the office order

of the respondent dated 17.10.2001 whereby petitioner's scale of pay was

fixed at Rs.12,000 w.e.f 8.11.1997 in the pay-scale of Rs.12000-375-16500.

The impugned order recalls the earlier office order dated 22.2.1999 whereby

pay-scale of the petitioner was fixed at Rs.14300-400-18300 w.e.f

8.11.1997.

2. The case of the petitioner is that he was appointed as an

Assistant Engineer (AE) with the respondent whereafter he was promoted as

Executive Engineer w.e.f 1.7.1989 and thereafter he was promoted after

completing 8 years and 5 months of service to the post of Superintending

Engineer in the pay-scale of Rs.3700-125-4700-150-5000 (pre-revised) vide

office order dated 7.11.1997. Petitioner was therefore promoted to the post

of Superintending Engineer by this office order dated 7.11.1997 and he

claims that this pay-scale of Rs.3700-125-4700-150-5000 on implementation

of the 5th Central Pay Commission recommendation became Rs.14300-400-

18300 inasmuch as, with respect to the posts of Superintending Engineers as

per the 5th Central Pay Commission Report there was only one pre-revised

pay-scale of Rs.4500-5700 and which pay-scale in terms of the 5th Central

Pay Commission Report became Rs. 14300-400-18300. Petitioner's

contention is that once he was appointed as a Superintending Engineer by

the office order dated 7.11.1997, and as per the 5 th Central Pay Commission

Report, the pay-scale of Superintending Engineer (pre-revised) Rs.4500-

5700 is enhanced to Rs. 14300-18300 post-revision, the original office order

dated 22.2.1999 fixing the pay of the petitioner in the pay-scale of Rs.14300-

18300 w.e.f 8.11.1997 was correct because petitioner was a Superintending

Engineer on 8.11.1997 and hence the impugned office order dated

17.10.2001 be recalled by which his pay-scale has been fixed from

8.11.1997 at Rs. 12000-16500.

3. As per the counter-affidavit filed by the respondent, it is stated

that the higher pay-scale of Rs.4500-5700 (pre-revised)/Rs.14300-18300

(after revision), was to be granted only to those officers who had put 13

years of service in Group A cadre and since petitioner would complete 13

years of service in Group A cadre only on 6.6.2002, hence the petitioner can

be granted the pay-scale of Rs.14300-18300 only w.e.f 6.6.2002 ie the

petitioner from an earlier date of 8.11.1997 could not have been granted, the

pay-scale of Rs.14300-18300.

4. Petitioner in rejoinder has sought to rely upon the certificate

issued by CPWD that the pay-scale of Superintending Engineer is Rs.14300-

18300 and that there is a single scale of pay for Superintending Engineer.

5. In my opinion, the arguments and contentions of the petitioner

are misconceived inasmuch as, it is upon the government to decide and

interpret as to how a 5th Central Pay Commission Report with its pay-scales

is to be applied to the posts of Superintending Engineer. As per the

interpretation given and the clarification given by the government in terms

of its circulars, the pay-scale of Rs. 14300-18300 could only be granted to

such Superintending Engineers who had completed 13 years of service in

Group A cadre. This aspect is specifically stated by the Ministry of Finance,

the Ministry which interprets and decides the applicability of the 5th Central

Pay Commission Report, in its Office Memorandum (OM) dated 26.4.2001

as under:-

"G.I., Dept. of Telecom., Cir. Lr.No. 1-4(39)/98-PAT, dated 26-4-2001 Clarification regarding revised pay scales of Superintending Engineers in P&T Civil, Electrical and Architectural wing and JAG Officers belonging to Grade 'A' Engineering Services Instructions regarding the revised upgraded pay scale were issued vide this office Letter No.1-1/97/PAT, dated ..10-1997 (Sl. No 132 of Swamy's Annual, 1997) for Superintending Engineers in P&T Civil, Electrical and Architectural wing and JAG Officers belonging to Grade 'A' Engg. Service. Some of the circles had raised some points for clarifications. The matter has been considered in consultation with Ministry of Finance and the points are clarified as under:- Sl. No. Clarification sought by the Deptt. Clarification given by the MoF

"1. Whether the upgraded pay scale of The upgraded pay Rs.14,400-400-18,300 is applicable to scale of Rs.14,300- Direct Recruitment Group 'A' Officers 18,300 is applicable and Promotee officers as well. to all the SEs, whether DR or promotees who were holding the post as on 1-1-1996 and had put in 13 years of Group 'A' service on that date. However,

in case of promotees, the condition of 13 years of regular Group 'A'service would be relevant, if they also like DRs enter Group 'A' through JTS. If they enter through STS directly, then only 9 years of Group 'A' service will be required."

"

(underlining added)

6. A reading of the aforesaid clarification dated 26.4.2001, issued

by the Ministry of Finance, shows that a Superintending Engineer can be

granted a pay-scale of Rs.14300-18300 only after his having completed 13

years of service in Group 'A' cadre. It is further clarified that the

requirement of 13 years of service in Group 'A' is with respect to promotees

and not direct recruits and even those Group 'A' employees who enter the

post of Superintending Engineer directly by STS method will be required to

complete 9 years of service in Group 'A' cadre. Therefore, it is clear that

government itself has clarified that to get the pay-scale of Rs.14300-18300, a

Superintending Engineer who has become a Superintending Engineer by

promotion, must complete 13 years of Group 'A' service. It cannot be

doubted and disputed that the Ministry of Finance is the final authority to

interpret and decide the implementation of the terms of the 5 th Central Pay

Commission Report, and once the Ministry of Finance does so stating that a

Superintending Engineer can be granted the pay-scale of Rs.14300-18300

only after completion of 13 years of service in Group A cadre, and which

interpretation is consistently and uniformly applied by the Ministry, this

Court cannot substitute its views for that of the Ministry and hold that a pay-

scale of Rs.14300-18300 is to be granted to the all the Superintending

Engineers irrespective of the length of their services in the Group 'A'

service.

7. Learned counsel for the petitioner has relied upon Annexure R-

1 filed by the respondent, and which is an extract from the 5 th Central Pay

Commission Report, to argue that this para 50.45 uses the expression

"promotions" and therefore, once this para 50.45 talks of a promoted

employee being a Superintending Engineer to be granted the pre-revised

pay-scale of Rs.4500-5700 to Rs.14300-18300 (after revision), then, since

the petitioner already was a Superintending Engineer from the date of

implementation of the 5th Central Pay Commission Report, and since there is

only a single pay-scale for a Superintending Engineer, hence the petitioner

rightly was granted the pay-scale of Rs.14300-18300 by the office order

dated 22.2.1999 and which has been wrongly recalled by the impugned

office order dated 17.10.2001.

8. I cannot agree with the argument urged on behalf of the

petitioner by placing reliance upon para 50.45 of the 5 th Central Pay

Commission Report inasmuch as what should be the interpretation of the 5th

Central Pay Commission Report and who are the persons who are entitled to

the benefit of the pay-scales, and on satisfying which conditions, falls into

the exclusive prerogative of the Ministry of Finance and the Ministry of

Finance has clarified by issuing clarification dated 26.4.2001. Thus para

50.45 of the 5th Central Pay Commission Report has necessarily to be read

with the clarification dated 26.4.2001 that merely because a person is a

Superintending Engineer he will not automatically get the pay-scale of

Rs.14300-18300 and which scale the Superintending Engineer will get only

if he has completed 13 years of service in Group A post. Therefore, the

respondent was justified in issuing the office order dated 17.10.2001

recalling its earlier wrongly issued office order dated 22.2.1999 fixing the

pay-scale of the petitioner as Rs.14300-18300.

9. Reliance placed by the petitioner upon the certificate of the

CPWD dated 24.2.2003 is of no effect because that circular can in no way

mean that 13 years of service in Group 'A' is not required for

Superintending Engineer for being granted the pay-scale of Rs.14,300-

18,300 and as clarified by the Ministry of Finance vide its clarification dated

26.4.2001, inasmuch as the competent authority is not the CPWD but the

Ministry of Finance.

10. The final contention of the petitioner that the petitioner in terms

of the Rules of the respondent has become a Superintending Engineer, and

since a Superintending Engineer has to get a revised pay-scale of Rs.14300-

18300, hence petitioner is entitled to this pay-scale, the same is

misconceived because entitlement of promotion and what is the pay-scale of

the promoted post are separate issues. Surely, the respondent-employer

alongwith the Ministry of Finance (inasmuch as respondent is a government

organization), is entitled to fix a particular pay-scale of a particular post

being the Superintending Engineer in this case, and hence once the Ministry

of Finance requires a particular eligibility criteria to be complied with being

13 years of service in Group 'A' service for being granted the pay-scale of

Rs.14300-18300, this Court cannot hold that every Superintending Engineer

on becoming a Superintending Engineer must necessarily receive a pay scale

of Rs.14,300-18,300, although the Ministry of Finance has clarified the issue

vide its clarification dated 26.4.2001 that 13 years of service is required in

Group A for a Superintending Engineer to be granted the pay-scale of

Rs.14300-18300.

11. I may finally note that it is not even the case of the petitioner

that petitioner had worked for 13 years in Group A service as on 8.11.1997,

and, it is not the case of the petitioner that he got appointed to the post of

Superintending Engineer by direct recruitment or that he was appointed

through STS method by completing 9 years of service in the Group A

service, and which are the other conditions in which a Superintending

Engineer can get a pay-scale of Rs.14300-18300. In fact, as per para 2 of the

writ petition, petitioner admittedly stood promoted only as a departmental

candidate to the post of Superintending Engineer after completion of 8 years

and 5 months i.e the petitioner had not even completed either 13 years of

service in Group A Cadre or that petitioner had completed 9 years of Group

A service for being considered as a STS promotee.

12. Dismissed. Since the petition is dismissed, interim orders

naturally would be vacated.

MARCH 23, 2015                                VALMIKI J. MEHTA, J.
ib