Delhi High Court
S P Ashta vs Delhi Agricultural Marketing ... on 19 August, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : August 19, 2016
+ LPA 305/2015
S P ASHTA ..... Appellant
Represented by: Mr.M.K.Bhardwaj, Advocate with
Mr.Shreiambhra Kashyap, Advocate
versus
DELHI AGRICULTURAL MARKETING BOARD ..... Respondent
Represented by: Ms.Latika Chaudhary, Advocate for
Ms.Avnish Ahlawat, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
R.P.No.336/2016
1. Working as a Superintending Engineer with the Delhi Agricultural
Marketing Board the claim of the appellant was that with effect from
November 08, 1997 he should be placed in the pay scale `14300-400-18300
and not `12000-375-16500.
2. The claim was predicated on the plea that the appellant joined Delhi
Agricultural Marketing Board as an Assistant Engineer on July 01, 1989 and
was promoted firstly as an Executive Engineer and then as a Superintending
Engineer on November 07, 1997. The appellant was relying on para 50.45
of the report of the Central Pay Commission to urge that he ought to have
been placed in the pay scale `14300-400-18300 with effect from November
08, 1997 and not after he had rendered 13 years service.
3. We had noted para 50.45 of the recommendations of the Central Pay
Commission in our decision dated May 20, 2015 which reads as under:-
"50.45 We would however, like to make an exception only
in the case of Superintending engineers. It is a fact that the
Second CPC had already established a parity between
Superintending Engineers and Conservators of Forests by
granting them both the scale of `1300-1800. Thus parity was
cemented further by the Third CPC which observed that "For
the post of Conservators of Forests we recommend the scale
which we have recommended for the Superintending Engineer
Grade of the Central Class I Engineering Service viz `1800-
2000" for the Selection Grade of `2000-2250 should be
introduced for the Conservator of Forests, on the same
principles as recommended for the Selection Grade in the
Central Class I Engineering Service. Between the third and
Fourth CPCs, there was an upgradation of the first grade for
CFS to `1800-2000. Subsequently, the fourth CPC merged the
Scales of `1800-2000 and the Selection Grade of `2000-2250
and gave CFs the single functional scale of `4500-5700. The
same treatment in spirit was unfortunately not accorded to the
SES who were given a JAG of `3700-5000 and an NFSG of
`4500-5700. Taking into account the significant role of
engineering services in the nation building process and the fact
that the promotion prospects in engineering cadres are rather
bleak. We recommend that the NFSG of `4500-5700 should be
converted into a single functional scale for Superintending
Engineers and the scale of `3700-5000 should instead be the
non-functional JAG for Ex.Engineers. However in order to
avoid too fast a rate of promotion in certain cadres to this
grade, it is further recommended that promotion to the scale of
`4500-5700 would be permitted only on completion of 13 years
of service in Group „A‟. Although the above recommendation is
being made in the context of CPWD engineers, it is clarified
that the dispensation will be available to all Engineering
Cadres in the Government."
4. From a perusal of the paragraph in question we had found that parity
between the Superintending Engineers and Conservator of Forests had
actually been accorded by the 2nd Central Pay Commission when both posts
were put in the pay scale `1300-1800. The parity was cemented further
when the recommendations of the 3rd Central Pay Commission were
recommended. But additionally benefit of selection grade introduced for
Conservator of Forests and Superintending Engineers. The same was
followed when the 4th Central Pay Commission gave its recommendations.
Noting that since Conservator of Forests were placed in the non-functional
selection grade, to bring parity, the 5th Central Pay Commission
recommended that while granting the benefit of replacement scale of judicial
administrative grade, there would be an automatic entitlement to be placed
in the grade `14300-18300. Thereafter, in paragraphs 10 onwards till
paragraph 15 we had reasoned as under:-
"10. In the counter affidavit filed the case of the respondent
was that the post of an Executive Engineer under it is a Group „
A‟ post and not the post of Assistant Engineer and thus the
appellant would be entitled to have 13 years Group „A‟ service
reckoned with effect from June 07, 1989 when he was promoted
as an Executive Engineer. As per the respondent, they did the
needful by upgrading appellant‟s pay to `14300-18300 when he
rendered 13 years service in a Group „A‟ post.
11. In the rejoinder filed by the appellant he took the stand
that under the Central Government Group „A‟, service starts at
the post of Assistant Executive Engineer, the appellant pointed
out that under the Board there is no post of Assistant Executive
Engineer.
12. If this be so, the appellant would have no case for the
reason the requirement of law is to place a Superintending
Engineer in the pay scale `12000-16500 and upon completing
13 years service in a Group „A‟ post, the same to be enhanced
to `14300-18300.
13. The appellant has another string in his bow. The
appellant relies upon a circular issued by the Department of
Telecommunications concerning placement of officers in the
pay scales.
14. The office order draws a distinction between those who
directly entered service viz-a-viz who earned promotions. The
clarifications sought and given by the Ministry of Finance upon
which the appellant relies read as under:-
Sl. Clarification sought by Clarification given
No. the Deptt. by the MoF
1 Whether the upgraded The upgraded pay
pay scale of `14,300- scale of `14,300-
400-18300 is applicable 18300 is applicable
to Direct Recruitment to all the SEs,
Group „A‟ officers and whether DR or
promotee officers as well 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 on 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.
2. Whether officiating As already
periods in the Group „A‟ clarified, only
post shall be taken into regular service in
account for computing 13 Group „A‟ post
years of Group „A‟. shall be taken into
account for
computing of 13
years of Group „A‟
service.
3. The upgraded pay scale The upgraded scale
of `14,300-400-18300 is of `14,300-18,300
admissible to the retired shall not be
Group „A‟ Officers. admissible to those
Group „A‟ officers
who retired before
6-6-2000.
4. Admissibility of one As per the CCS
increment for every three (RP) Rules 1997,
increments (including the benefit of one
stagnation increments) in increment in the
the revised scale of pay revised scale of pay
`14,300-18,300 to those for every three
who were not in the increments in the
selection grade of JAG, applicable pre-
Group „A‟ but in the revised scale of pay
scale of pay `3,700- is to be allowed in
5000. all the cases.
15. A perusal of the clarification given makes it clear that
upgradation of the pay scale to `14,300-18,300 is applicable
to all Superintending Engineers whether appointed by direct
recruitment or by promotion who were holding the post as on
January 01, 1996 but subject to having put in 13 years Group
„A‟ service as on said date. The exception carved out for
promotees is that if they entered Group „A‟ service through JTS
alone would condition of 13 years apply but if they entered
through STS directly then only 9 years Group „A‟ service
requirement would be applicable. The respondent does not
have the concept of recruitment through JTS and STS and thus
the clarificatory circular upon which the appellant relies would
not be applicable."
5. Seeking review the appellant relies upon an office memorandum
dated December 29, 2010 which reads:-
"The Functional grade of Rs.14300-18300 shall be applicable
to the posts of Superintending Engineers and equivalent that
are variously designated and included in the Organized Group
„A‟ Engineering Services Placement of Personnel in the
„functional grade‟ will however, be subject to actual
availability of vacancies in the grade. This shall be permitted
only on completion of thirteen years of regular service in
Group A and regular service of four years in the grade of
Executive Engineer and equivalent including the service
rendered in the Non-Functional Second Grade or nine years of
regular service in the grade of Executive Engineer and
equivalent including regular service if any, rendered in the
Non-Functional Second Grade for the Executive Engineer
and equivalent in the pay scale of Rs.12000-16500."
6. The petitioner also relies upon an office memorandum dated
December 20, 2000.
7. Respondents bring home the point that the two office memorandums
apply to Organized Group A Engineering Service of the Central
Government. There is no organized Engineering Service in the Delhi
Agricultural Marketing Board. Whereas induction in the Organized Group
A Engineering Services of the Central Government is through examination
conducted by UPSC or State Selection Board, induction in the Delhi
Agricultural Marketing Board is not through the rigorous selection process.
Further, Sub-para 3A of the OM dated December 12, 2000 clearly clarifies
that Executive Engineer and equivalent may be eligible to be considered for
promotion to the functional grade of `14300-18300 on completion of nine
years only when if they rendered service in the non-functional second grade
for the Executive Engineer and equivalent in the pay scale of `12000-16500.
Herein in the present case the appellant never worked as Executive Engineer
in the non-functional grade of `12000-16500.
8. Further, the OM in question is not mandatory and is merely a
guideline to amend the service/recruitment rules for grant of promotion to
the grade of Executive Engineer/Superintending Engineer. The respondent
has its own recruitment rules which do not give effect to the OM in question.
9. The petition seeking review is accordingly dismissed but without any
order as to costs.
(PRADEEP NANDRAJOG)\
JUDGE
(PRATIBHA RANI)
JUDGE
AUGUST 19, 2016
mamta
