Delhi High Court
Bd Sharma vs Union Of India & Ors. on 15 December, 2016
$~3.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (C) No. 466/2012
Date of decision: 15th December, 2016
BD SHARMA ..... Petitioner
Through Mr. G.D. Chawla, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Vivek Goyal, CGSC & Ms. Vanya
Khanna, Advocate for UOI.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
The petitioner-B.D. Sharma was appointed as Painter (Civilian) on
12th December, 1963. He was promoted as Highly Skilled Grade-II Painter
on 15th October, 1984 and Highly Skilled Grade-I Painter on 5th October,
1998. The petitioner superannuated on 31st December, 2001.
2. Nearly eight years after his retirement, on 19th May, 2009 the
petitioner filed OA No. 1856/2009 seeking enhancement of pension in
view of the restructuring scheme of artisans introduced vide Air
Headquarters order dated 2nd June, 2003. The scheme was retrospectively
applied and effective from 1st January, 1996. The petitioner had
asserted grant of scale of Rs.5500-9000 with effect from 1st January, 1996.
The prayer clause in the OA No. 1856/2009 filed before the Tribunal, was
as under:-
"8. Relief Sought:-
In view of the facts mentioned in para 4, 5 and 6,
above, the applicant Most Respectfully pray for the
following humble relief:-
(a) That as per the restructuring of cadre of Artisans
introduced vide Air Hqrs. order dt. 02.06.2003, the
applicant is eligible for upgradation as Master
Craftsman (M.S.M) against 10% of authorised
establishment of Highly Skilled posts in the scale of
pay of Rs.5500-9000, effective w.e.f. 01.01.1996. He
is also eligible to consequential arrears of pay,
pension, Gratuity, Leave Encashment etc. resultant to
placement in the upward scale of pay of Master
Craftsman (M.S.M).
(b) That in the fixation of his pay in the scale of pay of
Rs.5000-150-8000, his pay was to be fixed at
Rs.5750/- w.e.f. 01.10.2001, under provision of F.R.
22(1)(a)(1), which the respondents repeatedly reduced
to Rs.5600/-, Rs.5450/- and Rs.5400/- as on
01.10.2001, without providing any opportunity of
show cause or hearing the applicant. He may be
awarded interest @ 15% p.a. on undue reduction of
his pay from 5750/- to Rs.5400/-.
(c) The pay of applicant may be refixed at appropriate
stage in the grade of Master Craftsman viz. Rs.5500-
9000, from due date and recoveries of Rs.1738/- as
also others not notified to the applicant and recovered
from his retiral dues, may be ordered to be refunded
to him as early as possible and his pay refixed in
proper order, as per Air Hqrs. order dt. 02.06.2003
(Annexure A-6).
(d) Allow any other and further relief as this Hon'ble
Tribunal, may deem fit and proper in the
circumstances of this case in order to safeguard the
interests of justice in the case.
and
(e) Allow costs of this Application."
3. The Tribunal partly allowed OA No. 1856/2009 by order dated 28th
April, 2010 on the following terms:-
"13. Considering the above facts and
circumstances of the case and our analysis and
findings on the issues, we come to the conclusion that
the Applicants case has sufficient merits. Resultantly,
the Original Application is allowed in terms of the
following directions to the Respondents:-
Pay of the Applicant would be fixed as indicated in
Paragraph 11 of this order, as per which, he would be
entitled for the basic pay of Rs. 5300/- as per the 2nd
Financial upgradation under ACP Scheme with effect
from 9.8.1999, and thereafter appropriate increments
to be granted as on 1st October of the year and thereby
he would be entitled to get his basic pay fixed at Rs.
5450/- (1.10.1999), Rs. 5600/- (1.10.2000) and Rs.
5750/- (1.10.2001). At the time of his retirement
(31.12.2001), his basic pay would be Rs. 5750/-.
The Respondents are directed to revise the Pension
Payment Order of the Applicant on the basis of the
directions at (i) above.
The arrears of pay admissible to the Applicant as per
the directions at (i) above and the arrears of pension
admissible to him as per direction at (ii) above and
the amount already recovered from the pension by the
Respondents need to be paid to the Applicant within a
period of three months from the date of receipt of
copy of this order."
4. The Union of India filed Writ Petition (C) No. 7185/2010, which
was allowed with an order of remand dated 15th December, 2010. This
order refers to the circulars dated 20th May, 2003 and 2nd June, 2003. By
the first circular, a three-tier pay structure for skilled artisans was
formulated; (i) Skilled : Rs.3050-4590; (ii) Highly Skilled : Rs.4000-6000
and (iii) Master Craftsman : Rs.4500-7000. By the circular dated 2nd June,
2003, those employed in the common category of Highly Skilled Grade-I
and Grade-II were entitled to second financial upgradation in the scale of
Rs.5000-8000. It was noticed that the petitioner had claimed that with
effect from 5th October, 1998, his pay was upgraded to the scale of
Rs.4000-6000, which was applicable to Highly Skilled and was fixed at
Rs.5100. He was subsequently upgraded to the scale of Rs.5000-8000 on
1st October, 2001 and his pay was fixed at Rs.5,600. The grievance of the
petitioner was against wrongly fitment in the scale of Rs. 5000-8000 and
that his pay should have been fixed in the scale of Rs.5500-9000 applicable
to Master Craftsmen as per the office order dated 2nd June, 2003, and
consequential benefits which would ensue. The Court observed that the
petitioner's pleadings on entitlement to pay scale of Rs.5500-9000 were
ambiguous but it appeared that the claim was predicated in terms of
paragraph 4.17(b) of the OA that the two grade structures of skilled and
unskilled artisans in the ratio 65:35 was maintained, and 10% of posts had
to be in the highest scale (Master Craftsmen). The order dated 15th
December, 2010 affirms that the petitioner had never claimed or stated that
he or any other person had been placed in the pay scale Rs. 5500-9000.
5. The Division Bench of this Court in their order dated 15th December,
2010 referred to Paragraph 3 of the counter affidavit filed by the
respondents, which is to the following effect:-
"3. Upon Office Order No. NE/04/2003 dated 04.06.2003
the audit authority vide letter dated 17.10.2003 pointed out
that the petitioner was entitled to pay fixation of Rs.5150/-
with effect from 09.08.99 and was entitled for next annual
increment as on 01.08.2000 in view of which the petitioner
was entitled for fixation of Basic Pay at Rs.5450/- as on
01.08.2001 (Annexure-R-14). Therefore in pursuance of the
objections raised by the audit authority the order dated
04.06.2003 passed by the respondents was an inadvertent
error as per details furnished below:-
Date Event Pay as on date
09.08.99 Pay in the pay scale of Rs.4900/-
Rs.4000-100-6000
09.08.99 Granted second ACP in Rs.5150/-
the pay scale of
Rs.5000-150-8000 and
pay fixed accordingly
01.10.99 Erroneously granted Rs.5300/-
annual increment of
Rs.150/- only after 2
months instead of 12
months from the date
of ACP
01.10.2000 Granted annual Rs.5450/-
increment of Rs.150/-
01.10.2001 Granted annual Rs.5600/-
increment of Rs.150/-
Whereas, the correct pay fixation after grant of ACP should
have been as under:-
Date Event Pay as on date
09.08.99 Pay in the pay scale of Rs.4900/-
Rs.4000-100-6000
09.08.99 Pay after grant of Rs.5150/-
second ACP in the pay
scale of Rs.5000-150-
8000 with date of next
increment as on
01.08.2000.
01.08.2000 Pay after grant of Rs.5300/-
annual increment of
Rs.150/- with date of
next increment as on
01.08.2001.
01.08.2001 Pay after grant of Rs.5450/-
annual increment of
Rs.150/-
31.12.2001 Attained the age of Rs.5450/-
superannuation before
earning any further
increment and as such
pay to be taken into
consideration for the
purpose of grant of
pension.
Notwithstanding with above, it is humbly submitted before
this Hon'ble Court in order to rectify the mistake crept in
while fixing the pay of the petitioner at Rs.5,600/- as on
01.10.2001 the respondents passed a fresh Office Order No.
NE/09/2003 dated 27.10.2003 in manner revising his pay
scale and submitted the same to the PCDA (P), Allahabad for
revision of the pension of the petitioner accordingly
(Annexure-R-15). Thereupon PCDA (P), Allahabad issued
revised corrigendum P.P.O. No.AF/7400/2003 dated
25.02.2004 (Annexure R-16) and the same was given effect
in pursuant to the interim direction dated 29.08.2006 of
Hon'ble High Court of Delhi in Contempt of Court Petition
No.88/2003 in C.W.P./6582/2002 which was pending before
Hon'ble High Court of Delhi for disposal. Upon which PDA,
the Punjab National Bank has revised his pensionary benefits
and a recovery of Rs.12,472/- was affected from the pension
account of the petitioner against the over drawn of pension
and arrears that accrued to him consequent of corrigendum
P.P.O. No.AF/06724/2003 dated 22.09.2003. It is also
pertinent to mention herein that the Hon'ble High Court of
Delhi was pleased to dismiss the Contempt Petition
No.88/2003 in CWP/6582/2002 on 10.11.2008. The copy of
order dated 10.11.2008 passed by Hon'ble High Court of
Delhi is annexed as (Annexure-R-17)."
The High Court observed that as per the authorities, the petitioner
had received two financial upgradations; the last being in the scale of
Rs.5000-8000 with effect from 09.08.99. The petitioner had disputed and
denied that he had received the second financial upgradation under the
Assured Career Progression Scheme. Noticing that the aforesaid core issue
had escaped notice, the matter was remanded to the Tribunal for fresh
consideration. Noticeably, the petitioner had not challenged the
order/decision of the Tribunal dated 28th April, 2010 in OA No. 1856/2009.
The Union of India had filed the writ petition, and challenged the partial
relief.
6. The impugned order dated 9th November, 2011 notices the factual
averments and goes into the question whether the petitioner was entitled to
upgradation to the post of Master Craftsman in the scale of Rs.5500-9000
with effect from 1st January, 1996 and rejects the same on the ground that
the petitioner had retired on 31st December, 2001 and hence his claim for
promotion as Master Craftsman was not acceptable. On the second aspect,
regarding fixation of pay in the scale of Rs.5000-8000 and calculation of
increments, the matter has been examined by the Tribunal in detail and the
plea of the petitioner has been rejected. However, on the question of
recovery of arrears, the petitioner has been granted benefit with a direction
that over payment, if any, made would not be recovered from the petitioner
and if it has already been recovered, the same would be refunded. The
operative portion of the order dated 9th November, 2011 reads:-
"15. Considering the above facts and
circumstances of the case and our analysis and
findings on the issues, we come to the considered
conclusion that the applicant's case has merit. The
pay correction submitted by the respondent at para 3
of the counter has correctly brought out that the
applicant's entitlement and we direct that applicant's
basic pay to be at (a) Rs.4900/- on 09.08.1999 in the
pay scale of Rs.4000-100-6000; (b) Rs.5150/- on
09.08.1999 due to grant of second ACP in the pay
scale of Rs.5000-150-8000 w.e.f. from that date; (c)
Rs.5300/- on 01.08.2000 after grant of annual
increment of Rs.150/-; (d) Rs.5450/- on 01.08.2001
due to increment; and (e) Rs.5450/- on 31.12.2001,
the date of his retirement. In the result, the order
dated 20.9.2006 refixing his pay at Rs.5400 as on
01.10.2001 is not correct and is, therefore, quashed.
Accordingly the applicant's basic pay on the date of
his retirement being Rs.5450/, his retirement benefits
would be as per the said basic pay. The respondents
are directed to revise his pension, gratuity, leave
encashment and commuted pension accordingly.
Before issue of fresh Pension Payment Order of the
applicant and actual statement of his dues/excess
payment amount, the details shall be furnished to the
applicant and on receipt of his response; the final
order on the issues should be passed. While deciding
the issues, our direction within in respect of the
overpayment if any made, should not be recovered
from the applicant and if already recovered, the same
needs to be returned."
7. During the course of hearing, learned counsel for the respondents
has urged and pointed out that 10% of erstwhile Highly Skilled Grade-I
posts were to be converted or treated as Master Craftsman. As there were
only three posts of Highly Skilled Grade-I, it was not possible to create
even a solitary post of Master Craftsman as the resultant figure was only
0.3. Hence, placement to the grade of Master Craftsman of any highly
skilled employee was not possible. For the reasons set out below, we need
not examine this issue, for the petitioner was given benefit of financial
upgradation under the Assured Career Progression Scheme (ACP Scheme)
and was in the higher pay scale than the one applicable to Master
Craftsman. The contention would also fail, if we confine ourselves to the
direction given in the order dated 15/12/2012, in W.P. (C) No. 7185/2010
remanding the matter to the Tribunal. No other contention is raised.
Computation and calculations made by the Tribunal are not questioned.
8. The petitioner-B.D. Sharma, it is accepted, was granted financial
upgradation under the ACP Scheme on completion of 24 years of service
with effect from 9th August, 1999 in the pay scale of Rs.5000-8000, a fact
disputed in the first round of litigation. As a result of OM dated 2nd June,
2003, the grade of Highly Skilled I and II were merged in the scale of Rs.
4000-6000. The promotion earned from Highly Skilled-II to Highly Skilled
I was to be ignored. Thus those initially recruited in the Skilled Grade (Rs.
3050-4590) were eligible for first and second financial upgradation in
scales of Rs. 4000-6000 and Rs. 5000-8000 respectively. The pay scale of
Master Craftsman was Rs.4500-7000, which is lower than the pay scale
which the petitioner was granted on grant of second ACP (Financial
upgradation) with effect from 9th August, 1999. This being the position,
we would not go into the question whether or not 10% upgradation should
have been made to create the post of Master Craftsman with effect from 1st
January, 1996 as this issue is of academic nature. Pertinently, in this case
we are only considering the pension payable to the petitioner after his
retirement. The petitioner was given the second financial upgradation and
placed in the scale of Rs.5000-8000, which is higher than the pay scale
applicable to the post of Master Craftsman of Rs.4500-7000. The pension
payable to the petitioner would not increase even if we accept the claim of the
petitioner that the post of Master Craftsman should have been created even
when there were only three posts in the category of Highly Skilled Grade-I.
9. The respondents have accepted the impugned order and directions. It
appears that the respondents have duly complied with the impugned order.
If not, we would only direct the respondents to comply with their own
order treating the petitioner as entitled to grant of financial upgradation in
the scale of Rs.5000-8000 with effect from 9th August, 1999 in terms of the
impugned order. The said compliance would be made notwithstanding the
fact that we have dismissed this writ petition.
10. In view of the aforesaid position, we do not find any merit in the
present writ petition and the same is dismissed affirming the order and the
directions given by the Tribunal in paragraph 15 of the impugned order.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
DECEMBER 15, 2016/VKR
