Delhi High Court
Union Of India And Ors. vs Javed Ahmed And Ors. on 21 November, 2016
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10995/2016
Date of Decision : 21st November, 2016
UNION OF INDIA AND ORS. ..... Petitioners
Through Mr. Ashok Singh, Advocate for UOI
versus
JAVED AHMED AND ORS. ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
CM No. 43001/2016
Exemption allowed subject to all just exceptions.
The application stands disposed of.
W.P.(C) 10995/2016 and CM No. 43002/2016 (Stay)
1) Having heard learned counsel for the Union of India and the
General Manager, Northern Railway, we are inclined to uphold the
impugned order dated 01.09.2016 whereby the OA 1386/2013 filed
by the respondent has been allowed.
2) The respondents were appointed as Mistries in the pay scale of
Rs.1400-2300 and were promoted to the post of Junior Engineer prior
to 1998. These two posts were then in the identical pay scale of Rs.
1400-2300.
3) In 1998, the scale of Junior Engineers was revised and raised to
Rs.5000-8000/- whereas the pay scale of the Mistries was revised to
Rs.4500-7000/-.
4) By the circular dated 09.10.2003, several Group 'C' and 'D'
cadres including the posts of erstwhile Mistries were restructured. The
post of Mistries had by then been redesignated as "Supervisors".
5) Paragraph 13 of the circular dated 09.10.2003, applicable with
effect from 01.09.2003, reads as under:-
13. Upgradation of the posts of Supervisor (erstwhile
Mistries:-
(a) Subject to provisions of Para 13.2 below, all
the post of Supervisors (erstwhile Mistries) in grade
4,500-7000+ Rs. 100 Special Allowance (Excluding
Supervisors (P.Way) should enbloc be upgraded to the
post of Junior Engineer Gr. II in the pay scale of Rs.
5,000-8,000 and merged with the respective cadres of
Technical Supervisors with its spread effect in higher
grades Rs.5,500-9000, 6,500-10,500 & 7,450-11,500 as
per the revised percentage distribution of posts prescribed
for Technical Supervisor in these orders.
(b) In case of Supervisor (P. Way), the posts
being held by the erstwhile PWMs supervising more than
one gang upto a maximum of 17.26% of the sanctioned
cadre of PWMs shall be upgraded to and merged with the
posts of Junior Engineer (P.Way) Gr. II in the pay scale
of Rs. 5,000-8,000 with its spread effect in higher grades
of JE-I, SE & SSE in grade Rs.5,500-9,000, 6,500-10,500
& 7,450-11,500 respectively, as per the revised
percentage prescribed for Technical Supervisor in these
orders.
As per Paragraph 13 (a) Mistries, now designated as
Supervisors, in pay grade Rs.4500-7000 were to be upgraded to the
post of Junior Engineer Gr. II in the pay scales of Rs.5000-8000 and
merged with the respective Technical Supervisor cadres. However,
this would not apply to Supervisors (P.Way) which were seperately
dealt with under paragraph 13 (b). The respondents in the present
case were Mistries covered under Paragraph 13(a) and not 13(b).
6. Learned counsel for the petitioner, however, relies upon
paragraph 13.2 of the same circular, and submits that the scales of
Mistries, now designated as Supervisors, were not upgraded and the
posts were not merged, but a scheme for promotion, or a promotional
avenue, was created. The said paragraph reads as under:-
"13.2 Procedure for fitment: The placement of the existing
incumbents will be regulated as per the procedure given
below:-
(a) The existing regular incumbents of the post of
Supervisors (including Supervisors/P.Way to the extent of
upgradation of posts) will be placed in grade Rs.5,000-8,000
without subjecting them to normal selection procedure. Their
suitability shall be adjudged by following modified selection
will be based on scrutiny of service records and confidential
reports only.
(b) The Supervisors (other than P. Way) who do not get
promoted to grade Rs.5,000-8000 shall continue to hold the
post in the existing grade Rs.4,500-7000+ Rs.100 SA as
personal to them. To this extent, the posts upgraded to grade
Rs.5,000-8,000 will be operated in the lower grade Rs.4,500-
7,000+ Rs.100 SA till the existing incumbents vacate the same
by way of promotion retirement etc. On vacation of the posts,
the same will be automatically be operated in grade Rs.5,000-
8,000."
Paragraph 13.2 of the circular dated 09.10.2003 relates to the
procedure of placement of existing incumbents in terms of paragraphs
13 (a) and (b) of the circular dated 09.10.2003. All existing regular
incumbent Mistries were to be placed in the grade of Rs.5000-8000
without subjecting them to the normal selection procedure. This
would include Supervisors (P.Way) to the extent of upgradation of
posts. Their suitability was to be adjudged by scrutinizing their
service records and confidential reports. Paragraph 13.2(b) applies to
Supervisors, excluding Supervisors (P.Way), who are not promoted to
grade Rs.5000-8000. They were to continue in the pay scale of
Rs.4500-7000 till promotion/retirement and thereafter the vacated
posts would be assigned the pay scale of Rs. 5000-8000.
7. In our opinion, the Tribunal rightly interpreted the said clauses.
Mistries (now Supervisors) in the grade of Rs.4500-7000 were
upgraded to the post of Junior Engineer in the pay scale of Rs.5000-
8000. It is a case of merger and unification of posts. Paragraph 13(b)
states that erstwhile Mistries would be en bloc upgraded to the post of
Junior Engineers. No doubt Paragraph 13(a) is subject to Paragraph
13.2, albeit the said clause relates to "Fitment". It was a regulatory
mechanism. It does not negate or curtail the effect of Paragraph 13(a).
Upgradation was mandated. Suitability was to be examined, not as per
normal procedure but with reference to the service records and
confidential reports. Further, retention in the lower grade of Rs. 4500-
7000 was personal to the incumbents who would not be placed in the
scale/grade of Rs.5000-8000. This was a stop gap arrangement till
retirement etc. For all intents and purpose, the scale/grade of
Rs.5000-8000 was granted to the erstwhile Mistries (now
Supervisors). The amalgamation and merger was complete. It is
apparent that the posts of Supervisor, as such, had ceased to exist or
would cease to exist. The post of Supervisors was not to be the
feeder post for promotion as Junior Engineers. This is not urged or
stated.
Thus, the Tribunal has rightly held that this was a case of
upgradation and, consequently, merger of the pay scales. Thus, grant
of pay scale of Rs.5000-8000 to erstwhile Mistries (Supervisors)
cannot be treated as promotion to the post of Junior Engineer.
Consequently, the earlier promotion granted to the respondents from
the post of Supervisors (Mistries) to the post of Junior Engineer was
inconsequential. The two posts had identical payscale, i.e. the pre-
revised pay scale of Rs.5000-8000 or revised scale of grade pay of
Rs.4200 in the pay band of Rs.9300-13800. This being the position,
the respondents would be entitled to financial upgradation at the first
stage to grade pay of Rs.4600/- and second stage to grade pay of
Rs.4800/- as per the CCS (Revised Pay) Rules, 2008 read with the
Modified Assured Career Progression Scheme.
The writ petition has no merit and is accordingly dismissed.
SANJIV KHANNA, J
CHANDER SHEKHAR, J
NOVEMBER 21, 2016/B
