Karnataka High Court
Arjun Kumar vs Union Of India on 9 May, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:17149
WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION No.42227 OF 2015 (S-RES)
C/W
WRIT PETITION No.42210 OF 2015 (S-RES)
WRIT PETITION No. 42215 OF 2015 (S-RES)
IN W.P. No.42227/2015:
BETWEEN:
1. KIRAN KUMAR. K.S
AGED ABOUT 50 YEARS,
S/O K.S.SUNDERAJA IYENGAR,
#47, 1ST MAIN, 10TH CROSS,
SRINIDHI LAYOUT, KONANKUNTE,
BENGALURU-560062.
Digitally
signed by 2. N.R.SUBRAMANYA
KIRAN
KUMAR R
AGED ABOUT 57 YEARS,
Location: S/O ALTE N.S.RAMA RAO,
HIGH #527, 14TH MAIN, 4TH BLOCK,
COURT OF
KARNATAKA NANDINI LAYOUT, BANGALORE-560096.
3. SAMPATH KUMAR P
AGED ABOUT 52 YEARS,
S/OM.P.PERUMAL,
19, SRIDEVI VILLA, NEW EXTENSION,
GANGOTHRI STREET, K.R.PURAM,
BANGALORE-560036.
4. V S RAMAMURTHY
AGED ABOUT 50 YEARS,
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WP No. 42227 of 2015
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WP No. 42215 of 2015
S/O SIDDAPPA.V.C,.
FB-53, 2ND MAIN,
HAL OLD TOWNSHIP,
VIMANAPURA POST,
BNAGALORE-560017.
5. CHITTI BABU
AGED ABOUT 48 YEARS,
S/O N.PURUSHOTHAM,
F-4, ALPHANANUR,
10TH MAIN 3RD BLOCK,
HBR LAYOUT, BANGALORE-560043.
6. RAMALINGA M
AGED ABOUT 56 YEARS,
S/O LATE MUREGESH,
R/O #16, 3RD "A" MAIN ROAD,
2ND CROSS, LBS NAGAR,
BANGALORE-560017.
7. LAKSHMAPPA METI
AGED ABOUT 56 YEARS,
S/O BALAPPA METI,
#17, MATHRUSHREE NILAYA,
7TH MAIN, 6TH CROSS,
MARUTHI NAGAR, MALLESHANAPALLYA,
BANGALORE-560075.
8. H R RAMAKRISHNAPPA
AGED ABOUT 49 YEARS,
S/O LATE F.M. RANGAIAH,
#117, 1ST FLOOR, 6TH "C" MAIN ROAD,
REMCO LAYOUT, HAMPINAGARA,
VIJAYANAGARA 2ND STAGE,
BANGALORE-560104.
9. BASAVARAJ
AGED ABOUT 55 YEARS,
S/O LATE B.RUDRAIAH,
#8, LAXMI NILAYA, 1ST MAIN,
2ND CROSS, NCR LAYOUT,
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WP No. 42227 of 2015
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WP No. 42215 of 2015
DODDA NEKKUNDI, BANGALORE-560037.
10 . H JAIMUNI RAO
AGED ABOUT 51 YEARS,
S/O LATE HANUMANTH RAO,
#18, 1ST CROSS,
LAVAKUSHA NAGAR,
L.G.RAMANNA, BADAVANE,
OPP:SHARADHA VIDHYA MANDIR,
BANGALORE-560058.
11 . S G PATIL
AGED ABOUT 56 YEARS,
S/O G.T.PATIL,
#86, 19TH CROSS,
21ST MAIN, SRINGAR,
NEAR MARUTHI MANDIR,
BANGALORE-560040.
12 . SAMPANGI RAM
AGED ABOUT 50 YEARS,
S/O V.PUTTAVENKATA SWAMY,
#119, NEAR GOVT SCHOOL,
VENKATALA VILLAGE,
YELAHANKA POST,
BANGALORE-560064.
13 . KALASE GOWDA
AGED ABOUT 49 YEARS,
S/O LLAKKANNA GOWDA,
# 843, 2ND CROSS, 2ND MAIN,
"B" BLOCK, AECS LAYOUT,
HOSUR ROAD, BANGALORE-560068.
...PETITIONERS
(BY SMT. VIDYULATHA., ADVOCATE)
AND:
1 . UNION OF INDIA
DEPARTMENT OF DEFENCE,
NO.109-B, SOUTH BLOCK,
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WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
NEW DELHI-110001.
BY ITS JOINT SECRETARY.
2 . HINDUSTAN AERONAUTICS LTD
BANGALORE COMPLEX,
BANGALORE-560017.
BY ITS CHAIRMAN.
3 . DIRECTOR (H.R)
HINDUSTAN AERONAUTICS LTD.,
15/1, CUBBON ROAD,
POST BOX NO.5150.
BENGALURU-560001.
4 . GENERAL MANAGER (H.R.)
HINDUSTAN AERONAUTICS LTD.,
15/1, CUBBON ROAD,
POST BOX NO.5150.
BENGALURU-560001.
5 . ADDITIONAL GENERAL MANGER(H.R.)
HINDUSTAN AERONAUTICS LTD.,
BANGALORE COMPLEX,
VIMANAPURA POST,
BENGALURU-560017.
...RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1;
SRI.PRADEEP S.SAWKAR, ADVOCATE FOR R-2 TO R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED:26.06.2015 PASSED BY R-5 AT
ANNEXURE-Q TO THE W.P AND DIRECT THE RESPONDENT
MANAGEMENT TO RECONSIDER THE REPRESENTATIONS OF
THE PETITIONERS AT ANNEXURE-J SERIES TO THE W.P. BY
REVERTING THEM TO THE POST OF SPECIAL SCALE OF PAY [SS
CADRE] WORKMEN ALONG WITH ALL THE BENEFITS THAT THE
SPECIAL SCALE WORKMEN ARE ELIGIBLE AS PER PERSONNEL
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WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
CIRCULAR DATED 10.08.2010 AT ANNEXURE-E TO THE W.P.
WITH EFFECT FROM 1.3.2008, ETC.
IN W.P. No.42210/2015
BETWEEN:
1. ARJUN KUMAR
S/O LATE SRI. KODANDA RAO,
AGED ABOUT 57 YEARS,
R/A # 32, 17TH "A" CROSS,
BHUVANESHARI NAGARA,
HEBBAL KEMPAPURA,
BANGALORE-560 024.
2. R. VENKATARAMA SHETTY
S/O LATE RANGASWAMY SHETTY,
AGED ABOUT 59 YEARS,
R/A SREE VILASA, NO.101,
4TH CROSS, BALAJI NAGARA,
UTTARAHALLI, BANGALORE-560 061.
3. R.S.Z. REHAMAN
AGED ABOUT 56 YEARS
S/O. LATE R. SYED ABDULLA AZIZ KHAMER,
R/O MANZIL, NO. 970,
12TH CROSS, 1ST STAGE,
3RD BLOCK, HBR LAYOUT,
BANGALORE-560 043.
4. CHIDANANDA.S.R., AGED ABOUT 50 YEARS,
S/O S.V. RUDRASWAMY,
R/A # 299, 12 TH MAIN,
22ND CROSS, HSR LAYOUT,
BANGALORE-560 102.
5. M. RAJASEGARAN, AGED ABOUT 52 YEARS,
S/O LATE MUNISWAMY,
R/A # A 849, BDA 2ND FLOOR,
AUSTIN TOWN LAYOUT,
VIVEKNAGAR POST, BANGALORE-560 047.
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WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
...PETITIONERS
(BY SMT.B.V.VIDYULATHA, ADVOCATE)
AND:
1 . UNION OF INDIA
DEPARTMENT OF DEFENCE,
NO.109-B, SOUTH BLOCK,
NEW DELHI-110001.
BY ITS JOINT SECRETARY.
2 . HINDUSTAN AERONAUTICS LTD
BANGALORE COMPLEX,
BANGALORE-560017.
BY ITS CHAIRMAN.
3 . DIRECTOR (H.R)
HINDUSTAN AERONAUTICS LTD.,
15/1, CUBBON ROAD,
POST BOX NO.5150.
BENGALURU-560001.
4 . GENERAL MANAGER (H.R.)
HINDUSTAN AERONAUTICS LTD.,
15/1, CUBBON ROAD,
POST BOX NO.5150.
BENGALURU-560001.
5 . ADDITIONAL GENERAL MANGER(H.R.)
HINDUSTAN AERONAUTICS LTD.,
BANGALORE COMPLEX,
VIMANAPURA POST,
BENGALURU-560017.
...RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1;
SRI.PRADEEP S.SAWKAR, ADVOCATE FOR R-2 TO R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED:26.06.2015 PASSED BY R-5 AT
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WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
ANNEXURE-Q TO THE W.P AND DIRECT THE RESPONDENT
MANAGEMENT TO RECONSIDER THE REPRESENTATIONS OF
THE PETITIONERS AT ANNEXURE-J SERIES TO THE WRIT
PETITION BY REVERTING THEM TO THE POST OF SPECIAL
SCALE OF PAY [SS CADRE] WORKMEN ALONG WITH ALL THE
BENEFITS THAT THE SPECIAL SCALE WORKMEN ARE ELIGIBLE
AS PER PERSONNEL CIRCULAR DATED 10.08.2010 AT
ANNEXURE-E TO THE W.P. WITH EFFECT FROM 1.3.2008, ETC.
IN W.P. No.42215/2015:
BETWEEN:
1. RAMESH BABU C
AGED ABOUT 49 YEARS,
S/O LATE CHITHRAI,
#218, 3RD CROSS, SS COTTAGE,
NANDA GOKULA STREET,
AKASH NAGAR, A NARAYANA PURA,
K.R.PURAM, BANGALORE-560 043.
2. P. VADIVELU
AGED ABOUT 49 YEARS,
S/O LATE PADAVITTAN,
# 1590,17TH "A" MAIN, 1ST STAGE,
5TH BLOCK, HBR LAYOUT,
BANGALORE 560043.
3. Y. REVANAPPA
AGED ABOUT 52 YEARS,
S/O SIDDABASAPPA,
# 144, 3RD CROSS, KRISHNA NAGAR,
DEVASANDRA,K.R PURAM,
BANGALORE 560036.
4. JAGADISH M.C
AGED ABOUT 54 YEARS,
S/O M.CHANDRASHEKARAIAH,
# 2939, 2ND CROSS,
NEAR 108, GANESHA TEMPLE,
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WP No. 42215 of 2015
KUMARASWAMY LAYOUT,
BANGALORE 560078.
5. VAJRANABHA
AGED ABOUT 49 YEARS,
S/O LATE T. RAMAIAH,
# 32, DESOUZA NAGAR,
BEHIND P.E. SIT,
BANASHANKARI 3RD STAGE,
BANGALORE 560085.
6. SHANKARA NARAYAN. S
AGED ABOUT 47 YEARS,
S/O K.T. SUBRAMANYAM,
# 3 SUBHADRA APARTMENT,
18/1,60 FT ROAD,
PRASHANTH NAGAR, NHCS LAYOUT,
BANGALORE 560079.
7. S. RAMANJANEYA
AGED ABOUT 52 YEARS,
S/O S.NARASAPPA,
# 31/1, 8TH CROSS, 7TH MAIN,
MAHALAXMI LAYOUT,
BANGALORE 560086
8. M.S. RAJENDRAN
AGED ABOUT 54 YEARS,
S/O LATE M. SURGA PRAKASH,
D-2, HAL (OLD TOWN SHIP)
VIMANAPURA POST,
BANGALORE 560017
9. S.R. BALASUBRAMANAYAM
AGED ABOUT 58 YEARS,
S/O S. RAMAMURTHY,
# 6, FLAT NO.301, 14TH MAIN, SRINAGARA,
RAGHAVENDRA BLOCK, KALIDASA LAYOUT,
BANGALORE 560050.
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WP No. 42215 of 2015
10 . A. BYATAPPA
AGED ABOUT 57 YEARS,
S/O APPAIAH,
# 579, KUVEMPU ROAD,
UDAYA NAGAR,
DOURAVANI NAGAR POST,
BANGALORE 560016.
11 . K.V RAMESH
AGED ABOUT 58 YEARS,
S/O LATE K.R. VENKATACHALA,
# 169, KAMADHENU
SHANKAR NAGAR MAIN ROAD,
SHANKARA NAGAR,
BANGALORE 560090.
12 . MOHAMMED IBRAHIM KHAN
AGED ABOUT 58 YEARS,
S/O LATE MOHAMMED ANWAR KHAN,
# 716/F,NASEEM MANZIL,
5TH CROSS, SYED BLOCK,
ANNASANDRA PALYA,
BANGALORE 560017.
...PETITIONERS
(BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1;
SRI. PRADEEP.S.SAWKAR, ADVOCATE FOR R-2 TO R-5)
AND:
1 . UNION OF INDIA
DEPARTMENT OF DEFENCE,
NO.109-B, SOUTH BLOCK,
NEW DELHI-110001.
BY ITS JOINT SECRETARY.
2 . HINDUSTAN AERONAUTICS LTD
BANGALORE COMPLEX,
BANGALORE-560017.
BY ITS CHAIRMAN.
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WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
3 . DIRECTOR (H.R)
HINDUSTAN AERONAUTICS LTD.,
15/1, CUBBON ROAD,
POST BOX NO.5150.
BENGALURU-560001.
4 . GENERAL MANAGER (H.R.)
HINDUSTAN AERONAUTICS LTD.,
15/1, CUBBON ROAD,
POST BOX NO.5150.
BENGALURU-560001.
5 . ADDITIONAL GENERAL MANGER(H.R.)
HINDUSTAN AERONAUTICS LTD.,
BANGALORE COMPLEX,
VIMANAPURA POST,
BENGALURU-560017.
...RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1;
SRI.PRADEEP S.SAWKAR, ADVOCATE FOR R-2 TO R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED:26.06.2015 PASSED BY R-5 AT
ANNEXURE-Q AND DIRECT THE RESPONDENT MANAGEMENT
TO RECONSIDER THE REPRESENTATIONS OF THE
PETITIONERS AT ANNEXURE-J SERIES TO THE WRIT PETITION,
BY REVERTING THEM TO THE POST OF SPECIAL SCALE OF PAY
[SS CADRE] WORKMEN ALONG WITH ALL THE BENEFITS THAT
THE SPECIAL SCALE WORKMEN ARE ELIGIBLE AS PER
PERSONNEL CIRCULAR DATED 10.08.2010 AT ANNEXURE-E
WITH EFFECT FROM 1.3.2008, ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 01.04.2024, COMING ON FOR
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WP No. 42227 of 2015
C/W WP No. 42210 of 2015
WP No. 42215 of 2015
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :
ORDER
1. The facts, as ascertained from the pleadings in these
cases, are as follows:
2. On 30.11.2003, a Memorandum of Understanding
("the MoU") on the review of the modified 'Time Scale
Promotion and Career Plan Scheme' ("TSP" and "CPS")
was signed by the Hindustan Aeronautics Limited ("the
HAL") with its recognized Unions and, as an outcome of
the MoU, a tripartite settlement was also signed.
Thereafter, a notification was issued with the modifications
made in the existing TSP and CPS.
3. For the purposes of these writ petitions, the
modifications made in the CPS would not be relevant and
only the modifications to the TSP will be considered.
4. In the notification dated 04.02.2004 (Annexure No.1
to the memo), eight modifications to the TSP Scheme are
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stated. However, only the modification stated in Clause 7
would be relevant for the purpose of this case.
5. Clause 7, for the first time, provided for promotion
from the 'workmen cadre' to the 'officers cadre'. The
workmen in Scale-10 were provided with an option for
being promoted as officers in Grade-I -- and this option
for being promoted to the officers cadre was made
available only to the workmen who possessed the
minimum qualification of Diploma in Engineering or an
equivalent qualification (in respect of technical grades)
and who possessed a minimum degree in B.A., B.Sc., or
B.Com., or any equivalent qualification (in respect of non-
technical grades).
6. It may be noticed here that the workmen with other
qualifications such as, S.S.L.C., I.T.I., NAC, P.U.C./inter or
equivalent were specifically made ineligible for promotion
to Grade-I. In other words, in respect of only those
workmen who possessed an extra educational qualification
i.e., a Diploma in Engineering or a Degree, a provision was
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made making them eligible for being promoted to the
'officers cadre' i.e., to Grade-I.
7. An additional condition was imposed that they should
have also put in a minimum uninterrupted service for 4
years as workmen in Scale-10 for becoming eligible for
promotion.
8. The intent for providing this opportunity of being
promoted to the officers' cadre is stated in Clause viii(g)
as follows:
"(viii)(g) It is envisaged that this Scheme will
encourage workmen to acquire Diploma in
Engg or equivalent qualification, thereby
improving the overall qualification profile of the
Company."
9. As could be seen from the above, the scheme of
making workmen to be eligible for being promoted to the
officers' cadre was to encourage other workmen to acquire
a Diploma in Engineering or an equivalent qualification
which would, in turn, improve the overall qualification
profile of the Company. It is obvious that the promotion
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from the cadre of workmen to the cadre of officers did
provide upliftment of the workmen's career prospects and
also an elevation in their official status.
10. Pursuant to the Scheme of promotion from Scale-10
in the workmen cadre to Grade-I in the officers' cadre, a
notification was issued on 13.06.2007 calling for
applications from eligible workmen to apply for promotions
to Grade I in the officers cadre.
11. The petitioners in this batch of writ petitions decided
to exercise their option for being promoted and
accordingly made applications, pursuant to which they
were promoted to Grade-I in the officers' cadre, as
detailed below:
Sl. Writ Petition Promotions
Promoted as
No. No. date
August /
WP No.42227 of Assistant Engineer
1 September
2015 (Grade-I)
Assistant Stores
WP No.42210 of
2 July 2007 Officer / Assistant
Engineer (Grade-I)
Assistant Stores
WP No.42215 of July /
3 Officer / Assistant
2015 August 2008
Engineer (Grade-I)
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12. In the month of September, 2008, another MoU was
entered into in relation to the review of the existing TSP
and CPS in respect of the workmen, and this was followed
by signing of a Memorandum of Settlement. Thereafter, a
notification was issued by means of Personal Bulletin
No.3876 on 11.10.2008. Paragraph 2 of said Personal
Bulletin also contained Annexure-1 indicating the
modifications made to the TSP and CPS.
13. Under the changes to the TSP, the minimum service
eligibility in Scale-10 for promotion to post in Grade-I was
reduced from 4 to 3 years. Apart from reducing the service
eligibility for promotion, a further provision was made for
the workmen in Scale-10, who possessed the qualification
of I.T.I/N.A.C./N.C.T.V.T/U.C./S.S.L.C., i.e., the workmen
who did not possess a Diploma in Engineering, but
possessed a lower educational qualification providing them
a career avenue.
14. The career avenue provided for such workmen in
Scale-10 was the introduction of a Special Scale of Pay
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("SSP" or "SS Grade") equivalent to the pay of an officer
in Grade-1 i.e., Rs.6,550-200-11,350, and this SS Grade
was to be above Scale-10. In other words, an additional
scale was created above the 10 scales that existed, in
respect of the workmen who possessed certain
qualifications.
15. It may be pertinent to note here that as on the date
of this notification, the petitioners in W.P.No.42210 of
2015 had already been promoted and, therefore, they
would not be eligible for the Special Scale of Pay. It may
also be pertinent to notice here that those petitioners who
had already been promoted in the officers' cadre Grade-1,
would by virtue of this Personal Bulletin dated 11.10.2008,
get the same scale of pay as a workman in Scale-10 which
was termed as a special scale of pay. In other words,
despite being promoted to the officers' cadre, persons who
were junior to them or who did not possess the requisite
Diploma in Engineering and continued to be in the cadre of
workmen were granted the same pay scale as the
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petitioners, who have been promoted as officers in Grade-
I.
16. Clauses 2.2.5 and 2.2.6 of this Personal Bulletin also
stated that the employees in the SS Grade would continue
to perform the duties of 'workmen' and these workmen in
the SS Grade would be eligible for various
allowances/facilities like officers in Grade-I. The said
clauses are reproduced hereunder for a clearer
understanding.
"2.2.5 Employees in the Special Scale will
continue to perform the duties of
Workmen.
2.2.6 Workmen in the Special Scale will be
eligible for various
Allowances/Facilities, like Officers in
Grade-I."
17. Thus, the workmen who were not promoted as
officers because they did not possess a Diploma in
Engineering were given a special scale of pay equivalent to
workmen who had been promoted as officers, and it was
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stipulated that they would continue to perform the duties
of a workman, but they would still be entitled for various
allowances/facilities that were available to officers in
Grade-I. In essence, workmen in the Special Grade,
though technically in the workmen cadre, were granted
the same scale of pay as officers in Grade-I and were also
given the same allowances/facilities as officers in Grade-I.
18. To put it differently, the promotion of workmen from
Scale-10 to officers in Grade-I became superfluous by the
creation of this special scale of pay despite the fact that
those workmen in this special scale of pay possessed a
lower educational qualification. In effect, Clause 8(g),
which envisaged encouragement to workmen to acquire
Diploma in Engineering, was given the go-by, by
recognising a lesser qualification and granting them
equivalent pay scales.
19. It is also pertinent to state here that this Personal
Bulletin, however, continued the prospects of the Diploma
holders in Engineering (in a technical grade) or a Degree
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holder (in a non-technical grade) to be continued to be
eligible for promotion from Scale-10 to Grade-I. It was
stipulated that those who were not promoted to Grade-I
would be elevated to the special scale on completion of a
specified span of service1.
20. Clause 2.2.13 also stipulated that those employees
elevated to the special scale and possessing the
qualifications prescribed for promotion to Grade-I would
also be eligible for movement to Grade-I parallelly. It was
stated that the inter se seniority in Scale-10 would be
reckoned for deciding the eligibility for the parallel
movement to Grade-I and that there would be no change
in basic pay on such parallel movement to Grade-I.
21. Thus, if an employee was elevated to the SS Grade
and possessed the qualifications prescribed for promotion
to Grade-I i.e., either a Diploma in Engineering or a
2.2.12 Diploma Holders in Engineering or its equivalent in the Technical Trades and
BA/B.Sc/B.Com Degree Holders or its equivalent in the Non-Technical Trades will continue to be
eligible for promotion from Scale-10 to Grade-I (Officers' cadre), as at present. Such
employees who are not promoted to Grade-I will be elevated to the Special Scale, on
completion of the specified span of service in Scale-10 as indicated at para-2.2.2.
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Degree, such an employee was also made eligible to move
to Grade-I and on such movement, his/her seniority was
also protected by reckoning the inter se seniority in Scale-
10. In effect, the employees who were elevated to the
special scale of pay after the petitioners were promoted,
were granted the same pay scales and their seniority was
also protected, in the event they became eligible for
movement to Grade-I.
22. On 28.05.2009, the pay scales and allowances of
officers were raised with effect from 01.01.2007. An officer
in Grade-I in the existing scale of pay of Rs.6,550-200-
11,350 became entitled to a revised scale of pay of
Rs.12,600/- to Rs.32,500/-. The annual increment at the
rate of 3% of the revised running basic pay was granted
and revised rate of Dearness Allowance ("DA") was also
granted.
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23. Paragraph 52 of the revised pay scales notification
provided for fixation of pay in the revised scales of pay.
24. However, the fixation of pay in the revised scales
were made applicable only to those officers who were on
the rolls of the Company as on 31.12.2006 and continued
to be in the service of the Company as on the date of
issuance of the Circular i.e., 28.05.2009.
25. The fixation of pay was the aggregate of basic pay in
the existing scale of pay (of 1997) as on 01.01.2007 +
personal pay (without reckoning the additional increments
granted with effect from 01.12.2006) + the applicable
amount of industrial DA + a fitment benefit of 30% of the
5. FIXATION OF PAY IN THE REVISED SCALES OF PAY: 5.1 The Pay of Officers who were on the
rolls of the Company on 31st December 2006 and continue to be in the service of the Company as on the date
of issue of this Circular will be brought on to the revised Scales of Pay in the following manner;
a) Basic Pay (without reckoning the Additional Increments granted w.e.f. 1.12.06) in the existing
Scale of Pay (1997) as on 1st January 2007;
Plus
b) Personal Pay (without reckoning the Additional Increments granted w.e.f.1.12.06), if any, drawn
as on 1st January 2007, which was granted to protect the Basic Pay on appointment and which is
reckoned as Basic Pay for all purposes;
Plus
c) Applicable amount of Industrial Dearness Allowance (DA) @ 78.2% as on 1st January 2007, in the
1997 Salary Structure, on the Basic Pay (without reckoning the Additional Increments granted
w.e.f.1.12.06) actually drawn as on 1.1.2007 (before promotion, if any, effected w.e.f. 1.1.07)
and Personal Pay as at (b);
Plus
d) Fitment Benefit of 30% of (a)+(b)+(c) above;
The total of (a)+(b)+(c)+(d) would be the aggregate amount.
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above three components of basic pay, personal pay and
industrial DA.
26. This fixation of pay was however deprived to the
petitioners since they were not officers as on 31.12.2006.
In other words, the fitment benefit of 30% was not
granted to them while fixing their pay in the revised pay
scale.
27. In respect of workmen who had been promoted in
Grade-I of the officers' cadre, a particular Clause was
incorporated which reads as follows:
"5.10.4 As the Wage Revision in respect of
Workmen due w.e.f. 1.1.07 is not finalised, Pay of
Workmen promoted/appointed to posts in Grade-I on
or after 1.1.07 would provisionally be fixed at the
minimum Pay in the revised Grade-I Scale (2007).
They will draw their Salary (Basic Pay and DA) in the
revised Grade-I Scale (2007) or continue to draw
their Salary (Basic Pay, Dearness Pay and DA) in the
pre-revised Scale (1997), whichever is higher. Their
final pay fixation in the revised Scale (2007) will be
done upon finalisation of Wage Revision of Workmen
due w.e.f. 1st January 2007. "
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28. As could be seen from the above, in respect of those
workmen who had been promoted to Grade-I after
01.01.2007, their pay was to be provisionally fixed at the
minimum pay in the revised Grade-I scale and they would
draw their salary in the revised scale (of 2007) or continue
to draw their salary in the pre-revised scale, whichever
was higher. It was specifically made clear that their final
pay fixation in the revised 2007 scale would be done upon
finalisation of the wage revision of workmen, which was to
be with effect from 01.01.2007.
29. Two factors need to be noticed here--firstly, that the
workmen who had been promoted to the officers' cadre
were held to be entitled to draw a pay that was higher. In
other words, if their pay under the pre-revised 1997 scale
was higher than the pay that they were entitled to in the
revised 2007 Grade-1 scale pay, they were given the
benefit of drawing the higher pay. This is obviously on the
principle of protecting their pay and ensuring that it did
not get reduced by virtue of any revision. Secondly, it may
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also be pertinent to state here that Clause 5.11.1 also
provided for granting of one notional increment equal to
the increment that had been drawn by the officers in the
revised pay scale before their promotion. Thus, the basic
principle that there must be an incremental raise in pay
upon promotion was also safeguarded by virtue of Clause
5.11.1.
30. The petitioners (officers in Grade-I) became entitled
to the revised scales but with a glaring anomaly, i.e., they
were not entitled to the fitment benefit of 30% since they
were not officers as on 31.12.2006. In other words,
despite being officers, their pay was not made equivalent
to that of the officers who had been regularly/directly
appointed as 'officers' and were on the rolls of the
Company as on 31.12.2006.
31. Nearly fifteen (15) months thereafter, the wage
structure of the workmen was also revised with effect from
01.01.2007 and this was notified through a Personal
Circular No.687 dated 10.08.2010.
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32. By way of this revision, the existing scale of pay in all
the scales, including the special scale, was revised with
effect from 01.01.2007.
33. In respect of the special scale of pay, with which we
are concerned, the pay scale was revised from the existing
Rs.6500-200-11350 to Rs.12,600-32,500. It may be
pertinent to note here that by virtue of the revisions of
pay scales to the officers made on 28.05.2009 and the
revision of wage structure to workmen made on
10.08.2010, both officers in Grade-I and workmen in the
SS Grade were entitled to the same revised scale of pay of
Rs.12,600 to 32,500.
34. In other words, notwithstanding the petitioners'
promotion to officers Grade-I, they still continued to draw
a pay scale equivalent to that of the special scale of pay
i.e., persons with lower educational qualifications who
continued in the workmen cadre.
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35. Clause 3 of this revised pay structure provided for
fixation of pay in the revised scales of pay, and the pay of
the workmen was the aggregate of the basic pay, personal
pay, industrial DA and the component of a fitment benefit
of 22% of the basic pay. This was made applicable to the
workmen who were on the regular rolls of the Company as
on 31.12.2006. The petitioners -- who were workmen as
on 31.12.2006 -- were obviously granted this fitment
benefit of 22% though they were denied of this fitment
benefit of 30% when the pay scales of the officers were
revised, on the ground that they were not officers as on
31.12.2006. In other words, the petitioners were given the
fitment benefit of only 22% as against the officers in their
cadre who got 30% i.e., a deficit of 8% of the basic pay as
fitment benefit.
36. This revision of pay scales of workmen also contained
a provision for fixation of pay to those workmen who had
been promoted to Grade-I after 01.01.2007 and the same
reads as follows:
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"10. FIXATION OF PAY OF WORKMEN PROMOTED
TO GRADE-I ON OR AFTER 1.1.07
10.1 Pay of Workmen in Scale-10 & below
promoted/appointed to posts in Grade-I on or after
1st January 2007 will be fixed from the concerned
revised Scale to the revised Grade-I Scale, as in
the case of promotion from any other Scale/ Grade
to the next higher Scale/Grade, by applying the
normal rules of pay fixation on promotion.
10.2 There will not be any change in the Pay of
Workmen, if any, who move from the Special Scale
to grade-I, parallely.
10.3 The quantum of Special Pay arrived as at para-4.1
will continue to be paid on promotion to grade-I.
Similarly, the quantum of Service Weightage Pay
arrived as at Para-7.1 will also continue to be paid
on promotion to grade-I. No consequentials (like
DA, HRA, contribution to PF, Leave Encashment,
Gratuity, etc) would be payable on the Special Pay
& Service Weightage Pay on promotion to grade-I."
37. As could be seen from the above, the pay of the
persons who had been promoted to Grade-I was to be
fixed from the concerned revised scale, as was done in the
case of promotion from a scale to the next higher pay
scale. It was also stated that there were no changes in the
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pay of workmen if they moved from special scale to
Grade-I, obviously because the basic pay scale was the
same.
38. But, as could be seen from Clause 10.3, though the
quantum of special pay and the service weightage pay was
continued to be paid on promotion, the consequential
benefits like DA, house rent allowance, contribution to
P.F., leave encashment, gratuity, inter alia, were not made
payable on the special pay and service weightage pay on
promotion to Grade-I.
39. The effect of Clause 10.3 was that there was a
disparity in the pay that the officers in Grade-I became
entitled to despite being promoted.
40. In the counter by the respondents, it is stated that in
order to curb the attrition rate amongst the officers,
additional increments were granted to them in the
prevailing 1997 pay scales with effect from 01.12.2006
and this additional increment was granted only to the
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officers since there was no problem of attrition in respect
of workmen, but, nevertheless, on grounds of equity, the
Company had also granted the workmen additional
increments with effect from 01.12.2006.
41. In other words, it is stated that additional increments
were granted to both officers and the workmen on
01.12.2006, though for differing reasons.
42. It is also stated in the counter that when the
question of revision of the salary/wage structure of both
officers and workmen was to be considered, the Union
Government had passed an order on 26.11.2008 which
stated that if any extraordinary increment or increase in
pay had been granted with retrospective effect affecting
the revision of pay as on 01.01.2007, such an incremental
increase would have to be ignored.
43. It is stated that as a consequence of this Official
Memorandum, the Company had withdrawn the additional
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increments that it had granted to the officers in the 1996
pay scale payment with effect from 01.01.2007.
44. However, it is stated that as regards workmen, the
wage structure was revised with effect from 01.01.2007
on the basis of negotiations and a settlement with Trade
Union, and since the Unions did not agree for withdrawal
of the additional increments granted to the workmen with
effect from 01.12.2006 in the 1997 pay scales, the
additional increments were agreed to be continued even in
the 2007 pay structure as 'special pay'. It is stated that
this special pay was a new element in their wage
structure.
45. It is also stated that on conversion of additional
increments granted to workmen under the 1997 pay scales
as special pay, a proposal was sent to the Government for
grant of special pay to the officers, which had been
withdrawn by virtue of the Official Memorandum dated
26.11.2008, but this proposal was rejected by the
Government and, as a consequence, it was only the
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workmen who were given the benefit of the Special pay
under the 2007 pay scales and not the officers. It is also
stated that this special pay in respect of workmen was
being reckoned as part of the basic pay for the purposes of
payment of DA, house rent allowance, computation of P.F.,
gratuity, overtime allowance and leave encashment.
46. The consequence of these admitted facts is that the
petitioners, who were in the cadre of workmen, became
deprived of the component of special pay (i.e., additional
increments which had been granted under the 1997 pay
scales), because the Government had rejected the
proposal of the Company to the officers' cadre, though the
Company had extended this component of additional
increments to both workmen and officers.
47. As a consequence of this, a disparity in the pay
drawn by the petitioners, who were promoted from the
workmen cadre (Scale-10) to the officers' cadre (Grade-I),
became apparent and they started drawing a lesser pay as
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compared to their colleagues who continued to be in the
workmen cadre.
48. The HAL, in fact, admits in its counter that the pay
drawn under the 2007 pay scales in respect of officers in
Grade-I and workmen in Scale-10 has resulted in the
officers in Grade-I drawing a lesser pay as compared to
workmen in Scale-10. In fact, a tabular column is also
incorporated, in which the differences are stated.
49. The Company, however, has stated as follows in
justification of this situation:
"As can be seen from the above table, an
employee promoted to Grade I w.e.f
23.8.06 was drawing more Pay in Scale-
10 and Grade-I in the 1997 Pay Scales.
However, in the 2007 Pay Scales, he is
drawing less Pay compared to the
employee promoted to grade I w.e.f
1.7.08. The disparity of pay among
Officers promoted to Grade-I in 2006 and
2007 is on account of the fact that Special
Pay and Service Weightage Pay were not
granted to the Officers promoted w.e.f
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23.08.2006, whereas they were granted
to the promotees w.e.f 01.01.2007. In the
event the request of the Petitioners is
considered, the gap will widen further and
would perpetuate the disparity. Therefore,
the request of the Petitioners cannot be
acceded to."
50. The Company is basically contending that the
petitioners are required to equate themselves to an
employee who had been promoted to Grade-I with effect
from 23.08.2006 and not in respect of the promotions
made with effect from 01.01.2007.
51. It is admitted that under the 2007 pay scales, an
officer, on being promoted to Grade-I from the workmen
cadre Scale-10, is drawing a lesser pay and that is on
account of the fact that the special pay and the service
weightage pay were not granted to the officers who had
been promoted with effect from 23.08.2006, but were
granted only to those promotees with effect from
01.01.2007.
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52. It is thus clear that the Company admits that there is
a wage disparity, insofar as the petitioners who were
promoted on 07.07.2007 are concerned, and it is stated
that if this disparity is removed, the gap would widen
further and would perpetuate the disparity even more and,
therefore, the request of the petitioners cannot be acceded
to.
53. This disparity in the wages resulted in the petitioners
giving several representations asking for the removal of
this anomaly. One of the requests made in these
representations was that if the disparity could not be
removed, the petitioners were at least required to be
reverted to the cadre of workmen and be entitled to draw
the same pay that was being granted to workmen who
were given special scales of pay.
54. This question of disparity was also raised in several
meetings between the Company and the employees, as
could be seen from Annexures-L, L1, L2 and L3. In the
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first of several meetings held on 02.02.2012, it has been
stated as follows:
"10. Comparison of Special Scale and Grade-I
10.1 Shri L.Gunasheelan, Chairman, AIHAOA stated that
of late many complaints are being received from
Officers in Grade-I who have been promoted from
the Workmen Cadre. They are receiving much less
pay compared to Workmen in the Special Scale.
10.2 ED(HR) informed that the difference has occurred
on account of factors like non-grant of Special Pay
to Officers, etc. The Special Scale employees have
not been paid Allowances as per the Cafeteria
System, which is applicable to Grade-I Officers.
10.3 Shri L.Gunasheelan, Chairman, AIHAOF further
stated that Workmen promoted to Grade-I after
1.1.07 are loosing 8% on Fitment Benefit, in
comparison to other Grade-I Officers. They are also
loosing the benefit of merger of the Special Pay in
the next wage revision, which they would have got
had they continued in the Workmen Cadre. Besides,
they are loosing a substantial amount from their
terminal benefits due to existing methodology of
calculation of VL encashment. As a result, many
Workmen are not interested to apply for Grade-I
posts. Further he stated that on option may be
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given to desirous Officers to revert to the Workmen
cadre.
10.4 ED(HR) informed that an employee can derive
revision benefit of one category only considering his
status on the date of revision i.e., either as an
Officer or as a Workman.
10.5 D(HR) stated that there is no immediate solution to
this issue, which is a structural one. He advised
Complex HR Heads to furnish the details of
Workmen who have not opted for DPC to Grade-I.
10.6 Shri D.H.Venkatesh, Secretary General, AIHAOF
requested that VL encashment methodology of
Officers may be @ 26 days, like Workmen. As a
result of differential dispensation, Officers are
loosing approximately 1-3 Lakhs on their terminal
benefits.
10.7 D(HR) informed that this issue has different
dimensions for Workmen and Officers. No changes
are feasible now."
55. In the second meeting dated 29.05.2012 also, it is
stated as follows:
"11. Wage disparity amongst the promotees from S-
10/SS to Grade-I
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11.1 Shri L. Gunasheelan, Chairman, AIHAOF stated
that the matter was discussed in the meeting
held on 2.2.12. Officers promoted from S-
10/SS to Grade-I are losing substantial amount
towards their terminal benefits due to non
receipt of consequentials on many Allowances.
He suggested 3 options to mitigate the
hardship of Grade-1 Officers:
i) Granting 8% additional Fitment Benefit
(difference between 30%/ 22% Fitment
Benefit given to Officers/ Workmen as part of
2007 Salary Revision).
ii) Payment of consequentials on Allowances
drawn by the Grade-I Officers as was done for
Special Scale employees.
iii) Reversion of Grade-I Officers to Workmen
cadre from the date of their elevation to
Grade-1.
11.2 ED(HR) informed that the proposal for
reversion of Grade-l Officers to Workmen
cadre is not a healthy proposition.
11.3 Shri. K. V. Ramesh, General Secretary,
HAOG, Bangalore, stated that these Officers
had opted for promotion before October 2008
when the modified TSP/ CPS Scheme was
notified retrospectively w.e.f. 1.3.08 and as
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such they can not be held responsible for
their plight.
11.4 Shri L. Gunasheelan, Chairman, AIHAOF
stated that the best option to resolve this
problem would be to grant one time
opportunity to the Grade-I Officers to draw
consequential benefits on Allowances like
Special Scale employees.
11.5 It was informed that the above proposal
cannot be agreed to, as long as Special Pay is
not given to Officers. Further, there are
Officers promoted before 1.1.07 who are
drawing still less.
11.6 D(HR) informed that this issue was discussed
threadbare many a times in the past. Since it
is a Salary related structural problem, there
is no immediate solution to this issue. The
issue can be addressed if the Salary Structure
of Officers is revised as part of the
recommendations of high level Committee
which is constituted for re-structuring of
HAL."
56. In the third meeting also, it is stated as follows:
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"10. Status of disparity amongst the promotees
from Scale-10/Special Scale(S-11) to
Grade-I
10.1 Shri L.Gunasheelan, Chairman, AIHAOF stated
that Officers promoted from S-10/SS to Grade-
I are losing a lot due to non receipt of
consequentials on many Allowances. He further
stated that Management can consider to
extend the benefit of consequentials on
allowances as was done for Special Scale
employees.
10.2 Shri. K.V.Ramesh, general Secretary, HAOG,
Bangalore stated that as a general rule, any
elevation to higher posts is always associate
with hike in salary. However, it is a fact that
Officers who have been promoted from S-
10/SS to Grade I are drawing salaries less than
what they were drawing prior to their elevation
to Grade I.
10.3 GM(HR) stated that the Associations were
briefed in the past about the factual position in
this matter.
10.4 Shri D.H.Venkatesh, Secretary General,
AIHAOF stated that if parity in compensation in
comparison to Special Scale employees cannot
be restored due to certain constraints, such
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Officers may be given an option to revert to
Workmen cadre.
10.5 Shri Sandeep Patnaik, AGM(HR), MC stated
that giving an option to the Grade I Officers to
revert to Workmen cadre is not an appropriate
proposition.
10.6 D(HR) informed that the issue is a Salary
related Structural problem and the same can
be addressed if the Salary Structure of Officers
is revised as part of the recommendations of
high level Committee which is constituted for
strengthening and re-structuring of HAL."
57. In the fourth meeting held on 25.12.2012, it is
stated as follows:
"5. Status of disparity amongst the promotees
from S-10/Sp. Scale(S-11) to Grade l.
5.1 Shri D. H. Venkatesh, Secretary General,
AIHAOF stated that Special Pay & Service
Weightage Pay, in respect of Grade I Officers
who have been promoted from the Workmen
Cadre need to be revised similar to their
counterparts who had continued as Workmen.
5.2 GM(HR) stated that the sanctity of any policy
which has been made separately for Executives
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and Workmen needs to be honoured. Even if
some of the Officers in Grade I promoted from
Workmen Cadre do not get the intended
benefits, the policies cannot be amended for
such purposes.
5.3 Shri L. Gunasheelan, Chairman, AlHAOF stated
that in case of Workmen, Special Pay and
Service Weightage Pay will be merged with
pre-revised Basic Pay for the purpose of Pay
fixation when the Wage Revision takes place. If
such benefits are not extended to Grade I
Officers who have been elevated from Special
Scale, it will be injustice to them.
5.4 Shri K. V. Ramesh, General Secretary, HAOG
stated that this is a specific problem of Grade |
Officers who were promoted from Workmen
cadre between 1.1.07 to 1.3.08"
58. A perusal of the above minutes clearly indicate that
the Company was aware that the issue was a salary
related structural problem and the same could be
addressed if the salary structure of the officers was
revised as recommended by the High-Level Committee. It
is therefore clear that the Company was conscious of the
fact that there was a disparity in the salary structure
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which was causing prejudice to those workmen who had
been promoted to the cadre of the officers.
59. It may also be pertinent to state here that the
Company by its communication dated 16.08.2012 to the
officers' guild rejected the suggestion made by the guild,
stressing upon the fact that the request of those workmen
who had been promoted to Grade-I should be reverted to
the cadre of Workmen and be placed in the Special Scale
of pay, could not be considered as it was not an
appropriate proposition. The contents of the
communication read as follows:
"No.HAL/P&A/48(2B)/2012 16th Aug. 2012
The Chairman,
AIHAOF
C/o HAL Bangalore Complex,
Bangalore-560 017.
Dear Sir,
Sub: Regarding difference of Wages between
promotees from Scale-10 to Gr-I and SS
Scale to Gr-I.
***
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Please refer to HAOG's letter No.HAOG/
DIR(HR)/21/22-07/2012 dated 1st Aug. 2012, on the
subject.
2. The suggestion made by the Associations in the
meeting held on 2.2.12 that an option may be given
to desirous Officers promoted from the Workmen
Cadre to Grade-I to revert back to the Workmen
Cadre and related issues are examined.
3. It is the considered view of the Management
that giving an option for reversion back to the
Workmen Cadre is not an appropriate proposition. As
such, the same is not being considered. As regards
any other feasible resolution of the issue, Officers
would have to wait for some time.
4. This is for your information, please.
Yours faithfully,
For HINDUSTAN
AERONAUTICS LIMITED
Sd/-
(A.K.TYAGI)
GENERAL MANAGER (HR)"
60. As could be seen from the above, the Company did
not cite any Rule which prohibited an officer to forego the
promotion that he had secured and go back to his original
cadre, but the Company merely stated that the request
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could not be considered as it was not an appropriate
proposition.
61. Thereafter, the petitioners approached this Court in
W.P. Nos.15565-570 of 2013 and connected matters, and
this Court by an order dated 06.03.2015 directed the
Company to consider the representations made by the
petitioners in accordance with law and pass appropriate
orders.
62. Pursuant to said order, the HAL has issued the
impugned order dated 26.06.2015 by which it has rejected
the claim of the petitioners to re-fix their salary and it has
also rejected the request to be granted all the benefits
that the workmen in the SS Grade were eligible to. The
Company has also rejected the request of the petitioners
to be reverted to the cadre of workmen in the special scale
of pay and has also refused to grant the petitioners the
fitment benefit of 30%, which was enumerated in respect
of officers in the revision of pay scales of officers on
28.05.2009. The petitioners are thus before this Court.
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63. The petitioners herein have cited the following
judgments to contend as below:
a. C.R. Madhava Murthy & Anr. v. the Union of
India & Ors., W.P. No.33038/2016 disposed
on 31.07.2021: held that seniors placed above
their juniors in the upgradation list are entitled to
stepping up of their pay.
b. The Union of India v. C.R. Madhava Murthy,
Civil Appeal No.2087-88/2022: preferred
against W.P. No.33038/2016 wherein the order
of High Court was confirmed by the Supreme
Court.
c. Karnataka Electricity Board v.
Venkatakrishna, ILR 1986 KAR 570: that
there should be no unequal treatment to seniors
who are more efficient than their juniors.
d. Cachar Paper Mill Officers & Supervisors
Association & Anr. v. Hindustan Paper
Corporation, W.A. No.151/2009 disposed on
21.02.2013 (Guj HC): that employees in a
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NC: 2024:KHC:17149
higher cadre cannot be paid lesser than the
employees in the feeder cadre.
e. Hindustan Paper Corporation Ltd. & Ors. V.
Cachar Paper Mill Officers & Supervisors
Association & Ors., SLP (C) No.26083/2013:
SLP filed against W.A. No.151/2009 was
confirmed by the Supreme Court.
f. Hindustan Paper Corporation Ltd. & Ors. V.
Cachar Paper Mill Officers & Supervisors
Association & Ors., R.P. No.2562/2013:
preferred against SLP (C) No.26083/2013 and
was dismissed.
g. BEL Technical Cadre Association & Anr. v.
the Management of BEL, W.A. No. 3351-
52/2013: employees in a promotional cadre
(supervisory cadre) cannot be paid a reduced
basic pay upon promotion in comparison to
employees of a lower cadre.
h. The Management of BEL v. the BEL
Technical Cadre Association & Anr., R.P.
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NC: 2024:KHC:17149
No.314/2015 and 373/2015: preferred
against W.A. No. 3351-52/2013, dismissed with
an observation once pay was protected as special
pay, such pay scale could not be reduced.
64. The respondents have produced judgments in
support of their contentions as summarised below:
a. Tamil Nadu Education Department
Ministerial and General Subordinate
Services Association & Ors. v. State of Tamil
Nadu & Ors., (1980) 2 SCC 97: on the scope
of interference under Article of 226 of the
Constitution of India.
b. Tamil Nadu Electricity Board v. Tamil Nadu
Electricity Board Engineers Association,
2005 (3) LLN 723 and State of Punjab & Ors.
v. Ram Lubhaya Bagga & Ors.: that Courts
should always uphold the constitutional validity
of policy decisions and refrain from adjudicating
on policy matters. It is also stated that it is the
right of the employer to change its policy from
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time to time under the changing circumstances
and such policy decisions cannot be judicially
scrutinized unless the same is arbitrary or in
violation of law.
c. ITC Ltd. Workers Welfare Association & Anr.
v. the Management of ITC Ltd. & Ors.,
(2002) 3 SCC 411: On questioning the
applicability of portions of industrial settlements
entered into between the respective
management and the trade unions - such
settlements have to be applied as a whole and
can be ignored only in exceptional circumstances
as recorded in the judgment.
d. M/s Tata Engineerng and Locomotive Co.
Ltd. v. their Workmen, (1981) 4 SCC 627
and Herbertson Ltd.v. the Workmen, AIR
1977 SC 322: that it is not possible to scan the
settlement in bits and pieces and hold only some
parts as being acceptable, unless the contrary is
demonstrated.
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e. R. Duraiswamy & Ors. v. Director of School
Education & Ors., (2001) 2 SCC 291 and
Director of School Education & Anr. v. A.N.
Kandaswamy & Anr., (1998) 8 SCC 26:upon
absorption, employees of a specific cadre cease
to be the employees of that cadre and cannot
claim the benefits of their preceding cadre. Pay
protection would thus not be available.
f. Delhi Veterinary Association v. Union of
India & Ors., (1984) 3 SCC 1 and State of
Andra Pradesh & Ors. v. G. Sreenivasa Rao
& Ors., (1989) 3 SCC 1: the principle of 'equal
pay for equal work' should be considered in
consonance with the nature of work of the
employees as well and challenge to pay scales
cannot be made once fixation of the same has
been done with due consideration to the nature
of their employment. This principle also does not
mean that all the employees in the cadre must
receive the same pay scale irrespective of their
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seniority, source of recruitment, educational
qualifications and incidents of services.
g. Roshan Lal Rondon & Anr. v. Union of India,
AIR 1967 SC 1889: that condition of service is
not contractual and the rights and obligations of
an employee are not determined by concerned
by both parties, but by a statutory regulation
framed by such organization.
h. Rajasthan State Road Transport Corporation
& Anr. v. Krishna Kant & Ors., (1995) 5 SCC
75: the Supreme Court in this case observed
that conditions of service in a statutory form
would be binding on the parties and also dealt
with the jurisdiction of the Industrial Disputes
Act in challenging these service conditions.
65. In light of the facts narrated above, the questions
that fall for determination in this batch of writ petitions
are:
(i) "Whether the petitioners are
entitled to draw the same pay as
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is being paid to the workmen in
the special scale of pay?
or, in the alternative,
(ii) Whether the petitioners can be
permitted to forego their
promotions and be reverted to
their original cadre of 'workmen',
and thereby be permitted to take
the advantage of the pay that is
being given to the workmen
under the special scale of pay ?"
66. At the very outset, it has to be noticed that in service
jurisprudence, promotion is given from a lower cadre to a
higher cadre with the consequential benefit of an increase
in both pay scale and responsibilities. The fundamental
concept of all promotions is that one is being elevated to a
higher post and, as a consequence would also be entitled
to draw a higher pay. If, on promotion, an employee does
not get the benefit of a higher pay and continues to draw
the pay in his original cadre or is made to get a pay lesser
than the persons in the cadre from which he is promoted,
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the very concept of promotion is completely lost, and it
would merely amount to re-designation of the post that he
holds and could be termed as a 'dry promotion' i.e.,
granting promotions to employees without a corresponding
increase in his pay.
67. It cannot be in dispute that the drawing of a
particular pay scale upgrades the status of the employee
vis-à-vis the organisation. In other words, basic principle
in service jurisprudence would be: the higher the pay, the
higher the post. If a person in the lower cadre and a
person in the higher cadre draw the very same scale of
pay, then the very concept of hierarchy in the posts would
be lost.
68. In the background of this fundamental requirement
of service jurisprudence, these cases will have to be
considered.
69. As stated above, in the year 2004, the scheme of
TSP was modified and a person in the workmen cadre was
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permitted to be promoted to the officers' cadre if he
possessed a prescribed educational qualification and also
had the requisite number of years of service in the
workmen cadre. It cannot be in dispute that a person in
the workman cadre would necessarily draw a lesser pay
than a person in the officers' cadre. This is essentially
because a workman would have a lesser educational
qualification, while an officer would have a higher
educational qualification, which entitles them to draw a
higher pay scale.
70. As could be noticed from Clause 8(g) of the
modifications made to the TSP in the year 2004, the whole
concept of permitting promotions from the workmen cadre
to that of the officers' cadre was essentially to encourage
the workmen to acquire a Diploma in Engineering or an
equivalent educational qualification which would result in
the overall qualification profile of the Company being
improved.
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71. It is thus clear that the objective of the Scheme is to
encourage the workmen to acquire educational
qualifications so that they rise in the hierarchy of posts
and become an officer, as against the post of a workman
to which he or she had been appointed.
72. It is also to be noticed here that in order to be
promoted to the officers Grade-I, a workman in Scale-10
was not only required to acquire a Diploma in Engineering
or a graduate degree, but was also required to undergo a
written test followed by an interview, apart from
possessing the requisite number of uninterrupted years of
service. The promotion to the officers Grade-I was thus a
promotion by selection and a person in order to be eligible
was required to possess an educational qualification
prescribed for an officer in Grade-I.
73. To put it differently, in order to become an officer,
the workman would necessarily have to possess a
prescribed educational qualification which distinguished
them from that of an ordinary workman and only if the
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workman possessed that educational qualification and
further passed a written test and interview would he be
entitled for being promoted as a Grade-I officer. This
particular fact would thus indicate that the status of a
workman would stand elevated to that of an officer, and
there would be a complete change in his cadre itself.
74. It is not in dispute that in the year 2004 when the
Scheme of TSP was modified, the pay scale of an officer in
Grade-I was definitely more than that of a workman in
Scale-10. It is thus imperative that this essential
distinction of processing a higher pay scale after being
promoted as an officer of Grade-I would have to be
maintained.
75. In these cases, the petitioners were promoted from
the month of July, 2007 onwards and after they were
promoted, the TSP was further modified and a provision
was made whereby the workmen in Scale-10 who
possessed a lower level of educational qualification and
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possessed the requisite number of years of service were
sought to be given a special scale of pay.
76. It is to be noticed here that this class of employees
did not have to pass the written test or be subjected to an
interview and the mere fact that they possessed an
educational qualification (which was lower than that of the
petitioners) and the requisite number of years of service
as workmen in Scale-10, automatically entitled them to a
special scale of pay. This was obviously to ensure that the
workman who did not possess the educational qualification
which would elevate their status to that of an officer is not
made to stagnate in a particular scale.
77. The creation of the special scale of pay and making it
equivalent to that of an officer of Grade-I essentially made
the distinction between workmen in Special scale of pay
and in officer Grade-I disappear. If an officer in Grade-I
and a workman in special scale of pay were given the
same scale of pay, in the eye of law, and, more
particularly, in service jurisprudence, they would
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essentially have to be considered as being on the same
level or status.
78. In this modification to the TSP notified on
11.10.2008, Clause 2.2.6 (as already extracted above)
made the workman in the Special scale of pay eligible to
various allowances/facilities in the same manner as was
being paid to the officers in Grade-I. This particular clause
would therefore indicate that there was no difference,
either in the scale of pay or in the allowances for both the
workmen in the SS Grade as well as officers in Grade-I.
79. It is to be kept in mind that as on that date i.e.,
11.10.2008, the pay scales of both officers as well as
workmen were yet to be revised. In other words, at an
undisputed point in time, both -- officers in Grade-I (who
had been promoted from the workmen cadre) and the
workmen who were elevated to the Special scale of pay --
were essentially drawing the same scale of pay as well as
the same allowances and they were thus, in all aspects,
equal to each other.
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80. The further fact that Clause 2.2.12 of the Circular
dated 11.10.2008 made the workmen in Special scale of
pay eligible to be promoted as officers in Grade-I and the
further fact that in Clause 2.2.13, it was made clear that
there would be no change in the basic pay of such
workmen who were promoted to Grade-I also emphasizes
the fact that both the workmen in special scale of pay and
also officers in Grade-1 are equal in all aspects.
81. The problem, however, occurred on the revision of
pay scales both for officers and for the workmen. On
28.05.2009, the pay scales of officers were revised with
effect from 01.01.2007. An officer in Grade-I who was
drawing pay in the scale of Rs.6,550 to Rs.11,350 became
entitled to revised pay scale of Rs.12,600 to Rs.32,500.
Normally speaking, this revision should have been
extended to the petitioners who had been promoted after
01.01.2007, since the pay scales were revised from
01.01.2007 i.e., before they were promoted as officers.
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82. However, fixation of pay to the officers which was
governed by Clause (5), however, deprived the petitioners
of the benefit of fixation of pay, more particularly the
fitment benefit of 30%, as provided under Clause 5.1(d)
and this was because Clause 5.1 indicated that the pay of
the officers who were on the rolls of the Company as on
31.12.2006 and who were still on the rolls as on the date
of the Circular dated 25.05.2009 alone would be eligible
for fixation of pay. Since the petitioners became officers
only after 01.01.2007, they became disentitled to the
fitment benefit and this resulted in them being treated on
a lower scale and being paid a lesser pay as compared to
that of other officers in the Grade-I.
83. It may also be pertinent to state here that Clause
5.10.4 of this Circular has also taken note of the fact that
the final pay fixation in the revised scale of pay of 2007 in
respect of the pay scale for officers promoted to Grade-I
would be done on the finalisation of the wage revision of
the workmen with effect from 01.01.2007. In other words,
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the pay fixation of the petitioners who had been promoted
as officers from the workmen cadre was reserved and was
to be done after the finalisation of the wage revision of the
workmen.
84. Having regard to the fact that, on the pay revision
being given to the officers, they became eligible for the
fitment benefit of 30%, the petitioners, even after
finalization of the wage revision in their parent cadre of
workman, cannot obviously be given a lesser benefit of
22% fitment benefit. The fact that Clause 5.1.1 also
provides for grant of one notional increment in the revised
pay scale of officers in Grade-I after 01.01.2007 also
indicates that the petitioners were entitled to a notional
increment, and thereby have the right for a higher pay
scale than that of workman in the Special scale of pay.
85. It thus becomes clear from a reading of the Circular
dated 28.05.2009 that the fixation of pay was not done to
the petitioners and was reserved to be done after
finalisation of the wage revision in the parent cadre of
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workmen. But, they had nevertheless been granted one
national increment as had been promoted after
01.01.2007.
86. This problem worsened on the revision of wages of
the workmen with effect from 01.01.2007 as per Circular
dated 10.08.2010. In this Circular, from the existing scale
of pay of Rs.6,550/- to Rs.11,350/- for the persons in the
special scale of pay, they were held to be entitled to a
revised scale of pay of Rs.11,260/- to Rs.32,500/- which
was the same as the pay scale assigned to an officer in
Grade-I. In other words, the pay scale of a workman in
special scale of pay and pay scale of an officer in Grade-I
was the same.
87. As regards the fixation of pay, just as in the case of
officers, the workmen were entitled to aggregate of basic
pay + personal pay + annual DA + Fitment benefit of 22%
of the [basic pay + personal pay + DA]. It is however to
be noticed here that as against the 30% fitment benefit
granted to the officers during their pay revision, only 22%
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fitment benefit was given to the workmen. Since the
revision of pay structure with effect from 01.01.2007,
when the petitioners were still workmen, they were
entitled to fitment benefit of only 22% as against 30%
that had been granted to the officers.
88. It has to be stated here that paragraphs 4 and 7 of
the Circular dealt with special pay and the service
weightage pay for workmen and Clause 4.1 stated that the
workmen would be entitled to a special pay which was
equal to the exact quantum of annual increment granted
with effect from 01.12.2006 + DA of 78.2%.
89. Clause 7.1 also indicated that they would be entitled
to service weightage pay at the rate prescribed therein,
with the number of years of service rendered by them.
Clauses 4.3 and 7.3 made it clear that the special pay as
well as service weightage pay would be granted with the
pre-revised basic pay for the purpose of pay fixation.
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90. In other words, the component of special pay and
service weightage pay became a part of the basic pay that
a workman was already drawing. However, by virtue of
Clause 10.3, though the petitioners who had been
promoted to Grade-I were continued to be paid this special
pay as well as the service weightage pay, these two
components were not taken to be a part of their basic pay,
which in turn resulted in a lower DA, contribution to
Provident Fund, leave encashment, gratuity, etc., and,
consequentially, to a far lesser pay than their former
workmen in the lower cadre.
91. Thus, despite being promoted, the petitioners by
virtue of being deprived of the special pay and the service
weightage pay being made a part of their basic pay, as in
the case of a workmen in the Special scale of pay, started
getting a lesser amount of Dearness Allowance, House
Rent Allowance, contribution to Provident Fund, leave
encashment, etc. This anomaly, which resulted in them
drawing a lower pay would be fundamentally violative of
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the very concept of being promoted and being entitled to a
higher scale of pay.
92. As already stated above, a promotion should result in
higher emoluments and not a situation where a person in
the lower cadre starts getting a higher pay and
emoluments than the promoted employee.
93. The Company, however, seeks to contend that this
anomaly came about because of the additional increments
that had been granted to the workman as well as the
workmen who were promoted as on 01.01.2006 and
disregarded for the purpose of fixation of pay because of
the Union Government's Circular rated 26.11.2008.
94. It is also admitted by the Company that since the
Union did not agree upon the withdrawal of the additional
increments granted, which, by the way, had been
extended to the workmen on grounds of equity, they were
continued with this benefit by giving it a different
nomenclature as "special pay". In other words, what was
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extended as an additional increment to both officers and
workmen, was sought to be continued only to the
workmen by giving it a different nomenclature and this is
apparently because the Union Government had issued a
Circular to disregard the grant of any extra increment,
which would have a bearing on revision of pay scales.
95. In my view, such an approach would be inequitable
and arbitrary. If the Company had extended the benefit of
additional increments to both the workmen and officers,
discontinuation of the additional increments by whatever
terminology that is used is impermissible. If the additional
increments were continued to the workmen by giving a
different nomenclature as special pay and by merging this
special pay into basic pay, the workmen became entitled
to a higher scale of pay, the benefit should also be
extended to the officers who would also be granted
additional increments.
96. Merely because the Union Government took the view
that any extra increment granted should be disregarded,
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that cannot be the criteria for ignoring additional
increments and consequential merger into basic pay.
97. It has to be kept in mind that additional increments
were essentially given to the officers because of the higher
rate of attrition. This benefit was extended to the
workmen only on the grounds of equity and nothing more.
If an additional increment was granted due to a particular
reason to the officers and extended to the workmen to
maintain parity, this additional increment cannot be
disregarded while revising the pay structure.
98. It is therefore abundantly clear that the Company
has acted in a manner which is financially prejudicial to
the officers who had been promoted from the workman
cadre despite there being no fault on their part.
99. It is to be noticed here that the petitioners, who were
workmen promoted as officers only because they
possessed requisite educational qualifications and had
passed an examination, were fundamentally being
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penalised for their success in being able to secure a
promotion on the basis of their better qualifications, while,
on the other hand, the workmen who did not possess the
same qualifications as the petitioners were given a reward
without even having to do anything (such as passing an
examination or an interview). This state of affairs cannot
be held to be lawful by any stretch of imagination.
100. However, the Company seeks to contend that if the
benefit of the special pay and service weightage pay, to
which the workmen were to be entitled, were to be
granted to the petitioners who are presently in the officers'
cadre, the gap between the existing officers in Grade-I and
the petitioners should widen and would create a new
disparity. In light of this stand of the Company, it will have
to be held that the only option that would have to be
taken to protect the interest of the petitioners who are
forced to draw a pay lesser than their colleagues who
continue to be in the lower cadre is to revert them to the
cadre of workmen as requested by them. This, though
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regressive, is the desire of the petitioners since they are
financially prejudiced only because they are better
qualified than their counterparts and were able to
successfully secure a promotion.
101. If the right to be considered for promotion exists in
law, a right to forego the promotion already secured, in
order to avail better financial prospects, can also exist and
the petitioners can be permitted to be reverted to their
original cadre to ensure that they are not deprived of the
benefits that would have accrued to them had they
remained in the workmen cadre.
102. If an employee sought promotion on the premises
that he would get a higher set of emoluments but
subsequently realised that due to a variety of factors he is
being paid a bunch of emoluments lower than his
subordinates in the lower cadre, he would be well within
his rights to seek reversion to his original parent cadre.
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103. At the end of the day, one of the main reasons to get
a promotion is to draw a higher pay, and if this benefit is
not available and, in fact, if a person in the lower cadre is
getting a higher pay, such promoted employee should
have the option of going back to his original cadre.
104. Since the petitioners have categorically stated and
requested that they be reverted, and this request has
been refused by the Company only on the ground that it
would not be an 'appropriate proposition', it would be
appropriate to direct the respondents to revert the
petitioners to the cadre of workmen in the special scale of
pay, by quashing the orders of refusal made by the
company.
105. As a consequence, the impugned orders insofar as it
relates to refusing the reversion of the petitioners to the
post of workmen in special scale of pay along with all
benefits (Clause 6(III) of the impugned order) shall stand
quashed.
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106. The HAL is directed to revert the petitioners to the
special scale of pay in the workmen cadre and grant them
all the benefits that they are entitled to in the special scale
of pay, from the date on which they became entitled to the
same, i.e., with effect from 01.03.2008.
107. The present writ petitions are allowed as per the
above observations.
Sd/-
JUDGE
GRS/-RK/-
CT: SN/-
