S.Jamesraj vs Union Of India
2024 Latest Caselaw 13410 Ker

Kerala High Court

S.Jamesraj vs Union Of India on 24 May, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
          THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
     FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
                     OP (CAT) NO. 330 OF 2016
     ORDER IN OA NO.1224 OF 2012 OF CENTRAL ADMINISTRATIVE
                     TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:

            S.JAMESRAJ, AGED 44 YEARS, S/O.K.S.SARGUNAM,
            REFRIGERATION MECHANIC, COCHIN BASE OF FISHERY SURVEY
            OF INDIA, COCHIN, RESIDING AT " 19/930",
            PUTHENPURACKAL HOUSE, PALLURUTHY, COCHIN 682 006.

            BY ADVS.
            SRI.SHAFIK M.A.
            SRI.JOJO JOSEPH
            SMT.S.LAKSHMY



RESPONDENTS/RESPONDENTS:

    1       UNION OF INDIA, REPRESENTED BY SECRETARY,DEPARTMENT
            OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES,
            MINISTRY OF AGRICULTURE, NEW DELHI,110001.

    2       THE DIRECTOR GENERAL
            FISHERY SURVEY OF INDIA,BOTAWALA CHAMBERS,
            SIR.P.M.ROAD, MUMBAI - 400001.

    3       THE ZONAL DIRECTOR, COCHIN BASE OF FISHERY SURVEY OF
            INDIA,COCHIN - 682031.

            BY ADV SRI.T.V.VINU, CGC


        THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 24.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CAT) No.330/2016

                               ..2..




                           JUDGMENT

SHOBA ANNAMMA EAPEN, J.

The present original petition is filed by the applicant

before the Central Administrative Tribunal challenging Ext.P4

order dated 31.08.2015 of the tribunal, dismissing the original

application finding that the petitioner is not entitled for grade

pay of Rs. 5400/-. It was further held that his post is not in the

regular channel of promotion to Mechanical Supervisor or

Service Engineer and so, a comparison would not be valid as

the two posts are covered under different schemes of

upgradation.

2. Brief facts of the case are as follows;

The petitioner joined service of the respondents as

Refrigeration Mechanic with effect from 04.07.1995 in the

scale of pay of Rs.1400-2300 consequent to a regular selection

conducted by them. The scale of pay of the post was revised

consequent to the 5th CPC recommendations with effect from

01.01.1996 to Rs.4500-7000. While so, consequent to the

stagnation for more than 12 years, the scale of pay of

Rs.4500-7000 was again upgraded to Rs.5000-8000 as per

..3..

office order dated 22.10.2009. When the new scale was

implemented, the pay band was revised to 9300-34800 with

grade pay of Rs.4200/-. The next higher post available in the

Department is that of Mechanical Supervisor, which is in the

pre-revised scale of pay of Rs.5500-9000. The petitioner

alleged that the feeder category of Fitters, who completed 24

years of service, are given second ACP benefit to the old pay

scale of Rs.5500-9000, i.e., corresponding to revised pay in

PB2 of Rs.9300-34800 with grade pay of Rs.4200/-. The post of

Refrigeration Mechanic is without any promotional cadre.

Consequent to the merger of scales as recommended by the

6th CPC, both the cadres are in the scale of same grade pay.

The Mechanical Supervisor is granted MACP benefit to the

grade pay of Rs.5400/-, whereas the applicant is granted only

Rs.4600/-. The 6th CPC merged the pay scales of Rs.5000-

8000, Rs.5500-9000 and Rs.6500-10500 and gave the

replacement scale in PB-2 with Rs.9300-34800 with a grade

pay of Rs.4,200/-. The cadres of Refrigeration Mechanic and

Mechanical Supervisor are now in the same pay band PB-2 in

the scale of Rs.9300-34800 with grade pay of Rs.4,200/-.

While so, Annex.A1 order granting ACP to the petitioner to the

scale of pay of Rs.5000-8000 was revised as per order dated

..4..

14.04.2010 issued by the second respondent revising the

grade pay of Rs.4600/- with effect from 04.07.2007.

Thereafter, on completion of 20 years of regular service, the

petitioner was granted second financial upgradation under the

MACP Scheme in PB-2 of Rs.9300-34800 with grade pay of

Rs.4800/-. In the original application, the petitioner

challenged the action of the respondents in extending the first

ACP in the pay scale of Rs.9300-34800 with grade pay of

Rs.4600/- only with effect from 04.07.2007 instead of old pay

scale of Rs.8000-13500, which is the present scale in PB-2

with a grade pay of Rs.5400/-.

3. On the other hand, the respondents refuted the

claim of the petitioner stating that the financial upgradation

under ACP scheme is granted to the next promotional post in

the hierarchy of grade/cadre. The Mechanical Supervisor (Sr.)

was granted first financial upgradation under ACP scheme to

the pay scale of Rs.8000-13500 of the promotional post of

Service Engineer (I&C). According to them, the contention of

the petitioner that the Recruitment Rules for the posts of

Refrigeration Mechanic and Mechanical Supervisor (Sr.) are

similar, is not correct. It was contended that the educational

qualifications, pay scales, etc., of the posts of Mechanical

..5..

Supervisor (Sr.) and Refrigeration Mechanic are different. It

was further contended that the petitioner entered service

directly as Refrigeration Mechanic and there is no further

promotional post. The petitioner was granted first financial

upgradation under the ACP scheme from the pay scale of

Rs.4500-7000 (5th CPC), which corresponds to PB-1 5200-

20200 with grade pay Rs.2800 in 6th CPC, to Rs.5000-8000

(5th CPC), which corresponds to PB-2 9300-34800 with grade

pay of Rs.4200/-. The first financial upgradation was revised

consequent to OM No.F.1/1/2008-IC dated 28.07.2009,

whereby pay scale of the post of Refrigeration Mechanic was

upgraded from Rs.4500-7000 to Rs.5000-8000 with effect

from 01.01.2006. Thus, grade pay of Rs.4,200/- received by

the petitioner as first ACP was revised to grade pay of

Rs.4,600/-. Thereafter, the petitioner has been granted second

financial upgradation to the grade pay of Rs.4,800/- on

completion of 20 years of regular service under the MACP

scheme. The contention of the petitioner that the Fitters are

being granted higher pay scale/grade pay is not correct.

Fitters, who are in the pay scale of Rs.3050-4590, were

granted first financial upgradation in the pay scale of the next

promotional post, i.e., Refrigeration Mechanic in the scale of

..6..

pay of Rs.4500-7000 (later, Rs.5000-8000); and in the absence

of next promotional post, they are granted second financial

upgradation under the ACP scheme in the next scale of pay of

Rs.5500-9000. On the basis of the 6th CPC pay band and

grade pay, a Fitter is granted financial upgradation from

grade pay Rs.2,800/- to grade pay Rs.4,600/- and second

financial upgradation from Rs.4,600/- to Rs.4,800/-. It was

contended that there is no case of Fitter getting more pay

than the Refrigeration Mechanic. The financial upgradation

under ACP/MACP scheme is personal to the employee and no

stepping can be claimed. The tribunal, after considering the

rival contentions of both parties and examining the records,

dismissed the original application holding that the petitioner

is not entitled to get any relief claimed in the original

application. Hence, this original petition.

4. We have considered the arguments raised by the

counsel on both sides. The case of the petitioner is that the

respondents have extended the first ACP in the pay scale of

Rs.9300-34800 with grade pay of Rs.4,600/- only with effect

from 04.07.2007 instead of old pay scale of Rs.8000-13500,

which is the present scale in PB-2 with a grade pay of

Rs.5,400/-. The petitioner entered service on 04.07.1995 as

..7..

Refrigeration Mechanic in the pay scale of 1400-2300.

Thereafter, 5th CPC recommendations were implemented

with effect from 01.01.1996 and the pay scale was revised to

Rs.4500-7000. When 6th CPC recommendations were

implemented, again his scale of pay was revised to PB-1

Rs.5200-20200 with grade pay Rs.2,800/-. Thereafter, on

completion of 12 years of regular service, the petitioner was

granted first upgradation under the ACP scheme from the pay

scale of Rs.4500-7000 to Rs.5000-8000. All the pre-revised

scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500

were merged into the common PB and PB-2 of Rs.9300-34800

with grade pay of Rs.4,200/- in the 6th CPC. While so, on

01.09.2008, MACP scheme was implemented. As per

Annex.R1, MACP scheme was introduced vide OM

No.35034/3/2008-Estt(D) dated 19.05.2009 with effect from

01.09.2008. As per OM No.F.1/1/2008-IC dated 28.07.2009,

pay scale of Refrigeration Mechanic was upgraded from

Rs.4500-7000 to Rs.5000-8000 with effect from 01.01.2006

and thus, on 16.03.2010, the pay of the petitioner was refixed

in grade pay of Rs.4,200/- as per Annex.A3.

5. It is seen that as per Annex.A7 dated 14.04.2010,

the grade pay of Rs.4,200/- granted to the petitioner under the

..8..

ACP Scheme was revised to Rs.4,600/- with effect from

04.07.2007. Thereafter, on completion of 20 years of regular

service, he has been granted second financial upgradation

under the MACP scheme in PB-2 of Rs.9300-34800/- with

grade pay of Rs.4,800/-. The claim of the petitioner that he

should be granted first financial upgradation in the scale of

pay of Rs.8000-13500 with effect from 03.04.2007 and

consequential revision to the grade pay of Rs.5,400/- is not

traceable to any provision in the ACP scheme. Admittedly, the

petitioner was granted two financial upgradations; firstly,

from grade pay of Rs.2,800/- to Rs.4,600/- and secondly, from

grade pay of Rs.4,600/- to Rs.4,800/- under the MACP scheme.

The cadre is limited to two grades only, i.e., the feeder post of

Fitter and the promotional post of Refrigeration Mechanic.

The petitioner entered service directly as Refrigeration

Mechanic and there is no further promotional post. He was

granted first financial upgradation under the ACP scheme

from the pay scale of Rs.4500-7000 to Rs.5000-8000.

Consequent to OM No.F.1/1/2008-IC dated 28.07.2009, the

pay scale of Refrigeration Mechanic was upgraded from

Rs.4500-7000 to Rs.5000-8000 with effect from 01.01.2006.

Thus, the grade pay of Rs.4,200/- received by the petitioner as

..9..

first ACP was revised to grade pay of Rs.4,600/-. The

petitioner was further granted the second financial

upgradation to the grade pay of Rs.4,800/- on completion of

20 years of regular service under the MACP scheme. The

claim of the petitioner that the pay scale granted to Fitter is

more than that of Refrigeration Mechanic does not appear to

be correct. Fitters, who are given the scale of pay of Rs.3050-

4590, were granted first financial upgradation in the pay scale

of the next promotional post, i.e., Refrigeration Mechanic, in

the scale of pay of Rs.4500-7000 and later to Rs.5000-8000.

In the absence of the next promotional post, they are granted

second financial upgradation under the ACP scheme in the

next scale of pay of Rs.5500-9000. Thus, it is seen that there is

no instance of discrimination or granting of higher grade pay

to Fitters. The pay of Refrigeration Mechanic and Mechanical

Supervisor (Sr.) cannot be equated since their qualifications

are entirely different as seen from Annex.R5 and R6. Further,

the post of Mechanical Supervisor (Sr.) is not a promotion

post of Refrigeration Mechanic.

6. The claim of the petitioner to grant him the grade

pay of Rs.5,400/- instead of Rs.4,600/- does not appear to have

any reasoning. There is no further promotion from the post of

..10..

Refrigeration Mechanic and the petitioner was granted first

and second financial upgradation and has been granted the

grade pay corresponding to the pay scale. Having given a

thoughtful consideration of the arguments raised on both

sides, we are of the view that the finding of the tribunal is just

and proper and the impugned order does not call for any

interference.

The original petition is, accordingly, dismissed.

Sd/-

A. MUHAMED MUSTAQUE

JUDGE

Sd/-

SHOBA ANNAMMA EAPEN

JUDGE bka/-

..11..

APPENDIX OF OP (CAT) 330/2016

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION NO .

1224/2012 FILED BEFORE THE C.A.T.

Annexure A1 TRUE COPY OF THE OFFICE ORDER NO. F.103/2002 F.II DATED 22.10.2008 ISSUED BY THE 2ND RESPONDENT.

Annexure A2 TRUE COPY OF THE OFFICE ORDER NO. F.8- 32/2007 DATED 3.11.2008 ISSUED BY THE 3RD RESPONDENT.

Annexure A3 TRUE COPY OF THE OFFICE ORDER NO. F.8- 72/2006 DATED 16.3.2010 ISSUED BY THE 3RD RESPONDENT.

Annexure A4 TRUE COPY OF THE PAY FIXATION ORDER DATED 12.3.2010 OF THE APPLICANT.

Annexure A5 TRUE COPY OF THE OFFICE MEMORANDUM NO.

35034/1/97- ESTT (D) DATED 9.8.99 ISSUED BY THE MINISTRY OF PERSONNEL.

Annexure A6 TRUE COPY OF THE ORDER F.NO. 1-6/2006 EII DATED 8.4.2011 ISSUED BY THE 2ND RESPONDENT.

Annexure A7 TRUE COPY OF THE ORDER F. NO.1-3/2002 E.II DATED 14.4.2010 ISSUED BY THE 2ND RESPONDENT.

Annexure A8 TRUE COPY OF THE PAY FIXATION ORDER DATED 10.9.2008 OF SR. M. SUBHASH, MECHANICAL SUPERVISOR OF THE 3RD RESPONDENT.

Annexure A9 TRUE COPY OF THE REPRESENTATION DATED 14.12.2011 SUBMITTED BY THE APPLICANT.

Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT IN THE O.A. NO. 1224/2012.

Annexure R-1 TRUE COPY OF THE OFFICE MEMORANDUM DATED 19.5.2009 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS (DEPARTMENT OF PERSONNEL & TRAINING) GOVERNMENT OF INDIA.

..12..

Annexure R-2 TRUE COPY OF THE LETTER NO.2-44/99 FY ADMN DATED 14.11.2003 ISSUED BY MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING, GOVT. OF INDIA.

Annexure R-3. TRUE COPY OF THE RECRUITMENT RULE FOR THE POST OF SERVICE ENGINEER (I&C).

Annexure R-4 TRUE COPY OF THE EXTRACT FROM SWAMY'S HAND BOOK SHOWING THE PAY SCALES OF THE VTH CPC AND CORRESPONDING PAY BANDS OF VITH CPC.

Annexure R-5. COPY OF EDUCATIONAL QUALIFICATIONS, PAY SCALES ETC OF THE POSTS OF MECHANICAL SUPERVISOR.

Annexure R-6 COPY OF EDUCATIONAL QUALIFICATIONS, PAY SCALES ETC OF THE POSTS OF REFRIGERATION MECHANIC.

Exhibit P3 TRUE COPY OF THE REJOINDER FILED IN O.A. NO.1224/2012.

Exhibit P4 TRUECOPY OF THE ORDER DATED 31.8.2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A. NO. /1224/2012.

RESPONDENT EXHIBITS

Exhibit R1(A) TRUE COPY OF LETTER NO. 8-8/01 ADMN DATED 11.12.2002 ISSUED BY THE CIFNET .

Exhibit R1(B) TRUE COPY OF THE LETTER NO. A1/1-2/ 97 PART III VOL.II/194 DATED 18.01.2003 ISSUED BY DIRECTOR, IFP.

PETITIONER EXHIBITS

Exhibit P8 TRUE COPY OF THE LETTER F. NO. 3-1/2009-E.I DATED 14.12.2009 ISSUED BY THE 2ND RESPONDENT.

Exhibit P9 TRUE COPY OF OFFICE ORDER F.1-3/2002 E.II DATED 14.4.2010 ISSUED BY THE 2ND RESPONDENT.

Exhibit P10 TRUE COPY OF OM F. NO. 35034/1/97-ESTT.(D) (VOL.IV) DATED 10.2.2000 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &

..13..

PENSIONS.

Exhibit P11 TRUE COPY OF JUDGEMENT DATED 19.11.2015 OF THE HON'BLE DELHI HIGH COURT IN W.P.(C) NO. 586/2001.

Exhibit P12 TRUE COPY OF OFFICE ORDER NO.1-3/2002 EST.

II DATED 12.8.2004 ISSUED BY THE 2ND RESPONDENT.

Exhibit P13 TRUE COPY OF THE ORDER DATED 31.12.2018 OF THE C.A.T. ERNAKULAM IN OA 1024/2016.

Exhibit P14 TRUE COPY OF THE ORDER DATED 11.9.2015 OF THE PRINCIPAL BENCH OF THE C.A.T. IN OA. 2512/2014.

Exhibit P15 TRUE COPY OF THE OM DATED 9.9.2010 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS.

Exhibit P16 TRUE COPY OF THE ORDER DATED 26.11.2012 OF THE PRINCIPAL BENCH OF THE C.A.T. IN OA 904/2012.

RESPONDENT EXHIBITS

Exhibit R1(C) TRUE COPY OF THE ABSTRACT OF PARA 68.22 OF THE 5TH CPC.

Exhibit R11(D) TRUE COPY OF THE OFFICE MEMORANDUM NO.

Z.28015/4/2008.E-1 DATED 05.09.2014 ISSUED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE.

Exhibit R1 (E): TRUE COPY OF THE FIRST SCHEDULE PART-A SECTION I OF CCS REVISED PAY RULES, 2008.

Exhibit R1 (F) TRUE COPY OF THE LETTER DATED 11.06.2018 ISSUED BY THE SENIOR ACCOUNTS OFFICER, PAY & ACCOUNTS OFFICE, MINISTRY OF AGRICULTURE & FARMER'S WELFARE, MUMBAI.