Allowed

Pradeep Shukla and Others v. U.O.I. Thru. Secy. Ministry of Railways and Others

Allahabad HC1 Mar 2023WRIA/25472/2017

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a writ petition where it quashed an order denying diploma engineers with civil engineering qualifications the higher pay scale fixed for other technical categories. The Court held that rejecting such award was arbitrary, violating binding Tribunal directions and the principle of non-discrimination established by Supreme Court precedent.

What did the court decide?

Pay fixed in revised scale of Rs. 1600 to 2660 (Rs. 5000 to 8000) w.e.f. 01.01.1996; arrears payable for period 01.01.1996 to 31.10.2003.

Pradeep Shukla and Others Vs U.O.I. Thru… — Public Procurement and Tenders | Allahabad HC (2023)

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Court No. - 2

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Case :- WRIT - A No. - 25472 of 2017

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Petitioner :- Pradeep Shukla And Others Respondent :- U.O.I. Thru. Secy. Ministry Of Railways And Others Counsel for Petitioner :- Shachindra Pratap Singh Counsel for Respondent :- A.S.G.,Ashwani Kumar Singh,Mrs.Suniti Sachan,Neerav Chitravanshi

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Subhash Vidyarthi,J.

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Heard the learned counsel for the petitioners Sri Sachindra Pratap Singh and Sri Ashwani Kumar Singh, learned counsel representing the respondents.

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The Proceedings of this petition instituted under Article 226 of the Constitution of India challenge the judgment and order dated 03.07.2017 passed by the Central Administrative Tribunal whereby Original Application No. 410 of 2012 filed by the petitioners has been dismissed and their claim for their placement in the revised scale of pay of Rs. 5000-8000 (at the relevant point of time) has not been acceded to. The petitioners have also challenged the order dated 20.07.2009 passed by the Deputy Director, Pay Commission-V, Railway Board wherein the claim of the petitioners for being placed in the pay scale of Rs. 5000 to 8000 by upgrading the scale of pay of Rs. 4500 to 7000 was rejected.

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The facts of the case present a bit chequered history. All the petitioners are having qualification of diploma in civil engineering to their credit. An employment notice bearing no. 2 of 1989-90 was published on 20.01.1990 for appointment on the post of Sub Overseer Mistry (SOM). In the said advertisement the requisite qualification mentioned for recruitment was diploma in civil engineering from a recognized institute. One year diploma in Rail Transport and Management from the institute of Rail Transport was mentioned in the

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said advertisement as additional desirable qualification. Apart from the said educational qualification the advertisement also stipulated therein that candidates must possess good physique.

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The petitioners fulfilling the said qualification as advertised on 20.01.1990 submitted their applications and after having been subjected to selection, were appointed on the post of SOM and were placed in the pay scale of Rs. 1400-2300. The said pay scale was made available to the petitioners as at the relevant point of time the post of SOM carried the said pay scale of Rs. 1400-2300, however, on acceptance by the Central Government of the recommendation made by the 5^th Central Pay Commission, the pay scale of Rs. 1400-2300 was revised to Rs. 4500-7000 and accordingly w.e.f. 01.01.1996 the petitioners were placed in the revised scale of pay of Rs. 4500-7000. One of the recommendations made by the 5th Central Pay Commission has been extracted by the petitioners in paragraph 8 of the writ petition which is quoted hereunder:

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"We have carefully considered the demands of the federation and the views of the administrative Ministries/Departments in the light of our general approach on the pay scales of different profession/technical groups of staff and existing relatives between technical and non-technical categories. We have, as a general rule, decided to improve the initial recruitment pay scale of diploma engineers in government. We accordingly, recommend following pay structure for engineering subordinate cadre:

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Pay scale existing Pay scale proposed (In present terms) (Rs.) 1400-2300 1600-2660 1640-2900* 1640-2900 1640-2900* 1640-2900 2000-3200* 2000-3500 2375-3500 2375-3750 2375-3750 2500-4000

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some of these are graduates in engineering and others are diploma holders.

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[Govt. decision: Accepted vide Sl. No. IX(a) of Part B of first schedule of CCS (RP) Rules 1997. see chapter 174 of Part X]

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50.24. These pay scales will apply mutatis mutandis for diploma engineers in different cadres depending upon the availability of specific existing pay scales. We have recommended specific pay structures for different engineering cadres."

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Noticing the aforequoted recommendation of the 5th Central Pay Commission wherein pay scale of diploma engineers working with the Government was revised from Rs. 1400-2300 to Rs. 1600-2660. The petitioners felt aggrieved for the reason that even after the aforesaid recommendation made by the 5th Central Pay Commission they were still placed in the pay scale of Rs. 1400 to 2300 and were thus deprived of the equivalent pay scale of Rs. 5000-8000; instead they were being paid their pay in the pay scale of Rs. 4500-7000. Noticing such anomalous treatment being meted out to the petitioners, they instituted proceedings of Original Application No. 247 of 2005 before the Central Administrative Tribunal which was decided by the order dated 15.09.2005 whereby the competent authority was required to consider the claim of the petitioners of being placed in the revised scale of pay Rs. 5000-8000. In compliance of the said order dated 15.09.2005 passed by the Central Administrative Tribunal in Original Application No. 247 of 2005 the matter appears to have been considered by the Divisional Railway Manager, Northern Railway, Lucknow who passed an order on 12.12.2005 whereby their claim was again rejected.

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The said order dated 12.12.2005 was challenged by the petitioners by instituting the proceedings of Original Application No. 580 of 2006 before the Central Administrative Tribunal and a Division Bench of the Tribunal considered the matter in its entirety and found the claim of the petitioners to be sustainable for being placed in the pay scale of

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Rs. 5000-8000. The Original Application No. 580 of 2006 was thus decided by the Central Administrative Tribunal by means of its judgment and order dated 10.09.2008 wherein the discrimination meted out to the petitioners was noted and a clear finding was recorded that the petitioners were entitled to be placed in higher scale of pay of Rs. 5000-8000 w.e.f. 01.01.1996, however, it appears that on being informed about formation of Pay Anomaly Committee, the Central Administrative Tribunal directed that the claim of the petitioners relating to their placement in the revised scale of pay to be given to them w.e.f. 01.01.1996 may be placed before the Anomaly Committee and on the basis of such recommendations the respondent no. 1 i.e. the Government of India should take an appropriate decision.

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That no decision in compliance of the said judgment was taken within the time stipulated in the judgment. However, a decision thereafter was taken on 20.07.2009 by the Deputy Director, Pay Commission-V, Railway Board, Ministry of Railways whereby the claim of the petitioners was again rejected. It is worthwhile to notice at this juncture that though in the order dated 10.09.2008 various findings were recorded by the Central Administrative Tribunal in unambiguous terms holding therein that the petitioners are entitled to be placed in the revised scale of pay of Rs. 5000 to 8000 w.e.f. 01.01.1996 and matter was thus directed to be placed before the Anomaly Committee, however, the matter relating to the petitioners in compliance of the said judgment of the Central Administrative Tribunal was never placed before the Anomaly Committee. The direction issued by the Central Administrative Tribunal in its judgment dated 10.09.2008 was to the effect that first the matter of the petitioner shall be placed before the Anomaly Committee and based on the recommendations of the Anomaly Committee, decision shall be taken by the Government of India in that regard. However, without referring the matter to the Anomaly Committee to make its recommendation in the light of the observations made by the Central

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Administrative Tribunal in its judgment dated 10.09.2008 the Government of India, Ministry of Railways took the decision on its own which is reflected from the letter/order dated 20.07.2009.

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After passing of the order dated 20.07.2009 the petitioners instituted contempt petition before the Central Administrative Tribunal which was registered as Civil Contempt Petition No. 75 of 2009. The said contempt petition was instituted by the petitioners taking a ground that as directed by the Central Administrative Tribunal in its judgment dated 10.09.2008 the matter relating to the claim of the petitioners were never placed before the Anomaly Committee and final decision by means of the order dated 20.07.2009 was taken by the Government which amounted to disobedience of the said judgment of the Central Administrative Tribunal. Learned Tribunal, however, taking note of the fact that decision which is reflected in the order dated 20.07.2009 was taken at the highest level of the Government which ultimately was the purport of the judgment of the Tribunal, dated 10.09.2008 hence it cannot be said that respondents in the contempt petition deliberately defied the order of the Central Administrative Tribunal. Accordingly, the contempt notices were discharged by the Central Administrative Tribunal by means of the order dated 27.03.2012 and while discharging the notices it was also noticed by the Central Administrative Tribunal that an apology was also tendered on behalf of the respondents in the contempt petition. The order dated 27.03.2012 was challenged by the petitioners before this Court by instituting Writ Petition No. 735 (S/B) of 2012 which was decided by a Coordinate Bench of this Court by means of judgment and order dated 30.05.2012. This Court while deciding the said writ petition vide order dated 30.05.2012 has observed that if a decision has been taken contrary to the order passed by the Tribunal or such a decision suffers from the vice of arbitrariness or is illegal then it will be open to the petitioners to

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approach the Tribunal again in respect of the subsequent cause of action.

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It is in the aforesaid background facts that the petitioners instituted the proceedings of Original Application No. 410 of 2012 wherein the challenge was made to the order dated 20.07.2009. This original application has been dismissed by the Central Administrative Tribunal by means of the judgment and order dated 03.07.2017 which is under challenger before us in this writ petition.

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Vehemently espousing the cause of the petitioners learned counsel representing them has submitted that in view of the recommendation made by the Pay Commission vide recommendation No. 50.23 and 50.24, all diploma engineers in the Central Government were entitled to be placed in the pay scale of Rs. 1600-2660 and accordingly the respondents by not placing the petitioners in the said pay scale have clearly not only erred in law but have also denied rightful claim of the petitioners. It has also been argued by learned counsel for the petitioners that accepting the recommendation of the Pay Commission in respect of one set of diploma engineers and rejecting the same in respect of the other set of diploma engineers is discriminatory, which action cannot be decreed by any court keeping in view the judgment of the Hon'ble Supreme Court rendered in the case of Purushottam Lal v. Union of India, reported in AIR 1973 SC 1088 . It has been thus urged by learned counsel for the petitioners that as a matter of fact the entire controversy stood at rest at the time when the Central Administrative Tribunal decided Original Application No. 580 of 2006 by means of its judgment and order dated 10.09.2008. Drawing our attention to the findings recorded in the said judgment dated 10.09.2008 it has been argued by the learned counsel for the petitioners that on the basis of the analysis of the facts and the law applicable, the Central Administrative Tribunal had clearly given a finding that the petitioners have been discriminated not only vis-a-vis other diploma holder engineers but also vis-a-vis the incumbents

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holding the post of Master Crafts Man (MCM). He has also submitted that after an unambiguous finding recorded by the Central Administrative Tribunal in its judgment and order dated 10.09.2008 it was not open to the respondents to have denied the petitioners the benefit of the revised scale of pay of Rs. 5000 to 8000 for the reason that the said judgment dated 08.09.2008 passed by the Central Administrative Tribunal was never challenged by the respondents. He has also stated that as a matter of fact the respondents have been acting in the most arbitrary manner to defeat the lawful claim of the petitioners and it is in this background that despite a clear direction issued by the Central Administrative Tribunal while passing the judgment and order dated 10.09.2008 to refer the matter of the petitioners to the Anomaly Committee, the said matter was never referred to the Anomaly Committee and straightaway decision was taken denying the petitioners their rightful claim.

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Sri S.P. Singh, learned counsel for the petitioners has further argued that had the matter been placed before the Anomaly Committee, keeping in view the observations made and finding returned in its judgment dated 10.09.2008 the petitioners would have been granted the revised scale of pay of Rs. 5000-8000. He has emphasized and repeatedly said that the judgment dated 10.09.2008 passed by the Central Administrative Tribunal having not been challenged by the respondents before any higher forum/ court was binding on the respondents and any deviation therefrom would amount to the respondents sitting in appeal over the judgment rendered by the Tribunal which is not permissible.

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Sri S.P. Singh has also submitted that it is not in dispute that all the petitioners hold the qualification of diploma in civil engineering. He further states that the plea raised by the respondents of having mistakenly prescribed the qualification in the advertisement issued on 20.01.1990 to be a diploma in civil engineering cannot be permitted to come to their rescue in as much as that it is not that diploma in civil

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engineering is not one of the essential qualifications for the post against which the petitioners were initially appointed i.e. the post of SOM. He has further stated that in fact under the recruitment rules, description of essential qualification for appointment to the post of SOM is " 10+2 with science and maths. Diploma holders in Civil/ Mechanical Engineering will also be eligible" . It has been argued further on behalf of the petitioners that in case for any reason in the advertisement dated 20.01.1990 pursuant to which the petitioners were subjected to selection, the qualification for the post in question was mentioned to be diploma in civil engineering and the qualification of 10+2 science and maths was omitted, no benefit for such a mistake can be extended to the respondent for denying the petitioners of their rightful claim of being placed in the revised scale of pay of Rs. 5000 to 8000. On behalf of the petitioner it has further been argued that the reasons indicated in the order dated 20.07.2009 are not only untenable but reflect an altered stand taken by the respondents in the matter.

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In paragraph 32 of the writ petition the petitioners have extracted the reasons indicated in the letter/ order dated 20.07.2009 and have juxtaposed the contents of the said order with the contents of the supplementary affidavit which was filed by the respondents in the earlier Original Application namely Original Application No. 580 of 2006. If we peruse the averments made in paragraph 32 of the writ petition what we find is that the statements made on behalf of the respondents in the supplementary affidavit run contrary to the reasons indicated by them while passing the order dated 20.07.2009. In the order dated 20.07.2009 it has been stated that the post of Master Crafts Man (MCM) is not a feeder post of SOM and that MCM posts are held by the technicians grade-I on personal basis whereas in the supplementary affidavit filed by the respondent in original application No. 580 of 2006 a circular letter of the Railway Board was annexed which is available before us at pages 148 to 152 of this special appeal where in paragraph 'ka' it has been stated that in future the post of

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Mistries (SOM) shall be filled in only by way of promotion from the incumbents holding the post of Master Crafts Man. Thus from the circular annexed with the supplementary affidavit filed by the respondents in Original Application No. 580 of 2006 and the averments made in the said supplementary affidavit the reasons indicated in the order/ letter dated 20.07.2009 for denying the benefit of revised scale of pay to the petitioners does not appear to be tenable.

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On the basis of aforesaid submissions, learned counsel for the petitioner has argued that Central Administrative Tribunal while passing the judgment and order under challenge before us in the writ petition has completely failed to take into account the aforesaid aspects of the matter which renders the judgment to be illegal and as such the writ petition deserves to be allowed.

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Per contra, Sri Ashwani Kumar Singh representing the Railways has vehemently opposed the writ petition and has submitted that on account of the mistake which had crept in the advertisement dated 20.01.1990 no benefit can be permitted to be extended to the petitioners and further that the matter relating to the claim of the petitioners for grant of pay scale of Rs. 5000-8000 has been appropriately considered by the appropriate authority of the government which has rightly been rejected by means of the order/ letter dated 20.07.2009, he has also argued that in fact the post of Master Crafts Man (MCM) is not a feeder post of Sub Overseer Mistry (SOM) and accordingly the plea raised by the learned counsel for the petitioner that since the pay scale of Rs. 1600-2660 was made available to the incumbents holding MCM post which is a post subordinate to the post of SOM as such the petitioners are entitled to be given the revised scale of pay of Rs. 1600-2660 (5000-8000), is not tenable. It has further been argued by the learned counsel representing the respondents that 5th Central Pay Commission had recommended to retain the pay scale of Mistrys (SOM) as Rs. 1400-2300 (corresponding to Rs. 4500-7000) and had upgraded pay scale of

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Junior Engineer Grade-II to Rs. 1600-2660 (corresponding to Rs. 5000-8000).It has been thus submitted that 5th Central Pay Commission never recommended that the incumbents holding the post of SOM shall be made available the pay scale of Rs. 1600-2660 and accordingly the petitioners have rightly been denied the revised scale of pay of Rs. 5000 to 8000.

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On the aforesaid grounds Sri Ashwani Kumar Singh has submitted that the writ petition lacks merit for the reasons that the judgment and order passed by the Central Administrative Tribunal which is under challenge in this writ petition does not suffer from any illegality or error so as to call for any interference from this Court in this writ petition.

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Having noticed the facts as above and having heard the learned counsel representing the respective parties, first of all what we find is that the Central Administrative Tribunal had already considered the entire matter and allowed the Original Application No. 580 of 2006 by means of the judgment and order dated 10.09.2008 wherein it has been held in categorical and unambiguous terms by the Central Administrative Tribunal that the petitioners have rightful claim of being placed in the pay scale of Rs. 1600-2660 (corresponding pay scale of Rs. 5000-8000). If we peruse the judgment and order dated 10.09.2008 passed by the Central Administrative Tribunal what we find is that the Central Administrative Tribunal has noticed the recommendation made by the pay commission and has observed that in case the recommendation was made in respect of the diploma holder engineers for providing a particular scale of pay then any discrimination amongst the diploma holder civil engineers will not be permissible and will run contrary to the law laid down by the Hon'ble Supreme Court in Purushottam Lal v. Union of India (supra) .

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Learned Tribunal while passing the said judgment also considered the contention raised on that relevant point of time by the Railway Authorities and arrived at a conclusion that subsequently on cadres

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restructuring the incumbents holding the post of SOM have been made available the revised scale of pay of Rs. 5000-8000 and that, however, they are entitled to the said scale of pay w.e.f. 01.01.1996 i.e. w.e.f. the date the recommendation of the 5th Central Pay Commission was implemented. The learned Tribunal also noticed the anomaly in the pay scale being made available to the petitioners vis-avis the pay scale which was made available to the incumbent holding the post of MCM which admittedly is a post lower in rank than the post of SOM again to which the petitioners were appointed initially pursuant to the selection process conducted on the basis of advertisement dated 20.01.2009.

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We also notice that the said judgment dated 10.09.2008 was never challenged by the respondents before any other higher Court or forum. Accordingly, in absence of any challenge, the said judgment become binding on the parties. However, instead of placing the matter as directed by the Central Administrative Tribunal before the Anomaly Committee, decision is said to have been taken at the highest level and the claim of the petitioners have been rejected by means of an order dated 20.07.2009. In our opinion the findings recorded by the Central Administrative Tribunal in its judgment dated 10.09.2008 could not have been overruled by the authorities concerned in absence of any challenge to the said judgment dated 10.09.2008. It is not a case where the Central Administrative Tribunal had rendered its judgment dated 10.09.2008 in absence of any pleading on behalf of the respondents.

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The Central Administrative Tribunal had considered the matter in detail and had made certain findings which appear to have been upset by the authorities concerned by passing the order dated 20.07.2009 as if the authority who passed the said order was in appeal sitting over the judgment of the Tribunal.

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The submission made by the learned counsel for the petitioners in paragraph 8 of the writ petition regarding recommendation of the pay

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commission vide recommendations no. 50.23 and 50.24 wherein the recommendation was made to revise the pay scale of all diploma engineers from Rs. 1400-2300 to 1600-2660 has not been denied by the respondents by filing counter affidavit in this writ petition. Accordingly the fact that the said recommendation was made by the pay commission has been admitted by the respondents.

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In view of the law laid down by the Hon'ble Supreme Court in the case of Purushottam Lal (supra) it is not open to the Government to accept the recommendation of the Pay Commission selectively. The petitioners undoubtedly hold diploma in civil engineering as their qualification to their credit. They applied for being appointed as SOM on the basis of the minimum qualification disclosed by the respondents themselves in the advertisement published on 20.01.1990. If there was any mistake in the said advertisement it would have been possible that considering the fact that minimum qualification for the post in question was only 10+2 with maths and science, the petitioner would not have applied having regard to the higher qualification they possessed. It is also to be noticed that it is not that the minimum qualification prescribed for appointment of the post of SOM did not include the diploma in civil engineering.

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On the basis of the reasons aforesaid we are of the opinion that the petitioners in this case have all along being treated by the respondents in an unfair manner.

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For the discussion made and reasons given above what we find is that the learned Tribunal while passing the judgment and order under challenge before us in this writ petition has not considered the claim of the petitioners in its correct perspective. The judgment by the Tribunal is not thus sustainable.

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We also find, for the above discussion, that the order dated 20.07.2009 passed by the Deputy Director, Pay Commission-V,

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Railway Board, Ministry of Railways, Government of India is also not sustainable.

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The writ petition is thus allowed . The judgment and order dated 03.07.2017 passed by the Lucknow Bench of the Central Administrative Tribunal in Original Application No. 410 of 2012 is hereby quashed.

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The order dated 20.07.2009 passed by the Deputy Director, Pay Commission-V, Railway Board, Ministry of Railways, Government of India is also hereby quashed. We further direct that pay of the petitioners shall be fixed in the revised scale of pay of Rs. 1600 to 2660 (corresponding pay scale of Rs. 5000 to 8000) w.e.f. 01.01.1996 and they shall be paid arrears of pay as a consequence of fixation under this order for the period 01.01.1996 till 31.10.2003. The arrears under this order shall be paid to the petitioners within a period of two months from the date of production of a certified copy of this order.

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(Subhash Vidyarthi, J.) (Devendra Kumar Upadhyaya, J.)

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Order Date :- 1.3.2023 Pradeep/-

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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Pradeep Shukla and Others v. U.O.I. Thru. Secy. Ministry of Railways and Others

Case brief

What is this about?

What did the court decide?

Pradeep Shukla and Others v. U.O.I. Thru. Secy. Ministry of Railways and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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