Allowed

Kiran Kumar. K.S v. Union of India

Karnataka HC9 May 2024WP/42227/2015

Case brief

AI extract

What is this about?

Workmen of HAL who were promoted from Scale-10 to officers' Grade-I drew less pay than colleagues left in the workmen cadre's special scale, due to denial of fitment benefit and non-merger of special pay in basic pay. Holding this anomaly arbitrary and violative of service jurisprudence principles, the Court allowed their request for reversion to the workmen cadre in the special scale.

What did the court decide?

Petitioners reverted to workmen cadre special scale with all benefits w.e.f. 01.03.2008; impugned refusal order (Clause 6(III)) quashed.

Kiran Kumar. K.S Vs Union of India — Pension and Retirement Benefits | Karnataka HC (2024)

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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

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH DAY OF MAY, 2024

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA

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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)

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IN W.P. No.42227/2015:

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BETWEEN:

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1 . KIRAN KUMAR. K.S

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AGED ABOUT 50 YEARS, S/O K.S.SUNDERAJA IYENGAR, #47, 1ST MAIN, 10TH CROSS, SRINIDHI LAYOUT, KONANKUNTE, BENGALURU-560062.

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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2 . N.R.SUBRAMANYA

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AGED ABOUT 57 YEARS, S/O ALTE N.S.RAMA RAO, #527, 14TH MAIN, 4TH BLOCK, NANDINI LAYOUT, BANGALORE-560096.

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3 . SAMPATH KUMAR P

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AGED ABOUT 52 YEARS, S/OM.P.PERUMAL, 19, SRIDEVI VILLA, NEW EXTENSION, GANGOTHRI STREET, K.R.PURAM, BANGALORE-560036.

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4 . V S RAMAMURTHY AGED ABOUT 50 YEARS,

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S/O SIDDAPPA.V.C,. FB-53, 2ND MAIN, HAL OLD TOWNSHIP, VIMANAPURA POST, BNAGALORE-560017.

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5 . CHITTI BABU

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AGED ABOUT 48 YEARS, S/O N.PURUSHOTHAM, F-4, ALPHANANUR, 10TH MAIN 3RD BLOCK, HBR LAYOUT, BANGALORE-560043.

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6 . RAMALINGA M

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AGED ABOUT 56 YEARS, S/O LATE MUREGESH, R/O #16, 3RD "A" MAIN ROAD, 2ND CROSS, LBS NAGAR, BANGALORE-560017.

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7 . LAKSHMAPPA METI AGED ABOUT 56 YEARS, S/O BALAPPA METI, #17, MATHRUSHREE NILAYA, 7TH MAIN, 6TH CROSS, MARUTHI NAGAR, MALLESHANAPALLYA, BANGALORE-560075.

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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.

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9 . BASAVARAJ AGED ABOUT 55 YEARS, S/O LATE B.RUDRAIAH, #8, LAXMI NILAYA, 1ST MAIN, 2ND CROSS, NCR LAYOUT,

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DODDA NEKKUNDI, BANGALORE-560037.

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10 . H JAIMUNI RAO

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AGED ABOUT 51 YEARS, S/O LATE HANUMANTH RAO, #18, 1ST CROSS, LAVAKUSHA NAGAR, L.G.RAMANNA, BADAVANE, OPP:SHARADHA VIDHYA MANDIR, BANGALORE-560058.

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11 . S G PATIL

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AGED ABOUT 56 YEARS, S/O G.T.PATIL, #86, 19TH CROSS, 21ST MAIN, SRINGAR, NEAR MARUTHI MANDIR, BANGALORE-560040.

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12 . SAMPANGI RAM AGED ABOUT 50 YEARS, S/O V.PUTTAVENKATA SWAMY, #119, NEAR GOVT SCHOOL, VENKATALA VILLAGE, YELAHANKA POST, BANGALORE-560064.

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13 . KALASE GOWDA AGED ABOUT 49 YEARS, S/O LLAKKANNA GOWDA, # 843, 2ND CROSS, 2ND MAIN, "B" BLOCK, AECS LAYOUT, HOSUR ROAD, BANGALORE-560068.

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…PETITIONERS

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(BY SMT. VIDYULATHA., ADVOCATE)

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AND:

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1 . UNION OF INDIA

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DEPARTMENT OF DEFENCE, NO.109-B, SOUTH BLOCK,

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NEW DELHI-110001. BY ITS JOINT SECRETARY.

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2 . HINDUSTAN AERONAUTICS LTD BANGALORE COMPLEX, BANGALORE-560017. BY ITS CHAIRMAN.

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3 . DIRECTOR (H.R) HINDUSTAN AERONAUTICS LTD., 15/1, CUBBON ROAD, POST BOX NO.5150. BENGALURU-560001.

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4 . GENERAL MANAGER (H.R.) HINDUSTAN AERONAUTICS LTD., 15/1, CUBBON ROAD, POST BOX NO.5150. BENGALURU-560001.

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5 . ADDITIONAL GENERAL MANGER(H.R.) HINDUSTAN AERONAUTICS LTD., BANGALORE COMPLEX, VIMANAPURA POST, BENGALURU-560017.

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…RESPONDENTS (BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1; SRI.PRADEEP S.SAWKAR, ADVOCATE FOR R-2 TO R-5)

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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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CIRCULAR DATED 10.08.2010 AT ANNEXURE-E TO THE W.P. WITH EFFECT FROM 1.3.2008, ETC.

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IN W.P. No.42210/2015

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BETWEEN:

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1 . ARJUN KUMAR

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S/O LATE SRI. KODANDA RAO, AGED ABOUT 57 YEARS, R/A # 32, 17TH "A" CROSS, BHUVANESHARI NAGARA, HEBBAL KEMPAPURA, BANGALORE-560 024.

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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.

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3 . R.S.Z. REHAMAN AGED ABOUT 56 YEARS S/O. LATE R. SYED ABDULLA AZIZ KHAMER, R/O MANZIL, NO. 970, 12^TH CROSS, 1^ST STAGE, 3^RD BLOCK, HBR LAYOUT, BANGALORE-560 043.

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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.

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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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…PETITIONERS

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(BY SMT.B.V.VIDYULATHA, ADVOCATE)

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AND:

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1 . UNION OF INDIA DEPARTMENT OF DEFENCE, NO.109-B, SOUTH BLOCK, NEW DELHI-110001. BY ITS JOINT SECRETARY.

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2 . HINDUSTAN AERONAUTICS LTD BANGALORE COMPLEX, BANGALORE-560017. BY ITS CHAIRMAN.

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3 . DIRECTOR (H.R) HINDUSTAN AERONAUTICS LTD., 15/1, CUBBON ROAD, POST BOX NO.5150.

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BENGALURU-560001.

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4 . GENERAL MANAGER (H.R.) HINDUSTAN AERONAUTICS LTD., 15/1, CUBBON ROAD, POST BOX NO.5150. BENGALURU-560001.

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5 . ADDITIONAL GENERAL MANGER(H.R.) HINDUSTAN AERONAUTICS LTD., BANGALORE COMPLEX, VIMANAPURA POST, BENGALURU-560017.

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…RESPONDENTS (BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1; SRI.PRADEEP S.SAWKAR, ADVOCATE FOR R-2 TO R-5)

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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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NC: 2024:KHC:17149 WP No. 42227 of 2015 C/W WP No. 42210 of 2015 WP No. 42215 of 2015

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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.

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IN W.P. No.42215/2015:

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BETWEEN:

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1 . RAMESH BABU C AGED ABOUT 49 YEARS, S/O LATE CHITHRAI, #218, 3^RD CROSS, SS COTTAGE, NANDA GOKULA STREET, AKASH NAGAR, A NARAYANA PURA, K.R.PURAM, BANGALORE-560 043.

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2 . P. VADIVELU

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AGED ABOUT 49 YEARS, S/O LATE PADAVITTAN, # 1590,17TH "A" MAIN, 1ST STAGE, 5TH BLOCK, HBR LAYOUT, BANGALORE 560043.

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3 . Y. REVANAPPA

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AGED ABOUT 52 YEARS, S/O SIDDABASAPPA, # 144, 3RD CROSS, KRISHNA NAGAR, DEVASANDRA,K.R PURAM, BANGALORE 560036.

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4 . JAGADISH M.C

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AGED ABOUT 54 YEARS, S/O M.CHANDRASHEKARAIAH, # 2939, 2ND CROSS, NEAR 108, GANESHA TEMPLE,

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KUMARASWAMY LAYOUT, BANGALORE 560078.

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5 . VAJRANABHA

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AGED ABOUT 49 YEARS, S/O LATE T. RAMAIAH, # 32, DESOUZA NAGAR, BEHIND P.E. SIT, BANASHANKARI 3RD STAGE, BANGALORE 560085.

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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.

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7 . S. RAMANJANEYA

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AGED ABOUT 52 YEARS, S/O S.NARASAPPA, # 31/1, 8TH CROSS, 7TH MAIN, MAHALAXMI LAYOUT, BANGALORE 560086

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8 . M.S. RAJENDRAN AGED ABOUT 54 YEARS, S/O LATE M. SURGA PRAKASH, D-2, HAL (OLD TOWN SHIP) VIMANAPURA POST, BANGALORE 560017

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9 . S.R. BALASUBRAMANAYAM

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AGED ABOUT 58 YEARS, S/O S. RAMAMURTHY,

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6, FLAT NO.301, 14TH MAIN, SRINAGARA, RAGHAVENDRA BLOCK, KALIDASA LAYOUT, BANGALORE 560050.

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10 . A. BYATAPPA

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AGED ABOUT 57 YEARS, S/O APPAIAH,

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579, KUVEMPU ROAD, UDAYA NAGAR, DOURAVANI NAGAR POST, BANGALORE 560016.

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11 . K.V RAMESH

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AGED ABOUT 58 YEARS, S/O LATE K.R. VENKATACHALA, # 169, KAMADHENU SHANKAR NAGAR MAIN ROAD, SHANKARA NAGAR, BANGALORE 560090.

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12 . MOHAMMED IBRAHIM KHAN

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AGED ABOUT 58 YEARS, S/O LATE MOHAMMED ANWAR KHAN, # 716/F,NASEEM MANZIL, 5TH CROSS, SYED BLOCK, ANNASANDRA PALYA, BANGALORE 560017.

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…PETITIONERS

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(BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1; SRI. PRADEEP.S.SAWKAR, ADVOCATE FOR R-2 TO R-5)

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AND:

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1 . UNION OF INDIA DEPARTMENT OF DEFENCE, NO.109-B, SOUTH BLOCK, NEW DELHI-110001. BY ITS JOINT SECRETARY.

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2 . HINDUSTAN AERONAUTICS LTD BANGALORE COMPLEX, BANGALORE-560017. BY ITS CHAIRMAN.

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3 . DIRECTOR (H.R) HINDUSTAN AERONAUTICS LTD., 15/1, CUBBON ROAD, POST BOX NO.5150. BENGALURU-560001.

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4 . GENERAL MANAGER (H.R.) HINDUSTAN AERONAUTICS LTD., 15/1, CUBBON ROAD, POST BOX NO.5150. BENGALURU-560001.

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5 . ADDITIONAL GENERAL MANGER(H.R.) HINDUSTAN AERONAUTICS LTD., BANGALORE COMPLEX, VIMANAPURA POST, BENGALURU-560017.

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…RESPONDENTS

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(BY SRI. H.SHANTHI BHUSHAN, DSGI, FOR R-1; SRI.PRADEEP S.SAWKAR, ADVOCATE FOR R-2 TO R-5)

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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.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.04.2024, COMING ON FOR

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PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :

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ORDER

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The facts, as ascertained from the pleadings in these cases, are as follows:

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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.

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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.

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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.

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Clause 7, for the first time, provided for promotion

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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 nontechnical grades).

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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.

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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.

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The intent for providing this opportunity of being promoted to the officers’ cadre is stated in Clause viii(g) as follows:

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“(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.”

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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.

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Pursuant to the Scheme of promotion from Scale-10

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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.

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The petitioners in this batch of writ petitions decided

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to exercise their option for being promoted and

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accordingly made applications, pursuant to which they were promoted to Grade-I in the officers’ cadre, as

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detailed below:

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Sl. No.	Writ Petition No.	Promotions date	Promoted as
1	WP No.42227 of 2015	August / September 2010	Assistant Engineer (Grade-I)
2	WP No.42210 of 2015	July 2007	Assistant Stores Officer / Assistant Engineer (Grade-I)
3	WP No.42215 of 2015	July / August 2008	Assistant Stores Officer / Assistant Engineer (Grade-I)

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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.

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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.

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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.

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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,

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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

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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-

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Clauses 2.2.5 and 2.2.6 of this Personal Bulletin also

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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.

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“2.2.5 Employees in the Special Scale will continue to perform the duties of Workmen.

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2.2.6 Workmen in the Special Scale will be eligible for various Allowances/Facilities, like Officers in Grade-I.”

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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.

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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.

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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 .

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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.

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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

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1 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-

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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.

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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.6,550-20011,350 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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Paragraph 5² of the revised pay scales notification provided for fixation of pay in the revised scales of pay.

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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

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to be in the service of the Company as on the date of issuance of the Circular i.e., 28.05.2009.

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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

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2 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 31^st 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;

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a) Basic Pay (without reckoning the Additional Increments granted w.e.f. 1.12.06) in the existing Scale of Pay (1997) as on 1^st January 2007;

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Plus

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b) Personal Pay (without reckoning the Additional Increments granted w.e.f.1.12.06), if any, drawn as on 1^st January 2007, which was granted to protect the Basic Pay on appointment and which is reckoned as Basic Pay for all purposes;

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Plus

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c) Applicable amount of Industrial Dearness Allowance (DA) @ 78.2% as on 1^st 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);

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Plus

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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.

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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.

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In respect of workmen who had been promoted in Grade-I of the officers’ cadre, a particular Clause was incorporated which reads as follows:

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“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. 1^st January 2007. ”

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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.

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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.

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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.

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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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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.

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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.

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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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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.

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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

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10.1 Pay of Workmen in Scale-10 & below promoted/appointed to posts in Grade-I on or after 1^st 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.

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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.

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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.”

¶224

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.

¶228

But, as could be seen from Clause 10.3, though the

¶229

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.

¶230

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.

¶231

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

¶232

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officers since there was no problem of attrition in respect of workmen, but, nevertheless, on grounds of equity, the

¶235

Company had also granted the workmen additional increments with effect from 01.12.2006.

¶236

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.

¶237

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

¶238

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.

¶239

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.

¶243

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.

¶244

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.

¶247

The consequence of these admitted facts is that the

¶248

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.

¶249

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

¶250

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compared to their colleagues who continued to be in the workmen cadre.

¶253

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.

¶254

The Company, however, has stated as follows in justification of this situation:

¶255

“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 Scale10 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.”

¶258

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.

¶259

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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It is thus clear that the Company admits that there is

¶263

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.

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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.

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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

¶266

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first of several meetings held on 02.02.2012, it has been

¶269

stated as follows:

¶270

“10. Comparison of Special Scale and Grade-I

¶271

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.

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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.

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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.

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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.

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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.

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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.

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10.7 D(HR) informed that this issue has different dimensions for Workmen and Officers. No changes are feasible now.”

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In the second meeting dated 29.05.2012 also, it is stated as follows:

¶281

“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:

¶285

i) Granting 8% additional Fitment Benefit (difference between 30%/ 22% Fitment Benefit given to Officers/ Workmen as part of 2007 Salary Revision).

¶286

ii) Payment of consequentials on Allowances drawn by the Grade-I Officers as was done for Special Scale employees.

¶287

iii) Reversion of Grade-I Officers to Workmen cadre from the date of their elevation to Grade-1.

¶288

11.2 ED(HR) informed that the proposal for reversion of Grade-l Officers to Workmen cadre is not a healthy proposition.

¶289

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.

¶293

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.

¶294

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.

¶295

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.”

¶296

In the third meeting also, it is stated as follows:

¶297

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“10. Status of disparity amongst the promotees from Scale-10/Special Scale(S-11) to Grade-I

¶300

10.1 Shri L.Gunasheelan, Chairman, AIHAOF stated that Officers promoted from S-10/SS to GradeI 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.

¶301

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.

¶302

10.3 GM(HR) stated that the Associations were briefed in the past about the factual position in this matter.

¶303

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

¶304

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Officers may be given an option to revert to Workmen cadre.

¶306

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.

¶307

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.”

¶308

In the fourth meeting held on 25.12.2012, it is

¶309

stated as follows:

¶310

“5. Status of disparity amongst the promotees from S-10/Sp. Scale(S-11) to Grade l .

¶311

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.

¶312

5.2 GM(HR) stated that the sanctity of any policy which has been made separately for Executives

¶313

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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.

¶316

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.

¶317

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”

¶318

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

¶319

is therefore clear that the Company was conscious of the fact that there was a disparity in the salary structure

¶320

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which was causing prejudice to those workmen who had

¶323

been promoted to the cadre of the officers.

¶324

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,

¶325

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

¶326

communication read as follows:

¶327

“No.HAL/P&A/48(2B)/2012 16^th Aug. 2012

¶328

The Chairman, AIHAOF C/o HAL Bangalore Complex, Bangalore-560 017.

¶329

Dear Sir,

¶330

Sub: Regarding difference of Wages between promotees from Scale-10 to Gr-I and SS Scale to Gr-I.

¶331

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Please refer to HAOG’s letter No.HAOG/ DIR(HR)/21/22-07/2012 dated 1^st Aug. 2012, on the subject.

¶334

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.

¶335

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.

¶336

This is for your information, please.

¶337

Yours faithfully, For HINDUSTAN AERONAUTICS LIMITED

¶338

As could be seen from the above, the Company did

¶339

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

¶340

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could not be considered as it was not an appropriate proposition.

¶343

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.

¶344

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

¶345

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:

¶349

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.

¶350

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.

¶351

c. Karnataka Electricity Board v.

¶352

Venkatakrishna, ILR 1986 KAR 570 : that there should be no unequal treatment to seniors who are more efficient than their juniors.

¶353

d. Cachar Paper Mill Officers & Supervisors Association & Anr. v. Hindustan Paper Corporation, W.A. No.151/2009 disposed on

¶354

21.02.2013 (Guj HC) : that employees in a

¶355

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higher cadre cannot be paid lesser than the employees in the feeder cadre.

¶358

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.

¶359

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.

¶360

g. BEL Technical Cadre Association & Anr. v. the Management of BEL, W.A. No. 335152/2013 : employees in a promotional cadre (supervisory cadre) cannot be paid a reduced basic pay upon promotion in comparison to employees of a lower cadre.

¶361

h. The Management of BEL v. the BEL Technical Cadre Association & Anr., R.P.

¶362

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No.314/2015 and 373/2015 : preferred against W.A. No. 3351-52/2013, dismissed with

¶365

an observation once pay was protected as special pay, such pay scale could not be reduced.

¶366

The respondents have produced judgments in

¶367

support of their contentions as summarised below:

¶368

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

¶369

of interference under Article of 226 of the Constitution of India.

¶370

b. Tamil Nadu Electricity Board v. Tamil Nadu Electricity Board Engineers Association, 2005 (3) LLN 723 and State of Punjab & Ors.

¶371

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

¶372

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¶374

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.

¶375

c. ITC Ltd. Workers Welfare Association & Anr.

¶376

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.

¶377

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.

¶378

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¶379

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.

¶380

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

¶381

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

¶382

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seniority, source of recruitment, educational qualifications and incidents of services.

¶385

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.

¶386

h. Rajasthan State Road Transport Corporation

¶387

& Anr. v. Krishna Kant & Ors., (1995) 5 SCC

¶388

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.

¶389

In light of the facts narrated above, the questions that fall for determination in this batch of writ petitions are:

¶390

(i) “Whether the petitioners are entitled to draw the same pay as

¶391

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¶392

is being paid to the workmen in the special scale of pay?

¶393

or, in the alternative,

¶394

(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 ?”

¶395

At the very outset, it has to be noticed that in service

¶396

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,

¶397

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¶398

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 promotion s to employees without a corresponding increase in his pay.

¶399

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.

¶400

In the background of this fundamental requirement of service jurisprudence, these cases will have to be considered.

¶401

As stated above, in the year 2004, the scheme of

¶402

TSP was modified and a person in the workmen cadre was

¶403

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¶405

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.

¶406

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.

¶407

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¶409

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.

¶410

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.

¶411

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

¶412

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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.

¶415

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

¶416

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.

¶417

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

¶418

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possessed the requisite number of years of service were sought to be given a special scale of pay.

¶421

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.

¶422

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

¶423

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essentially have to be considered as being on the same level or status.

¶426

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.

¶427

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.

¶428

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¶430

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.

¶431

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.

¶432

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¶434

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.

¶435

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,

¶436

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¶437

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.

¶438

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.

¶439

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

¶440

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workmen. But, they had nevertheless been granted one national increment as had been promoted after 01.01.2007.

¶443

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.

¶444

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

¶445

be noticed here that as against the 30% fitment benefit granted to the officers during their pay revision, only 22%

¶446

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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.

¶449

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%.

¶450

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.

¶451

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¶453

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.

¶454

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

¶455

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¶457

the very concept of being promoted and being entitled to a higher scale of pay.

¶458

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.

¶459

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.

¶460

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

¶461

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¶462

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.

¶463

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.

¶464

Merely because the Union Government took the view

¶465

that any extra increment granted should be disregarded,

¶466

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¶468

that cannot be the criteria for ignoring additional increments and consequential merger into basic pay.

¶469

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

¶470

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.

¶471

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.

¶472

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

¶473

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¶474

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.

¶475

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

¶476

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¶478

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.

¶479

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.

¶480

If an employee sought promotion on the premises

¶481

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.

¶482

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¶483

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.

¶484

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.

¶485

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

¶486

quashed .

¶487

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¶488

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¶489

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

¶490

same, i.e., with effect from 01.03.2008.

¶491

The present writ petitions are allowed as per the

¶492

above observations.

¶493

Sd/JUDGE

¶494

GRS/-RK/CT: SN/-

Kiran Kumar. K.S v. Union of India

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Kiran Kumar. K.S v. Union of India

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