Wednesday, November 7, 2012

OA NO.281/2007 on ????? -2011



TODAY, THIS THE ......... DAY OF ...................., 2011



S/o Nambi Andi,
Aged about 49 years,
Working as Chowkidar,
Air Force Technical College (403 AF Stn),
Jalahalli West, Bangalore - 560 015
Resident of NO1956, Ashwini Nilaya, 
Abhigere Main Road,
K.G.Halli, Jalahalli West,
Bangalore - 560 015.                                                                       ......   Applicant

(By Advocate Shri B.Veerabhadra)

1.The Union of India,
   Ministry of Defence,
   Represented by its Secretary,
   South Block, New  Delhi - 110 011

2.The Commandant,
    Air Force  Technical College (403 AT Stn).
    Jalahalli West,
     Bangalore - 560 015.                                                              .....   Respondents

(By Shri M.V.Rao, learned Senior Central Government Standing Counsel)

                                                            O R D E R


            This application is filed on 06-08-2007 under Section 19 of the Administrative Tribunals Act, 1985 and prays for the grant of second ACP. 

2.         The impugned orders are letter No. AFTC/1309/OA107/07/PC,                          dated 21.06.2007 (Annexure-A/3), and AFTC/1309/OA 107/07/PC  dated 23.07.2007 (Annexure -A/5)
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The specific reliefs prayed for are:
(i)  call for the relevant records leading to the issuance of the impugned letter in No.AFTC/1309/OA 107/07/PC dated 21.06.2007 (ANNEXURE-A/3) and letter in No,AFTC/1309/OA 107/07/PC dated 23-7-2007 (ANNEXURE-A/5) issued by the office of the 2nd respondent and on perusal.

(ii)    quash and set aside the impugned letter in No.AFTC/1309/OA107/07/PC dated 21-6-2007 (ANNEXURE-A/3) and letter in No,AFTC/1309/OA 107/07/PC dated 23-7-2007 (ANNEXURE-A/5) issued by the office of the 2nd respondent as arbitrary, discriminatory and void the reasons stated above.

(iii)       direct the respondents to consider the case of the applicant on par with his juniors and remove disparity and anomaly in the matter of pay and allowances between the applicant vis-a-vis his juniors namely Sri Narasimhallu, Sri P.Srinivasalu, Sri K.Penchaliah and Sri G.Vijayakumar.

(iv)       consequently, direct the respondents to draw all consequential benefits arising out the removal of disparity and anomaly in the matter of pay and allowances and

(v)        pass any other order or direction or any other relief as deemed fit by this Hon'ble Tribunal, in the interest of justice, equity and fairplay in administration"

3.          The brief facts stated in the OA are as below:

         The applicant was first appointed as Anti-Malaria Lascar and subsequently changed to Chowkidar with effect from 01.01.1978. After he was given in-situ promotion w.ith effect from 01.07.1994.

4       He was granted second financial upgradation with effect from 01.07.2006  subsequently he came to know that his juniors in the same grade in allied  cadres  such as Watchman,  Washer Up, etc. are  getting higher pay than him, made a representation dated 07.05.2006 at Annexure - A1 and  failing to get any relief,  he approached this Tribunal in  O.A.107/07.  This Tribunal passed its order dated 12.04.2007 at Annexure - A/2  directing the respondent department to dispose of
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the said representation within a period of 2 months from that date of the order.  Thus it was expected that the respondents would take a decision on the representation before June, 2007.  However on 21.06.2007 the respondents have rejected the applicant's representation vide Annexure-A/3.

             From the representation it is seen that he had enclosed for comparison the pay slip of one Shri Narasimhallu, Watchman pass no.Jal/2646 of AF station, Jalahalli West as well as drawn attention to the higher pay drawn by another employee D.Vijay Kumar, Washer.

          The reasons for rejecting the representation as seen from paras - 3, 4 ,5 and 6 of Annexure-A/3 are as below:
"3.       Shri Narsimhallu  was appointed in the trade of Safaiwala and later his trade was changed to Watchman on 06 May 82.  Whereas you were appointed in the trade of Anti Malaria Lascar (Seasonal) and trade was changed to Chowkidar on 01 Jan 78.

4.     Further, Shri Narsimhallu was not given any promotion during his service career.  As such he was granted 1st and IInd ACP on completion of 12 years and 24 years of regular service respectively.  Whereas, you were given 'in situ' promotion on 01 Jul 93 and pay scale was revised accordingly wef the same date.  Hence, you were not eligible for 1st ACP and was granted 2nd ACP on completion of 24 years of service wef 01 Jul 01

5.        Only after grant of 2nd ACP on 01 Aug 05 Shri Narsimhallu has been drawing one increment more than you and till 01 Aug 05 you have been drawing more pay than him.  ACP scheme is purely personal to the employee and shall have no relevance to his seniority position.  As such, as per condition No 8 in Annexure 1 to DOPT O.M dt 09 Aug 99 and also as per clarification No 27 in the Annexure to DOPT O.M dt 10 Feb 2000, there shall be no stepping up of pay for the senior employees on the ground that the junior employee in the grade has got higher pay under ACP scheme".

6.Comparison with Shri G.Vijay Kumar is not permissible as he belongs to other trade/cadre i.e Washer Up".

6.                                                                                                                                                                                Aggrieved, the applicant has approached this tribunal.  In the meantime
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the respondents had also issued another clarrification dated 23.07.2007 Annexure - A5 to the respondents stating as below:
"2.Shri Narsimhallu, Watchman, JAL/2646 is under the watchman cadre of 410 AF Station, Jalahalli whereas you are under the watchman cadre of 403 AF Station (AFTC).  The anomaly as claimed by you cannot be considered since the watchman cadre is a unit controlled cadre and not a centrally controlled cadre.  As such the comparison can be made only in respect of individuals of the same unit or station and not of different stations..  The provision as laid down under GOI order No (22) under FR 22 is not fulfilled.

3.A copy of the Office Order bearing Sl No 07/94 promulgating in-situ promotion granted to you on 01 Jul 93 is annexed as required by you"

7.        It is also seen from an internal communication dated 07.12.2006 which is an attachment to Annexure-A17 which states that
"Therefore it is clarified that option once exercised by the individuals at the time of pay fixation cannot be revised after the pay fixation as option exercised shall be final in terms of FR-22 GOI Decision No.19 ACDA has seen:"

        The same letter further comments that this clarification applies to the present applicant as well as many more similar cases.  Thus the applicant can not be given revised pay fixation in view of the earlier option exercised by him.

8.        The applicant prays for the redressal on the following main grounds; as seen from his application at para 5.2:
"5.2  It is evident from the Annexure A-6 that the applicant's pay , which he was drawing as on 1/7/94 was not fixed properly on a single elongated scale of pay of Rs.775-12-871-14-1025.  At the same time, the respondents have fixed the pay at Rs.1000/- w.e.f.1/4/95 in respect of Sri Pullaiah, 2552 - W/man as evident from ANNEXURE A-7".

            It is seen from an earlier office order dated 05.02.1994 (attached with Annexure-A/5) giving the pay fixation which includes present applicant at Sl. No.3, that  as many as 13 Chowkidars and other persons who were drawing the basic pay of Rs.940/- as on 01.07.1992 were similarly given in-situ promotion with effect
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from 01.07.1993 and the pay was fixed at Rs.969/-.  The reason shown in the said order is that  the pay of these employees on 01.07.1992 was Rs.940/- and one notional increment  of Rs.25/- was added  taking the pay to Rs.965/- and since this was in the middle of the pay scale stages, therefore the next stage in the new pay scale Rs.969/- was considered as admissible and this is how the new pay fixation was done at Rs.969/-.  This comparison clearly shows that this earlier pay fixation at Annexure - A6  in respect of the applicant puts him at par with other Chowkidars.  Thus, his claim is that the pay fixation done at Annexure-A/6 is incorrect.  The pay fixation as on 01.04.95 shows existing scale of pay as 775-12-871-14-1025/- and pay drawn as Rs.963/- w.e.f. 01.07.1994.  Hence, the new pay fixation on a single elongated scale of pay is shown as Rs.985/- w.e.f. 01.04.1995 and the next date of increment is shown as 01.04.1996. This is in contradiction with Annexure-A/7, the case of one Mr Pullaiah whose pay was Rs.983/- with effect from 01.04.1994.  After pay fixation of single elongated scale of pay it became Rs.1000/- with effect from 01.04.1995 and the next date of increment was 01.04.1996.  It is therefore clear that the anomaly has arisen due to clerical mistake and not out of wrongly opted choice of fixation. 

10.       In the reply statement the learned counsel for the respondents stated as below:
a) Para (1)  The applicant joined  as Anti Malaria Luscar with effect from 01.07.1977.   On   being surplus  in the establishment he was posted to Air Force Technical College (AFTC for short), Jalahalli West, Bangalore with effect from 01 Jan. 78 as Chowkidar.

b)  Para (5) He was granted in-situ promotion with effect from 01.07.1993 as his pay after promotion was fixed at Rs.969/- in the pay scale of Rs.775-12-871-EB-14-1025.

c)            Para (5)  It is argued that subsequently with effect from 01.04.1995, Government of India,MOD  vide its letter No.PC-15(b)/
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90/D (Civ - 1) dated 16  June 1995 had merged the Group D pay scales of Rs.775-1025  and Rs.800-1150 in to a single elongated pay scale of Rs.775-12-871-14-955 -15-1030-20-1150.  Accordingly the pay of the applicant was re-fixed @ Rs.985/ per month w.e.f 01 April 95.

d)  Para (6)  Whereas in the case of Shri Narsimhallu it is different.  He was given ACP on completion of 12      years and second ACP of 24 years  with regular service without granting in-situ promotion.  It is pertinent to mention till the grant of second ACP the applicant was drawing more pay.

e)  Para (7)  The ACP Scheme envisages those who have got in-situ promotion are not entitled to first ACP and are entitled to second ACP only on completion of 24 years of regular service.  The applicant was given second ACP with effect from 01.07.2001 which is the date of his completion of 24 years of service.

11.                                                                                                                                                                        The respondents have also gone on to compare the cases of other  similarly placed such as Shri Vijay Kumar and Shri Rafique Ahmed etc they have also suplied elaborate para wise comments, but have not examined Annexure-A/7 which gives details of Shri Pullaiah.

12.                                                                                                                                                                        It is noticed both from the written reply submitted as well as the points raised during the argument by the learned counsel for respondents that the department has not produced any paper to show that any option was asked from the applicant or that he gave any option regarding his pay fixation. Thus, the clarification given by official respondent at Annexure - A/17 does not apply.  It is true that they referred to an employee Shri Narsimhallu being junior by 4 years had drawn salary less than that of the applicant till he received the second ACP in 2005.  It is also true that the applicant himself received his second ACP in 2001.  However,  the pertinent issue, as we see from Annexure - A/6, A/7 and A/5 that the pay fixation at the time of revision by way of Annexure-A/6 itself is  wrong and appears to be a clerical mistake that the departmental Accounts people failed to detect.  Especially when
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compared with the pay fixation given to Shri Pullaiah whose pay has been fixed at a higher rate compared to that of the applicant  perhaps by giving one notional increment in terms of FR 22 of the CCS (CCA) Rules.  Since the respondents have not produced any comparison about how the fixation of pay on single elongated scale of pay was done in respect of other 12 Chowkidars mentioned in the list at Annexure-A/5, we have to consider only the comparison with Pullaiah at Annexure-A/7.

13.                                                                                                                                                                                          In view of this the OA is granted.  The respondents are directed to introduce necessary corrections to the order at Annexure - A6 dated 07.04.1995 by comparing it with the order at Annexure -A7.  The final distinction sought to be made relied upon by the respondent department for those posts of Chowkidar and Watchman and similar other Group - D posts is not relevant if there is mistake in fixing the pay at the time of in-situ promotion.

14.        The OA is allowed.  The respondent department will correct Annexure - A6 within 3 months of this order and also calculate the consequential financial benefits , the actual payment in terms of consequential benefits will be released within 2 motnhs there after and in any case before 30.11.2011
                 (LEENA MEHENDALE)                                    (N.D. RAGHAVAN)
                        MEMBER (A)                                            VICE-CHAIRMAN


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