Friday, November 2, 2012

TA 443 / 2008 on ???????????????



DATED THIS THE                 TH  DAY OF .............. ,  2012

HON'BLE Dr. K.B. SURESH          ...         MEMBER(J)

HON'BLE SMT LEENA MEHENDALE                 ...         MEMBER(A)

1. Dr. K. Kesavacharyulu,
   S/o Sri K. Narasimhacharulu,
   Aged 51 years,
   Senior Research Officer,
   Central Sericultural Research &
   Training Institute, Sriramapura,
   Mysore – 570 008.

2. Dr. A.M. Babu, Aged 47 years,
   S/o M. Ahamed,
   Senior Research Officer,
   Central Sericultural Research &
   Training Institute, Sriramapura,
   Mysore – 570 008.

3. Dr. V.N. Sudha,  Aged 51 years,
   D/o Sri V. Narayana Rao,
   Senior Research Officer,
   Central Sericultural Research &
   Training Institute, Sriramapura,
   Mysore – 570 008.

4. Dr. R.K. Mishra, Aged 44 years,
   S/o Sri G.D. Mishra,
   Senior Research Officer,
   Central Sericultural Research &
   Training Institute, Sriramapura,
   Mysore – 570 008.

5. Smt. K. Jhansi Lakshmi, Aged 40 years,
   D/o Sri Nageswara Rao,
  Senior Research Officer,
   Central Sericultural Research &
   Training Institute, Sriramapura,
   Mysore – 570 008.                                    ...                                 Applicants

(By Advocate Shri N.B. Bhat)
1. Union of India,
   by Secretary to Govt. of India,
   Ministry of Personnel, Public Grievances
   & Pensions, (Dept. of Personnel & Training),
   North Block, New Delhi – 110 001.

2. Union of India,
   By Secretary to Govt. of India,
   Ministry of Textiles,
   Udyog Bhavan, New Delhi – 110 001.

3. Central Silk Board,
   (Ministry of Textiles),
   Govt. of India,
   CSB Complex, BTM Layout,
   Madivala-Hosur Main Road,
   Bangalore – 560 068.
   By its Member Secretary.             ...                                 Respondents

(By Advocates S/Shri M.V. Rao, Sr. Central Govt. Stg. Counsel
for R-1 & 2 and N.S. Prasad for R-3)


Hon'ble Smt. Leena Mehendale, Member (A) :

            This T.A has been transferred by the High Court of Karnataka on 24.10.2008, for which Writ Petition No.27049/2005 was filed before them 20.12.2008.  During the pendency at the High Court, a notification was passed by Govt. of India on 7.5.2008 bringing the Central Silk Board under the jurisdiction of CAT.  Hence, this case is being decided by the present Bench of the Tribunal.

2.         The 5 applicants are agitating the question of grant of ACP.

3.         Briefly stated, the applicants were appointed as Senior Research Assistants (SRA) in Group 'B' on various dates ranging between 13.6.1983 to 13.2.1992.  Pursuant to the pay revision by V CPC with effect from 1.1.1996, some SRAs who completed 10 years of regular service as SRA were placed in the higher pay scale of Rs.8000-13500/- and redesignated as SRO (Senior Research Officers) .  Those who had not completed 10 years as on 1.1.1996, were given the scale of Rs.6500-10500/- with a stipulation that they would get the higher scale of Rs.8000-13500/- and designation of SRO when they complete 10 years (Annexure-'A').

4.         Pursuant to this revised pay scales, the Respondent No.3, i.e., Central Silk Board (CSB), issued orders dated 10.3.1997 produced at Annexures-'B' and 'C' under which the first applicant was straightaway given the pay scale of Rs.8000-13500/- w.e.f. 1.1.1996 and the remaining 4 applicants were given the pay scale of Rs.6500-10500/- w.e.f. 1.1.1996 and the scale of Rs.8000-13500/- w.e.f. the date of their completion of 10 years of regular service.  The said orders also gave them the designation of SRO with effect from the date on which they were given the higher pay scale of Rs.8000-13500/-.   Further, a  circular dated 28.7.1999 is at Annexure-'G' was issued to clarify that there would be no change in their duties and responsibilities and they will continue to discharge the work they were doing prior to their upgradation.  

            Applicants claim that the said upgradation orders also asked for their pay-fixation option.  They gave it under FR 22(1)(a)(2).

5.         Now, the applicants claim that they are also entitled to the Scheme of ACP (Assured Career Progression) introduced by the Government of India by their Memorandum dated 9.8.1999.  As they had received the SRO grade in recent past, they remained under the impression that they were not entitled for ACP, and hence did not agitate earlier..   The Respondent No.3, issued a circular dated 27.9.2005 vide Annexure-'J', that the pay fixation of the applicants had been done under FR 22(1)(a)(2), but, now it was decided to give them the benefit of fixation under FR 22(1)(a)(1) and give them one month's time to exercise revised option for pay fixation under FR 22(1)(a)(1).
For the sake of clarity, we quote FR 22(1)(a)(1) and (2) as under:-
F.R. 22 (1)  The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regularised as follows:-
            (a)(1)  Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted as the case may be, subject to the filfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage to which such pay has accrued or (rupees one hundred only), whichever is more.

            Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or [rupees one hundred], whichever is more.

            (2)       When the appointment to the new post dues not involve such assumption of duties and responbilities of greater importance,he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis.

            Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay:
            Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an imcrement in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post.

            On appointment on regular basis to such a new post,  other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.   

It is the claim of the applicants that if on granting the designation of SRO, the Respondents had stated them as promoted to Group 'A' post, then they would be governed by FR 22(1)(a)(1) right in 1997, and the question reseeking their option under FR 22 (1)(a)(1) at a later date (i.e., 2005) would not arise.  Thus, the applicants came to understand that they were treated as Group 'B' in 1997 which would also imply that they would be entitled to the benefit of ACP at the end of 12 years of their service after entering as SRA.  Accordingly, they gave representations seeking first ACP and these are seen at Annexures-'L','M','N' and 'O', dated 10.10.2005.  These representations were rejected by the impugned order No.CSB-65(1)/2005-ES.II, dated        17-11-2005 at Annexure-'P'.  While issuing this order, the CSB has relied on the Office Memorandum issued by DoP&T on 18.07.2001 in which a similar issue regarding ACP has been clarified.  Hence, the prayer to set aside the order dated 17.11.2005 and for directing Respondent No.3 to give the benefit of 1st ACP to the applicants on completing 12 years of service. 

6.         In response, the respondent CSB had clarified their stand by the following points.
(a)       As per the CSB Rules, SRA and SRO are two separate cadres and SRO is a promotional post for which SRA is the feeder cadre.  Both are technical posts involving similar technical knowledge and similar technical responbilities with the distinction that SRO also has a supervisory and adminstrative duties and authorities.  Both the cadres are stagnating cadres and SRAs would normally take 15 years or more to become SROs.  The impact of stagnation being more on the SRA cadre, the CSB, in consultation with the Ministry of Textiles, declared it as a dying cadre and decided not to make any fresh recruitment to the cadre whenever any vacancy arose on account of promotion or retirement of SRA.  The replacement scale for SRA in the V Pay Commission would have been Rs.4500-7000/-.  However, in view of this stagnation, they were given the scale of Rs.5500-9000/- and in addition a still higher scale of Rs.8000-13500/- was granted to those who would complete 10 years as SRAs.  This earlier placement to the cadre of SRO would help the CSB to get over the SRA cadre earlier.  Therefore, according to the Respondents, giving them the scale of Rs.8000-13500/- at the end of 10 years of SRA post is equivalent to giving them early promotion to the regular SRO cadre and therefore, the first ACP which is introduced by way of a Scheme on 9.8.1999 is not applicable to them.

(b)       As far as the argument that there was no change in the duties and responsibilities of the 5 applicants and similarly placed SRAs, the respondents have clarified that their usual set-up was to have one SRO assisted by a group of 3-4 SRAs.  However, when the SRAs were also given the designation of SRO, at the end of 10 years, it led to some administrative problems, especially in regard to the question of who would supervise whom.  Hence, it became necessary to state that they would continue to have the same technical duties and responsibilities as before. These, in fact, would also be the technical duties and responsibilities of the other SROs who have risen through a proper promotion.  The difference will be only in respect of their administrative functioning, because, every SRO working in that unit cannot be declared as the Head of Office responsible for supervision, etc.

(c)          The applicants are trying to make an attempt to show that the upgraded SROs are lower in grade to the promoted SROs.  The fact is that all the SROs whether promtoed against vacancies earlier or upgraded on completion of 10 years' service fall in the same cadre, enjoy same status, perks, seniority benefits, etc., except that in a Unit where there are more than one SRO, the senior-most will be the in-charge Officer.  As regards the choice of pay fixation under FR 22(1)(a)(2), the respondents admit that the applicants were informed by way of circular dated 22.9.2005, that their pay would br fixed under FR 22(1)(a)(1) which is the superior benefit, but this does not affect the applicants in any adverse way.  On the contrary, they have benefitted by it in a positive direction and it is incorrect to say that the opportunity to exercise revised option under FR 22(1)(a)(1) implies that they were earlier in Group 'B' service.   In view of this, the respondents have clarified that these SROs who have received upgradation at the end of 10 years cannot be distinguished from those SROs who had earlier received their promotion from SRA to SRO in due course of 12-15 years.  Therefore, neither of them will be eligible for the first ACP after 12 years of service counted from the date they joined as SRA.  However, all will be eligible at the end of 24 years for second ACP, if the stagnation at SRO level continues.
7.            We have considered the pleadings of both the counsels including the rejoinder and heard them at length.

8.                  We see no justification in the claim of the applicants.  The respondents, faced with the situation of a stagnating cadre have tried to give maximum benefit to those belonging to the SRA cadre by giving them promotion much before they would otherwise have got.  Moreover, allowing them first ACP would be a patent discrimination against those SROs who have earlier received their regular promotion as SRO and cannot be given the ACP.  Thus, the question would not be restricted to sanction of 1st ACP only to the present 5 appicants, but, to the entire cadre of more than 300 SROs and would also lead to further litigation by the remaining cadres of the CSB.  The claim for first ACP of the applicants who have received the benefit of higher pay scale at the end of 10 years itself and are also enjoying all the perks and status as SRO cannot be taken as just and fair.  We would reiterate that apart from the snowball effect that it will have on all cadres of CSB in the long run, it would also be a patent discrimination in the short run, against those SROs who have come to be SROs by way of regular promotion after a higher waiting period and who now cannot be given the ACP benefit.

9.            The OA is therefore, dismissed.  No order as to costs.

               (LEENA MEHENDALE)                                       (K.B. SURESH)
                         MEMBER (A)                                                 MEMBER (J)


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