Central Administrative Tribunal - DelhiPratap Singh vs Union Of India on 2 June, 2011CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
OA No.3713/2009
New Delhi  this the  2nd  day of June, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
1.	Pratap Singh,
	S/o Shri Khem Chand,
	R/o House No. 365,Village Dhallupura,
	Vasundhara Enclave,
	Delhi-110096.		     

2.	1, Phool Singh,
S/o Shri Tikha
	R/o G-231, Sriniwaspuri,
	New Delhi.

3.	Ch. Chander Pal,
           S/o Shri Tofa Singh,
	R/o 34/177, Trilokpuri,
	New Delhi-110091.

4.	Jagbir Singh S/o Shri Deep Chand
	R/o F-105, Sewa Nagar,
	New Delhi

5.	Ram Khilawan S/o Shri Buddhai,
	R/o 3/3 D, DIA Area,
          Gole Market, New Delhi.

6.	Amar Chand S/o Shri Kashi Ram
	R/o P-35, Sriniwaspuri,
	Private Colony, New Delhi

7.	Hari Ram S/o Shri Paltu Ram
	R/o 88, Hauz Rani,
	New Delhi.

8.	Mohinder Singh, S/o Shri Chiranji Lal
	R/o 1766, Laxmi Bai Nagar,
	New Delhi.

9.	Sher Singh S/o Shri Raghuveer,
	R/o 191/12, Weaker Colony Ballabhgarh,
	Faridabad.


10.	I, Bishn Swaroop S/o Shri Lakhpat
	R/o 4650, New Modern Bhim Street,
	Mandloi Road, Shadara, New Delhi.

11.	Raghu Nath S/o Shri Ghisai
	R/o House No. 75, Garhi Srinivaspuri,
          New Delhi.

12.	Harkesh S/o Shri Shiv Bale Ram
	R/o House No. 75, Garhi	Srinivaspuri,
          New Delhi.

13.	I, Nathu Ram S/o Shri Sohan Pal
           R/o A-43, Pushp Vihar,
	New Delhi.

14.	Kalu Sharma S/o Shri Jhange Ram
	R/o 211, Jaunpur, Mehrauli
	Delhi.

15.	Sunder Lal S/o Shri Changaram,
	R/o 12/33, Akbar Road,
           New Delhi.

16.	Banwari Lal S/o Shri Budhai Ram,
	R/o 17/104, Kalyanpuri,
           New Delhi

17.	Kewal Ram S/o Shri Bhup Singh,
	R/o House No. 251,Village Chatterpur,
           Ramlal Chowk, Mehrauli, New Delhi.
          
18.	Khatir Jumma S/o Shri Karam Sher,
	R/o 499, Lodhi Complex,
           New Delhi.

19.	Chhotu Ram S/o Shri Khilona,
	R/o B-365, Gobind Puri,
           Nav Jiwan Camp, New Delhi.

20.	Maharaj Singh S/o Shri Solu,
	R/o 507, Kotla Mubarakpur,
           New Delhi.

21.	Mahaveer Singh S/o Shri Umrav Singh,
	R/o 507, WZ-78, Todapur,
           New Delhi-110012.

22.	Narayan Singh S/o Shri Ram Saran,
	R/o House No. 129, Block No.21,
           Kalyanpuri, New Delhi.

23.	Bhajanlal S/o Shri Sarwar,
	R/o 119, Village Fatehpur Weri,
           Mehrauli, New Delhi.

24.	Jag Ram S/o Shri Nepal Singh,
	R/o H-97, Nanak Pura,
           Moti Nagh,New Delhi.

25.	Umrav Singh S/o Shri Hari Ram,
	R/o D-192, Moti Bagh,
           New Delhi.

26.	Munim Ram S/o Shri Kalyan Singh,
	R/o Gali No.113, Ward No.11, Sant Nagar,
           Borari, New Delhi.

27.	Raj Pal S/o Shri Dungar Singh,
	R/o 411, Devli Nai Basti,
	Balmiki Colony, New Delhi.

28.	Mam Raj S/o Shri Bharto,
	R/o 398, Shahpur Jat,
New Delhi.

29.	Kali Charan S/o Shri Hari Ram,
	R/o C-300, East Kidwai Nagar,
	New Delhi-110023.

30.	Amar Singh
	S/o Shri Chuttan,
	R/o G-537, Sriniwaspuri,
	New Delhi.

31.	Sukhdev
	S/o Shri Jhakri,
	R/o 20/188, Trilokpuri,
	Delhi-110091.

32.	Shiv Charan
	S/o Shri Radha Kishan
	R/o H-II/304, J.J.Colony,
	Madangir, New Delhi.

33.	Nathi Ram
	S/o Shri Ganga Dhar,
	R/o 135, Kalyan Puri,
	New Delhi.
34.	Bhagwati Parshad
	S/o Shri Mohan Lal,
	R/o 17/187, Pasona, Ghaziabad.

35.	Ramlal
	S/o Shri Chander Sen
	R/o F-41, Jawahar Park,
	Laxmi Nagar, New Delhi.

36.	Srinivas
	S/o Shri Ramchari,
           R/o P-1/196, Sultanpuri,
	Delhi-110041.

37.     Dharampal,
	S/o Shri Ganga Dutta,
          R/o 16/3186,
          Amritsar Puri,
Tank Road, Karol Bagh,
New Delhi.					..	Applicants

 (through Shri Inderjit Singh, Advocate)

Versus

1.	Union of India,
	through Secretary,
           Ministry of Urban Affairs & Employment,
           Nirman Bhawan, 
           New Delhi.

2.	Director General Works,
	Central Public Works Department,
           Nirman Bhawan, 
           New Delhi.				             . Respondents

(through Sh. D.S. Mahendru, Advocate)

O R D E RDr. A.K. Mishra, Member (A)
	The applicants have filed this application praying for the following reliefs:-(a)   direct the respondent to grant them pay scale of Rs. 1200-2040 w.e.f. 01.01.1986 till 31.12.1995 (or the date of their actual promotion of the post of Chowdhary whichever is later) and Rs. 4000-6000 w.e.f. 01.1.1996 to 31.12.2005 with all consequential monetary and other benefits along with interest at the highest bank rate as applicable from time to time.(b)    direct the respondents to pay exemplary costs of litigation to each of the applicants.(c)     pass any other order or direction as this Honble Tribunal may deem fit and appropriated in the facts and circumstances of the case.2.	According to the applicants this is the sixth round of litigation.  In the fifth round, the respondents were directed by the Tribunal on 11.02.2009 in OA-66/2008 in the following manner:-We direct, therefore, in view of the ratio laid down in the judgements of the Honourable Supreme Court, which have been cited in preceding paragraphs that the first and second Respondents would again submit a detailed note for consideration of the Ministry of Finance for placing the post of Chowdhary in higher pay scale than the post of Senior Mali.  They would pass a detailed order after consulting with the Ministry of Finance regarding their decision about the pay scale of the post of Chowdhary after keeping our observations in the preceding paragraphs in mind.  The above directions would be complied with within a period of four months from the date of receipt of a certified copy of this order.xxxx

2.1	Pursuant to the above direction, the respondent authority consulted the Ministry of Finance about the demand of the applicants for higher pay scale and rejected their representation on the ground that the Ministry of Finance did not agree to the proposal. The relevant extract of the impugned order is given below:-3.   In other words, the pay scale of Chowdhury, which was higher than that of Senior Mali till the FifthCPCrecommendations were implemented in 1996, was equated with that of Sr. Mali in 1996, giving rise to the grievance of Chowdhury.  Incidentally, the real reason for this anomaly is the implementation of the Arbitration Award of 1988, by which the unskilled post of Senior Mali (Rs.210-290) was given the scale of skilled post (Rs.260-400) but portion of the same award relating to upgradation of scale of skilled categories (including Chowdhury) from Rs.260-400 to highly skilled, i.e. Rs.330-560 was not approved by the Honble Delhi High Court.  This resulted in placing both Senior Mali and Chowdhury in the same skilled scale of pay of Rs.260-400.  Though the award was implemented in 1997, the pay fixation was done from 1.1.73 (ThirdCPC) and arrears were payable from 1.4.1981.  In other words, the parity in scales of Senior Mali and Chowdhury was effective from 1.1.1973 instead of from 1.1.1996 as appears from the table giving scales recommended by ThirdCPConwards, the grievance of the Chowdhurys about not granting a higher scale than that of Senior Malis has been considered earlier also in compliance of the directions of the Honble CAT(PB) but it has not been found possible to redress the same.  The last order expressing inability of the Government to grant the request was issued on 7.11.2007, against which the present OA was filed resulting in the order dated 11.2.2009 of the Honble CAT(PB).  In compliance of the said order dated 11.2.2009, the Ministry of Finance has again been consulted, who has opined that it will not be proper to upgrade the pay scale of the post of Chowdhury, in view of the recommendation of SixthCPCto review the necessity for continued existence of a separate Horticulture Wing in CPWD, as the maintenance of gardens can be contracted out without any adverse repercussions (Para 7.46.18).3.	In this connection, it would be of interest to examine the recommendation of the sixth Pay Commission which is contained in paragraph 7.46.18 (page-106).  It reads as under:-The necessity for continued existence of a separate horticulture wing in CPWD for maintaining gardens etc. has to be reviewed as this work can be contracted out without any adverse repercussions.  The Government may carry out this exercise at the earliest.  In case, no justification is found to exist, the wing should be closed down and the existing employees relocated to suitable posts in other departments.4.	The respondents have taken the further ground that grant of higher pay scale to the post of Chowdhary held by the applicants would lead to further anomaly between the post of Chowdhary and the next higher post of Head Gardner.  The impugned order indicates that the post of Chowdhary used to have the pay scale of Rs. 950-1600/- as against Rs.800-1150/- for the post of Senior Mali till the end of Fourth Pay Commission.  The Fifth Pay Commission recommended the merger of the post of Senior Mali and Chowdhary and redesignation of  the posts as Mali Grade-II in the pay scale of Rs. 3050-4590/-.  It is further stated that the anomaly of Senior Mali and Chowdhary getting the same pay scale arose out of an Arbitration Award of 1988 by which Senior Malis were given the pay scale (Rs.260-400/-) meant for a skilled post, a scale which was given to Chowdharies treating them as skilled employees; but there was no corresponding upgradation of the pay scale of Chowdharies to the next higher scale.  This award was implemented in 1997 but was given retrospective effect from 01.01.1973.  So far, the posts of Senior Mali and Chowdhary have not been merged as per the accepted recommendation of the Fifth Pay Commission.  It was not possible for the government to render strict compliance to the directions of the Tribunal because of these peculiar circumstances.  Keeping in view the direction dated 11.02.2009 of this Tribunal in OA-66/2008 the matter was referred to the Ministry of Finance (MOF) with a positive recommendation, and the MOF, however, advised against upgradation of the pay scale of Chowdhary in view of the recommendation of the Sixth Pay Commission to review the necessity of continuance of Horticulture as a separate wing of the CPWD.5.	Learned counsel for the respondents further submits that the pay scales and the parity in respect of civil posts have been determined both by the Fifth Pay Commission as well as the Sixth Pay Commission, which are indisputably expert bodies constituted by the Govt. to recommend specific revised pay scales of government employees.  The settled law is, he argues, that the recommendations of the Expert Body should not be interfered with.6.	From the submissions of the learned counsel for the respondents, it appears that the administrative department is convinced that the anomaly had been introduced with the implementation of arbitration award by which the pay scale to the Senior Malis  was upgraded to that of Chowdharies  by treating the Senior Malis as skilled employees.  The impugned order reiterates this view specifically. This aspect has been adverted to in the order of this Tribunal in the aforesaid OA-66/2008 in the following manner:-15.xxxx It is clear that the Respondents are convinced of the case of the Applicants for higher pay scale as seen from their recommendation to the VICPC.   The Respondents, in spite of our directions dated 17.11.2008 and 23.12.2008, failed to produce the recommendations of VICPC.  The learned counsel for the Respondents stated that she was unable to produce the recommendations of the VICPC.  Be that as it may, we are only concerned for the period from 1986 to 2006 covering the period of the IVCPCand the VCPC.  From the above discussion, it is clear that the Respondents have committed egregious error of not taking any action to remove the serious anomaly by which the feeder post and the promotional post have been placed in the same pay scales.16.	We direct, therefore, in view of the ratio laid down in the judgements of the Honourable Supreme Court, which have been cited in preceding paragraphs that the first and second Respondents would again submit a detailed note for consideration of the Ministry of Finance for placing the post of Chowdhary in higher pay scale than the post of Senior Mali.  They would pass a detailed order after consulting with the Ministry of Finance regarding their decision about the pay scale of the post of Chowdhary after keeping our observations in the preceding paragraphs in mind.  The above directions would be complied with within a period of four months from the date of receipt of a certified copy of this order.7.	The Fifth Pay Commission recommended for merger of the posts of Chowdhary and Senior Mali. Although the recommendations of the Fifth Pay Commission have been accepted by the government, the respondent department has done nothing so far to amend the recruitment rules and re-designate the posts as Mali Grade-II.7.1	The Sixth Pay Commission categorically directed the Ministry to review the necessity for continued existence of separate Horticulture Wing for maintenance of gardens and to examine whether this work could not be contracted out.  The Ministry of Finance turned down the proposal of the respondent to upgrade the pay scales of the applicants ostensibly on this ground.  Learned counsel for the respondents could not say whether such a review had taken place and, if so, what policy  decisions had been taken.   It is, therefore, necessary for them to take a decision, without any further loss of time, on any of the following alternatives:(a) follow the recommendation of the Sixth Pay Commission, make a review, close down the Horticulture Wing, if there is no justification to retain it and relocate the existing employees;(b)  if, on review, it is decided in favour of continuance of the Wing, consider implementing the recommendation of the Fifth Pay Commission: merge the posts of Chowdhary and Senior Mali, create the post of Mali Grade-II in the same pay scale by reframing the Recruitment Rules(RRs);(c)  if this alternative is not acceptable, go for merger of the post of Chowdhary and the higher post of Head Gardender carrying the same pay scale by amending the RRs so that similar anomaly of the higher post carrying the same pay scale of the feeder post is avoided;(d)  the other option is to grant corresponding higher scales to the posts of Chowdhary and Head Gardner.9.	It is for the respondent department to take a call on which policy alternative they would finally adopt; but, needless to say, they cannot allow the matter to hang fire indefinitely.  Learned counsel for the applicants submits that the applicants have been agitating this issue for years together without any positive outcome.  It was noted in the Tribunals order in OA-66/2008 that the respondents were making a recommendation to the Sixth Pay Commission to merge the post of Chowdhary with Head Gardner.  Apparently, this recommendation has not been accepted by the Sixth Pay Commission.  Nevertheless, the respondents have stated in the counter-affidavit in that O.A. that they wanted to merge the posts of Chowdhary with Senior Mali.  It is for the respondent authorities to take a final decision without further loss of time.  In case, the Ministry of Finance is not agreeable to their proposal they should take up the issue with the competent authority for a final decision.10.	In view of the complexity involved, we direct the respondents to take a final decision within six months from the date of receipt of a certified copy of this order.  The O.A. is accordingly disposed of.  No costs.(Dr. A.K. Mishra)					(Mrs. Meera Chhibber)
   Member (A)						Member (J)



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