PERDEEP KUMAR KAPIL Vs. UNION OF INDIA

JUDGEMENT

(1.) THOUGH the 5th Central Pay Commission was constituted more than 10 years ago and its recommendations accepted in the year 1997, with effect from 1. 1. 1996, and the Government has already constituted 6th Central Pay Commission, which is likely to submit its report in near future, the ghost of the 5th Pay Commission still lingers on, insofar as disputes arising therefrom are concerned. It is a matter of common knowledge that every pay revision, based on these Pay commissions, paves way for enormous litigation. Such disputes may be for variety of reasons and under variety of circumstances. Present case, which relates to the petitioners who are all serving on Electronic Data Processing (EDP) post in the Data Processing Division of National Sample Survey organization (NSSO) under the Ministry of Statistics, Government of India, also relates to the same category. These petitioners who are/were holding the post of Data Processing Assistant Grade-III as on 1. 1. 1996 and were enjoying the pay-scale of Rs. 1600-2660 were granted revising scale of Rs. 5000-150-8000 as per the recommendations contained in para 55. 71 of the 5th Pay Commission. However, the government decided to upgrade the scale of the petitioners from Rs. 5000-150-8000 to Rs. 5500-175-9000 and orders dated 18. 9. 2001 were passed to this effect upgrading the pay-scale of Rs. 5500-175-9000 with effect from 1. 1. 1996. However, peculiar circumstances followed. As a result of pay fixation in an upgraded pay-scale, the actual pay which the petitioners were drawing got reduced. The respondent No. 3, namely, the Deputy Director General, Data Processing Division, nsso, accordingly instructed all the concerned Data Processing Centres under its administrative control vide letter dated 31. 12. 2001 to recover the excess pay drawn, if any, due to fixation of pay in the normal pay-scales through arrears bills/future salary. The petitioners objected to this action by submitting representation dated 18. 1. 2002, which was rejected on 4. 3. 2002. This rejection led the petitioners to file OA No. 982/2002 on 11. 3. 2002. This OA was disposed of by the Tribunal on 11. 4. 2002 directing the respondents to pass an additional and more detailed order giving its reasons as to why the pay was not to be fixed under FR 22 of the FRCS Rules and if that rule was not applicable then to indicate the rule under which pay fixation was done. Pending compliance of this direction, the respondents were restrained from making any further recovery of the alleged excess payment.

(2.) THE respondents, in compliance with the aforesaid directions of the Tribunal, passed orders dated 15. 7. 2002 (conveyed vide orders dated 18. 7. 2002) rejecting the claims of the petitioners. The petitioner approached the Tribunal once again by filing OA No. 2139/2002 on 31. 7. 2002. This has, however, been rejected by the Tribunal vide its judgment dated 29. 7. 2003, which is impugned in the present proceedings filed under Article 226 of the Constitution of India. The reasons which led to the reduction of pay on pay fixation of the petitioners, though the petitioners were given the higher replacement scale, are found in the orders dated 15. 7. 2002. Matter regarding rationalization of EDP post in DPD and sdrd was pending consideration when the recommendations of 5th Pay Commission were implemented. Since the petitioners were in the pay-scale of Rs. 1600-2660, they were granted normal replacement scale of Rs. 5000-150-8000 with effect from 1. 1. 1996 as a temporary measure in the CCS (Revised Pay) Rules, 1997 (hereinafter referred to as the "revised Pay Rules") pending examination of the recommendations of the 5th Pay Commission for higher replacement scales. The matter, as mentioned above, was pending consideration for rationalization of EDP post before an Expert Committee known as Santhanam Committee and after the submission of the report of the Committee, the Ministry of Statistics and programme Implementation passed orders dated 16. 3. 1998 vide which the EDP posts were rationalized. Further, an amendment was issued vide orders dated 4. 8. 2000. As a result of these orders, the petitioners became entitled to replacement of revised scale of pay of Rs. 5500-175-9000 instead of normal revised scale of rs. 5000-150-8000 for the pre-revised pay-scale of Rs. 1600-2660 with effect from 1. 1. 1996. The problem arose while doing the exercise of fixation of their pay. The petitioners wanted that their pay be fixed under FR 22, which request was turned down on the ground that they were holding the post of DPA-III with pre-revised scale of pay of Rs. 1600-2660 prior to 1. 1. 1996 and they were granted pay-scale of Rs. 5000-150-8000 only das an interim measure, which was replaced with higher pay-scale of Rs. 5500-175-9000 and it could not be treated as appointment to a new post with/without involving assumption of powers and responsibilities of greater importance or re-appointment after 1. 1. 1996 to a post held prior to that date in order to derive the benefit of pay fixation as per FR 22 or Rule 10 of the Revised Pay Rules. The Government in its order dated 15. 7. 2002 maintained that grant of higher pay-scale of Rs. 5500-175-9000 with retrospective effect from 1. 1. 1996 in place of normal replacement scale of rs. 5000-150-8000 as interim measure could not be construed as an appointment to a new post or re-appointment for deriving pay fixation under the aforesaid rules. In the order it was also stipulated that since the replacement scale of rs. 5500-175-9000 was higher, both at minimum and maximum level, than compared to the pay-scale of Rs. 5000-150-8000, it could not be said that there was a loss of pay.

(3.) THE aforesaid reason given by the Department in rejecting the petitioners" request cannot be faulted with as provisions of FR 22, in a case like this, would be ex facie inapplicable.