Sk. Gulam Jaweed V. Union of India and others

WP(C)/12192/2007

AI Insights

Sk. Gulam Jaweed, the petitioner, challenged the Central Administrative Tribunal's decision regarding his employment as a Recovery Inspector at the Debts Recovery Tribunal, Cuttack. He sought an upgrade in his pay scale from Rs. 5500-9000 to Rs. 6500-10,500, claiming parity with similar positions in the Income Tax and Central Excise departments, and requested more promotional opportunities. The Tribunal and subsequently the High Court rejected these claims, noting that the pay scales and promotional pathways are determined by specific recruitment rules and the expertise of the Pay Commission, not by judicial intervention.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 700245 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 02-07-2013
• Assessment Year: misc
• Other Referred Cases: State of U.P. v. J.P. Chaurasia, State of West Bengal v. Hari Narayan Bhowal
• Laws Referred To: Articles 226 and 227 of the Constitution of India, Recovery of Debts Due to Banks and Financial Institutions Act, 1993
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S D DAS
• Assessee Lawyers: P V RAO; R K PATNAIK
• Keywords: Central Administrative Tribunal; Deputation; Pay Scale; Promotion; Writ petition; Recovery Inspector
• Section: 36

Judgement Text

" ORISSA HIGH COURT: CUTTACK. W.P.(C). No. 12192 OF 2007 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Sk. Gulam Jaweed …… Petitioner -Versus- Union of India and others. …… Opp. parties For Petitioner : M/s. P.V. Ramdas, M.B.Rao & R.K. Patnaik. For opp. parties : Mr. S.D.Das, (A.S.G) (For O.Ps 1 & 2). ----------------------- Decided on 02.07.2013 -------------------------------- PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS AND THE HONOURABLE SHRI JUSTICE R. DASH M. M. DAS, J. The petitioner in the present writ petition has called in question the judgment dated 28.6.2007 (Annexure-14) of the learned Central Administrative Tribunal, Cuttack Bench, Cuttack passed in O.A. No. 153 of 2005. 2. The facts stated by the petitioner in the writ petition are that he was selected in an examination conducted by the Railway Recruitment Board to be appointed as Senior Clerk (Direct Recruit), Group – C (Non-Gazetted) on regular basis in the Ministry of Railway, Government of India. He claims that on 16.2.1995, he appeared in a departmental examination to be promoted to the post of Head Clerk and having qualified was promoted to the said post. Pursuant to an advertisement published in the Employment News dated 20.3.1999 (Annexure- 1) seeking applications for appointment to the post of Recovery Inspector in Debts Recovery Tribunals in the scale of pay of Rs. 5500-9000/- which is a Group – B (Non-Gazetted post) published by the Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi, the petitioner applied for the said post. On consideration of his application, he was initially deputed for a period of one year to the Debts Recovery Tribunal, (for short, ‘the DRT’) Cuttack and joined as Recovery Inspector in the said DRT on 5.1.2001. In this respect, the office order dated 15.1.2001 issued by the Registrar, DRT, Cuttack is as follows:- “No. 1(4)/DRT-2001/Estt./28 Government of India, Ministry of Finance, Debts Recovery Tribunal, Cuttack. Kafla Bazar,Cuttack-753002 Dated 15.01.2001. OFOFICE ORDFER Consequent upon his selection for appointment as Recovery Inspector in the Pay Scale of Rs. 5500- 9000/- on deputation basis, Shri Sk. Gulam Jaweed, Head Clerk of Headquarters Office, Personnel Department, East Coast Railway, Bhubaneswar has joined as Recovery Inspector in Debts Recovery Tribunal, Cuttack on 5th January, 2001 (AN). Shri Gulam Jaweed will be on deputation for a period of one year in the first instance. His pay and other terms and conditions will be regulated in accordance with the Department of 2 Personnel and Training’s O.M. No. 2/29/91-Estt.(Pay- II) dated 5.1.1994 as amended from time to time. Sd/- Sukadev Sarangi, 12.1.2001. Registrar.” 3. By G.S.R. No. 639 dated 15.1.2001 annexed as Annexure-5 to the writ petition, the Central Government in exercise of powers conferred by clause (a) of sub-section (2) of section 36 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 framed the Rules regulating the method of recruitment Group ‘A’ and ‘B’ (Gazetted) and Group ‘B’ (Non- Gazetted) posts in the DRT, Cuttack. As per the said Rules, the post of Recovery Inspector is to be filled up by composite method of promotion/deputation and there is no provision of direct recruitment to the said post. The Court Master in DRT, Cuttack with eight years of regular service is eligible for promotion to the post of Recovery Inspector. It thus appears that post of Recovery Inspector in the DRT, Cuttack is not an entry level post meant for direct recruitment and the same is to be filled up on promotion from amongst the existing Court Master of DRT, Cuttack after acquiring eight years of experience in the said post or on deputation depending on the selection. If the Court Master is selected to be appointed as Recovery Inspector, the post is deemed to be filled up by promotion. On the other hand, if the post is filled up by a candidate on deputation, such candidate may be reverted back to his parent cadre after completion of his/her tenure. A set of Rules also 3 exist regulating the method of recruitment of Group-C and D Non-Gazetted Posts in the DRT, Cuttack. Rule 7 thereof prescribes that notwithstanding anything contained in the provisions of the Rules, the persons holding the posts in the DRT, Cuttack on the date of commencement of those Rules, either on transfer or on deputation basis, who fulfill the qualification and experience laid down in the rules and who are considered suitable by the Departmental Promotion Committee or shall be eligible for regularization/absorption in the respective grade subject to the condition that such persons exercise their option for the absorption and their parent departments do not have any objection of their being absorbed in the Tribunal. The petitioner, pursuant to the aforesaid Rules exercised his option to be absorbed in the DRT, Cuttack as a Recovery Inspector as at Annexure-C/2 to the counter affidavit. His service, as Recovery Inspector in the DRT Cuttack, has been regularized under Annexurer-4. The petitioner citing the Rules governing the recruitment of the Inspector of Income Tax and Inspector of Central Excise and taking a plea that the duties and responsibilities of Recovery Inspector are akin to that of Income Tax Inspector and of the Central Excise, alleged that the Inspector of Income Tax and Inspector of Central Excise are in the pay scale of Rs. 6500- 10,500/- and further alleged that there is disparity in the pay 4 scales between the Income Tax Inspector and Recovery Inspector of the DRT. The petitioner made a representation to the Joint Secretary, Department of Economic Affairs on 31.5.2004 claiming parity in the pay scale. The said representation, according to the petitioner, was never considered. 4. Now coming to the other limb of the allegation of the petitioner which relates to promotional avenue, it has been submitted by the petitioner that his grievance was not considered and if no promotional avenue is provided, to the Recovery Inspector in the DRT, there will be stagnation. On the aforesaid allegations, the petitioner filed O.A. before the Central Administrative Tribunal making the following prayer:- “ In the premises as stated in para (4) above, the applicant prays that the Hon’ble Tribunal may be pleased to direct the respondents to consider for granting up-gradation of the scale of pay from Rs. 5500-9000 to Rs. 6500-10,500/- and for providing promotional avenues to the applicant”. 5. Counter affidavit was filed by the Union of India – opp. party before the learned Tribunal and rejoinder to the counter affidavit was also filed by the petitioner. The learned Tribunal by the impugned order after noting the fact of the case as pleaded by the parties, with regard to the first part of the prayer, considering the competency of the Tribunal to assess and determine the scale of pay of the claimant, came to the conclusion that it is the Pay Commission which is the expert 5 body to so determine. Equation of posts and determination of pay scale is the primary function of the Executive and not the Judiciary, and, therefore, ordinarily the Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission etc. However, the learned Tribunal held that the Court can exercise such discretion if an aggrieved employee is unjustly treated by arbitrary action of the State or its inaction. Upon holding thus, the learned Tribunal found that the Recovery Inspector cannot be equated with Inspectors of Income Tax Department and Customs and Central Excise Department, who are governed by a different set of Recruitment Rules. Referring to the O.M. dated 21.4.2004 which is strongly relied upon by the petitioner, the learned Tribunal held that the scale of pay in respect of various categories of Officers in the Income Tax Department as well as Central Excise and Customs Department have been revised on account of cadre restructuring. The nature of duties and responsibilities is not the whole object of determining the pay scale in respect of a particular post, nor can it be a sole criterion to bring parity in pay scale to that of similar or identical posts for which many other factors are to be considered, such as, the nature of duties and responsibilities, recruitment rules hierarchical need, etc. It further took note of the fact that even the scale of pay of the petitioner is upgraded 6 from Rs. 5500-9000/- to Rs. 6500-10,500/-, that will have an effect on the Recruitment Rules so far as the promotion of Court Master to the grade of Recovery Inspector is concerned and, in that event, such promotion on completion of eight years of regular service carrying the scale of pay of Rs. 4000-6000/- will remain in a State of impasse unless such pay scale is revised. Thus holding, the learned Tribunal negatived the claim of the petitioner for revision of his pay scale. 6. Considering the next part of the prayer, with regard to promotion to the post of Recovery Officer, the learned Tribunal found the said prayer to be wholly misconceived for the reason that the applicant-petitioner has never challenged the vires of the Recruitment Rules. The Recruitment Rules for filling up the post of Recovery Officer all along throw light on deputation ordinarily not exceeding three years. The Recruitment Rules lay down that “Departmental Section Officers with eight years regular service shall also be considered along with outsiders and in case the Departmental candidate is selected, the post will be treated to have been filled up by promotion”. This also puts emphasis for filling up the post of Recovery Officer on deputation basis and in that event, the tenure of deputationist would not ordinarily exceed three years. It took note of the fact that had it not been so, the Departmental Section Officer with eight years regular service 7 would have been considered for promotion though the other mode of promotion being not considered along with other outsiders. In other words, the Recruitment Rules lay down that even if there is Departmental Section officer with eight years regular service, he can only be considered along with other eligible outsiders and in case, he is appointed to the grade of Recovery Officer, the said post would be treated to have been filled up by promotion. 7. With regard to stagnation in the same grade of Recovery Inspector, as alleged by the petitioner, the learned Tribunal has held that the same is a misconception, as, for safe-guarding the interest of the incumbents who stagnate in a particular post for want of promotional avenues in the ;departmental hierarchy, the Government of India have introduced the Assured Career Progression Scheme, under which, the petitioner will certainly be entitled to the financial up-gradation on attaining the qualifying years of regular service as enshrined therein. Holding thus, the learned Tribunal also negatived this prayer made by the petitioner. 8. The petitioner has re-agitated the same grounds before this Court during the course of hearing of the present writ petition. No new question has been advanced when the matter was heard. 8 Learned Assistant Solicitor General supporting the judgment of the learned Tribunal has further added that this Court having passed an interim order on 5.10.2012 allowed the petitioner to sit in the interview conducted to appoint Recovery Officer/Assistant Registrar of the DRT, but directed that the result shall not be published without leave of this Court. For the aforesaid interim order, throughout the country, 30 (thirty) posts of Recovery Officers have remained unfulfilled for which, the Recovery certificate issued by the P.Os of various DRTs concerned have not been able to be put to recovery process and the DRTs are facing immense difficulties. 9. In the case of State of U.P. v. J.P. Chaurasia, AIR 1989 SC 19, the Supreme Court held that the equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay Commission. They would be the best Judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. (emphasis supplied) 10. It may be noted that in the present case, the 6th Central Pay Commission recommended the pre revised scales of pay of Rs. 5000-8000/- to Rs. 5500-9000/- and Rs. 6500- 9 10,500/- should be merged in revised scale of Pay Band -2 carrying the Band Pay of Rs. 9300-34800/- and Grade Pay of Rs. 4200/- with effect from 1.1.2006 by making a job evaluation, which has been accepted by the Government of India. 11. With regard to equivalence of Recovery Inspector with that of Inspector of Income Tax and Inspector of Central Excise as found by the learned Tribunal, the nature of work of these incumbents is not similar and, as such, they cannot be treated equally. In the case of State of West Bengal v. Hari Narayan Bhowal (1994)4 SCC 78, the Supreme Court held as follows:- “In public services, nature of work in two services or in the same service, the nature of the work of the two groups may be more or less same. But merely on that ground they are not entitled to the same scale of pay. It is well known that scales of pay are fixed by expert bodies like the Pay Commissions, which consist of persons having specialized knowledge of the subject. Such Commissions while fixing the scales of pay or revising the same, have to go in depth, not only into the nature of work by members of the same service and members of different services but also various other factors before the scales of pay are fixed. One of the primary concerns of such Pay Commissions is to remove any anomaly and to see that members of different services get scales of pay and other emoluments not only according to the nature of work but also according to educational qualifications, responsibilities of the post and experience etc. As such, before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary”. 12. Considering the above position of law, we find that the learned Tribunal was correct in refusing to increase the pay 10 structure of the petitioner so as to be the same as pay structure of Inspector of Income Tax and Inspector of Customs and Central Excise. The learned Tribunal also, according to us, is correct in holding that when there is a set of Recruitment Rules to fill up the post of Recovery Officer in the DRT and the petitioner is not eligible to fill up such post, the relief for considering him to be appointed as Recovery Officer in the DRT cannot be granted. The learned Tribunal was also correct in holding that in case of stagnation, the petitioner will get the benefit of Assured Career Progression Scheme. 13. We, therefore, find no error apparent on the face of the impugned order or non-consideration of any materials produced before the learned Tribunal while passing the said impugned order. We, accordingly find no merit in the writ petition so as to interfere with the impugned order by issuance of writ of certiorari. The writ petition being devoid of any merit is accordingly dismissed. . All pending Misc. Cases also stand disposed of. The interim order passed earlier stands vacated …………………… M.M. Das, J. R. Dash, J. I agree. ……………………… R. Dash, J. 11 Orissa High Court, Cuttack. July 2nd ,2013/Biswal. 12 "