1 OA 692/2012

IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH: HYDERABAD

Original Application No.692 of 2012

Date of CAV: 03.09.2018 Date of Pronouncement: 26.09.2018 Between:

1. L. Bangaraiah, S/o. Musalaiah, Aged 66 years, Occ: Electrician, HSG, GE N.B. (V), (Retd), R/o. D. No. 71-31-706, Kranthi Nagar, Gandhigram Post, .

2. M. Narasimha Raju, S/o. Late Jogi Ramakrishna Raju, Aged 66 years, Occ: Electrician, HSG, GE NB (V) (Retd.), R/o. D. No. 8-91, Near Primary High School, Rajula Tallavasala PO, Mandal, Visakha Dist. Visakhapatnam.

3. Mr. A. David Raju, S/o. A. Samuel, aged 66 years, Occ: Electrician, HSG GE N.d. (V) (Retd.), R/o. Flat No. 208, Gajanana Apts., Shantinagar, NAD Kotha Road, Visakhapatnam -9.

4. E.S. Hanumantha Rao, S/o. Late Subrahmanyam, aged 65 years, Occ: Electrician, HSG GE N.D. (V) (Retd.), R/o. D. No. 71-31-706, Kranthi Nagar, Gandhigram Post, Visakhapatnam -5.

5. Sk. Imam Kasim, S/o. Pakher Saheb, aged 64 years, Occ: Electrician, HSG GE N.S. (V) (Retd.), R/o. D. No. 71-31-640, Kranthi Nagar, Gandhigram Post, Visakhapatnam -5.

6. B. Varahala Raju, S/o. late Narasimha Raju, Aged 66 years, Occ: Electrician, HSG GE N.B. (V) (Retd.), R/o. Near Panchayat Office, Rajula Tallavalasa PO, Bheemunipatnam Mandal, Visakhapatnam -9.

7. A. Sanyasi Rao, S/o. late Venkatasubba Raju, Aged 66 years, Occ: Electrician, HSG GE N.S. (V) (Retd.), R/o. Tarakarama Enclave, NAD Kotha Road, NAD Post, Visakhapatnam – 9.

8. I. Ranga Rao, S/o. late Vaikuntavasulu, Aged 71 years, Occ: Electrician, HSG (Retd), R/o. D. No. SF-1, Lowsons Bay Colony, Visakhapatnam-17.

9. A. Shankara Rao, S/o. A. Govind Rao, Aged 65 years, Occ: Electrician, HSG, GE NB (V) (Retd.), R/o. D. No. 22-85-24, Burujupeta, near SKML Temple,

2 OA 692/2012

Visakhapatnam-1.

10. B.S.N. Murthy, S/o. late Suryanarayana, Aged 65 years, Occ: HSG, GE NB (V) (Retd.), R/o. D. No. 8-162/B, Karanamgari House, Ramabhadrapuram, Vizianagaram District.

11. V.V. Ramana Murthy, S/o. late Appalaswamy, Aged 64 years, Occ: Electrician, HSG, GE NB (V) (Retd.), R/o. D.No. SF-1, Lawsonsbay Colony, Visakhapatnam-17.

12. P. Appala Raju, S/o. Rama Rao, Aged 62 years, Occ: Electrician, HSG, Retd. In GE NB (V), R/o. D. No. 5-5-52, Pedajalaripeta, Adarsha Gramam, Visakhapatnam – 17.

13. P. Krishna Rao, S/o. late Sanyasaiah, Aged 61 years, Occ: Electrician, HSG GE N.D. (V) (Retd.), R/o. Tarakarama Enclave, NAD Kotha Road, NAD Post, Visakhapatnam – 9.

14. V.V. Ramana, S/o. late Varahalacharyulu, Aged 61 years, Occ: Electrician, HSG, Retd. GE ND(V), Visakhapatnam.

15. Smt. Gandham Jaya, W/o. late GA Prabhakara Rao, Aged 56 years, R/o. D. No. 5-88, Peda Narva, Mandal, Visakhapatnam. – 27. … Applicants And

1. The Union of , Rep. by the Secretary, Ministry of Defence, New Delhi.

2. The Engineer-in-Chief, Army Headquarters, DHQ Post, New Delhi -11.

3. The Chief Engineer, HQ Southern Command, Pune-1.

4. The Chief Engineer (Navy), Station Road, Visakhapatnam-4.

5. The Commander Works Engineers, Station Road, Visakhapatnamm-4.

6. The Garrison Engineer (Naval Base), Visakhapatnam-5.

7. The Garrison Engineer (Naval Supplies), Naval Base Post, Visakhapatnam-14.

8. The Garrison Engineer (Naval Depot), 104 Area, Visakhapatnam -7.

3 OA 692/2012

9. The Assistant Garrison Engineer (I) (R&D), NSTL, NAD Kotha Road, Visakhapatnam-9. … Respondents

Counsel for the Applicants … Mr. Ramachandra Rao, Advocate for Dr.P.B. Vijaya Kumar, Advocate Counsel for the Respondents … Mr. Bhimsingh, Advocate for Mr.M. Brahma Reddy, Addl. CGSC

CORAM: Hon'ble Mr. Justice R. Kantha Rao, Member (Judl) Hon’ble Mr. B.V. Sudhakar, Member (Admn.)

ORDER {As per Hon'ble Mr. B.V. Sudhakar, Member (Admn.) }

The OA is filed against office order no 156/2011 dt 19.10.2011 dealing with seniority and non grant of higher pay scale.

2. Brief facts are that the applicants Sl 1 to 14 and the husband of the applicant at Sl. 15 worked as civilian employees in Military Engineering service and retired. The posts of Line Man, Wire Man, and Switch Board Attendant in the pay scale Rs 210-290 constitute the feeder cadre for promotion to the posts of

Instrument repairer, Electrician, Armature Winder and Cable Joiner in the pay scale of Rs.260-350. After passing the Trade Test the applicants and the

Husband of the applicant at Sl. 15 were promoted to the grade of an Electrician in the pay scale of Rs.260-350. The applicants were senior to Mr. Ch Kameswara

Rao, Wire Man and Sri G.S.N Murthy whose dates of appointment are 3.4.1972 and 8.6.1972 respectively since the later did not pass the trade test. Under fitment policy of the Govt. of India, Ch Kameswar Rao and G.S.N Murthy, who were left out in the feeder category and did not pass the trade test were promoted to the higher scale of Rs.330-8-370-10-400 EB-10-480 w.e.f 16.10.1981 resulting in anomaly of juniors getting higher pay than the senior applicants.

After being represented by several employees about the anomaly an Expert

Classification Committee (ECC) was formed which recommended that the

4 OA 692/2012 seniors should also get the pay scale of Rs 330-480 from the date a junior got the scale under the fitment policy w.e.f 16.10.1981. The seniority is to be reckoned based on CWE (Commander Works Engineers) Area basis. As per the fitment policy the posts of line man, wire man and switch board operator were redesignated as Electrician (SK) with a pay scale of 260-350 and abolished the feeder of lineman etc. In view of certain difficulties being encountered in regard to the seniority while implementing the fitment policy, the 2nd respondent issued guide lines vide lr dt 22.12.1988 stating that inster se seniority between

Electrician, wireman, lineman, armature winder and SBA in (i)--skilled category, the existing electricians will rank en masse senior to all others and in

(ii) HS-II grade existing electrician will rank en masse senior to SBA and the higher scale will be determined based on the date of placement. Existing SBAs and linemen will be redesignated as Electrician (SK). Ten percent promotion in

SBA and wiremen will not be made. In view of this clarification the applicants being senior should be placed in the pay scale of Rs 330-480 as Electrician HS –

II w.e.f 16.10.1981 and placed over those who were promoted under the fitment policy. Consequently this tribunal in OA 140 of 1991 filed by the applicants has ordered the 2nd respondent to dispose of the comprehensive representation of the applicants and accordingly the 2nd respondent disposed of the matter by stating that the ECC and Committee on Common categories seized to function and that the unions appreciated the 4th CPC scales and that there was no injustice done. Being aggrieved the applicants again filed another OA 526/2008 which was disposed by this tribunal directing the respondents to conduct a review DPC to promote the applicants to the post of Electrician HS –II if eligible. The respondents promoted three of the applicants vide proceedings dt 30.9.2011 by convening a DPC, on applicants igniting a C.P before the tribunal. The

5 OA 692/2012 applicants point out that this action was against the GOI orders dt 11.5.1983 and that the respondents did not indicate on what basis their claims were rejected and hence the OA.

3. The applicants contend that since they were promoted to the post of electrician on passing a trade test prior to Mr Kameshwara Rao and Mr Murty they should be given the higher pay scale of Rs 330-480 and ranked senior to the later as per the ECC recommendation and subsequent guidelines of 2nd respondent vide lr dt 22.12.1988. The applicants contend that there is no DPC prescribed in the ECC and the guidelines referred to. Further, compliance affidavit dt 8.10.2011 filed by respondents should be complied with. The action of the respondents is against the Govt of India Instructions discussed above. By extending the rightful benefit only to the applicants Sri R.Gopala rao, Sri

A.Muthyala Rao and Sri Rajeswar Rao and excluding others without assigning reasons is discriminative and against Articles 14, 16 and 21 of Constitution of

India. The applicants have also submitted the citation of the Honorable Apex

Court in Er. Gurucharan Singh Grewal and Anr vs Punjab State Electricity

Board and ors in CA 65-67 of 2009 where in it was held at para 14 that parity of the pay scale of the appellant at par with that of the junior has to be brought about.

5. The respondents in their defense contend that the three applicants found fit by DPC were promoted as per orders of tribunal in OA 526/2008. Further they point out that on the merger of the wireman, SBA etc scales with the electrician scale the combined seniority had to be fixed by considering the length of service, date of birth etc in the lower grade as per 2nd respondent lr 22.12.88.

Accordingly Sri CH Kameswar Rao and Sri Murthy who joined on 3.4.1972 and

8.6.1972 are senior. As per ECC recommendation senior should be given pay at

6 OA 692/2012 par with junior from the date the junior draws higher pay. Respondents contend that the applicants are not senior to the two employees referred to as per 2nd respondent letter dt22.12.1988. Sri G.SN. Murthy granted promotion under the fitment policy to the scale of Rs 330-480 after conducting a regular D.P.C. The respondents also claim that the two employees referred to have passed the trade test and promoted as Electrician before 16.10.1981 at para 2 of page 8 of the reply statement.

6. Heard the learned counsel for both sides.

7. This case has a chequered history. Too many OAs have been filed to cause pay revision vis a vis junior drawing more than the senior. The applicants passed the trade test and got selected as electrician by a DPC. Sri CH Kameswar

Rao and Sri G.S.N Murthy who constitute the reference points in the present case and in previous OAs as well, could not pass the trade test were promoted to the scale of Rs 330-480 under fitment policy. As per Expert Classification

Committee recommendation seniors pay should be stepped up if a junior is drawing higher pay than the senior. Accordingly, applicants staked claim for step up since the two employee referred to were junior to them. The respondents considered and promoted Mr R.Gopala Rao, Mr Muthyala Rao and Mr Rajeswar

Rao to the scale of Rs 330-480 w.e.f 16.10.1981 in response to the orders of this tribunal in OA 526 of 2008 excluding the applicants of the present OA who were also a party in OA 526/2008. The grounds given is that the applicants are not senior to Mr CH Kameswar Rao and Mr G.S.N. Murthy and that the other applicants in OA 526/2008 who are a party in the present OA were promoted as electrician before 16.10.1981. This response of the respondents is illogical as the

3 applicants promoted were given the higher scale of pay of Rs 330-480 though they were also promoted as Electrician prior to 16.10.1981. Moreover it is seen

7 OA 692/2012 that at paras 8, 9 and 10 of OA 526 of 2008 a detailed analysis of the seniority of the applicants vs the two juniors namely Mr CH Kameswar Rao and Mr G.S.N

Murthy was done with documentary evidence and concluded that the applicants were senior to the said two officials who were given the higher pay scale of Rs

330-480.We would not like to repeat the basis of the findings in OA 526 for reasons of brevity. Even the recommendations of the ECC and instructions of the 2nd respondent are in favour of the applicants. This was also pointed out in

OA 526 of 2008. Yet the respondents repeatedly harping on the same point that the applicants are not senior to the Mr Kameswar Rao and Mr Murthy without stating the rules under which they are junior and any fact contrary to the finding of this tribunal in OA 526/2008 there pleadings lack substance. Moreover, the respondents admitted in their affidavit in CP no 93/2011 that all the applicants are senior to Mr G.S.N Murthy and having filed an affidavit to this extant retracting on the same is a serious issue which would have penal ramifications on a thorough investigation. We would not like to take the case in that direction at the moment. The respondents have meekly claimed that their H.Q has pointed out that some orders of the Govt. were not followed and hence the difficulty.

The respondents did not spell out the orders or the authority which forced them not to consider the applicants albeit three similarly situated persons were promoted. Moreover the applicants having passed the trade test and got promoted to grade of electrician prior to 16.10.1981 and therefore even on this count they are senior to the two juniors taken as reference. Even in the next below grade, as is being eloquently professed by the respondents to be the bench mark, the applicants are found to be senior as was elaborately established in OA

526 of 2008. With all these facts staring at them, the respondents are still repeating the same defense which was breached hands down by the offence of

8 OA 692/2012 the applicants with the ammunition of facts and findings in OA 526/2008.

Denying a legitimate benefit as per rules is illegal and justice delayed is justice denied. The issue is hanging fire since 37 years with the advent of the fitment policy and the respondents not finding a solution despite the ECC clarification and the 2nd respondents orders plus the directives from this tribunal through various orders is incomprehensible. Driving the applicants repeatedly to this tribunal by adopting a discriminative approach of promoting only three of the similarly placed applicants is unfair to say the least. Hence a case of clear discrimination is established. Rule of senior getting higher pay than a junior is violated ECC. Recommendations and orders of the 2nd respondent were not followed. Therefore the OA fully succeeds.

8. Hence the respondents are directed to consider the plea of the applicants in the higher scale of pay of Rs 330-480 from the date their junior has been given the scale along with the consequential benefits thereof by forming a duly constituted Departmental Promotion Committee as was done in the previous cases within 3 months from date of receipt of this order.

9. The OA is accordingly allowed. No order as to costs.

(B.V. SUDHAKAR) (JUSTICE R. KANTHA RAO) MEMBER (ADMN.) MEMBER (JUDL.)

Dated, the 26th day of September, 2018 evr