Sunil Kumar Rai v. Union of India & Ors.

1. The petitioners, who are Engineers working in the Border Roads Organization (‘BRO’) are aggrieved by non grant of Non Functional Upgradation Scale, by the respondents.

2. The petitioners claim to have joined the services of BRO in the Subordinate Engineer Cadre as Overseers, Charge Mechanics and Superintendents and subsequent to the recommendations of the Fifth Pay Commission, the said posts were merged and re-designated as Junior Engineer. As per the recommendations of the Sixth Pay Commission, the Junior Engineers were placed in Pay Band-2 with Grade Pay of Rs.4,200/- 11:05 and as per the Modified Assured Career Progression Scheme (‘MACP’) the next Grade Pay of Rs.4,600/-; Rs.4,800/- and Rs.5,400/- was payable upon completion of 10, 20 and 30 years of service respectively. Further, vide Seventh Pay Commission it was recommended that 80% employees at Level 8 Grade Pay shall be granted Non-Functional Upgradation to Level 9 (Grade Pay of Rs.5,400/-) upon completion of four years service on seniority-cum-suitability basis.

3. The contention of petitioners is that the aforesaid recommendations of the Seventh Pay Commission were adopted by BRO vide letter dated 15.11.2018 of the Controller General of Defence Accounts (‘CGDA).

4. The grievance of petitioners is that all the petitioners had completed 20 years of service as Engineers, drawing Grade Pay of Rs.4,800/- at Level-8 for more than four years, however, none of the petitioners have been granted the Grade Pay of Rs.5,400/- at Level -9.

5. During the course of hearing, learned counsel for the petitioners submitted that despite making several requests to the competent authority of BRO to grant Non Functional Upgradation as per Seventh Pay Commission, this benefit has not been given to the petitioners. In response to one such representation, the respondents have though admitted of granting Non Functional Upgradation to the Senior Private Secretaries but not to Engineers while relying upon letter dated 17.02.2009 issued by the Ministry of Shipping Road Transport and Highway, which conferred the said benefit to Senior Private Secretaries only. Learned counsel submitted that the respondents have placed reliance upon letter dated 17.02.2009 which relates to the recommendations of the Sixth Pay Commission; 11:05 whereas the petitioners herein have sought relief mentioned under Para- 7.4.13 (iv) (b) of the recommendations of the Seventh Pay Commission.

6. Learned counsel for petitioners next submitted that as per CGDA’s Circular dated 17.02.2021, the grant of Non-functional Upgradation to Grade Pay Rs.5,400/- i.e. Level-9 has been extended to Assistant Accounts Officers of the Defence Accounts Department who have been in the grade pay of Rs.4,800/- i.e. Level-8 for the last four years. Hence, Engineers in the BRO have been discriminately treated and the benefit of Non Functional Up gradation cannot be confined to Senior Private Secretaries and so, a direction is sought to the respondents to grant petitioners Non Functional Upgradation consequent upon completion of four years of service at Level-8 at par with the Assistant Accounts Officers of the Defence Accounts Department.

7. On the other hand, learned CGSC appearing on behalf of respondents submitted that Non Functional Upgradation to Level-9 or Grady Pay of Rs.5,400/- upon completion of four years service in Level-8 i.e. Grade Pay Rs.4,800/- in respect of Private Secretaries, has been granted in accordance with communication dated 17.02.2009 of the Government of India, Ministry of Shipping, Road Transport and Highways, as the entry level pay scale for fresh recruits was Rs.7,500- 12000 in Fifth Pay commission, which has been subsequently been revised to Pay Band-2 in Sixth Pay Commission with corresponding Grade Pay of Rs.4,800/- and so, they have been granted a pay scale of Rs.8000-13500 with corresponding Grade Pay of Rs.5,400/- on completion of four years of service. 11:05

8. Learned CGSC submitted that the petitioners in the instant case were appointed as Overseer, C/Mech. & BR-II which merged /designated as Junior Engineer and their initial Grade Pay was Rs.4,200/- in Sixth Pay Commission. The petitioners have been granted financial upgradation under MACP I, MACP II and MACP III and their Grade Pay was increased to Rs.4,600, Rs.4,800 and Rs.5,400/-. It was next submitted that as petitioners’ entry level Grade Pay was not Rs.4,800, thus, they are not entitled to Non Functional Upgradation similar to Senior Private Secretary.

9. Learned CGSC further submitted that petitioners have placed reliance upon Para 7.4.13 (iv) (b) of the Seventh Pay Commission, which cannot be read in isolation and has to be read with iv (a). Also submitted that the recommendations of any Pay Commission are only advisory in nature and not binding on the Government and the Junior Engineers in the other departments like CPWD are also placed in the same pay and band as the petitioners herein. Lastly, learned CGSC submitted that the present petition is not maintainable and deserves to be dismissed.

10. In rebuttal, learned counsel appearing on behalf of petitioners submitted that even though respondents have contended that the recommendations of the Pay Commission are advisories and not binding, but the respondents have restricted the grant of Grade Pay of Rs.5,400/on completion of four years to Senior Private Secretaries and Ministry has also allowed same benefit to the Assistant Accounts Officer. The petitioners are similarly situated and have also completed four years service at Level-8 in the Grade Pay of Rs.4,800/- and hence, they are 11:05 eligible for Grade Pay Rs.5,400/-.

11. Reliance was placed upon Hon’ble Supreme Court’s decision in Purshottam Lal Vs. Union of India 1973 (1) SLR 633 to submit that if the recommendations of the Pay Commission were accepted, then the same have to be applied in rem and implementation qua some employees would amount to violation of Articles 14 & 16 of the Constitution of India. Accordingly, submitted that the recommendation mentioned in Para 7.4.13 (iv) (b) requires “completion of four years in Level 8” has been confirmed by the Supreme Court in Union of India & Ors. Vs. M. Subramaniam, CA 8883 of 2011.

12. Upon hearing learned counsel for the parties, upon perusal of material placed before this Court as well as decisions cited, we find that petitioners have heavily relied upon Communication dated 17.02.2009 where under the respondents have been directed to revise the pay scale of Senior Private Secretaries in the pay Scale of Rs.7,500-12,000/- to Grade Pay Rs.4,800 and on completion of four years, the Non Functional revised pay scale Rs.8000-13,500 i.e. Grade Pay Rs.5,400 has been given. Though in the said letter, the Grade Pay of Assistant Engineers and Chief Draughtsman has been fixed at Rs.4,600/- but there is no mention of grant of Rs.5,400/- to them. The aforesaid Communication dated 17.02.2009 is as under:- “ PC-3 to BRDB/03/191/2007/GE-I Government of India Ministry of Shipping, Road Transport & Highways Border Roads Development Board 11:05 „B‟ Singh 4th Floor Sena Bhawan, New Delhi, the 17th February 2009 To The Director General Border Roads Seema Sadak Bhawan Ring Road, Delhi Cantt New Delhi-110010 Subject: Implementation of recommendation of 6th Central Pay Commission I am directed to refer to Dtec.GBR‟s Note of even numbers dated 19th September 2008 & 3rd October 2008 and to say that pay fixation under CCS (RP) Rules, 2008 in respect of the following categories of Border Roads Organisation may be done in accordance with the instructions contained in Ministry of Finance (Department of Expenditure) Notification No.G.S.R. 622 (E) dated 29th August 2008:-

┌────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                                           August 2008:-                                                        │
│                           Sl. Post               Present         Revised     Corresponding Para No. of         │
│                           No.                    Scale           Pay         Pay Band and the 6th CPC          │
│                                                                  Scale       Grade pay       Report            │
│                           (a) Sr. Private        Rs.7500         Rs.7500-    PB-2 Rs.4800 3.1.14               │
│                               Secretary          12000           12000                                         │
│                                                                  (entry                                        │
│                                                                  grade for                                     │
│                                                                  fresh       Rs.5400     (on                   │
│                                                                  recruits)   completion of                     │
│                                                                  (8000-      four years)                       │
│                                                                  13500 (on                                     │
│                                                                  completion                                    │
│                                                                  of     four                                   │
│                                                                  years)                                        │
│                           W.P.(C) 5518/2021                                                     Page 6 of 13   │
└────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

5.[1] of the Report. They will apply to subordinate engineering cadres as well. iv. The commission took note of the issue of stagnation raised by the various representative staff associations. Accordingly, the following is recommended: a. The concerned ministries should earmark posts in Level 8 equal to 10 percent of total sanctioned strength in Level 6 and 7. 70 percent of such earmarked posts should be filled through promotion from Level 7, while 30 percent should be filled through a Limited Departmental 11:05 Competitive Examination in which employees from both Levels 6 and 7 would be eligible to compete. This will enable deserving and meritorious employees at Level 6 to jump Level 7 and to directly to Level 8. b. 80 percent of the employees in Level 8, will be eligible for no-functional upgrade to Level 9 upon completion of four years in Level 8, on a senioritycum-suitability basis.”

16. The respondents have averred that Para-7.4.13 (iv) (b) has to be read in consonance with Para 7.4.13 (iv) (a) thereof. We find that Para 7.4.13 (iv) (a) relates to filling of posts in Levels 6 & 7 through promotion as well as through LDCE to Level 8. It is only the Clause Para-7.4.13 (iv) (b) which speaks of non functional upgradation to Level 9. Further, the afore-noted extracts of Seventh Pay Commission in Para-7.4.13 (i) specifically note in respect of Subordinate Engineering Cadres that in terms of recommendations of the Sixth Pay Commission, the Grade Pay in the Engineering cadre shall be based upon the qualification. The aforesaid position is not disputed. Also, by virtue of recommendations of the Sixth Pay Commission vide Resolution dated 29.08.2008 by the Ministry of Finance, Non Functional Grade Pay of Rs.5,400 has been directed to be given to different cadres. But the respondents in contravention of aforesaid Resolution dated 29.08.2008, vide communication dated 17.02.2009, restricted grant of Non-Functional Grade Pay of Rs.5400 to the post of Senior Private Secretary only. In our opinion, the competent authority concerned did not consider that though the scale of Assistant Engineer and Chief Draughtsman is fixed at Grade Pay of Rs.4,600, however, upon implementation of Modified Assured Career Progression 11:05 Scheme (‘MACP’) on completion of 10, 20 and 30 years of service respectively, the next Grade Pay of Rs.4,600/- is Rs.4,800/- (Level-8) and after completion of four years in Level-8, the incumbent becomes eligible for grant of Non Functional Grade Pay of Rs.5,400/- (Level-9). The plea of respondents that because the entry level pay of petitioners is not in the Grade Pay of Rs.4,800, therefore, they are not entitled to Non Functional Grade Pay of Rs.5,400 cannot be accepted. Whether entry to the Grade pay of Rs.4,800 is by promotion or by direct recruitment, the condition precedent for grant of Non Functional Grade Pay of Rs.5,400 is that the incumbent should have completed four years in the Grade Pay of Rs.4,800/-.