Full Text
W.P.(C) 8058/2015 & CM 16635/2015 (stay)
LTNION OF INDIA & ORS.
Petitioner
Through Mr Jagjit Singh, Sr. Counsel with Mr Ashok
Singh, Advs.
Respondent
Through Mr A.K. Trivedi, Mr Vaibhav Trivedi and
Mr Abhishek Trivedi, Advs. . W.P.(C) 8060/2015 & CM 16640/2015 (stay)
UNION.OF INDIA & ORS.
'. Petitioner
Through Mr Jagjit Singh, Sr. Counsel with Mr Ashok Singh, Advs.
Through Mr A.K. Trivedi, Mr Vaibhav Trivedi and
',W.P.(C) 8333/2015 &CM 17635/20.15 (stay)
UNION OF INDIA & ORS
Through Mr Jagjit Singh, Sr. Counsel withMr Ashok
Singhi Advs.
• .... Respondent
Through; Mr A-K- Trivedi, Mr Vaibhav Trivedi and
THE DIRECTOR GENERAL ESIC & ORS.
Through Ms Sonam Anand, Adv.
Through Mr Padma Kumar, Sr. Adv. with Mr Krishna Kumar Mishra and Salik Ghai, Advs.
2016:DHC:8645-DB
HON'BLE MS. JUSTICE SUNITA GUPTA
04.11.2016 The aforesaid four writ petitions impugning different orders of the
Central Administrative Tribunal raise a common legal issue and are, therefore being disposed ofby this common order.
ORDER
2. The names of the respondents who were original applicants before the Tribunal along with the details of the respective OAs filed by them and the date ofthe impugnedorders ofthe Tribunal therein, have been;reproduced in the table below:- S.No. Name of the original applicarit[4], OA No. Date of impugned order
1. Mrs Malbika Deb Gupta '98/2014 27.03.2015
2. Smt Geeta Rani 107/2014 27.03.2015
3. Mrs. Meenu Verma. 111/2014 27.03.2015
4. Sheeja Santosh 3679/2012 07.05.2014. 5. Ramyamol Anil 3679/2012 07.05.2014
6. Surna Sunil 3679/2012 07.05.2014
7. NavlenGuria - '' 3679/2012. 07.05.2014
8. Tresa John 3679/2012 07.05.2014
9. BinaVarghese 3679/2012 07.05.2014
10. Shanti Mathew 3679/2012 07.05.2014
11. Reni James - • 3679/2012 07.05.2014
12. Carolin Kaviraj. 3679/2012 07.05.2014
13. Juliet Gibi 3679/2012 07.05.2014
14. Jayamol Jacob 3679/2012 07.05.2014
15. Sarala Rani 3679/2012 07.05.2014
16. Vijibiju 3679/2012 07.05.2014 W.P.(C) 8058/2015 & Connected matters Page 2 of10
17. Rajni 3679/2012 07.05.2014
18. Ginu Paul 3679/2012 07.05.2014
19. Elsamma Shaji 3679/2012 07.05.2014
20. Joemol Renji 3679/2012 07.05.2014
21. Seema Chaudhary 3679/2012 07.05.2014
22. Bindhu Shibu 3679/2012 07.05.2014
23. PoojaMaitre 3679/2012 07.05.2014
24. Leela Adhikari 3679/2012 07.05.2014
25. Nirmala Peter 3679/2012 07.05.2014
26. Sajitha Shaji 3679/2012 07.05.2014
27. Sathi Santosh 3679/2012 07.05.2014
28. Gincy Sebi • ' 3679/2012 07.05.2014
29. Selin Alex,3679/2012 07.05.2014
30. Sherly John 3679/2012 07.05.2014
31. Suma Pandit 3679/2012 07.05.2014
32. Silvia Babu 3679/2012 07.05.2014
33. Neelam Singh; ' 3679/2012 07.05.2014
34. Bincy Philip 3679/2012 07.05.2014
35. Ancy Reji 3679/2012 07.05.2014
36. Binny Suraj.. - 3679/2012 07.05.2014
37. Nirmala Sagi 3679/2012 07.05.2014
38. Asha Joshi 3679/2012 07.05.2014
39. Jessy George 3679/2012 07.05.2014
40. Omana Venn 3679/2012 07.05.2014
41. Sadhna Sudhakar Meshram 3679/2012 07.05.2014
42. Pushpa Vinod 3679/2012 07.05.2014
43. Sheejamol Santosh 3679/2012 07.05.2014
44. Sandhya Jayesh 3679/2012 07.05.2014
45. Reena Benny 3679/2012 07.05.2014 W.P.(C) 8058/2015 <6 Connected matters Page 3 of10 k
46. Shimmy Thomas 3679/2012 07.05.2014
47. Rajani Shaji 3679/2012 07.05.2014
48. Manju Shaji 3679/2012 07.05.2014
49. Amita Kindo 3679/2012 07.05.2014
50. Kuldeep Kaur 3679/2012 07.05.2014
51. Rachna 3679/2012 07.05.2014
52. AnupamaToppo 3679/2012 07.05.2014
53. Jyoti Puri 3679/2012 07.05.2014
54. Sunita Rani 3679/2012 07.05.2014
55. Elizabeth Muriel 3679/2012 07.05.2014,
56. Dolly Johnson, ' 3679/2012 07.05.2014
57. ResmiMinu,.. 367972012 07.05.2014
58. Rose Mary Bijoy - 3679/2012 07.05.2014
59. Jeena George 367972012 07.05.2014.60. Jini Siju 3679/2012 07.05.2014
61. Ambili Vinu 3679/2012 07.05.2014
62. Bindii Harikumar 3679/2012 07.05.2014
63. Mini Benny 3679/2012 07.05.2014
64. Bini Benny Thomas 3679/2012. 07.05.2014
65. Annamma Daniel 3679/2012 07.05.2014
66. Mary Reena Mathew 3679/2012 07.05.2014.
67. Aneyamma James 3679/2012 07.05.2014
68. Annamma L. 3679/2012 07.05.2014
69. Sheeja Boban 3679/2012 07.05.2014
70. Jayamol Shiju 3679/2012 07.05.2014
71. Sheena Suresh 3679/2012 07.05.2014
3. The respondents before us were appointed as direct recruits to the post of Staff Nurses and subsequently promoted as Nursing Sisters. Prior to W.P.(C) 8058/2015 & Connected matters Paged of10 1.1.2006, the pay scale for Staff Nurses was Rs. 5000-8000 and Rs. 5500- 9000 for Nursing Sisters. As per the CCS (Revised Pay) Rules, 2008 the pay scale was upgraded to Rs. 7450-11,500. Consequently, the petitioners were placed in the grade post S-13 with the Pay band, Rs. 9300-34,800 and grade pay ofRs. 4600/-.
4. The issue raised in these writ petitions filed by the Union of India pertains to interpretation of Rule 7A of the CCS (Revised Pay) Rules, 2008 ('the 2008 Rules' for short) and the Note-2A. For the sake of convenience, we would reproduce Rule 7A and Note-2A as under: "7. Fixation ofinilialpay:in the,revisedpay structure: The initial pay of a Government servant, who elects, or is deemed to have elected under sub-rule (3) of ride 6 to be governed by the revised pay structure on andfrom the F' day ofJanuary, 2006, shall, unless in any case the Presidentby specialorder otherwise directs, bejixedseparately in respect ofhis substantive payin the permanentposton which he holds a lien orwoidd have helda lien if it hadnot been suspended, and in respect ofhis pay in the following post held by him, inthefollowing manner, namely:-.(A) in the case ofall employees:-
(i) the pay in the pay band / pay scale will be determined by multiplying the existing basicpay as on 01.01.2006 by afactor of[1].86 androunding offthe resultantfigure to the nextmultiple of10;
(ii) Ifthe minimum ofthe revisedpay band / pay scale is more than the amount arrived at as per.(i) above, ihe.pay shall be fixed at the minimum of the revisedpay band / pay scale: XXX Note2A:lVhere apost has been upgraded.as a resultofthe recommendations of theSixth CPCas indicated inPart BofPart C ofthe First Schedide to these Rides, thefixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 01.01.2006 by afactor of 1.86 and rounding the resultant figure in the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in Column 6 ofPart B or C vAll be payable in addition. Illustration 4A in this regard is in the explanatory Memorandum in these Rides. "
5. In the case of the petitioners - Northern Railways, the applicable Rules are known as Railway Service Revised Rules, 2008. It is, however. W.P.(C) 8058/2015 & Connected matters accepted by the parties that the Rule 7 and Note 2A of the said rules are identical.
6. Rule 7A clause (i) postulates for computation of the revised pay by multiplication of the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. Thus the existing pay scales are to be multiplied by a factor of 1.86 and would be rounded off as indicated. However, clause (ii) thereof stipulates that where minimum revised pay scale is more than the amount arrived at as per clause (i), the pay will be fixed at the minimum of the revised basicpay / pay scale. The clause (ii) refers to the pay scale and grade pay as applicable on enforcement of the Revised Pay Rules, 2008. In case the minimum revised pay scale under the Revised Pay,Rules,2008 is more than the figure arrived at under clause(i) of Rule 7A, clause (ii) wouldbe applicable.
7. The contention of the petitioners is that Rule 7A (ii) will not apply whenNote 2A is applicable. We do not agree with the said argument. Note 2A does not contradict the said Rule 7A or carve out an exception overriding the mandate of Rule 7A. The note stipulates that for posts upgraded as indicated in Part B and C of the First Schedule of the Rules, the fixation of pay will be done in the manner provided, in clauses (i) and(ii) of Rule 7A by multiplication of the pay scale as existing on 01.01.2006 by a factor of 1.86 and rounding of. Note 2A/in effect, makes reference to clause (i) of Rule 7 Clause A and is identically worded as clause (i) to Rule 7A. This does not mean that clause (ii) to Rule 7A would not be applicable. If this was the intent and purpose of Note 2A, the Note would have been differently worded. In simple and plain words, it would have been stated that clause (ii) would not be applicable till first direct recruits were appointed or first W.P.(C) 8058/2015 & Connected matters Page 6 of10 I promotions post 1^ January, 2006 were made. Reference to clause (ii) of Rule 7A would not have been made in this manner. Rule 7A and Note 2A are to be construed and interpreted harmoniously so as to make them consistent to avoid any conflict.
8. The argument of the petitioner ignores and contradicts the second and third sentence of Note 2A. The second and the third sentence in Note 2A state that the grade pay in the upgraded scale as indicated in Column 6 of Part B or C will be payable in addition and illustration 4A is the applicable illustration. Section II ofPart B of the ! Schedule in Column 6 refers to the corresponding grade pay applicable in the: pa:y band. The earlier columns of the table in section II refer to the-present scale, i.e., the pay scale, as was applicable prior to 1.1.2006, and the pay:SQale granted consequent to the merger of the posts, and then states the corresponding or equivalent Pay band and grade pay applicable with reference to the revised pay scale.
9. Illustration 4A is as under:- "Illustration 4A: Pay Tixatioh in cases where posts have been upgraded e.g. posts iri prerevised pay scale of Rs.3050-75- 3950-80-4590 to Rs.3200-85-49p0 scale
1. Existing Scale of Pay Rs.3050-4590 (Corresponding Grade Pay;Rs.I900) 2^ PayBand applicable PB-1 Rs.5200-20200
3. Upgraded to the• Scale of Pay'Rs.3200-4900- (Corresponding Grade Pay Rs.2000),
4. Existing basic pay as on 1.1.2006 Rs.3125
5. Pay after multiplication by a factor of 1.86 Rs.5813 (Rounded offto Rs.5820)
6. Pay in the Pay Band PB-2 Rs.5820
7. Pay in the pay band after including benefitof bunching in the pre-revised sealeof Rs.3050-4590, if admissible Rs.6060
8. Grade Pay attachedto the scale ofRs.2000Rs.3200-4900 W.P.(C) 8058/2015 & Connected matters Page 7of 10
9. Revised basic pay - total of pay in the pay band and grade pay Rs.8060" The illustration refers to the computation of pay under both Rule 7A clause(i) and clause (ii).
10. Even otherwise, the interpretation propounded by the Union of India is incoherent and leads to absurdity. A new direct recruit, when appointed, is to be paid in the pay scale as per the 2008 Rules. He would be entitled the minimum of the pay band plus applicable grade pay. His pay would be computed,as per Rule 7A Clause (ii) of the Rules. However, employees on the same post prior to 1.1.2006 would not get the benefit of clause (ii) to Rule 7A and would have to wait till a junior is appointed to the same post after 1.1.2006. Thus, when the appointments are delayed, or not made, the benefit of the new pay scales under Part B and C would be delayed or even denied. Consequently, the contention of the petitioners that the respondents would be entitled to benefit of Rule 7A Sub Clause (ii) only from the date when the junior is appointed to the said postby way of direct recruitment or by way of promotion is fallacious and has to be rejected. The aforesaid argument is, to cover up the anomaly which is being created as a result of their misinterpretation ofRule 7A (ii) and Note 2A.
11. One cannot accept that the sa^me post can have two different pay scales, one for existing employees performing the same tasks and doing the same workon the ground thatthey were appointed or have been functioning on the said post prior to 1.1.2006, whereas a person appointed later in point of time would get the higher pay scale. Logically and as sequitor, the argument of the Union of India that where new appointments or promotions tf.P./q 8058/2015 & Connected nuitters Page[8] of10 were made, the employees working on the posts would immediately get the benefit of pay under Rule 7A Clause (ii) is wrong and fallacious. The principle of upgradation ofpay of the senior on the junior getting a higher pay scale is applicable in certain situations. Note 2A does not prescribe and record any such precept.
12. Fixationof pay pursuant to the 2008 Rules is a right. This right cannot be defeated and postponed. It is not subject to the principle of stepping up of pay ofthe senior when the junior gets a higher pay. The decision ofthe Fligh Court of Delhi in Dharmendra Yadav v Union of India & Ors., 2016 (5) SLR 644 (Delhi) is well reasoned and, detailed. Similarly, the judgment dated 18.07.2016 passed in W.P.(C) No;10071/2015, Ram Niwas x. Union of India, referring to the decision'm Dharmendra Yadav (supra) takes an identical view.
13. During the course of arguments, learned counsel for the petitioners has submitted that the respondents had made a prayer that the multiplier of
1.86 should be applied to the upgraded grade pay or pay scale. Counsel for the respondents on instmctions have uniformly stated that they are not pressing or raising the said contention. We take the said statement on record to avoid and clear any doubt.
14. Resultantly, the writ petitions are dismissed with the observation that the petitioners will pay to the respondents the minimum computation under clause (i) to clause (A) to Rule 7 and then compute the minimum pay applicable with reference to the pay band plus grade pay applicable to the revised pay scales as mentioned in section II of Part B of the First Schedule to the 2008 Rules. If the net resultant figure as per clause (ii) to Rule 7A is higher, then the respondents would be entitled to benefit of sub-clause (ii) to W.P.(C) 8058/2015 Connected mutters Page 9 of10 Rule 7 Clause (A) ofthe 2008 Rules.
15. This orderwill be implemented within 2 months from the date on which a copy of the order is received bythepetitioners.
16. Pending CMs are also disposed of. No orders as to costs.