ORDER
Mukesh Kumar Gupta, Member (J)
1. Seventeen applicants in this OA seek direction to respondents to grant them benefit of implementation of recommendations made by Vth Central Pay Commission w.e.f. 01.1.1996 at par with similarly situated persons.
2. Factual matrix of case is that Vth Central Pay Commission (hereinafter referred as ‘Vth CPC’) vide para-66.165, with reference to Central Revenues Control Laboratories, observed as follows:
66.165 There are 193 posts of Laboratory Attenders with qualifications of Matric + Science in the scale of Rs. 950-1400 which will feeder to 17 posts of Lab. Clerks in the scale of Rs. 975-1540. The administrative Ministry has suggested merger of Lab. Clerk with UDC (Stores) and redesignation of Lab. Attenders as Lab. Assistants as well as upgrading 50% of them to the scale of Rs. 1200-2040. Fourth CPC had merged the then Lab. Attenders with their selection grade placing all in the scale of Rs. 950-1400. The general proposals for Labotratory Staff contain a three level structure for Lab. Attenders (Rs. 750-940), Lab. Asstts. (Rs. 950-1500) and Lab. Technicians (Rs. 1600-2660). Since the first and third levels do not exist in the Central Revenue Control Laboratory, we recommend the following structure for this category:
Lab. Attenders may be redesignated as Lab. Assistant III (Rs. 950-1500) as they possess requisite qualifications and pay scales. Entry at this level by promotion should be restricted to 10% as there are only 24 posts of Group ‘D’. Promotees to this grade must possess qualifications of direct recruits. 90% Direct Recruitment is recommended for the proposed level of Lab. Assistants III;
93 of the 193 posts at the proposed level of Lab. Assistant III should be placed at the level of Lab. Assistant II (Rs. 1320-2040), to be filled entirely by promotion;
UDC (Stores) should be merged with other UDCs and Lab. Clerks with LDCs; and
The proposals on ACP will take care of career progression requirements.
3. Aforesaid recommendations were accepted by the Government vide communication dated 24.8.2001 and ‘the sanction of the Government for re-designation of posts and upgrdation of the pay scales’ of various posts including Laboratory Assistant Grade-II, to which we are concerned, was communicated. Para-6 of said order states that: ‘these orders will take effect from the date of issue of this letter.’ Consequently, vide Establishment Order No. 14/2004 dated 01.7.2004, all applicants herein were: ‘promoted to officiate as Laboratory Assistant Grade-II (Group-C) in pay scale of Rs. 4000-100-6000/- on temporary basis w.e.f. the date they assume charge of higher post and until further orders.’ Prior to said date, vide Establishment Order No. 31/2000 dated 20.10.2000, as many as, twelve out of seventeen applicants herein were allowed first financial upgradation on completion of 12 / 24 years of service to the next higher pay scale. First two applicants were granted second financial upgradation in pay scale of Rs. 4000-6000/-, while remaining ten were allowed first financial upgradation in pay scale of Rs. 3200-4900/-.
4. Applicants’ grievance had been that similarly situated Group-C officials namely, Chemical Assistant Grade-II in the same Laboratory, have been granted upgraded pay scale of Rs. 5000-8000/- w.e.f. 01.1.1996 though their pre-revised pay scale had been 1400-2300/-, which act is consequence to recommendations made by Vth CPC. Similar treatment has not been accorded to applicants. Their representation made to concerned authorities to grant the said scale w.e.f. 01.1.1996 instead of 01.7.2004, remained unconsidered and, therefore, they have no option but to approach this Tribunal. Though Government sanction had been conveyed on 24.8.2001 but applicants were granted benefit only w.e.f. 01.7.2004 and as such there had been undue & enormous delay on the part of respondents, which has harmed applicants’ interests. Respondents did not implement their own order, delaying the matter without any justification for which, they cannot be made to suffer. No further promotion avenue is available to Lab. Assistant Grade-II. Category of Lab. Attendant / Lab. Assistant was left out, without any reason, in a discriminatory manner. Our attention was also drawn to order passed by Calcutta Laboratory of Central Revenue Control Laboratory, wherein similarly situated persons were allowed pay scale in terms of Vth CPC’s recommendations w.e.f. 01.1.1996.
5. Shri Arun Bhardwaj, learned Counsel for applicants contended that Department of Revenue vide order dated 01.1.1998 upgraded pay scale of Group-C post, working in field formations under Control Board of Excise and Customs w.e.f. 01.1.1996, which included post of Chemical Assistant Grade-II. Treating the applicants differently amounted to invidious discrimination, which is impermissible in law, contended learned Counsel.
6. Respondents resisted the claim laid stating that Central Revenues Control Laboratory, New Delhi is a subordinate office of Department of Revenue, Ministry of Finance, which is the head quarter of nineteen laboratories spread all over India. These laboratories are manned by personnel of Central Revenues Chemical Service, which is auxiliary service under Central Board of Excise & Customs. Members of service are engaged in the Chemical analysis of wide variety of goods falling under the Central Excise and Customs Tariff and they are assisted by Laboratory Assistants. Decision was taken by the Government on recommendations of Vth CPC vide para-66.165, vide letter dated 24.8.2001. In accordance with aforesaid decision, recruitment rules for Laboratory Assistant Grade-III & II were notified vide G.S.R. 93 dated 15.3.2004 and in-charge of various laboratories was requested to take an early step for implementation of Ministry’s order dated 24.8.2001 in accordance with notified recruitment rules. With issuance of order dated 01.7.2004, recommendations made and decision arrived at, have been implemented. Applicants could not have been promoted and granted higher pay scale without notification of recruitment rules, which were issued only on 15.3.2004 & notified in the Gazette dated 27th March 2004. In these circumstances, action taken is legal & justified and applicants cannot be given promotion with retrospective effect. Applicants’ request to implement Vth CPC’s recommendations in respect of Laboratory Assistant in Central Revenue Laboratories w.e.f. 01.1.996 instead of 01.7.2004 cannot be acceded to. Recruitment rules are statutory in nature issued under the authority of the President of India. Executive instructions cannot amend statutory recruitment rules. Recruitment Rules of 2004 came into force on 27.3.2004 when same were published in Gazette of India. Rule 1(2) of said Rules specifically states that said rules ‘shall come into force on the date of publication in the Official Gazette.’ In view of above, representation made by applicants to implement recommendations of Vth CPC w.e.f. 01.1.1996 instead of 01.7.2004 cannot be acceded to.
7. We heard learned Counsel for parties and perused pleadings carefully including material placed on record.
8. Recommendations made by Vth CPC are incorporated in Part-C of First Schedule, appended to Central Civil Services (Revised Pay) Rules, 1997, which had been notified vide Gazette of India dated 30.9.1997. Pay scale to the post of Laboratory Attender, re-designated as Laboratory Assistant Grade-II, as revised to Rs. 4000-6000/- found mentioned in Part-C of said notification, which states that revised scales of pay mentioned in column-4 of Part-C of notification are based on recommendations of Pay Commission subject to fulfillment of certain conditions. These conditions relate inter alia to changes in Recruitment Rules, restructuring of cadres, redistribution of posts in the higher grades, etc. It further provides that: ‘therefore, in those cases where conditions such as changes in Reruitment Rules, etc, which are brought out by the Pay Commission as the rationale for the grant of these upgraded scales, it will be necessary for the Ministries to decide upon such issues and agree to the changes suggested by the Pay Commission before applying these scales to these posts with effect from 1-1-1996. In certain other cases where there are conditions prescribed by the Pay Commission as prerequisite for grant of these scales to certain posts such as cadre restructuring, redistribution of posts, etc., it will be necessary for the Ministries / Department concerned to not only accept these pre-conditions but also to implement them before the scales are applied to those posts.’
It is not in dispute, as observed from pleadings that applicants were initially appointed as Laboratory Attender, which post has been re-designated as Laboratory Assistant Grade-III. 93 of 193 posts of Laboratory Assistant Grade-III have been placed at the level of Laboratory Assistant Grade-II, to be filled entirely by promotion. It is not in dispute that applicants could be promoted in terms of aforesaid recommendations only when rules are framed & notified. It is an admitted fact that Recruitment Rules for the post in question were notified vide Gazette of India dated 27.3.2004. It is no doubt true that Government accepted recommendations of Vth CPC in respect of post in question vide communication dated 24.8.2001 but that was not the end of matter as recruitment rules for Laboratory Assistant Grade-III as well as Grade-II were required to be framed before considering them for promotion. It amounts not only change in recruitment rules but also restructuring of cadres, redistribution of posts into higher grades also.
9. On bestowing our careful consideration to all aspects of case, we observed that neither statutory rules, which confers right upon applicants to promotion as Laboratory Assistant Grade-II nor the order dated 01.7.2004 vide which they have been promoted to officiate as Laboratory Assistant Grade-II have been challenged in present proceedings. We may further note the fact that promotion order is effective ‘w.e.f. the date they assume charge of higher post’, which obviously has to be on or after 01.7.2004. Such being the case, it remains undisputed that applicants having accepted such terms & condition of promotion, cannot be allowed to retrace their steps and challenge respondents’ action indirectly contending that recommendations made by Vth CPC should be made applicable retrospectively i.e. w.e.f. 01.1.1996. In such circumstances, we do not find any illegality, arbitrariness or discrimination, as alleged.
10. In view of discussion made hereinabove, we do not find any merit in present OA and the same is accordingly dismissed. No costs.