ORDER
M. Ramachandran, J. (Vice Chairman)
1. The three applicants had joined together to file this application and it is seen filed on 01.10.2007. The prayer is for directing the respondents (Ministry of Defence) to grant upgradation to the applicants to the level of Assistants in the pay scale of Rs. 5000-8000 w.e.f. 01.01.1996 with arrears and interest thereon as also the consequential benefits. It is seen that they had, on a previous occasion, filed OA 3084/2003. This application had been disposed of at the stage of admission. Respondents have been directed to consider the representations, which had been filed by them seeking such reliefs (Annexure A-2). The applicants have been thereupon served with a speaking order dated 17.03.2004 (Annexure A-1). Thereby, they stand informed that it is not feasible to accede to their demands. The Original Application had come to be filed in the above context.
2. The basis as well as the driving force of the application evidently is the order passed by the CAT (Madras Bench) in OA No. 27 of 1999 dated 02.03.1999. The applicants in the above case were similarly situated like the applicants and more or less the exact claim that is agitated herein stands allowed by the Tribunal. Against the judgment, Writ Petition No. 18889 of 1999 had been filed by the respondents, which too had been dismissed by the High Court on 28.01.2003. The applicants referred to a Special Leave Petition filed therefrom but asserted that the same had been dismissed, on 30.08.2007 by the Supreme Court by Annexure A-3. The issue has thus become final and it was only fair that same principles, which have been found acceptance by the Tribunal and confirmed by the High Court, should be applied to the case of the applicants as well. In addition thereto, the applicants have relied on Annexure A-5 order passed by this Tribunal in OA 1120/2004 on 01.07.2005. The Tribunal followed the judgment in OA 27 of 1999 as confirmed by the Madras High Court. It is pointed out a writ petition has been filed, of course, from the order as WPC 10885 of 2006, but the benefits admissible because of the orders of the Tribunal have been directed to be remitted, subject to the outcome of the proceedings. These strong circumstances, Mr. Bhardwaj submits, are sufficient enough for this Tribunal to accept the claims as put in, and different yardsticks ought not have been employed by the Department while treating their employees. It is submitted that the benefits, should be ordered as payable, and they have no objection in the Tribunal putting a rider that such benefits are to be refunded in case the High Court or Supreme Court ultimately finds that the benefits were inadmissible.
3. We had occasion to hear Mr. Rajiv Manglik, representing the Standing Counsel for respondents, who had come up with materials to suggest that on the earlier occasion, the Tribunal had not been led to the full details, which had relevance. He also suggested that the orders as at present actually overlooked the rules, which were to govern the situation. Reliance is also made on the circumstance that the application is highly belated and it could not have been entertainable. The applicants were not similarly situated like the persons, who were before the Madras Bench nor even the Principal Bench in OA 1120/2004 and this was also a circumstance to be duly taken note of.
4. Normally, our inclination would have been to follow the judgments cited and close the matter. But the persistence with which the matter had been addressed, correspondingly casts a duty on us to examine the contentions de novo, since an adjudicator should be anxious that a mistake or oversight committed at some point of time should not have resulted in further mistakes, to be perpetrated, at the cost of the exchequer. We may also at this point bear in mind the observations of the Hon’ble Supreme Court as appearing in Union of India and Anr. v. Major Bahadur Singh (2006 (2) Administrative Total Judgments 651) :
Circumstantial flexibility, one additional or different fact may take a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The learned Judges had also in the following paragraphs, referred to observations of Lord Denning, as hereinbelow:
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
5. In the said background, we decided to subject the factual details to a strict scrutiny; about the sustainability of the claims as also propriety of an application under Section 19 of the Administrative Tribunals Act. We may also at this point record the submissions made that although Special Leave Petition 6499 of 2004 filed from Writ Petition 18889 of 1999 of Madras High Court, had been dismissed for default by the Supreme Court, already an application for restoration has been filed. It is further submitted that on the teeth of contempt, benefits have been extended to the concerned individuals, who were before the Madras Bench and the Principal Bench, but it is under specific reservation, namely, that there will be a liability for refund in case ultimately the claims urged were found as not tenable.
6. All the three applicants have retired from service, the first applicant on 30.04.1998 and the two others also near about that date.
7. The claims have arisen in the following circumstances. By an Office Memorandum dated 05.05.1999, Government had provided for a special pay of Rs. 35/- per mensum to the Upper Division Clerk in the non-secretariat Administrative Offices. The beneficiaries were those, who were handling cases of complex nature involving deep study and competence to deal with such cases. The number of such posts were to be limited to 10% posts in the respective cadre and the posts were to be identified as carrying discernible duties of complex nature (see Annexure R-1). The special pay stood thereafter revised to Rs. 70/-. There were eight divisions under the respondents. Some of the UDCs coming under the jurisdiction of the Madras Bench, working under the respondents also were getting the benefit of special pay, restricted to 10% of the cadre very much like their counterp Articles
8. This position was available when the report of the 5th Central Pay Commission came. It was fact that the provisions for special pay, in general led to certain anomalies. For determining eligibility, in practice, a Committee was required to identify the persons. It was not the rule that the senior most UDCs were to be selected for conferment of this benefit as the arduous duties shouldered was the yardstick of eligibility. So much so when, in due course, promotions were to be made to the category of Assistants, by virtue of special pay drawn, at least some of the junior UDCs had to be fitted at a higher pay scale than their seniors. This created unrest. The issue had come to the attention of the Central Pay Commission, and as a remedial measure by Paragraph 46.17 of the report, it had been recommended as following:
In subordinate offices having no clerical grade above the level of UDCs, special pay is granted to 10% of the UDCs at the rate of Rs. 70 p.m. A demand has been made to enhance this amount and to remove the anomaly caused in fixation of pay, when a junior UDC in receipt of special pay is promoted and his pay is fixed at a higher stage than a senior. We have separately recommended, as a general policy, that special pay should not be given unless these are absolutely essential. In present case, since 10% of the UDCs are involved in complex duties, it is recommended that 10% posts of UDC in such organizations be upgraded to the level of Assistants. This will also remove the anomaly that arise in fixation of pay.
9. This recommendation was accepted by the Government of India, and published in Gazette dated 30.09.1997 vide Annexure R-2. Incorporating the above, proceedings had been issued by the Ministry of Defence whereby it had been prescribed that the appointment to the upgraded posts of Assistant were to be effected through a formal DPC to be conducted by the Engineer in Chief Branch based on All India seniority of the Upper Division Clerks. The authorized strength of UDC was assessed as 4177 posts and the President had sanctioned for upgradation of 418 posts, to the grade of Assistants by a process of restructuring, reducing an equivalent number of posts in the UDC grade. Special pay of Rs. 70/-, which was in vogue, was ordered to be abolished and discontinued.
10. It seems the above was implemented. Some of the persons, who were receiving the special pay found to their discomfort that such payment was stopped, and they continued as UDC alone. The upgrading was to be by a selection by DPC, and on principles of seniority. This order had been subjected to challenge before the Madras Bench of the Tribunal. It resulted in an order being passed on 19.03.1999. A copy of the order is not produced, but it is submitted that the impugned order had been quashed. As could be seen from the discussions in the judgment of the Madras High Court, Department with some amount of strain, has accommodated 17 persons, who were parties to the Original Application as Assistants. But we note that the Tribunal as also the High Court had expressed opinion that a fresh Departmental Promotion Committee could not have engaged in a selection, in respect of personnel, who had already been selected by a DPC and who had been extended the benefits of special pay. By virtue of the recognition already enjoyed by them, they were entitled to continue getting the privileges, which would have arisen from the recommendations of the 5th Pay Commission. In other words, respondents could not have denied the benefits, which applicants there were already enjoying.
11. This appears to be the gist of the decisions as could be gatherable from the judgment (Annexure `J’). Learned counsel for the respondents points out that this was an oversimplification of the issue and recognizing the full scenario, the directions could not have been bodily transplanted in respect of the applicants as they wished. The order whereby special pay had been granted was no more in operation. He submits that it should have been within the purview of the Government to grant a special pay in token of a special effort shouldered, but nothing prevented the Government from reviewing their position and directing that a set of personnel need not attend to duties of more complex nature from a point of time and a more judicious selection of personnel could be adopted. It would not have spelt out arbitrariness as there was no picking and choosing involved. Further, when recommendations of Central Pay Commission were being accepted, necessary spadework also was required to be attended to.
12. The grant of special pay was brewing anomalous position. They were to be rectified and 10% of the posts in the cadre by a restructuring process were being recognized as would be eligible for a promotion, to the next higher category of Assistants. The Pay Commission report was recommendatory and had been followed by order of the Government as per Annexure R-2. It was not anything confined to the respondent Department.
13. Counsel pointed out that the recommendations of the Pay Commission were subject to fulfillment of specific conditions. It was essential that changes in recruitment rules were brought in. Cadres were to be restructured and redistribution of posts also required to be attended to. In fact, the Government had accepted such proposals on 13.09.1999 only and it could not have been conceivable that the benefits could have been admissible from 01.01.1996 as had been wrongly understood by the Madras Tribunal. The Government orders obliged the Department concerned not only to accept the preconditions, but before selections were held, these amended rules were to be implemented. Selections necessarily were to take prospective effect alone. Till such time, the benefit of special pay might have continued, but nothing more was admissible to any special group. The concerned posts were to be governed by normal replacement scale until such exercise was complete.
14. It is submitted that as a matter of fact, revised rules have been applied but these aspects could not be placed before the Madras Tribunal as well as the High Court. It is claimed in Paragraph 9 of the counter reply that the recruitment rule in the posts of Assistants were amended. 418 posts were increased to the cadre and corresponding reduction were, in fact, made in the posts of UDC. It is submitted that promotion to the newly created posts were carried out as per the prescribed procedure of DPC for the posts of Assistants. The contention, therefore, is that interference by the Madras Bench, at the instance of 17 persons, and upsetting the order dated 15.04.1998 could not have consequence on the postings and promotions made in the other sectors. They were in operation even now. Counsel submits that the High Court as well had not examined such details, and the full facts have been presented before the Hon’ble Supreme Court as the continued operation of the order of the Madras Bench, were always likely to create unexpected problems. It is further pointed out that in the matter of conferment of special pay, it was not the regular departmental DPC that carried out selections and as per the revised rules, selection to the position of Assistants to the 10% category of the upgraded posts of UDC were to be done by the duly constituted DPC alone. Any other procedure would have violated the rules.
15. Counsel contends that the case of the persons governed already by the decision of the Tribunal, required to be cordoned and required in due course to be brought to the main stream after a finality to the issue is given. The judgment practically required the Department to ignore the statutory rules. The direction by the Bench in effect was overlooking the position that after the implementation of the report of the 5th Pay Commission, there was no practice of payment of special pay. In fact, what was expected of was an upgradation, of 10% of personnel working as UDC, on the basis of their seniority and after clearance by DPC for bringing on them to the posts of Assistants. The applicants before the Madras Bench were UDCs and they had no automatic right to get promotion as Assistants. That might be the case of the applicants here as well, who were always UDCs. Their only credentials were that they were getting special pay but that was vastly different from a claim where they were to be recognized as Assistants for the only reason they were getting a special pay.
16. Mr. Bhardwaj, however, submits that almost identical contentions as above raised have been placed before the Madras High Court but they have been abjectly rejected. However, we have to note that the discussions as could be seen from the judgment conspicuously do not refer to the other relevant aspects which have now been brought to limelight. When the special rules prescribe for a DPC selection of UDC, to the upgraded posts of Assistants, available to 10% officers in the Service, we cannot be party to a decision where a shortcut is permitted or piecemeal arrangements would be the outcome. It will be plainly violating the rules. We find that the applicants have not been able to establish that they have a legal claim, apart from highlighting a precedent. We have already indicated our difficulty in following the earlier orders.
17. We have also taken notice of the circumstance that the applicants were not vigilant in the matter of their alleged rights and claims and only after four years of their retirement, they had taken up the issue for the first time before the Tribunal. Orders have been passed rejecting their claims, as early as on 17.03.2004 but again they have chosen to file this application only in October, 2007. The delay is not explained. The pendency of certain cases before other courts or Tribunal may not be a reason, which could be urged for the laches per se existing. This also is a reason for us to hold that the application cannot be successfully maintained. Resultantly, the O.A. is dismissed. No costs.