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CASE NO.: Appeal (civil)  2643 of 2004

PETITIONER: Union of India & Anr

RESPONDENT: S.D. Bandhopadhyay & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. SINHA, J :                  Respondents herein at all material times were and still are working as  Draughtsmen in the Ordnance Factory belonging to Union of India.  The pay  scale of the Draughtsmen employed in the Central Public Works Department  (CPWD) were revised on the basis of the report of the Third Pay  Commission from 1.1.1973 in the following terms:

(i)     Draughtsman \026 I Rs. 425-700 (ii)    Draughtsman \026 II Rs. 330-560 (iii)   Draughtsman \026 III Rs. 260-430

       They were not satisfied therewith as a result whereof dispute raised by  them which was referred to a Board of Arbitration.  By an award dated 20th  June, 1980, the pay scales of Draughtsmen were revised as under:

(i)     Draughtsman \026 I Rs. 550-750 (ii)    Draughtsman \026 II Rs. 425-700 (iii)   Draughtsman \026 III Rs. 330-560

       It was directed in the said award that the scale of pay would come into  force with effect from 1.1.1973 but for computation of arrears the date of  reckoning shall be  28/29th July, 1978.  The pay scales of Draughtsmen of  CPWD were revised.  The Draughtsmen employed in some departments  other than CPWD claimed revision of their pay scales by raising a similar  demand in the light of the revision of pay scales in CPWD.  Acceding   thereto, an office memorandum dated 13.3.1984 was issued stating:

"Sub: Revision of Pay Scales of Draughtsman  Grade \026 III, II & I in all Govt. of India Offices on  the basis of Award of Board of Arbitration in the  case of Central Public Works Department.

       The undersigned is directed to state that  Committee of the National Council (JCM) was set  up to consider the request of the staff side that the  following revised scales of pay allowed to the  D/Man Grade I, II & III working in C.P.W.D. on  the basis of the Award of Board of Arbitration may  be extended to D/Man Grade III, II & I in all Govt.  of India Officers:                                         Original Scale     Revised Scale on                                                                 the basis of award Draughtsman Gr. I Rs. 425-700 Rs. 550-750 Draughtsman Gr. II

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Rs. 330-560 Rs. 425-700 Draughtsman Gr. III Rs. 260-430 Rs. 330-560

2.      The President is now pleased to decide that  the Scales of Pay of D/man Gr. III, II, I in office/  Deptt. Of the Govt. of India, other than the  C.P.W.D. may be revised as above provided, their  recruitment qualification are similar to these  prescribed in the case of D/Man in C.P.W.D.   Those who do not fulfil the above recruitment  qualification will continue in the pre-revised  scales.  The benefit of this revision of scales of pay  would be given notionally with effect from  13.5.1982, the actual benefit being allowed w.e.f.  1.11.1983."

       A demand was also raised by the Draughtsmen working in the  Ordnance Factory herein but there were, however, no three grade structure  for the said cadre as was prevalent in CPWD.  Prior to revision of the scale  of pay in terms of the recommendations of the Third Pay Commission, the  scale of pay of Draughtsmen in Ordnance Factory was Rs. 330-560/-.  In  terms of recommendations of the Third Pay Commission, 50% posts of  Senior Draughtsmen were put in the scale of pay of Rs. 425-700 and the  remaining 50% of Senior Draughtsmen in the lower pay scale of Rs. 330- 560/-.  It was, however, stated that all the posts of senior Draughtsmen were  merged and redesignated as Chargeman Grade II (Tech) with effect from  1981.   

       Appellants herein contend that the Draughtsmen in Ordnance  Factories were treated equivalent to Draughtsmen Grade III of CPWD both  in terms of recruitment qualification and job content and, therefore, the  office memorandum dated 13.3.1984 was not relevant for their purpose.

       A writ petition was filed by some Draughtsmen employed in  Ordnance Factories located in the State of West Bengal before the High  Court of Calcutta which was disposed of by an order dated 8th October, 1985  directing the Department to implement OM dated 13.3.1984.   

       The matter came up for consideration before the Central  Administrative Tribunal, Jabalpur wherein the Draughtsmen in Ordnance  Factories who were in the pre-revised scale of 330-560 claimed revision and  upgradation of the scale of pay.  The Tribunal by a judgment dated  21.4.1987 opined that Respondents were at least entitled to the pay scale of  Draughtsmen Grade II opining:

"From the minutes No. R.N. No. 167/Tcn/BS,  dated 18.09.1986 of the O.F. Board’s decision feed  by the respondents it is not clear whether the O.F.  Board have applied their mind to the question of  revising and revising No. 4 of 1956 and creating a  three tier set up of D’men in O.F. Organisation in  the light of Government of India’s order of  13.03.1984.  The question is of not merely  applying pay scales to the existing set up but  reviewing the existing set up.  The sub-committee  in their report of 24.01.1986 have stated that the  post of Tracer should be abolished, aged if they are  abolished their replacement would be by D’men  Grade III, it would, however, be invidious to place  these tracers in Grade III with lesser qualifications  with the petitioners and applicants with superior  qualifications as have been quoted by sub-

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committee and the board with Grade III and not  with Grade II.  The equation done by the O.F.  Board putting the petitioners and applicants inspite  of their higher qualifications with Grade III and  not Grade II of the draughtsmen of CPWD and  consequently giving them the lower pay scale of  Rs. 330-560 is itself wrong and erroneous and  cannot be accepted by this Tribunal.  Also there is  no reason to suppose as to why in the light of  general policy laid down by the Government of  India vide their order of 13.3.1984 the senior  draughtsman of the present set up should not be  equated with D’men Grade I and redesignated in  the pay scale of Rs. 550-750 instead of treating  them as Chargeman Grade II."

       It was further opined:

       "\005This is a matter which needs review by  the O.F. Board.  In any case the decision of the  O.F. Board taken in their meeting of 09.09.1986  and the equation of the petitioners and applicants  with D’men Grade III of CPWD as recommended  in sub-committee’s report of 21.01.1986 and  accepted by the O.F. Board is hereby quashed."

       It was directed: "The OF Board decision is neither a proper  implementation of Calcutta High Court’s judgment  of 08.10.1985 in C.O. No. 502 of 1985 read with  their subsequent order of 14.07.1986 and nor a  proper implementation of the Govt. of India’s  order 13.3.1984 (document No. 2).  As we have  held in the proceeding paragraph to petitioners and  applicants have similar qualifications to those of  Category II D’man of CPWD at least subject to  some individual exceptions, which may be  identified by the Assessor’s Committee, which has  been suggested by us to go into the question.  The  argument advanced on behalf of non-applicants/  respondents that persons with higher qualifications  can be taken on lower posts cannot be entirely  accepted in the context of this case where the  Govt. of India’s order stipulate linking of certain  pay scales with certain qualifications are generally  entitled to be placed in the category of D’men  Grade II in the scale of Rs. 425-700 (revised by  Govt. of India consequent to the Award but pre- revised with reference to Fourth Pay Commission)  and consequently to the corresponding  replacement sale on the basis of Fourth Pay  Commission’s recommendations as accepted by  Govt.  The exceptions may be identified with a  period of three months from the date of this order."

       From the said judgment, however, it does not appear that the Tribunal  had any occasion to notice the rules framed by Appellant in the year 1989.   Indisputably, the criteria laid down in the OM of 1984 was substantially  radiated in another OM wherein similar benefits were sought to be conferred  upon the Draughtsmen, i.e, OM dated 19.10.1994 in terms whereof  extension of the benefit of CPWD Arbitration Award was directed to be  given in regard to revision /upgradation of pay scale in different grades/ post  or any time bound promotion granted thereafter in other departments.  

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       It was, however, stated therein that once the revision of pay scale has  been effected, future promotions will be made in accordance with the normal  eligibility criteria.  The said OM also was given retrospective effect and  retroactive operation with effect from 1.11.1983.

       The judgment of the tribunal came to be challenged by the Union of  India in Union of India v. Debashis Kar and Others [1995 Supp (3) SCC  528].  Therein attention of this Court was not only drawn to the  aforementioned OM of 1984 but also to the OM of 1994.

       This Court also noticed the benefits granted in terms of the OM of  1994 observing:

"In respect of draughtsmen who fulfilled the  requirement relating to the period of service  mentioned in the said Office Memorandum dated  19-10-1994 on the relevant date the question  whether their recruitment qualifications were  similar to those in the case of draughtsmen in  CPWD would not arise and they would be entitled  to the revised pay scales as granted to the  draughtsmen in CPWD irrespective of their  recruitment qualifications. But in respect of those  draughtsmen who did not fulfil the requirement  relating to the period of service prescribed in para  2 of the Office Memorandum dated 19-10-1994  the question whether their recruitment  qualifications are similar to those prescribed for  draughtsmen in CPWD is required to be  considered for the purpose of deciding whether  they are entitled to the benefit of the revision of  pay scales as per the office memorandum dated 13- 3-1984."

       Attention of the Court was also drawn to the Indian Ordnance  Factories Group C Supervisory and Non-Gazetted Cadre (Recruitment and  Conditions of Service) Rules, 1989 by the learned counsel appearing on  behalf of Union of India while contending that the award of the Board of  Arbitration was not applicable in the case of Draughtsmen.  The said  contention, however, was negatived stating:

"The said Rules are not retrospective in operation.  Here we are concerned with the revision of pay  scales with effect from 13-5-1982 on the basis of  the Office Memorandum dated 13-3-1984 and, at  that time, the said rules were not operative.  Therefore, on the basis of the aforesaid Rules  Draughtsmen in Ordnance Factories cannot be  denied the benefit of revision of pay scales on the  basis of the Office Memorandum dated 13-3-1984.  The appeals and the SLPs as well as review  petitions relating to draughtsmen in Ordnance  Factories are, therefore, liable to be dismissed."

       The appeal filed by Union of India was, thus, dismissed.

       However on 15.9.1995, a circular letter was issued by the Ministry of  Defence wherein upon referring to both the aforementioned OMs it was  stated in paragraphs 3 and 9:

"3.     Incumbents in position before 13.5.82 may  be placed in the revised scale of pay as and when  they complete/completed the length of service in  the respective grades and subject to condition  indicated below:

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(1)     The individuals will be granted the revised  scale from the date on which they complete the  required length of service as follows:

(a) Minimum period of service  for placement: from the post carrying scale  of Rs. 975-1540 to Rs. 1200- 2040 (pre-revised Rs. 260- 430 to Rs. 350-560) 7 years (b) Minimum period of service  for placement: from the post carrying scale  of Rs. 1200-2040 to Rs.  1400-2300 (pre-revised Rs.  330-560 to Rs. 425-700) 5 years (c) Minimum period of service  for placement: from the post carrying scale  of Rs. 1400-2300 to Rs.  1600-2660 (pre-revised Rs.  425-700 to Rs. 550-750) 4 years

(2)     Once the Draughtsmen are placed in the  regular scales, further promotions would be made  against available vacancies in higher grade and in  accordance with the normal eligibility criteria laid  down in the recruitment rules.

(3)     The benefit of this revision of scales of pay  would be given with effect from 13.5.82 notionally  and actually from 1.11.83, in respect of  Draughtsmen who fulfilled the requirement  relating to the period of service mentioned in  clause (1) above before 13.5.82.  In respect of the  Draughtsmen who were in position as on 13.5.82  but did not fulfill the required length of service on  that date, they will be entitled to the revised scales  as and when they complete requisite length of  service.

(4)     The individuals pay scales had not been  revised earlier on the basis of Ministry of Finance  O.M. No. F(59)/E.III/82 dated 13.3.84 referred to  in para 4 of this letter or through any court orders.

9.      These orders shall not also apply to DGEME  and OFB for which separate orders will be issued."

       Respondents thereafter filed revisional application before the Central  Administrative Tribunal inter alia questioning the said OMs and contending  that they were entitled to the grant of pay scale of Senior Draughtsmen (Rs.  550-750) in terms of OM dated 19.10.1994.  The said original application  was allowed directing:

"We have carefully considered the facts of the case  and perused the material placed before us.  In our  opinion the Ministry of Finance OM dated

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19.10.1994 is a general order conveying the  President’s pleasure to allow Draughtsmen Grade  I, II and III in the offices/ departments of  Government of India other than CPWD who fulfil  the requisite number of years of service.

\005In this view of the matter, we are of the view  that Draughtsman Grade II in the scale of Rs. 425- 700(pre-revised) should also get the scale of pay  admissible to Draughtsman Grade \026 I after  completion of requisite length of service as per  Ministry of Finance OM dated 19.10.94.  This  upgradation of pay in the light of Ministry of  Finance OM dated 19.10.94 is restricted to arrears  of pay and allowances and is not to be taken into  account for re-fixation of any seniority.  With the  above observation this OA is allowed."

       Writ petitions were filed by both the parties before the High Court of  Madhya Pradesh, Jabalpur.  While dismissing the writ petition filed by  Appellant, the High Court directed:

"After bestowing our anxious consideration on the  reasons assigned by the Tribunal, we have no  scintilla of doubt to hold that the findings rendered  by it are in consonance with the law laid down in  the case of Debasish Kar (supra).  However,  looking to the nature and peculiar facts and  circumstances of the case, it will be justifiable to  extend the said relief from the date of filing of the  Original Application before the Tribunal."

                Insofar as the writ petition filed by the employees, it was directed:

"The submission of the learned counsel for the  petitioner is that the Tribunal has erred in law by  not extending the benefit of seniority and  promotion to the petitioners.

       It is well settled in law that the matter of  promotion is a managerial function and it is not the  function of the court to consider the merit of the  employees itself.  The proper course for it is to ask  the employer to consider the case for promotion of  particular employees.  In the present case, the  petitioners have not arrayed the employees over  whom they are claiming seniority."

       Before adverting to the contentions raised by the parties herein, we  may notice that Respondents had filed special leave petition before this  Court being SLP (C ) No. 14431 of 2003 but the same has been dismissed by  this Court on 18.8.2003 directing:

"In view of the fact that the petitioners are  permitted to make the representation, we are not  inclined to interfere.  The special leave petition is  dismissed.

       In case the representation is filed, we hope  and trust that the same would be considered  expeditiously."

       The short question which arises for consideration before us is as to  whether Respondents having been given the benefits in terms of the OM of

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1984 could have been granted further benefits in terms of the OM of 1994.

       It is not in dispute that the system of having three grades of  draughtsmen in Ordnance Factories was not in vogue.  Indisputably, OM of  1984 was based on educational qualification.  It is also true that by reason of  OM of 1994, a shift was made from the educational qualification to length of  service.  However, indisputably the question as noticed herienbefore was  fully considered by this Court in Debashis Kar (supra).

       Respondents obtained the benefits by reason of the judgment of the  Tribunal.  This Court as noticed hereinbefore in Debashis Kar (supra)  refused to consider the rules framed by the Union of India in 1989 on the  premise that the rules being prospective in nature the same did not take into  consideration the scale of pay to which Respondents would be entitled prior  thereto.  The Central Administrative Tribunal no doubt used the expression  ’at least’ while directing revision of scale of pay to Respondents at par with  Grade II Draughtsmen of CPWD but merely directed the Ordnance Factory  Board to review ’set up of Draughtsmen’ in the said organisation in the light  of the said memorandums.  But, what had not been noticed therein was that  prior thereto rules had been framed in 1989.  Once statutory rules came into  force, the terms and conditions of service laid down thereby shall govern the  field.  The decision of this Court in Debashis Kar. (supra) again was  considered in Nain Singh Bhakuni and Others v. Union of India and Another  [(1998) 3 SCC 348] wherein it was stated:

"11. In this connection we may profitably refer  to the decision of this Court in Debashis Kar to  which one of us, S. Saghir Ahmad, J., was a party.  In that case the Tribunal had granted parity of  treatment to Draftsmen working in ordnance  factories as well as army base workshops in EME  so far as rise in their pay scales on the same lines  as the hike given to their counterparts in CPWD by  the Government Memorandum dated 13-3-1984  was concerned. It was observed that the pay scales  fixed on the basis of First, Second and Third  Central Pay Commissions showed that Tracers in  ordnance factories had all along been treated  equivalent to Tracer/Draftsman Grade II in CPWD  and Draftsman in ordnance factories had all along  been treated as equivalent to Assistant  Draftsman/Draftsman Grade II in CPWD and  accordingly they were entitled to the benefit of  OM dated 13-3-1984. The said decision, therefore,  upheld the action of the authorities based on the  aforesaid OM. It is this OM which has been given  effect to by the Tribunal in favour of the present  appellants. Under these circumstances, in our  view, no more relief on the facts of this case, as  discussed by us, could be granted to the appellants  than what is granted by the Tribunal to them."

       In State of Haryana and Another v. Haryana Civil Secretariat Personal  Staff Association [(2002) 6 SCC 72], this Court had the occasion to consider  the question with regard to the job evaluation opining that the same poses a  complex question.  It was observed:

"\005The courts should approach such matters with  restraint and interfere only when they are satisfied  that the decision of the Government is patently  irrational, unjust and prejudicial to a section of  employees and the Government while taking the  decision has ignored factors which are material  and relevant for a decision in the matter. Even in a

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case where the court holds the order passed by the  Government to be unsustainable then ordinarily a  direction should be given to the State Government  or the authority taking the decision to reconsider  the matter and pass a proper order. The court  should avoid giving a declaration granting a  particular scale of pay and compelling the  Government to implement the same\005"

       Submission of Mr. Ravindra Shrivastava, learned senior counsel  appearing on behalf of Respondents, that in view of the changes in criteria  by reason of the OM of 1994, the same should be applied in their case, in  our opinion, is misplaced.    The contentions of Respondents had been  considered by the Tribunal.  Evidently, they could not have been given the  entire benefit of the OM of 1984.  It was in that situation and in particular in  absence of a clear policy decision adopted by the Union of India a direction  was issued by the Central Administrative Tribunal that they be given the pay  scale of Draughtsmen Grade II.  It was not adhoc in nature.  The  observations of the Tribunal as quoted supra cannot be taken to mean that  the same was subjected to any other decision.  The OM of 1994 does not  take into effect the question of the promotion.  Whereas the posts of Senior  Draughtsmen were to be filled up by way of promotion from the incumbents  of Draughtsmen Grade II, so far as the Draughtsmen of the Ordnance  Factory Board are concerned they were to be promoted to the Draughtsmen  Grade II.  The question must be determined on the basis of the position as  was obtaining prior to 1989.  As Respondents had already derived benefit in  terms of OM of 1984, in our opinion, it is difficult to hold that they became  entitled to the further benefit that is a higher scale of pay which was payable  to the Senior Draughtsmen of CPWD in terms of the OM of 1994.

       In view of our findings aforementioned, the directions contained in  paragraphs 3 and 9 of the circular dated 15.9.94 cannot be said to be vitiated  in law.  Whether it is issued by the Ministry of Defence or Ministry of  Finance would pale into insignificancy, once it is held that the interpretation  of the two OMs had correctly been made.  It is furthermore difficult to  accept the submission of the learned counsel that the OM of 1994 is not  given effect to in its entirety, the same will result in discrimination of  Respondents inasmuch as they have already got the benefits under the OM  of 1994.

       For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  This appeal is allowed. No costs.