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PETITIONER: T. BALAKRISHNAN

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT:       11/04/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  JT 1996 (4)   348        1996 SCALE  (3)676

ACT:

HEADNOTE:

JUDGMENT:                        J U D M E N T G.N. Ray, J.      Leave granted.      Heard learned  counsel for  the parties. This appeal is directed against  that part  of the  order  dated  16.2.1994 passed by  the Central Administrative Tribunal, Madras Bench in O.A.  No. 290  of 1994  by   which the office order dated 16.2 1994 issued by the Government of India reducing the pay of the appellant on refixation of the pay has been upheld by the Tribunal. The direction for recovery of over payment has however been cancelled by the Tribunal.      The appellant  was  appointed  as  Junior  Engineer  on 7.1.1963 with effect from 1.1.1973 and his pay was fixed at  Rs.425-700 in  the cadre of Junior Engineer as per the recommendation  of 3rd pay Commission. The appellant was appointed as  Junior Engineer, Selection Grade, in the scale of Rs.  650-900 with  effect from 1.8.1987 under the Central Public  works   Department  (Subordinate   Offices)   Junior Engineers Grade  I  and  Grade  II  (Civil  and  Electrical) Recruitment Rules,  1987 (hereinafter  referred  to  as  the Rules), the appellant was promoted as Junior Engineer (Grade I)   came into  effect on  26.5.1967 promotion opportunities were given to the Junior Engineers and it was indicated that 75% of  the total  number of  posts in  the cadre  of Junior Engineers would  be Junior  Engineers (Grade  I) in  the pay scale of Rs. 1649-2900. It may be stated the Pre-revised Pay of Junior  Engineer (Selection  Grade)  coincided  with  the revised pay for Junior Engineer (Grade I), The appellant was further promoted  as Assistant  Engineer  in  the  scale  of Rs.2000-3500 with  effect from 13.9.1987.       A  question was  raised as to whether the promotion of persons to Junior Engineer (Grade I) involved  assumption of higher responsibilities  and   whether  the  pay  of  Junior Engineer (Grade  1) should  be fixed  under FR  22-C [now FR 22(1) (A) (1). The Central Government issued a memorandum on 18.5.1989 stating  that  the  Promotion  Committee  involved

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assumption of  higher responsibilities  and as  such the pay should   be fixed under FR 22-C. Accordingly an office order was issued  that with  effect from  1.1.1966, the pay of the appellant in  the post of Junior Engineer (Grade I) would be fixed under FR 22-C.      The C.P.W.D  Junior Engineers  Association entered into an agreement  with the  Government in  which  the  statutory right to  get pay  fixed for Junior Engineer (Grade I) under FR 22-C  was waived. It was agreed inter alia (a) that there would  be  two  scale  for  the  Junior  Engineers/Sectional officers (Horticulture) in the CPWD namely is, 1400-2300 and 1640-2900 and  the  incumbents would be designated as Junior Engineers/Sectional Officers  (Horticulture)  and  initially the scale  would be  1400-2300 and  on  completion  of  five years’   service    in   the   said   grade.   such   Junior Engineer/Sectional Officer   would be placed in the scale of 1640-2906 subject  to the  rejection of  unfit. Such  higher grade would not be treated as promotional grade but the same would be  non-functional  and the benefit of FR 22-(1)(A)(1) (Old FR  22-C) would  not  be  admissible  in  higher  grade because  theme   would  be   no  change   in   outside   and responsibilities: (b)  Junior  Engineers/Sectional  Officers (Horticulture) was  would not  be promoted  to the  oust  of Assistant Engineer/Assistant Directors (Horticulture) in the scale of  2000-3500 due  to non-availability of vacancies in that  grade,,  would  be  allowed  the  scale  of  Assistant Engineer/Assistant Director (Horticulture) i.e. Rs.2000-3500 on Personal  basic after  completion of  15 years  of  total service as Junior Engineer/Sectional officer (Horticulture), till   the normal turn for functional promotion as Assistant Engineers/Assistant Director (Horticulture) would come. Such personal promotion  would be  given on the basis of fitness. (c). Junior  Engineers/Sectional Officers (Horticulture) who would  be   given  personal   scale  of  Rs.2000-8500  after completion of  15 years’ service would get the benefit of FR 22 .(i)(a)(i). (d) On getting personal promotion, the junior Engineer/Sectional Officer  (Horticulture) would continue to perform  the   same   duties   and   functions   as   Junior Engineer/Sectional Officer  (Horticulture). (e) Agreement at (a) above  would be  given effect  from 1.1.1988  and at (b) above would take effect from 1.1.1991.      The learned  counsel for  the appellant  has  contended that on  20.3.1991 when  the aforesaid agreement was entered into between  the C.P.W.D., Junior Engineers Association and the Government,  The appellant  had already been promoted to the cadre of assistant Engineer. The appellant was therefore not  a  member  of  Junior  Engineers  Association  and  The aforesaid  agreement  did  not  concern  him.  It  has  been submitted that the said agreement was binding on such person and was  Junior Engineer  on 1.1.1988 and who also continued in that  cadre on 20.3.1991. So, on a total misconception of The scope  and ambit  of the  said agreement,  which was not applicable to the appellant, the respondents reduced the day of the  said agreement  and directed for recovery of alleged over payment  made to  the appellant   on  account of giving benefit of  FR 22-C  in the  grade of Junior Engineer (grade I). The  Tribunal failed  to  appreciate  the  case  of  the appellant and gave only a partial relief to the appellant by quashing The  direction for recovery of alleged over payment but maintaining  the illegal  order of refixation of the pay of the appellant as Junior Engineer (Grade I).      It will  be appropriate  at this  stage to indicate the case of  the respondents  before the  Central Administrative Tribunal. It  was contended by the respondents that with the introduction of  the scales of pay recommended by the Fourth

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Pay Commission,  the Junior  Engineers were given pay scales of Rs.1400-2300  and Rs.1640-2900 by treating the incumbents of higher  grade as holding promotional grade. The  C.P.W.D. Junior Engineers Association, however, demanded that all the posts of  Junior Engineers  should be  placed in  the higher grade   Rs.1640-2900. After  holding negotiation  which  the Association it  was decided  by the  Central Government that 75% of  The posts  of Junior  Engineers would  be in  higher grade with  effect from 1.1.1986 and the revised recruitment rules dated  26.5.1987 were issued. Instructions were issued to implement  such revised  recruitment  rules.  The  Junior Engineers  however   were  not   satisfied  with   the  said concession of  giving higher  grade to  75% of the posts and they resorted  to indefinite  strike.   Thereafter,  further negotiations  were   held  with   the  Junior      Engineers Association and  it was  decided that the demand for uniform pay scale  would be  referred to a group of Ministers and as per Associations demand it was decided that no further order of promotion as Junior Engineer (grade I) would be issued. A copy of  the instructions  issued in  that regard  was  also filed along with counter affidavit of the respondents before the Tribunal.  The Group  of Ministers considered the demand of  the  Junior  Engineers  ventilated  through  the  Junior Engineers’ Association  and on  the oasis  of the  agreement reached, the  order dated  22.3.1991 was  issued suppressing all earlier instructions and directing for implementation of the   agreement.   It   was   further   averred   that   the Superintendent Engineer, Tivandrum Circle, had issued orders of promotions on the basis of earlier instruction and pay of such promotee  was fixed  as per  FR 22-C.  Such  order  and fixation was  made before issuance of subsequent instruction to Keep  the promotion  as  Junior  Engineer  (Grade  I)  in advance. The   question of  pay  fixation  on  promotion  to Junior Engineer (Grade I) was under consideration and a view was taken that as no additional responsibilities or duty had been assigned  on being  appointed as Junior Engineer (Grade I), the pay of such Engineer could not be fixed under FR 22- C. Accordingly, Sectional Engineer, Trivandrum Circle issued orders on  2.1.1989 fixing  the pay  of Junior  Engineers on promotion of  Grade I  under  FR 22-C. Against such decision various representations  were received from Junior Engineers and Superintendent Engineer, Trivandrum Circle, was directed to keep  the said  order dated  2.1.1989 at  abeyance  until further  instructions   were  issued.  The  affected  Junior Engineers  filed   application  before  Ernaculam  Bench  of Central Administrative  Tribunal and  obtained order of stay of recovery  of over  payment. The  question of Pay fixation was  examined  with  consultation  with  the  Department  of Personnel  and   Ministry  of   Finance  and  as  per  their instructions it  was  decided  to  fix  the  pay  of  Junior Engineer (Grade  I) under  FR 22-C.  The Ernaculam Bench, in view of  such decision,  closed O.A.  No.33  of  1989  filed before is by the affected Junior Engineers.      It may  be noted here that the Tribunal in the impugned order has  specifically held  that when  the  appellant  was promoted to the Selection Grade of Rs. 550-900 (per revised) on 1.8.1992,  his pay was fixed only under FR 22 (a) (ii)and with the implementation of the revised pay scale with effect from 1.1.1986, he was placed in the equivalent scale. Hence, question of  refixing the scale of the appellant at Rs.1640- 2900 under  FR 22-C  did not  arise. The  Tribunal has  also observed that  neither in the pleadings nor during argument, the appellant  had placed  any material to show that when he was working as Junior Engineer  in the Selection Grade or as Junior Engineer (Grade I) from 1.1.1986 to 18.9.1987, he was

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given any  higher duty or responsibility which would entitle him for day fixation under FR 22C.      After giving  our careful consideration to the facts of the case,  it appears  to us that although on 20.3.1991 when the agreement was entered into between the Junior Engineers’ Association and  the Central  Government  on  the  basis  of recommendations by the group of Ministers, the appellant was promoted to the post of Assistant Engineer. but the question of  promotion   as  Junior   Engineer  (Grade   I)  and  the applicability of  FR 22-C  at the  relevant  time  when  the appellant was  given scale  of Junior Engineer (Grade I) was pending consideration  and such  consideration attained  the finality in  terms of  the said  agreement. In  our view, on these facts,  the Tribunal was Justified in holding that the agreement relating  to the  period when  the  appellant  was Junior Engineer  and a  member of  the said  association was binding on the appellant. That apart. the Tribunal has, on a question of  fact, has  clearly held  that the appellant had failed to produce any material to show that he had discharge any additional  duty or  responsibility  during  the  entire period when  he was  given  the  scale  of  Junior  Engineer (Selection Grade) and Junior Engineer (Grade I) Accordingly, there was  no justification  to claim benefit under FR 22-C. If such  benefit has been given to any other Junior Engineer erroneously and on such account.  The appellant cannot claim such benefit as of right.      In the  aforesaid facts,  we do  not find any reason to interfere with  the impugned  order.  The appeal, therefore, fails and is dismissed without any order as to costs.