In the High Court of Judicature at Madras Dated:-30-04-2008 Coram: The Honourable Mr.Justice P.K.MISRA and The Honourable Mr.Justice M.SATHYANARAYANAN Writ Petition No.12385 OF 2004 1. All India Association of Customs Central Excise & Narcotics, Electronic Maintenance Engineers, having its Head Quarters at Customs Preventive Unit, Central Excise Complex, C.R. Building, Bibikulam, Madurai - 625 002. Rep. By its Secretary General, Mr.M.Paramasivam. 2. C.Balakrishnan, S/o Chelliah, Technical Assistant, Office of Commissionarate, Central Excise & Customs, Madurai. .. Petitioners Versus 1. Union of India, rep. by the Under Secretary to Government of India, Ministry of Finance Department of Revenue, New Delhi. 2. The Secretary, Ministry of Finance, Department of Revenue, New Delhi. 3. The Chairman, Central Board of Excise & Customs,New Delhi.l 4. The Commissioner,Central Excise & Customs, No.1, Williams Road, Trichy. 5. The Registrar,Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai-104. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus to call for the records in O.A.No.542 of 2003 dated 7.11.2003 on the file of the 5th Respondent, quash the same as illegal and to direct the Respondents 1 to 4 herein to revise the pay scale of the petitioners in the cadre of Diploma Engineers of Radio Technicians in the scale of Rs.5,000-8,000. Technical Assistants in the scale of Rs.5,500- 9,000 and Senior Technical Assistants in scale of Rs.6,500-10,500 with effect from 1.1.1996 as per the Vth Pay Commission Recommendations. For Petitioner .. Mr.Kannan For Respondents .. Mr.Santhakumar ******* O R D E R M.SATHYANARAYANAN, J The Petitioner association has prayed for issuance of writ of Certiorarified Mandamus to quash the order dated 7.11.2003 made in O.A.No.542 of 2003 passed by the Central Administrative Tribunal (hereinafter referred to as 'the Tribunal') and for a direction to the Respondents 1 to 4 to revise the pay scale of the petitioners in the cadre of Diploma Engineers of Radio Technicians in the scale of Rs.5,000-8,000, Technical Assistants in the scale of Rs.5,500-9,000 and Senior Technical Assistants in the scale of Rs.6,500-10,500 with effect from 1.1.1996 in terms of the Vth Pay Commission Recommendations. 2. The facts which are necessary for the disposal of this writ petition are as follows:- The writ petitioner association is representing the members who belong to the cadre of Radio Technicians, Technical Assistants and Senior Technical Assistants. The Vth Pay Commission after taking into consideration the anomalies in the pay scales of the employees among Engineering cadre, finally decided to improve the initial recruitment pay scale of Diploma Engineers in the Government and recommended the following pay structure for Engineering Subordinate Cadres vide Serial No.IX part 'B' First Schedule para 50.23 and 50.24. ------------------------------------------------------------ Existing pay scale Proposed pre Revised Scale revised scale ------------------------------------------------------------ Diploma 1400-2300 1600-2660 5000-150-8000 Engineering 1400-2600 1640-2900 5500-175-9000 ------------------------------------------------------------ https://hcservices.ecourts.gov.in/hcservices/ 3. It is the grievance of the petitioner association that the pay of the Diploma Engineers in the scale of Rs.1,400-2,300 has been revised to Rs.5,000-8,000 by the first Respondent. However, the same treatment has not been given to the Radio Technicians even though the Vth Pay Commission recommended and revised the scale of Rs.1,400- 2,300 to Rs.5,000-8,000 uniformly wherever applicable based on identical scales. The petitioner association made a representation dated 14.10.1997 to the first Respondent and requested the Respondents to upgrade the scale of maintenance cadre. Since no response was forthcoming, the petitioner association had filed Original Application in O.A.No.79 of 1998 before the Tribunal to direct the Respondents to revise the pay scales as per the Vth Pay Commission recommendations. The Tribunal had passed the following order on 8.8.2000:- 1."The respondents are directed to consider the representation dated 14.10.1997 and dispose of the same by speaking order and inform the applicants about the stand of the respondents within a period of three months from the date of receipt of a copy of this order. 2. If the applicants are still aggrieved, they are at liberty to approach this Tribunal questioning the stand taken by the respondents. 3. The Original Application is disposed of accordingly with no order as to costs". 4. The first Respondent after the receipt of the above said order passed by the Tribunal, has rejected the representation dated 14.10.1997 submitted by the petitioner association vide order dated 7.11.2000. The rejection was mainly on the ground that the qualification prescribed for the posts of Technical Assistant of Maintenance Stream, Supervisor of Operational Stream and Cipher operator Grade I of Cipher Stream are almost similar and minimum qualifications prescribed for Senior Technical Assistant in Maintenance Stream is Diploma with three years experience which is similar to those of Communication Assistant in operational Stream wherein the minimum qualification is Ist Class Certificate plus 10 years' experience. 5. The petitioner association aggrieved by the order dated 7.11.2000 passed by the first Respondent had moved the Tribunal by filing an Original Application in O.A.No.1244 of 2001. The Tribunal after hearing both parties, had allowed the said Original Application vide order dated 30.8.2002. The Tribunal had taken note of the fact that the Principal Bench of the Central Administrative Tribunal had passed orders in O.A.Nos. 1003, 1004 and 1005 of 2000 batch and granted similar relief and since the petitioner association also stands on the same footing, the principle enunciated in the said Judgment must be applied. The Tribunal had also taken note of the https://hcservices.ecourts.gov.in/hcservices/ fact that so far as the petitioner association is concerned, they are similarly placed with that of the applicants in O.A.No.1003 of 2000 etc., batch before the Principal Bench and therefore directed the second Respondent herein to reconsider the case of the petitioner taking into consideration the Judgment of the Principal Bench of the Central Administrative Tribunal in O.A.No.1003 of 2000 etc., batch and pass revised orders within a period of two months from 13.8.2002. By virtue of the above said order, the order dated 7.11.2000 passed by the first Respondent was set aside. 6. The first Respondent in compliance of the order dated 30.8.2002 made in O.A.No.1244 of 2001, has passed an order dated 11.10.2002, once again rejecting the request made by the petitioner association. The rejection was on the ground that the Radio Technician working in the Maintenance Stream in the Telecommunication Wing in the Department of Revenue are Non-Diploma Holders and hence their demand cannot be considered for grant of higher pay scale from 1.1.1996. The second Respondent has further stated that the anomaly in the pay scale in different grades in three streams of Telecommunication Wing under the Department of Revenue, CBEC had arising under the erroneous impression that the prescribed minimum qualification for appointment to the post of Radio Operator in the operation Stream included the Diploma in Radio Technology. After consultation with the Department of Expenditure, a decision has been taken to delete the entries from Serial No.41-45 mentioned under the heading "Telecommunication Wing of Department of Revenue" vide communication dated 30.4.2000. Therefore, the higher pay scales granted to Radio Operator, operation Stream, Supervisor, operation Stream, Cipher Operator, Communication Assistant (operation Stream and Cipher Stream) has been revised vide letter No.F.No.A- 26017/11/98-Ad.II(A) dated 9.10.2002. The second Respondent citing the above reasons, had rejected the request of the petitioner association on the ground that there is no merit. 7. The petitioner association after disposal of O.A.No.1244 of 2001 had filed a Miscellaneous Application in M.A.No.43 of 2003 and the Tribunal has passed an order dated 10.01.2003. The Tribunal has held that the post of Radio Operator in the operation Stream does not actually require Diploma in Radio Technology since as per the Recruitment Rules, the minimum educational qualification is only Matriculation and the II Class Certificate in the Wireless proficiency. The qualification prescribed for the corresponding post of Radio Technician (Non-Diploma Holder) in the Maintenance Stream are also identical. The Tribunal further held the Ministry of Finance on reconsideration of the recommendations of the Vth Pay Commission, had found that the Pay Commission had wrongly recommended the higher pay scales since the educational qualification for the post of Radio Technician (Non-Diploma Holder) on the Maintenance Stream is also Matriculation plus II Class Certificate in Wireless proficiency and hence they are not entitled to get higher pay scale. https://hcservices.ecourts.gov.in/hcservices/ The Tribunal thus concurred with the view taken by the second Respondent. However, it granted liberty to the petitioner to approach the Tribunal for seeking appropriate relief if they still feel aggrieved. 8. The petitioner association aggrieved by the order dated 11.10.2002 passed by the first Respondent had again filed an application in O.A.No.543 of 2003 before the Tribunal praying for the quashing of the order dated 11.10.2002 and direct the respondents to revise the pay scale of applicants as per the recommendations of the Vth Pay Commission with effect from 1.1.1996. The Tribunal dismissed the said application vide order dated 7.11.2003 primarily on the ground that the recommendations of the Vth Pay Commission have to be considered by the Government of India and reasons have been given as to why some of the recommendations have not been accepted. The Tribunal further held that the reasoning and decision of the Respondents based on the relevant facts including the Recruitment Rules, the eligibility conditions laid down in the Rules for particular post in question and the same cannot be held to be either arbitrary or unreasonable or illegal to justify any interference in the matter. The petitioner association aggrieved by the order dated 7.11.2003, has filed the present writ petition. 9. Mr.Kannan, learned counsel appearing for the petitioner has took us through the typed set of documents and also the relevant averments in the writ petition. Mr.Kannan, learned counsel appearing for the petitioner has invited our attention to the minimum recruitment qualification for the post of Radio Technician, Technical Assistants and Senior Technical Assistant in the Maintenance Stream. The Recruitment Qualification for Radio Technician (Diploma Holder) is Diploma in Radio Technology/Telecommunication Engineering, for the post of Technical Assistant the Recruitment Qualification is Diploma Holder in Telecommunication Engineering with two years experience in the Telecommunication field and for Senior Technical Assistant, the Recruitment Qualification is Degree in Telecommunication Engineering or Master of Science (Physics) with Electronics or Diploma in Telecommunication Engineering with three years experience in the field of Telecommunication. In the light of the said prescribed qualification, Mr.Kannan, learned counsel for the petitioner contended that the minimum qualification is only Diploma and not Matriculation plus II Class Certificate in the Wireless proficiency and therefore the decision of the Tribunal is unsustainable in law. 10. Mr.Kannan, learned counsel for the petitioner has drawn our attention to the order passed by the High Court of Kerala dated 17.12.2004 made in W.P(Civil) No.3531 of 2004 and 3277 of 2004. The said writ petitions were filed by the Union of India representing by Secretary to the Government of India, Ministry of Finance, Department of Revenue, the Chairman, Central Board of Excise and Customs and the Commissioner of Customs and Central Excise. The point for https://hcservices.ecourts.gov.in/hcservices/ consideration in the said writ petition was whether the Ministry of Finance, Government of India through an Executive order interfere with the Central Civil Service (Revised Pay) Rules 1997 issued by the President of India in exercise of the powers conferred by the Proviso to Article 309 and Clause 5 of Article 148 of Constitution of India. The Ministry of Finance has issued a Notification dated 30.4.2002 in partial modification of Government Notification GSR No.569(E) dated 30.9.1997 where entries at Serial Nos. 41-45 mentioned in the heading of Telecommunication Wing of the Department of Revenue have been deleted as per the Notification dated 30.4.2002. The Ministry of Finance based on the above said Notification dated 30.4.2002 has issued a letter dated 9.10.2002 to all the Heads of the Departments stating that the posts which were earlier placed at Serial Nos.41 to 45 to the Notification dated 30.9.1997 would only be given the normal replacement pay scales corresponding to the applicable Pre-revised scales of pay. The Respondents in the above said writ petition namely the All India Federation of Customs and Central Excise Telecom. Staff and another, aggrieved by the above said Notifications dated 30.4.2002 and 9.10.2002, had filed an Original Application before the Central Administrative Tribunal challenging the vires of the said Notifications. The Tribunal after considering the same, has allowed the application and thereby quashing the above said Notifications. The Union of India represented by the Secretary to the Government of India, Ministry of Finance, Department of Revenue had filed the above said writ petitions before the High Court of Kerala, challenging the order of the Central Administrative Tribulnal. 11. The High Court of Kerala in the order dated 17.11.2004 made in W.P.(Civil) Nos. 3531 and 3277 of 2004, has held that the Notifications dated 30.4.2002 and 9.10.2002 issued by the Government to various Heads of Departments have no legs to stand since they are in conflict with the provisions of the Central Civil Service (Revised Pay) Rules 1997 and consequently, no reasons were found to interfere with the order passed by the Tribunal. Therefore, for the said reasons, the High Court of Kerala has dismissed the above said writ petitions. 12. The Union of India has filed an SLP before the Hon'ble Supreme Court of India, challenging the above said order passed by the High Court of Kerala and the same was also dismissed on 8.8.2005. After the dismissal of the SLP by the Honourable Supreme Court of India, the first Respondent had sent a communication dated 3.5.2006 to all the Heads of Departments under CBEC. As per the said communication, the Government of India, Ministry of Finance, Department of Revenue (first Respondent) had re-examined the matter in consultation with the Department of Expenditure and they have taken a decision to restore and upgrade the pay scales to the Telecommunication Grade 'C' Staff and the same is extracted below:- https://hcservices.ecourts.gov.in/hcservices/ ------------------------------------------------------------ S.No. Designation Present pay scale Upgraded pay Granted vide scales letter F.No.A- 26017/11/98-Ad. II(A) dt.9.10.02 ------------------------------------------------------------ 1. Radio Operator Rs.4000-6000 Rs.4500-7000 (Operation Stream) 2. Supervisor (Operation Stream) Rs.4500-7000 Rs.5000-8000 3. Cipher Operator Rs.4500-7000 Rs.4500-7000 Rs.5000-8000 4. Communication Assistant (Operation Stream) Rs.5000-8000 Rs.5500-9000 5. Cipher Assistant Cipher Stream Rs.5000-8000 Rs.5500-9000 ------------------------------------------------------------ The first Respondent had requested all Heads of Departments coming under CBEC, to implement the above decision immediately and restore the pay in the revised pay scales and also ensure the payment of all benefits including financial upgradation under ACP Scheme arising as a result of revised pay to all the Officers including those who have retired/expired after 1.5.2002 to avoid any further litigations in the matter as per the Rules. 13. Mr.Kannan, learned counsel appearing for the petitioner has submitted that in view of the above said Notification dated 3.5.2006 issued by the first Respondent, there can be no impediment to grant relief in favour of the petitioner association. It is further submitted by the learned counsel for the petitioner that no change in duties and functions of employees similarly situated had taken place although concerned employees were working in different departments. 14. Mr.Santhakumar, learned counsel appearing for the Respondents has contended that since the petitioners had lost the earlier round of litigations and that in view of the clarification issued by the first Respondent vide letter dated 3.5.2006, the petitioner association may be directed to submit representations to the Respondents for implementation of the said decision. 15. We are of the considered view that in view of the decision taken by the first Respondent dated 3.5.2006 communicated to all Heads of Departments under CBEC, it is not necessary to direct the petitioner association to submit representations to the Respondents 1 to 4. Instead, we direct the Respondents 1 to 4 to pass appropriate https://hcservices.ecourts.gov.in/hcservices/ orders based on the decision dated 3.5.2006 in respect of members of petitioner association. 16. Since the litigation is going on right from 1998, we direct the respondents 1 to 4 to pass appropriate orders in terms of the letter dated 3.5.2006 issued by the first Respondent within a period of 8 weeks from the date of receipt of this order from the Registry of this Court. 17. The writ petition is disposed of accordingly. In the circumstances, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gr. To 1. Union of India, rep. by the Under Secretary to Government of India, Ministry of Finance Department of Revenue, New Delhi. 2. The Secretary, Ministry of Finance, Department of Revenue, New Delhi. 3. The Chairman, Central Board of Excise & Customs, New Delhi.l 4. The Commissioner,Central Excise & Customs, No.1, Williams Road, Trichy. 5. The Registrar,Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai-104. + 1 CC To Mr.C.Sundaravadivelu, Advocate SR NO.25894 + 1 CC To Mr.B.Shanthakumar, Advocate SR NO.25550 W.P.No.12385 of 2004 kj[co] gp/13.5. https://hcservices.ecourts.gov.in/hcservices/