IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2425 OF 2007 Union of India and another .. Petitioners Vs Anant Suryakant Kale and another ..Respondents ALONGWITH WRIT PETITION NO.2445 OF 2007 Union of India and another .. Petitioners Vs Bhaskar Krishna Sawant and another ..Respondents Mr. L.S. Shetty with Mr. M.S. Bhardwaj for the petitioners. Mr. S.N. Deshpande for the respondents. CORAM: SWATANTER KUMAR, C.J., & J.P. DEVADHAR , J. DATE : 28TH JANUARY, 2008 P.C.: Since both these petitions are directed against the order of the Central Administrative Tribunal dated 18th July, 2007 and raise common question of law and facts, they, would be disposed of by a common order. 2. The respondents herein were appointed as Draftsmen with effect from 2.8.1984 and 7.5.1972 respectively. They prayed before the Central Administrative Tribunal for grant of pay scale as recommended by the 5th Pay Commission in their favour with effect from 1.1.1996 and also for grant of Assured Career Progression benefit. The petition was opposed by the Union of India on the ground that these applicants were not possessed with requisite qualifications and the post of Draftsman was an isolated post in the organisation, thus, even could not be clubbed with the common category, as prayed by the applicants. The Central Administrative Tribunal while rejecting both these contentions including the plea of res judicata raised by the Union of India, granted benefit of 5th Pay Commission to the applicants. 3. The objection in the application was that the application was barred by principle of res judicata. It was observed by the Central Administrative Tribunal that the applicants have approached in both the machineries under the Industrial Disputes Act, 1947 but the Government had declined the reference and as such they could not raise the issue before the Competent Authority. There being no final determination of the issues between the parties, the Tribunal declined to accept this objection and we find no reason to interfere with the view taken by the Central Administrative Tribunal on this plea. 4. The second argument raised on behalf of the Union of India in regard to the qualification, was also rejected by the Tribunal by observing as under: “Therefore, the contention of the respondents, that based on the above-mentioned revision of pay-scales that the applicants have been ; granted one up gradation, is without any merit and liable to be rejected. As regards the contention of the respondents that the applicants possess only Diploma in Draughtsmanship and not Diploma in Engineering and that the pay scale of Rs.5000-8000 is given only to those Draughtsman who are having Diploma in Engineering, we have perused the recruitment rules annexed by the respondents themselves as Annexure-R-4 alongwith their reply and we note that the said qualifications are relevant for direct recruits only and not for the purpose of promotion. Hence, granting up gradation under ACP Scheme to the applicants who have been working with the respondents for the last two or three decades will not be dehors the rules. Hence, this plea of the respondents is misconceived and liable to be rejected. 17. Lastly we also deal with the contention of the respondents that the scale of Rs.4500-7000 is corresponding revised scale for the post in question. In this connection, we have perused the Schedule annexed as Annexure-R-1 to the reply filed by the respondents which mentions that these revised pay scales are for the posts carrying present scales in Group `A' to `D' except posts, for which different revised scales are notified separately. The case of the applicants is covered by this exception. The case of the applicants is fortified in this respect by the order dated 01.06.2001. From a perusal para 6 of this order dated 01.06.2001, it is clear that the Draughtsmen who have already been covered by the order contained in O.M. Dated 13.03.1984 and 19.10.1994 are eligible to be placed in revised scale of pay already approved for common category of Draughtsman in pursuance of recommendation of Vth Pay Commission. According to the said order, which is corollary to O.M. No.131)-IC 91 dated 19.10.1994 no condition of qualification is not attached to the post of Draughtsman who are already covered by the orders contained in O.M. Dated 13.03.1984 and 19.10.1994. The applicants are covered by the O.M. Dated 19.10.1994 and, hence, are eligible to be placed in applicable revised scale as approved for common category of Draughtsman by Rs.1400-2300 (un-revised) which has been revised to Rs.5000- 8000/-.” 5. The above reasoning of the Tribunal is questioned before us by the learned counsel appearing for the petitioners by relying upon the circular dated 1st June, 2001 issued by the Ministry of Finance, Department of Expenditure and particularly, paragraph 3 of the said circular which reads as under: “3. The Staff Side had invited attention to the anomalous situation that had arisen as a consequence in the National Anomalies Committee. They had raised the demand that the revised pay scales recommended by the Fifth Central Pay Commission should be extended to the Draughtsmen in all Central Government officers, due weightage being given for the service rendered by personnel not possessing the prescribed qualifications in different departments as envisaged in this Department's O.M. Dated October 19, 1994. Following consideration of this demand in consultation with the Staff Side, the President is now pleased to decide that Draughtsmen in different departments other than the Central Public Works Department who do not possess the prescribed qualifications and excluding those who have already derived the benefits envisaged in the O.M. Dated October 19, 1994, may be placed in the scales of pay recommended by the 5th CPC on completion of the minimum service (including service rendered in the corresponding pre-revised scales) as indicated below: Minimum period of service to be rendered for placement from the scale of Rs.3200-4900 (pre-revised :Rs.975-1540) to the scale of Rs. 4000-6000 (pre-revised:Rs.1200-2040)...5 years Minimum period of service to be rendered for placement from the scale of Rs.4000-6000 (pre-revised: Rs.1200-2040) to be scale of Rs. 5000-8000 (pre-revised: Rs.1400-2300 revised to Rs.1600-2660 by the 5th CPC) .. 8 years Minimum period of service to be rendered for placement from the scale of Rs.4500-7000 (pre-revised: Rs. 1400-2300) to the scale of Rs. 5500-9000 (pre-revised: Rs.1640-2900) .. 6 years” 6. At the very outset, we may notice that in terms of paragraph 6 of the circular dated 1st June, 2001, it was specifically recorded that the draughtsmen who have already been covered by the orders contained in the O.M. dated 13th March, 1984 and 19th October, 1994 shall be eligible to be placed in the applicable revised pay scales which have already been approved for the common category of Draughtsmen in pursuance of the recommendation of the 5th Pay Commission. Besides these, the bare reading of clause 3 postulated that the draughtsmen in different departments other than the Central Public Works Department who do not possess the prescribed qualification could not be given the benefit but to this, there was an exclusion clause specifically stated “on excluding those who have already derived the benefits envisaged in the O.M. dated 19th October, 1994”. It is not in dispute that the respondents before us were placed and granted benefits even prior to coming into force of the scale. Once they had received the benefit, they would fall squarely within the exclusion clause and the restriction of Diploma in Engineering would not render them ineligible as, while holding Diploma in Draughtsman, hey have already earned pay scale of 5000-8000. 7. The learned counsel appearing for the petitioners further relied upon the judgment of the Supreme Court in the case of Union of India v. Arun Jyoti Kundu and others, (2007)7 SCC 472, to contend that the courts should not interfere in grant of pay scales. We are of the considered view that the facts and circumstances of that case and the dictum of the Supreme Court has hardly any application to the facts of the present case. The Central Administrative Tribunal has relied upon the letters issued by the Government itself and it is not that the Tribunal has created a pay scale which was not provided within the recommendations of the Pay Commission. The eligibility for grant of the pay scale is different than grant of pay scale or creation of the pay scale by a judicial pronouncement. 8. We are unable to find any merit in the contentions raised before us. The writ petitions are dismissed in limine, leaving the parties to bear their own costs. CHIEF JUSTICE J.P. DEVADHAR, J.