...

UNION OF INDIA AND ANR. v.

R. SARANGAPANI AND ORS. ETC. ETC.

MARCH 15, 2000

[M. JAGANNADHA RAO AND MRS. RUMA PAL, JJ.]

Service Law :

Annual increment-Training period-Counting of for purpose of increment-:-Rules providing one year training for technical personnel and 3 months. training jor non-technical staff-Training period not counted for purpose of increment-Central Government O.Ms. dated 22.10.I990 and 3I.3.I992- Providing that training period undergone by a selected person before formally taking over charge of the post would be taken into account for purpose of annual increment-Cut-off date fixed as I. I: I 986-Petitions filed before different Benches of Central Administrative Tribunal challenging the cut-off date- D Bangalore Bench allowing the claim-Similarly Jabalpur Bench and Chandigarh Bench allowing the benefit-But Madras Bench declining to grant relie.f- Matter referred to Full Bench at Madras-Full Bench upholding the decision of Madras Bench and overruling decision of Bangalore Bench-Held, Full Bench of Central Administrative Tribunal, Madras rightly held Government E 0.Ms. dated 22.JO.I990 and 3I.3.I992 valid-Cut-off date i.e. I.I.1986 is not discriminatory-Principles decided by the Full Bench would also be applied in respect of all employees of the department including those who went be.fore Tribunals at Jabalpur and Chandigarh-Extra increment given to employees, except those w.ho have retired, to be recovered-Constitution of India-Article

I4.

Judgment-Conflicting decisions by different Benches of Central Administrative Tribunal-Matter referred to Full Bench of Central Administrative Tribunal, Madras-Held, in order to maintain uniformity, inspite of concession of counsel at different Benches, principles decided by the Full Bench would apply-Practice and Procedure-Decision based on concession of counsel- Effect of

In the department concerned of the Government of Indi~ training period for technical posts was one year and for non-technic:al posts it was three months. The training period was not treated as duty for the purpose

of increments. Under FR 26, service on a post in a time scale would count for increment in that time scale. On a demand made by the staff in the National Council (JCM) it was observed that where training period was long as in the case of technical personnel, the employees concerned were put to perpetual disadvantage vis-a-vis the staff in nontchnical jobs who were recruited along with the technical staff in 'the same scale of pay.

Keeping this in view, the Government issued 0.M. dated 22.10.1990 providing that if a selected person was required to undergo training before formally taking over charge of the post, the training period undergone by such personnel, whether on re; .;.aneration or stipend or otherwise, would be treated at par for the purpose of drawing emoluments. Initially the benefit of the O.M. was given only from 1.10.1990. On further demand of the staff in the JCM the matter was again considered, and by the Government O.M. dated 31.3.1992, the benefit was allowed also to those govern~ ment servants who had undergone training OQ or after 1.1.1986. However, in such cases the benefit of counting the training period for pay was made admissible on notional basis from 1.1.1986 and on actual basis from 1.10.1990.

Applications were filed before the Central Administrative Tribunal, Bangalore Bench claiming that Technicians appointed prior to 1.1.1986 should also be given the benefit of the Go:vernment O.Ms. dated 22.10.1990 and 31.3.1992. The Tribunal allowed the applications holding that fixation of the date of increment as 1.1.1986 was discriminatory. Similar relief was granted by the Central Administrative Tribunal, Jabalpur Bench and the Central Administrative Tribunal, Chandigarh Bench. But when a contrary view was taken by the Central Administrative Tribunal, Madras Bench, a reference was made to a Full Bench of the Tribunal. The Full Bench of the Tribunal, by its judgment dated 22.1.1996, upheld the view of the Central Administrative Tribunal, Madras Bench and overruled the view taken by the Central Administrative Tribunal, Bangalore Bench. Appeals were filed before this Court both by the Government as also by the affected technical employees.

Allowing the appeals filed by the Government and dismissing those filed by the employees, the Court

HELD : 1. The Full Bench of the Central Administrative Tribunal, Madras Bench, was right in holding that the Order of the government H deciding the cut-off date as 1.1.1986 and implementing the Government

O.Ms. dated 22.10.1990 and 31.3.1992 was entirely valid; that the appli cants were not entitled to the relief; and that the judgment of the Central Administrative Tribunal Bangalore was not correct. The Full Bench of the Tribunal has held that the date 1.1.1986 had a nexus with the commencement of the recommendations of the Fourth Pay Commission and it was a relevant factor to be taken into consideration in finding out whether the cut-off date 1.1.1986 was arbitrary or not. The second relevant aspect that was taken into account by the Full Bench of the Tribunal was the extent of financial burden which was involved if the benefit was to be extended even to those who had undergone training prior to 1.11.1986. The reasons given by the Full Bench of the Tribunal are correct. It was open to the Government to decide, having regard to the budgetary provision, as to what extent it could go and whether it could fix a cut-off date which was coterminus with the commencement of the recommendation of the IV th Pay Commission, namely, 1.1.86. On the peculiar facts of this case, th~,-said date was perfectly valid because the only consideration was the financial burden of the State and not any principle of equality. Further, in regard to those appointed prior to 1.1.1986, it would be too late for them to claim the benefit of the training period prior to 1.1.1986. [501-B-F]

Union of India v. P.N. Menon & Ors., [1994] 4 SCC 68, relied on.

2. In view of the nature of the qualifications and nature of the posts, functions and duties, no equality in the dates of accrual of the increments could ever have been claimed by the technical personnel comparing themselves to the non-technical persons, by invoking Article 14 of the Constitution of India. The applicants who were appointed to the technical posts and the other persons who were appointed to the non-technical posts are not on the same footing. The nature of their jobs was different, the qualifications for appointment was different and the training period was to be longer for the tecllnical staff. H, however, the Government thought it fit to bring some sort oft:equalisation in the matter of commencement of their increments, it was obvously by way of a sheer concession and was not as a matter of right nor was it to avoid any violation of any principles of equality under Article

14. [502-B-D]

D.S. Nakara v. Union of India, [1983] 2 SCR 165, held, inapplicale~

3. The issue involved in these appeals relates to a class of persons

who are spread over the entire country in the same department, but H

different cases were disposed of by different Benches of Central Administrative Tribunal leading to conflicting decisions. Obviously, the counsel for the Government had agreed before the two Tribunals at Jabalpur Bench and Chandigarh Bench because at that time the Bangalore Bench judgment was holding the field. But after the judgment of the Full Bench of the CAT, Madras it is necessary that there is no discrimination between the technical personnel in different regions of the country in the same department. It is a case where uniformity has to be maintained in the Department in spite of the concession of counsel at Jabalpur and Chandigarh. Therefore, the principles decided by the Full Bench of the Madras Tribunal has to be applied even in respect of employees who went before the Tribunals at Jabalpur and Chandigarh. [503-H, 504-A-C]

4. The extra increment given pursuant to any judgment of the Tribunal which has now been set aside, be recovered by the Union of India. It would be open to the Government of India to recover the same or to absorb the same in the future monthly salary spread over, month by month.

However, if any such employee has retired, no recovery will be made from his retiral benefits on the basis of this judgment. [505-E-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4247-49 of 1998 Etc. Etc.

E From the Judgment and Qrder dated 7 .11.94 of the Central Administrative Tribunal, Hyderabad in 0.A. No. 1346 of 1994.

N.N. Goswami, Ms. Indira Sawhney, Mr. Anubha Jain, Hemant Sharma, Rajiv Nanda, S.A. Matoo, P. Parameshwaran, Arvind Kumar Sharma, A.P.

Chhabra, Harinder Mohan Singh, Subramonium Prasad, Dr. Mahesh Babu M.R., Amlan Kumar Ghosh, Niraj Sharma, H.V.P. Sharma, Ms. Kanupriya Mittal, S.W.A. Qadri and K. Maruthi Rao for the appearing parties.

The Judgment of the Court was delivered by

G Delay condoned.

Leave granted in S.L.P. (C) 346/99.

In these batch of appeals, the Union of India and the concerned Department are the appellants. The appeals raise common points. For the H sake of convenience We shall take up Civil Appeal Nos. 4247-49/1988,

. which are the appeals against the Judgment dated 8th March, 1995, of the A• Central Administrative Tribunal, Bangalore Bench, in O.A. Nos. 1981/1994 & 1981-82 of 1994. Earlier to this, the said Tribunal rendered a Judgment in O.A. No. 156 of 1992 on 26th March, 1993, taking the same view. The Tribunal had held that Technicians appointed prior to 1.1.1986 would also be entitled to the benefits of the orders passed in terms of the O.M. date<:f B 22.10.1990, as modified in the subsequent orders dated 31.3.1992. In essence, the Tribunal held that for purpose of drawing increments, the Technicians whose period of training was one year, should be on par with the non-technical persons, whose training period was only three months, so that both the technicians and non-technicians would be drawing the same increment at the same intervals, if they were appointed on the same date. c

As per the Government O.M. dt. 22.10.90 this benefit was given to the technicians and was prospective in operation. It was to be granted only from 1.1.1990. Later on, by the O.M. dated 31.3.1992, this benefit was extended notionally with effect from 1.1.1986. The result was that those technicians D who were appointed prior to 1.1.1986 did not get the benefit of these two O.Ms. issued by the Government. When they approached the Central Administrative Tribunal, Bangalore Bench, the said Tribunal in its two judgments, one of 1993 and the other of 1995 above mentioned, came to the conclusion that those technicians appointed prior to 1.1.1986 would also get the benefit of these two O.Ms. This was on the ground that fixation of the date of E increment, i.e. 1.1.86 was discriminatory.

It appears that the Central Administrative Tribunal, Madras Bench had taken an opposite view and this led to a Reference to. a Full Bench of the same Tribunal, at Madras in 0.A. Nos. 1295/94 and 79/95. The judgment therein was delivered on 22.1.1996 and in that judgment the view taken by the Bangalore Bench of the Tribunal was overruled and the view taken by the Madras Bench of the Tribunal was upheld. The Union of India, therefore, in its appeals filed in this Court against the judgment of the Bangalore Tribunal, has strongly relied upon the subsequent judgment of the Full Bench of the Madras Tribunal, dated 22.1.1996 above referred to, for contending that the view traken by the Full Bench is the correct one and therefore, for the reasons given in that judgment, these appeals must be allowed and the judgment of the Bangalore Tribunal dated 21.2.95 must be set aside.

In the Government O.M. dated 22.10.1990, it was stated that, under FR

26, service in a post on a time scale counts for increment in that time scale H

and that as per FR 9(6)(a)(i), the services as a probationer or apprentice was treated as duty provided that service as such was followed by confirmation.

On that basis, the Government of India observed that training period undergone by the government servant "cannot" be treated as duty. However, on a demand made by the Staff in the National Council, (JCM) it was decided that where training period was long enough as in these cases, such technical personnel were put to perpetual disadvantage vis-a-vis the staff in nontechnical job who were recruited along with the technical staff in the same scale of pay. Therefore, the Government decided as follows :

the National Council (JCM) and it has been decided that in case where a person has been acted for regular appointment and before formally take over charge of the post in which selected person is required to undergo training, training period undergone by the Government servant whether on remuneration of stipend or otherwise may be treated at par for the purpose of drawing emoluments.

These orders take effect from the 1st of the month in which this OM is issued".

It will be noticed that initially the benefit of the above O.M. was therefore, given only from 1.10.1990. Subsequently, further representations appears to have been made by the staff and the Government came forward with the amendment on 31.3.1992. The Government of India observed that it had earlier decided on 22.10.90 that the period spent on training was to be treated as duty for the purpose of increments in cases where the person selected for regular appointment, - before formally taking over charge of the post for which he was selected - was required to undergo training and these orders were to take effect from 1.10.90. On further demand of the staff in the National Council (JCM) the question was again examined and the President of India, it. was stated was pleased to decide that the benefit of treatment of such training as duty for the purpose of increments would be allowed also in the case of those Government servants who had undergone such training on or after 1.1.1986. However, in such cases, the benefit of counting the period for pay would be admissible on notional basis from 1.1.86 and on actual basis from 1.10.90.

Subsequently, it appears that some further anomaly arose in regard to those who completed training immediately before 1.1.86, and an order was passed by the Government of India on 29.1.93. But we are not concerned with

that order~ in the present batch of cases.

The Full Bench of the Central Administrative Tribunal, Madras had therefore to decide the question whether the benefit given as per the Government O.M. dated 31.3.1992 should also be extended to those appointees who were appointed to technical posts and who underwent a training before 1.1.86. The Tribunal, after referring the various judgments of this Court came to the conclusion that the date 1.1.86 had a nexus with the commencement of the recommendations of the Fourth Pay Commission and that that was a relevant factor to be taken into consideration in finding out whether the cut-off date 1.1.86 was arbitrary or not. The second relevant aspect that was taken into account was the extent of financial burden which was involved if the benefit mentioned above was to be extended even to those who had training prior to 1.1.86. It was true that the claim of those appointed prior to 1.1.86 was only that they could be given notional benefit form 1.1.86 and actually from a later date. But even so, the net result would be that one more increment would become payable to all those persons appointed to technical posts earlier to 1.1.86. It was, therefore, held that these factors were relevant circumstances to be taken into consideration for not extending the benefit backward beyond 1.1.86. The Tribunal also considered the question whether the cut-off date 1.1.86 could be held to be properly selected or whether it could be said that it was picked out of a hat. It was pointed out that the question of commencement of the date was discussed in the National Council (JCM) between the employees and the Government and after taking into account various demands made by the employees, the said date was arrived at. At first the decision was to give notional benefit only from 1.10.90 and lateron, the decision was to grant it to those who had undergone training after 1.1.86 but that they would get the benefit notionally from 1.1.90. The Tribunal relied upon a judgment of this Court in Union of India v. P.N. Menon & Ors., [1994] 4 SCC 68, for holding that financial burden was one of the relevant considerations. On the basis of the above reasoning, the Full Bench of the Madras Tribunal finally stated that the order of the Government deciding the cut off date as implementing the Government O.M. dated 31.3.92 and the O.M. dated 22.10.90 was entirely valid and that that the applicants were not entitled to the reliefs and that the earlier judgment of the Bangalore Tribunal was not correct.

We are of the view that the learned counsel for the Government of India was right in relying strongly upon subsequent decision of the Full Bench

A of the Central Administrative Tribunal Madras Bench dated 22.1.1996 and in our opinion, the reasons given by the said Tribunal in the said Judgment, are correct.

One more aspect which we want to emphasise is that the applicants who were appointed to the technical posts and the other persons who were appointed to the non-technical posts are not on the s, ame footing. The nature of their jobs was different, the qualifications for appointment was different and the training period was to be longer for the technical staff. It was obviously necessary that those who were to occupy the technical posts should have a longer period of training than those who were to occupy the nontechnical posts. The training period for the former was one year while the training period for the latter was only three months. Naturally, the nontechnical personnel could therefore be appointed earlier to the technical personnel even if both groups were selected at the same selection. Therefore, in view of the nature of the qualifications and nature of the posts and functions and duties, no equality in the dates of accrual of the increments could ever have been claimed by the technical personnel comparing themselves to the non-technical persons, by invoking Article 14.

If, however, the Government thought it fit to bring some sort of equalisation, in the matter of commencement of their increments, it was obviously by way of a sheer concession and was not as a matter of right nor was it to avoid any violation of any principles of equality under Article 14.

In fact, the very Official Memorandum of the Government dated 22.10.1990, stated that under the FR 26 read with Rule 9(6)(a)(i) it was only in cases of probationers and apprentices where such appointments were followed by a confirmation that the said period of probation or apprenticeship would be counted -for the purpose of scale of pay attached to the posts. This principle would "not" as per the Rules be applicable to the training period. However, during the meetings of the National Council (ICM) it was represented that where the training period was long, as in the case of technical personnel, the disparity would become perpetual. Therefore, it is obvious that the concession was n0t based on Article 14 nor was it on the basis of any rule but was clearly based only upon the fact that the training period of technical personnel was longer and the disparity woiuld continue perpetually if these groups were selected at the same time. Therefore Government considered initially to bring their increment on par with effect from 1.1.90 and later on it felt that the grievance could be rectified with effect from 1.1.86 as

mentioned above, the date of commencement of the recommendations of the 4th Pay Commission. It is therefore, clear that the Government decided to extend the benefit in the above said manner, even though parties had no right to the same either under Article 14 or under the Rules and the date was mainly based on the financial burden. It was open to the Government to decide, having regard to the budgetary provision, as to what extent it could go and whether it could fix a cut-off date which was co-terminus with the commencement of the recommendation of the IVth Pay Commission, namely, 1.1.86. On the peculiar facts of this case the said date was perfectly valid because the only consideration was the financial burden of the State and not any principle of equality.

None of the principles stated in D.S. Nakara v. Union of India, [1983] 2 SCR 1_65 are applicable to the. facts of the case. The difference arose in the present case because the two categories were totally different from the time when they were selected and sent for training. We are, therefore, of the view that the Full Bench decision of the Central Administrative Tribunal, Madras was justified in overruling the said decision.

For the aforesaid reasons, these appeals are allowed and the impugned order passed by the Central Administrative Tribunal, Bangalore Bench is set aside.

C.A. No. 2583-8512000 @ S.L.P. (C) Nos. 15119-2111998

Delay condoned.

Leave granted. These S.L.Ps. arise from Judgment dated 15.11.1985 of

the Central Administrative Tribunal Jabalpur Bench. Similarly CA 4328/98 F and C.A. 4446-47/98, arise from Punjab. These Tribunals followed the judgment of the Bangalore Trib1:1nal and granted benefit of the increment to the technical personnel recruited priod prior to 1.1. 86. It also appears from what is stated in the judgments, that the counsel for the Government in those cases agreed before the Tribunals that the judgment of the Bangalore Tribunal would apply.

Here, we are concerned with a class of persons who are spread over the entire country in the same department but the different cases were disposed of by different Benches of Central Administrative Tribunal leading to conflicting decisions. We are of the view that uniformity has to be

A maintained in respect of grant of increments to all these technical persons who belong to the same Department, though they are working in different parts of the country. Obviously, the counsel for the Government had agreed before the these two Tribunals at Jabalpur and Chandigargh Bench because at that time the Bangalore Bench judgment was holding the field. But after B the judgment of the Full Bench of the CAT, Madras it is necessary that there is no _discrimination between the technical personnel in different regions of the country in the same department. We are of the view that it is a case where uniformity has to be maintained in the Department in spite of the concession of counsel at Jabalpur and Chandigarh. Therefore, the principles decided by c the Full Bench of the Madras Tribunal has to be applied even in respect of employees who went before the Tribunals at Jabalpur and Chandigarh.

Learned counsel appearing in these cases arising from the Jabalpur and Chandigarh Bench of the Tribunal, made vehement submissions before us, as to why the judgment of the Full Bench of the Madras Tribunal should not D be accepted. Counsel contended that even in respect of those appointed prior to 1.1.86 in the technical branch, the benefit could be given at least from 1.1.86. Counsel also pointed out that once the Government felt-apart from Article 14 and the FR-that the benefit could be extended to those appointed between 1.1.86 and 1.1.90, such benefit should have been extended even to E those appointed earlier to 1.1.86. Otherwise, there would be anomaly between the technical personnel appointed prior to 1.1.86 and those who were appointed after 1.1.86. They would be drawing increments unevenly.

For the reasons which we have already given while disposing of the appeals of the Union of India against the judgment of the Bangalore Tribunal, these contentions are liable to be rejected. We have mentioned earlier that the categories being different from the very start, no principle of Article 14 applied. The parties not being probationersor apprentices, the FRs will not apply. It was only on the basis of the fact that the anomaly would be running perpetually between technical and non-technical personnel se- G lected at the same time by the Government that the Government extended the benefit of one increment upto 1.1.86. While granting such concession it was open to the Government, as already stated to take irito accou(lt the financial burden of the Government. Further, the date has been made coterminus with the commencement of the recommendations of the Fourth Pay H Commission with effect from 1.1.86. We do not find any anomaly or

anything legally wrong in limiting the benefit to those who had undergone training after 1.1.86 and giving benefit notionally from 1.2.90. Further in regard to those appointed prior to 1.1.86, it would be too late for them to claim the benefit of the training period prior to 1.1.86.

For the aforesaid reasons, the appeals of the Union of India against the Jabalpur and Chandigarh Bench judgments are allowed.

It appears in some of the cases, particularly in the case from the Central Administrative Tribunal, Jabalpur and Chandigarh and perhaps some other places, the benefit granted by the Tribunals, which we are now setting aside has been granted to the technical persons pending these appeals in this C Court.

Learned counsel who appeared before us in the Jabalpur matters placed before us a letter dated 20th June, 1996 which clearly stated that the implementation of the judgment of the Tribunal at Jabalpur would be subject to the result of any appeals that might be filed by the Union of India. Even D in other cases, the position in our opinion would be the same, whether such a letter was issued or not.

We, therefore direct that the extra increment given pursuant to any judgment of the Tribunal which has now been set aside, be recovered by the

Union of India. It would be open to _the Government of India to recover the E same or to absorb the same in the future monthly salary spread over, month by month.

But there is one exception to this direction for recovery. In case where any of these employees of the technical branch have received the benefit of the increment because of the judgment which we have now set aside, in case they have retired as of today, no recovery will be made from their retiral benefits on the basis of the judgment which we have pronounced today.

The appeals are disposed of in the manner mentioned above. There shall be no order as to costs.

R.P.

Appeals disposed of.