Union Of India Thr.Secretary & Ors vs Anju Jain & Anr on 6 January, 2015

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Supreme Court of India
Union Of India Thr.Secretary & Ors vs Anju Jain & Anr on 6 January, 2015Bench: Sudhansu Jyoti Mukhopadhaya, Prafulla C. Pant

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 50 OF 2015
(arising out of SLP(C) No.1707 of 2014)

Union of India Through Secretary & Ors. … APPELLANT

VERSUS
Anju Jain & Anr. … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. The appellants have preferred this appeal against order dated 1st
August, 2013 passed by the High Court of Delhi at New Delhi in W.P. (C)
No.2736 of 2013. By the impugned order, the High Court affirmed the order
dated 17th March, 2012 passed by the Central Administrative Tribunal,
Principal Bench (hereinafter referred to as, ‘the CAT’) and dismissed the
writ petition preferred by the appellants herein.

3. The factual matrix of the case is as under:

The case of the Respondent Nos. 1 and 2 is that they were initially
appointed as Junior Machine Operators(JMO)/Key Punch Operators w.e.f.
05.05.1987 and 19.05.1987 respectively on temporary basis in the pay scale
of Rs.950-20-1150-EB-25-1500. Later on, their services were regularized
w.e.f. 19.05.1989. Subsequently, on the recommendations of the Economic
Reform Commission and the Staff Inspection Unit, the posts of Junior
Machine Operator, Senior Machine Operator and Comptometer Operator in the
office of appellant no.2 were abolished w.e.f. 27.07.1995. However, on the
request of the respondents, their services were adjusted against the vacant
posts of Computor(feeder) which was a promotional post but with the
condition that the respondents will draw only the salary and pay and
allowances as admissible to the posts of Junior Machine Operator which they
were holding prior to 27.07.1995. Later on, respondents were adjusted
against the vacant post of Computor by way of ad hoc promotion w.e.f.
04.11.1997 in the pay scale of Rs.4000-100-6000. On 18.05.1999, at the time
of granting First Financial Upgradation under ACP Scheme, the pay of the
respondents was re-fixed in the same scale of Rs.4000-100-6000, which was
the scale they were already granted.

In the meantime, consequent upon the introduction of the Scheme of
rationalization of pay scales for Electronic Data Processing cadre, the
cadre was restructured and at the entry level Data Entry Operator (DEO)
Grade A and above that the post of Data Entry Operator (DEO) Grade B, etc.
were created. Accordingly, the post of Junior Machine Operator in the pre-
revised scale of Rs.950-1500 was re-designated as DEO, Grade `A’ and was
granted the scale of pay of Rs.1150-1500 w.e.f. 01.01.1986. Similarly, the
post of Computor in the pre-revised scale of Rs.1200-2040 was re-designated
as DEO, Grade ‘B’ in the scale of pay of Rs.1350-2200 effective from
01.01.1986.

It appears that inspite of re-designation of the post of Junior Machine
Operator as Data Entry Operator Grade ‘A’ the respondent nos.1 and 2 were
not granted scale of pay of Rs.1150-1500 with effect from their date of
initial appointment.

4. Being aggrieved respondent nos.1 and 2 preferred O.A. No.3690 of 2011
before the CAT for re-fixation of their pay in the scale of Rs.1150-1500
w.e.f. 05.05.1987 and 19.05.1987 respectively i.e. from the date they
joined as Junior Machine Operators.

5. The CAT vide order dated 17th March, 2012 allowed the application and
set aside the order passed by the authorities with following observation
and direction:

“5. We have heard the learned counsel for the parties and considered the
averments made by them. We have also perused the various judgments relied
upon by the learned counsel for the applicants. In our considered view, the
submission of the respondents does not have any merit. Admittedly, both the
applicants were initially appointed to the post of JMO which has been
identified as an EDP post and reclassified as Data Entry Operator, Grade
‘A’. On having been declared surplus, they were adjusted against the post
of Computor which is another identified EDP post which was reclassified as
Data Entry Operator, Grade ‘B’. Therefore, the submission of the
respondents that there was difference between the posts occupied by the
applicants and other Data Entry Operators is merely a technical one with no
consequence and, therefore, it is rejected. Consequently, we hold that the
applicants shall be treated as Data Entry Operators Grade ‘A’ in the scale
of pay of Rs.1150-1500 (pre-revised) with all consequential benefits such
as re-fixation of their pay, upto date arrears of pay and allowances from
the respective dates of their appointments i.e. 05.05.1987 and 19.05.1987.
They shall also issue necessary orders in this regard, within a period of
two months from the date of receipt of copy of this order. There shall be
no order as to costs.”

6. Aggrieved by the aforesaid order, the appellants filed W.P.C) No.4003
of 2012 before this Court. However, the same was dismissed as withdrawn
with liberty to file a review petition before the CAT seeking review of
order dated 17th March, 2012. The Review Application being R.A. No.260 of
2012 was dismissed by the CAT on 15th February, 2013.

7. In view of the aforesaid fact, another Writ Petition No.2736 of 2013
was preferred by the appellants before the High Court of Delhi which was
rejected by the High Court by impugned order dated 1st August, 2013 with a
direction to the appellants that those who were working as Junior Machine
Operators have to be treated as Data Entry Operators Grade ‘A’ in the scale
of Rs.1150-1500 and shall be given subsequent replacement of scale of pay
Rs.4000-6000 with benefit from the date of their appointment as Junior
Machine Operators.

8. Aggrieved by the aforesaid order, the appellants have preferred the
present appeal before this Court.

9. The learned counsel for the respondents contented that the
respondents were initially appointed as Junior Machine Operators and on
being declared surplus they were adjusted against the posts of Computor
limiting their pay scale to that of Junior Machine Operators. Both those
posts were identified as Electronic Data Processing posts. Hence, their
case is fully covered by the decision of the Tribunal dated 31.07.2000 in
OA No. 2639/1999 titled Babu Lal & Ors. v. Union of India & Ors. wherein it
was held that the DEOs/DPAs covered under MOF (DOE) O.M. dated 11.09.1989
and hence they are entitled to re-fixation of their pay in the respective
scales with effect from their initial date of appointment.
10. The learned counsel for the appellants has contended that the cases
of the respondents are not exactly similar to those of the O.As relied upon
by the respondents. According to them, even though the respondents have
been initially appointed w.e.f. 05.05.1987 and 19.05.1987 as Junior Machine
Operators, the said posts have been abolished w.e.f. 27.07.1995 and they
were adjusted against the post of Computor on their request, they are
not entitled to refixation of their pay with effect from their date of
initial appointment.

11. We have considered the rival contention raised by the learned counsel
for the parties and have perused the record.
12. The question relating to rationalisation of pay scales of Electronics
Data Processing posts in different departments of Ministries of the
Government of India was noticed and considered by this Court in ‘Secretary,
Department of Personnel, Public Grievances & Pension & Anr. Vs. T.V.L.N.
Mallikarjuna Rao’, C.A.No.10862 of 2014 etc. etc. This Court by its
judgment dated 9th December, 2014 in the said case noticed the Office
Memorandum No. F.7(1)/IC/86(44) dated 11th September, 1989 issued by the
Government of India, Ministry of Finance, Department of Expenditure whereby
on the recommendation of the Fourth Central Pay Commission and further
recommendation made by the Committee constituted by the Government of
India, pay scale of Electronic Data Processing posts likewise Key-Punch
Operator, Punch Verifying Operator, Planning Assistant, etc. were
rationalized. The relevant portion of the said office memorandum reads as
follows:

“No.F.7(1)/IC/86(44)
Government of India
Ministry of Finance
Department of Expenditure
Implementation Cell

New Delhi, dated 11th Sept: 89

OFFICE MEMORANDUM

Sub: Rationalisation of pay scales of Electronic Data
Processing posts:
The undersigned is directed to refer to the recommendations of Fourth
Central Pay Commission contained in paragraph 11.45 of the Report wherein
it was suggested that the department of Electronic should examine and
suggest reorganisation of existing Electronic Data Processing posts and
prescribe uniform pay scales and designations in consultation with the
Department of Personnel. In pursuance of above suggestion, a Committee had
been set up by Department of Electronics in November, 1986. After careful
consideration of the recommendations made by this Committee, Government of
India has decided to introduce following pay structure for Electronic Data
Processing posts:-

|S. No. |Designation of |Pay scale | |
| |post | | |
|1. |Data Entry |Rs.1150-1500 |This will be entry Grade |
| |Operator Grade | |for Higher Secondary |
| |’A’ | |with |
| | | |knowledge of Data Entry |
| | | |work. |
|2. |Data Entry |Rs.1350-2200 |This will be entry grade |
| |Operator Grade | |for graduate with |
| |’B’ | |knowledge of Data Entry |
| | | |work of promotional Grade|
| | | |for Data Entry Operator |
| | | |Grade ‘A’ |
|3. |Data Entry |Rs.1400-2300 |Promotional Grade |
| |Operator Grade | | |
| |’C’ | | |
|4. |Data Entry |Rs.1600-2660 |Promotional Grade |
| |Operator Grade | | |
| |’D’ | | |
|5. |Data Entry |Rs.2000-3500 |Promotional Grade |
| |Operator Grade | | |
| |’E’ | | |
|Data Processing/Programming Staff |
|1. |Data Processing |Rs.1600-2260 |Entry Grade for Graduates|
| |Assistant Grade | |with |
| |’A’ | |Diploma/certificate in |
| | | |Computer |
| | | |Applications. |
|2. |Data Processing |Rs.2000-3200 |Promotional Grade |
| |Assistant Grade | | |
| |’B’ | | |
|3. |Programmer |Rs.2375-3500 |Direct Entry for holders |
| | | |of Degree in Engineering |
| | | |or post-graduation in |
| | | |Science/Maths etc. or |
| | | |post graduation in |
| | | |Computer |
| | | |Application |
| | | |Or |
| | | |By promotion from Data |
| | | |Processing Assistant |
| | | |Grade ‘B’ |
|4. |Senior Programmer|Rs.3000-4500 |Promotional Grade |

2. All Ministers/Department having Electronic Data Processing posts
under their administrative control will review the designation, pay scales
and recruitment qualification of their posts and revise the same in
consultation with their Financial Advisor to the extent necessary as per
pay structure indicated in para 1 above. Where it is found necessary to
revise the pay scale of existing post notification will be issued by
concerned Ministry/Department and copy of the notification and order will
be sent to Implementation Cell and Department of Expenditure. The revised
pay scales will be operative from the date of issue of notification by
concerned Ministry/Department.

If as a result of above review, pay scale of any post undergoes a change
the pay of existing incumbents will be fixed as per fundamental Rule 23
read with FR 22(a)(ii).

The review suggested in para 2 above will be made only with reference to
existing Electronic Data Processing posts and it will not be necessary to
create all the grades in all Ministries/Departments, as it will depend on
requirements of user Department. If Ministry/Department proposes to create
any grade which is not existing at present it will be done with approval of
financial advisors and subject to procedures laid down for the purpose.

The qualifications etc. indicated against each grade in para 1 above are
only illustrative and Departments/Ministries will carry out the review of
existing EDP posts in accordance with recruitment rules as already
prescribed by them. To ensure uniformity in regard to Recruitment Rules for
the EDP posts, Department of Personnel & Training is being requested to
devise model Recruitment Rules which can be adopted by
Ministry/Department.”

13. It was further noticed that in view of the aforesaid OM
No.F.7(1)/IC/86(44) dated 11th September, 1989, Department of Personnel and
Training, Ministry of Personnel, Public Grievance & Pensions, Government of
India by O.M.No.AB 14017/75/89-Estt.(RR) dated 13th February, 1990
forwarded a copy of the Model Recruitment Rules for various categories of
posts in the Electronic Data Processing Discipline. Further, this Court
also noticed the Electronic Data Processing Discipline (Group C Technical
Posts) Recruitment Rules, 1992 issued by the President of India in exercise
of powers conferred by the proviso to Article 309 of the Constitution of
India, from Department of Revenue, Government of India, Department of
Personnel of Training, Ministry of Personnel, etc. Having noticed the
aforesaid guidelines and Rules in Secretary, Department of Personnel,
Public Grievances & Pension & Anr. Vs. T.V.L.N. Mallikarjuna Rao this Court
observed as follows:

“8. From the Office Memorandum and Rules, as noticed above, the following
facts emerge:

(i) In view of the recommendations of Fourth Central Pay Commission
(paragraph 11.45 of the Report), the Government of India constituted a
Committee to suggest the reorganisation of existing department of
Electronic Data Processing posts such as Data Entry Operator which were in
the scale of pay of Rs.950-1150.

(ii) By Office Memorandum dated 11th September, 1989, pursuant to the
aforesaid suggestions the Government of India decided to introduce pay
structure for Electronic Data Processing posts with separate nomenclatures
that is: (i)Data Entry Operator Grade ‘A’ – Rs.1150-1500 with entry Grade
for Higher Secondary with knowledge of Data Entry work; (ii) Data Entry
Operator Grade ‘B’ – is promotional post of Data Entry Operator Grade ‘A’,
similarly Data Entry Operator Grade ‘C’ is promotion post of Data Entry
Operator Grade ‘B’ and Data Entry Operator Grade ‘D’ is promotion post of
Data Entry Operator Grade ‘C’ and Data Entry Operator Grade ‘E’ is
promotional post of Data Entry Operator Grade ‘D’.

For such promotion, the person is not only and required to be
qualified but must fulfill experience condition in the lower grade for
promotion to the higher post.”

14. In the present case the respondents were appointed as Junior Machine
Operator/Key Punch Operator w.e.f. 05.05.1987 and 19.05.1987 respectively
on temporary basis in the pay scale of Rs.950-20-1150-EB-25-1500.
Subsequently, their services were regularised w.e.f. 19.05.1989. In view of
the Government of India O.M. dated 11th September, 1989 the posts of Junior
Machine Operators/Key Punch Operators were re-designated as Data Entry
Operator Grade ‘B’ in the pay scale of Rs.1150-1500 w.e.f. 01.01.1986.
Therefore, respondent nos.1 and 2 became entitled to receive salary in the
pay scale of Rs.1150-1500 with effect from their date of initial
appointment i.e. 05.05.1987 and 19.05.1987 respectively.

15. Admittedly, the posts of Junior Machine Operator, etc. were abolished
and, therefore, they were adjusted to the post of Computor. Though the
respondents were adjusted against the posts of Computor w.e.f.04.11.1997,
the adjustment was so made with a condition that they have been drawing the
salary and pay and allowances as admissible to the posts of Junior Machine
Operator which they were holding prior to 27th July, 1995. Therefore, the
respondents though hold the posts of Computor they were entitled to the pay
scale of Rs.1150-1500 w.e.f. 27.07.1995.

16. The respondents have taken plea that their adjustment against the
vacant post of Computor by way of ad hoc promotion w.e.f. 04.11.1997 in the
pay scale of Rs.4000-100-6000 but there was nothing on record to suggest
that they were granted ad hoc promotion w.e.f. 04.11.1997. Further, the
designation of post of Computor was changed to Data Entry Operator Grade
‘B’. In absence of any order of promotion no finding can be given whether
the respondents were entitled to next higher sale of pay. However, if they
were entitled for higher scale as per ACP scheme and granted by the
competent authority they will continue to receive the same.

17. In view of the finding as recorded above, no interference is called
for against the impugned judgment dated 01st August, 2013 passed by the
High Court and the order passed by the Tribunal as the High Court rightly
held that the respondents to be treated as Data Entry Operator Grade ‘A’ in
the pay scale of Rs.1150-1500 from the date of their initial appointment
and subsequent replacement of pay scale of Rs.4000-6000 from the date the
pay scale was so revised.

18. The appeal is dismissed but there shall be no orders as to costs.

………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………….J.
(PRAFULLA C. PANT)
NEW DELHI;
JANUARY 6, 2015.
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