Judgment:
1. MA No. 1755/2005 under Rule 4 (5) of CAT (Procedure) Rules, 1987 for joining together is allowed.
2. MA No. 1756/2005 seeks condonation of delay in approaching this Tribunal belatedly stating that they approached concerned authorities regarding revision of pay scale and were informed vide communication dated 05.12.2002 that same was under consideration and had been referred to DOP&T. As and when decision is taken, it will be conveyed to all concerned. When they approached them recently, they were informed in the month of May 2005 that decision taken earlier vide order dated 27.9.2002 would hold the field and no further consideration is required. Hence the present OA.3. It is contended that cause of action is of recurring nature as laid down by Hon'ble Supreme Court in M.R. Gupta v. Union of India.
Moreover,State of Bihar v. Kameshwar Prasad 2000 (2) ATJ 614, technicalities of law cannot be a ground to ignore substantive justice and undo illegalities.
4. 8 applicants, Ex-Servicemen, re-employed as Caretakers with Respondents in this OA claim following reliefs: (i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 27.9.2002 (A/1) declaring to the effect that the same is illegal, arbitrary, against the principle of natural justice and consequently the applicants are entitled for the benefit of Govt. of India OM dated 30.6.99.
That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to revised the pay scale of the applicants to the pay scale of Rs.5500-9000 either by way merging or retaining the care taken cadre based on area, as per the OM dated 30.6.99 with all the consequential benefits including the arrears of difference of pay and allowances with interest.
Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants.
5. Admitted facts are that vide paras 55.37 and 53.38, 5th Central Pay Commission made certain recommendations for rationalization of the cadre of Caretakers as well as prescribed norms for caretaking posts.
Pursuant thereto, Ministry of Finance, Department of Expenditure, issued Office Memorandum dated 30.06.1999 whereby President's decisions to the following effect were detailed. Relevant excerpts read as follows: a) Group 'D' and Group 'C' staff borne on the regular establishment and deployed on caretaking duties, which is not to be treated as deputation to an ex-cadre post, may be paid a Caretaking Allowance of Rs.100/- and Rs.200/- per month respectively as compensation for long hours of work required by them. The number of persons entitled to the allowance should not, however, exceed the existing strength of caretaking personnel in Groups 'C' and 'D' in all the applicable scales of pay taken together.
b) No other additional remuneration in the form of Deputation (Duty) allowance or Special Pay shall be admissible to the personnel so deployed.
c) In establishment, which continue to retain separate posts of Caretakers those posts shall be merged in the general ministerial cadres in the corresponding scales of pay. In other words, there will be no separate cadre of Caretakers anywhere in the Government.
d) Where no persons from the cadre is willing to serve as Caretaker, the post may be allowed to be filled up on loan basis instead of deputation basis from other cadres. For filling up the post on loan basis the employees carrying the same scale of pay as applicable to the post or carrying scale next below with three years of service may be made eligible for appointment. On appointment on loan basis the employees may be allowed the scale of pay attached to the post (viz. post of Caretaker) in addition to Caretaking Allowance.Floor area Scale of Pay No. of Postsof building (Rs.)a)Up to 2000 sq.mts.
- No post to be sanctioned.
Group 'C' or 'D' staff may bb)Above 2000 sq.mts.
3050-75-3950-80-4590 One postand up to 7000 sq.mts.c)Above 7000 sq. mts.
4000-100-6000 One postand up to 14000 sq.mts.d) Above 14000 sq.mts.
5000-150-8000 One post. Scale toand upto 20000 sq.mts.
or be decided 5 500-175-9000 depending on thee)Above 20000 sq. mtr.
5000-150-8000 One post+additional or post in lower grade In so far as the persons serving in the Indian Audit and Accounts Department are concerned, these orders issue after consultation with the Comptroller and Auditor General of India.
6. The grievance of applicants is two fold, namely, inaction of Respondents in merging post of Caretakers with general ministerial cadres in corresponding scales of pay as well as not following the decision taken by the Government of India, particularly vide para (e) of OM dated 30.06.1999, which deals with norms & level of Caretaking posts.
7. Respondents vide impugned communication dated 27.09.2002 conveyed sanction of the President to the continuance of 17 posts of Caretakers in R&AW as a distinct cadre in existing pay scale of Rs.4500-7000/- in relaxation to provisions contained in Ministry of Finance's OM dated 30.06.1999. It also conveyed sanction to grant caretaking allowance @ Rs.200/- per month to Caretakers working in said Organization.
8. Shri Yogesh Sharma, learned Counsel for applicants contended that as per Respondents' communication dated 10.02.2000, the total area looked after by 17 Caretakers all over India basis is 8,50,060 sq. mtrs. In the Respondent's Establishment, there are 17 posts of Caretakers for its offices and 7 separate buildings at its HQrs in Delhi looked after by 14 Caretakers and 3 outstation offices at Calcutta, Hathikanda and Rajkot are looked after by 3 Caretakers, for which area is 5,614 Sq.
Mtrs. If the norms and level of caretaking posts as prescribed under para (e) of OM dated 30.06.1999 are implemented, applicants would be entitled to batter pay scale than the one granted as on date, i.e., Rs.4500-7000/-. There is no reason and justification not to implement the said decision. The relaxation obtained was only in respect of continuing said post of Caretakers as a distinct cadre, which neither includes the issue regarding merger with general Ministerial cadre in corresponding scale of pay nor with the norms and level of caretaking posts.
9. Respondents, on the other hand, resisted the claim laid stating that Respondents' Organization being a Security Organization dealing with sensitive security matter, responsibilities and duties of Caretakers are distinct & arduous and are not comparable to caretaking duties performed in other Ministries/Departments of Government of India.
Keeping in view the security related duties, a decision was taken by the Government not to merge post of Caretakers with ministerial cadres of Respondents-Organization. Accordingly, Government's sanction was conveyed to continuance of 17 posts of Caretakers as a distinct cadre in existing pay scale of Rs.4500-7000/- in relaxation to provisions contained in OM dated 30.06.1999. Applicants have been allowed caretaking allowance of Rs.200/- per month for long hours of work. If the norms prescribed under OM dated 30.06.1999 related to para (e) of said Memorandum is applied, only 4 Caretakers could be accommodated in grade of Assistant in pay scale of Rs.5500-9000/- in ministerial cadre.
Besides, 5 Caretakers would have to be down graded to the grade of UDC in pay scale of Rs.4000-6000/- and 2 to the grade of LDC in pay scale of Rs.3050-4590/-. Remaining 6 posts of Caretaker would have to be abolished. In any case, 4 senior most Caretakers are already getting same pay scale under ACP Scheme and, therefore, application of OM dated 30.06.1999, in no way, would have benefited the incumbents of the posts of Caretakers. There are no orders issued by the Government for upward revision of scales of Caretakers. It is not the purport and object of OM dated 30.06.1999 that all Caretakers were to be given revised scale of Rs.5,500-9000/- irrespective of the fact that whether the norms prescribed are fulfilled or not. Most of the Caretakers would have to be down graded to lower grades and also some posts were to be surrendered if the mandate of OM dated 30.06.1999 is followed and implemented.
10 We have heard learned Counsel for the parties and perused the pleadings placed on record.
11. As noticed hereinabove, applicants' grievance is basically that Para (c) & (e) of OM dated 30.06.1999, which require merger as well as prescribed the norms and level of caretaking posts have been flouted.
Respondents, on the other hand, contended that order dated 27.09.2002 has to be harmoniously construed.
12. On bestowing our careful consideration to all aspects of the matter, including rival contentions raised by parties, we notice that Presidential sanction was conveyed vide order dated 27.09.2002 to the continuance of 17 posts of Caretaker in existing pay scale of Rs.4500-7000/- in relaxation of OM dated 30.06.1999 besides allowing caretaking allowance of Rs.200/- per month. We have noticed from the facts that applicants No. 7 & 8 have already attained the age of superannuation. The issue of merger and scale has to be read in conjunction and along with order dated 30.06.1999 vis-`-vis recommendations made by 5th CPC. We find justification in the contention raised by Respondents that if the norms and level of caretaking posts were to be implemented, a large number of Caretakers in Respondents' Organization would stand to lose in actual monetary terms and, therefore, the decision to continue the posts of Caretakers in R&AW as a distinct cadre in existing pay scale in relaxation to OM dated 30.06.1999 had been taken keeping in view the larger interest of the Organization as well as the officials working therein. Said order date 27.09.2002 has to be read harmoniously and objectively and not in isolation, as projected by applicants. A bare perusal of para (e) of OM dated 30.06.1999, as extracted hereinabove, would show that pay scale of Caretaker would vary with the floor area of the building where he is employed. Respondents vide Memorandum dated 4.2.2000 (A/4) stated that Caretakers at HQrs are kept on rotating and no specific area can be mentioned against their names as 'individually'. Therefore, we find substance and justification in this stand of Respondents. We do not find any illegality or arbitrariness, much less than malafide, in such policy decision of the Government.
13. In view of the discussion made hereinabove, the OA is dismissed being devoid of merit. No costs.