| SooperKanoon Citation | sooperkanoon.com/55956 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | May-16-2008 |
| Judge | M Chhibber, C A Veenay |
| Appellant | Shri Purshottam Dass S/O Shri |
| Respondent | Union of India (Uoi) Through |
2. It is stated by the applicant that he was initially appointed as Assistant Wireman (hereinafter referred to as AW) with effect from 1.2.1986 in the scale of Rs. 210-270 vide order dated 28.2.1986 (page 23). However, subsequently letter dated 15.11.1990 was issued from the office of the Chief Postmaster General, U.P. Circle, Lucknow wherein it was clarified that the post of J.E., Technicians, Wireman etc. were sanctioned by the PMG Lucknow on 19.6.1979 for the maintenance of Electrical installation in postal building. A list of candidates approved for appointment as Assistant Wireman Khalasis prepared by the S.E. (E) New Delhi was sent to Director Postal Services Lucknow, Kanpur, Dehradun and Allahabad. It is presumed that appointments have been made from that list. It was further clarified there is no ban on recruitment or on regularization of the officials appointed on ad hoc basis. Subsequently, another letter was issued on 24.1.1991 wherein it was stated that against the sanctioned post of Wireman, appointments have been made with the designation as Assistant Wireman which is irregular because the post of Assistant Wireman was not sanctioned by the office, therefore, the officials recruited against these posts with the designation as Assistant Wireman may be regularized as Wireman after observing usual formalities keeping in view the Recruitment Rules circulated by letter dated 20.11.1999 (page 32.) 3. It is stated by the counsel for the applicant that it is on the basis of this letter that respondents issued order dated 24.3.1992 whereby applicant was ordered to be regularized as Wireman in the scale of Rs. 950-1500 from the date of his appointment as Assistant Wireman (page 38).
4. Applicant continued to work as Wireman and drew his salary also in the said scale. In the year 1999 applicant gave a representation for promoting him to the post of Technician followed by reminders (page 42 onwards). Though he was not given the promotion, but vide order dated 3.11.2001 (page 50), applicant was granted first financial upgradation in the scale of Rs. 3200-4900 w.e.f. 9.8.1999. The applicant was being paid in this grade, but all of a sudden, respondents issued order dated 27.5.2003 (page 54), whereby applicant's pay was reduced with effect from 1.2.1986 to 31.12.1995 in the scale of Rs.800-1150, w.e.f.
1.1.1996 to 8.8.1999 in the scale of Rs. 2650-4000 and w.e.f. 9.8.1999 in the scale of Rs. 2750-4000 (ACP). It was further ordered that recovery shall be made from his pay and allowances w.e.f. 1.5.2003 (page 54). This order was challenged by the applicant by filing OA No.1023/2005 which was finally disposed off on 13.12.2005 whereby order dated 27.5.2003 was quashed and set aside as no show cause notice has been given to the applicant before passing the said order and in view of the fact that similar orders were already passed by the Tribunal in the case of OA No. 2316/203 decided on 21.5.2004. However, liberty was given to the respondents to pass appropriate orders after following due process of law and after giving due opportunity to the applicant to represent and after considering the representation and judgments referred to in the judgment dated 13.12.2005 (page 69 at 76).
5. Pursuant to the above judgment, respondents issued memorandum dated 8.2.2006 (page 77) informing the applicant that his salary is to be fixed in the scale of Rs. 2750-4000 instead of Rs. 3200-4900, therefore, he may give his representation. Applicant gave detailed reply thereafter (page 78) stating therein that he was regularized after due formalities. No misrepresentation was made by the applicant and even other persons, who were appointed as Assistant Wireman, were regularized as Wireman, namely, Shri Bhagwan Dass at Shimla. He also submitted that a conscious decision was taken by the respondents to regularize him as Wireman. The respondents finally issued order dated 15.2.2007 (page 91) whereby his pay was again reduced with effect from 1.2.1986 as was done earlier. It was in these circumstances that applicant has filed the present OA.6. Counsel for the applicant submitted that since applicant was regularised as Wireman in 1992 by the respondents themselves and was given the benefit of ACP after due application of mind after considering his representations given from time to time, it is not open to the respondents now to reduce the salary with retrospective effect.
7. Respondents on the other hand opposed this OA. They had admitted that initially applicant was appointed as Assistant Wireman in the pay scale of Rs. 210-270 vide memo dated 28.2.1986. The Department of Posts, New Delhi vide its communication No. 37-26/89/SPB-I dated 20.11.1990 issued revised recruitment rules for the post of Wireman which was circulated under Chief PMG U.P. Circle LKO. Memo No.Rectt./R-93/I/Ch.II dated 24.1.1991 with the limitation that the appointments made with the designation as Assistant Wireman was irregular and ordered regularization of the appointment as Assistant Wireman as Wireman. In compliance of these orders, the applicant's appointment was ordered to be regularized as Wireman in the pay scale of Rs. 950-20-1150-EB-1500 from the date of his appointment as Assistant Wireman in the Department of Posts vide SSPos, Saharanpur memo No. B-2/103 dated 243.1992. Meanwhile, since applicant had completed service of 12 years with effect from 9.8.1999, he was granted the ACP benefit. However, they have explained that clarifications were issued regarding pay scale of Wireman working the Department of Posts which is as under: Since the appointment of Wireman made in the pay scale of Rs. 210-270, they cannot be compared by any other scale having different pay scales which were governed by a separate set of rules. There is a separate set of rules. There is a separate recruitment rule for post of Wireman in the Department of post and in the Department of Telecom/Civil Wing/CPWD and other organizations etc. The post of Wireman in the Department of post is an isolated post which has been declared dying cadre. The appointment of wireman made in the scale of Rs. 210-270 was replaced by the scale of Rs.800-1150 and thereafter by Rs. 2650-4000 as per recommendations of 4th and 5th Pay Commission. They have not been recommended any higher scale for the Wireman working in the Department of post.
In view of the above orders, the applicant's pay was supposed to be fixed in the following pay scales:w.e.f. 1.2.1986 to 31.12.1995 in scale of Rs. 800-1150w.e.f. 1.1.96 to 8.8.99 in scale of Rs. 2650-4000w.e.f. 1.1.1996 to 8.8.1999 in scale of Rs. 2650-4000w.e.f. 9.8.99 to onwards in scale of Rs. 3050-4590 (under ACP).
8. The above orders were challenged by the applicant. While allowing OA No. 1023/2005, Tribunal had given liberty to the respondents to pass appropriate orders. Accordingly, the respondents had passed the orders re-fixing his pay with effect from 1.2.1986 after considering applicant's representation, therefore, there is nothing wrong in these orders. The OA may, therefore, be dismissed.
10. Admittedly, the applicant was initially appointed as Assistant Wireman with effect from 12.1986 vide order dated 28.2.1986 (page 23).
However, subsequently respondents themselves issued orders on 24.1.1991 to say that all those persons, who were appointed as Assistant Wireman were irregular because there was no post of Assistant Wireman, as such they should be regularized as Wireman after observing usual formalities. It was on the basis of respondents own letter dated 24.1.1991 that specific order dated 24.3.1992 was issued whereby applicant was regularized as Wireman in the pay scale of Rs. 950-1500 from the date of his appointment as Assistant Wireman in the department (page 38), therefore, by virtue of order dated 24.3.1992, applicant was, in fact, appointed as Wireman in the pay scale of Rs. 950-1500 with effect from the initial date for all purposes. This order was issued by the Sr. Superintendent of Post Offices, Saharanpur. Applicant continued to draw his salary and was even granted the benefit of first ACP in the scale of Rs. 3200-4900 with effect from 3.11.2001.
11. It was in the year 2003 that respondents ordered to revise his pay retrospectively and to make recoveries by issuing order dated 27.5.2003. This order was challenged by the applicant. We had quashed the order dated 27.5.2003 by giving liberty to the respondents to pass appropriate orders after following due process of law because earlier also respondents had not even given a show cause notice to the applicant before passing the order. They were also directed to keep in mind the judgment of Hon'ble Supreme Court in the case of Bhagwan Shukla v. U.O.I. and Ors. and State of 12. To our utter surprise respondents thereafter issued memorandum dated 8.2.2006 (page 77) wherein it was simply mentioned that his salary is to be fixed in the scale of Rs. 2750-4000 instead of Rs. 3200-4900, therefore, he may give his representation. Neither any reason was given in the said memorandum as to why they had to reduce his salary and from which date nor it showed that respondents had applied their mind. This was absolutely a vague notice. It goes without saying that giving of show cause notice is not an empty formality. The object of giving show cause notice is to put the person concerned on notice as to why the proposed action is required to be taken by the department giving the reasons, so that the employee may represent to the said reasoning by giving his own view point or facts as known to him. In the absence of reasons, the memorandum dated 8.2.2006, by no stretch of imagination, could be termed as a show cause notice, therefore, it is liable to be quashed on this ground alone.
13. Pursuant to memorandum dated 8.2.2006, applicant had submitted a detailed representation but ultimately respondents issued order dated 15.2.2007 by simply recording that he was appointed as Assistant Wireman w.e.f. 1.2.1986 and referring to the orders of DP Posts dated 23.10.2002 and fixing his pay in the lower scale with effect from 1.2.1986 in the scale of Rs.800-1150, w.e.f. 1.1.996 in the scale of Rs. 2650-4000 and w.e.f. 9.8.1999 in the scale of Rs. 3050-4590.
Accordingly, it was ordered that the pay of applicant would be drawn in reduced pay scale with effect from 1.2.1986.
14. We are rather surprised at the way, the respondents have passed this order also. In the counter affidavit respondents have themselves admitted that applicant was regularized as Wireman with effect from 1.2.1986 in the pay scale of Rs. 950-1500 vide order dated 24.3.1992 and was paid the benefit of first ACP in the scale of Rs. 3200-4900 with effect from 9.8.1999 vide order dated 3.11.2001. None of these orders were cancelled by the respondents nor it was explained as to why applicant was regularized in the first place as Wireman vide order dated 24.3.1992 and why order dated 24.1.1991 was issued by the office of the CPMG, UP Circle, Lucknow. It goes without saying that once applicant was regularized as Wireman by specific order, unless that order was cancelled, applicant's pay could not have been reduced by the respondents by treating him as Assistant Wireman that too in the manner as has been explained in above paras. In these circumstances, we have no other option but to quash the memorandum dated 8.2.2006 as well as order dated 15.2.2007 because they are not maintainable.
15. Counsel for the respondents prayed that they should be given another opportunity to pass the correct orders. He paced reliance on the judgment of Hon'ble Supreme Court in the case of The State of Haryana and Ors. v. Ram Kumar Mann find that judgment is not at all applicable in the facts of the present case. After all when we had quashed the orders of the respondents in the first OA, respondents were given opportunity to pass the orders, after following due process of law. If respondents do not understand what is due process of law and how orders are required to be passed, we cannot go on explaining to them each time as to what they are required to do. Moreover, we do not think any purpose would be served by again giving further opportunity to the respondents because respondents are still treating the applicant as Assistant Wireman whereas he was already regularized as Wireman way back in 1982.
16. In view of above, OA is allowed and the memorandum dated 8.2.2006 as well as order dated 15.2.2007 are quashed and set aside. No order as to costs.