Union Of India & Ors vs R. Vasudeva Murthy & Ors

1.In these and connected appeals, we are required to

consider the effect and implication of the Office

Memorandum No.13(1)-IC/91 dated 19.10.1994 (hereinafter for

the sake of brevity shall be referred to as 'O.M.') issued

by Government of India, Ministry of Finance, with regard to

revision of pay scales of Draughtsmen Grade I, Grade II and

Grade III in all Government of India offices. As it was

felt that Draughtsmen of various Departments, even though

discharging same functions, were paid different pay scales,

thus to bring parity throughout the country with regard to

their pay scales, the aforesaid O.M. was issued. The said C.A.Nos.9113-9126/03 etc. .... (contd.)

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O.M. came to be considered by the various High Courts

namely, High Court of Karnataka, High Court of Andhra

Pradesh, High Court of Madras and High Court of Gujarat as

many Draughtsmen had approached the different Benches of

Central Administrative Tribunals for extending them the

benefits of the O.M. Since the benefit was extended to them

by the different Tribunals, Union of India and/or

Department of Telecommunications had approached the

jurisdictional High Courts challenging it. However, there

have been divergent views with regard to implementation

thereof. Thus, in nut shell we are called upon to set at

rest the controversy by giving true, correct, proper,

meaningful and purposeful interpretation of the said O.M.

2.Various judgments of the High Courts would also be

considered at a later stage. Prior to issuance of the said

O.M., a notification was issued on 23rd August 1993 by the

Ministry of Communication, Department of Telecommunications

dealing with the same subject as mentioned hereinabove.

This Notification was issued in the light of various orders

passed by the Central Administrative Tribunal and various

High Courts from time to time. On account of several

representations received from Draughtsmen for introduction

of Grades and pay scales at par with those working in CPWD,

by the said Notification three grades in the pre-revised

payscale of Rs.330-560, Rs.425-700 and Rs.550-750 C.A.Nos.9113-9126/03 etc. .... (contd.)

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designated as Draughtsmen Grade III, Draughtsmen Grade II

and Draughtsmen Grade I respectively were fixed. The said

notification further fixed ratio of 60:30:10 for

Draughtsmen Gr.III, Gr.II and Gr.I respectively. The

number of posts for Grade II and Grade I were to be worked

out on Circle basis as these are Circle cadres.

3.It further contemplated that the revised pay scales will

be admissible to these officials notionally from 22.8.1973

but actual financial benefit would accrue to them from

16.11.1978 or from the date of appointment / promotion in

each grade, whichever is later.

4.Another Notification dated 6.7.1994 was issued by the

same Ministry in exercise of powers conferred by proviso to

Article 309 of the Constitution of India and in

supersession of the Telecommunications Department

Draughtsmen (Recruitment) Rules 1986. By this

Notification, the Rules with regard to regulating method of

recruitment to the post of Draughtsmen Grade III, Grade II

and Grade I in the Department of Telecommunication were

notified, known as the Telecommunications Department

(Draughtsman Grade III, Grade II and Grade I) Recruitment

Rules, 1994. They were to come into force from the date of

its publication in the official gazette. Schedule appended

thereto mentions that total number of 900 posts would be

available with regard to Draughtsmen Grade III in the pay C.A.Nos.9113-9126/03 etc. .... (contd.)

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scale of Rs.1200-30-1560-EB-40-2040, 450 posts of

Draughtsmen Grade II would be available in the pay scale of

Rs.1400-40-1800-EB-50-2300 and 150 posts would be available

for Draughtsmen Grade I in the pay scale of Rs.1600-50-

2300-EB-60-2660 as on 31.12.1992. However, it was subject

to variation as per the requirement and need of the

Department.

5.All these posts were categorised as Group 'C' and DPC of

the officers was to be constituted as projected in the said

schedule. As already mentioned hereinabove, all the

aforesaid cadre posts were in the ratio of 60:30:10.

6.Impugned O.M. Dated 19.10.1994 clearly mentioned that

minimum period of service for Grade III, Grade II and Grade

I would be 7 years, 5 years and 4 years respectively, so as

to make them entitled to earn upgradation or revision of

their salary.

7.For proper appreciation and examination of O.M., the same is reproduced hereinbelow:

" No.13(1)-IC/91 Government of India Ministry of Finance Department of Expenditure ___________

New Delhi, the 19th Oct., 1994

OFFICE MEMORANDUM

Subject:- Revision of pay scales of Draughtsmen Grade I, II and III in all Government of India offices on the basis of Central Public Works Department. C.A.Nos.9113-9126/03 etc. .... (contd.)

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The undersigned is directed to refer to this department's O.M.No.F.5(59)-E.III/82 dated 13.3.1984 on the subject mentioned above and to day that a Committee of the National Council (JCM) was set up to consider the request of the Staff Side that the following scales of pay, allowed to the Draughtsmen Grade I, II and III working in CPWD on the basis of the Award of Board of arbitration may be extended to Draughtsmen Gradw I, II and III, irrespective of their recruitment qualification, in all Government of India offices:

Original Revised Scales Scale on the basis of the Award (Rs.) (Rs.)

Draughtsmen Grade I Rs. 425-700 Rs. 550-750

Draughtsmen Grade II Rs. 330-560 Rs. 425-700

Draughtsmen Grade III Rs. 260-430 Rs. 330-560

2. The President is now pleased to decide that the Draughtsmen Grade I, II and III in offices/departments of the Goverment of India other than in CPWD may also be placed in the scales of pay mentioned above subject to the following:

(a) Minimum period of service for : 7 Years placement from the post carrying scale of Rs.975-1540 to Rs.1200-2040 (pre-revised Rs.260-430 to 330-560)

(b) Minimum period of service for : 5 Years placement from the post carrying scale of Rs.1200-2040 to Rs.1400-2300 (pre-revised Rs.330-560 to 425-700)

(c) Minimum period of service for : 4 Years placement from the post carrying scale of Rs.1400-2300 to Rs.1600-2660 (pre-revised Rs.425-700 to 550-750)

C.A.Nos.9113-9126/03 etc. .... (contd.)

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3.Once the Draughtsmen are placed in the regular scales, further promotions would be made against available vacancies in higher grade and in accordance with the normal eligibility criteria laid down in the recruitment rules.

4.The benefit of this revision of scales of pay would be given with effect from 13.5.1982 notionally and actually from 1.11.1983.

Sd/-

Under Secretary to the Govt. Of India"

1.Clause 3 thereof clearly stipulates that once the

Draughtsmen are placed in regular scales, their further

promotion would be made against available vacancies in

higher Grade and in accordance with criteria laid down in

the Recruitment Rules. Plain and simple reading of the

aforesaid Clause 3 makes it clear that upgradation/

revision of pay scale is not as of right by putting in

minimum period of service of 4 years, 5 years and 7 years

as the case may be but is attached with riders. To get

upgradation, it is necessary that the vacancies are

available, only then the said upgradation would be allowed

and it is further subject to the Recruitment Rules

applicable to the case of each employee.

2.However, different High Courts have interpreted the O.M.

differently. In fact, Karnataka High Court and High Court

of Gujarat have held that once a Draughtsman puts in

requisite length of service, he would automatically become

entitled for upgradation of his salary as per the O.M. but

C.A.Nos.9113-9126/03 etc. .... (contd.)

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Madras High Court and full Bench of Andhra Pradesh High

Court have held that it would be applicable only if there

exists a vacancy in the respective cadres. Thus, we are

required to consider the said matter in the light of the

judgments of various High Courts, which we shall do now.

3.The Union of India, feeling aggrieved by the Order passed

by Central Administrative Tribunal, Bangalore had filed a

Writ Petition before a Division Bench of the High Court of

Karnataka at Bangalore which came up for consideration on

29.6.2001. On the said date, while disposing of the said

petition, Division Bench passed the following order:

"Respondents had completed four years of service for being put in the higher grade as per the Notification dated 19.10.1994 much earlier to the withdrawal of the said Notification on 19.2.1997. The Tribunal has rightly granted the benefit of the G.O. Dated 19.10.1994 to the respondents.

No merit. Dismissed.

Sd/-

Sd/-"

4.Thus, the High Court of Karnataka held that the Tribunal

was justified in granting the benefit of G.O/O.M dated

19.10.1994, to the respondents working as Draughtsmen.

5.The Union of India, feeling aggrieved by the order passed

by the Central Administrative Tribunal, Ahmedabad was

pleased to file several Special Civil Applications

C.A.Nos.9113-9126/03 etc. .... (contd.)

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before a Division Bench of the High Court of Gujarat. The same came to be heard and disposed of on 4.7.2002.

6.The operative and relevant part of the said judgment is

reproduced hereinbelow:

"It is, therefore, amply clear that after the implementation of the revised scales at par with CPWD Draughtsmen and in light of the publication of statutory rules for recruitment of Grade-III, II and I Draughtsmen, the proposition of ratio of 60:30:10 introduced by the O.M. Dated 23rd August, 1993 shall obviously stand obliterated. Therefore, it cannot be contended at this stage that the ultimate consequences recorded by the Tribunal in three impugned judgments based on factual matrix and correct interpretation of the government's O.M are in any way, unjust, unreasonable, illegal, perverse or in any way vulnerable. In our opinion, this group of three petitions at the instance of the Union of India against identical three judgements of the Tribunal on common issues in exercise of extraordinary, prerogative and discretionary writ jurisdiction under Articles 226 and 227 of the Constitution of India are devoid of any merits and deserve to be thrown overboard at the admission stage. Therefore, they are rejected at the threshold, Notice shall stand discharged without any order as to costs.

Sd/- Sd/-"

The result of the said judgment is that the order of the

Tribunal was upheld and the respondents were granted

benefit of the O.M. However, it has not taken into

consideration the clause regarding availability of posts or

eligibility criteria laid down in the relevant Recruitment

Rules.

C.A.Nos.9113-9126/03 etc. .... (contd.)

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7.The Union of India was also constrained to file W.P. No.597 of 2000 before a Division Bench of High Court of

Judicature at Madras challenging the order passed by

Central Administrative Tribunal, whereby the application

filed by respondent therein R. Jothimani was allowed. The

Tribunal had directed that salary of respondent Jothimani

be fixed in the higher pay scale on the basis of his

having completed 4 years of service in the post of Grade II

Draughtsmen. The said Writ Petition also came to be allowed

and the order of the Tribunal was quashed. The operative

and relevant para of the said judgment of the Division

Bench of High Court of Madras is reproduced hereinbelow:

"The first respondent did not in any manner show that actually the posts were available in Grade I and that in spite of such availability, his claim was not accepted which was made by making a specific representation. We, therefore, are unable to agree with the Tribunal and more particularly its reasoning that since there is no ratio provided in the Office Memorandum dated 19.10.1994 therefore the first respondent automatically became entitled to be fixed in the higher grade or to be taken to the Grade I Draughtsmen post on the completion of his four years of service. According to us, even if the first respondent became entitled by reason of his continuous service of four years in Grade II yet he could be entitled to the higher emoluments or the higher pay scale only if the post was available in Grade I in terms with the ratio provided for by the rules and more particularly by office memorandum dated 23.8.1993. That being the case, we must hold that the Tribunal was in error in taking the

C.A.Nos.9113-9126/03 etc. .... (contd.)

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view that it held. We accordingly set aside the order of the Tribunal and order the dismissal of the original application. The writ petition is allowed. However, there shall be no orders as to the costs. W.M.P. No. 869 of 2000 is closed."

8.Admittedly, against the order passed by the Madras High

Court, in the aforesaid matter, the respondent therein did

not challenge the same before this Court by filing a

Special Leave Petition. Thus, the order of the Madras High

Court had attained finality.

9.In the High Court of Andhra Pradesh at Hyderabad, on

account of difference of opinion between two Division

Benches, matter was referred to a Full Bench of three

learned Judges. It pronounced its opinion on 24.9.2004.

There also the Union of India had preferred the Writ

Petitions against the order of the Central Aministrative

Tribunal Hyderabad, whereby benefit of the O.M. was given

to Draughtsmen. Relying on the relevant portion of the

judgment of the Division Bench of the High Court of Madras

quoted hereinabove, the Full Bench answered the reference

in favour of the Union of India and against the

Draughtsmen.

10.In the light of the opinion expressed by the Full Bench,

matter was placed before the Division Bench of the said

High Court, which allowed the writ Petition filed by the

Union of India and dismissed the Original Application

C.A.Nos.9113-9126/03 etc. .... (contd.)

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filed by the respondents, Draughtsmen.

11.In the light of the aforesaid judgments of the Division

Benches and opinion expressed by the full Bench of the High

Court of Andhra Pradesh, we are now required to consider

what would be the true correct, proper, meaningful,

effective, operative and purposeful interpretation of O.M.

dated 19.10.1994 reproduced hereinabove.

12.Learned counsel appearing for the Draughtsmen argued

before us with vehemence that necessary implication of the

O.M. is, as soon as Draughtsman Grade II completes 4 years

of service, automatically, he would be entitled, if not for

promotion, at least for upgradation in his pay scale

equivalent to that of Draughtsman Grade I. They further

contended that there was no embargo created under the O.M.

or any of the service regulations applicable to these

employees to deprive them of the benefit of upgradation of

pay as the same was necessary consequence and implication

of issuance of O.M. dated 19.10.1994.

13.On the other hand, learned counsel appearing for the

Union of India and Department of Telecommuication

forcefully opposed the said contention and submitted that

irrespective of whether an employee has fulfilled the

eligibility criteria of minimum years of service,

upgradation of scale and/or promotion to the respective

C.A.Nos.9113-9126/03 etc. .... (contd.)

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grade would be available subject to availability of vacancies as per the O.M. For the said purposes, they have

placed great reliance on the Rules which have been

formulated in exercise of power conferred by proviso to

Article 309 of the Constitution of India. These Rules

clearly stipulate that the total number of posts of

Draughtsmen Grade III would be 900, posts of Grade II would

be 450 and that of Grade I would be 150 only as on

31.12.1992 circlewise and this would be of course, subject

to variation depending on workload. No other Notification

or Rules were brought to our notice meaning thereby that

ever since 23.08.1993, when the aforesaid ratio of

Draughtsmen was fixed at 60:30:10, there has not been

enhancement or modification in the same. Thus, we have to

proceed on the assumption that even on this date, the total

circlewise cadre strength of the Draughtsmen Grade III,

Grade II and Grade I stands as mentioned hereinabove.

14.Now, coming to the O.M., Clause 3 thereof is relevant

which clearly stipulates that only when the Draughtsmen are

placed in the regular scales, they would be entitled to

further promotion against available vacancies in higher

grade and that too in conformity with the normal

eligibility criteria laid down in the Recruitment Rules.

15.Despite our repeated and persistent requests made to the

learned counsel appearing for the Union of India and

C.A.Nos.9113-9126/03 etc. .... (contd.)

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the Department, they were not able to inform us if the aforesaid strength fixed on 31.12.1992 has been enhanced or

not. We were of the opinion that more than 18 years have

elapsed and workload having increased considerably,

strength must have been increased, but no positive answer

was given to us. It appears little surprising that the

posts have not been enhanced for a period of last 18 years,

which is indeed not very appealing.

16.It is well settled that the Courts must lean against a

construction which reduces a statute to a nullity. In our

considered opinion, the O.M. must be so construed to make

it effective and operative, on the principle expressed in

the maxim:

"Ut res magis valeat quam pereat" meaning thereby that the thing may rather have effect than be destroyed.

When the words employed in the O.M are clear, plain

and unambiguous, then they are reasonably susceptible to

only one meaning. Courts are bound to give effect to the

said meaning irrespective of consequences. Necessary

consequence of the reading of the O.M. leaves no amount of

doubt that particular length of service alone is not

sufficient to entitle an employee to earn upgradation or

revision of pay, it would accrue only if the posts exist,

not otherwise.

C.A.Nos.9113-9126/03 etc. .... (contd.)

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17.In our considered opinion, the said O.M. does not give an absolute and blanket right to these Draughtsmen to claim

upgradation/revision in the salary as soon as they put in

requisite years of continuous service on the respective

post to become eligible either for higher pay scale or for

promotion. Unless, there are requisite vacancies in the

respective cadres of Draughtsmen Grade III, Grade II and

Grade I, the Draughtsmen cannot be granted the said relief.

This is what we have been able to decipher from the O.M.

dated 19.10.1994, after critical and thorough examination

thereof.

18.Thus, in our opinion, the true, effective, operative and

correct interpretation of the said O.M is that, as and when

vacancy arises in the cadre of Grade I Draughtsmen, after

putting in requisite minimum service as per said

Notification, then and only then the Draughtsmen Grade II

would be entitled for the higher pay scale not otherwise.

To clarify it further, we hold that the entitlement for

upgradation of salary is dependent on the number of

vacancies available and not otherwise. It is also to be

noted that eligibility to claim higher pay

scale/upgradation is one thing but availability of vacancy

is another. One may be eligible to claim higher pay scale

or upgradation but it is of course subject to availability

of posts. If posts are not available then, no benefit could

C.A.Nos.9113-9126/03 etc. .... (contd.)

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be accrued to the Draughtsmen.

19.We make it clear that if any of the employees have been

given the benefit of the O.M. and payments have been made

by the Union of India and/or Department of

Telecommunication, it would not be entitled to recovery

thereof from the Draughtsmen as it would be too harsh and

unreasonable to ask for refund after such a long lapse of

time.

20.In the light of this, the appeals preferred by Union of

India and Department of Telecommuication are hereby

allowed. The Orders passed by different Benches of the

Central Administrative Tribunal and of Gujarat High Court

and Karnataka High Court are set aside and quashed and the

appeals preferred by Draughtsmen are dismissed.

21.Looking to the facts and circumstances of the case, no

order as to costs.

......................J. [DALVEER BHANDARI]

......................J. [DEEPAK VERMA] New Delhi.

August 06, 2010.