FACTS REGARDING Deos CASE

FACTS REGARDING DEOs CASE

The cadre of DEOs which has been created by virtue of amendment to the recruitment rules vide Government of India, Ministry of Defence(Finance) Notification dated 30/05/1992 was to the original Defence Accounts Department (Gp-C & D) recruitment rules, 1971.

Though the amendment to the original Defence Accounts Department (Group-C and D) recruitment rules 1971 was issued on 30/05/1992, it was deemed to have come into force from 11/09/1989.

The Electronic Data Processing was introduced prior to the implementation of 4th Central Pay commission recommendations, w.e.f. 01/01/1986.

The Government of India soon after conceiving the idea of introduction of computer system in the Accounting Organisations, thought that as a first step to introduce computerized Accounting system by making use of Key punching mechanism for Electronic Data Processing. At that point of time Department of Electronics had occasion in consultation with all user Ministries had limited its utility only to Data Entry required for accounting purpose. Therefore the Department conceived and formed the cadres of Jr.Key Punch Operator and Sr.Key Punch Operator, providing the minimum scale of Rs.280-00 for Jr.K.P.O and Rs.330-00 for Sr.K.P.O.

This scale was later modified as Rs.950-1500 for Jr.K.P.O and Rs.1200-2040 for Sr.K.P.O.

The nature of duties to be discharged for the post of Jr.K.P.O & Sr.K.P.O were not defined correctly in the initial stage, though an attempt was made to define the functions in 19/09/1990.

The user Department of the Electronic Accounting through Key punching System was initially adopted in the Department of Census and Department of Railways and later was made use of in other Departments like Defence Accounts Department, Income Tax Department etc.

The recruitment for the Jr.K.P.O was initially introduced in the Electronic Accounting System and the minimum qualification prescribed for this post was a pass in Class 10 with the knowledge of Key Punching.

As this was the only post for the purpose of recruitment under the Key punching system at the feeder level, a promotional post was also created to provide incentive to the persons who have been appointed as Jr.K.P.O after certain years of experience in the feeder cadre.

In order to provide incentive on promotion to Sr.K.P.O a higher pay scale was also provided to the Sr.K.P.O.

The Government of India in the several user Departments, when they decided to introduce this Key Punching system for the purpose of accounting, the recruitment of Jr.K.P.O was initially done right from the year 1979 onwards by the Department of Census, Department of Railways, Defence Accounts Department etc.

Right from the inception of creating the post of Jr.KPO / Sr.KPO the Government of India was not very clear as to not only the working of the system but also the future of the cadre on permanent footing. Under such circumstances, the Departments which were in need of K.P.Os. for manning the Electronic Accounting System appointed personnel to the post of Jr.K.P.O only, throughout the country starting from 1979 onwards, up to the date of creation of the post in the various Departments including Defence Accounts Department after acceptance of Dr.Sheshagiri Committee Report in the wake of 4th Central Pay Commission Recommendations.

Though the Department which adopted the Electronic Accounting System were limited initially, later all the Departments in Government of India adopted the system of Electronic Accounting throughout the country.

In the present case in so far as all the persons who are appointed as Jr.K.P.Os in Defence Accounts Department were all appointed prior to the creation of cadre of Data Entry Operators which came into existence by amendment to recruitment rules vide Government of India, Ministry of Defence Notification dated 30/05/1992.

Therefore all the present incumbents who are now working in the Defence Accounts Department under the Electronic Accounting System are originally appointed as only Jr.K.P.Os, prior to the introduction of a new cadre of Data Entry Operator which came into effect from 30/05/1992.

The implication of this is that the new cadre created under the amended recruitment rules w.e.f. 30/05/1992 though made its application retrospectively w.e.f. 11/09/1989 has no application to the existing incumbents in the Defence Accounts Department who are now working in the various cadres as Data Entry Operators Grade ‘A’, Grade ‘B’, Grade ‘C’ etc.

The future conditions under the new recruitment rules which came into effect from 30/05/1992 have no impact or significance in so far as altering the service conditions of such persons who have been appointed under the no rule period when there was no regular statutory recruitment rules prior to 30/05/1992.

In the Notification dated 30/05/1992, though the cadre was created by formation of recruitment rules for Data Entry Operators Grade ‘A’ to Grade ‘D’ it has been specifically mentioned that the amendment to the recruitment rules 1992 is deemed to have come into force on 11/09/1989. This is also not applicable to the case of present incumbents who have been appointed prior to 30/05/1992 as Jr.K.P.O, as they were appointed in the no rule period when the executive instructions were in force wherein the service conditions were guaranteed under the service conditions stipulated under the existing instructions of the Government India. They were appointed as Jr.KPO with the pay scales admissible to them at that point of time and they have their vested right for the benefit of pay scale and the service conditions existing at that point of time i.e., prior to recruitment rules which came into being on 30/05/1992.

Prior to formation of the cadre of Data Entry Operators from 30/05/1992 there was an issue which was being adjudicated by the members of the Key punch operating system who were initially appointed as Jr.KPOs in the lower scale of Rs.280-00, clamoring for the higher pay scale available to the post of Sr.KPO as they were discharging the same duties and responsibilities that were meant for Sr.KPO at that point of time. As the scale of Sr.KPO was higher starting from Rs.330-560-00, the Jr.KPO who initially started with the pay of Rs.280-00 insisted for granting the scale of pay of Rs.330-560. This was the question that was required to be decided by Government of India. The employees of the Department who agitated this matter for grant of higher scale of pay meant for Sr.KPO was the Census Department which was later adopted by Railways Department. Though the employees of Electronic Accounting System who were working as Jr.KPOs in these Departments made a request for grant of the pay scale of Sr.KPO, this was not acceded to by the Government. Therefore these employees had to approach the various legal forum available at that point of time for allowing this benefit to them.

The various Judicialfora which heard the matter allowed their application on the ground that the nature of duties performed by both the incumbents holding the post of Jr. and Sr. K.P.O. were discharging the same duties. The concept of equal pay for equal work which was available under the directive principle of the State policy was extended to every individual as a constitutional guarantee to be read with the fundamental rights.

[RANDHIRSING V/s UNION OF INDIA : AIR 1982 SC 879]

Recognising this concept the Hon’ble Supreme Court held that the benefit of equal pay for equal work should be made available to all the incumbents of the posts who were discharging identical duties and in the matter of extending higher scale of pay in the present case to that of Sr.KPO post, there cannot be any discrimination. Therefore this concept which was crystalised way back in 1982 in Randhirsingh case was taken note of by various judicial fora and the benefit of higher scale of pay of Sr.KPO were extended to the Jr.KPO also, right from the date of appointment.

Though under the Electronic Accounting Systems in the Department of Electronics when the concept was not very clear in so far as its application to and creation of post of K.P.O./D.E.O etc was not in a position to feed the correct material to the 4th Central Pay commission which was at work at that point of time. As this was a technical aspect which had to be gone into by a technical person, 4th Central Pay commission was not in a position to decide the replacement / revised scales of pay to the post of Jr.KPO/Sr.KPO etc., after 01/01/1986.

In order to find a solution to this a technical committee was constituted by Government of India under the chairmanship of one Dr.Sheshagiri Committee. This Committee undertook an exercise to study the system and to suggest the correct cadre to be created in future with the correct designation, scales of pay, promotions etc. The committee took some time to go into the question and decide and make recommendations to Government of India. Though in respect of all the Departments, the question of revision of pay scales under 4th Central Pay commission recommendations came into effect from 01/01/1986, in so far as the post of K.P.Os under the Electronic Accounting System took some time to provide replacement / revised scales under 4th Central Pay commission. This was done in the year 1989 as the revised pay scales were given effect to from 01/01/1986 under the 4th CPC recommendations though in the Defence Accounts Department, after accepting the Sheshagiri Committee recommendations, the recruitment rules were amended, providing the revised Designations/posts under the Data Entry Operators, the revised scales of pay were introduced vide Ministry of Finance, Department of Expenditure OM No.F.7(1)/IC/86(44) dated 11/09/1989. From this it is clear that though under the amended recruitment rules which came into effect from 30/05/1992 providing a complete cadre under the Data Entry operating system, creating the initial cadre of DEO-A, B, C & D, while doing so the initial cadre of DEO’s-A was equated to that of Jr.KPO which was the initial cadre under the system. Under the 4th CPC recommendations the scale of pay of DEO-A was 1150-1500. The next cadre under the Data Entry system was DEO-B which was a promotional post to that of feeder post of DEO-A. This post carried a higher scale of pay of Rs.1350-2200.

As indicated above by application of the principle of equal pay for equal work all the existing incumbents in Defence Accounts Department who were appointed prior to the formation of cadre of Data Entry Operators under the amended recruitment rules dated 30/05/1992 were already enjoying the benefit of scale of pay of Sr.KPO which was equated to that of DEO-B of the scale of Rs.1350-2200.

This was an accepted proposition which had obtained the legal seal and accepted by Government at that point of time without demur and not questioning the legality of the decisions of various benches of Central Administrative Tribunals which had granted this benefit of higher scale of pay of Rs.1350-2200 to those DEOs (who were earlier appointed as Jr.KPO) w.e.f. 01/01/1986.

An important aspect to be borne in mind is that the persons who were denied the scale of pay of DEO-B ( to the persons of Grade of DEO-A) had approached the various benches of Tribunals like CAT Hyderabad, CAT Jabalpur, CAT Lucknow, CAT Mumbai etc. The first bench to decide the grant of higher scale of pay was that of Hyderabad bench in OA No.957/90, Y.Jagmohan Reddy & others Vs Secretary, Ministry of Home Affairs, reported in 1993(23)ATC 42. This was followed by the Jabalpur bench and later adopted by the Lucknow bench also. On pronouncement of decision in these benches, Government has decided to implement that Judgement. In fact while implementing the Judgement, a reference is made to Government letter dated 23rd /24th October 2002 which reads as;

“Similarly the CAT Lucknow Bench Judgement of OA No.150 of 2001 was also referred to Ministry of Defence (Finance) and after consultation with Ministry of Finance, Department of Expenditure, they have decided to implement the Judgement in respect of the applicants of 150 of 2001 only”

From this it is clear that when the Lucknow Bench decided the issue in OA No.150/2001 which provided for extension of higher scale of pay of 1350-2200 even to the DEOs Grade ‘A’(who were earlier Jr.KPOs) w.e.f. 01/01/1986 or from the date of appointment to the grade of DEO-A, the Government of India accepted this decision unconditionally and implemented without seeking the remedy of appeal in the apex court.

Therefore the decision to grant the higher scale of 1350-2200 to DEOs-A right from the beginning i.e., the date of entry into service has attained finality not now but a decade before and all the persons who are holding the post of DEO Grade ‘A’ (former Jr.KPO) are enjoying the benefit of the scheme by fixation of pay in this scale and not only confined to this by virtue of their continued service in the Department, they have also been entitled to the next higher grade of DEO-C both on regular promotion as well as ACP. They have also been paid arrears of Pay.

In one case wherein the persons who are aggrieved from the Defence Accounts Department, holding the post of DEO Grade ‘A’, working in CDA Bombay who were denied of this benefit had approached the CAT Bombay bench in OA No.130,169 &207/2002, which allowed their application and granted the benefit of higher scale of 1350-2200 to the applicants.

This was not a solitary instance but a batch of cases. The Government of India, strangely challenged the decision of Bombay bench of Tribunal before the Hon’ble High Court of Bombay in WP No.4441/2003, 3733/2003, 3734/2003, 3735/2003, 4443/2003, 4444/2003, 4446/2003, 4447/2003, 4451/2003, 4452/2003, 4454/2003, 4456/2003, 4457/2003, 4458/2003, 4459/2003, 4460/2003 & 4461/2003.

All these Writ Petitions were clubbed and heard together by the Hon’ble High Court of Bombay on 27/02/2008. The Division Bench which heard the matter found no substance in the appeal filed by the Government of India and dismissed the appeal as devoid of merit. The point that was considered by the High Court of Bombay in deciding the issue was that when all the benches of CAT including Lucknow Bench decided to extend the benefit of higher scale of pay of 1350-2200 to DEO-A, right from the date of initial appointment has been accepted by the Government not only in the administrative Ministries of Defence but also after consultation of Ministry of Finance, Department of Expenditure which permitted the Department to implement the Judgement in respect of the applicants.

Under such circumstances, the Hon’ble High Court of Bombay opined that when the matter has been decided long back and benefit has been extended to the employees by obtaining the approval of Government of India, Ministry of Finance, all the employees have been enjoying the benefits of scale of 1350-2200 right from the date of initial appointment. Therefore the Court declined to interfere with the decision of CAT Bombay Bench.

When the matter stood at that, one Sri.MallikarjunaRao who is working in Staff Selection Commission Office at Madras had approached the CAT Chennai Bench in OA 870/2007, seeking for the relief that he is a degree holder prior to his appointment so he has to get DEO-B post from the date of appointment to him though he was appointed as DEO-A. His application was not considered by Madras Bench of Tribunal. Sri.MallikarjunaRao who was aggrieved by the decision of the Madras Bench of CAT, had approached the Hon’ble High Court of Madras in WP No.3195/09. The Hon’ble High Court of Madras in their decision dated 14/10/2009 had allowed the appeal setting aside the order passed by the CAT Bench dated 07/11/2008 with a further direction to the Respondents to grant the scale of 1350-2200 to Sri.MallikarjunaRao.

Now the Government being aggrieved at this stage has filed an Appeal by filing a SLP No.26977/10 before the Hon’ble Supreme Court of India. It is noticed that along with this SLP, other SLPs 28595-28596 of 2010 have also been clubbed in this Appeal before the Hon’ble Supreme Court.

The respondents in SLPs 28595-28596 of 2010 who were not appointed Jr.K.P.O (DEO-A). These persons were redesignated to these posts.

In so far as the decisions of Writ Petitions in respect of High Court of Bombay clubbed with the SLP 26977/10 [ Sri.MallikarjunaRao] relates to the DEOs who are working in Defence Accounts Department as DEOs under various Controllers Office of Defence Accounts, spread throughout the Country.

G R O U N D S

1. The issue involved for the grant of the scale of 1350-2200/- applicable to DEO’s Grade ‘B’ to that of DEO’s Grade ‘A’ has to be read with the position that was existing prior to the formation of the cadre of DEOs w.e.f. 30/05/1992. In other words all the persons who are working in Defence Accounts Department under the existing DEO cadre were all appointed not under the present recruitment rules which came into force w.e.f. 30/05/1992. They were appointed as Jr.KPOs under the Service conditions that were existing prior to the formation of DEO cadre during 1992.

1. These persons were initially appointed as Jr.KPOs having noticed the fact that they were discharging the same duties as that of Sr.KPOs has adjudicated the matter for grant of higher scale of pay of Sr.KPO. Though initially this was not granted by the Government, the members had to approach the various Benches of Tribunals in the Country which relied on the decision of Honourable Supreme Court in RANDHIRSING V/s UNION OF INDIA : AIR 1982 SC 879, applying the principle of equal pay for equal work. The decisions of these Benches have been accepted by the Government of India in the Ministry of Finance in toto and allowed the employees to enjoy the benefit and provided them the vested right for the last more than a decade. Therefore at this distance of time the vested right in law cannot be taken away.

[T.NARASIMHALU Vs STATE OF ANDHRA PRADESH] REPORTED IN (2010) 2 SCC(L&S)230