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Saturday, April 25, 2009

Pay Protection - Transfer under commpassionate ground

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CENTRAL ADMINISTRATIVE TRIBUNAL
MADRAS BENCH
P R E S E N T
The Hon'ble Mr.R.Ganesan, Administrative Member
AND
The Hon'ble Mr.K.Elango, Judicial Member
1. Union of India rep. by
Secretary,
Ministry of Defence Department of Defence Production
New Delhi - 110 001.
2.The Chairman
Ordnance Factories Board
10-A Auckland Road ........................ Respondents in both the OAs
Kolkatta - 700 001.
3.The Senior General Manager
Heavy Vehicles Factory
Avadi
Chennai 600 054.
4.The General Manager
Cordite Factory ........................... 4th respondent in OA 414/2006
Aravankadu
Nilgris.
Counsel for the applicant................. M/s. Paul and Paul in both the
OAs.
Counsel for the respondents............. Mr.R.Priyakumar in both the OAs.
(Order pronounced by the Hon'ble Mr.R.Ganesan,
Administrative Member)
The applicants in O.A.Nos.414 and 416/2006 working in Heavy Vehicles Factory, Avadi, Chennai have sought the following reliefs:
O.A.No.414/2006
a) for declaration, declaring the undertaking dated 2005 given by the applicant as illegal and void.
b)for consequential order quashing the Factory Order No.668 dated 20.3.2006 of the third respondent as illegal and void.
c) for consequential direction to the respondents to fix the pay of the applicant at Rs.4200/- with effect from 26.9.2005 with all attendant benefits like increments, arrears of pay etc.
d) for such further or other relief or reliefs as this Hon'ble Tribunal deems fit in the circumstances of the case and thus render justice."
OA No.416/2006
a) for quashing of the Factory Order No.794 dated 29.3.2006 together with the rejection letter No.0906/LB/DG/2006 dated 2.4.2006 of the third respondent as illegal and void.
b) for consequential direction to the respondents to grant and protect the pay scale of the applicant as Rs.4000-6000/- and fix the pay of the applicant at Rs.4300/- as drawn by the applicant prior to the issuance of the impugned order dated 29.3.2006 with all attendant benefits like increments, arrears of pay etc. or in the alternative grant pay protection to the applicant and fix the pay of the applicant at Rs.4200/- with effect from 19.9.2005 with all attendant benefits like increments, arrears of pay etc.,
c) For such further or other relief or reliefs as this Hon'ble Tribunal deems fit in the circumstances of the case and thus render justice."
2. As the relief sought for by the applicants is of the same nature namely protection of pay on transfer from one unit to another, they are disposed of by this common order.
OA No.414/2006
3. The applicant was originally appointed in semi skilled grade in the Cordite Factory, Aravankadu on 9.12.1999 and presently working in Highly skilled grade in H.V.F. Avadi in the pay scale of Rs.4000-6000/-. He was transferred from Aravankadu to Avadi in the lower skilled grade in the scale of pay of Rs.3050-4590/- with effect from 26.9.2005. At the time of transfer the applicant was drawing Rs.4200/- in the scale of pay of Rs.4000-6000/-. However, the administration while considering the applicant for transfer had taken an undertaking from him that he would not claim for pay protection which he was otherwise entitled to as per the provisions of Fundamental Rules. As the applicant had given an undertaking by the force of circumstances, by applying the undertaking, his pay was fixed at Rs.3350/- with effect from 1.12.2005 in the scale of pay of Rs.3050-4590/-. According to him, he was entitled for pay protection under FR 22(1)(a)(3) but he was denied the same on the ground that he had given an undertaking against claiming pay protection.
4. The applicant contended that similarly placed employees in the neighboring Engine Factory and also in the same factory such pay protection has been granted. The applicant has lost his seniority due to transfer but he cannot be further burdened loss of pay as well as loss of service rendered by him prior to his transfer. Since the applicant has been informed that any representation on the subject would not be considered at all in view of the undertaking given by him, he has filed the O.A.
5. The respondents in their reply to O.A.No.414/2006 submitted that the applicant was transferred from Cordite Factory Aravankadu on reversion from CPW LM highly skilled grade to Machinist skilled in the pay scale of RS.3050-459-/- as per applicant's request on compassionate ground with effect from 26.9.2005, while he was drawing the basic pay of Rs.4200/- at that time of his transfer in the scale of Rs.4000-6000/-.Regarding fixation of pay, the applicant has given an undertaking that on his reversion in the Machinist 'S' Grade, the pay will be fixed in the Skilled grade,on the principle of had the applicant continued as Skilled what would have drawn as basic pay in the Skilled Grade he will not claim at any stage for protection of pay in higher grade and as such agree to bear the loss in his basic pay. The applicant also had given an undertaking that he will not claim pay protection as per Ministry of Defence OM P.C.No.A/07502/Org.4(Civ)(d)3140/d (Civ)dated 31.5.1980 where posting/transfer involves reduction in the trade, the pay will be fixed by giving the benefit of completed years of service rendered in the previous post. Accordingly the applicant's pay was fixed at Rs.3350/- with effect from 1.12.2005 with next date of increment being 1.12.2006 in the pay scale of RS.3050-4590/-. The applicant had on his own and not under any force given his undertaking the option to come over to the lower scale because of his own personal requirements and the order was on compassionate ground and the transfer order was not in public interest. In such a situation the pay will be fixed by giving the benefit of completed years of service rendered in the previous post and FR 22 (1) (a) (c) cannot be applied to his case. The respondents added that as per the DOPT clarification vide OM No.16/6/2001-Estt. Pay-I dated 14.2.2006 regarding fixation of pay in cases of employees who seek transfer to a lower post under FR 15(a) and to fix the pay if the maximum of the pay scale of the lower post is less than the pay drawn by the applicant in the higher post, his pay maybe restricted to the maximum of the lower scale under FR 22(1)(a) (3). But this order take effect from the date of issue of the order dated 14.2.2006 and the past case already decided need not be reopened. The applicant case being an old case prior to the issue of DOPT OM dated 14.2.2006, the applicant's pay cannot be fixed as per FR 22(1)(a)(3). For the above reasons they pleaded for the dismissal of the O.A.
5. The applicant has filed a rejoinder reiterating the averments made in the O.A. He had listed various names who got the benefit of pay protection under similar circumstances. He stated that out of 204 transfers nearly 80 employees have been given pay protection and all those transfers prior to 14.2.2006 the date of clarificatory memorandum by which the applicant is denied the benefit.
OA NO.416/2006
6.The applicant in this O.A. was appointed on 8.2.1991 in the Fitter skilled grade at HAPP, Trichy, promoted to Skilled grade in 1993 and highly skilled grade in 2003 and he was placed in the scale of pay of Rs.4000-6000/- vide order dated 19.2.2003. While working as Highly skilled employee at HAPP Trichy, the applicant was transferred to the third respondent factory on the basis of his request. An undertaking had been obtained from the applicant at the time of his transfer. However the applicant was transferred to the lower skilled grade in the third respondent factory, which carried the pay scale of Rs.3050-4590 (revised). The applicant joined the transferred post on 19.9.2005. At the time of transfer the applicant was drawing Rs.4200/- in the pay scale ofRs.4000-6000/-by virtue of the financial upgradation granted to him. Therefore, the applicant was entitled to pay scale protection as per ACP scheme or atleast the pay protection as per the provisions of the fundamental rules and other instructions/clarifications issued by the Govt. of India. Though his pay was rightly fixed at Rs.4200/- initially by order dated 29.3.2006, it was again refixed at Rs.3875/- with effect from 1.5.1996 in the pay scale of 3050-4590 applicable to skilled grade. According to him he was drawing Rs.4200/- at the time of his transfer and therefore he was entitled to pay protection under FR 22 (1) (a)(3). No notice was issued to the applicant before ordering refixation of pay. He represented to the third respondent on 27.4.2006 for cancellation of the impugned order but the same was rejected. He also contends that similarly placed employees were given pay protection and financial upgradation which has been denied to him.
7. The respondents have in their separate reply in O.A.NO.416/2006 confirmed the facts as detailed in the O.A. by the applicant, adding that the pay was initially fixed at Rs.4200/- with effect from 19.9.2005 in the scale of pay of Rs.4000-6000/- since he was granted ACP with effect from 19.3.2003 in the skilled grade before his promotion to highly skilled grade with effect from 20.5.2003. The proposal was submitted to the Local Accounts Officer for concurrence but it was disagreed stating that the applicant was transferred on reversion on compassionate ground on his own request from Fitter HS to Fitter 'S' and therefore, the pay has to be fixed as per Para 1(C) of Ministry of Defence order dated 31.5.1980 by giving the benefits of completed years of service rendered in the previous post and hence the order dated 29.3.2006 was issued. The applicant's pay was fixed at Rs.3200/- with effect from 1.5.1996 and further progressed till 1.5.2005 in the scale of pay of Rs.3050-4590/-. The applicant's pay was fixed as per Govt. orders on the subject for those who have come on reversion on compassionate grounds and he is not entitled for pay protection under FR 22 (1)(a) (3). They also reiterated that according to order dated 14.2.2006 of DOP&T the releif can be given only prospectively and past cases cannot be reopened.
8.The applicant in this O.A.NO.416/2006 has submitted a rejoinder reiterating the averments made in the O.A. and also indicating specific cases where similarly placed persons were given the relief.
9. We have heard the learned counsels for the applicants and the respondents and perused the relevant records carefully.
10. The learned counsel for the applicants submitted that DOPT in their order No.F.No.16/6/2001-Estt-I dated 4.1.2007 has further clarified that the earlier order dated 14.2.2006 will be applicable to all cases, even those issued prior to 14.2.2006, as the operative part prohibiting such a consideration has been deleted. The order dated 14.2.2006 which stipulates giving pay protection under FR 22(1)(a)(3) states in para 5 that "These orders take effect on the date this OM is issued. Past cases already decided need not be reopened" The order dated 4.1.2007 OM is as under:
"In partial modification of this Department's OM of even number dated 14.2.2006 on the subject above it has been decided that para 5 of the said OM which inter-alia lays down that "these orders take effect from the date this OM is issued. Past cases already decided need not be reopened" shall stand deleted.
(emphasis added)
11. Thus the respondents can no longer hold the OM of 14.2.2006 against the applicants from reopening their cases on the plea that they were transferred prior to the said date. Under the circumstances, the applicants have made out a clear case for granting the relief sought for. The O.As. are therefore allowed with a direction to the respondents to provide pay protection in accordance with the provisions contained in the order dated 14.2.2006 and issue necessary orders to that effect to the applicants herein within a period of six weeks from the date of receipt of a copy of this order. No costs.
(K.ELANGO) .............................. (R.GANESAN)
MEMBER(J) .............................. MEMBER(A)
.3.2007.
Index:
grk/-

Special Recruitment Drive to fill up the backlog reserved vacancies for PERSONS with DISABLITIES...

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If any vacancy reserved for any category of disability cannot be filled due to non-availability of a suitable person with that disability or for any other suffcient reason,
such vacancy is not filled and is carried forward as a 'backlog reserved vacancy' to the subsequent recruitment year. In the subsequent recruitment year, the 'backlog reserved vacancy' is treated as reserved for the caregory of disability for which it was kept reserved in the initial year of recruitment and filled as such.
However, if a suitable person with that disability is not available in the subsequent recruitment also, it may be filled by interchange among the three categories of disabilities, failing which by appointment of a person other than a person with disability. It may, thus, be seen that if a vacancy is earmarked reserved for any category of disability and a suitable person with that disability is not available to fill it up in the initial year of recruitment, it becomes a 'backlog reserved vacancy' for first subsequent recruitment year.
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