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Monday, October 05, 2015

Presentation before Expert Committee on reduction of litigations on service matters – BPMS

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Presentation before Expert Committee on reduction of litigations on service matters – BPMS

(AN ALL INDIA FEDERATION OF DEFENCE WORKERS)
(AN INDUSTRIAL UNIT OF B.M.S.)
(RECOGNISED BY MINISTRY OF DEFENCE, GOVT. OF INDIA)

CENTRAL OFFICE: 2-A, NAVEEN MARKET, KANPUR – 208001, PH & FAX : (0512) 2332222
MOBILE: 09415733686, 09235729390, 09335621629, WEB : www.bpms.org.in

REF: BPMS / MOD / Litigations / 130 (7/5/L)
Dated: 29.09.2015
To,
The Deputy Secretary D(PCC/MIS)
Govt of India, Min of Deface,
‘B’ Wing, Sena Bhawan,
New Delhi – 110011

Subject: Presentation before Expert Committee on reduction of litigations on service matters.
Reference: MOD ID No. 11020/04/2015/D(Civ-II), Dated 17.09.2015

Respected Sir, With due regards, it is submitted that this federation had been raising the issue in various forums like Departmental Council JCM, during the meeting with Hon’ble Defence Minister / Defence Secretary regarding extension of judicial pronouncement to similarly placed non-petitioners in service matters so that unnecessary litigations may be minimized.

Thereupon, Ministry of Defence vide its ID No. 18(2)/2014-D(JCM), Dated 09.12.2014 (copy enclosed for your ready reference) has requested all Administrative Divisions of MOD to review all existing court cases, pending with their Divisions and take a clear decision whether to proceed with or drop the case based on the verdict of Apex Court in a similar case given in favour of petitioners and where the Government has taken a decision to implement the orders of the Hon’ble Supreme Court of India in respect of petitioners only and not in respect of similarly placed employees. It further states that wherever feasible, the grievances of the similarly placed employees about service matters shall be resolved through administrative channels and this would help in reducing unnecessary litigations as well as resentment amongst employees.

Now, this federation is happy to note that Hon’ble RM has constituted a Committee consisting of Lt. Gen Mukesh Sabharwal (Retd), Lt. Gen Richard Khare (Retd), Maj Gen T Prasad (Retd), Maj Navdeep Singh (Retd) & Maj D P Singh (Retd) to examine the cases relating to service matters that are pending in various Courts and Tribunals which may be resolved in pre-litigation stage.

Hence, this federation would like to invite the attention of expert committee to some of the following issues which may increase the litigations if not resolved amicably:-

1. Grant of ACP / MACP prior to application of Restructuring of Cadre of Artisan Staff in Defence Establishments in modification of recommendations of 6th CPC:

(i) As per OFB letter No. 01/Cadre Restructuring/A/I, dated 12.07.2003 the inter-grade ratio in respect of all skilled trades including left out trades has been fixed in the ratio and corresponding scale as mentioned below w.e.f. 20.05.2003-

1. Skilled Rs. (3050-4590) : 45%

2. Highly Skilled Rs. (4000-6000) : 55%

3. Master Craftsman Rs. (4500-7000) :
25% of Highly Skilled grade posts will be placed in the grade of the Master Craftsman. They will, however, not be a part of the hierarchy.

(ii) Assured Career Progression Scheme was introduced vide DoP&T O.M. No. 35034//1/97-Estt(1), Dated 09.08.1999 to grant 02 financial upgradations in the promotional hierarchy on completion of 12 & 24 years regular service. This ACP Scheme was applicable up to 31.08.2008.

(iii) Under the ACP Scheme, Artisan Staff in the post of Skilled was entitled for 1st ACP in the pay scale of Rs. (4000 – 6000) by ignoring his movement from Semi-Skilled to Skilled, treating it as training period and 02nd ACP in the pay scale of Rs. (5000 – 8000) since the Master Craftsman in the pay scale of Rs. (4500 – 7000) was not a part of hierarchy and the placement in this grade was not treated as promotion.

(iv) The 6th CPC revised pay scales and introduced the Grade Pay system and Artisan Staff became entitled for 01st ACP in the Grade Pay of Rs. 2400/- and 02nd ACP in the Grade Pay of Rs. 4200/-.

(v) Further, 6th CPC merged the pre-revised Group D pay scales of Rs. (2550-3200), Rs. (2610-3540) Rs. (2610-4000) & Rs. (2650-4000) and upgraded and revised in the Grade pay of Rs. 1800/-.

(vi) As per First Schedule, Part – B, Section-II of CCS (RP) Rules, 2008 the grades of existing Unskilled (2550-3200) and Semi-Skilled (2650-4000) workers were upgraded in (2750-4400) and merged and revised in the Grade Pay of Rs. 1800/-.

(vii) It has already been clarified by OFB vide letter No. 800/MACP/A/I/551, dated 22.09.2011 that the movement from Unskilled to Semi-Skilled is not to be treated as promotion and is to be ignored while granting financial upgradations under ACP Scheme upto 31.08.2008. Similarly a movement from Semi-Skilled grade to Skilled grade, irrespective of mode of entry, is not to be treated as promotion for the purpose of ACP and is to be ignored while granting financial upgradations under the ACP Scheme.

(viii) From above, it may be deduced that an Artisan Staff who reached to the post of Skilled grade upto 31.08.2008 and completed 12 or 24 yrs regular service is entitled for 1st ACP in the Grade Pay of Rs. 2400/- and 2nd ACP in the Grade Pay of Rs. 4200/-.

(ix) Thereafter, 3rd financial upgradations may be granted w.e.f. 01.09.2008 under the Modified Assured Career Progression Scheme introduced vide DoP&T O.M. No. 35034/3/2008-Estt. (D), Dated 19.05.2009.

(x) Subsequently, the Ministry of Finance (Department of Expenditure) vide its Notification G.S.R. 552 (E), Dated 28th July 2009 has amended the Central Civil Services (Revised Pay) Rules, 2008 whereby Master Craftsmen has been granted the Grade Pay of Rs. 4200/- and Highly Skilled Workers are split in a ratio of 50 : 50 and re-designated as Highly Skilled Worker Grade-II (Grade Pay of Rs. 2400 in Pay Band PB – 1) and Highly Skilled Worker Grade-I (Grade Pay of Rs. 2800/- in Pay band PB –1).

Accordingly the pay scale of Master craftsman has been revised from Rs. (4500 – 7000) to Rs. (5000 – 8000) vide MOD letter F. No. 11(5)/2008/D(Civ-I) Dated 28th Aug, 2009 as per SRO – 11 E and the post of Highly Skilled (4000 – 6000) has been bifurcated in the ratio of 50 : 50 whereby 50 per cent incumbents have been upgraded as Highly Skilled grade – I in the pay scale of Rs. (4500 – 7000). As per above notification, the artisan staff in MOD is restructured w.e.f. 01.01.2006 as under –

1. Skilled (5200 – 20200) plus 1900 Grade pay
2. Highly Skilled – II ( — Do — ) plus 2400 Grade pay
3. Highly skilled – I ( — Do — ) plus 2800 Grade pay
4. Master Craftsman (9300 – 34800) plus 4200 Grade pay

According to above, the grade structure of Skilled, Highly Skilled –II, Highly Skilled – I and Master Craftsman has been fixed by operating instructions issued vide MOD ID No. 11(5)/2009-D(Civ-I), Dated 14.06.2010 as under:
(i) Skilled – 45 %
(ii) Highly Skilled Grade II – 20.5 %
(iii) Highly Skilled Grade I – 20.5 %
(iv) Master Craftsman – 14 %

(xi) It has been observed that artisan staff were not granted the financial upgradations under the ACP / MACP Scheme in defence installations and when MOD issued instructions for restructuring on 14.06.2010, it (restructuring) was applied first and thereafter financial upgradations granted under MACP Scheme whereas it (MACP) was introduced earlier (19.05.2009) vis a vis to restructuring (14.06.2010). Due to this incumbents are in the disadvantageous position which may be understood by the following table:-


(xii) This is a living example of Sri Rakish Kumar, Tool Setter HS-I, T.No. 18/SMW, P.No. 006548, SAF Kanpur and there are more than thousands IEs in various defence installations who are similarly placed. This case is under consideration in MOD / OFB.

(xiii) Hence, kindly issue necessary directives to the authorities to grant ACP upto 31.08.2008 and thereafter apply the restructuring instructions retrospectively w.e.f. 01.01.2006 by protecting the benefits already granted under ACP Scheme.

2. Grant of MACP ignoring movement from Highly Skilled to HS-I : Implementation of Courts Judgements.

(i) As earlier explained that the Ministry of Finance (Department of Expenditure) vide its Notification G.S.R. 552 (E), Dated 28th July 2009 has amended the Central Civil Services (Revised Pay) Rules, 2008 whereby Master Craftsmen has been granted the Grade Pay of Rs. 4200/- and Highly Skilled Workers are split in a ratio of 50 : 50 and re- designated as Highly Skilled Worker Grade-II (Grade Pay of Rs. 2400 in Pay Band PB – 1) and Highly Skilled Worker Grade-I (Grade Pay of Rs. 2800/- in Pay band PB – 1).

(ii) Accordingly, operating instructions issued vide MOD ID No. 11(5)/2009-D(Civ-I), Dated 14.06.2010 and the post of Highly Skilled (4000 – 6000) has been bifurcated in the ratio of 50 : 50 whereby 50 per cent incumbents have been upgraded as Highly Skilled grade – I in the pay scale of Rs. (4500 – 7000). As per above notification, the artisan staff in MOD is restructured w.e.f. 01.01.2006 as under –


(iii) Further, vide OFB letter No. 01/CR/A/I/658, dated 13.120.2010 the restructuring of Cadre of Artisan Staff in Defence Establishments in modification of recommendations of 06th CPC was made effective in Ordnance & Ordnance Equipment Factories Organizations. Hence this federation demanded vide letter No. BPMS/ CADRE REVIEW / 110(7/4/R), Dated: 07.08.2009, 10.11.2009 & 23.04.2010 that the placement from Highly Skilled to Highly Skilled Grade I should not be treated as promotion either under the normal promotion rules or under MACP Scheme, but all in vain.

(iv) However, some of the employees approached the CAT and the Hon’ble CAT Calcutta has passed the following directions in OA No 172/2012, dated 16.01.2014 {Indranil Chowdhury & 162 others versus Union of India through Secretary Min of Defence, Finance & DoP&T} on the subject matter:

“12. On the Contrary the respondents have failed to convince us that the movement of the present applicants from HS to HS-I involved any assumption of higher responsibilities or that it was a movement from a lower feeder post with lower scale of pay to a higher post with higher scale of pay. On the contrary we find that movement from HS-II to HS-I after 01.01.2006, is justifyly termed as a promotion, as HS-II became feeder post to HS-I w.e.f. 01.01.2006. Similarly Skilled grade became the feeder grade to HS-II. But by no stretch of imagination erstwhile HS Grade can be called a feeder grade to HS-II or HS-I under the hierarchy created w.e.f. 1.1.06.

13. The respondents have thus failed to disclose the reason as to why the placement of erstwhile (pre 01.01.2006) Highly Skilled workers to highly Skilled Gr.-I in terms of seniority and Highly Skilled Gr.-II in the ratio of 50:50 due to restructuring of artisan cadre be treated as promotion. We find from a clarification dated 10.02.2000 that mobility under ACPs is to be allowed in the existing hierarchy. Any Selection Grade / in-situ promotion which is not a part of the hierarchy shall not be treated as promotion for the purpose of ACPs, which fully supports the applicants’ case.

14. Being not supported by any cogent reason we hold that the placement of erstwhile (pre 01.01.2006) HS to HS-I due to cadre restructuring effected on 13.12.2010 w.e.f. 01.01.2006, should not be treated as a promotion for the purpose of MACP. Consequently, we hold that the applicants shall be entitled to MACP.”

(v) Therefore, you are requested to take appropriate action so that the placement of erstwhile (pre 01.01.2006) HS to HS-I due to cadre restructuring effected on.13.12.2010 w.e.f. 01.01.2006, should not be treated as a promotion for the purpose of MACP as per CAT directive to the petitioners as well as non-petitioner. It is worth to mention here that Govt of India has appealed in various High Courts against the similar judgements of different benches of CAT but none of the High Courts have granted the stay order, hence, some of the places CAT order is being implemented.

3. Grant of ACP / MACP to Security Staff in OFB:-


Hence, it is demanded that Security staff (Durwan, Jamadar Durwan & Subedar Durwan) should also be granted financial upgradations under the ACP / MACP scheme on the analogy of Chargeman.

4. This federation has demanded in the Steering Committee meeting for 90th Departmental Council (MOD) held in Aug.2014 to Re-draft the role of Defence (Finance) so that service matters like Recruitment Rules, Cadre Review, revival of sanctioned posts, payment of arrears, revision of allowances etc. may be settled at the earliest. It has been observed that Defence (Finance) division is not cooperating in true spirit to resolve the service matters. For example-

(i) Revision of Special Pay to Staff Nurse working in Operation Theatre- Special Pay has been granted to Nursing Staff @ Rs. 60/- per month who are working in (a) Operation Theatres, (b) Intensive Care Units of the Ordnance & Ordnance Equipment Factory Hospitals/Clinics vide MOD letter No. 7(2)/87/I/D(Fy.II), Dated 06th March, 1989. This Special Pay @ Rs. 60/- per month was being granted as per recommendations of 04th CPC. Subsequently, on the recommendations of 5th CPC the Special Pay @ Rs. 60/- per month was doubled to Rs. 120/- with effect from 01.08.1997 in the Ministry of Railways in terms of Railway Board’s letter No. E(P&A)I- 88/SP-1/MH-2, Dated 18.01.1990 & 25.01.1990. Further, Resolution adopted by Govt of India on the recommendations of 06th CPC which is published in the Gazette of India by Ministry of Finance (Department of Expenditure) No. 1/1/2008-I.C. Dated 29th August, 2008, wherein Para 08 of Part-B states that Govt of India has accepted the 6th CPC recommendations of doubling of the Special Allowance and this allowance will be increased by 25% every time the Dearness Allowance payable on revised pay scales goes up by 50%BPMS Federation has raised this on 07.12.2011 but the matter is running between OFB & MOD due to piecemeal objections of Def (Fin).

(ii) Nursing Allowance to all Nurses working in Dispensaries- Ministry of Health and Family Welfare (Nursing Section) O.M. No. Z.28015/71/2008-N, Dated 19th Nov.2008 states that as per Resolution adopted by Govt of India on the recommendations of 06th CPC which is published in the Gazette of India by Ministry of Finance (Department of Expenditure) No. 1/1/2008-I.C. Dated 29th August, 2008, the President has pleased to enhance the Nursing Allowance to Rs. 3200/- per month w.e.f. 01.09.2008 and the Nursing Allowance will be payable to all Nurses whether working in Dispensaries or in Hospitals.BPMS has raised this issue on 07.12.2011 but the matter has been referred to 07th CPC due to objections of Def (Fin).

(iii) Bunching benefit to Master Craftsmen (Excluding OFB) – MOD ID No. 11(5)/2009- D(Civ.I), Dated 14.06.2010 communicates that Master Craftsman will be granted the Grade Pay of Rs. 4200 in PB-2 w.e.f. 01.01.2006. Prior to above, the Master Craftsmen were in the pay scale of Rs. (4500 – 7000). While implementing the above order, all the MCMs who were drawing pre-revised pay at the stage of Rs. 4500 / 4625/ 4750 / 4875 / 5000 were fixed at Rs. 9300 plus GP 4200 w.e.f. 01.01.2006. This is contradictory to the provisions of CDS (RP) Rules, 2008 which stipulates as under:

7.(1) (A)(ii): if the minimum of the revised pay band /pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale;

Provided further that:-

Where, in the fixation of pay, the pay of Government servants drawing pay at two are more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands.

This issue is pending since long because Def (Fin) needs some clarification from DoP&T / Min of Fin.

(iv) Grant of 3rd MACP in GP 4600/- to Skilled grade- With the concurrence of Def (Fin), MOD issued instructions to grant 3rd MACP in GP 4600/- to those Highly Skilled / MCM who were drawing pay in the pre-revised pay scale of Rs.(5000-8000) upto 31.12.2005 as 2nd ACP. This Federation has pointed out to extend the same benefit to Skilled employees but Def (Fin) needs clarification from DoP&T.

(v) Def (Fin) is not granting the 2nd ACP in GP 2400/- to erstwhile Labourers who have completed 24 yrs regular service upto 31.08.2008 on the plea that they had not passed the requisite trade test of Highly Skilled on the date of eligibility. BPMS invited the attention of Def (Fin) to the clarification for grant of ACP after passing the trade test issued vide MOD D(Civ-I) dated 05.02.2004 which stipulates as under –

“2. It is further clarified that the employees who had completed 12/24 years of service after 09.08.99 but before that the date of conducting the first trade test may be granted financial upgradation under ACP Scheme, subject to fulfillment of all other conditions prescribed for grant of ACP, from the date of their completion of 12/24 years of service, instead of the date of passing of this trade test, in the first attempt as a one time measure.” In spite of that Def(Fin) is not agree to conduct the trade test but make the same effective from the date of eligibility.

(vi) Grant of Night Duty Allowance on the basis of actual salary- Payment of Night Duty Allowance based on actual salary, instead of notional pay of Rs.2200/- was resolved vide MOD ID No. 17(4)/2012/D(Civ-II), Dated 08.05.2015 in compliance of Contempt Petition (CP No. 200/2014 Shri Arvind Girija Singh & Ors versus UOI & Ors.) based on the CAT Jodhpur directions in OA No 34/2008 dated 5.11.2009 and subsequent ratifications by Hon’ble High Court and Supreme Court of India. All the court cases regarding revision of night duty allowance was related to the notional ceiling of Rs.2200/- per month and this issue was resolved by ordering the NDA on the actual salary and nowhere court further fixed any real or notional ceiling. We are surprised to see the PC of A (Fys) Kolkata letter No. Pay/TechII/1206/2015/13, dated 09.09.2015 whereby ceiling for entitlement of Night Duty Allowance has been revised to Rs. 12380/- pay in Pay Band.

We have strong objection on the issuance of this letter because PC of A (Fys) is not the competent authority to revise the ceiling of entitlement for NDA unilaterally as the original order has been issued by Ministry of Defence in consultation with Min of Finance, DoP&T, Def (Finance) and if there was any doubt regarding eligibility, PC of A (Fys) should have asked for clarification from the competent authorities through prescribed channels.

These are some of the examples on the functioning of Def (Finance) which raise piecemeal objections time and again and after several years the issue/draft/proposal will be sent to other authorities like DoPT, Min of Fin, Min of Labour, Min of Law etc. Due to this delay tactics employees are compelled to approach the Court of Law. Even then Court judgements are not being extended to similarly placed non-petitioners.

5. There are various court cases due to administrative lapses like promotion of MCM in EME, grant of one increment on movement from MCM to Chargeman, grant of 3rd MACP in GP 4600/- to IEs after 01.01.2006, grant of Skilled grade to Tentmenders of AOC & Valveman & Lift Operators of MES from the date of appointment and redesignation of Safaiwala/Chowkidar to Mate in MES. This should be looked into.

6. Defence Civilians of EME and OFB are much agitated because their Productivity Linked Bonus are being reduced to 28 days & 40 days respectively whereas on the basis of their output/production they are being recommended for 32 days in EME & 41 days in OFB. Due to this, members of Federation are pressing very hard to file court cases against the employer for not paying the legitimate justify of PLB. Kindly look into the matter to prevent litigations.

7. In the Contempt Petition, it should be brought to the notice of CAT/High Court/Supreme Court where the matter is pending for implementation like Directorate / MOD / Def(Fin) / DoP&T / Min of Finance etc. so that appropriate directives may be issued against the concerned authority by the CAT/Court under the Contempt of Court.

Therefore, you are requested to put the above cases before the expert committee so the committee may consider the cases in correct perspective and may suggest the Hon’ble Defence Minister and may issue necessary directives to other authorities how to minimize the litigations and the grievances of the employees may be resolved amicably.

Thanking you. Sincerely yours

(MUKESH SINGH)
Secretary/BPMS &
Member, JCM-II Level Council (MOD)

Source: BPMS

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