K. Subhas Babu &
Ors. Vs. Engineer In Chief, Army H.Qrs & Ors.
O R D E R
1. This appeal is directed
against the judgment and order dated 8th April, 2003 passed by the Division
Bench of the Kerala High Court allowing the writ petition filed by the respondent
Union of India, Ministry of Defence.
2. The issue that arose
for consideration before the High Court and also before the Central Administrative
Tribunal was whether the appellants herein were entitled to claim the benefit of
three advanced increments from the dates of their appointment on the basis of higher
qualification of Degree in Engineering. The appellants claim the aforesaid
benefits of grant of three advanced increments on the basis of their having higher
qualification. They claim to be entitled to payment of such three advanced increments
on the basis of the circulars dated 4th of February, 1969 and 2nd of June, 1971,
which provided for grant of advanced increments. Both the aforesaid circulars
were issued by the Ministry of defence.
3. In the said circulars
issued, it was provided that non-gazetted civilians paid from Defence Service Estimates
and serving in technical/scientific grade and who possessed a Degree in
Engineering would be entitled to three advanced increments for possessing such qualifications.
It is clearly revealed from the record that the aforesaid incentives and benefits
which were allowed in favour of the non-gazetted civilians belonging to the Defence
Establishments were, however, withdrawn by a subsequent circular issued by the Ministry
of Defence on 18th of March, 1974. In the subject of the said circular it was
mentioned that the circular relates to the issue of grant of advanced increments
to Engineering graduates appointed to the post for which the minimum prescribed
qualification is an Engineering Diploma. It was also mentioned therein that the
subject matter of the circular relates to withdrawal of the aforesaid
concessions on the basis of and due to the recommendation of the Third Pay Commission.
4. After referring to
the recommendation of the Third Pay Commission recommending withdrawal of the existing
concession of grant of advanced increments to the Engineering graduates appointed
to the posts for which minimum prescribed qualification is an Engineering Diploma
was accepted by the Government. Consequently the decision of the President was
communicated under the aforesaid circular to the effect that the Engineering graduates
appointed on or after December 1, 1973 to posts in the Defence Establishments for
which the minimum qualification for recruitment is a Diploma in Engineering would
not be eligible for the aforesaid concession and benefit which was sanctioned in
the Ministry's letter dated 4th of February, 1969 as amended by circular dated 2nd
June, 1971. Therefore, whatever benefits of advance increments were granted by the
earlier circulars were all withdrawn by issuing the aforesaid circular.
5. Counsel appearing for
the appellant, however, relies on the circular issued by the Department of Personnel
& Training, Government of India dated 28th June 1993. In the said circular,
it is intimated that the Committee of Secretaries reviewed the existing Scheme
of giving incentive in the form of advanced increments to those employees who acquired
higher qualification in various Ministries and Departments and that it was felt
that there was a clear need for switching over from the system of advanced increments
to the system of payment of one time lump-sum incentive. It was also stated
that certain guidelines could be adopted and one such guideline suggested was
that incentive payment should be given only for higher qualification acquired after
induction into service.
6. The aforesaid circular
does not appear to have laid down any specific policy of the Government for making
payment of any advanced increments for three years specifically to civilian
employees working in the Defence Establishments. The circular was issued by the
Department of Personnel and Training and not by the Ministry of Defence. The
said circular also speaks of only a system of payment of one time lump-sum
incentive instead of three advanced increments. Paragraph 2 of the said circular
is also relevant for the purpose of showing that the Committee of Secretaries directed
for formation of a Centralized Committee under the aforesaid circular for
drawing up the list of qualification which should entitle sanction of lumpsum incentives.
Therefore no definite decision or scheme was laid down therein so far as civil
employees serving in the Defence Establishments are concerned.
7. Reliance is also placed
by the counsel appearing for the appellants on the circular dated 3rd June 1996
which refers to the copy of the Ministry of Defence's circular regarding acquiring
of higher qualification. Counsel heavily relies on the said circular and particularly
on the contents that the Department's O.M. dated 31st January, 1995 were applicable
from the financial year 1993-94 and also on the fact that persons who were
granted advanced increments prior to financial year 1993-94 would continue to
draw advanced increments and that persons who acquired higher qualification examination
on or after 1.4.1993 are to be granted lump- sum amount as an incentive under
the new Scheme.
8. We fail to understand
as to how the said circular also becomes applicable to the cases of the appellants
as no case is made out that the appellants at any stage were granted advanced increments
prior to the financial year 1993-94. Only those persons who were getting advanced
increments prior to financial year 1993-94 were continuing to draw advanced
increments. The appellants were never granted any such advanced increments and their
prayer for grant of the said benefit was rejected by the Ministry of Defence. The
High Court has considered the issue raised before it and after an indepth study
of those circulars the High Court has come to the conclusion that the appellants
are not entitled to claim the aforesaid benefit. The High Court has also recorded
that the appellants are not entitled to the aforesaid benefit as the Ministry of
Defence has withdrawn such benefit specifically by issuing the notification on 18th
March, 1974. Considering the aforesaid facts and circumstances of the case, we
are of the considered opinion that there is no infirmity in the order passed by
the High Court. We, therefore, find no merit in this appeal which is,
accordingly, dismissed.
9. However, before parting
with the records, we may record the submission of the counsel appearing for the
appellants that the appellants have already been paid benefit in terms of the order
passed by the Central Administrative Tribunal and that some of the appellants have
since retired from service and therefore should not be directed to recover the
amount from the appellants. We have considered the said prayer. The High Court
had directed for restoration of the amount, however considering the contention of
the appellants to grant liberty to the appellants to file a representation before
the respondents for waiver of the aforesaid amount, Mr. Doabia, the learned
Senior Counsel appearing for the respondents also states that if a
representation is filed by the appellants the same shall be considered by
giving due weightage to the contentions raised in the said representation.
10. In that view of the matter,
the appellants may file their representations within two weeks which shall be
considered and disposed of in terms of the statement made by the counsel for
the respondents as expeditiously as possible preferably within a period of eight
weeks from the date of the said representation.
.........................J.
[DR. MUKUNDAKAM SHARMA]
.........................J.
[ANIL R. DAVE]
NEW
DELHI
SEPTEMBER
07, 2011.
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