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civilians belonging to the Defence Establishments were, however, withdrawn by a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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