w w w . L a w y e r S e r v i c e s . i n

K.J John, Attendant, Institute of Hotel Management & Catering Technology & Others v/s Union of India, Represented by the Secretary to Goverment, Ministry of Tourism & Others

Company & Directors' Information:- R N M CATERING PRIVATE LIMITED [Active] CIN = U15316KA2015PTC081391

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- C AND M CATERING PRIVATE LIMITED [Active] CIN = U55204MH2005PTC156252

Company & Directors' Information:- S. S. CATERING PRIVATE LIMITED [Active] CIN = U18101RJ1976PTC001680

Company & Directors' Information:- P 4 CATERING PRIVATE LIMITED [Strike Off] CIN = U55101HP2013PTC000351

Company & Directors' Information:- V C CATERING PRIVATE LIMITED [Strike Off] CIN = U55204DL2010PTC201205

Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

Company & Directors' Information:- INSTITUTE OF HOTEL MANAGEMENT AND TOURISM PRIVATE LIMITED [Strike Off] CIN = U80903WB1998PTC087196

    O.A. No. 1014 of 2011

    Decided On, 30 July 2013

    At, Central Administrative Tribunal Ernakulam Bench


    For the Applicants: M/s. Dandapani, Associates, Advocate. For the Respondents: Sunil Jacob Jose, SCGSC.

Judgment Text

Dr. K.B.S. Rajan, Judicial Member

1. The applicants, six in numbers joined the respondents' organization in response to a notification issued on 19-12-1998 for the post of general laboratory attendant, applied for the said post and were selected for the same. Accordingly, they had joined the said post and by now the sixth applicant has been promoted as lower division clerk while the others still continue as attendants. The scale of pay attached to the said post of attendant was Rs.2,550/- 3200/- in the pre-revised pay scale. The applicants could ascertain certain information relating to the sanctioned the posts in the respondents' organization and by Annexure A- 1, there were four posts of laboratory attendants in the pay scale of 2550 - 3200 sanctioned during 1998. Earlier there were two such posts of laboratory attendants thereby the total number of sanctioned the posts of laboratory attendants in the respondents organization became six. It is against the six vacancies that the applicants were inducted in the wake of the notification dated 19-12-1998, though the nomenclature reflected in the notification as well as appointment order happened to be general attendants. Their services were utilized as Lab Attendants from the date of their joining service. Having found that the posts sanctioned were laboratory attendants and not general attendants, the applicants preferred representations to the respondents for re-designation of their posts and consequential benefits flowing therefore (higher pay scale of Rs 2,650 - 4,000/- which is the pay scale attached to the post of Laboratory Attendants in all the organization). In their 42nd meeting of the Board of Governors, held on 16-06-2008, it was decided that the decision in this regard is to be taken by the Ministry only. Annexure A2 refers. Accordingly, the respondent No. 4 had referred the matter to the first respondent vide letter dated 06-11-2008 t Annexure A-3. Again, in 2011, the applicants preferred representations addressed to the Secretary, Ministry of Tourism, (Respondent No. 1) for re-designation as Lab. Attendant, corresponding pay scale as also financial up-gradation under the MACP Scheme, vide Annexure A-4 dated 24-10-2011. As no further action was taken by the respondents, this OA has been filed seeking the following reliefs:-

"8.i. Call for the records leading to Annexures A1 to A3 and direct the 1st respondent to re-designate the applicants as Lab Attendants, place them in the scale of pay attached to the above post and to grant all consequential monetary benefits,

ii. Pass an order directing the respondents to disburse the applicants monetary benefits and the arrears of pay, forthwith, on re-designating the post of applicants as Lab Attendants.

iii. Direct the first respondent to consider and pass appropriate orders on Annexure A4 and similar representations filed by the applicants, forthwith. "

2. Respondents have contested the O.A. According to them, though the sanctioned post indicated Lab. Attendants, actually, the pay scale attached to the same was only Rs 2550 - 3200 and it was the same which had been notified in the Advertisement dated 19-12-1998 (Annexure R-1, added to the additional reply). This pay scale happened to be the pay scale attached to the post of General Attendant and on their selection, all the applicants had been appointed only as General Attendant and not Laboratory Attendants. On the representation of the applicants for revision of pay scale and re-designation of the post as Laboratory Attendants, the Board of Governors had resolved that the matter had to be decided by the Ministry. Likewise, the matter relating to ACP for financial up-gradation from 2550 - 3200 to Rs 2610 - 4000 was also resolved to be dealt with by the Ministry. The appointment being one of Attendant, there being a provision of 10% vacancy in the grade of LDC being tenably by promotion of the Group D employee, one of the applicants was promoted to the post of LDC. The matter was referred to the Ministry. In response to the same the Ministry of Tourism, Government of India vide its letter No. 47(6)/2001 HRD dated 23-11-2011 advised the Institute, " except for service matters relating to the post of Principal of IHMs, BOG of the Institute is competent to take decision on all matters pertaining to the staff of the Institute with the only exception of such issues which touch upon the powers as specifically retained by the Central Government." The Ministry also had advised the Institute to place the representations before the Board of Governors for decision and the Institute may go to the Ministry only on such points where the Board of Governors feels it is beyond its competence to decide. The respondents contended that as per the Recruitment Rule 2001 which was adopted by the Board of Governors in its meeting on 7th September, 2002, and Recruitment and Promotion Rules, 2003, which came into effect from June, 2003, there is no post of Lab. Attendant in IHMs but only the post of Attendants with the pay scale of Rs 2,550 - 3,200/-. The power of creation of posts vests with the Bord of Governors. The Central Government issues directions to the Bord. Thus, there had been a modification in the posts from Lab. Attendant to General Attendant, which is within the scope of law. Having taken up the employment as General Attendants a score of years ago, the applicants cannot now claim for re-designation and consequential benefits flowing therefrom.

3. In their rejoinder the applicants maintained that the sanctioned posts being only Lab. Attendants, the applicants can be accommodated only in the said post and of course, it was by mistake that the respondents had reflected the pay scale attached to the said post as Rs 2,550 - 3,200 instead of Rs 2650 - 4000/-. Again, as per the ACP Scheme, the financial up-gradation is to the scale of Rs 2750 - 4400 and second financial up-gradation is Rs 3050 - 4000/-

4. In their additional reply, the respondents have maintained that the posts advertised clearly stipulated the name as General Attendants and the pay scale attached is also that for the said post. Further, they had accepted the terms of employment knowing fully well about the post, its nomenclature and pay scale.

5. In their additional rejoinder, the applicants contended that the posts sanctioned having been only as of Laboratory Attendants, there cannot be an appointment to the post of General Attendants. While allocating the duties and responsibilities the authorities had allocated the duty of Lab. Attendant as well as Attendant.

6. Additional reply to the additional rejoinder had been filed by the respondents, which contained by and large the same contentions as in the reply and first additional reply.

7. Senior counsel for the applicant submitted that it is trite law that no appointment could be made unless there is a sanctioned post. In the case of the respondents' organization, the posts sanctioned admittedly were that of Lab. Attendant and no post of General Attendant has been sanctioned. Of course, at the time of sanctioning the said post of Lab. Attendants, the pay scale had been wrongly mentioned as Rs 2550 - 3200 instead of Rs 2650 - 4000. The qualification prescribed for the two posts are comparable and the applicants fulfill the qualifications as for Lab. Attendants. Again, the applicants have been performing the duties of Lab. Attendants (a sort of supervisory job). The Board of Governors had been authorized by the Ministry to decide matters other than matters relating to the Principal of IHMs, and matters powers in respect of which have been specifically retained by the Government. Promotion to LDC is not only with reference to General Lab. Attendants but also with reference to Lab. Attendants.

8. Counsel for the respondents argued that the pay scale dictates the nomenclature and not vice versa. The pay scale as per the initial sanction being only of Rs 2,550 - 3,200 which is attached to the post of General Attendant, the same would mean that notwithstanding the term "Laboratory Attendant " had been mentioned in the sanction letter, the same mean only General Attendant. Again, from 2003, the post of Lab. Attendant is not there.

9. Arguments were heard and documents perused. The appointment of the applicants in 1998 or thereafter was against the posts sanction by then and earlier existing vacancies. The sanction order does reflect the post as Lab. Attendant. The pay scale however, is Rs 2550- 3200, which is the pay scale meant for General Attendant. The notification reflects the post as General Attendant and the appointment order too reflects so and the applicants had taken up the job as Attendants. However, according to them, they have all been performing the duties as Lab. Attendant as well as Attendant. (It is pertinent to mention here that the applicants had at two places averred that the job performed by them related to that of Lab. Attendant as well as Attendant. Penultimate sentence of para 1 and para 8 of the Additional Rejoinder refer. However, this has not been denied or refuted by the respondents in their reply or additional reply to the rejoinder.)

10. The question is whether the initial appointment should be treated as one of Lab. Attendant as claimed by the applicants or General Attendants as claimed by the respondents.

11. First as to the fact of posts available in the Respondents' organization. It has no where been stated in the pleadings that other than the six posts of Lab. Attendants there have been any posts of General Attendant available with the respondents. Thus, admittedly, the applicants have all been accommodated against the sanctioned posts. The sanctioned posts, vide Annexure A 1 read with Annexure A-6. The institute had been created only in 1990. However, in respect of Madras, the institution was constituted much earlier. Annexure A-8 reflects that the posts available in the Institutions include Lab. Attendant in the scale of Rs 210 - 270 and Peon/Watchman/Mali/Safaiwala/Attendant in the scale of pay of Rs 196 - 232. Annexure A-5 order dated 1990 which provided for creation of various posts, contains the posts of Lab. Attendants (serial No. 13) and Sweeper (serial No. 14) as well as Chowkidar(Serial No. 16). There is no post of Attendant, much less General Attendant. Nevertheless, the post notified vide Annexure R-1 is one of General Attendants with the pay scale as of Rs 2550 - 3200/- in contra distinction to Rs 2650 - 4000 which is the replacement scale of erstwhile Rs 210 - 270. It is trite law that no one can be appointed against a non existing post. Thus, since the applicants' appointment had been against the posts created in 1990 and 1998, which manifests the name as Lab. Attendant, we may treat them as having been appointed against the said post only. However, as to the pay scale, notwithstanding the nomenclature, the scale attached to the post even as per sanction letter is Rs 2550 - 3200/-. The applicants have accepted the same, though at a later point of time they had made representation. Hence, it should be held that the applicants were appointed as Lab. Attendant but in a lower pay scale. There being no denial to the averment of the applicants that they were performing the duties of Lab. Attendants also, in one way it could be held that their appointment initially was to the post of Lab. Attendant. As per the respondents however, since pay scales dictate the post, notwithstanding the fact that the sanction order refers to Lab. Attendants, the post sanctioned should be treated as one of General Attendants.

12. It is to be noted that out of six posts of Lab. Attendants, two were initially sanctioned in 1990 while, the rest in 1998. Information is not available as to whether the two posts sanctioned in 1990 were filled and if so, whether the pay scale attached to the post was one of Rs 196 - 232 or Rs 210 - 270. If it is the latter, then the same corresponds to the post of Lab. Attendant and one can safely assume that the requirement of the Institution was for Lab. Attendant and not Attendant. Again prior to the sanctioning of the posts of four Lab. Attendants, there ought to have been a proposal drawn by the Institute which would have been considered and ultimate sanction for creation of the post of Lab. Attendants accorded. The same would also throw some light as to whether proposal meant creation of the post of Lab. Attendant or Attendant. Normally, records relating to creation of posts are maintained on permanent basis and in the instant case, the same pertained to 1998 only which is only of a recent past. As such reference to the relevant records is a must to come to the conclusion as to whether the posts created were one of Lab. Attendant or General Attendant.

13. If the records reflect that the posts were of Lab. Attendant, then again, all that could take place is to re-designate the the post held by the applicants from General Attendants to Laboratory Attendants and revise the pay to that of Laboratory Attendants as available in other units of the Respondents, and the same shall only be from 2001 when the applicants made representation for re-designation and consequential benefits. The consequential benefits should be to the extent of notional f

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ixation of pay and not actual, actual being only from three years anterior to the date of filing i.e. November, 2008 as the OA had been filed only in November, 2011. ACP would accordingly be modified and the same too would be only notional till November 2008. Promotion granted under the 10% quota remains unaffected since such a promotion could be possible with reference to Lab. Attendants also. 14. Instead, if the pay scale of the two posts of Lab. Attendants sanctioned in 1990 happened to be Rs 196 - 232, and if the proposal for further creation of four posts were only for General Attendants but the same had been notified as Lab. Attendants, then the applicants would have no case. 15. Accordingly, this OA is disposed of with a direction to the respondents to verify the records and if the records reflect the pay scale of Lab. Attendants during 1990 as Rs 210 - 270, then the applicants should be considered for re-designation with revision of pay and allowance as stated in the earlier paragraph 13 above and if the pay scale was only 196 - 232, the applicants be informed that they are not entitled to the relief as claimed in this O.A. 16. This order be complied with, within a period of two months. If the applicants are to be re-designated, the re-designation may take place within two months. However, as regards working out of pay and allowances, as also grant of ACP etc., respondents may take further time of four months. 17. No costs.