29. Item No. NC-48/ 19/ 21 - Grant of Night Duty Allowance in 7th CPC Pay scale without any basic pay ceiling limit

The DOP&T vide OM referred above have issued order for revision of Night Duty Allowance in 7th CPC Pay Scale w.e.f. 1-7-2017.

However the following 2 conditions are imposed in the Government Order.

1. The ceiling of Basic Pay for entitlement of NDA shall be 43600/ – p.m.
2. The Hourly wages of NDA equal to Basic Pay + DA / 200 will be paid and the Basic Pay and DA for the calculation rates shall be the Basic Pay and DA prevalent as per 7th CPC

As regard the Basic Pay ceiling limit for payment of NDA it is not applicable to those category of employees who are already eligible to draw NOA when they are deployed on Night Duty. ” since in accordance with the DOP&T OM dated 4th October 1989 there will not be any ceiling for entitlement of Night Duty Allowance in respect of the Officials who are at present getting this benefit as per existing criteria. “

This was clarified by MoD vide ID No. 17(4)/ 2012 /d-(Civ-II) Dt. 7-7-2017 and 22-9-2017 to the CGDA after getting the concurrence of DOP&T during the implementation of the revised rates of NDA in 6th CPC Pay Scale. In the case or Railways, a large number of Employees including Loco Pilots and other running staffs etc., are deployed on Night Shift on regular basis. In the Railways also up to now NOA was paid to all the eligible employees without any restriction of Basic Pay limit. However while implementing the recommendations of 7th CPC the DOP&T in its order dated 13-7-2020 has stipulated an artificial ceiling of NDA entitlement restricting the limit to Rs. 43,600/-. Due to this the authorities in the Railways, Ministry of Defence and other Departments are now refusing to pay NDA for the employees who are deployed on Night Shift in case their Basic Pay is more than Rs. 43,600/ -. This has created a discrimination amongst the same category of employees who are deployed on Night Shift and there is an unrest amongst the employees.

In this regard your attention is also drawn to the Judgement of the Honourable CAT, Jodhpur Bench and High Court of Rajasthan which was subsequently upheld by the Honourable Supreme Court. The Honourable High Court of Rajasthan in its order under No.DB Civil Writ Petition No. 8637/ 2011 dated 5-3-20 12 has given the following direction to the Government of India,

“Though the learned counsel for the petitioners frankl y pointed out that the decision in Ram Kumar’s case (supra) that has beenfollowed and applied in the present case, was challenged in the court in DBCWP No. 9927I 2010 but the said writ petition was dismissed by a co-ordinate Bench of this court on 1-8-2011 and has placed for perusal the said order dated 1-8- 2011, however the learned counsel attempted to argue that the d irection as given by the Tribunal is contrary to the circular dated 25-6-1992 whereby the calculation of NDA in such matter was to be made on the basis of basic salary of the incumbent upto the maximum of Rs. 2200/ – and such an aspect has not been considered in the earlier decision.

The petitioner’s cannot be permitted to seek re-opening of the issue by attempting to submit some additional ground or arguments, which ought to have been made in the previous petition and, in any case, shall be deemed to have been considered and decided because the orders earlier passed essentially related to the question of basis on which NDA was to be calculated . In fact, the attempt on the part of the petitioner – Union of Ind ia to challenge such kind of order itself adversely commented upon by the co­ ord inate Bench of this court in the aforesaid order dated 1-8-2011 the relevant portion whereof is reproduced hereunder.

1. In our opinion too, the applicants are entitled to receive Night Duty Indeed apart from the legal rights of the applicants to claim such Night Duty Allowance, which was rightly awarded by the Tribunal. It does not stand to any reason that an employee would be in Night shift by rendering his valuable services and yet would not be paid any incentive in the form of special allowance for such services. It will be a mockery of the system that they take extra work or add itional work from an employees and do not pay when it comes to payment on one pretext or other. It is really a matter of concern that such order being challenged by none other than the Government of India. In all fairness the Government should have accepted the order of the Tribunal having once contested or merit before the Tribunal instead of challenging it in the writ petition. It is such more so, when the order is neither illegal nor perverse.

1. Apart from the morality and basic human norms, in our opznwn, the Tribunal very rightly examined the case of applicant’ s entitlement on the basis of the system prevailing in the department and the norms prescribed for such payment and then impugned d irections were issued for such We concur with such reasoning conclusion and finding absolutely no merit in the writ petition, this same in limine.

In the aforesaid view of the matter and following this court’s decision in Ram Kumar’s Case (Supra) this writ petition stands dismissed,.

This has been implemented by the Ministry of Defence in consultation with DOP&T and necessary orders have been issued during the 6th CPC dispensation. Therefore the above artificial Basic Pay ceiling imposed by DOP&T for eligibility of NOA to the Central Government Employment is illegal and unjustified.

Apart from this your attention is also drawn to one of the award of the Board of Arbitration under the JCM scheme wherein the Artificial ceiling for eligibility/ payment of NOA has been set aside. Therefore to remove the unnecessary hardship caused to the employees due to the OOP&T OM dated 13-7-2020 it is requested the DOP&T may kindly arrange to issue necessary clarifications at the earliest. A copy of your instruction may please be endorsed to this Office.