The main legal point established in the judgment is that employees who have completed four years of service in a specific grade pay are entitled to the Non Functional Upgradation Scale recommended by the Pay Commission, and such recommendations should be applied uniformly.

JUDGMENT

Suresh Kumar Kait, J. The petitioners, who are Engineers working in the Border Roads Organization (`BRO') are aggrieved by non grant of Non Functional Upgradation Scale, by the respondents.

2. The petitioners claim to have joined the services of BRO in the Subordinate Engineer Cadre as Overseers, Charge Mechanics and Superintendents and subsequent to the recommendations of the Fifth Pay Commission, the said posts were merged and re-designated as Junior Engineer. As per the recommendations of the Sixth Pay Commission, the Junior Engineers were placed in Pay Band-2 with Grade Pay of Rs.4,200/- and as per the Modified Assured Career Progression Scheme (`MACP') the next Grade Pay of Rs.4,600/-; Rs.4,800/- and Rs.5,400/- was payable upon completion of 10, 20 and 30 years of service respectively. Further, vide Seventh Pay Commission it was recommended that 80% employees at Level 8 Grade Pay shall be granted Non-Functional Upgradation to Level 9 (Grade Pay of Rs.5,400/-) upon completion of four years service on seniority-cum-suitability basis.

3. The contention of petitioners is that the aforesaid recommendations of the Seventh Pay Commission were adopted by BRO vide letter dated 15.11.2018 of the Controller General of Defence Accounts (`CGDA).

4. The grievance of petitioners is that all the petitioners had completed 20 years of service as Engineers, drawing Grade Pay of Rs.4,800/- at Level-8 for more than four years, however, none of the petitioners have been granted the Grade Pay of Rs.5,400/- at Level-9.

5. During the course of hearing, learned counsel for the petitioners submitted that despite making several requests to the competent authority of BRO to grant Non Functional Upgradation as per Seventh Pay Commission, this benefit has not been given to the petitioners. In response to one such representation, the respondents have though admitted of granting Non Functional Upgradation to the Senior Private Secretaries but not to Engineers while relying upon letter dated 17.02.2009 issued by the Ministry of Shipping Road Transport and Highway, which conferred the said benefit to Senior Private Secretaries only. Learned counsel submitted that the respondents have placed reliance upon letter dated 17.02.2009 which relates to the recommendations of the Sixth Pay Commission; whereas the petitioners herein have sought relief mentioned under Para-7.4.13 (iv) (b) of the recommendations of the Seventh Pay Commission.

6. Learned counsel for petitioners next submitted that as per CGDA's Circular dated 17.02.2021, the grant of Non-functional Upgradation to Grade Pay Rs.5,400/- i.e. Level-9 has been extended to Assistant Accounts Officers of the Defence Accounts Department who have been in the grade pay of Rs.4,800/- i.e. Level-8 for the last four years. Hence, Engineers in the BRO have been discriminately treated and the benefit of Non Functional Up gradation cannot be confined to Senior Private Secretaries and so, a direction is sought to the respondents to grant petitioners Non Functional Upgradation consequent upon completion of four years of service at Level-8 at par with the Assistant Accounts Officers of the Defence Accounts Department.

7. On the other hand, learned CGSC appearing on behalf of respondents submitted that Non Functional Upgradation to Level-9 or Grady Pay of Rs.5,400/- upon completion of four years service in Level-8 i.e. Grade Pay Rs.4,800/- in respect of Private Secretaries, has been granted in accordance with communication dated 17.02.2009 of the Government of India, Ministry of Shipping, Road Transport and Highways, as the entry level pay scale for fresh recruits was Rs.7,500-12000 in Fifth Pay commission, which has been subsequently been revised to Pay Band-2 in Sixth Pay Commission with corresponding Grade Pay of Rs.4,800/- and so, they have been granted a pay scale of Rs.8000-13500 with corresponding Grade Pay of Rs.5,400/- on completion of four years of service.

8. Learned CGSC submitted that the petit